A publication of the Kentucky Center for Public Service Journalism

Rural Blog: Justice coal firm demands Kentucky officials personally pay $4.5 million in damages

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.

Unreclaimed highwalls on Bent Mountain

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.”

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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The Rural Blog is a digest of events, trends, issues, ideas and journalism from and about rural America, from the IRJCI, based at the University of Kentucky. The Institute for Rural Journalism and Community Issues is an extension program for rural journalists and news outlets. It takes no positions on issues and advocates only for strong news coverage, responsible commentary and things that make them possible, such as open-government laws. For more information see www.RuralJournalism.org.

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