Lawsuit attempts to hold Nally and Hamilton accountable
KFTC and several allies filed a federal lawsuit Tuesday in an effort to get Nally and Hamilton coal company to obey the Clean Water Act.
The suit alleges that Nally and Hamilton "exhibited a pattern and practice over at least two years, through 2010, of violating the Clean Water Act," as well as the conditions of several water discharge permits. "Defendant's violations are ongoing, and its pattern and practice of submitting false and incomplete reports is reasonably likely to continue in the future."
The suit was filed in the U.S. District Court in the Eastern District of Kentucky. KFTC joined Appalachian Voices, Kentucky Riverkeeper, Waterkeeper Alliance and the Natural Resources Defense Council in the action.
"It is only fitting at this point for us to take our case to a federal court in order to get some justice for citizens living in the coal impacted communities of eastern Kentucky," said Sue Tallichet, a member of KFTC's litigation team.
Two months ago, the groups gave Nally and Hamilton a 60-day Notice of Intent to Sue if the violations were not corrected. That notice cited 12,000 violations of the Clean Water Act.
Although the Kentucky Energy Cabinet filed an administrative complaint against Nally and Hamilton on Friday, the groups do not consider the cabinet's action sufficient to stop the pattern of disregard for the Clean Water Act. The state cited only 4,600 violations.
"By filing an administrative complaint, the cabinet has shown that it has reached its capacity for dealing with serious violations of the federal Clean Water Act in our state," Tallichet said.
Cabinet Secretary Len Peters has stated and written that the cabinet does not have the resources to enforce the Clean Water Act, or to fight citizens group who use the court system to enforce the law.
In a similar case initiated last year against Frasure Creek Mining and the International Coal Group (ICG), the cabinet waited until the 59th day of the 60-day notice period to file an enforcement suit against the two companies in Franklin Circuit Court. That was an obvious move to protect the companies from a federal lawsuit.
However, that case has been mired in legal proceedings since. KFTC and our allies sought to intervene in the case in order to strengthen a weak enforcement plan and increase proposed fines to a level that would discourage future violations. The cabinet spent considerable resources opposing our intervention, which was granted. (See here, here and here)
The administrative complaint filed Friday does not carry the same weight as the Franklin Circuit Court action, but is still seen as an attempt to protect the coal company. KFTC member Ted Withrow pointed out that administrative hearings are a "closed-door process." He also said that an administrative proceeding "does not count as diligently prosecuting" the violations, the standard for pre-empting a federal lawsuit.
Click here to download a copy of the federal lawsuit (1.9 Mb)
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