Ruling expected soon in Frasure Creek Clean Water Act violations

The Independent Online, Ashland, KY
FRANKFORT — A Franklin Circuit judge will rule soon on a motion by environmental groups to vacate an agreement between the Cabinet for Energy and Environment and Frasure Creek Mining to settle Clean Water Act violations by the financially strapped company.
The environmental groups contend their concerns were ignored by the cabinet even though they were granted full intervener status by the court and by the cabinet’s own administrative hearing officer.
In 2010, Appalachian Voices, Waterkeeper Alliance, Kentuckians for the Commonwealth, Kentucky Riverkeeper and several individuals threatened to sue Frasure Creek and ICG Coal over CWA violations they discovered by examining company-submitted pollution reports, violations previously undetected by the cabinet.
When the cabinet tried to settle the violations without involving the environmental groups, they asked Franklin Circuit Judge Phillip Shepherd to allow them to intervene and he granted that request. Eventually, the environmentalists, the cabinet and ICG agreed to a settlement, but Frasure Creek said it was financially unable to pay the penalties proposed by the environmental groups.
Subsequently, the company filed for federal bankruptcy protection. In April, Cabinet Secretary Len Peters approved a separate settlement agreement with Frasure Creek through the cabinet’s administrative hearing procedure but the environmentalists weren’t involved in negotiating the agreement.
That prompted the motion by Appalachian Voices and the others seeking to have the agreement vacated.
On Wednesday cabinet attorney Mary Stephens argued the motion should be denied because the environmentalists didn’t name Frasure Creek as a party and said Franklin Circuit Court lacked jurisdiction.
Mary Cromer, attorney for the environmental groups, said they were barred from naming Frasure Creek by federal bankruptcy statutes.
Further, she said, the agreement between the cabinet and Frasure Creek took no account of environmentalists’ objection that the agreement is insufficient to ensure future enforcement of Clean Water Act provisions or deter violations.
Stephens responded that negotiations between the three parties went on for more than a year before breaking down and the cabinet “needed a separate agreement with Frasure Creek.”
“I guess the question is whether the cabinet and Frasure Creek, by reaching a separate agreement, can defeat the (environmentalists’) right to an administrative hearing on the violations, the seriousness of the violations and all the environmental impact,” Shepherd said.
Stephens said the agreement is “supported by the record and more than a year of negotiations with the (environmentalists), Frasure Creek and the cabinet did not result in any agreement.”
Throughout the protracted legal proceedings the environmentalists have complained the cabinet is reluctant to assess stiff enough penalties on the coal companies to deter future violations and protect water systems in eastern Kentucky.
The agreement negotiated with ICG by the environmental groups calls for the company to pay more than $500,000 to clean up and monitor water systems as well as prescribing penalties for future violations.
The proposed cabinet agreement with Frasure Creek requires it to complete reclamation of mine sites but assess smaller penalties in light of the company’s financial condition.
RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.