The Kentucky Energy and Environment Cabinet and coal producer Frasure Creek Mining LLC lost an April 26 ruling from the Kentucky Supreme Court related to an appeal by environmentalists of water quality permitting the cabinet had done for the company.
The cabinet and Frasure Creek Mining, which is a unit of Central Appalachia producer Trinity Coal, had appealed a July 2011 order of the state Court of Appeals denying their separate but consolidated petitions for writs of mandamus and prohibition against Franklin Circuit Court Judge Phillip Shepherd. The cabinet and Frasure Creek are before Judge Shepherd in an enforcement action under Kentucky’s analog of the federal Clean Water Act, and as a resolution of that action they have jointly moved the trial court to enter a consent judgment which they have negotiated.
They objected to the trial court’s decision to allow the parties in interest to a lawsuit, including environmental groups Appalachian Voices and Kentuckians For The Commonwealth, to intervene in the cabinet’s action. So they petitioned the Court of Appeals for writs forbidding the intervention and compelling entry of the consent judgment. Because the high court in its April 26 decision agreed with the Court of Appeals that the trial court is proceeding within its jurisdiction and that the cabinet and Frasure Creek have an adequate remedy by appeal for the errors they allege, it affirmed the Court of Appeals’ denial of extraordinary relief.
The high court noted that Frasure Creek owns and operates coal mines, primarily in Pike County, Ky. In the course of its operations it discharges pollutants into one or more of the Kentucky, Big Sandy and Licking rivers, and their tributaries. The discharges are regulated under a National Pollutant Discharge Elimination System (NPDES) permit issued by the cabinet. In October 2010, the environmental plaintiffs gave notice of their intent to sue Frasure Creek and another coal mining company pursuant to the citizen suit provision in section 505 of the Clean Water Act. Then in December 2010, the cabinet brought the instant enforcement action against Frasure Creek and thus invoked a statutory bar to the plaintiffs’ suit. Together with its complaint at the trial court, the cabinet filed the proposed consent judgment on the water issues.