Saturday, August 12, 2017

Coal firm owned by W.Va. governor demands Ky. officials personally pay it $4.5 million in damages

Gov. Jim Justice (AP photo)
A coal company owned by West Virginia's governor has taken the highly unusual if not unprecedented step of personally suing Kentucky environmental regulators who tried to get the firm to pay its fines and clean up its strip mines.

Kentucky Fuel Corp., owned by Gov. Jim Justice, blames Natural Resources Commissioner Allen Luttrell and Deputy Commissioner John D. Small "for their company's failure to meet reclamation deadlines, potentially costing more than $4.5 million in fines," James Bruggers reports for The Courier-Journal. The state Energy and Environment Cabinet said the suit was an attempt to intimidate the officials and would be vigorously defended.

Tom FitzGerald, director of the Kentucky Resources Council and the state's leading environmental lawyer, told Bruggers, "In my 37 years in the natural resources and environment field, I can't recall another instance where a regulated entity sought damages against an agency official in his individual capacity. . . . As a general rule, Kentucky courts have recognized a qualified immunity from tort liability for state agency personnel, subject to exceptions for intentional or malicious actions."

Company attorney Richard Getty replied, "When a regulator crosses a line, he ought to be held accountable." Bruggers adds that Getty "said the company is getting close to meeting its reclamation obligations and that regulators were preventing them from doing so."

Unreclaimed highwalls on Bent Mountain (state of Ky. photo)
Justice's companies had promised to reclaim, by September 2015, about 10 miles of highwalls left after strip mining. Last month, it told a Frankfort judge that only three miles had been covered, and the state said it had cited the companies for further violations, breaking the agreement and seeking payment of the $4.5 million. The judge said he wouldn't order that as long as reclamation was proceeding diligently.

The suit was filed in Pike County, Kentucky's easternmost. It alleges that the officials interfered with the Justice company's business relationship with a mining firm it had hired to to mining and reclamation on Bent Mountain, some of it on land that other companies had mined and failed to reclaim more than 20 years ago.

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