Citizens groups seek to ensure Kentucky officials enforce Clean Water Act (again!)

KFTC and several ally groups late Friday filed a motion to intervene in a state enforcement action against Frasure Creek Mining for violating the Clean Water Act at its coal mining operations in eastern Kentucky. This action continues citizen action to force Frasure Creek to obey the law and state officials to enforce the law.

“The people of Kentucky deserve clean water, and companies need to know that they can’t hide behind an agency that accepts false reports,” said KFTC member Ted Withrow, a member of KFTC's Litigation Team.

Last November, Appalachian Voices identified thousands of instances where Frasure Creek had falsified water pollution discharge monitoring reports, as they have eben doing off and on for several years. The allies sent the company a notice of their intent to sue in November. In response, the Kentucky Energy and Environment Cabinet filed a complaint against Frasure Creek for these violations in the agency’s administrative court, undercutting the groups' ability to file an enforcement action in federal court.

The groups are seeking to intervene in the state’s enforcement action to ensure that Frasure Creek is held fully accountable for the violations, and that the state secures sufficient corrective action. This is particularly important because of the company’s past violations.

In 2010, citizens’ groups had uncovered similarly falsified discharge monitoring reports by Frasure Creek, and sent the company a notice of intent to sue to enforce the Clean Water Act. The state stepped in, pre-empting the lawsuit, and reached a settlement with Frasure Creek that amounted to a slap on the wrist. After years of litigation, in November 2014 the settlement was thrown out by Franklin Circuit Court Judge Phillip Shepherd, but the state has appealed.

“The cabinet’s previous enforcement actions were clearly too weak, because Frasure Creek has returned to its practice of covering up pollution violations by re-using old data,” said Eric Chance, Water Quality Specialist for Appalachian Voices. “We want to make sure enforcement is adequate this time.”

“Frasure Creek is not the only company turning in false reports to the state, and the cabinet needs to make an example out of them,” said Kentucky Riverkeeper Pat Banks. “Without accurate information, how can we expect to have real enforcement, or know if our water is safe?”

The motion to intervene was sent by Appalachian Voices, Kentucky Riverkeeper, Waterkeeper Alliance, the Sierra Club and KFTC. The groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth and the Pace Law School Environmental Litigation Clinic.