Hearing begins in Clean Water enforcement case

A court hearing begins Wednesday morning on the challenge by KFTC, Appalachian Voices and others to consent agreements between state officials and two coal companies.

International Coal Group (ICG) and Frasure Creek Mining have acknowledged thousands of violations of the Clean Water Act over a two-year period. These violations were first brought to the public's attention last October by Appalachian Voices, Kentucky Riverkeeper, the Waterkeeper Alliance and KFTC.

In December, in order to pre-empt a federal lawsuit by the four groups against the companies, the state Energy and Environment Cabinet filed an action in Franklin Circuit Court. These proposed consent agreements listed fines for the violations and some required remedial action. We determined these agreements to be inadequate to prevent future violations and sought to intervene in the case.

Despite strong resistance by the Beshear administration, Franklin Circuit Judge Phillip Shepherd allowed our intervention in a February ruling. Since then each side has been collecting information through deposition and reviewing records related to this case.

On Monday, the cabinet was successful in quashing a subpoena for Secretary Len Peters. We wanted him to testify to the cabinet's ability to enforce the law, including these proposed agreements. Peters has written that the cabinet does not have the capacity to enforce the law.

That has proven to be the case. Even though ICG and Frasure Creek agreed last year to remedial actions to stop their illegal pollution, they continued discharging illegal levels of toxins into eastern Kentucky streams into 2011.

KFTC members are welcome to attend the hearing, beginning at 9:30 a.m. at the Franklin County (temporary) Courthouse, 669 Chamberlin Ave. in Frankfort. The hearing is expected to last at least two days, and will continue on Friday if needed.