by Daniel E. Estrin
Supervising Attorney, Pace Environmental Litigation Clinic, Inc.
Adjunct Professor of Law, Pace Law School
Almost two months ago I wrote about the notices of intent to sue that we served upon three mountaintop removal coal companies in eastern Kentucky alleging thousands of violations of their Clean Water Act discharge permits. The statutory 60-day notice period will expire this Monday, but we learned today that Kentucky regulators have brought enforcement actions in state court against all three companies that we noticed. The State also filed proposed consent judgments (settlement agreements) simultaneous with the filing of their complaints.
In other words, during the 60-day notice period, the State got together with the coal companies and negotiated settlements in an effort to preempt our citizen suits and protect the coal companies from having to litigate in federal court. The Clean Water Act gives regulators this preemptive authority if they have “commenced and [are] diligently prosecuting a civil or criminal action . . . to require compliance with” the Clean Water Act. 33 U.S.C. § 1365(b)(1)(B). Having just received this news today, it is too early to opine whether these simultaneously filed complaints and settlement agreements satisfy this “diligent prosecution” standard.
The consent judgments require that ICG and Frasure Creek pay $350,000 and $310,000, respectively, in civil penalties to the State of Kentucky to resolve their violations. In addition to the penalties, the consent judgments set out remedial measures the companies must take in light of the State’s investigation into the validity and accuracy of numerous discharge monitoring reports submitted by the companies.
It’s interesting to note that the day after the notice letters were served, ICG General Counsel Roger Nicholson issued a statement in which he called the allegations in our notice letters:
scurrilous and dramatic assertions designed to garner headlines and impugn the reputations of the company and those who diligently work in our operations. . . . The company will pursue its investigation fully and unless clear and convincing proof of wrongdoing by company personnel can be shown, it will explore avenues of redress against those responsible for such reputation-tarnishing statements.
It’s very hard to imagine ICG voluntarily agreeing to pay $350,000 in civil penalties to the State of Kentucky if it had not found “clear and convincing proof of wrongdoing” in its internal investigation.
Kentucky Governor Steve Beshear issued a statement this afternoon in which he attempts to place most of the responsibility for these violations on the wastewater testing laboratories with which the coal companies contracted for effluent monitoring and reporting. While the labs also engaged in illegal conduct, Governor Beshear’s effort to defend the coal industry’s wrongdoing doesn’t pass the “smell test,” and is an obvious effort to shield the coal industry for political reasons. If these violations were the labs’ fault, Governor Beshear, why no judicial enforcement action against them?
Links to the relevant documents can be found on the blog of Kentuckians for the Commonwealth (one of the noticing organizations) here.