FRANKFORT — A coalition of environmental groups, which has challenged the enforcement of the Clean Water Act by the state Cabinet for Energy and Environment, has filed a petition in Franklin Circuit Court seeking to vacate an agreement between the Cabinet and Nally and Hamilton Enterprises.
The environmentalists allege thousands of CWA violations by multiple coal companies, including Nally and Hamilton, Frasure Creek Mining and ICG, and have sued Nally and Hamilton in federal court. The Cabinet has sought approval of consent judgments against all three companies, but the environmental groups are contesting those judgments, claiming they are inadequate to ensure future compliance and don’t protect the public interest.
The agreement with Nally and Hamilton was approved by Cabinet Secretary Dr. Len Peters in November over the objections of the environmentalists who say they were excluded from the negotiations between the company and the Cabinet.
Their petition asks that the agreement be vacated on the grounds there is “no actual 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 (CWA) violations or that it will be an effective deterrent of future violations.”
Nally and Hamilton is based in Bardstown and operates surface and mountaintop removal mining operations in southeastern Kentucky. In March, the environmental groups – Appalachian Voices, Kentucky Riverkeeper, Kentuckians for the Commonwealth and Waterkeeper Alliance – gave notice they intended to sue the company for what they allege were 12,000 violations of the CWA over two and a half years. The groups allege the company submitted to the Cabinet false or incomplete reports of discharges of pollutants into streams. They also charged the Cabinet ignored the violations until the environmental groups threatened to sue Nally and Hamilton.
They asked to intervene in the Cabinet’s administrative process and were granted that status by the Cabinet’s hearing officer but they now allege the Cabinet ignored that ruling and locked them out of the negotiations.
“There are so many loopholes in this secretly crafted document that it becomes strikingly offensive to anyone the least bit familiar with Clean Water Act rules,” said KFTC member Suzanne Tallichet of Morehead.She said the agreed order “represents business as usual” between cabinet officials and a coal company at the expense of citizens’ health and well-being.
Dick Brown, spokesman for the Cabinet, said the petition has no merit and the environmentalists’ claims that they were locked out of negotiations are inaccurate.
“The Cabinet was in the process of reviewing the discharge monitoring reports months before the interveners filed their notice of intent to sue the coal company,” Brown said in a statement issued Friday afternoon. “The cabinet believes the assertions made in Thursday’s filing are without merit. The interveners were part of the process. The proposed order was posted for public comment, which the interveners did supply and was made part of the record.”
The petition asks the Court to order the cabinet to produce factual evidence supporting the agreement and an explanation of how it will adequately remedy past violations and deter future violations. Failing that, it asks that the case be returned to the hearing officer for additional fact-finding and adequate remedies to protect the public interest.