State fails enforcement test, blames laboratories

Two coal companies operating in eastern Kentucky have agreed to pay more than $300,000 each in fines for major violations of the Clean Water Act that they had previously categorically denied.

Energy and Environment Cabinet Secretary Len Peters announced the fines and other remedial action Friday after the agency conducted an investigation and confirmed the allegations that Appalachian Voices, Kentucky Riverkeeper, the Waterkeeper Alliance and KFTC documented two months ago.

The allegations include numerous and repeated violations of pollution discharge monitoring requirements, as well as exceeding limits on pollution levels, over a two-year period by Frasure Creek Mining and ICG. There were thousands of violations at just a few of these companies' mining operations.

But the proposed judgments against the coal companies (they have to be approved yet by a Franklin Circuit Court judge) are weak and do not address the culture of non-enforcement of the Clean Water Act that permeates the Kentucky Energy Cabinet.

"This settlement appears to have been written by the coal companies and does not address the criminal fraud that we alleged," pointed out Ted Withrow, a member of KFTC's litigation team. "The fines are so minimal for much major violations of the Clean Water Act, especially compared to the tens of millions of dollars they could have been. The remedial actions are what is required by law anyway."

The groups had sent the coal companies 60-day Notices of Intent to Sue in October. The 60 days would have been up on Monday. The state's action is seen as an attempt to pre-empt the filing of lawsuits. But the companies can be sued anyway if the settlements do not adequately remedy the problems cited.

Peters' action also fell short in other significant ways:

1) He did not address the allegations of criminal fraud in these violations. Some of the monitoring reports did not change from one reporting period to the next. For example, at one Frasure Creek operation all monitoring data from the second quarter 2008 are repeated identically on the third quarter report, and both reports are dated 7/15/2008 – weeks before the end of the third quarter monitoring period. This pattern was seen over and over. In some instances, dates were just scratched out and written over.

2) He also did not address the cabinet's own complicity in the violations, evidenced by their complete failure to even look at the monitoring reports when the companies did turn them in. Stacks of reports going back three years, some literally with dust on them, were found on secretaries' desks, having never been reviewed or processed.

In a separate statement released by his office, Gov. Beshear took absolutely no responsibility for the state's failures. Instead, he blamed the laboratories with whom the coal companies contract for the testing, and called for the legislature to pass a law to certify the labs.

"Blaming the laboratories is just an effort to deflect responsibility and muddy the waters from the real issue of apparent willful fraudulent reporting," said Withrow. "The Energy and Environment Cabinet totally ignores its own complicity by its complete failure to even look at the monitoring reports."

KFTC and the other organizations are represented by lawyers with the Appalachian Citizens' Law Center, the Capua Law Firm, the Pace Environmental Litigation Clinic and the Waterworth Law Office.

Resources

• Frasure Creek Mining Notice of Intent
• ICG Knott Notice of Intent
• ICG Hazard Notice of Intent
• Frasure Creek Complaint and Consent Judgment
• ICG Complaint and Consent Judgment
• Energy Cabinet's press release Dec. 3, 2010
• List of Remedial Actions required
• Gov. Beshear's press release