The Richmond Register

Local News

May 18, 2013

Environmental groups seek court review from cabinet order

FRANKFORT — A coalition of environmental groups has once again asked Franklin Circuit Court to help them in their long-running battle with the Cabinet for Energy and Environment and a coal company which violated provisions of the federal Clean Water Act.

On Thursday, Appalachian Voices, Waterkeeper Alliance, Kentuckians for the Commonwealth, Kentucky Riverkeeper and several individuals asked the court to vacate an agreed order signed in April by Cabinet Secretary Len Peters and Frasure Creek Mining.

That settlement “lets Frasure Creek off the hook for thousands of water quality violations,” said Eric Chance of Appalachian Voices. The company “for years had been submitting false monitoring reports” which the environmentalists and not the cabinet discovered, he said.

Cabinet spokesman Dick Brown said it had “just received the document and are going through it. We will have no comment at this point.”

In June of 2011, the groups threatened to sue Frasure Creek over what they alleged were 2,800 violations of the CWA during the first three months of 2011.

As permitted by the CWA, the cabinet then conducted its own investigation and concluded many of the violations occurred and sought enforcement through its own administrative enforcement and hearing division.

The cabinet’s administrative judge, however, granted the environmental groups intervener status, making them parties to negotiations between the coal company and the cabinet.

But the environmentalists charge in the petition for review filed Thursday that Peters and the cabinet conducted negotiations with Frasure Creek without notifying the environmental groups who were thus denied the chance to participate and then signed the order over their objections.

They also say the agreement will do little or nothing to deter Frasure Creek or other companies from future violations of the CWA.

“We felt the settlement is inadequate and the cabinet entered the agreement though secret negotiations without involving us,” said Pat Banks of Richmond, who heads the Kentucky Riverkeeper. “It’s just another backroom settlement with a coal company that broke the law.”

When the environmentalists learned Peters had tendered a proposed agreement to the cabinet’s hearing officer in early January, they filed objections, including their exclusion from negotiations with the coal company.

But according to their petition filed in Franklin Circuit on Thursday, those objections were never heard, and Peters signed the agreement April 16. But, it included no explanation for entering the order or any indication he reviewed the environmentalists’ objections.

“We as citizens have the right to intervene and see and participate in this process,” said Ted Withrow, a former decorated cabinet employee and now a member of KFTC who lives near Morehead. “Yet the cabinet continues to ignore the law and shield another coal company from any meaningful enforcement.”

The debate between Frasure Creek, the cabinet and environmental groups stretches back to October 2010 when the environmental groups alleged thousands of CWA violations by Frasure Creek and another coal company, ICG.

Peters and the cabinet subsequently conducted an investigation and documented numerous violations by both companies and sought to enter an agreed order in Franklin Circuit Court.

But the environmentalists sought to intervene in those original cases, claiming the cabinet’s agreement was insufficient to deter future violations. Franklin Circuit Judge Phillip Shepherd allowed them to do so over the objections of the cabinet which argued among other things the court had no jurisdiction even though it was the cabinet which chose to file the order in that same court.

Shepherd exhorted all the parties to negotiate an agreement and eventually ICG reached agreement with the environmental groups and cabinet. But Frasure Creek claimed faces financial reversals make it impossible for it to pay proposed civil penalties or agree to terms with the environmental groups.

The court hasn’t yet ruled in that case.

But when environmental groups alleged additional violations by Frasure Creek in June 2011, the cabinet went through its own administrative process avoiding Franklin Circuit Court. That is the case covered by Peters’ April agreed order which environmentalists want to contest in Franklin Circuit.

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.

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