Clean Water Act case against ICG and Frasure Creek Mining

Case #: 10-CI-1867 and 10-CI-1868 (Consolidated)

Venue: Franklin Circuit Court

Parties

• Plaintiff: Commonwealth of Kentucky, Energy and Environment Cabinet
• Intervening Plaintiffs: Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper, Waterkeepers Alliance, Pat Banks, Lanny Evans, Thomas Bonny and Winston Merrill Combs
• Defendants: ICG Hazard LLC, ICG Knott County, ICG East Kentucky, Powell Mountain Energy LLC, Frasure Creek Mining LLC
  
  

What's At Stake

Public health and quality of life made possible by the enforcement of the Clean Water Act. The culture of non-enforcement that exists within the Kentucky Energy and Environment Cabinet.

Background

The success of the Clean Water Act is premised on honest and complete reporting by polluters of the discharges they are allowed, under the law, they put into our waterways. In this case, Appalachian Voices discovered that, from 2007-2009, several subsidiaries of the International Coal Group (ICG) and Frasure Creek Mining were submitting tens of thousands of false and inaccurate reports, as well as other reports that showed violations of permit limits.

These reports are submitted quarterly to the Kentucky Energy and Environment Cabinet, which is supposed to check the reports for accuracy and completeness, and to seek compliance when there are violations of permit limits. Instead, Appalachian Voices discovered that these reports were not being reviewed and – literally – were collecting dust on state officials' desks.

Appalachian Voices joined by KFTC, Kentucky Riverkeeper and the Waterkeep Alliance and several Kentucky residents in October 2010 to send ICG and Frasure Creek a 60-day Notice of Intent (NOI) to Sue, as required by the Clean Water Act (this gives the violater time to correct the problem before being sued). On the 59th day, the cabinet filed an enforcement action against ICG and Frasure Creek in Franklin Circuit Court, in an attempt to undercut our standing for taking the case to federal court.

The enforcement agreements that the cabinet had negotiated with ICG and Frasure Creek were weak and provided no incentive to the coal operators to correct their violations. The fines imposed were a fraction of the tens of millins of dollars possible under the Clean Water Act. The groups and individuals that had brought this to the attention of the public and the cabinet through the NOI letter asked the court to allow us to intevene in the case to represent the public interest. The coal companies and cabinet resisted this, with the cabinet calling the intervention an "unwarranted burden." However the court allowed this intervention (a decision that was appealed all the way to the state Supreme Court and allowed to stand).

After an unsuccessful attempt at mediation, the case was heard in Franklin Circuit Court in September 2011. After three days of hearings, Judge Phillip Shepherd again asked all parties to work toward a negotiated settlement. Negotiations with ICG took place over nine months and resulted in an historic agreement that was presented to the court on October 5, 2012. The agreement, approved by Judge Shepherd, includes stipulated penalties for future violations, independent auditing of ICG's water monitoring and fines for past violations (the ones originally cited in the cabinet's enforcement action plus violations that have occurred since then).

Attempts to reach a negotiated settlement with Frasure Creek were unsucessful.

In a separate action, the Intervening Plaintiffs sent Notice of Intent to Sue letters to ICG and Frasure Creek for Clean Water Act violations subsequent to the filing of this action. The cabinet again filed enforcement actions to protect the companies from federal lawsuits, only this time it used an internal administrative enforcement process rather than returning to Franklin Circuit Court. However, the administrative hearing officer granted the Intervening Plaintiffs full intervenor status in the administrative case.

The new ICG violations were included in the settlement described above. For Frasure Creek, cabinet officials negotiated a new Agreed Order, signed by Cabinet Secretary Len Peters in December 2012. The Intervening Plaintiffs were excluded from those negotiations. This resulted Intervening Plaintiffs filing a petition in Franklin Circuit Court in May 2013 asking that this Agreed Order be vacated and denying Intervenors' due process, and because of the overall weakness of the settlement.

More information and copies of petitions, orders, etc. can be gleaned from the timetable to the right.

Also see: "Clean Water in Eastern Kentucky: Stronger Enforcement Through Consensus" by Mary Varson Cromer