Citizens were heard Tuesday afternoon when they asked Franklin Circuit Court to allow them to intervene in a case between the Energy and Environment Cabinet and two coal companies operating in eastern Kentucky.

Judge Phillip Shepherd accepted and agreed to hear arguments on a Motion to Intervene filed on behalf of Appalachian Voices, Kentucky Riverkeeper, the Waterkeeper alliance and KFTC. The groups want to challenge a proposed Consent Judgment between the cabinet and Frasure Creek Mining and ICG. Shepherd gave those parties until January 7 to file briefs opposing citizen intervention. A hearing for oral arguments is likely in mid-January.

The case involves serious, numerous and repeated violations of the Clean Water Act by the two companies, including what appeared to be fraudulent reporting. These violations first came to light in October when the four groups filed 60-day Notices of Intent to Sue against Frasure Creek, ICG Knott and ICG Hazard with the allegations.

The Kentucky Energy and Environment Cabinet investigated the claims, found them to be true and found additional violations.  The cabinet then negotiated with the coal companies and filed in Franklin Circuit Court a proposed consent judgment that imposed fines and called for some remedial actions.

Although technically the cabinet sued the coal companies in this case, those parties were in agreement that they wanted the court to approve immediately the Consent Judgment they had negotiated.

But the four citizens groups oppose that settlement.

In a press conference before the court hearing, Ted Withrow pointed out that the penalties in the agreement “are so low in comparison to the number and severity of violations assessed that the Consent Judgment appears to incentivize future false reporting and non-reporting by these Defendants.”

He also said the cabinet treated the apparently fraudulent reporting as nothing more than "clerical errors.”

Mary Cromer of the Appalachian Citizens Law Center told Judge Shepherd that the agreement impairs her clients interest in “protecting the cleanliness and health of watersheds” because the fines are insufficient to compensate for damage, punish bad behavior and prevent further violations.

Even though the coal companies agreed to pay more than $300,000 in fines each, that amount is less than $250 per violation, and probably less than the cost of compliance.

This case is also significant because it has put the Cabinet under scrutiny for its culture of non-enforcement. These thousands of violations had gone unnoticed by the state agencies responsible for monitoring and enforcing water protection laws.

Shepherd said that it is his inclination to give the public the right to comment on matters that affect their well-being, citing previous cases concerning the Clean Water Act.  A cabinet attorney said they were ready to argue for approval of the Consent Judgment but did not object to a public notice and comment period.  Attorneys for Frasure Creek and ICG argued that they are under deadlines for compliance and would prefer that the Consent Judgment be approved.

The cabinet and companies “were trying to cram the agreement through,” observed Withrow. “It didn’t work.”

Shepherd said he would enter an order for the cabinet to post the proposed Consent Judgment on its website with a public notice and 30-day comment period, with submitted comments made part of the court record. A January hearing on approval of Consent Judgment also is likely, once the intervention motion is decided.

Pat Banks with Kentucky Riverkeeper said it was a fair hearing. “He took us seriously.”

“He was considerate of the citizens’ viewpoint,” added Withrow.