Environmental groups unhappy with state deal with 2 coal firms

dhjalmarson@herald-leader.comDecember 15, 2010 

FRANKFORT — Four environmental groups filed a motion Tuesday to intervene in an agreed settlement that would require two coal companies to pay the state $660,000 to settle claims of lax procedures and violations at water-testing laboratories.

At a hearing in Franklin Circuit Court on Tuesday afternoon, Judge Phillip Shepherd asked the state to post the settlement for public comment for 30 days before he decides whether to approve it.

The four groups want standing in the state's suit against the companies because the state Energy and Environment Cabinet "appears to allege only negligence," said Mary Cromer, a Whitesburg attorney representing the four groups, North Carolina-based Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and New York-based Waterkeeper Alliance.

Cromer said her clients think that the cabinet is at fault for not catching the violations and that the two coal companies, ICG and Frasure Creek Mining, are guilty of "reckless disregard for the law if not fraudulent reporting."

Shepherd gave the four groups until Dec. 22 to make additional filings. He gave ICG, Frasure Creek Mining and the state until Jan. 7 to respond.

During Tuesday's hearing, attorneys for ICG and Frasure Creek urged the judge to accept the settlement. It was negotiated "at arm's length" between the state and the companies, Energy and Environment Cabinet attorney Mary Stephens said. She called the settlement "quite comprehensive."

"It is a flag to other mining permittees in the state that it's time, it's past time, to put their house in order" regarding water pollution, Stephens said.

She also said Frasure Creek and ICG brought additional violations to the cabinet's attention during its investigation.

"We believe they are sincere in their commitment," Stephens said.

During a news conference before the hearing, representatives of the environmental groups said the settlement did not hold the coal companies accountable.

"These coal companies need to be taken to the woodshed and spanked hard enough that it discourages this behavior, not reinforcing bad behavior with penalties that are meaningless to King Coal," said Kentuckians for the Commonwealth member Ted Withrow, is a retired state Division of Water employee.

The four environmental groups notified ICG of Hazard and Knott County and Frasure Creek Mining in October of their intent to sue under the federal Clean Water Act. In a review of discharge monitoring reports submitted to the state by the companies, the groups said there were 20,000 instances of falsified documents or excess pollutants discharged into creeks in Eastern Kentucky.

The notice of intent to sue triggered a review by the state, which found 2,765 violations, and this month the Kentucky Energy and Environment Cabinet announced an agreed settlement that would require ICG and Frasure Creek to pay a total of $660,000 in fines and bring contracted water-testing laboratories in Hazard and Johnson County up to standards.

The four environmental groups estimated penalties for the 2,765 violations could have totaled $103 million.

The groups' motion says the proposed penalties are too small to ensure the violations won't happen again and insufficient to compensate for environmental damage caused by the companies.

The state, in announcing the proposed settlement, said it had found one instance of pollution in violation of mine permits, by Frasure Creek on Hurricane Branch in Perry County. Most of the violations were in record-keeping and paperwork, the state said.

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