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Appalachian Voices and Partners Challenge Kentucky’s Backroom Deal With Coal Company

Friday, May 17th, 2013 - posted by eric

Watercolors by Frasure Creek. State inspector's photos show a variety of colors of water at Frasure Creek mines.

Yesterday, Appalachian Voices and our partner organizations filed a “petition for review”, essentially an appeal of a settlement between Frasure Creek Mining and the Kentucky Energy and Environment Cabinet. This settlement lets Frasure Creek off the hook for thousands of water quality violations over the past two years, while doing little to ensure that the company fixes its water quality problems.

Our challenge of this settlement focuses on the way in which it came about. But first, a bit of background.

We have a separate case that is ongoing against Frasure Creek for submitting false water monitoring data (entire reports were duplicated and only the dates were changed). After we uncovered this problem the company began turning in more accurate reports, which for the first time showed lots of pollution problems. We then filed a second suit against Frasure Creek for thousands of these pollution problems (which had been hidden by reporting problems before our first suit). Then the cabinet also filed a complaint for these pollution violations and more like them in state administrative court (a court run by the cabinet itself).

We intervened in that case and became full parties to it, but were then shut out of it completely. In fact the settlement was entered despite our previous objections, and there is no evidence that our objections were even considered. The cabinet and Frasure Creek negotiated a settlement completely without us. The law and common sense both dictate that an agreement is not valid unless all the parties involved agree to it, and that is the basis for our challenge of this settlement yesterday.
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Appalachian Residents Push for Clean Water Protections: Cabinet’s Agreed Order Challenged for Lack of Process, Inadequate Remedies

Friday, May 17th, 2013 - posted by eric

FOR IMMEDIATE RELEASE

Appalachian Voices * Kentuckians For The Commonwealth * Kentucky Riverkeeper * Waterkeeper Alliance

CONTACTS:
• Eric Chance, Appalachian Voices, 828-262-1500, eric@appvoices.org
• Pat Banks, Kentucky Riverkeeper, 859-200-7442, kyriverkeeper@eku.edu
• Peter Harrison, Waterkeeper Alliance, 828-582-0422, pharrison@waterkeeper.org
• Ted Withrow, Kentuckians For The Commonwealth, 606-784-6885 or 606-782-0998, tfwithrow@windstream.net

Frankfort Kentucky-Continuing their campaign to make sure Kentucky’s water is safe for everyone, several groups have challenged plans by the Beshear administration to let Frasure Creek Mining “off the hook” for repeated violations of the Clean Water Act.

Appalachian Voices, Waterkeeper Alliance, Kentuckians For The Commonwealth, Kentucky Riverkeeper and several individuals (the petitioners) asked the Franklin Circuit Court Thursday to vacate an Agreed Order signed in April by Environment and Energy Cabinet Secretary Len Peters that claims to resolve all recent water quality violations by the company.

They point out that the settlement “is inadequate to address Frasure Creek’s pollution problems and prevent such harms from occurring in the future.” They called the administration’s action “arbitrary and capricious, an abuse of discretion, contrary to law, and not supported by substantial evidence.”

“This settlement lets Frasure Creek off the hook for thousands of water quality violations,” explained Eric Chance, a water quality specialist with Appalachian Voices. “For years Frasure Creek had been submitting false monitoring reports. During that time they never reported any water quality problems. After we exposed these false reports, they began using more reputable labs and started showing hundreds of water quality violations every month.

“Over the past few years Frasure Creek’s water discharges haven’t really improved and I don’t expect there to be any improvements in the water coming off Frasure’s mines from this settlement,” Chance added.

“Clean water is not just a good idea. Clean water is critical to our health and well being,” said Pat Banks with Kentucky Riverkeeper. “We have learned that we cannot be complacent. The Clean Water Act enforces the notion that if companies are out of compliance and enforcement by the state fails, then citizens can and must step in to protect our waters. That’s what we are doing here.”

The petitioners also point out that they were granted full party status in the administrative enforcement case but were shut out of negotiations between the Cabinet and Frasure Creek that resulted in the final Agreed Order.

“The Cabinet has once again systematically excluded Kentucky citizens who are fighting to protect the water they use. After bringing Frasure Creek’s false reporting and pollution to the Cabinet’s attention, the Cabinet has tried, at every step, to sweep this matter under the rug and quickly settle with the company and exclude citizens from the process,” said Mary Cromer, with the Appalachian Citizens Law Center and one of the attorneys representing the petitioners. “We bring suit against the Cabinet for failing to do what’s necessary to ensure that Frasure Creek’s pollution is cleaned up and for excluding the citizens from their rightful roles as co-enforcers of the Clean Water Act.”

“We as citizens have the right to intervene and see and participate in this process,” explained Ted Withrow with Kentuckians For The Commonwealth. “Yet the Cabinet continues to ignore the law and shield another coal company from any meaningful enforcement. This Agreed Order was done behind closed doors shutting citizens out, even though we had full rights to be part of the process.”

BACKGROUND

In June 2011, the petitioners filed a 60-day Notice of Intent to Sue, documenting more than 2,800 violations of the Clean Water Act by Frasure Creek in the first three months of 2011. After conducting its own investigation, the Cabinet filed an internal administrative enforcement action alleging many of these same violations.

In November 2011, the petitioners were granted full intervention status.

However, the Cabinet conducted negotiations with Frasure Creek without notice to and participation by the intervenors, resulting in the Agreed Order signed by Peters. Kentucky law prohibits the entry of an Agreed Order without the consent of each and every full party to the Administrative Proceeding.

The violations in this case are similar to those in a 2010 lawsuit pending in Franklin Circuit Court, in that older case false reporting made it impossible to identify pollution problems like the ones at issue in this case. In the original lawsuit, the Cabinet filed an enforcement action against Frasure Creek in Franklin Circuit Court after the same petitioners made public thousands of Clean Water Act violations. In that case, the court granted the petitioners full intervention status. So in the 2011 case, the Cabinet took a different enforcement route to avoid public intervention. However, the administrative judge also granted full intervention status.

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Tending to Appalachia’s Bright Future

Tuesday, May 14th, 2013 - posted by Cat

A word cloud created from workshops and panel sessions at the conference show the prevalence of positive thinking and themes. Courtesy of Kentuckians for the Commonwealth

I had never been to Harlan County. Sure, I’ve heard the songs, seen the movie, and know the stories, but nothing compares to being there, driving the Kentucky back roads, stopping in local shops, talking to folks.

It’s beautiful country, especially in April with the redbuds blooming and the bright greens of spring blushing up the mountainsides. It’s a friendly place – people went out of their way to make me feel welcome.

It also has more than its share of economic troubles. This is coal country, after all, where big companies haul out the black rock and most of the profits along with it. Harlan County and most of the surrounding counties have a poverty rate in the range of 20 to 28 percent.

This is not news to people living here. They know it, they live it, and they are looking at a million different ways to change it, to create Appalachia’s Bright Future. This was the name of the three-day conference in Harlan, hosted by Kentuckians for the Commonwealth a few weeks ago. It brought together more than 200 people from eastern Kentucky and beyond for an extended conversation about creating a just economy in the region. There was much discussion about what that even means, and while attendees each had a slight variation, several common themes emerged:

1. There is no silver bullet. There is no single industry or company that will turn it all around. Which is a good thing, most agreed, because a root cause of the region’s woes is being too dependent for too long on one industry.

2. There is no magic wand. No one is going to come in “from the outside” to rescue Harlan, or the rest of Appalachia’s’ coal country.

3. It’s about “leadership in place.” The future lies in nurturing home-grown entrepreneurship. Unlike a generation or two ago, young people today want to stay here, and many people who moved away want to return. This profound sense of homeplace was evident throughout the conference.

4. It’s about community and resilience, improving the quality of life and opportunity for everyone, collaborating with neighbors down the street or two counties over so that all can benefit.

5. It’s also about honoring coal miners and their families, those who have sacrificed in untold ways to help build our nation and power our modern lives, who deserve all the opportunity and benefit of a “just economy” as well.
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Kentucky’s Lab Certification- Is it strong enough?

Wednesday, May 1st, 2013 - posted by eric

Yesterday, Appalachian Voices submitted public comments on a proposed wastewater lab certification program in Kentucky. To discharge polluted water, coal companies must receive a permit under the Clean Water Act. This permit that requires companies to test wastewater and report the data to ensure it falls within the limits of the permit. In Kentucky, there are currently no standards for labs that do this type of testing.

The proposed certification program is a direct result of the lawsuits for falsified water monitoring data we filed against three of the state’s largest coal mining companies. Our investigation revealed that many coal companies were repeatedly submitting the same data and knowingly leaving out reports of any violations of their permits. After we filed these lawsuits, the Kentucky Energy and Environment Cabinet inspected the labs being used for this monitoring and found that in many cases they were not even capable of correctly performing the required tests.

This graph shows some of the inaccurate data submitted by Frasure Creek Mining before our lawsuits lead them to start using a new lab. Click to enlarge.

We believe that enforcing standards on labs used by coal companies will help ensure that labs report accurate data, and that the regulations meant to protect water and those that depend on it from dangerous pollution are effectively enforced. This proposed rule will be a big step forward and we have applauded the cabinet for its efforts to fix these problems. However, there are several weaknesses in the rule that we hope are fixed before it is finalized.

All too often the cabinet has failed to live up to its obligations to protect the people and environment in Kentucky. That is why our comments suggest that discretionary duties given to the cabinet in this rule be made mandatory. Appalachian Voices will continue to work to require the state agencies to actually enforce these standards.

>>Click here to see our comments
>>Click here to read the proposed lab certification rule
>>Click here to read the draft lab manual

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Help Protect Kentucky’s Fish from Toxic Selenium

Wednesday, February 27th, 2013 - posted by eric

Two headed trout, a result of selenium pollution. Courtesy of USFWS.

The Kentucky Energy and Environment Cabinet is currently attempting to significantly weaken the state’s water quality standards for selenium.

Selenium is a pollutant common at some coal mines that deforms and kills aquatic life. It bioaccumulates, increasing in concentration as it moves up the food chain, affecting larger fish and aquatic birds. At higher levels, selenium is toxic to people. Humans can be exposed to selenium through the water they drink and the fish they eat. Long-term exposure can damage the liver, kidneys, nervous system, and circulatory system.

Selenium pollution is expensive to prevent and to treat. By loosening standards, the cabinet is trying to protect the bottom line of polluters at the expense of the health of the state’s waterways and those that depend on them.

To learn more about selenium and why it is a problem in Kentucky, click here to read our selenium fact sheet (PDF).

Public comments are being accepted through Friday, March 1. Please help protect Kentucky’s fish from the toxic effects of selenium. Take a minute to make your voice heard by submitting a comment.

Even The Daily Show has taken note of the problem of selenium pollution in our nation’s waterways. The clip focuses on pollution from phosphate mines in Idaho, but the similarities between what happened there and what is going on in Kentucky are striking.

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Bringing Polluters to Justice — One Court Case at a Time

Friday, October 19th, 2012 - posted by molly

By Eric Chance and Erin Savage

This chart shows some of the changes in reporting by International Coal Group before and after legal action by Appalachian Voices and our allies in October of 2010.

On Oct 1., Appalachian Voices and a coalition of citizens’ groups reached a historic settlement in a Kentucky case involving some of the most far-reaching and astonishing violations of the Clean Water Act in its 40-year history.

The agreement between the citizens’ groups, International Coal Group, Inc., and the Kentucky Energy and Environment Cabinet settled a lawsuit filed by the coalition over years of false reporting and water pollution violations, caused by a failure of the state of Kentucky to enforce the Clean Water Act.

The settlement, approved by the Franklin Circuit Court on Oct. 10, includes a stipulation for ongoing third-party auditing of ICG’s water pollution monitoring and reporting to ensure the company submits accurate data to the state in the future, and also establishes stipulated fines for potential future violations.

The settlement also includes $575,000 in penalties. Although that represents a fraction of the maximum penalties allowed by the Clean Water Act, it is the highest fine ever levied by the state of Kentucky against coal companies and the first time a state court has allowed affected citizens’ groups to intervene in a Clean Water Act enforcement case. The fees are to be allocated to directly fund water quality improvements and water monitoring programs in the eastern part of the state.

In 2010, Appalachian Voices uncovered thousands of falsified pollution monitoring reports submitted by two of Kentucky’s largest coal companies, ICG and Frasure Creek Mining. In all, the analysis uncovered more than 20,000 violations of the Clean Water Act at dozens of coal mines in eastern Kentucky, from obvious duplications of data in one report to the next to contradictory reports for the same discharge points.

“The false-reporting epidemic we uncovered in Kentucky can be considered the most far-reaching and egregious noncompliance with the Clean Water Act in the law’s entire 40-year history. It’s astonishing that the cabinet could have been so oblivious,” says Waterkeeper Alliance attorney Peter Harrison.

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.

In October 2010, the environmental coalition and several individual citizens filed notices of their intent to sue ICG and Frasure Creek. In response to the coalition’s notice, the Kentucky Energy and Environment Cabinet reacted by attempting to shelter the coal companies by reaching a low settlement that contained no meaningful measures to ensure the companies would submit accurate reports in the future.

Following an objection by the citizens’ groups, the judge in the case withheld approval of the settlements, and instead allowed the coalition to intervene. The intervention was later upheld by the Supreme Court of Kentucky.

A settlement with Frasure Creek Mining has not been reached, therefore that case will move forward in state and federal court.

Appalachian Voices is also involved in a similar lawsuit against another Kentucky coal company, Nally & Hamilton, as well as two separate lawsuits against Virginia coal companies Penn Virginia and A&G Coal Corporation, all for pollution discharge violations under the Clean Water Act.

Visit appvoices.org/waterwatch/ for updates on all our legal actions to protect the waterways of Appalachia.

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Court Update on Frasure Creek and ICG Clean Water Act Cases

Monday, July 16th, 2012 - posted by Erin

A status conference was held today regarding the Clean Water Act enforcement lawsuits against Kentucky coal mining companies, Frasure Creek and International Coal Group (ICG). The conference was ordered by Judge Phillip Shepherd, of the Franklin Circuit Court in Kentucky, to update the court on progress made toward settlement in both cases.

Appalachian Voices, Kentuckians for the Commonwealth, Waterkeeper Alliance, Kentucky Riverkeeper, and four individuals originally gave notice of intent to sue both companies in 2010 and 2011 for more than 24,000 violations of the Clean Water Act. In response, the Kentucky Energy and Environment Cabinet filed its own enforcement against the companies and negotiated a settlement to resolve the violations in December of 2010. Appalachian Voices and its partners intervened in the state enforcement to challenge the settlement, which, among other deficiencies, inadequately fined the companies less than 1% of allowable fines under the law. In April of this year, the Kentucky Supreme Court set legal precedent by affirming the rights of Appalachian Voices and our partners to intervene in the state’s enforcement.

The last hearing in these cases in the Franklin Circuit Court, held in September 2011, allowed parties to present evidence on whether the state’s proposed settlement was “fair, adequate, reasonable, and in the public interest.” After that hearing, Judge Shepherd ordered the parties back to mediation. Settlement talks with both companies have been ongoing since January of this year.

In preparation for today’s conference, Judge Shepherd ordered Commissioner of the Department of Environmental Protection, Bruce Scott, to submit an affidavit detailing the status of the department’s budget and staffing. Further summary of responses by the Cabinet and Bruce Scott can be found here and here.

After hearing from the parties today, Judge Shepherd indicated that he is prepared to make a ruling on the original state settlements with the companies, but will give the parties 60 days to complete negotiation of a new settlement.

Appalachian Voices and its partners continue to work diligently to reach settlements that will be in the best interest of the people and waterways of Eastern Kentucky.

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KY Supreme Court Rules in Favor of Citizens and Water

Friday, April 27th, 2012 - posted by eric

Yesterday the Kentucky State Supreme Court ruled in favor of Appalachian Voices and our partners KFTC, Waterkeeper and the Kentucky Riverkeeper. The ruling upheld lower court rulings allowing us to intervene in a lawsuit between Frasure Creek Mining and the Kentucky Energy and Environment Cabinet.

That case was brought about in October 2010 when we filed a Notice of Intent to Sue against Frasure Creek Mining, and International Coal Group (Now an Arch Coal subsidiary) for 20,000 violations of the Clean Water Act with potential penalties of over $700 million. The bulk of these violations relate to false and potentially fraudulent reporting of water pollution levels. Under the Clean Water Act companies have limits on the amount of pollution they are allowed to release, and they are required to monitor their pollution to make sure they meet these limits.

In an effort to keep us from being able to bring a case in federal court, the coal companies reached settlements with the Kentucky Energy and Environment Cabinet, but those settlements needed to be approved by a state court. The settlements amounted to little more than a slap on the wrist; they have minimal fines and no meaningful measures to ensure that the same problems will not continue. Through the citizen suit provision of the Clean Water Act, citizen are allowed to participate in legal actions to protect public waters. Using this provision, we intervened in the state court case in order to argue that the state’s settlement was not fair, adequate and in the public interest.

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Kentucky Surface Water: The Good, the Bad, and the Ugly

Thursday, March 22nd, 2012 - posted by Erin

Depending on what you have heard about eastern Kentucky, or your own experiences there, you may have different impressions of Appalachian streams around the area. Some may envision picturesque creeks running through green valleys, while others may think of bright orange “streams” running over rip-rock.

Unfortunately, bright orange streams are commonplace in eastern Kentucky. The color is indicative of acid mine drainage, which is characterized by the oxidation of sulfide metals — in Appalachia, the compound is usually iron (II) disulfide, also known as pyrite. Fortunately not all streams in eastern Kentucky are contaminated from coal mining; however, if we do not address the main source of surface water contamination in the area — coal mining — in a few years, there may not be clean streams to protect. We must find better ways to address existing acid mine drainage and other water contamination in the area.

Photo credit: KFTC

Last week, I traveled around eastern Kentucky to meet with some of the volunteers for Appalachian Water Watch, a program created in the spring of 2011 to train and equip coal-impacted citizens to test surface water throughout their community. Through surface water testing around coal mines, citizens become better informed about threats to their water and their health, and are empowered to address water pollution issues.

My first stop was in Benham, Ky., to meet with several members of Kentuckians for the Commonwealth who live in the area. Many of them were born in the area, and several have worked as coal miners. They have all worked for many years to protect their communities against threats related to surface mining. While there has been some historical underground mining around Benham and Lynch, the immediate area is currently free of surface mines.

The result of this somewhat unique circumstance in eastern Kentucky is that rivers around Benham and Lynch have unusually high water quality, allowing the two towns to use the local rivers for municipal water. The city of Lynch receives its water from a reservoir supplied by Gap Branch and Looney Creek watersheds, which requires minimal treatment costs. The city of Benham receives its water from Kellioka coal seam to the south of Looney Creek. This source provides economic opportunities through the proposal of a water bottling operation. The water sources for both cities are all located immediately downstream of two proposed surface mines on Looney Ridge, making city-wide water contamination from future mining activities a very real threat. (more…)

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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

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