Daily Independent (Ashland, KY)

Local News

July 15, 2013

Environmental groups win round in court

Fight ongoing to force stiffer penalties for coal company

FRANKFORT — Environmental groups won another preliminary round in their ongoing fight to force the Cabinet for Energy and Environment to extract stiffer penalties from a coal company that violated the Clean Water Act.

Franklin Circuit Judge Phillip Shepherd last week ruled the environmental groups properly filed a motion seeking to vacate an agreed order between the Cabinet and Frasure Creek Mining. The ruling allows the environmental groups to proceed with their argument the agreed order should be vacated.

The Cabinet had maintained the environmental groups failed to properly file their motion because they didn’t name the mining company in the motion and thereby created a lack of jurisdiction.

Shepherd wrote in his ruling that the environmentalists’ motion argues that it is the Cabinet’s actions which are “arbitrary and capricious, an abuse of discretion, contrary to law,” so the appeal is governed by a statute which “only requires the Cabinet to be named as a party.”

The environmental groups, Appalachian Voices, Waterkeeper Alliance, Kentuckians for the Commonwealth, Kentucky Riverkeeper and several individuals, are contesting the agreed order between the Cabinet and Frasure Creek which was signed by Secretary Dr. Len Peters without any participation by the environmentalists.

In 2010, the environmentalists threatened to sue Frasure Creek and ICG Coal over CWA violations they discovered by examining pollution monitoring reports submitted by the company to the cCabinet. Although the discharge monitoring reports are submitted to the cabinet for review, the Cabinet failed to detect the violations. Subsequently, the Cabinet conducted its own investigation and confirmed the companies had violated the CWA by exceeding pollution limits and submitting inaccurate reports of the discharges.

But the Cabinet tried to settle the violations without involving the environmental groups, assessing much smaller fines and penalties than those sought by the environmental groups. The environmentalists asked Shepherd to allow them to intervene and he granted that request.

Eventually, the environmentalists, the cabinet and ICG agreed to a settlement which assessed moderately larger fines than the Cabinet proposed but included penalty payments to remediate water pollution in eastern Kentucky.

But Frasure Creek said it was financially unable to pay the penalties proposed by the environmental groups and subsequently filed for bankruptcy protection.

In April, Cabinet Secretary Len Peters independently approved a separate settlement agreement with Frasure Creek through the Cabinet’s administrative hearing procedure, but didn’t allow the environmentalists to participate in negotiating the agreement with the company.

That prompted the motion by Appalachian Voices and the others seeking to have the agreement vacated.

Shepherd’s ruling does not vacate the agreed order but it means the environmentalists can now proceed with their arguments that it should be set aside, said Mary Cromer, an attorney for the environmental groups.

Shepherd will rule on that original motion after the two sides submit arguments and briefs over the next few months, Cromer said.

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 twitter.com/cnhifrankfort.


Text Only
Local News
  • Boyd Democrats take floor at Elks

    Boyd County Democrats met at the Elks Lodge for a matchup between candidates for two of the hottest primary races in Boyd County: sheriff and judge-executive.
    The candidates, sponsored by the Boyd County Democratic Women’s Club, each took to the podium to face the crowd Tuesday night and discuss the candidacy and platforms for the race that is still over a month away.

    April 15, 2014

  • Shay receives 38 years for fatal shooting

    Casey R. Shay, 27, of Morehead, was sentenced Monday to 38 years in prison for the fatal shooting last year of Cassandra M. “Cassie” Owens, 21.

    April 15, 2014

  • 0416homegarden.jpg Space not problem with home garden

    Growing your own dinner is not a concept lost on Kenny Imel.

    April 15, 2014 1 Photo

  • Greenup court jumpstarts road repairs

    As part of the Greenup County Fiscal Court’s annual expenses, the court approved the first reading of an ordinance that allots up to $1.5 million for blacktopping damaged county roads.

    April 15, 2014

  • Nursing home reports drug theft to APD

    Woodland Oaks Health Care Facility, 1820 Oakview Road, on Monday reported the theft of 30 hydrocodone tablets from a secured area within the nursing home.

    April 15, 2014

  • Devices left from previous construction discovered

    All four lanes of U.S. 23 were shut down for nearly two hours Tuesday following the discovery of old explosives on a hillside rock cut.
    The devices apparently were left over from a previous construction project and were discovered by a crew working on the new Ironton-Russell Bridge, Russell Police Chief Tim Wilson said.

    April 15, 2014

  • Boyd walk to raise awareness of autism

    The differences in the nine children in Carla Malone’s classroom are striking.
    A few can talk, but some won’t make a sound and others jabber apparent nonsense sounds.
    There are playful children and those who keep to themselves. Some of the children can read and do other academic tasks. Schoolwork for others means matching pictures and doing exercises to develop fine motor skills, like learning to hold a pencil.

    April 15, 2014

  • Grimes outpaces McConnell in first quarter

    Democratic U.S. Senate candidate Alison Lundergan Grimes has again outpaced her likely Republican general election opponent, incumbent Mitch McConnell, in fundraising during the first quarter — but she remains well behind McConnell in total fundraising and cash on hand.

    April 15, 2014

  • 0416explosives0166 copy.jpg UPDATE: U.S. 23 reopened; explosives eliminated

    More information on the U.S. 23 closure from the the Kentucky Department of Highways.

    April 15, 2014 1 Photo

  • BREAKING: Explosives find shuts down U.S. 23

    All four lanes of U.S. 23 have been shut down to the discovery of undetonated explosives on a hillside, authorities said.

    April 15, 2014

Featured Ads
Seasonal Content
AP Video
Hyperlocal Search
Premier Guide
Find a business

Walking Fingers
Maps, Menus, Store hours, Coupons, and more...
Premier Guide
AP basketball
SEC Zone