Renewable Energy Update

EPA Rejects NPDES Takeover Petition in WV; Still to Make a Decision in KY

October 29, 2015

We have previously reported (in March 2015 and July 2015) on a challenge by the Sierra Club and other groups to EPA’s failure to respond to a petition requesting that EPA rescind the NPDES programs in Kentucky and West Virginia. 

After false starts in federal district courts, the Sierra Club filed actions in both the Sixth Circuit and the Fourth Circuit Court of Appeals challenging EPA’s failure to respond to its petitions in Kentucky and West Virginia.

In late September, EPA responded to the petition in WV, largely rejecting it.  EPA then filed a brief with the Fourth Circuit arguing that EPA has now reasonably responded to the petition, thereby mooting a claim that it had failed to act and addressing claims that its failure to act constituted an unreasonable constructive rejection of the petition.  EPA’s brief notes that while it has generally rejected the rescission petition, it has deferred action in two areas: claims that WVDEP has improperly permitted selenium discharges; and charges that WVDEP unlawfully fails to take enforcement action against violations at mining operations.  EPA’s letter to the Ohio Valley Environmental Coalition and the Sierra Club, as well as a copy of its response to the withdrawal petition, start on page 38 of the EPA brief. 

In Kentucky, the Sierra Club is pursuing a similar action before the Sixth Circuit.  In July, the Sierra Club filed a petition for a writ of mandamus seeking to compel action by EPA.  By order of October 9, 2015, the Sixth Circuit directed EPA to respond to the petition.  EPA has obtained an extension of the time to respond until November 20, 2015. 

This article was authored by Bob McLusky and Jennifer L. Hughes, Jackson Kelly PLLC.