ASHLAND — A Franklin Circuit Judge will allow several environmental groups and private citizens to intervene in a settlement reached between the state and two coal companies accused of submitting false water pollution discharge reports from mountaintop removal sites in southeastern Kentucky.
Judge Phillip Shepherds ruling came on the same day that environmentalists occupied the outer office of Gov. Steve Beshears office and forced a meeting with him at which they questioned the governor about support of the coal industry at what they say is the expense of clean, safe drinking water.
Shepherd ruled the environmentalists brought“good faith allegations that the current decree is inadequate to protect the public interests.”
An attorney for the environmental groups, Mary Cromer of the Appalachian Law Center in Whitesburg, hailed the ruling as a victory and said it will give her clients 90 days to make sure the agreement between the Cabinet for Energy and Environment and Frasure Creek and ICG coal companies are fair and adequate.
Dick Brown, spokesman for the Cabinet, said the cabinet is reviewing the ruling and“considering all our options,”declining further comment.
In October the environmentalists announced their intention to sue the companies under the federal Clean Water Act, claiming Frasure Creek and ICG Coal submitted false and fraudulent reports of pollutants discharged into streams from mining operations. Under provisions of the CWA, the state had 60 days to take action against the companies before the environmentalists could file their suit and it sought to enter a settlement with the coal companies in Franklin Circuit Court. That settlement said the Energy and Environment Cabinet investigated the claims and found 2,700 violations but termed them “transcription errors.” The settlement levied fines of $310,000 and $350,000. The environmentalists claimed they uncovered 20,000 violations with potential fines of up to $740 million.
Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, Water Alliance and three private citizens sought to intervene in the settlement, contending the cabinet had ignored such violations for years and the settlement it agreed to with the coal companies was so inadequate it both failed to protect the public and encouraged coal companies to risk violations with the confidence they could settle with the state at small cost.
The cabinet’s lawyers argued at a January 27 hearing that the settlement represents the public interest and allowing the intervention by the environmentalists would pose an “unwarranted burden” while attorneys for the companies argued they were prepared to pay the fines in the settlement and intervention would delay disposition of the case.
Mary Stephens, an attorney with the cabinet, argued the state’s response had been “swift and thorough” and if the environmentalists wished to intervene they must do so in federal court – even though it was the state which filed the consent decree in Shepherd’s court. They also argued Franklin Circuit Court had no jurisdiction in the matter.
But Shepherd wrote in his opinion that the “cabinet by its own admission has ignored these now admitted violations for years. The citizens who brought these violations to light through their own efforts have the legal right to be heard when the Cabinet seeks judicial approval of a resolution of the environmental violations that were exposed through the efforts of these citizens.”
Shepherd also rejected the cabinet and coal company lawyers’ arguments that his court lacked jurisdiction, noting state are presumed to have concurrent jurisdiction over federal claims and he ruled the environmentalists had legal standing to intervene.
He ordered the cabinet and coal companies to submit to discovery so all parties could determine if the consent decrees are “fair, adequate, reasonable and consistent with the public interest.” He scheduled a hearing on the matter for June 14.
RONNIE ELLIS writes for CNHI News Service and is based in Frankfort, Ky. He may be contacted by email at firstname.lastname@example.org. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.