Daily Independent (Ashland, KY)

February 1, 2013

Environmentalists call agreement ‘backroom deal’

By RONNIE ELLIS
CNHI News Service

FRANKFORT — Environmentalists are calling a proposed agreement between the Energy and Environment Cabinet and a coal company over pollution violations a “backroom deal,” negotiated without the involvement of the environmentalists who first brought the company’s violations to light.

In 2010, several environmental groups discovered numerous alleged violations of the Clean Water Act by two coal companies, Frasure Creek Mining and ICG Mining, and threatened to sue both in federal court.

The cabinet conducted its own investigation of the charges and agreed to settlements with both companies which it sought to have entered in Franklin Circuit Court.

The environmentalists objected and Judge Phillip Shepherd allowed them to intervene, urging all the parties to negotiate a settlement. ICG reached an agreement with the cabinet and environmentalists but Frasure Creek said it faced financial reversals which made it impossible for them to pay proposed civil penalties or agree to terms with the environmental groups.

Its attorneys said the company suspended mining operations in Kentucky and is in the process of liquidating equipment and financially restructuring.

That case continues in Franklin Circuit but the environmentalists and the cabinet alleged Frasure Creek committed additional violations which occurred subsequent to the Franklin Circuit Court action.

The cabinet took those violations to an internal Administrative Hearing Officer rather than Franklin Circuit Court. The cabinet’s hearing officer granted the environmental groups — Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, Waterkeeper Alliance and several private citizens — intervener status.

According to a letter to Cabinet Secretary Leonard Peters from Mary Cromer, attorney for the environmental groups, Kentucky Administrative Regulations require all parties to agree to final entry of an agreed order — and the environmental interveners object to the agreement because they were denied participation in the negotiations.

The letter criticizes the agreement as well for insufficient penalties against Frasure Creek which will not deter future violations.

“The Agreed Order sends a message to Frasure Creek and other coal companies that they can come into Kentucky, enjoy a near amnesty from state and federal environmental regulation, plunder the state’s natural resources, annihilate mountains and destroy rivers and streams, endanger the lives of the people living downstream, all before leaving without being held accountable,” Cromer says in the letter.

The proposed agreement, however, says the cabinet’s intent is to ensure Frasure Creek is able to “successfully reclaim its permitted coal mining operations and comply with all other statutory and regulatory requirements.” That refers to reclamation of mining sites required by the company’s mining permits.

But Pat Banks of Richmond and Kentucky Riverkeeper said the agreement represents no more than “a slap on the wrist for the hundreds of times (Frasure Creek allegedly) broke the law.” She said it is the cabinet’s job to ensure safe water “not to get in bed with the companies it is supposed to regulate.”

Ted Withrow, a retired Division of Water employee from Morehead and a member of Kentuckians for the Commonwealth, called the settlement “a license to break the law and dump poisons into our drinking water again and again.”

Jack C. Bender of Bingham, Greenebaum Doll who represents Frasure Creek said he and the company disagree with the interveners’ complaints and will file a response by Feb. 15.

Dick Brown, a spokesman for the cabinet, said the cabinet will file its response to the environmentalists’ objections in Administrative Court by the same date.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.