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Kentucky Appeals Decisions in Frasure Creek Pollution Case

The Kentucky Energy and Environment Cabinet is appealing two recent court orders involving water pollution in Eastern Kentucky from coal company Frasure Creek Mining. At issue is the role outside groups—in this case, environmental groups—are allowed to play in environmental enforcement.

The cases both involved the Energy and Environment Cabinet, coal company Frasure Creek Mining and environmental groups.

In the first case, Franklin County Circuit Judge Phillip Shepherd rejected a proposed settlement between the state and the coal company; the EEC had proposed a fine of $310,000 for numerous and ongoing environmental violations. In a scathing opinion, Shepherd determined that a fine so small wasn’t in the public interest, and blatantly breaking the law would be more profitable for Frasure Creek than spending more money to comply.

The second order involves a separate but similar case. The environmental groups were allowed to intervene in an administrative case against Frasure Creek Mining, but then the cabinet and the coal company negotiated a settlement without their input. In this decision, Shepherd ruled that the environmental groups had a right to be a part of that process.

Now, the cabinet is appealing those decisions. But Mike Haines of the EEC’s Office of General Counsel said it’s not because the cabinet is fighting to be allowed to let Frasure Creek off with a minimal fine.

“We feel like we have to protect the process,” Haines said. “We have hundreds of these cases that go through every year, and opening everything up is problematic for us.”

Haines said the cabinet is appealing Shepherd’s order because it objects to the role that environmental groups were allowed to play in the case.

Frasure Creek’s numerous violations—which included turning in identical pollution monitoring reports month after month—were uncovered by these environmental groups, which include Appalachian Voices and Kentuckians for the Commonwealth. Those groups were given standing in both cases and allowed to intervene. And Haines said the cabinet doesn’t want these cases to set a precedent.

“If you just drop the gates, everyone can intervene and everyone can be a full participant in every administrative hearing, things grind to a complete halt,” he said.

“I think that’s not a very strong position for [the cabinet] to take when there would have been no enforcement but for the citizens bringing this to the attention of the cabinet,” said Mary Cromer of the Appalachian Citizens’ Law Center. She represented the environmental groups in the case.

“I’m not sure what exactly their position is going to be, about what a proper role for intervenors would and would not be, but I think in this instance, especially since we were the ones who brought these violations to the attention of the cabinet, we had a full right to be there at the table, determining how this enforcement should be done,” Cromer said.

Briefs will be filed in late spring, and Haines said the appeals could be decided by the fall. Read the pre-hearing documents hereand here.


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