Kentucky's Investigation into Coal Company Water Violations Should Dig Deeper

Posted by Matt Wasson | December 8, 2010 at 5:29 pm


Toxic Runoff from a Valley Fill in Eastern KentuckyLast Friday the State of Kentucky announced that they had negotiated a $660,000 settlement with three coal companies over 2,765 water quality related violations at 103 coal mining operations in Kentucky. Based on a recent analysis by Appalachian Water Watch team, however, the state’s investigations may not have dug deeply enough.

The long list of violations for which the state did cite coal companies included:

  • Failure to maintain required records;
  • Improper operation and maintenance;
  • Improper sample collection;
  • Failure to comply with the terms of the permit;
  • Failure to utilize approved test procedures,
  • Degrading the waters of the Commonwealth.

As the office of Governor Beshear announced on Friday, the state initiated its action in response to a 60-day Notice of Intent to Sue (NOI) against three coal companies – ICG Knott County, ICG Hazard, and Frasure Creek Mining – submitted by Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance on October 7th. The NOIs detailed numerous examples of the three companies exceeding pollution discharge limits in their permits, consistently failing to conduct the required monitoring of their discharges and, in many cases, submitting false monitoring data to the state agencies.

Appalachian Voices and allies were generally pleased that the state’s investigations confirmed our allegations that mining companies in Kentucky have been irresponsibly monitoring and failing to accurately report their harmful discharges into rivers of the state. But what the state did not hold the companies liable for, indeed attributed to clerical errors, were allegations in the NOI of “falsifying the required monitoring data.” Specifically, the NOIs demonstrated that on many occasions, companies submitted duplicate monitoring reports in which only the dates on the forms were changed. As the Appalachia Water Watch team reported in October:

“The claims brought today may just be the tip of the iceberg when it comes to irresponsible mining reporting practices and a failure in the state’s monitoring program. A recent trip to Kentucky’s Division of Mine Reclamation and Enforcement regional offices by Appalachian Voices’ Waterkeeper found stack after stack of discharge monitoring reports (DMRs) from more than 60 coal mines and processing facilities covered in dust on the desks of mine inspectors’ secretaries. They did not appear to have been evaluated for compliance by the regulators for more than three years. A sampling of the reports showed hundreds of repeated violations by coal mine operators in the state.”

Below is one example of the type of duplicated report that was attributed to clerical errors by the state.

Example of Duplicate Water Discharge Monitoring Reports Submitted to the State of Kentucky

Whether or not these duplicates could reasonably be attributed to clerical errors, a recent analysis by Appalachian Voices’ Water Watch team of these exact same DMRs presents a picture that, well, let’s just say leaves companies and state enforcement officials with a lot more explaining to do.

The Water Watch team found that specific conductivity measurements that were reported in monthly discharge monitoring reports (DMRs) following the April 1st announcement of the EPA’s new guidance on the permitting of surface mines in Appalachia showed a remarkable drop from levels reported before the EPA announcement. The graphs below show monthly conductivity measurements that were submitted to the state since they were first reported in fourth quarter of 2009. It is particularly notable that all of the 2010 measurements were reported after EPA’s April 1st announcement of the new guidance because the reports were submitted several weeks after the end of each quarter (click to expand):

Conductivity Measurements Reported by Frasure Creek Mining from September, 2009 through June, 2010

Conductivity Measurements Reported by ICG Knott from September, 2009 through June, 2010 Conductivity Measurements Reported by ICG Hazard from September, 2009 through June, 2010

As can be seen in the chart, even the highest maximum conductivity levels reported in 2010 are lower than even the lowest levels reported in 2009 (while the reporting forms changed between 2009 and 2010, the values plotted represent individual monthly values from a single reported grab sample in 2009 and the reported maximum value from multiple monthly grab samples in 2010). There is simply no natural explanation for this difference.

To make matters even worse for coal companies and the state, the Appalachia Water Watch team uncovered additional evidence of false or fraudulent reporting of DMR data. The team conducted a “forensic” analysis of conductivity measurements reported in DMRs for these same companies to detect whether there was evidence of any tampering of numbers. In brief, the analysis relies on the fact that, in a typical dataset, each digit from 0 to 9 should be the final digit in the reported number roughly ten percent of the time. However, humans are almost never able to generate a set of random numbers, as our minds tend to favor some numbers over others. As stated in a classic paper on this issue by Jaroslav Mohapl in the journal Environmental Monitoring and Assessment:

“… under normal conditions, the last digits of the observed data can usually be considered as uniformly distributed random numbers. Failures or deliberate changes in the observation mechanism can be detected if particular digits occur more frequently than the others.”

Below are the results of this “forensic” analysis for the three companies:

"Forensic Analysis" of last digits in conductivity numbers reported by Frasure Creek Mining

"Forensic Analysis" of last digits in conductivity numbers reported by ICG Hazard "Forensic Analysis" of last digits in conductivity numbers reported by ICG Knott

The enormous departure from a uniform distribution of final digits in conductivity measurements shown in two of these graphs raise serious concerns about the accuracy and reliability of these companies’ reporting — above and beyond the picture presented by the state of bumbling contractors who failed to meet the expectations of companies.

Appalachian Voices and our allies have not yet made any accusations of intentional fraud based on this analysis of reported conductivity levels, but we are publishing these results now because they are a crucial piece of the puzzle for understanding the recent actions by the state of Kentucky. Moreover, as Appalachian Voices and the Waterkeeper Alliance recently said in our comments on EPA’s guidance, the effectiveness of any action taken by the EPA will be seriously compromised (if not entirely undermined) if failures in the oversight of companies’ self-reporting of water quality are not corrected.

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6 Responses

  1. Well, it’s not at all surprising. At least this is a start. Sadly enough, fraud or accident the results are the same.

  2. Kathy Selvage says:

    Coalfield states cannot possibly oversee the protection of the Appalachian region’s waters. They have long had this opportunity and have shown neither committment nor initiative to the protection of the life of the waterways. Their allegiance appears to tip the scales to the side of the industry instead.

  3. Harry Bryant says:

    Way to go Water Watch Team! Nice piece of work. The State of KY or any other coal state will take your report to heart and try harder to deceive you. Isn’t it amazing how the Frasure Creek conductivity declined by nearly 50% in a month from Dec 09 to Jan 10. My guess is Santa paid a visit to the mines. Just curious… I wonder what explanation they had for this miraculous transformation.

  4. Donna Lisenby says:

    Dear Mr. Bryant,
    Thank you so much for the complement and taking the time to post a comment on our Front Porch blog. I am sorry to report that I have to agree with you when you said that the State of KY or any other coal state will take our report to heart and try harder to deceive us. That is the way it goes with fundamentally dishonest people who are nothing more than handmaidens to the coal industry. Shortly after we law abiding folks figure out a new way to catch them, they just change their deceptive practices to get better at it.

    Regarding your question: “I wonder what explanation they had for this miraculous transformation?” We are trying to get an answer from some defenders of the Kentucky action that have been posting to the Kentuckians for the Commonwealth blog. I posted a link to our analysis and asked the coal company apologists who have also been posting there for a response. So far, I haven’t heard anything from them. Nada, nothing, zero, zilch. I re-posted another message to the KFTC blog again today and asked if the cat got their tongue. But still nothing from them. It would appear our conductivity analysis has silenced them entirely. Here is the link to KFTC blog so you can chime in there and see if you can entice them to come on out of their hidey hole and play with us:
    http://www.kftc.org/blog/archive/2010/12/03/state-fails-enforcement-test-blames-laboratories/view

    Thanks also to Kathy Selvage and CoalMiningAppalachian for commenting here on our Front Porch blog as well. We appreciate getting feedback from our readers. Now if only ICG, Frasure Creek and/or the coal company defenders in Kentucky state government had the courage to comment here, we might actually get to enjoy some respectful exchange of differing viewpoints. But sadly, they seem to be missing some backbone and the courage to debate openly and transparently.

    Oh well, time for me to get back to work Busting Big Coal. Trust me, Riverkeepers never quit going after violators of the Clean Water Act once we have them locked and targeted on our radar screen. I promise that the Appalachian Voices Appalachian Water Watch team will relentlessly and tirelessly pursue justice in this matter. We are after all, just getting warmed up.

  5. Jim says:

    Interesting information. I assume that you have evaluated the results against other potential causes? To contribute this to the April 1, 2010 guidance is, well, likely a stretch.

    Did you by chance chart the data over the entire period of DMR review as opposed to the isolated data pull shown in the graphs? If not, why not?

    Did you review the bench sheets at the labs to verify that the reported data was reflective of what the actual measurements were? Is it possible that transcription errors from the benchsheets to the DMR’s is attributable for the data that is reflected above?

    Was there a change in the operation of the mines that resulted in the data reflected above?

    The analysis is interesting. It is not conclusive however.

  6. Buck says:

    Was this information provided to the state in the orignial Notice of Intent filed? According to the documents I have found on the web, this information was not provided. Why didn’t you do that? Makes no sense to not provide this information in the original NOI unless you had some alternative motive.

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