EPA v. NALLY AND HAMILTON ENTERPRISES, INC.

Case summary

THIS CASE PERTAINS TO A VIOLATION OF CWA 301(a) WHERE EPA ALLEGES THAT NALLY & HAMILTON DISCHARGED DREDGED OR FILL MATERIAL INTO WATERS OF THE U.S. AT A SURFACE MINING SITE IN HARLAN COUNTY, KY (SMCRA PERMIT 848-0211, REFERRED TO HEREIN AS FUGITT CREEK), OUTSIDE THE LIMITS AUTHORIZED BY THE SECTION 404 PERMIT ISSUED BY THE U.S. ARMY CORPS OF ENGINEERS ( CORPS ). IN ADDITION TO THE CWA VIOLATION, THE DEFENDANT VIOLATED CWA SECTION 301(a) BY DISCHARGING DREDGED OR FILL MATERIAL INTO WATERS OF THE U.S. AT A SURFACE MINING SITE IN KNOX COUNTY, KY (SMCRA PERMIT 860-0380, REFERRED TO HEREIN AS DOTY CREEK ) WITHOUT AUTHORIZATION BY THE CORPS. THE CD THE DEFENDANT AND EPA SIGNED REQUIRES THE DEFENDANT, AT ITS OWN EXPENSE, TO RESTORE AND/OR MITIGATE THE DAMAGES CAUSED BY ITS UNLAWFUL ACTIVITIES AND REQUIRES DEFENDANT TO PAY CIVIL PENALTIES IN THE AMOUNT OF $660,000 TO THE U.S. AS PROVIDED IN SECTION 319(d) OF THE CWA. AT THE DOTY CREEK SITE, THE INJUNCTIVE RELIEF SOUGHT IN THE CD REQUIRES THE DEFENDANT TO RESTORE AND MONITOR THE RESTORATION OF TEMPORARY STREAM IMPACTS ASSOCIATED WITH SEDIMENT PONDS 105, 106 AND 92 AND HOLLOW-FILL 17 IN THE UNNAMED TRIBUTARY TO BREEDING CREEK. DEFENDANT WILL EMPLOY THE STREAM RESTORATION MEASURES DETAILED IN APOGEE'S A STREAM RESTORATION PLAN FOR A PROPOSED SURFACE MINE NEAR SUGAR BRANCH, KNOTT COUNTY, KY WHICH IS INCORPORATED IN THE CD AS AN APPENDIX. WORK AT THE DOTY CREEK SITE SHALL BE COMPLETED WITHIN 60 DAYS OF DEFENDANT'S RECEIPT OF ANY APPROVAL REQUIRED TO BE OBTAINED FROM DNR. AT THE FUGITT CREEK SITE, THE INJUNCTIVE RELIEF SOUGHT IN THE CD REQUIRES THE DEFENDANT TO CONDUT STREAM RECONSTRUCTION AND THE REMOVAL OF SEDIMENT PONDS 2 AND 2A AS DETAILED IN BIOLOGICAL SYSTEMS CONSULTANTS, INC., NALLY AND HAMILTON ENTERPRISES, INC., DNR PERMIT #848-0211 PONDS 2 AND 2A RESTORATION PLAN, BSC #2742 (SEE APPENDIX E OF THE CD). WORK AT THE FUGITT CREEK SITE SHALL BE COMPLETED BY MAY 1, 2014. DEFENDANT HAS COMPLETED ALL MITIGATION MEASURES PROPOSED IN CONJUNCTION WITH THE PRE-CONSTRUCTION NOTIFICATION, FOR THE NATIONWIDE PERMIT #21, DA PERMIT NO. 2005-01310, ISSUED TO DEFENDANT FOR THE MINING ACTIVITIES AT FUGITT CREEK (SEE APPENDIX D OF THE CD). THE DEFENDANT IS REQUIRED TO SUBMIT TO THE EPA A MITIGATION COMPLETION REPORT WITHIN 60 DAYS AFTER THE COMPLETION OF RESTORATION AND/OR MITIGATION ACTIVITIES FOR THE DOTY CREEK AND FUGITT CREEK SITE THAT CERTIFIES TO THE EPA THE COMPLETION OF THE RESTORATION AND/OR MITIGATION ACTIVITIES. THE DEFENDANT IS REQUIRED TO RETAIN ALL RECORDS FOR 3 YEARS AFTER THE TERMINATION OF THE CD. THE CD INCLUDES STIPULATED PENALTIES SHOULD THE DEFENDANT VIOLATE THE TERMS OF THE CD. THE CD REQUIRES 5 YEARS OF MONITORING THE RESTORATION ACTIVITIES. ANNUAL MONITORING REPORTS DUE ON OR BEFORE DEC 31 EACH YEAR, WHICH THE FIRST REPORT DUE THE YEAR FOLLOWING COMPLETION OF RESTORATION ACTIVITIES. THE MONITORING RPEORTS MUST BE SUBMITTED TO EPA WITHIN 30 DAYS OF THE END OF THE REPORTING YEAR. BASED ON THIS SCHEDULE AND ASSUMING RESTORATION IS COMPLETED BEFORE DEC 31, 2014, THE FINAL MONITORING REPORT SHOULD BE SUBMITTED BY DEC 31, 2019. THE EFFECTIVE DATE OF THE CD IS DEFINED AS THE DATE ON WHICH THE CD IS ENTERED BY THE COURT. IN THIS CASE, THE CD WAS ENTERED ON MAY 23, 2014. WITH RESPECT TO MONETARY PENALTY, THE DEFENDANT IS REQUIRED TO PAY $330,000 WITHIN 30 DAYS (BY JUNE 21, 2014) AND THE REMAINDER OF THE PENALTY ($330,000) BY NOV 23, 2014.

Defendants (1)

• NALLY & HAMILTON ENTERPRISES, INC.Named in complaintNamed in settlement

Facilities (2)

• DOTY CREEK MINE

  LAT/LONG: 37.21722 / -82.96944, RED FOX, KY, 41847

  Registry ID: 110054077743

• NALLY & HAMILTON MINING SITE

  KY 38 JCT W/KY 179, LOUELLEN, KY, 40828

  Registry ID: 110009933956

Statutes cited

• CWA 301 — NPDES Discharge without a Permit
• CWA 404 — Permits for Dredge and Fill Material

Enforcement conclusions (1)

• NALLY AND HAMILTON ENTERPRISES, INC. (04-2014-C010)entered 2014-05-23

  Primary law: CWA

  Federal penalty: $660,000

Timeline (8 milestones)

• 2010-11-10Referred To Dept Of Justice
• 2011-01-06Enforcement Action Data Entered
• 2012-08-06Complaint Filed With Court
• 2014-02-27Supplemental Referral-Other
• 2014-03-07Final Order Lodged
• 2014-05-23Final Order Entered
• 2014-05-23Concluded
• 2020-01-28Enforcement Action Closed