FRANKFORT — A Franklin Circuit Judge Friday pleaded with coal companies, the state Energy and Environment Cabinet, and environmentalists to resolve their dispute over Clean Water Act violations by mediation rather than force him to rule on a settlement negotiated by the cabinet and coal companies.
Judge Phillip Shepherd said the evidence presented in the three-day hearing underscored “difficult and novel issues that are likely to keep the problem in litigation for a long time.”
In October, Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, Waterkeeper Alliance and three private citizens announced their intent to sue Frasure Creek Mining and ICG, now a subsidiary of Arch Coal, for what they alleged are thousands of violations of the CWA. They found evidence the two companies submitted inaccurate – the environmentalists called them “fraudulent” – reports of pollution discharges into Kentucky streams.
The cabinet conducted its own investigation and in December sought to enter a consent judgment in Franklin Circuit Court with the two coal companies which fined ICG $350,000 and Frasure Creek $310,000. The cabinet’s investigation concluded most of the problems centered on outside labs used by the coal companies to collect and test water samples.
The environmental groups went to court asking to intervene, contending the fines are too small to provide any incentive for the coal companies to comply with the CWA. Shepherd granted their motion but ordered the parties to mediation. But the mediation ended abruptly after only one session when the parties found themselves far apart.
These same groups filed similar notices of intent to sue against Nally and Hamilton Enterprises, which operate surface mines in southeast Kentucky. Late Friday afternoon, CNHI News obtained a copy of a letter from EPA Region 4 to Steven Hamilton requesting “all documents concerning effluent discharges from January 1, 2011.” The letter is dated August 22 and signed by Denisse Diaz, Chief Clean Water Enforcement Branch,
Water Protection Division in Atlanta.”