Last week the Kentucky Energy and Environment Cabinet entered a settlement with Nally and Hamilton Enterprises to resolve tens of thousands of violations of the Clean Water Act. The pending agreed order, originally submitted in September, was signed by the Cabinet Secretary Len Peters, now making it official.
Nally and Hamilton is one of the largest producers of Mountain Top removal Coal in Kentucky. They are also being sued by a number of citizens over flooding caused by one of their mines, which lead to a great deal of property damage and killed two people.
In March, Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance filed a Notice of Intent to Sue against Nally and Hamilton for 12,000 violations of the clean water act. These violations were comprised of missing and blatantly false water monitoring data. Nally and Hamilton is required to submit water monitoring data so that the state can assure the company is staying under permitted pollution limits. In August we filed a second Notice of Intent to Sue for 5,000 additional violations. In September the Cabinet and Nally and Hamilton reached a proposed settlement, without our input.
We believe that this settlement is woefully inadequate, for quite a few reasons. Most of these reasons are detailed in comments we submitted to Secretary Len Peters. However, there is no indication that the Secretary considered our comments, and he offered no explanation for signing the order. As far as we can tell he just rubber stamped it. Some of the main reasons we think this settlement is inadequate are:
- — The agreed order was negotiated behind closed doors, and we were given no opportunity to participate, despite the fact that we were parties in the case, that the Office of Administrative Hearings officer encourage our participation, and we identified these violations for the cabinet
— There hasn’t been a thorough investigation into Nally and Hamilton’s violations—the cause of the violations and how much the company saved by not having to comply with the law are unknown—and therefore we can’t know whether this settlement will fix past violations or deter future violations
— The so-called “remedial measures” in the settlement are basically left to future development, so we can’t be sure they will be effective, or even be sure that they will actually be created
We believe that the Cabinet is acting in its best interest, rather than the best interest of the public, by trying to quickly and quietly reach settlements behind closed doors. The settlement does little to ensure clean, safe water for the people of Kentucky. The cabinet had no legal obligation to reach this settlement, the only reason they needed to settle this case was to help protect Nally and Hamilton from our federal lawsuit.
This is by no means the end of the road for the Nally and Hamilton cases. There is still a case pending in federal court, and we are still evaluating our legal options in state court based on this settlement. We will continue to work to make sure Nally and Hamilton has to pay for its past violations and that they won’t be able to continue to illegally pollute the streams of Kentucky.