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 email@example.com. Follow CNHI News Service stories on Twitter at twitter.com/cnhifrankfort.