By RONNIE ELLIS
CNHI
FRANKFORT — It took threats by environmentalists to sue coal companies operating in Kentucky for state regulators to realize the industry was polluting Kentucky waterways.
That’s what Bruce Scott, Kentucky’s commissioner of Environmental Protection, said Wednesday during testimony at a hearing in Franklin Circuit Court challenging an agreement between the state and Frasure Creek Mining and ICG over violations of the Clean Water Act.
“There’s no question there were a lot of issues centered around the water,” Scott said in response to questions by Mary Cromer, the attorney for a coalition of environmental groups who claim the proposed settlement is inadequate to discourage future violations.
In October, Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, Waterkeeper Alliance and three private citizens announced their intent to sue Frasure Creek and ICG for what they allege are thousands of violations of the CWA. The Energy and Environment Cabinet conducted its own investigation and in December sought to enter a consent judgment with the two coal companies in Franklin Circuit which fined ICG $350,000 and Frasure Creek $310,000. The environments went to court asking to intervene and Judge Phillip Shepherd granted their motion. The hearing, which began Wednesday, is to determine if the settlement is “fair, adequate and reasonable.”
Cromer questioned Scott and other state employees about the investigation conducted by the cabinet and how it arrived at the number of violations it found and the penalties it assessed. Attorneys for the state and the coal companies repeatedly objected to questions by Cromer, citing their relevance and contending the only issue before the court was whether the settlement was adequate.
Mary Stephens, an attorney for the cabinet, said at one point the interveners wanted to “put the cabinet on trial,” while Frasure Creek attorney Ann Chesnutt said the coal companies have agreed to a settlement, conceding responsibility, and the only question before Shepherd is whether the settlement is “fair, adequate and reasonable.” Stephens also objected several times to questions about the process of negotiating the agreement because it could hinder future settlement negotiations. But Shepherd allowed most of the questions while noting the objections.
Scott said the investigation by the cabinet confirmed charges by environmentalists that the companies were in some cases submitting inaccurate reports of discharges of pollutants.
“In this case, the cabinet was clearly not doing some things it should have been doing,” Scott said.
He said many of the problems arose because of the shoddy work by the laboratories with which the companies contracted to collect and analyze samples.
Once that problem was corrected by hiring new labs, Scott said, the state found continuing violations for which it has issued notices of violations. But he said there is no way to determine how often the companies previously exceeded permitted discharge levels before because there is no way to determine if the previous reports are inaccurate.
Mark Cleland, environmental control manager, explained that some of the inaccuracies on the discharge monitoring reports were administrative or transcription errors – in some cases misplacing a decimal point and in others simply transcribing the wrong data onto the report. But he revealed the state didn’t even know how many discharge pipes one of the companies had. Cleland also explained why some violations are considered individual, one-time violations while others are multiplied by the number of days on which they occurred.
The environmental groups contend the companies should be fined for each day the violation had not been corrected.
Jeff Cummins, assistant director of the Division of Environmental Protection, calculated the fines which the state initially proposed - $525,000 for Frasure Creek and $600,000 for ICG. The final amounts were negotiated in meetings with the coal companies – but with no consultation with the intervening environmental groups which argue the fines could total in the millions for each company.
Cummins said he used “my experience and judgment” to assess fines on a “violation-by-violation basis.” He said those assessments ranged from $100 to $5,000 per violation. The CWA act allows fines up to $25,000 per violation.
Patrick Garrity, the state’s Drinking Water Laboratory Certification Officer, conducted an inspection of one of the labs. He said it was “disorderly,” kept no permanent records and often re-used sample containers which allowed cross-contamination.
In an opening statement, Cromer said the fines levied in the proposed settlement did not account for the cost savings accrued by the companies and are insufficient to ensure future compliance. She asked Cummins if he calculated the financial benefit of non-compliance and shoddy lab work in assessing the fines. No, said Cummins. At one point, Shepherd asked if the cabinet’s investigation produced mostly “administrative errors” what incentive did the size of the fines provide the companies to use better labs.
The hearing, which is expected to last into Friday, resumes Thursday at 8:30 a.m.
RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.
