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Thursday, September 1, 2011

State tries to explain deal on fines in coal pollution trial


Hey Everybody,
We got some great news coverage on the first day of our trial against the 2 largest mountaintop removal coal mining companies in Kentucky. Please facebook, tweet and blog. Help get the word out there about how Waterkeeper Alliance, Kentucky Riverkeeper and Appalachian Voices/Watauga Riverkeeper is fighting the good fight against law breaking coal companies.
Donna



 

State tries to explain deal on fines in coal pollution trial

FRANKFORT, KY. -- -- Kentucky environmental regulators on Wednesday were forced to explain in Franklin Circuit Court how they came up with fines of $670,000 for two coal companies instead of $720 million as calculated by environmental groups.The Kentucky Energy and Environment Cabinet had originally sought a combined $1.25 million, but agreed to lower that after negotiations with the companies, Jeff Cummins, who oversees enforcement for the cabinet, said in his testimony.
"I looked at a breakdown of the types of penalties and used my experience and judgment and facts as I understood them," he told Judge Phillip Shepherd.
Cummins said he did not believe the companies saved much money by violating what cabinet officials largely described as administrative or paperwork violations.
A coalition of environmentalists who first brought the alleged violations to the attention of the state have insisted that state regulators were soft on the companies, and Wednesday they got their day in court.
After bringing thousands of alleged water pollution violations by the companies to the attention of the energy cabinet last year, they have been allowed to participate in the court case originally brought by the state as an enforcement action. The trial, which may wrap up on Thursday, pits groups such as Appalachian Voices, Kentuckians for the Commonwealth and Waterkeeper Alliance against the energy cabinet and the two coal companies.
Last December, International Coal Group, now part of Arch Coal, had agreed to pay $350,000 for violations at 64 mining operations in eight eastern Kentucky counties. Frasure Creek Mining had agreed to pay $310,000 in fines covering violations involving 39 operations in six eastern Kentucky counties.
In her opening statement, the environmental groups' attorney, Mary Comer, said the agreement was not fair, reasonable or in the public interest. The groups have argued the penalties were too lenient for what they had found, including the companies repeatedly copying and pasting the same water quality discharge data at coal mines in 2009 and 2010.

The case lifted some of the veils that typically surround legal action against violators of laws like the Clean Water Act, despite objections by the energy cabinet that the environmental groups' court involvement would set a precedent that would lead to "chaos" in the court system.Information about how the state determines environmental penalties "will be used by defendants (against the state) in every court proceeding from here to doomsday," said Mary Stephens, an energy cabinet attorney.
But Shepherd, who once led the cabinet, rejected almost all her objections, saying he needed some of those details to determine if the penalties were appropriate.
"I understand your protection of the cabinet's deliberative process," Shepherd told Stephens. "But the more the court understands the process, it probably helps your case -- and that there was a logical basis."
During testimony, state officials acknowledged that they did not know the number of pollution discharge pipes used by the companies and that they don't always count each violation when assessing fines.
Another issue that came up is whether the cabinet downplayed the severity of the alleged violations, deeming them to be just administrative or paperwork mistakes instead of actual excess releases of pollution.
Shepherd questioned R. Bruce Scott, the commissioner of the Kentucky Department of Environmental Protection, asserting the "whole integrity of enforcement process" relies on accurate discharge data as reported by the companies. With so much erroneous data, "How will the cabinet ever determine if there is a water pollution violation?" he asked Scott.
State officials suspected there might be actual pollution violations but that the agency needed more evidence before it acted, Scott said.
It has subsequently found that evidence, and last week, he said, the state brought new enforcement cases against the two companies, alleging pollution violations.
"We clearly have (new) violations today we need to take action on, and we have," Scott said in court.
Details about those enforcement actions were not available on Wednesday.

--
Donna Marie Lisenby
Upper Watauga Riverkeeper
a program of Appalachian Voices
191 Howard Street
Boone, NC  28607
828-262-1500

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