Posts Tagged ‘FArCES of Coal’

Same coal company, same old (illegal) tricks

Monday, November 17th, 2014 - posted by eric

“We do all those old tricks electronically now.” By Charles Barsotti.

They say you can’t teach an old dog new tricks. That certainly seems to be the case with Frasure Creek Mining. Four years ago we took legal action against the company for submitting false water monitoring reports, and now they are at it again, but this time the false reporting is even more extensive. Almost 28,000 violations of the Clean Water Act in what is likely the largest non-compliance of the law in its 42-year history.

In 2010, Appalachian Voices and our partner organizations served Frasure Creek and International Coal Group (ICG) with a notice of our intent to sue them for submitting falsified pollution monitoring reports to Kentucky regulators. Back then, both companies were reusing the same quarterly reports, changing the dates on the reports but duplicating all the water monitoring data. The reports have changed from paper to electronic documents, but Frasure Creek’s practice of reusing them has returned.

The Kentucky Energy and Environment Cabinet filed a slap-on-the-wrist settlement with the companies, writing off the duplications as “transcription errors” and effectively preventing our legal case from going forward. We challenged the settlement in state court and eventually reached an agreement with ICG, but not with Frasure Creek. We are still waiting on a decision in that case.

In the meantime, we discovered that Frasure Creek has been up to its old tricks. So today, we sent the company another notice of intent to sue for the new batch of duplicated reports.

Before our initial legal action, the companies rarely, if ever, submitted reports that showed violations of their pollution limits. As a result of our investigation, the companies hired new, more reputable labs and began reporting lots of pollution problems, making it clear that their false reports were covering up serious issues. We tried to sue Frasure Creek for these pollution violations, but the state reached another deal with the company, tying our hands.

Frasure Creek Mining reports only a few violations of their pollution limits when they are turning in false reports.

All of this raises one important question: Who would be stupid enough, or so utterly disdainful of federal law, to do the exact same thing they had gotten in trouble for before? One would think that it must have been an accident, because no one would ever purposefully do this again, but there are a few factors that seem to contradict that idea.

• In 2014, when Frasure reused data, it occasionally changed a little bit more than just the dates. There are a number of new duplications where the original report showed violations of pollution limits. All of the data in these reports was reused except for violations, which were replaced with a few very low numbers. (Personally, I am really looking forward to the convoluted tale that Frasure will tell to try to explain away these as “transcription errors.”)

• The new duplications are far too common to be made accidentally by someone who was putting any modicum of effort into their job. In the first quarter of 2014, the company submitted over 100 duplicated reports, so almost half of its reports that quarter were false. That’s almost three times the number of false reports it got caught for the first time around, and translates to almost $1 billion in potential fines.

• Frasure Creek isn’t afraid of getting caught because the consequences are extremely low. The state’s past settlements with the company have been too weak to discourage this type of false reporting, and in fact, may have given the company a sense of security. Under the Clean Water Act, the potential maximum fine per violation is $37,500. One of the state’s past settlements with Frasure Creek set automatic penalties of only $1,000 per violation. So interestingly, it’s when those penalties were in effect that Frasure Creek, submitted lots of duplicated reports, but only reported a handful of pollution violations. (See the period in the blue box on the graph.)

This is one of about 70 Frasure Creek Mining discharges that the company has been submitting duplicated water monitoring reports for.

Frasure Creek has about 60 coal mining permits across Eastern Kentucky, mostly for mountaintop removal mines. Most of the new reporting duplications occurred at mines in Floyd County, but some occurred at its mines in neighboring counties. Pollution from these mines flows into the Big Sandy, Licking and Kentucky rivers.

Frasure Creek may be a bad actor in the mining industry, but it’s not alone in this type of false reporting. A few years ago we took legal action against the three largest coal producers in Kentucky (including Frasure Creek), all of which were turning in false water monitoring reports produced by three different laboratories. In recent weeks there have been two criminal cases in West Virginia for false water monitoring, one at coal mines, and one for duplicating reports exactly like what has been going on here.

These pollution reports are the foundation of the Clean Water Act regulations. Without accurate reporting, it’s impossible for regulators to effectively protect the people and the environment from dangerous pollution. The fact that the Kentucky Energy and Environment Cabinet and the Environmental Protection Agency have done so little to stamp out false reporting in Kentucky is simply deplorable.

Appalachian Voices is joined in this effort by Kentuckians For The Commonwealth, Kentucky Riverkeeper, and the Waterkeeper Alliance. The groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

>> View The Notice of Intent to Sue here (.pdf)

>> View our Press Release here

Electoral Math for “All You Climate People”

Tuesday, November 20th, 2012 - posted by matt

During a campaign season in which climate change featured most prominently as a laugh line at the Republican National Convention, the low point was when CNN’s Candy Crowley addressed “all you climate people” in her explanation of why climate didn’t come up during the presidential debates. Who knew that human disruption of the global climate had become such a narrow, provincial concern?

But there’s important information in the fact that a senior reporter for a major network could dismiss climate change as essentially a special interest issue. It’s evidence, if more were needed, that “all us climate people” got our butts kicked in the battle for the narrative in the 2012 election.

And like the Republican Party, which is now undergoing the usual soul searching that follows a big electoral defeat, those of us who believe that inaction on climate is the greatest threat facing our civilization (never mind the economy) have some serious soul searching to do about our own defeat, which occurred long before any votes were counted.

Crowley’s explanation was consistent with the conventional wisdom on why the president didn’t make climate an issue. Because it was an “Economy election” and everyone in the DC press must accept that government action on climate change could do serious harm to the economy (because “it’s become part of the culture,” even if it’s not true), any discussion of climate policy by the president would have been off-message and worked against his chances for re-election.

The unconventional wisdom, popular among “climate people,” is that the Obama campaign failed to recognize the high level of popular support for action on climate change and missed a golden opportunity to seize a winning wedge issue when they chose the more politically expedient route of ignoring it.

There’s probably some truth to both of these explanations, but here’s a third one that is particularly useful in the context of a presidential election: the campaigns avoided talking about climate policy because they believed that raising the issue would be harmful in a few swingy areas of key swing states that would likely decide the election.

Look, it’s tempting to point to all the national polls showing popular support for climate policy and say, “climate is a winning campaign issue.” But a political strategist would find nothing useful in those polls because campaigns are not won by appealing to the sentiments of the average American. Similarly, when a presidential candidate is speaking to a national audience, it’s easy to believe they are speaking to us — all of us. But they’re not. By and large, the candidates’ speeches are written to appeal to a handful of undecided voters in a few swing states, with just enough partisan red meat thrown in to motivate the party base to volunteer for the campaign and turn out to vote.

Americans understand that those swingy areas are the “tail that wags the dog” of our national elections but don’t necessarily think about the logical conclusion of that fact; the concerns and attitudes of swing voters in swing states are the “tail that wags the dog” of campaign messages, media coverage, and thus public understanding of what issues are important in the campaign.

The problem is fossil fuel interests have figured out how to wag that dog. They know they can’t win public opinion nationally, but by focusing resources in key areas of swing states such as Virginia, Ohio and Pennsylvania, they can frame the local discussion of climate policy and environmental regulations to their advantage (i.e., as a “Job-killing war on coal“) and essentially neutralize those issues at the national level — at least during the election season.

If the Obama campaign’s pre-election polling looked anything like the maps of election results in coal-mining regions of southwestern Virginia and southern Ohio, it’s easy to imagine strategists telling the president, “Don’t exacerbate this ‘war on coal’ thing or it could hurt us in swing states” (see map):

US_Election_Vote_Margins2

(more…)

Front Row Seats at the Political Theater in Abingdon, VA

Wednesday, June 6th, 2012 - posted by Erin

Last Saturday, June 2nd, FACES of Coal and Americans for Prosperity held the “Rally for Appalachian Coal Jobs” in Abingdon, VA. The flier for the rally touts the usual “War on Coal” rhetoric: “Appalachian Coal Jobs have been under regulatory assault from the bureaucrats in Washington D.C. It’s time we stand up and defend them!”

The event, held at the Washington County Fairgrounds, was open to the public and claimed to be “family friendly,” so we at Appalachian Voices thought we should attend. (more…)

Kentuckians and Friends Show State Officials Their Love for Mountains on Valetine’s Day

Tuesday, February 14th, 2012 - posted by Erin

Despite cool, rainy weather in Frankfort, KY, more than 1,200 individuals showed up on the steps of the Kentucky state capitol building for I Love Mountains Day. This annual event is held by Kentuckians for the Commonwealth so that KFTC members and other advocates can come together to show their support for protecting eastern Kentucky’s mountains and communities. Eric Chance and I were lucky to be part of a great event with a diverse and enthusiastic crowd.

We were initially met with the sight of several pro-coal billboard trucks circling the capitol building, but they did not appear to stay throughout the entire rally. The mood was immediately lifted upon reaching the steps of the capitol, where 2/3 Goat, a New York band that has become a regular part of many similar gatherings, began to play.

Speakers included Steve Boyce, Ada Smith, Teri Blanton, Melina Laboucan-Massimo, Cody Montgomery, Randy Wilson and Stanley Sturgill. Each spoke to his or her own experience with mountaintop removal and other forms of destructive energy extraction. Senator Kathy Stein also made a brief appearance to voice her support for our continued work and the progress she believes we are making. Speakers voiced their support for their fellow community members who work as miners, but stressed that after over 100 years of providing coal for the state and the country, Kentucky needs to diversify its economy and energy resources. It is time to show the people of eastern Kentucky the respect they deserve, by providing for healthy communities, a healthy environment, energy efficiency, and economic opportunity.

Melina Laboucan-Massimo, from Alberta, Canada, spoke about the impact of tarsands oil extraction on her local community. The problems, including poisoned water and high occurrences of rare cancers, were eerily similar to the problems seen in coal-impacted communities throughout Appalachia. As more studies have been completed, it is clear that these health problems are not just anecdotal, but are verifiable trends that reflect the injustices done to people living near mountaintop removal sites.

Despite the harsh realities many in eastern Kentucky still face, all of the speakers were upbeat and extremely motivating. The crowd seemed equally hopeful. The rally concluded with a march to Governor Beshear’s mansion, where 1,200 pinwheels were left, each on symbolizing 50 people living with cancer caused by strip mining in their community (Source: Journal of Community Health, July 2011). Eric and I left the rally with new motivation for the work we will do this week in Kentucky, as well as the hopefully not-so-long road ahead.

For more information and photographs, check out KFTC’s coverage of the event or click here to see more of our pictures.

Faces of Coal Hates Mountains

Groups Challenge Public’s Exclusion From Secret Negotiations

Friday, December 9th, 2011 - posted by eric

FOR IMMEDIATE RELEASE: Friday, December 9, 2011

An agreement negotiated in secret between the Beshear administration and a major polluter in eastern Kentucky does little to protect the public or prevent future violations, claimed several groups representing Kentucky citizens who use water polluted by the company’s coal mining operations.

The citizens’ groups filed a petition in Franklin Circuit Court on Thursday asking that the agreement between Nally & Hamilton Enterprises and the Kentucky Energy and Environment Cabinet be vacated on the grounds that there is “no factual evidence in the record, much less substantial evidence, [that] supports a finding that the Agreed Order is a fair resolution of Nally’s thousands of [Clean Water Act] violations, or that it will be an effective deterrent of future violations.”

The agreement was approved by cabinet Secretary Len Peters in November, despite the objections of the groups and despite their exclusion from the negotiating process.

“It is clear that the Kentucky Energy and Environment Cabinet is acting in its own best interest and the best interest of the coal industry rather than trying to protect the people and environment of Kentucky,” said Eric Chance of Appalachian Voices. “This settlement creates the appearance that the cabinet is doing its job while letting Nally & Hamilton off the hook for a huge but unknown number of serious violations.”

Nally & Hamilton Enterprises, based in Bardstown, is one of the largest producers of coal in Kentucky. They primarily use the controversial practice of mountaintop removal, where mountains are destroyed to reach thin coal seams. The remaining rubble is then dumped in the valleys and streams below.

Several principal officers and employees of Nally & Hamilton and their spouses contributed $6,000 to Beshear’s re-election campaign on July 21, just two weeks after the citizens groups were allowed to intervene in the case, according to the Kentucky Registry of Election Finance.

The case began in March when Appalachian Voices, Kentucky Riverkeeper, Kentuckians For The Commonwealth, and Waterkeeper Alliance, represented by Natural Resources Defense Council, gave notice to Nally & Hamilton that they planned to sue the company for 12,000 violations of the Clean Water Act, which occurred over a two-and-a-half-year period. The violations related to discharges from many of the company’s coal mining operations in eastern Kentucky and involved false and incomplete pollution discharge reports submitted to the cabinet.

Cabinet officials, who had previously ignored these reports, finally reviewed Nally & Hamilton’s discharge reports after receiving the notice letter and in May filed an administrative enforcement action against the company. It seems that the cabinet did this in an effort to protect the company by trying to pre-empt a federal lawsuit the groups planned to file. The administrative action had no preemptive effect under the law, however, and the groups filed the federal suit anyway.

The groups also asked to intervene in the administrative proceeding, and in July the hearing officer granted the groups intervenor status, making them full parties in the case. However, cabinet officials ignored the hearing officer’s strong encouragement to include intervenors in settlement negotiations and negotiated a settlement with Nally & Hamilton without notifying or involving the intervening parties.

“There are so many loopholes in this secretly crafted document, it becomes strikingly offensive to anyone the least bit familiar with Clean Water Act rules. This Agreed Order represents business as usual between cabinet officials and a scofflaw coal company, literally at the expense of citizens’ lives and well-being,” said KFTC member Suzanne Tallichet. “We are contesting this agreement because citizens living in coal-impacted communities deserve much better from a taxpayer supported state agency that is supposed to be diligently protecting people over corporate profits.”

As stated in an October letter to Peters, and repeated in Thursday’s court filing, the agreement falls short because (among other things):

• The cabinet seems not to have investigated the possibility that Nally & Hamilton’s violations were the result of intentional fraud;
• There is no evidence that the cabinet calculated what civil penalty amount is necessary to deter future violations (the fines were less than 1% of what they could have been);
• The agreement does not list or even describe what violations are being resolved; so it isn’t clear the cabinet even knows what violations this settlement would resolve;
• The agreement leaves most remedial measures completely undefined, requiring only that Nally & Hamilton submit proposed remedial measures after the agreement is signed; this makes it impossible to determine whether those remedial measures will fix Nally & Hamilton’s violations.

“The Kentucky Environment Cabinet needs to get out of the coal business and do their job protecting the public. This is just common sense,” said Pat Banks of Kentucky Riverkeeper. “Instead they ignored the hearing officer’s order giving us intervenor status and negotiated a secret agreement that does little to protect our people or prevent future violations. Our people are shocked that the cabinet chooses to protect companies that are polluting our land and water and breaking the laws thousands of times rather than protect the health and well-being of Kentucky’s land and people.“

“The people of Kentucky deserve to know what is being dumped into their waters. Nally & Hamilton has been submitting false data and releasing unknown amounts of pollutants for at least five years and the cabinet thinks this warrants a minor slap on the wrist,” added Chance.

The petition asks the Court to order the cabinet to produce factual evidence supporting the agreement and an explanation of how it will adequately remedy past violations and deter future violations. Failing that, the case should be returned to the Hearing Officer for additional fact-finding and adequate remedies to protect the public interest.

Last week, without notice or reason, Peters fired Natural Resources Commissioner Carl Campbell just as Campbell was preparing to travel to a meeting with Nally & Hamilton. “How can we expect to see effective enforcement of environmental laws against coal companies if top cabinet officials have to choose between protecting the environment and protecting their jobs?” asked Chance.

Click here to view a copy of the petition.

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CONTACTS:
Eric Chance, Appalachian Voices – 828-262-1500, eric@appvoices.org
Pat Banks, Kentucky Riverkeeper – 859-527-3334, kyriverkeeper@eku.edu
Suzanne Tallichet, Kentuckians For The Commonwealth – 606-776-7970, suetallichet@windstream.net
Peter Harrison, Waterkeeper Alliance – 212-747-0622 ext. 32, pharrison@waterkeeper.org

Great New Post about our Fight against Big Coal in Kentucky

Wednesday, March 16th, 2011 - posted by eric

We would like to thank Daily Kos and DWG for writing an awesome article about our ongoing legal battle with 3 coal companies and the state regulatory agency in Kentucky. Check out the article here.

Another Coal Company on the Run

Thursday, March 10th, 2011 - posted by eric

Yesterday we announced our intent to sue Nally and Hamilton Enterprises for more than 12,000 violations of the clean water act at more than a dozen of its strip mines in Eastern Kentucky. Click here for more information on that action.

Later in the day we noticed something odd about their website, it was gone. In its place was a slideshow of mostly green reclamation sites and by this morning even that was gone. Click here to see if they have anything on their site now. Luckily we acted quickly and were able to capture their old website, so we thought we would share it here. However, one big question still remains, why are they trying to hide? Any ideas? We look forward to your comments.

Click to enlarge images, then click again to make them full size:

Home Page

Locations

Blasting

Awards

Photo Gallery

There was one more page, under the History tab but this page just repeated the text on the homepage, so just go to the homepage.

See James Bruggers’ article on this amazing disappearing website.

Another Kentucky Coal Company Falsifies Water Monitoring Data

Wednesday, March 9th, 2011 - posted by eric

Working in coalition with national and state-wide environmental and social justice groups, we are once again seeking justice for clean water in Appalachia.

At 2pm today, Appalachian Voices and partners announced an intent to sue yet another coal company in Kentucky for violations of the Clean Water Act – this time with a single outfit wracking up more than 12,000 violations.

The company named in this newest suit is Nally & Hamilton, a mining operation based in Bardstown, KY and is one of the largest mining companies in eastern Kentucky.

Nally & Hamilton is not known for being a good neighbor to local residents. In one instance, ex-coal miner Elmer Lloyd’s fish pond in Cumberland, Ky was completely destroyed by toxins, sediment, and mud flowing from a Nally & Hamilton owned strip mine above his home.

The notice against Nally and Hamilton alleges that the company may have filed false, potentially fraudulent, water monitoring reports with the state over the past three years, including cutting and pasting previous data in later reports in lieu of submitting actual data for each month. The suit also claims that the company repeatedly omitted legally-required data from its reports.

Appalachian Voices and its partners previously sued two other coal companies late last year in a legal case that has had as many twists and tangles as an errant patch of kudzu. That case currently has a court date set of June 14.

Appalachian Voices and partners, including Kentuckians for the Commonwealth, the Kentucky Riverkeeper, the Waterkeeper Alliance, teamed up with lawyers from Natural Resources Defense Council on this case.

Nally & Hamilton and the state government have 60 days to respond to the allegations.

Great News for Clean Water in Kentucky

Friday, February 11th, 2011 - posted by eric

In a precedent setting move today, Judge Phillip Shepherd granted limited intervention rights to Appalachian Voices, KFTC, the Kentucky Riverkeeper and Waterkeeper Alliance in the Kentucky Energy and Environment Cabinet’s Case against International Coal Group (ICG) and Frasure Creek Mining.

Cartoon

Here is the full press release:

FOR IMMEDIATE RELEASE

Judge grants environmental groups the right to
intervene in Kentucky Clean Water Act case

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CONTACTS
Donna Lisenby…. 704-277-6055…. donna@appvoices.org
Sandra Diaz….407-739-6465…. sandra@appvoices.org
- – - – - – - – - – - – - – - – - – - – - – - – - – -

A Kentucky judge today granted environmental groups a motion to intervene in a legal case against two coal companies in violation of the Clean Water Act.

State Court Judge Phillip Shepherd set a precedent by issuing an order granting four environmental groups’ motion to intervene in a lawsuit between the State Energy and Environment Cabinet and defendants, ICG and Frasure Creek Mining, the two largest coal companies in Kentucky. The ruling marks the first time a third party intervention has been allowed in a state proceeding between a potential Clean Water Act violator and a state agency in Kentucky.

The plaintiffs in the case include Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance as well as four individual citizens.

Saying it would be “an abuse of discretion to deny those citizens and environmental groups the right to participate in this action,” Judge Shepherd ordered that the groups be allowed to fully participate in the legal proceedings leading up to a June 14th hearing on whether the proposed settlement between the Cabinet and the coal companies is “fair, adequate, and reasonable, as well as consistent with the public interest.”

“We look forward to working cooperatively with the Kentucky Energy and Environment Cabinet to execute the Judge’s orders to conduct additional inquiry and get to the bottom of this case,” said Donna Lisenby, Director of Water Programs for Appalachian Voices.

The case was brought against the coal companies by the Kentucky Energy and Environment Cabinet in December, in response to a 60-day Notice of Intent to Sue filed by the environmental groups in October 2010. The original notice alleged 20,000 violations of the Clean Water Act, with potential fines of $740 million for the companies. The Cabinet’s proposed settlement attempted to fine the coal companies a combined total of only $660,000.

The environmental groups moved to intervene in the proposed settlement between the state and the coal companies, providing evidence that the state’s plan did not sufficiently address the alleged violations or deter future violations. The judge ordered the Kentucky Energy and Environment Cabinet to allow public comments on the case, eventually receiving many letters from citizens across the state.

Judge Phillips summed up the key reasons for granting the intervention in his order, stating “The Cabinet, by its own admission, has ignored these admitted violations for years. The citizens who brought these violations to light through their own efforts have the legal right to be heard when the Cabinet seeks judicial approval of a resolution of the environmental violations that were exposed through the efforts of these citizens. In these circumstances, it would be an abuse of discretion to deny those citizens and environmental groups the right to participate in this action, and to test whether the proposed consent decree is “fair, adequate, and reasonable, as well as consistent with the public interest.”

“We are very pleased with the decision, which will allow us to conduct depositions and other discovery,” said Peter Harrison, a third year law student with the Pace Environmental Litigation Clinic who argued on behalf of the environmental organizations and citizens in court last month. “By allowing our intervention, the judge has ensured that the people’s interest in clean, healthy waters will be adequately represented as we move forward.”

“Enforcement of clean water laws, enacted to protect the public from harmful pollution, was intended to be a transparent process,” said Attorney Mary Cromer of the Appalachian Citizens’ Law Center and counsel for the plantiffs. “By allowing intervention, the Court has made sure that will be the case. This is a major victory for the citizens of Kentucky.”

Community members like Ted Withrow, a member of Kentuckians for the Commonwealth, were encouraged by the decision. “For over 100 years the people of Kentucky have been blocked by King Coal and the government they control, from redress of wrongs inflicted upon them,” said Withrow. “Judge Shepherd is to be commended for his brave action in upholding the rights of the people. He has put his finger on the scales of justice today and attempted to bring balance.”

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For interviews and images, please contact sandra@appvoices.org.
Visit www.appvoices.org/kylitigation/ for details.
For video from the court room in January, please see: Kentucky Legal Action Update

Come Out and Fight for Clean Water

Friday, February 4th, 2011 - posted by eric

Attention Boonies!

Come out this Monday night to support strong new regulations on coal tar based asphalt sealants, the source of the Hodges Creek fish kill last summer.

The Boone Town Council will be having a public hearing on Monday, February 7th at 7:00pm at the Boone Town Council Chambers (next to the police station on 321 and in front of K-mart). We need everyone to come out and speak in favor of a newly proposed ban on coal tar based asphalt sealants, in the town of Boone. If you don’t want to speak that’s ok too, just come out to show your support.

Here is the proposed new rule.

Help keep this from ever happening again: