Court Update on Frasure Creek and ICG Clean Water Act Cases

A status conference was held today regarding the Clean Water Act enforcement lawsuits against Kentucky coal mining companies, Frasure Creek and International Coal Group (ICG). The conference was ordered by Judge Phillip Shepherd, of the Franklin Circuit Court in Kentucky, to update the court on progress made toward settlement in both cases.

Appalachian Voices, Kentuckians for the Commonwealth, Waterkeeper Alliance, Kentucky Riverkeeper, and four individuals originally gave notice of intent to sue both companies in 2010 and 2011 for more than 24,000 violations of the Clean Water Act. In response, the Kentucky Energy and Environment Cabinet filed its own enforcement against the companies and negotiated a settlement to resolve the violations in December of 2010. Appalachian Voices and its partners intervened in the state enforcement to challenge the settlement, which, among other deficiencies, inadequately fined the companies less than 1% of allowable fines under the law. In April of this year, the Kentucky Supreme Court set legal precedent by affirming the rights of Appalachian Voices and our partners to intervene in the state’s enforcement.

The last hearing in these cases in the Franklin Circuit Court, held in September 2011, allowed parties to present evidence on whether the state’s proposed settlement was “fair, adequate, reasonable, and in the public interest.” After that hearing, Judge Shepherd ordered the parties back to mediation. Settlement talks with both companies have been ongoing since January of this year.

In preparation for today’s conference, Judge Shepherd ordered Commissioner of the Department of Environmental Protection, Bruce Scott, to submit an affidavit detailing the status of the department’s budget and staffing. Further summary of responses by the Cabinet and Bruce Scott can be found here and here.

After hearing from the parties today, Judge Shepherd indicated that he is prepared to make a ruling on the original state settlements with the companies, but will give the parties 60 days to complete negotiation of a new settlement.

Appalachian Voices and its partners continue to work diligently to reach settlements that will be in the best interest of the people and waterways of Eastern Kentucky.

About Erin Savage

While Erin prefers to be on rivers rather than at a desk, as our Central Appalachian Program Manager she devotes a lot of time delving through data to make it meaningful to others who care about the health of our waterways.