Clean Water Act case against ICG and Frasure Creek Mining
Case #: 10-CI-1867 and 10-CI-1868 (Consolidated)
Venue: Franklin Circuit Court
- Plaintiff: Commonwealth of Kentucky, Energy and Environment Cabinet
- Intervening Plaintiffs: Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper, Waterkeepers Alliance, Pat Banks, Lanny Evans, Thomas Bonny and Winston Merrill Combs
- Defendants: ICG Hazard LLC, ICG Knott County, ICG East Kentucky, Powell Mountain Energy LLC, Frasure Creek Mining LLC
What's At Stake
Public health and quality of life made possible by the enforcement of the Clean Water Act. The culture of non-enforcement that exists within the Kentucky Energy and Environment Cabinet.
The success of the Clean Water Act is premised on honest and complete reporting by polluters of the discharges they are allowed, under the law, they put into our waterways. In this case, Appalachian Voices discovered that, from 2007-2009, several subsidiaries of the International Coal Group (ICG) and Frasure Creek Mining were submitting tens of thousands of false and inaccurate reports, as well as other reports that showed violations of permit limits.
These reports are submitted quarterly to the Kentucky Energy and Environment Cabinet, which is supposed to check the reports for accuracy and completeness, and to seek compliance when there are violations of permit limits. Instead, Appalachian Voices discovered that these reports were not being reviewed and – literally – were collecting dust on state officials' desks.
Appalachian Voices joined with KFTC, Kentucky Riverkeeper and the Waterkeep Alliance and several Kentucky residents in October 2010 to send ICG and Frasure Creek a 60-day Notice of Intent (NOI) to Sue, as required by the Clean Water Act (this gives the violater time to correct the problem before being sued). On the 59th day, the cabinet filed an enforcement action against ICG and Frasure Creek in Franklin Circuit Court, in an attempt to undercut our standing for taking the case to federal court.
The enforcement agreements that the cabinet had negotiated with ICG and Frasure Creek were weak and provided no incentive to the coal operators to correct their violations. The fines imposed were a fraction of the tens of millins of dollars possible under the Clean Water Act. The groups and individuals that had brought this to the attention of the public and the cabinet through the NOI letter asked the court to allow us to intevene in the case to represent the public interest. The coal companies and cabinet resisted this, with the cabinet calling the intervention an "unwarranted burden." However the court allowed this intervention (a decision that was appealed all the way to the state Supreme Court and allowed to stand).
After an unsuccessful attempt at mediation, the case was heard in Franklin Circuit Court in September 2011. After three days of hearings, Judge Phillip Shepherd again asked all parties to work toward a negotiated settlement. Negotiations with ICG took place over nine months and resulted in an historic agreement that was presented to the court on October 5, 2012. The agreement – subject to approval by Judge Shepherd – includes stipulated penalties for future violations, independent auditing of ICG's water monitoring and fines for past violations (the ones originally cited in the cabinet's enforcement action plus violations that have occurred since then).
More information can be gleaned from the timetable to the right.
Also see: "Clean Water in Eastern Kentucky: Stronger Enforcement Through Consensus" by Mary Varson Cromer
December 3, 2010 – the Kentucky Energy & Environment Cabinet files an enforcement action in Franklin Circuit Court against ICG and Frasure Creek, asking the court to approve negotiated settlements (consent judgements) with each company. The cabinet cited 2,765 violations between the two companies compared to the more than 20,000 documented in the Notices of Intent. In a press release, Gov. Steve Beshear blamed the lack of compliance with the law and enforcement by his cabinet on the laboratories that did the water testing.
December 14, 2010 – Appalachian Voices, KFTC, Kentucky Riverkeeper, Waterkeeper Alliance and four individuals file a motion asking to be allowed to intervene in the case to represent the public interest. State officials opposed this intervention.
December 17, 2010 – after a hearing, Franklin Circuit Judge Phillip Shepherd orders the cabinet to post proposed consent judgments with ICG and Frasure Creek to its website and provide for a 30-day public comment period.
January 27, 2011 – a hearing takes place on the Motion to Intevene.
February 11, 2011 – Judge Shepherd rules in favor of Interveniors' Motion to Intervene.
March 2, 2011 – the Kentucky Court of Appeals denies an emergency appeal from Frasure Creek to overturn Judge Shepherd's ruling on intevention.
June 8, 2011 – court-ordered mediation between the coal companies, intervenors and cabinet begins.
June 28, 2011– the intervenors send additional 60-day Notice of Intent to Sue letters to ICG and Frasure Creek, citing more than 4,000 new Clean Water Act violations in the first three months of 2011.
July 20, 2011 – the Court of Appeals issues a final order denying Frasure Creek's petition to overturn Judge Shepherd's ruling allowing intervention.
August 31-September 2, 2011 – a hearing takes place in Franklin Circuit Court in which the intervenors are allowed to argue their case against the cabinet's proposed consent judgements, which the cabinet and coal companies defended.
September 20, 2011 – Judge Shepherd orders a second round of mediation.
October 25, 2011 – the intevenors file suit in U.S. District Court against Frasure Creek for Clean Water Act violations cited in the October 2010 and the June 2011 Notices of Intent to Sue.
April 26, 2012 – the Supreme Court of Kentucky affirms the Court of Appeals ruling denying the petition by Frasure Creek and the cabinet to overturn Judge Shepherd's ruling allowing intervention.
July 16, 2012 – at a status conference in Franklin Circuit Court, the parties report that good progress has been made mediation with ICG but that discussions had stalled with Frasure Creek. Judge Shepherd gave the parties an additional 60 days to come to an agreement.
October 5, 2012 – a proposed Consent Judgement and accompanying Auditing Agreement negotiated between the intervenors, cabinet and ICG were filed in Franklin Circuit Court with a motion asking Judge Shepherd to set a hearing to consider the merits of the settlement.
October 22. 2012 – Judge Shepherd hears oral arguments on a joint motion by the cabinet and Frasure Creek Mining to enter their original December 2010 Consent Judgment. The Intervenors opposed this motion since the enforcement action did not represent diligent prosecution or the public's interest in preventing future violations.
October 15, 2012 – the federal case against Frasure Creek is dismissed on motion from intevenors after Judge Amul Thapar indicated, at a hearing a few days before, he would be unlikely to grant standing to the intevenors.
january 2, 2013 – the cabinet and Frasure Creek file an Agreed Order with the Office of Administrative Hearings to settle Clean Water Act violations, including ones in 2011 that are not included in the Franklin Circuit Court case. The order includes similar weak provisions as in their December 2010 Consent Judgment that necessitated this litigation.