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Kentuckians Challenge Cabinet’s Order for Failing to Protect Clean Water from Coal Pollution

Friday, May 17th, 2013 - posted by eric

FOR IMMEDIATE RELEASE

Appalachian Voices * Kentuckians For The Commonwealth * Kentucky Riverkeeper * Waterkeeper Alliance

CONTACTS:
• Eric Chance, Appalachian Voices, 828-262-1500, eric@appvoices.org
• Pat Banks, Kentucky Riverkeeper, 859-200-7442, kyriverkeeper@eku.edu
• Peter Harrison, Waterkeeper Alliance, 828-582-0422, pharrison@waterkeeper.org
• Ted Withrow, Kentuckians For The Commonwealth, 606-784-6885 or 606-782-0998, tfwithrow@windstream.net

Frankfort Kentucky-Continuing their campaign to make sure Kentucky’s water is safe for everyone, several groups have challenged plans by the Beshear administration to let Frasure Creek Mining “off the hook” for repeated violations of the Clean Water Act.

Appalachian Voices, Waterkeeper Alliance, Kentuckians For The Commonwealth, Kentucky Riverkeeper and several individuals (the petitioners) asked the Franklin Circuit Court Thursday to vacate an Agreed Order signed in April by Environment and Energy Cabinet Secretary Len Peters that claims to resolve all recent water quality violations by the company.

They point out that the settlement “is inadequate to address Frasure Creek’s pollution problems and prevent such harms from occurring in the future.” They called the administration’s action “arbitrary and capricious, an abuse of discretion, contrary to law, and not supported by substantial evidence.”

“This settlement lets Frasure Creek off the hook for thousands of water quality violations,” explained Eric Chance, a water quality specialist with Appalachian Voices. “For years Frasure Creek had been submitting false monitoring reports. During that time they never reported any water quality problems. After we exposed these false reports, they began using more reputable labs and started showing hundreds of water quality violations every month.

“Over the past few years Frasure Creek’s water discharges haven’t really improved and I don’t expect there to be any improvements in the water coming off Frasure’s mines from this settlement,” Chance added.

“Clean water is not just a good idea. Clean water is critical to our health and well being,” said Pat Banks with Kentucky Riverkeeper. “We have learned that we cannot be complacent. The Clean Water Act enforces the notion that if companies are out of compliance and enforcement by the state fails, then citizens can and must step in to protect our waters. That’s what we are doing here.”

The petitioners also point out that they were granted full party status in the administrative enforcement case but were shut out of negotiations between the Cabinet and Frasure Creek that resulted in the final Agreed Order.

“The Cabinet has once again systematically excluded Kentucky citizens who are fighting to protect the water they use. After bringing Frasure Creek’s false reporting and pollution to the Cabinet’s attention, the Cabinet has tried, at every step, to sweep this matter under the rug and quickly settle with the company and exclude citizens from the process,” said Mary Cromer, with the Appalachian Citizens Law Center and one of the attorneys representing the petitioners. “We bring suit against the Cabinet for failing to do what’s necessary to ensure that Frasure Creek’s pollution is cleaned up and for excluding the citizens from their rightful roles as co-enforcers of the Clean Water Act.”

“We as citizens have the right to intervene and see and participate in this process,” explained Ted Withrow with Kentuckians For The Commonwealth. “Yet the Cabinet continues to ignore the law and shield another coal company from any meaningful enforcement. This Agreed Order was done behind closed doors shutting citizens out, even though we had full rights to be part of the process.”

BACKGROUND

In June 2011, the petitioners filed a 60-day Notice of Intent to Sue, documenting more than 2,800 violations of the Clean Water Act by Frasure Creek in the first three months of 2011. After conducting its own investigation, the Cabinet filed an internal administrative enforcement action alleging many of these same violations.

In November 2011, the petitioners were granted full intervention status.

However, the Cabinet conducted negotiations with Frasure Creek without notice to and participation by the intervenors, resulting in the Agreed Order signed by Peters. Kentucky law prohibits the entry of an Agreed Order without the consent of each and every full party to the Administrative Proceeding.

The violations in this case are similar to those in a 2010 lawsuit pending in Franklin Circuit Court, in that older case false reporting made it impossible to identify pollution problems like the ones at issue in this case. In the original lawsuit, the Cabinet filed an enforcement action against Frasure Creek in Franklin Circuit Court after the same petitioners made public thousands of Clean Water Act violations. In that case, the court granted the petitioners full intervention status. So in the 2011 case, the Cabinet took a different enforcement route to avoid public intervention. However, the administrative judge also granted full intervention status.

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Bringing Polluters to Justice — One Court Case at a Time

Friday, October 19th, 2012 - posted by molly

By Eric Chance and Erin Savage

This chart shows some of the changes in reporting by International Coal Group before and after legal action by Appalachian Voices and our allies in October of 2010.

On Oct 1., Appalachian Voices and a coalition of citizens’ groups reached a historic settlement in a Kentucky case involving some of the most far-reaching and astonishing violations of the Clean Water Act in its 40-year history.

The agreement between the citizens’ groups, International Coal Group, Inc., and the Kentucky Energy and Environment Cabinet settled a lawsuit filed by the coalition over years of false reporting and water pollution violations, caused by a failure of the state of Kentucky to enforce the Clean Water Act.

The settlement, approved by the Franklin Circuit Court on Oct. 10, includes a stipulation for ongoing third-party auditing of ICG’s water pollution monitoring and reporting to ensure the company submits accurate data to the state in the future, and also establishes stipulated fines for potential future violations.

The settlement also includes $575,000 in penalties. Although that represents a fraction of the maximum penalties allowed by the Clean Water Act, it is the highest fine ever levied by the state of Kentucky against coal companies and the first time a state court has allowed affected citizens’ groups to intervene in a Clean Water Act enforcement case. The fees are to be allocated to directly fund water quality improvements and water monitoring programs in the eastern part of the state.

In 2010, Appalachian Voices uncovered thousands of falsified pollution monitoring reports submitted by two of Kentucky’s largest coal companies, ICG and Frasure Creek Mining. In all, the analysis uncovered more than 20,000 violations of the Clean Water Act at dozens of coal mines in eastern Kentucky, from obvious duplications of data in one report to the next to contradictory reports for the same discharge points.

“The false-reporting epidemic we uncovered in Kentucky can be considered the most far-reaching and egregious noncompliance with the Clean Water Act in the law’s entire 40-year history. It’s astonishing that the cabinet could have been so oblivious,” says Waterkeeper Alliance attorney Peter Harrison.

We are proud to work with a great coalition of citizens’ groups including Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance, represented by Mary Cromer of Appalachian Citizens’ Law Center, Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

In October 2010, the environmental coalition and several individual citizens filed notices of their intent to sue ICG and Frasure Creek. In response to the coalition’s notice, the Kentucky Energy and Environment Cabinet reacted by attempting to shelter the coal companies by reaching a low settlement that contained no meaningful measures to ensure the companies would submit accurate reports in the future.

Following an objection by the citizens’ groups, the judge in the case withheld approval of the settlements, and instead allowed the coalition to intervene. The intervention was later upheld by the Supreme Court of Kentucky.

A settlement with Frasure Creek Mining has not been reached, therefore that case will move forward in state and federal court.

Appalachian Voices is also involved in a similar lawsuit against another Kentucky coal company, Nally & Hamilton, as well as two separate lawsuits against Virginia coal companies Penn Virginia and A&G Coal Corporation, all for pollution discharge violations under the Clean Water Act.

Visit appvoices.org/waterwatch/ for updates on all our legal actions to protect the waterways of Appalachia.

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Posted in 2012 - Issue 5 (Oct/Nov), All Posts, Inside Appalachian Voices, The Appalachian Voice | No Comments »

Court Update on Frasure Creek and ICG Clean Water Act Cases

Monday, July 16th, 2012 - posted by Erin

A status conference was held today regarding the Clean Water Act enforcement lawsuits against Kentucky coal mining companies, Frasure Creek and International Coal Group (ICG). The conference was ordered by Judge Phillip Shepherd, of the Franklin Circuit Court in Kentucky, to update the court on progress made toward settlement in both cases.

Appalachian Voices, Kentuckians for the Commonwealth, Waterkeeper Alliance, Kentucky Riverkeeper, and four individuals originally gave notice of intent to sue both companies in 2010 and 2011 for more than 24,000 violations of the Clean Water Act. In response, the Kentucky Energy and Environment Cabinet filed its own enforcement against the companies and negotiated a settlement to resolve the violations in December of 2010. Appalachian Voices and its partners intervened in the state enforcement to challenge the settlement, which, among other deficiencies, inadequately fined the companies less than 1% of allowable fines under the law. In April of this year, the Kentucky Supreme Court set legal precedent by affirming the rights of Appalachian Voices and our partners to intervene in the state’s enforcement.

The last hearing in these cases in the Franklin Circuit Court, held in September 2011, allowed parties to present evidence on whether the state’s proposed settlement was “fair, adequate, reasonable, and in the public interest.” After that hearing, Judge Shepherd ordered the parties back to mediation. Settlement talks with both companies have been ongoing since January of this year.

In preparation for today’s conference, Judge Shepherd ordered Commissioner of the Department of Environmental Protection, Bruce Scott, to submit an affidavit detailing the status of the department’s budget and staffing. Further summary of responses by the Cabinet and Bruce Scott can be found here and here.

After hearing from the parties today, Judge Shepherd indicated that he is prepared to make a ruling on the original state settlements with the companies, but will give the parties 60 days to complete negotiation of a new settlement.

Appalachian Voices and its partners continue to work diligently to reach settlements that will be in the best interest of the people and waterways of Eastern Kentucky.

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Kicking Coal Ash in Carolina

Wednesday, April 18th, 2012 - posted by Madison

Photo credit: Western North Carolina Alliance

Over the past months, Appalachian Voices and our Red, White and Water campaign have continued the fight against toxic coal ash in North Carolina.

In Charlotte, Appalachian Voices teamed up with the local Greenpeace chapter to host a coal ash tour, led by award-winning reporter Rhiannon Fionn, who has covered issues related to Duke Energy’s Riverbend coal plant. Over 50 people attended the event.

More than 200 residents from Asheville and surrounding areas came out to support that message at our “Clean Water Not Coal Ash” rally on March 22 at Lake Julian Park in Arden, N.C. Held in conjunction with the nineteenth annual World Water Day, the event was co-sponsored by Appalachian Voices, the Western North Carolina Alliance and other organizations to call attention to the threat posed by coal ash to drinking water and the nation’s rivers.

Attendees listened to educational speakers including French Broad Riverkeeper Hartwell Carson, Richard Fireman of N.C. Interfaith Power and Light, Terry Clark of Physicians for Social Responsibility and affected community members like Donna Keiser discuss the negative effects of the coal cycle in their communities and what it is like to live near coal ash ponds.

In January, North Carolina’s Department of Environment and Natural Resources confirmed that coal ash ponds in North Carolina are leaching toxic heavy metals into groundwater. Despite the mounting evidence of the dangers, coal ash is treated as no more toxic than regular household garbage and the U.S. Environmental Protection Agency has delayed enacting any guidance on the substance.

To combat the EPA’s delays, Earthjustice, on behalf of Appalachian Voices and other groups, is proceeding with a lawsuit against the agency to force the release of long-awaited public health safeguards against toxic coal ash. According to the Resource Conservation and Recovery Act, which is meant to protect human health and the environment from the potential hazards of waste disposal, the EPA is required to review and revise RCRA regulations at least every three years.

To learn more and to sign a petition asking for protection from the dangers of coal ash in North Carolina, visit: appvoices.org/nc-cant-wait.

Citizen Water Monitoring Season Begins

The Appalachian Water Watch citizen monitoring program is gearing up for more stream monitoring, citizen trainings and an expanding program. Our first training of the year will be hosted by Kentuckians for the Commonwealth on May 12 as part of a larger KFTC meeting on ways to protect Kentucky’s water.

We are working with other organizations in The Alliance for Appalachia on a joint clean water protection effort by increasing participation, expanding to new locations, improving the public database and increasing equipment availability.

Kara Dodson, a familiar face for many of our volunteers, will return this summer to run trainings and provide on-the-ground support in Kentucky and Virginia. Pallavi Podaparti, a long-time KFTC member, will also be joining the Appalachian Water Watch team for the season to help with our growing demand for trainings and volunteer support.

If you know a group that would be interested in taking part in the citizen water monitoring program, please contact aww-admin@appalachianwaterwatch.org.

A Kentucky Water Check-Up

Photo credit: KFTC

Appalachian Water Watch met with members of Kentuckians for the Commonwealth throughout Harlan, Letcher, and Floyd counties in March, giving our team an opportunity to see the good and the bad in Kentucky streams.

In Harlan County, the communi ties of Benham and Lynch are working hard to protect their streams and city water from harm caused by proposed surface mines. By monitoring water quality before the mines begin work, the existing high water quality is documented.

The proposed mines are owned by Nally & Hamilton and A&G Coal Corp. Both companies have dubious environmental and safety records, and Nally & Hamilton is the defendant in one of Appalachian Voices’ ongoing Clean Water Act cases.

In Floyd County, we were alerted to acid mine drainage outside Prestonsburg. Samples taken from the site indicate an iron level of 183 milligrams per liter – more than 45 times the amount Kentucky allows active mines to discharge. KFTC staff met with the Kentucky Department of Natural Resources and will continue to monitor the site.

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Posted in 2012 - Issue 2 (Apr/May), Inside Appalachian Voices, The Appalachian Voice | No Comments »

Nally & Hamilton Case Continues in State Court

Friday, December 9th, 2011 - posted by eric

Yesterday Appalachian Voices along with our partners Kentucky Riverkeeper, Kentuckians For The Commonwealth, and Waterkeeper Alliance challenged the recent settlement between Nally & Hamilton and the Kentucky Energy and Environment Cabinet in state court.

Click here to see the press release with more information on this newest development.

Click here to see the how the case has developed.

Click here to view the state court petition.

Several Kentucky news outlets covered this development. Click the links below to see the news articles.
Ronnie Ellis for the Daily Independent
Erica Peterson for WFPL Public Radio
Bill Estep and Beth Musgrave for the Lexington Herald-Leader

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Groups Challenge Public’s Exclusion From Secret Negotiations

Friday, December 9th, 2011 - posted by eric

FOR IMMEDIATE RELEASE: Friday, December 9, 2011

An agreement negotiated in secret between the Beshear administration and a major polluter in eastern Kentucky does little to protect the public or prevent future violations, claimed several groups representing Kentucky citizens who use water polluted by the company’s coal mining operations.

The citizens’ groups filed a petition in Franklin Circuit Court on Thursday asking that the agreement between Nally & Hamilton Enterprises and the Kentucky Energy and Environment Cabinet be vacated on the grounds that there is “no factual evidence in the record, much less substantial evidence, [that] supports a finding that the Agreed Order is a fair resolution of Nally’s thousands of [Clean Water Act] violations, or that it will be an effective deterrent of future violations.”

The agreement was approved by cabinet Secretary Len Peters in November, despite the objections of the groups and despite their exclusion from the negotiating process.

“It is clear that the Kentucky Energy and Environment Cabinet is acting in its own best interest and the best interest of the coal industry rather than trying to protect the people and environment of Kentucky,” said Eric Chance of Appalachian Voices. “This settlement creates the appearance that the cabinet is doing its job while letting Nally & Hamilton off the hook for a huge but unknown number of serious violations.”

Nally & Hamilton Enterprises, based in Bardstown, is one of the largest producers of coal in Kentucky. They primarily use the controversial practice of mountaintop removal, where mountains are destroyed to reach thin coal seams. The remaining rubble is then dumped in the valleys and streams below.

Several principal officers and employees of Nally & Hamilton and their spouses contributed $6,000 to Beshear’s re-election campaign on July 21, just two weeks after the citizens groups were allowed to intervene in the case, according to the Kentucky Registry of Election Finance.

The case began in March when Appalachian Voices, Kentucky Riverkeeper, Kentuckians For The Commonwealth, and Waterkeeper Alliance, represented by Natural Resources Defense Council, gave notice to Nally & Hamilton that they planned to sue the company for 12,000 violations of the Clean Water Act, which occurred over a two-and-a-half-year period. The violations related to discharges from many of the company’s coal mining operations in eastern Kentucky and involved false and incomplete pollution discharge reports submitted to the cabinet.

Cabinet officials, who had previously ignored these reports, finally reviewed Nally & Hamilton’s discharge reports after receiving the notice letter and in May filed an administrative enforcement action against the company. It seems that the cabinet did this in an effort to protect the company by trying to pre-empt a federal lawsuit the groups planned to file. The administrative action had no preemptive effect under the law, however, and the groups filed the federal suit anyway.

The groups also asked to intervene in the administrative proceeding, and in July the hearing officer granted the groups intervenor status, making them full parties in the case. However, cabinet officials ignored the hearing officer’s strong encouragement to include intervenors in settlement negotiations and negotiated a settlement with Nally & Hamilton without notifying or involving the intervening parties.

“There are so many loopholes in this secretly crafted document, it becomes strikingly offensive to anyone the least bit familiar with Clean Water Act rules. This Agreed Order represents business as usual between cabinet officials and a scofflaw coal company, literally at the expense of citizens’ lives and well-being,” said KFTC member Suzanne Tallichet. “We are contesting this agreement because citizens living in coal-impacted communities deserve much better from a taxpayer supported state agency that is supposed to be diligently protecting people over corporate profits.”

As stated in an October letter to Peters, and repeated in Thursday’s court filing, the agreement falls short because (among other things):

• The cabinet seems not to have investigated the possibility that Nally & Hamilton’s violations were the result of intentional fraud;
• There is no evidence that the cabinet calculated what civil penalty amount is necessary to deter future violations (the fines were less than 1% of what they could have been);
• The agreement does not list or even describe what violations are being resolved; so it isn’t clear the cabinet even knows what violations this settlement would resolve;
• The agreement leaves most remedial measures completely undefined, requiring only that Nally & Hamilton submit proposed remedial measures after the agreement is signed; this makes it impossible to determine whether those remedial measures will fix Nally & Hamilton’s violations.

“The Kentucky Environment Cabinet needs to get out of the coal business and do their job protecting the public. This is just common sense,” said Pat Banks of Kentucky Riverkeeper. “Instead they ignored the hearing officer’s order giving us intervenor status and negotiated a secret agreement that does little to protect our people or prevent future violations. Our people are shocked that the cabinet chooses to protect companies that are polluting our land and water and breaking the laws thousands of times rather than protect the health and well-being of Kentucky’s land and people.“

“The people of Kentucky deserve to know what is being dumped into their waters. Nally & Hamilton has been submitting false data and releasing unknown amounts of pollutants for at least five years and the cabinet thinks this warrants a minor slap on the wrist,” added Chance.

The petition asks the Court to order the cabinet to produce factual evidence supporting the agreement and an explanation of how it will adequately remedy past violations and deter future violations. Failing that, the case should be returned to the Hearing Officer for additional fact-finding and adequate remedies to protect the public interest.

Last week, without notice or reason, Peters fired Natural Resources Commissioner Carl Campbell just as Campbell was preparing to travel to a meeting with Nally & Hamilton. “How can we expect to see effective enforcement of environmental laws against coal companies if top cabinet officials have to choose between protecting the environment and protecting their jobs?” asked Chance.

Click here to view a copy of the petition.

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CONTACTS:
Eric Chance, Appalachian Voices – 828-262-1500, eric@appvoices.org
Pat Banks, Kentucky Riverkeeper – 859-527-3334, kyriverkeeper@eku.edu
Suzanne Tallichet, Kentuckians For The Commonwealth – 606-776-7970, suetallichet@windstream.net
Peter Harrison, Waterkeeper Alliance – 212-747-0622 ext. 32, pharrison@waterkeeper.org

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Kentucky Energy and Environment Cabinet cuts deal with Nally and Hamilton for Water Pollution Violations

Wednesday, November 23rd, 2011 - posted by eric

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. (more…)

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Robert F. Kennedy, Jr.: The Real Deal

Monday, October 31st, 2011 - posted by Appalachian Voices

Guest blog by Jim Deming

Something good happened in Cleveland, Ohio this past Friday. In a city that has symbolized urban pollution since the 60’s and has taken some blows in the current economic recession, Bobby Kennedy came to town to celebrate.

He was here at a press conference on the banks of the Cuyahoga River to help launch journalism website EcoWatch as the national voice of the grassroots environmental movement. At the place where the rivers once burned from oil and debris, Bobby Kennedy, the founder of Waterkeeper Alliance, told us how individual private citizens banded together to form a movement that eventually resulted in the Clean Water Act and 28 more environmental legislative victories, even under a Republican president with bi-partisan support.

In his speech at the press conference, he told us how ordinary people – a mixture of plumbers, veterans, carpenters, and others – used a once-obscure law to collect bounties for nailing polluters on the Hudson River, now one of the cleanest waterways in the country. He told us that we could do the same in our towns and cities and mountains, that we could enforce the law.

Robert F. Kennedy, Jr. announces the launch of the EcoWatch and Waterkeeper Alliance news service website—www.ecowatch.org—at a press event in Cleveland, Ohio. The website works to unite the voice of the grassroots environmental movement and mobilize millions of Americans to engage in democracy to protect human health and the environment. Photo by Marianne Mangan

And that reminded me of what the Waterkeepers in Kentucky and all through the southern Appalachians are doing now with the support of Appalachian Voices and other partners: seeking to enforce the law. Bobby Kennedy was eloquent, passionate and committed, and we are fortunate to have him come speak at the annual Appalachian Voices meeting planned for Charlottesville, Virginia in May. You don’t want to miss one of the best voices in the country for fighting the corporate pillaging of our mountains and our communities.

But his speech is not what I will remember most about the day. You see, I arrived, and like the old geezer I am, I knew that the speeches would last long and I better find the facilities beforehand. As I exited the relief station, Bobby stood there with only two other people, so I stopped to talk. He shook my hand with his left hand, and I commented that I knew he had just had rotator cuff surgery on his right arm, and I told him of my experience with the same ailment. I told him some of us were working in the faith community for environmental justice, and we welcomed his support. He said he would do almost anything for Appalachian Voices because we do such a good job standing up for what is right, and that he was happy the Pope has even started talking about economic injustice and corporate greed. I thought my few minutes were up, but he wanted to talk more about rotator cuffs and recovery, so we stood there like two aging jocks discussing our wounds.

Bobby Kennedy at Appalachian Voices Boone office

Bobby Kennedy speaks at an Appalachian Voices open house in 2008.

And I saw him differently after that. Here was a guy with presidents and senators in his family history talking to a guy who has east Texas sharecroppers in his family history. No pretense. No airs.

Maybe the Occupy Wall Street folks should include guys like Bobby Kennedy, Jr. in their ranks. For the change we need is not just about shifting money around from the haves to the have nots, it’s about justice and creating sustainable communities for all people, even those not yet born. So I really like Bobby, and I don’t want you to miss hearing him. He’s one of us.

Jim Deming, Minister for Environmental Justice
Justice and Witness Ministries, United Church of Christ
Honored member of the Board of Directors of Appalachian Voices

Check out a video from EcoWatch’s press event here.

On Thursday, November 3, 2011 at 7 pm Wake Forest University’s Center for Energy, Environment and Sustainability, in partnership with the Yadkin Riverkeeper, will welcome Robert F. Kennedy, Jr. for a lecture titled Green Gold Rush: A Vision for Energy Independence, Jobs, and National Wealth. This event is free and open to the public and will be held in Wait Chapel. Visit the Center’s web page for more information.

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Higher Fines for Big Coal in Kentucky Clean Water Act Case

Wednesday, October 19th, 2011 - posted by Jamie G. -- AV Communications Coordinator

By Erin Savage

The Kentucky Energy and Environment Cabinet recently reached a settlement of $507,000, with Nally & Hamilton Enterprises, Inc., a mountaintop removal coal mining company in eastern Kentucky.
The fine tops previous record-setting fines issued in Appalachian Voices’ on-going case against Frasure Creek and ICG coal companies, $310,000 and $350,000, respectively. Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, Waterkeeper Alliance and the Natural Resources Defense Council are suing Nally & Hamilton for 12,000 violations of the Clean Water Act.

On Sept. 14, a conference was held for the Office of Administrative Hearing case between the cabinet and Nally & Hamilton to determine whether Appalachian Voices and its partners may continue with legal proceedings as intervenors in the case. The decision halted legal proceedings, including Appalachian Voices’ ability to request additional records from Nally & Hamilton and the cabinet.

The cabinet failed to respond to any previous discovery requests, before the recent conference. Without disclosure of relevant information, it cannot be determined whether the settlement is based on a thorough investigation or if it will remedy past and deter future violations.

Though the fines represent a major step toward holding coal companies accountable for their pollution, they are still insufficient. Under Kentucky law, Nally & Hamilton could be fined $300 million.

The settlement provides a low monetary penalty, ignores the potential of fraud, provides little deterrent for future violations and absolves Nally & Hamilton of liability for additional violations already committed.

The cabinet also failed to identify most of the violations uncovered by Appalachian Voices and did not include Appalachian Voices and its partners in the settlement negotiations. For these reasons, Appalachian Voices and its partners continue to pursue Clean Water Act justice as intervenors in this case.

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Posted in 2011 — Issue 5 (Oct/Nov), Inside Appalachian Voices, The Appalachian Voice | No Comments »

Higher Fines For Big Coal, More Secrecy From The Kentucky Energy And Environment Cabinet

Wednesday, September 21st, 2011 - posted by Erin

On September 14th, a conference was held with Hearing Officer Blanton in the Office of Administrative Hearing case brought by the Kentucky Energy and Environment Cabinet against Nally & Hamilton. The conference determined whether Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, and Waterkeeper Alliance, represented by Natural Resources Defense Council attorneys, may continue with legal proceedings as intervenors in the case. Unfortunately for Appalachian Voices and the citizens of Kentucky, the results of the hearing will allow the Cabinet to continue making deals with Nally & Hamilton behind closed doors.

This case is the Cabinet’s response to the Notice of Intent to sue Nally & Hamilton for 12,000 violations of the Clean Water Act, filed in March 2011 by Appalachian Voices and its partners. To address the violations identified by Appalachian Voices, the Cabinet settled with Nally & Hamilton for $507,000 in fines, topping the previous record-setting fines issued in Appalachian Voices’ other on-going cases against big coal in which Frasure Creek and ICG coal companies were fined $310,000 and $350,000, respectively.

Though these fines represent a great step toward holding coal companies accountable for the pollution they create, the fines are still insufficient. Under Kentucky law, Nally & Hamilton could be fined as much as $300 million for the 12,000 violations. The recognition that the Cabinet consistently does not adequately enforce the law is one reason Appalachian Voices and its partners stepped in as intervenors in the Cabinet’s case. Once the Cabinet and Nally & Hamilton proposed a token settlement in the case they then filed a motion for a continuance. In the conference, the Hearing Officer granted the motion for continuance, based on his determination that he did not have authority to require more discovery in our case.

Those of you without a legal degree are probably wondering what all of this means. I’ll do my best to explain – in short, the Cabinet continues to shield the coal companies, without adequate prosecution. The continuance effectively halts legal proceedings – in this case, it halts discovery, or our ability to request further documentation and other evidence from Nally & Hamilton and the Cabinet, which would likely strengthen and clarify our case. We will still be allowed to submit comments on the Agreed Order between the Cabinet and Nally & Hamilton before the order is sent to the Cabinet Secretary for review.

Besides filing the motion for continuance, the Cabinet has attempted to undermine our involvement in other ways as well. The Cabinet failed to respond to any of our discovery requests, despite the responses being due in August. Because of this, we have been unable to determine the facts the Cabinet considered when entering into the settlement with Nally & Hamilton. We do not know how fines were determined, what violations were identified, or how thorough an investigation was conducted.

The Clean Water Act violations that were identified indicate that pollution is being under reported and inaccurately reported. This improper reporting harms Kentucky’s waterways and the health of Kentucky’s citizens. The Cabinet failed to identify most of these violations until they were uncovered by Appalachian Voices. Despite the Hearing Officer’s request to the Cabinet and Nally that they include Appalachian Voices and its partners in the settlement negotiations, the Cabinet completed a closed-door settlement with Nally & Hamilton and is attempting to prevent further action by us. The current settlement provides a relatively low monetary penalty, does not provide for true stipulated penalties for future violations, ignores the potential of intentional fraud, and claims to resolve Nally’s liability for all previous violations of “the same type” despite there being no evidence the Cabinet bothered to identify different types of violations.

It is obvious the Cabinet is taking the side of big coal in this case. The settlement clearly does not provide for effective, ongoing protection of the people of Kentucky from corporate coal abuses. Kentucky citizens deserve better than this from their state officials.

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Posted in Front Porch Blog | 6 Comments »

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