In early October, the Bardstown, Ky.-based company was sued in Knox County Circuit Court in Barbourville by 72 local residents who claimed the company’s mining activities contributed to a June 20 flash flood that resulted in a death and damaged dozens of homes and other property in the Kayjay community of the county.
Then, in late October, Appalachian Voices, representing several environmental groups, amended a federal complaint it lodged earlier this year that accused Nally & Hamilton of more than 12,000 violations of the Clean Water Act. The company previously asked the U.S. District Court for the Eastern District of Kentucky to place the CWA lawsuit on hold until Kentucky issues a final decision in an administrative case involving similar allegations. The state action claims nearly 4,600 violations of Nally & Hamilton’s water discharge permits.
The Knox County legal action is believed to be the first time a Kentucky coal company has been accused of worsening flooding from surface mining. Severe storms dropped several inches of rain across the hilly terrain on the night of June 19 and morning of June 20, washing away homes and damaging property. Donald Joe Pate, 55, of Kayjay, was killed when his mobile home, swept away by the rampaging floodwaters, slammed into a bridge several miles away.
The suit contends Nally & Hamilton failed to comply with Kentucky Department for Natural Resources regulations, including by failing to divert all surface water drainage through approved sediment control structures.
As a consequence, the company’s mining activities “created, caused, or played a substantial role in causing massive amounts of water, waste, rock, mud, silt, trees, branches, vegetation, rocks and coal…to suddenly escape from mining sites, which resulted in Wolf Pen Creek and other tributaries being transformed into a raging river, which engulfed and destroyed many of the plaintiffs’ homes, vehicles and other property,” the suit alleges.
Martin Cunningham, a Lexington, Ky., attorney who represents the company, said Nally & Hamilton had nothing to do with the flood. The company expects to ask the court to dismiss the lawsuit.
In the updated CWA action, Appalachian Voices, on behalf of Waterkeeper Alliance, Kentuckians for the Commonwealth, Kentucky Riverkeeper and the Natural Resources Defense Council, contend Nally & Hamilton failed to file accurate and complete discharge monitoring reports (DMRs) with the state for at least five years—through 2010. The groups said the DMRs “either repeated exactly discharge data that had already been submitted in a prior month for the same outfall, or omitted required information entirely.”
Nally & Hamilton has denied any willful intent to violate the CWA, though it acknowledged “on occasion in the past, transcription errors, typographical errors or other inadvertent human errors resulted in misreported or omitted data” on the DMRs.
In addition to Knox County, the companies operates surface mines in Harlan, Letcher, Bell, Knott, Leslie and Perry counties in eastern Kentucky.