Posts Tagged ‘Waterkeeper’

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

Court Victory for Clean Water in Kentucky: The Battle Continues

Friday, July 19th, 2013 - posted by eric

Acidic mine water being discharged from one of Frasure Creek’s Kentucky coal mines

Last week, an attempt by the Kentucky Energy and Environment Cabinet to toss concerned citizens out of court failed.

Judge Phillip Shepherd denied a motion to dismiss our challenge of a settlement between Frasure Creek Mining and the cabinet. Appalachian Voices and our partners KFTC, Kentucky Riverkeeper and Waterkeeper Alliance, will now be allowed to proceed with our argument that the settlement should be vacated.

In October of 2010, we filed a Notice of Intent to Sue Frasure Creek for submitting false water monitoring data. Frasure Creek and the cabinet reached a settlement for those violations, but it has not been approved by the court. Before that, the data Frasure Creek submitted to the state never showed any violations. After our legal action, they switched labs and began showing hundreds of water quality violations every month.

We attempted to sue Frasure Creek for these subsequent violations, but the cabinet filed a complaint in state administrative court for the same violations. We intervened and became full parties to that case, but then a slap on the wrist settlement was entered between Frasure Creek and the cabinet completely without our consent. Our current challenge to this settlement is based on the fact that we are full parties in the case yet we had no say in the settlement’s creation.

The cabinet attempted to get our challenge thrown out because they claimed that we did not follow proper procedures when we filed it, but the judge dismissed their arguments. Now, the cabinet must respond to the substance of our challenge.

>> Click here to read the ruling
>> Click here to read more about this challenge
>> Click here for more information on our Kentucky Litigation

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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Kentuckians Challenge Cabinet’s Order for Failing to Protect Clean Water from Coal Pollution

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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Appalachain Voices and Partners Object to Backroom Deal With Kentucky Coal Company

Monday, February 4th, 2013 - posted by eric

Frasure Creek owner, and billionaire, Ravi Ruia's yacht. Note the matching helicopter! Frasure Creek Mining is apparently on the verge of bankruptcy, but it's owners seem to be doing just fine. Click the image to learn more about the boat.

A coalition of citizens’ groups including Appalachian Voices filed objections to a proposed settlement between Kentucky’s Energy and Environment Cabinet and one of the state’s largest coal mining companies, Frasure Creek Mining. The agreement would legally resolve over a thousand water pollution violations from 2011 and 2012 at all of Frasure Creek’s mines across Eastern Kentucky, but the agreement will not fix the pollution problems.

Despite the fact that we are full parties to this enforcement action, this agreement was crafted entirely behind closed doors without us. Over and over again the cabinet has made every effort to exclude us and aid polluters. One of our objections to this settlement is that it has violated our right to due process since our names are on this agreement yet we had no say in it whatsoever.

Some of Frasure Creek's false conductivity values

Even more alarming, we expect that if this agreement is entered the cabinet will likely try to argue that this makes another ongoing case that we are involved in moot. That case is primarily based on blatantly false water monitoring reports submitted by Frasure Creek. Prior to that legal action, Frasure never admitted having pollution problems like the ones at issue in this case. It was not until they came under increased scrutiny, following our initial court filing, that they began reporting more truthful water monitoring data, uncovering the pollution violations at issue in this settlement.
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Singin’ the Catawba River Blues After Commission’s Decision On Coal Ash

Thursday, December 6th, 2012 - posted by Hallie

North Carolina, we have a problem.

The waste from burning coal, known as coal ash, continues to threaten our state’s water supply. Seepage from coal ash impoundments is contaminating North Carolina’s water at various sites throughout the state. Unaddressed in the past and denied in the present, this pollution demands a stronger fight to protect clean water, and advocates are putting up that fight.

Unfortunately, advocates for N.C.’s clean water recently lost a battle on the coal ash front. This past Monday, the Environmental Management Commission (EMC) ruled against a petition to require Duke Energy to clean up contamination resulting from 14 of their coal ash pits.

Monday’s hearing ended in a 9-2 decision that the company’s coal ash sites are exempt from the requirements of the state’s groundwater standards and therefore do not require immediate clean up.

In October, the Southern Environmental Law Center filed a formal complaint on behalf of four organizations (Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western N.C. Alliance) against Progress and Duke Energies to clean up the contamination from their coal ash ponds.

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Landmark Settlement Proposed in Kentucky Water Pollution Case

Friday, October 5th, 2012 - posted by eric

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

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

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

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

ICG Knott Conductivity

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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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Kicking Coal Ash in Carolina

Wednesday, April 18th, 2012 - posted by Madison

Photo credit: Western North Carolina Alliance

Over the past months, Appalachian Voices and our Red, White and Water campaign have continued the fight against toxic coal ash in North Carolina.

In Charlotte, Appalachian Voices teamed up with the local Greenpeace chapter to host a coal ash tour, led by award-winning reporter Rhiannon Fionn, who has covered issues related to Duke Energy’s Riverbend coal plant. Over 50 people attended the event.

More than 200 residents from Asheville and surrounding areas came out to support that message at our “Clean Water Not Coal Ash” rally on March 22 at Lake Julian Park in Arden, N.C. Held in conjunction with the nineteenth annual World Water Day, the event was co-sponsored by Appalachian Voices, the Western North Carolina Alliance and other organizations to call attention to the threat posed by coal ash to drinking water and the nation’s rivers.

Attendees listened to educational speakers including French Broad Riverkeeper Hartwell Carson, Richard Fireman of N.C. Interfaith Power and Light, Terry Clark of Physicians for Social Responsibility and affected community members like Donna Keiser discuss the negative effects of the coal cycle in their communities and what it is like to live near coal ash ponds.

In January, North Carolina’s Department of Environment and Natural Resources confirmed that coal ash ponds in North Carolina are leaching toxic heavy metals into groundwater. Despite the mounting evidence of the dangers, coal ash is treated as no more toxic than regular household garbage and the U.S. Environmental Protection Agency has delayed enacting any guidance on the substance.

To combat the EPA’s delays, Earthjustice, on behalf of Appalachian Voices and other groups, is proceeding with a lawsuit against the agency to force the release of long-awaited public health safeguards against toxic coal ash. According to the Resource Conservation and Recovery Act, which is meant to protect human health and the environment from the potential hazards of waste disposal, the EPA is required to review and revise RCRA regulations at least every three years.

To learn more and to sign a petition asking for protection from the dangers of coal ash in North Carolina, visit: appvoices.org/nc-cant-wait.

Citizen Water Monitoring Season Begins

The Appalachian Water Watch citizen monitoring program is gearing up for more stream monitoring, citizen trainings and an expanding program. Our first training of the year will be hosted by Kentuckians for the Commonwealth on May 12 as part of a larger KFTC meeting on ways to protect Kentucky’s water.

We are working with other organizations in The Alliance for Appalachia on a joint clean water protection effort by increasing participation, expanding to new locations, improving the public database and increasing equipment availability.

Kara Dodson, a familiar face for many of our volunteers, will return this summer to run trainings and provide on-the-ground support in Kentucky and Virginia. Pallavi Podaparti, a long-time KFTC member, will also be joining the Appalachian Water Watch team for the season to help with our growing demand for trainings and volunteer support.

If you know a group that would be interested in taking part in the citizen water monitoring program, please contact aww-admin@appalachianwaterwatch.org.

A Kentucky Water Check-Up

Photo credit: KFTC

Appalachian Water Watch met with members of Kentuckians for the Commonwealth throughout Harlan, Letcher, and Floyd counties in March, giving our team an opportunity to see the good and the bad in Kentucky streams.

In Harlan County, the communi ties of Benham and Lynch are working hard to protect their streams and city water from harm caused by proposed surface mines. By monitoring water quality before the mines begin work, the existing high water quality is documented.

The proposed mines are owned by Nally & Hamilton and A&G Coal Corp. Both companies have dubious environmental and safety records, and Nally & Hamilton is the defendant in one of Appalachian Voices’ ongoing Clean Water Act cases.

In Floyd County, we were alerted to acid mine drainage outside Prestonsburg. Samples taken from the site indicate an iron level of 183 milligrams per liter – more than 45 times the amount Kentucky allows active mines to discharge. KFTC staff met with the Kentucky Department of Natural Resources and will continue to monitor the site.

Join Us for World Water Day Events and Kick Some Coal Ash

Wednesday, March 14th, 2012 - posted by sandra

World Water Day is on Thursday, March 22. It is a day to not only celebrate the gift of water, but to also learn what we can do to protect this precious resource. In North Carolina, water pollution from coal ash, the residue from burning coal for electricity, is a huge state-wide problem that can no longer be ignored.

In order to educate and activate citizens who care about protecting our water, we have some great events planned in Charlotte and Asheville! We ask that you RSVP here.
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