Posts Tagged ‘Mountaintop Removal’

Déjà vu in Kentucky clean water cases

Monday, February 23rd, 2015 - posted by eric

frasure_creek

Appalachian Voices and our partners have filed a motion to intervene in a case between the Kentucky Energy and Environment Cabinet and Frasure Creek Mining to ensure clean water laws are being enforced in Kentucky.

Late last year we filed a 60-day Notice of Intent to Sue against Frasure Creek after we uncovered thousands of false water monitoring reports the company turned into the state.

The Kentucky cabinet was unaware of these false submissions and responded by filing an administrative complaint against Frasure Creek covering all of the false data we found, a common tactic for state agencies to prevent citizen involvement in this type of case. Now, we are filing a motion to become parties to the cabinet’s enforcement action.

To anyone following our lawsuits against Frasure Creek, these recent developments will sound familiar. This isn’t the first time we’ve caught the company turning in false water monitoring reports. Frasure Creek was one of three Kentucky coal companies we filed legal actions against in 2010 and 2011 for submitting falsified pollution reports that were concealing water quality violations.

In all of those cases the cabinet stepped in with slap-on-the-wrist settlements, compelling us to intervene in cases where we had brought the violations to light. The only difference in this case is that Frasure Creek and the cabinet have yet to reach a settlement, so we haven’t seen how lax the enforcement will be this time around.

Both of the cabinet’s previous settlements with Frasure Creek were thrown out by Franklin Circuit Court Judge Phillip Shepherd last December. In a scathing opinion, Shepherd stated that when “one company so systematically subverts the requirements of law, it not only jeopardizes environmental protection on the affected permits, it creates a regulatory climate in which the Cabinet sends the message that cheating pays.”

Judge Shepherd’s rulings are being appealed by the cabinet (think about that, the state agency, not Frasure Creek, is asking for an appeal). But we are hoping that this time around the cabinet will take us seriously, and won’t reach a weak settlement or resort to legal run-arounds to prevent citizen involvement. After all aren’t our state agencies supposed to be accountable to the people, not to the corporations they are supposed to regulate?

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

Read past posts about our clean water lawsuits in Kentucky. Subscribe to the Front Porch Blog to receive regular updates.

Obama budget creates opportunities for Appalachian communities

Tuesday, February 3rd, 2015 - posted by brian
The Obama administration's budget includes several proposals that would create economic opportunities in central Appalachian communities struggling to weather coal's decline.

The Obama administration’s budget includes several proposals that would create economic opportunities in central Appalachian communities struggling to weather coal’s decline.

Central Appalachian communities weathering coal’s long decline would see a boost in funding under the White House budget released on Monday.

The Obama administration’s 2016 budget calls for hundreds of millions of dollars in federal funds to be spent cleaning up abandoned strip mines, and to support economic development and workforce training in mining communities facing massive layoffs as coal is increasingly outcompeted in America’s energy mix. More than 13,000 coal jobs have been lost in central Appalachia since 2011.

One of the most significant proposals included in the budget is for an additional $200 million per year over the next five years for the federal Abandoned Mine Lands program to restore dangerous unreclaimed mines. According to the U.S. Office of Surface Mining Reclamation and Enforcement, which administers the program, additional funds would assist communities most severely impacted by coal “in a manner that facilitates economic revitalization on reclaimed lands and restored waterways.”

The program is funded through a combination of a per-ton tax on coal production and discretionary spending, but has consistently fallen short of its goals. More than $3 billion worth of high-priority sites remain unreclaimed — most of which are in central Appalachia. The Kentucky Division of Abandoned Mine Lands, for instance, lists $445 million worth of unfunded projects. Groups working in the region have called on the administration to reimagine the way funds are distributed through the program by coupling workforce development and environmental restoration.

Other funding increases called for in the president’s budget include $20 million for the Labor Department’s Dislocated Workers program to provide employment services and job training specifically for laid-off coal miners and power plant employees to help them transition to jobs in other fields. The Appalachian Regional Commission would see its $70 million budget grow by roughly one-third, with $25 million in new funding directed to communities “most impacted by coal economic transition” to support a range of economic development initiatives.

The need for job creation and economic diversification in Appalachia could not be clearer. As Congress debates the president’s budget and puts forward its own proposals in the coming months, we hope they will carefully consider ways to build a truly sustainable economy in the region.

A statement from Appalachian Voices Legislative Associate Thom Kay:

There’s a great deal the president must do to help build a robust clean energy economy and ensure that disproportionately impacted areas like Appalachia are not left behind. The Obama administration’s proposed budget shows that the White House understands the need for economic diversification in Appalachia. It shows that the calls of Appalachian communities for new opportunities have been heard.

Proposals are not actions, however, and the proposed budget may never become law. The good news is that not every action to diversify the Appalachian economy requires changes to the federal budget. We will continue to use every tool available to urge the White House to commit to turning the proposals in this budget into realities, regardless of the actions of Congress.

To protect or prosecute polluters?

Tuesday, January 20th, 2015 - posted by eric
Water flowing from one of the discharge points in eastern Kentucky where Frasure Creek Mining was turning in false water monitoring reports.

Water flowing from one of the discharge points in eastern Kentucky where Frasure Creek Mining was turning in false water monitoring reports.

Last week the Kentucky Energy and Environment Cabinet filed an administrative complaint against Frasure Creek Mining for hundreds of violations of the Clean Water Act at its mines in eastern Kentucky.

The filing comes just days before the end of the 60-day waiting period following an intent to sue letter sent by Appalachian Voices and our partners to Frasure Creek and the cabinet last November. Our notice letter described our discovery that the coal company had falsified pollution records over the course of 2013 and 2014, racking up almost 28,000 violations that state regulators failed to notice.

The cabinet’s filing includes all of the violations identified by Appalachian Voices and our partners. Under the Clean Water Act, the state’s action essentially preempts our ability to pursue a federal lawsuit.

Four years ago, when we first revealed that Frasure Creek had been falsifying records, the cabinet preempted our lawsuit by reaching a settlement with the company without our knowledge or participation. Later we were allowed to intervene in the settlement between the cabinet and Frasure Creek, a right which was upheld by the Kentucky Supreme Court.

Because the cabinet only filed a complaint and not a settlement in the latest case, we do not know how vigorous its enforcement will be. But if past enforcement is any guide, then one could expect it will not be very strong. The cabinet’s earlier enforcement actions against Frasure Creek were so paltry that they were thrown out in a recent court ruling, and were clearly not strong enough to ensure that Frasure Creek was in compliance since the company returned to submitting false water monitoring reports.

We will have to wait and see if the cabinet is going to take its responsibility to protect the people and water of Kentucky from dangerous pollution seriously. In the meantime, Appalachian Voices and our partners will continue to do whatever we can to ensure that Frasure Creek and other polluters are held accountable for their actions.

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

An interview with Christopher Scotton, author of “Secret Wisdom of the Earth”

Thursday, January 8th, 2015 - posted by brian
Christopher Scotton. Photo courtesy of Grand Central Publishing.

Christopher Scotton. Photo courtesy of Grand Central Publishing.

By Brian Sewell

“Secret Wisdom of the Earth,” the debut novel by Christopher Scotton released this week, is a coming-of-age story that takes familiar themes — tragedy and the quest to find healing — and explores them with the backdrop of a Central Appalachian community beset by mountaintop removal coal mining.

Set in 1985 in the fictional Medgar, Ky., a richly conceived town full of even richer characters, “Secret Wisdom of the Earth” traces the summer 14-year-old Kevin Gillooly spent at his mother’s childhood home in the mountains, as he comes to grips with the tragic death of his younger brother.

With Kevin as the narrator, Scotton weaves together stories spanning generations of Medgar residents, close friends and unabashed enemies, including many who are struggling with questions of identity and whether or not to abide by the bounds of tradition.

Mountaintop removal, at first, is depicted as a pervasive but rarely-seen evil encroaching on Medgar, with a prideful, blustering coal baron acquiring more and more land surrounding the town. Ultimately, however, it’s the friction created in the small community by mountaintop removal that precipitates a spellbinding story of family, friendship and overcoming the odds that will change Kevin’s life and the town of Medgar forever.

Released on Jan. 6, the ambitious novel is popping up on lists of new and noteworthy titles and editor’s picks. On Jan. 11, Scotton will start a 15-date reading tour, stopping in many cities in Appalachia and across the Southeast.

After reading an early release of the novel, we spoke with Scotton about its heartrending themes, its Appalachian setting and his enduring relationship to the region.

Brian Sewell: You started working on the novel more than a decade ago. Looking back, can you talk about how you initially conceived of the story and went about shaping it into the novel we get to enjoy today?

Christopher Scotton: The kernel of the idea came to me when I was in my twenties. I met a friend’s mother, who was this beautiful women that had this intrinsic sadness about her. I don’t know if you’ve met people like that that have a facade of happiness, but in their unguarded moments you can see that there’s something not quite right. I asked my friend about it and he told me the story of how his older brother died. This was before he was born and his older brother was three and died in the most horrific accident in their front yard that you could possibly imagine, and 30 years later the mom who witnessed it still hadn’t healed. I was so absolutely aghast by that and I knew I had to write a novel about it; how could you ever possibly heal from that?

Now that I’ve become a parent many years later I can understand exactly why she would often look through me when I was talking to her at some place in the past. And now I know why, because you can’t fully heal from something like that. That spurred the idea in my head to write a novel about that awful tragedy and its effect on a family. I wanted to write a coming of age novel so I thought that having Kevin as the narrator, having him recover from that tragedy I figured would make a good story. A parent could never really recover, but maybe a sibling could.

The next question was setting. Do I locate it in the suburbs, where I grew up? When I was in my twenties, I was doing a lot of backpacking, camping and backcountry survival stuff with my college friends and I just fell in love with Appalachia. As I visited the region, I just fell in love with the people and the mountains. It’s such a beautiful place. I went down to eastern Kentucky and realized the paradox of that particular part of Appalachia and thought it would make a good backdrop for Kevin’s story.

I really didn’t connect mountaintop removal to it right away. I had started writing a story centered in eastern Kentucky. The tragedy was there, I had developed the characters, but I hit a narrative logjam and nothing was connecting. I went down to eastern Kentucky for research again and saw my first mountaintop removal mine and could not believe that this practice was allowed to go on. Once I saw that, it all clicked in; the permanent loss of the mountains in eastern Kentucky became so obviously allegorical to the loss that the main characters feel. Once I connected those two together, the rest of the story flowed so easily.

BS: Tell us about some of the other characters such as Kevin’s grandfather Pops that we really get to know. Did they emanate from the setting itself or personal experiences?

CS: I spent a lot of time in eastern Kentucky just meeting folks and listening to their stories and getting to know them. In small towns throughout Appalachia, you just meet wonderful, quirky, interesting people who you want to write about because they’re so real and interesting. You also meet some awful people, just like everywhere else. You meet wonderful people and awful people in New York City too. There are pockets of beauty and pockets of evil absolutely everywhere. A lot of the town characters that I wrote about are just folks that I observed and met while in Kentucky.

“Secret Wisdom of the Earth”, the debut novel of Christopher Scotton, is out this week. Cover photo courtesy of Grand Central Publishing.

“Secret Wisdom of the Earth”, the debut novel of Christopher Scotton, is out this week. Cover photo courtesy of Grand Central Publishing.

I didn’t have a grandfather like Pops in my life when I was an adolescent. Pops is the grandfather I wish I had and the grandfather that I hope to become; a kind of amalgamation of those two people. Everyone needs a wise mentor in their life and I didn’t have one growing up. Kevin certainly requires it given the tragedy he’s gone through. Adolescence is hard enough, even in the best of circumstances. But when you’ve gone through something like he’s gone through and layer on the guilt from his father, you need someone who can ground you, and Pops definitely does that for him.

BS: Characters like Pops challenge the simplistic images of Appalachian prevalent in media and pop culture. Could you remark on the different brands of wisdom found in the book?

CS: You could argue that in the novel there are several stereotypical characters; Paul is a gay hairdresser and you can’t get much more stereotypical than that. But the reality is that there are elements of truth in stereotypes and you see that everywhere. One thing that my trips down to eastern Kentucky, West Virginia and Virginia really taught me is that, sure, there are stereotypical folks in that region but there are many folks that don’t fit that mold and they’re probably there in equal measure. There is wisdom in both.

Pops is someone who loves the land and has the capacity to listen to the earth. He goes off by himself into the woods and just is, existing in the woods by himself. At times in my life when I have done that, when I’m off camping by myself for a few days, I listen to the earth and appreciate the earth in ways that you can’t from an office or even camping with friends. You gain so much wisdom and appreciation for how complex and interconnected the earth is when you do that.

The people in Appalachia tend to be rich just in and of itself. If a capable writer can create good characters, they can do that in any setting and any plot. Appalachia gave me great material to work with and I’m very thankful for that.

BS: You introduce mountaintop removal from an almost innocent perspective. From Kevin’s perspective it’s this off-in-the-distance, over-a-couple-of-ridgelines thing going on. But as you get deeper into the book and Kevin grows into the community, you get closer and closer to the destruction.

CS: Kevin’s experience with mountaintop removal is very similar to mine. I visited the region, eastern Kentucky specifically, three or four times before I had seen a mountaintop removal mine. I had been camping and backpacking extensively but never come across it. You really don’t see it until you get off-trail. I had no sense of what was going on.

I was down in Williamson, W.Va., and heard an explosion and asked someone what’s going on and they described the blasting. That Sunday, I snuck through a fence and climbed through the woods and came to the edge of the operation and looked over two miles of moonscape. It disgusted me. So Kevin’s experience was very much my experience.

BS: Something the novel does well, considering when it takes place, is looking at mountaintop removal as a human issue and a little-understood emerging threat that’s dividing the communities where it’s taking place.

CS: After I saw the mountaintop removal mine, I probably asked someone, “Do you have any idea what they’re doing up there?” But you talk to someone whose family member works up there, they have a very different perspective. I was struck by how it divided the folks that I talked to. I thought that was a really sad and interesting aspect of it. Those that live near it and have the put up with the devastation often hate it, but some of them have relatives that work in the mines so it really is a sad paradox.

Now the pendulum has swung to where, in towns beset by large mining operations, there seems to be a majority of folks that really don’t want it there. It’s gotten so far out of control and the damage is so well documented by organizations like yours. Certainly in 1985, when the novel takes place, and even in 2000, when I was doing the bulk of the mountaintop removal site work, there was less understanding of the damage.

BS: What’s your relationship to the region after writing “Secret Wisdom of the Earth?”

CS: Calling it a second home wouldn’t be accurate because I don’t visit as much as I would like. But I feel a kinship with eastern Kentucky and with the people there because, without their help and support and endorsement, I couldn’t have created this world in my head to tell Kevin’s story. I feel a tremendous connection to that region and the people. I’m so looking forward to spending time in the region and getting to know it again.

BS: You’re heading back to the region to do a reading soon. Have you gotten a lot of positive feedback from readers in Appalachia?

CS: A lady from a major coal-mining county in Kentucky who told me, “You did this region proud.” That was the best praise I think I’ve gotten — from someone who is from the area and felt I did the region justice, dealing with the region with humanity and with truth.

Nothing to see here

Friday, December 5th, 2014 - posted by eric
The Kentucky Energy and Environment Cabinet's attempts to rebuke critics can't make up for its failure to notice blatant Clean Water Act violations or prosecute coal company misdeeds.

The Kentucky Energy and Environment Cabinet’s attempts to rebuke critics can’t make up for its failure to notice blatant Clean Water Act violations or prosecute coal company misdeeds.

Kentucky’s environmental regulators can’t have it both ways. On one hand, the Kentucky Energy and Environment Cabinet claims it does not have enough funding to do its job. On the other hand, it says it’s doing its job just fine.

Long-standing failures of the cabinet, which regulates coal mines and other polluters, have become even more evident in light of new legal action brought by Appalachian Voices and our partners and a recent court ruling.

In a scathing opinion issued Nov. 24, Franklin Circuit Court Judge Phillip Shepherd rejected two settlements that the cabinet had reached with Frasure Creek Mining for submitting false water pollution reports several years ago. A week before Judge Shepherd’s rulings, we had filed a Notice of Intent to Sue Frasure Creek for again submitting false reports in 2013 and 2014 that again went unnoticed by the cabinet.

Not Just a Matter of Money

For years, despite clear and persistent evidence of problems, the cabinet repeatedly claimed to be fulfilling its duties under the Clean Water Act. But it was ignoring the underlying problems, including potentially illegal water pollution discharges masked by false reporting.

In response to our recent notice that Frasure Creek has perpetrated some 28,000 new violations of the Clean Water Act, the cabinet issued a press release that essentially claimed it has everything under control. The cabinet says it’s focusing on “violations as submitted” on water monitoring reports, ignoring the fact that those reports are false or could even be fraud. The release goes on to defend the cabinet’s settlements with Frasure Creek — the ones later thrown out by Judge Shepherd — and said the cabinet had been looking into Frasure Creek’s more recent violations:

The Division of Enforcement within the Cabinet has been monitoring compliance with the April 13, 2013 Agreed Order with Frasure Creek and initiated an internal compliance review in January 2014 that has identified violations as submitted on DMRs [Discharge Monitoring Reports] to the agency. Administrative action on those violations is ongoing and is pending within the agency.

Seeking to understand the validity of these claims, our lawyers submitted a formal request for the information on the cabinet’s “internal compliance review.”

In a bold showing of its own incompetence, the cabinet asked us to clarify what we meant by “[v]iolations ‘mentioned in’ the press release.” It appeared that they did not even know what they were referring to in their own press release.

Once we clarified our request, we received this convoluted response:

The phrase ‘internal compliance review’ that was used in the November 17, 2014 press release is a term used to describe the primary function of staff in the Compliance and Operations Branch of the Division of Enforcement (DENF)…. The phrase does not encompass a specific period of time with dates certain for beginning and ending the compliance process, but it is used within DENF to refer to any ongoing review. With respect to Frasure Creek, our compliance review is ongoing and underway at this time, but it has not progressed to the point where NOVs [Notices Of Violation] have been issued or referrals for enforcement action have been generated.

In plain English, the cabinet’s response essentially says it has been looking at Frasure Creek’s violations, but officials either haven’t written anything down about them yet or, if they have written anything down, they refuse to disclose it. So, just like past claims that the cabinet is doing its job, this response is empty.

The fact that the agency is strapped for cash has never been in question — even Judge Shepherd agrees. As he stated in his recent ruling:

Commissioner Scott further testified that the cabinet has been subjected to a series of major budget cuts during the last 10 years that have drastically and adversely affected the ability of the cabinet to do its job in implementing the Clean Water Act.

[T]he record in this case makes it abundantly clear that the Cabinet simply lacks the personnel and budget to effectively investigate and enforce these requirements of law.

But it’s not a lack of funding keeping the cabinet from effectively enforcing laws as much as a lack of will.

You would think that if the cabinet truly were intent on protecting the environment, they would have punished Frasure Creek to make an example of the company, rather than wasting taxpayer dollars trying to prevent citizen involvement in this case. You would also think that the cabinet wouldn’t spend its limited resources on unsuccessful legal challenges to the Environmental Protection Agency’s guidance on conductivity pollution from coal mines, or weakening water quality standards for selenium, a common coal mining pollutant.

Brown water at a Frasure Creek Mine. This is one of the discharge points that the company submitted false data for.

Brown water at a Frasure Creek Mine. This is one of the discharge points that the company submitted false data for.

The cabinet serves at the pleasure of Gov. Steve Beshear, whose strong pro-coal attitude is without doubt. In one State of the State address, Beshear went so far as to say, “Washington bureaucrats continue to try to impose arbitrary and unreasonable regulations on the mining of coal. And to them I say, ‘Get off our backs!’”

When elected officials are beholden to a single industry, as many are in Central Appalachia, it’s no surprise that regulators would be easy on that industry. But the level of corporate influence in Kentucky is out of control. Coal companies should not be able to flout the law without fear of serious prosecution. And whether the bosses like it or not, the cabinet still has the legal duty to uphold the Clean Water Act.

Could Criminal Charges Be in Store for Frasure Creek?

The cabinet and other Kentucky officials have generally ignored or dismissed the possibility that the false reporting was intentional fraud. But recent cases of laboratory fraud in West Virginia make criminal prosecution seem more feasible. One case involved discharges from coal mines where a lab employee was collecting water samples from a “honey hole,” a spot known to have good water quality, rather than from the actual pollution discharges. In another, a contract employee was reusing data from previous water monitoring reports because they had failed to pay their laboratory.

In a statement that indicates a criminal investigation should ensue, Judge Shepherd wrote:

The conditions observed by the cabinet’s inspectors during the performance audit of Frasure Creeks’ so-called “laboratory” demonstrated either a plan or scheme to submit fraudulent information in the DMRs or incompetence so staggering as to defy belief.

Kentucky Attorney General and gubernatorial hopeful Jack Conway has vowed to look into the new Frasure Creek violations. But several years ago, his team looked into the previous violations and told reporter Ronnie Ellis that they couldn’t find anything “that rises to the level of intent or criminal fraud that’s ready to be prosecuted.”

The cabinet’s dismissive attitude toward the seriousness of environmental problems in Kentucky is unsurprising given the state’s political climate, not to mention the fact that the Frasure Creek cases expose the agency’s utter incompetence. But the jig is up. It’s time for the cabinet to either start doing its job or step aside and let the EPA do it instead.

What will Obama’s legacy be on mountaintop removal?

Wednesday, December 3rd, 2014 - posted by thom
After six years of the Obama presidency, mountaintop removal is still putting communities are at risk, leading many to wonder what his environmental legacy will be.

After six years of the Obama presidency, mountaintop removal continues to put Appalachian communities at risk, leading many to wonder what his legacy on the issue will be.

The Obama administration has taken steps to limit mountaintop removal coal mining pollution in Appalachia. The president and agency officials have also made quite a few promises. But mountaintop removal continues, so what have they actually done?

The Alliance for Appalachia, a coalition of groups including Appalachian Voices, just released a Grassroots Progress Report examining the administration’s successes and shortfalls in dealing with mountaintop removal. There have been successes, to be sure, but as the report clearly demonstrates, there have been many failures.

Large scale surface coal mining is still a huge problem in Central Appalachia. Although the pace has slowed due to the declining coal economy, many new permits are issued every year. In 2013 Virginia issued 9 new surface mining permits and 2 acreage expansions, West Virginia issued 25 new permits, and Kentucky issued 30. Only Tennessee issued no new permits. - Grassroots Progress Report

The report covers not only the scale of ongoing mining, but paints a clear picture of the costs that mountaintop removal continues to have on Appalachian communities. The poor economic outcomes and human health problems associated with mountaintop removal have not improved over the past six years. These issues are closely linked, and neither can improve without action from the White House.

The White House has already made commitments. A 2009 Memorandum of Understanding, signed by all of the relevant regulatory agencies, outlined a series of actions the administration was prepared to take to deal with mountaintop removal. The Alliance report goes through those commitments one by one, pointing out the shortcomings of the actions taken, and the failure of the administration to take further, stronger actions.

The report is not simply a list of grievances, however. There are four policy recommendations as well.

1) a Selenium Standard to ensure that citizens maintain the ability to test for selenium pollution in their own water,
2) a strong Conductivity Rule based on scientific research US EPA has already conducted because we, and our federal agencies, know that high conductivity can be a key measure of dangerous water,
3) a Stream Protection Rule that preserves a strong stream buffer zone requirement so that mining waste can no longer be dumped into our streams, and
4) a strong Minefill Rule to address the currently unregulated dumping of coal burning waste into abandoned mine sites.

If you’re interested in what the Obama administration has and has not done in dealing with mountaintop removal coal mining in Appalachia, take a moment to read the one-page summary or the full report.

Kentucky court sides with citizens and environment

Tuesday, December 2nd, 2014 - posted by eric

Viewed through a swing set on a nearby resident’s yard, this is one of Frasure Creek Mining’s many valley fills at their numerous Mountain Top Removal coal mines.

Last week, Appalachian Voices and our partner organizations won a major victory in the Kentucky courts when a judge overturned two slap-on-the-wrist settlements that the Kentucky Energy and Environment Cabinet had reached with Frasure Creek Mining a few years ago.

These cases began in 2010, when we uncovered blatantly false water monitoring reports that Frasure Creek was submitting to state regulators. The judge’s decision comes just one week after Appalachian Voices and our partners filed a 60-day Notice of Intent to Sue Frasure Creek for returning to their practice of submitting hundreds of false water monitoring reports called Discharge Monitoring Reports or DMRs.

Appalachian Voices is joined in these efforts by Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance, jointly represented by Mary Cromer of Appalachian Citizens’ Law Center, Lauren Waterworth and the Pace University Environmental Litigation Clinic.

Franklin County Circuit Judge Phillip Shepherd’s opinion is scathing and in many places simply speaks for itself:

The Cabinet took the position that it did not have sufficient evidence to support a claim of intentional submissions of knowingly false data, or fraud, by the Defendant or its contract lab…. The Cabinet took this position notwithstanding… that the signatures of the DMRs were often dated prior to the sampling that was being reported, and that multiple DMRs appear to be simply photocopies of prior reports without any evidence that actual sampling took place. The conditions observed by the Cabinet’s inspectors during the performance audit of Frasure Creeks’ so-called “laboratory” demonstrated either a plan or scheme to submit fraudulent information in the DMRs or incompetence so staggering as to defy belief. [Emphasis added]

The opinion goes on to make several other very important points:

The Cabinet chose to limit its investigation to reporting errors…, and not to investigate substantive pollution violations though there were indications of such violations

The integrity of the regulatory process is based on the accurate reporting of monitoring data. If the Cabinet suspects pollution violations but only investigates and assesses penalties for administrative reporting violations, the Cabinet creates incentives for inaccurate reporting or failing to report as opposed to honest reporting that reveals pollution violations.

The Court finds that the economic benefit realized by Frasure Creek in using a substandard laboratory with systematic problems in its DMRs, far exceeds the civil penalty agreed to by the Cabinet.

When one company so systematically subverts the requirements of law, it not only jeopardizes environmental protection on the affected permits, it creates a regulatory climate in which the Cabinet sends the message that cheating pays. [Emphasis added]

[T]he record in this case makes it abundantly clear that the Cabinet simply lacks the personnel and budget to effectively investigate and enforce these requirements of law. [Emphasis added]

Valley fill and pond at a Frasure Creek Mining MTR site.

Valley fill and pond at a Frasure Creek Mining MTR site.

Judge Shepherd actually issued two rulings, one on each of the two cases against Frasure Creek that were before him. The first case was based on the false water monitoring reports that we uncovered in 2010. The cabinet entered a settlement with Frasure Creek with miniscule fines compared to what is allowed under the Clean Water Act. We then challenged that weak settlement in court. In last week’s ruling, the judge threw out the settlement because it is not “fair, reasonable or in the public interest”.

The second case was based on pollution problems that became evident once Frasure Creek’s false reporting subsided. We intervened in that case and were made full parties to an administrative case that the Cabinet brought against the company (though the Cabinet only brought this case because we had already filed a Notice of Intent to Sue for pollution problems in question). Even though we were full parties to the case, the Cabinet and Frasure Creek reached another sweetheart settlement without our involvement. Judge Shepherd found this had violated our due process rights and threw out the settlement, sending the case back to administrative court.

Both of these decisions could be appealed, and since previous settlements were simply thrown out, the actual violations are still unresolved. We will have to wait and see how these outstanding issues play out. Nonetheless, this is still a great step forward, and a great vindication of citizens’ right to protect their environment.

Environmental agency asleep at the switch?

Friday, November 21st, 2014 - posted by tom
Water flowing from one of the discharge points in Floyd County, Ky., that Frasure Creek Mining was turning in false water monitoring reports about.

Water flowing from one of the discharge points in Floyd County, Ky., that Frasure Creek Mining was turning in false water monitoring reports about.

At first, I couldn’t believe what our Appalachian Water Watch team had discovered earlier this year: almost 28,000 violations of the Clean Water Act by a single company in the coal counties of eastern Kentucky. It appeared to be the most extensive incident of non-compliance in the law’s 42-year history.

Frasure Creek Mining had duplicated or otherwise falsified hundreds of the water pollution reports it’s required to send to the state. Equally impressive is the fact that, over the course of a full year and a half, state regulators apparently failed to notice.

It’s shocking – but alas, not a surprise. This level of callous disregard for the laws meant to protect our health, safety, and natural heritage is all too common among Appalachia’s coal companies, regulators and often politicians. Here’s a short list.

  • An employee of a major W.Va.-certified lab pled guilty in October to faking water quality samples for coal companies — not just a few times, but for six years.
  • Last week, Tennessee fined three companies owned by Jim Justice $1.36 million for failing to submit pollution reports at 25 coal facilities, all of which had been warned twice. The companies appealed the fines, as is the MO for Justice-owned companies.
  • Don Blankenship, CEO of Massey Energy when 29 miners died in 2010 at the company’s Upper Big Branch mine in W. Va., was indicted in November on four criminal counts for conspiring to willfully violate safety rules, conceal violations, and then lying about it.
  • According to a recent investigation by National Public Radio, 9 out of 10 coal mining companies with the highest unpaid fines for safety violations are in Appalachia, ranging from $1 million to almost $4.5 million, with a total of 9,839 violations.

Back to Frasure Creek Mining, this wasn’t the first time we’d caught the company falsifying pollution records and found the state apparently asleep at the switch. In 2010, Appalachian Voices discovered 9,000 violations over a two-year period. We and our allies in Kentucky took legal action to compel the state to enforce the law, and the company to comply.

The pattern is clear. Coal companies continue to benefit from a widespread failure to enforce the law that is devastating the land and water and communities’ health. The toll on the citizens and communities of Appalachia is equally clear –- higher than average rates of cancer and birth defects, persistent poverty, poisoned streams, and a deep-rooted sense of place rocked by the blasts of explosives that flatten mountain after mountain.

With this in mind, Appalachian Voices and our partners served Frasure Creek Mining on November 17 with a notice of our intent to sue for the recent spate of Clean Water Act violations. The fight for justice continues.

For the waters,
Tom

PS: See this excellent article from the New York Times.

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

Citizens File Against KY Coal Company for Falsifying Water Pollution Reports

Monday, November 17th, 2014 - posted by cat

State regulators ignore clean water protections and enforcement

CONTACTS

Erin Savage, Appalachian Voices, 828-262-1500, erin@appvoices.org
Ted Withrow, Kentuckians For The Commonwealth, 606-784-6885 (h) or 606-782-0998 (c), tfwithrow@windstream.net
Pat Banks, Kentucky Riverkeeper, 859-200-7442, kyriverkeeper@eku.edu
Pete Harrison, Waterkeeper Alliance, 828-582-0422, pharrison@waterkeeper.org

Eastern Kentucky – Over the course of 2013 and 2014, Frasure Creek Mining – one of the largest coal mining companies in Kentucky – sent the state false pollution reports containing almost 28,000 violations of federal law, and the Kentucky Energy and the Environment Cabinet failed to detect the falsifications, according to a letter of notification served to the company by four citizen groups. It was the second time the groups have taken legal action against Frasure Creek for similar violations.

In a 30-page notice of intent to sue mailed Friday, the groups document that Frasure Creek duplicated results from one water pollution monitoring report to the next, misleading government officials and the public about the amount of water pollution the company has been discharging from its eastern Kentucky coal mines. In some cases, Frasure Creek changed only the values that would have constituted violations of pollution limits in the company’s discharge permits. With a potential fine of $37,500 per violation, the maximum penalty could be more than $1 billion.

The notice letter was sent by Appalachian Voices, Kentucky Riverkeeper, Kentuckians For The Commonwealth 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. Under the Clean Water Act, citizens must give the government 60-days notice of their intent to sue for violations. If Frasure Creek fails to correct the violations within the 60-day time period, the groups said they will file suit in federal court.

>>The notice letter can be downloaded here.

Four years ago, the groups found that Frasure Creek had sent similar falsified pollution reports, copying data from one report to the next. When the violations were brought to light, the state cabinet gave the company a minimal fine and promised reforms to ensure the agency would identify misreporting in the future. However, according to the notice served yesterday, the more recent duplications are even more extensive, and the state again failed to detect the violations or take enforcement action.

“Copy and paste is not compliance,” said Eric Chance, a water quality specialist with Appalachian Voices. “The fact that Frasure Creek continued to flout the law to this extent, even after being caught before, shows it has no regard for the people and communities they are impacting. Equally disturbing is the failure of state officials to act to stop the obvious violations. We’re not sure state officials even look at the quarterly reports.”

Frasure Creek has filed false reports or violated permit limits at more than 70 discharge points from the company’s numerous coal mines across eastern Kentucky. In the first quarter of 2014, more than 40% of the all reports filed by Frasure Creek contained data that the company had already submitted in 2013. These violations occur primarily at mines in Floyd County, but also at mines in Pike, Magoffin, Knott and Perry counties. The impacted waterways include tributaries of the Big Sandy River, Licking River and Kentucky River.

“The Clean Water Act absolutely depends on accurate reporting of pollution discharges. False reporting like this undermines the entire regulatory framework that safeguards the people and waters of Kentucky from dangerous pollution,” said Waterkeeper Alliance attorney Pete Harrison. “By all indications, this case looks like the biggest criminal conspiracy to violate the federal Clean Water Act in the history of that law. The refusal of the U.S. attorney in Lexington and the Environmental Protection Agency to bring criminal cases against Frasure Creek is just as inexcusable as the state’s failure to bring this company into compliance.”

“Once gain we find ourselves in the position of having to take action against Frasure Creek for the exact same type of violations we found four years ago. The Environmental Cabinet says they do not have the personnel to enforce the Clean Water Act. I would add they do not have the will to do so,” said Ted Withrow with Kentuckians For The Commonwealth.

When the citizen groups made those violations public four years ago, the cabinet attributed the false reporting to “transcription errors” and attempted to let Frasure Creek off the hook with minimal fines and no consequences if the violations continued. That case is still pending in Franklin Circuit Court. Though the false reporting stopped for a short time, during those months when accurate monitoring reports were submitted the pollution levels spiked.

“Frasure Creek’s false reports are hiding very serious water pollution problems,” said Kentucky Riverkeeper Pat Banks. “It’s reprehensible that our state officials are ignoring the serious consequences of this illegal activity for the people and the economy of eastern Kentucky.”

“We cannot make an economic transition in eastern Kentucky without clean water for the future,” added Withrow. “More than 28,000 violations of the Clean Water Act cannot be swept under the rug.”

###