Coal companies continue to pollute, citizens act again

Clean Water Act violated more than 4,000 times in just three months

As part of an ongoing effort to protect the people of Kentucky from the irresponsible practices of two Kentucky mining companies, a coalition of environmental and social justice organizations, and private citizens took an important step today to force compliance with the nation’s clean water laws.

Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance filed two 60-day notice letters alleging that the companies, ICG and Frasure Creek Mining, exceeded pollution discharge limits in their Clean Water Act permits more than 4,000 times in the first three months of 2011. Also joining in the Notice were several local residents impacted by the dumping of mining waste into Kentucky’s waterways.

The coal companies cited in the notice letter both operate in the eastern part of Kentucky under state-issued permits that allow them to discharge limited amounts of pollutants into nearby streams. In October 2010, the groups filed similar notice letters against ICG and Frasure Creek for more than 20,000 violations of the Clean Water Act, alleging that the companies had falsified discharge monitoring reports by illegally filing the same data month after month. Under the Clean Water Act, the massive amounts of alleged violations could have resulted in fines in the hundreds of millions of dollars.

The October filings prompted Kentucky Energy and Environment Cabinet officials to take industry-friendly actions to short-circuit the potential citizen lawsuits. With a light slap on the wrist, the officials proposed a settlement with the two companies, citing only 2,765 violations of the Clean Water Act and proposing fines against ICG and Frasure Creek of just $660,000.

One of the arguments they used to justify the small number of violations and low penalties was that many of the violations were merely “transcription errors,” not violations of pollution limits, and therefore did not warrant higher fines.  At the end of the negotiation process, the Cabinet officials proudly proclaimed that the proposed settlement would remedy the ongoing problems with these two companies. Today’s filing proves otherwise.

“These new violations show two things,” said Scott Edwards, director of Advocacy for Waterkeeper Alliance. “First, it exposes the cabinet’s deal with the coal companies for the ineffective, choreographed sham we always knew it was, and second, it shows that it is almost certain that all those “transcription errors” the cabinet relied on to soft-pedal its settlement approach were really pollution discharge violations disguised as reporting errors." 

The allegations brought today by citizens groups are all for pollution limit violations found during just the first three months of 2011, subsequent to the negotiated settlement between the cabinet and the coal companies.  The groups found more than 1,400 alleged pollution limit violations by ICG, including average monthly total suspended solids (TSS) levels that were up to 15 times higher than allowed by the permit, average monthly manganese and iron levels more than three times higher than allowed, as well as numerous pH, alkalinity and acidity violations.

The groups also found that Frasure Creek had more than 2,800 violations, including monthly average manganese levels more than 10 times higher than allowed by their permit, daily maximum iron up to 13 times higher than allowed, and daily maximum total suspended solids (TSS) up to 4.7 times higher than allowed.

“The sheer number of very serious pollution violations we found in the first three months of 2011 is astounding,” said Donna Lisenby, the director of Water Programs for Appalachian Voices. “It shows a systemic and pervasive pattern of ongoing water pollution problems with no meaningful enforcement by Kentucky Energy and Environment Cabinet officials, who continue to sit idly by and let coal companies get away with thousands of violations.”

“These violations represent a toxic soup being poured into our drinking water and streams,” said Ted Withrow, the retired Big Sandy Basin Management Coordinator for the Kentucky Division of Water and a member of Kentuckians For The Commonwealth. “A recent peer-reviewed study shows a strong correlation between mountaintop removal mining and a 42 percent increase in infant deformities and other health effects. We now have proof we are killing children because of lax enforcement.”

Coal mining operations in Appalachia and across the country are notorious for the amount of water pollution that they produce on a daily basis. “Exposure to high levels of manganese in water can effect neurological development in infants and cause disorders similar to Parkinson’s disease in adults,” said Pat Banks, the Kentucky Riverkeeper. “These violations demonstrate an extraordinary level of malfeasance. When will someone go to jail for exposing our communities to these dangerous pollutants?”

Under the Clean Water Act, the companies have 60 days to respond to the allegations made in the notice letter. If, at the end of that period, all violations have not been corrected, the groups and individuals will pursue citizen enforcement, which can include filing a complaint in federal court for the Eastern District of Kentucky.  The plaintiffs are being represented by Mary Cromer with the Appalachian Citizens' Law Center; Lauren Waterworth of Boone, North Carolina; Burke Christensen of Richmond, Kentucky; and the Pace Environmental Litigation Clinic in White Plains, New York.

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