As a result, the U.S. District Court for the Eastern District of Kentucky should dismiss the complaint brought by four groups—Natural Resources Defense Council, Kentucky Riverkeeper, Kentuckians for the Commonwealth and Waterkeeper Alliance, or the suit should be stayed until there is a final decision in the administrative case, the Bardstown, Ky.-based company said.
“The Cabinet’s enforcement proceeding, which was filed first, is more inclusive and alleges additional violations beyond those alleged in the [environmental] action,” the company said. “Accordingly, there is a distinct danger of piecemeal litigation if both matters proceed concurrently—in that judicial effort will be duplicated and conflicting rulings may result.”
Other factors also weigh in favor of deferring the environmental suit to the administrative action,” the company said. “Resolution of this case involved interpretation of state-issued KPDES [Kentucky pollution discharge elimination system] permit terms, state regulations, and the significance of changes in state guidance and interpretation regarding KPDES monitoring and reporting requirements.”
Environmentalists accuse the company of more than 12,000 violations of the CWA, essentially all related to record-keeping transcription errors. The Kentucky action claims nearly 4,600 violations of Nally & Hamiliton’s KPDES permits.
In a June 8 response to the suit, Nally & Hamilton denied any willful intent to violate the CWA (PCT 6/12). The company said that “on occasion in the past, transcription errors, typographical errors or other inadvertent human errors have resulted in misreported or omitted data” on discharge monitoring reports submitted to the state. However, they amounted to “an extremely low percentage of all data points,” the company said.
Nally & Hamilton operates several surface mines in Bell, Harlan, Knott, Knox, Leslie, Letcher and Perry counties.