Ruling expected soon in Clean Water case
KFTC and our allies were back in Franklin Circuit Court Thursday asking that citizens and public interest groups be allowed to intervene in an important Clean Water Act enforcement case.
The Beshear administration took the opposite position, arguing that citizens have no legal interest in the state's clean water enforcement actions. They supported the arguments of the two coal companies guilty of those violations.
Judge Phillip Shepherd said he would issue a ruling promptly.
The goal for citizens is full enforcement of the Clean Water Act. In an op-ed in Sunday's Lexington Herald Leader, Secretary Len Peters acknowledged that the Energy Cabinet is not capable of doing that. He cited lack of adequate funding from the legislature as one of the reasons.
"Prevention, abatement and control of water pollution are in the public interest," stated Mary Vance Cromer of the Appalachian Citizens Law Center in support of the citizens' Motion to Intervene.
She cited specific provisions in the federal Clean Water Act that "allowed and encouraged [citizens] to fully participate," and that specifically require states to not oppose citizen intervention.
Arguing for the Kentucky Energy Cabinet, Mary Stevens said that what holds true for federal law is not necessarily applicable in the state. "While they [citizens] have a clear interest in clean water, that is not a legally protectable interest in the state of Kentucky."
She and the other company attorneys argued that state court has no jurisdiction in a case brought under federal citizen intervention provisions, and that the proper venue is where the violations occurred, not in Franklin County. In their written brief, they stated that having to deal with citizens would be an "unwarranted burden."
Attorneys spent two hours before Shepherd presenting arguments about these issues.
Last October, Appalachian Voices, Kentucky Riverkeeper, Waterkeeper Alliance and KFTC threatened to sue – in federal court – International Coal Group and Frasure Creek Mining for an alleged 20,000 violations of the Clean Water Act. But the Kentucky Energy Cabinet stepped in and sued the companies in state court, preempting our federal court action.
The Cabinet sued after investigating and documenting more than 2,700 of those alleged violations. But instead of asking the court to help prosecute to companies, they asked the court to accept Consent Judgments, or agreements, they had already negotiated with the companies to settle the matter. The companies are not denying the violations.
One particularly irksome provision in the proposed Consent Judgments is that they "cover" five years of violations, even though the Cabinet investigated only two and a half years and found thousands of violations during that period.
"How in the world can the Cabinet say they are representing the public interest if they're giving the companies a free pass on this?" asked Margaret Stewart of Louisville after the hearing.
"They must know there's another two-and-a-half years of illegal DMRs [water monitoring reports]," explained Teri Blanton.
Those Consent Judgments are anemic and proof that state officials are not acting in the public interest, Lauren Waterworth argued for our side. "We do not think the consent judgment is adequate. There's no transparency here. They have bypassed any opportunity for public scrutiny. They are asking us to give them the benefit of the doubt."
She said that additional discovery is needed to understand the full nature of the violations and answer questions about possible fraud by the companies (a claim state officials have ignored).
It was clear that the cabinet and companies were most worried that allowing third-party interveners might result in just such a deeper investigation into the companies' violations and the Cabinet's lack of enforcement.
"The coal industry attorneys are desperate that we don't get to discovery," observed Doug Doerrfeld.
Shepherd understood that if he approved the Consent Judgments that a federal court likely would interpret that to mean that the case had been diligently prosecuted. and dismiss any citizen lawsuit. So he questioned the attorneys about how the citizens interest could be represented.
Shepherd acknowledged the letters the court has received through a public comment process from a lot of people who believe the Consent Judgments need to be strengthened to ensure future companies with the law by the companies. But he observed that "the only two parties I have before the court are those who are in agreement. How is the court going to be able to determine if the Cabinet acted appropriately?"
| Several KFTC members impacted by water quality attended Thursday's hearing in Frankfort. |  |
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