KFTC and several of our allies are challenging an agreement the Beshear administration negotiated in secret with Nally & Hamilton coal company to resolve thousands of violations of the Clean Water Act.

“There are so many loopholes in this secretly crafted document, it becomes strikingly offensive to anyone the least bit familiar with Clean Water Act rules” said KFTC member Suzanne Tallichet. “This Agreed Order represents business as usual between cabinet officials and a scofflaw coal company, literally at the expense of citizens’ lives and well-being,"

The case involves incomplete and false water pollution reports Nally & Hamilton filed with the Kentucky Energy and Environment Cabinet over a two-and-a-half-year period. These reports were literally collecting dust in state offices before they were exposed by Appalachian Voices. In March, KFTC, Appalachian Voices, Kentucky Riverkeeper and the Waterkeeper Alliance informed Nally & Hamilton of their intent to sue in order to stop the violations and the related pollution of waterways in eastern Kentucky.

Cabinet officials, who had previously ignored these reports, in May filed an administrative enforcement action against the company, alleging 4,600 violations rather than the 12,000 originally cited. It seems that the cabinet did this in an effort to protect the company by trying to pre-empt a federal lawsuit the groups planned to file. The administrative action had no preemptive effect under the law, however, and the groups filed the federal suit anyway.

We also asked to intervene in the cabinet's administrative proceeding, and in July the hearing officer granted the groups intervenor status, as full parties in the case. However, cabinet officials ignored the hearing officer's strong encouragement to include intervenors in settlement negotiations and negotiated a settlement with Nally & Hamilton without notifying or involving the intervening parties.

"They ignored the hearing officer’s order giving us intervenor status and negotiated a secret agreement that does little to protect our people or prevent future violations,” said Pat Banks of Kentucky Riverkeeper in a press release issued by the groups. “Our people are shocked that the cabinet chooses to protect companies that are polluting our land and water and breaking the laws thousands of times rather than protect the health and well-being of Kentucky’s land and people.“

The petition filed Thursday in Franklin Circuit Court asks that the agreement between Nally & Hamilton Enterprises and the Kentucky Energy and Environment Cabinet be vacated on the grounds that there is “no factual evidence in the record, much less substantial evidence, [that] supports a finding that the Agreed Order is a fair resolution of Nally’s thousands of [Clean Water Act] violations, or that it will be an effective deterrent of future violations.”

Nally & Hamilton Enterprises, based in Bardstown, is one of the largest producers of strip mined coal in Kentucky. Several principal officers and employees of Nally & Hamilton and their spouses contributed $6,000 to Beshear’s re-election campaign on July 21, just two weeks after the citizens groups were allowed to intervene in the case, according to the Kentucky Registry of Election Finance.

"Citizens living in coal-impacted communities deserve much better from a taxpayer supported state agency that is supposed to be diligently protecting people over corporate profits,”said Tallichet.

MEDIA COVERAGE

• Ronnie Ellis: Environmental coalition wants agreement vacated
• Lexington Herald-Leader: Environmentalists contest coal company settlement
• Erica Peterson, WFPL-FM: Environmental Groups Petition to Overturn “Inadequate” Coal Settlement