The Kentucky Energy and Environment Cabinet has appealed a judge's decision to allow four environmental advocacy groups to intervene in a settlement of water pollution violations by the state's two largest producers of surface-mined coal.
"The order by Judge (Phillip) Shepherd, if allowed to stand, will have a chilling effect across all areas of the executive branch of state government," Energy and Environment Secretary Len Peters said in a statement. "The ability to negotiate settlements with respect to violations of state environmental standards will be severely limited because there would be no certainty by the parties that the issues would be final and completed."
Shepherd ruled Feb. 11 in Franklin Circuit Court that the four environmental groups, which triggered the state's investigation of Frasure Creek Mining and ICG of Hazard and Knott County by filing a notice of intent to sue under the federal Clean Water Act, have a right to be heard.
"The cabinet, by its own admission, has ignored these now-admitted violations for years," Shepherd wrote.
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The state's appeal calls Shepherd's order "unprecedented" and "novel" and says letting his ruling stand "will cause regulatory enforcement to slow to a trickle."
The cabinet argues that the state court has no jurisdiction over the environmental groups' federal Clean Water Act claims. The cabinet says Shepherd's order "encroaches" on the power of the executive branch of Kentucky's government, which has "exclusive authority power and duty ... to enforce Kentucky's environmental laws on behalf of the public."
In December, after a two-month investigation, the cabinet announced it had found about 2,700 instances of bad record keeping and faulty reporting of pollution discharges into Kentucky rivers and streams. The cabinet said it had found only one instance of overpolluting and blamed many of the violations on paperwork done by the two laboratories contracted to test the water.
ICG and Frasure Creek agreed to pay a total of $660,000 to settle the violations.
Kentuckians for the Commonwealth, Kentucky Riverkeeper, New York-based Waterkeeper Alliance and North Carolina-based Appalachian Voices, along with four individuals, intervened in the settlement, saying the state did not adequately protect the interests of the public.