A wise slowdown in coal case

Public input needed on settlement

December 23, 2010 

Can a few pen strokes erase a massive failure to follow the law in Kentucky? Maybe not.

A proposed $660,000 settlement of Clean Water Act violations between the state's environmental agency and two of its largest coal companies will at least undergo a 30-day public comment period before moving forward.

The coal companies and state agency were hoping Franklin Circuit Judge Phillip Shepherd would approve the settlement last week. Instead, he ordered the comment period, consistent with a federal provision governing consent judgments in water pollution cases.

The public can find the settlement documents and submit comments at www.eec.ky.gov.

Also, Shepherd agreed to consider allowing four environmental groups and several individuals to become parties to the state's lawsuit against coal companies ICG Inc. and Frasure Creek Mining. The groups assert the fines should be larger and also are questioning the state's conclusion that the violations did not stem from fraud.

The environmental groups uncovered a massive failure by the industry to file accurate water discharge monitoring reports. They filed an intent to sue which triggered the investigation by the state's Energy and Environment Cabinet. Also revealed was the cabinet's failure to oversee a credible water monitoring program by the coal industry.

In some cases, state regulators allowed the companies to go for as long as three years without filing required quarterly water-monitoring reports. In other instances, the companies repeatedly filed the same highly detailed data, without even changing the dates. So complete was the lack of state oversight it's impossible to say whether the mines were violating their water pollution permits or not.

Altogether, 2,765 violations by 103 mines are cited in the proposed settlement, which sets out numerous remedial measures the coal companies must take to prevent similar violations in the future.

What's left out of the settlement is a big question that deserves an answer: What remedial measures will be required of the environmental enforcement agency, and the legislature and administration that have woefully underfunded it?

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