Glasgow Daily Times, Glasgow, KY

Local News

August 30, 2011

ELLIS UPDATE: Cabinet Sec. won’t have to take stand

FRANKFORT — The state’s Energy and Environment Cabinet Secretary won’t have to testify in a dispute between the cabinet and environmental groups.

Franklin Circuit Judge Phillip Shepherd Monday granted the cabinet’s motion to quash a subpoena for Len Peters by the environmental groups who are seeking to intervene in a settlement between the state and two coal companies which discharged pollutants in excess of the permitted amounts into streams in eastern Kentucky.

Last October, Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance announced they intended to sue Frasure Creek Mining and ICG for what they claimed were violations of the federal Clean Water Act. Under the federal law, the state had 60 days to conduct its own investigation and assess fines and penalties, and in December the Cabinet asked Shepherd to approve an agreement between it and the two coal companies.

But the environmental groups contended the settlement was inadequate to protect the public interest in clean waterways and were granted the right to intervene. That lawsuit will be heard by Shepherd on Wednesday. The environmental groups, according to their attorney Mary Cromer, want to question Peters about his public statements that the Cabinet does not have the resources to enforce the provisions of the CWA and thus, the environmentalists say, can’t enforce the settlement it reached with the coal companies.

But Cabinet attorney Mary Stephens, said Peters had not been listed as a potential witness by the interveners during discovery and pre-trial preparations. Nor, she said, was Peters directly involved in the Cabinet’s investigation, assessment of penalties or negotiations with the coal companies over the consent agreement. Peters, Stephens said, could not provide any additional information to that which will be provided by Commissioner of Environmental Protection Bruce Scott who is already on the witness list.

Shepherd agreed, saying Peters’ “testimony would be largely if not completely duplicative of testimony by Mr. Scott.”

Shepherd also granted the Cabinet’s motion to quash a subpoena for David Messer, a Division of Water inspector based in Hazard. Cromer wanted Messer to appear because he made an on-site audit of one of the Frasure Creek mines as part of the Cabinet’s investigation. Shepherd ruled that Messer’s report can be admitted but he will not require Messer to appear.

Stephens and attorneys for Frasure Creek and ICG complained that the environmental groups has subpoenaed employees without notice to the cabinet’s or the companies’ attorneys but after Cromer said those subpoenas had been withdrawn, Shepherd said the issue was moot.

The environmentalists contend they found thousands of CWA violations by the two coal companies after reviewing discharge monitoring reports submitted by the companies to the Cabinet, violations they claim could produce millions in fines. The Cabinet’s proposed settlement indicates it found far fewer violations, many of which it concluded were transcription errors, and assessed total fines of just over $600,000 to the two companies. The environmentalists contend that is an inadequate deterrent to future violations.

Ronnie Ellis writes for CNHI News Service and is based in Frankfort. He may be contacted by email at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.

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