Landmark Settlement Proposed in Kentucky Water Pollution Case

Posted by Eric Chance | October 5, 2012 at 2:26 pm


Appalachian Voices, along with a coalition of citizens’ groups, has reached a historic agreement with International Coal Group, Inc. (ICG), and the Kentucky Energy and Environment Cabinet over years of false reporting and water pollution violations in Eastern Kentucky and a failure by the state to enforce the Clean Water Act.

We are very glad to achieve this settlement which will help clean up pollution in streams throughout the coal-impacted region, and we are proud to have worked with our partners in this important case that has already yielded changes in the coal industry and state regulatory agencies. The agreement was filed today in Franklin County Circuit Court and needs to be approved by the judge before taking effect.

Read our press release to find out more about the settlement.

In 2010, we uncovered dozens of pollution monitoring reports submitted by ICG and Frasure Creek Mining to the cabinet that were clearly false. Our analysis showed that some reports included all the same data as previous reports, but the dates had been changed. In other cases, there were multiple and contradictory reports for the same discharge point. Not only were the reports inaccurate, they were masking major pollution problems, as can be seen in the graphs below.

ICG Knott Conductivity

Frasure Creek Mining Conductivity

There were similar problems with every parameter the companies were measuring, as can be seen in these 28 graphs.

All in all, the pattern of deception we discovered accounted for more than 20,000 violations of the Clean Water Act, probably one of the most far-reaching instances of noncompliance in the 40-year history of the Clean Water Act. And the state had done nothing.

As the case went on it became clear that the cabinet was siding with the coal companies and not looking out for the interest of citizens or environment.
• In the courtroom, the cabinet sat on the defendants’ side with the coal companies
• They opposed our intervention in the case (which is illegal under federal law)
• They, along with Frasure Creek, appealed the court’s decision to allow our intervention all the way to the Supreme Court of Kentucky.
• Their investigation refused to acknowledge the possibility of intentional wrongdoing or the fact that the false reporting was covering up pollution problems. They concluded that all of the false reports were “transcription errors” despite the fact their own inspector’s reports show pollution problems, while the companies reports showed no problems, and their own investigation determined that the laboratories being used were not capable of accurately testing, even with inspectors watching.

If you were a coal company submitting your own pollution reports, why would you bother doing the required monitoring if you knew that the inspectors weren’t looking?

The cabinet’s priorities became apparent two weeks ago when Bruce Scott, commissioner of the Division of Environmental Protection, inappropriately made comments to the press before a final settlement had been reached. Despite the fact that negotiations are supposed to be confidential, and the fact that the cabinet has been a hindrance throughout this entire litigation, Scott felt the need to comment prematurely to get out first and claim credit for the settlement. His comments downplayed the necessity of third-party auditing to ensure accurate reporting. In the cabinet’s original settlement, the only means of assuring future accurate reporting was requiring the companies to submit a report and some extra paperwork. If the problem was that the companies were submitting false paperwork, how can you expect to solve it by just requiring them to submit more paper work?

We think that this new proposed settlement is big step towards getting coal companies in Kentucky to honestly report their pollution and towards getting the state to actually enforce the Clean Water Act.

We have uncovered false reporting at Eastern Kentucky’s three largest coal producers, who use three different labs but this is likely just the tip of the iceberg. There is a systemic problem of false reporting and failed government oversight at coal mines throughout Kentucky. We believe the terms of today’s settlement with ICG and the cabinet will put the entire industry on notice: We’ve blown your cover. No more cutting corners, lying and cheating. Kentucky citizens will not stand for it, and the courts will not allow it.

>>Click here to read previous blog posts and get the full story behind this lawsuit.

>>Click here to view the proposed settlement.

>>Click here to view the proposed auditing agreement.

We are proud to work with a great coalition of citizens groups including Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance, represented by Mary Cromer of Appalachian Citizens’ Law Center, Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

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