Protecting Kentucky Waterways

Clean Water Advocates Bring Legal Action Against Kentucky Coal Companies

Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper, Waterkeeper Alliance and private citizens are pursuing legal action against three mining companies in Kentucky for over 20,000 violations of the Clean Water Act.

Legal case #1 – ICG and Frasure Creek

In October of 2010, Appalachian Voices and partners filed a legal action against two of the largest mountaintop removal coal mining companies in Kentucky—ICG and Frasure Creek.

Through our review of Clean Water Act records (also known as discharge monitoring reports or DMRs), we found that these two companies had more than 20,000 violations of the Clean Water Act, with maximum potential fines of $740 million.

Our lawsuit alleges that the companies submitted false monitoring data and exceeded pollution discharge limits in their permits.

A rundown of the lawsuit includes:

  • October 7, 2010– We filed a 60-day intent to sue against Frasure Creek and ICG.
  • December 3, 2010– After 57 days, The Kentucky Energy and Environment Cabinet charged the coal companies with a total of over 2,700 violations and combined fines of just $660,000, in an attempt to preempt our case and prevent us from pursuing the lawsuit in federal court (the state’s fines represented less than 1/10th of 1% of the total fines allowable by the Clean Water Act). Read the settlement (.doc file)
  • December 14, 2010– Appalachian Voices and partners file a motion to intervene in the state’s proposed settlement, stating that the settlement did not sufficiently address ICG and Frasure Creek’s violations. Nor did it deter future violations, shifting responsibility for the duplicate data away from the coal companies and toward the water monitoring contractors.
  • February 11, 2011– State Judge Phillip Shepard ruled in favor of Appalachian Voices and partners, granting us limited rights for the groups to intervene in the state’s proposed settlement (allowing our legal team to join the Cabinet in collecting evidence and witness interviews against the coal companies, as well as investigating the state’s actions). The ruling marks the first time a third party intervention has been allowed in a state proceeding between a potential Clean Water Act violator and a state agency in Kentucky.
  • February 21, 2011– The Kentucky Energy and Environment Cabinet and Frasure Creek attempt to appeal the decision by requesting emergency relief to block our intervention. A week later, the state Court of Appeals denied the request, for emergency relief reasoning, “In sum, the fact that petitioners would prefer to settle their differences without submitting to the additional discovery requested by Appalachian Voices (and other groups) simply does not warrant intervention by this Court on an emergency basis. Accordingly, the requested stay must be denied.” Even though the emergency relief was denied the appeal went on to the Kentucky Supreme Court.
  • September 1-3, 2011- A three day trial was held in Franklin Circuit Court, where arguments were heard on whether the deals the Cabinet cut with Frasure Creek and ICG were “fair, adequate, and in the public interest”. For more information you can read our blog posts from the trial here: Day 1 Summary and Wrap-Up. The judge ordered all the parties into mediation. Settlement talks are still ongoing.
  • April 26, 2012– The Kentucky Supreme Court ruled in favor of Appalachian Voices and our partners. Frasure Creek and the Cabinet appealed the judge’s decision to allow our intervention in the case, but supreme court threw out this appeal saying, “an interested citizen’s not being permitted to so intervene can be a factor casting doubt upon the ‘diligence’ of the state’s enforcement efforts.”

The coal companies, ICG, a subsidiary of Arch Coal, and Frasure Creek Mining, a subsidiary of India based Essar Group, are both operating in the eastern part of Kentucky under state-issued permits that allow them to discharge limited amounts of pollutants into nearby streams and rivers. Those same permits also require industries to carefully monitor and report their pollution discharges to state officials.

Our legal team in this case consists of the plaintiffs Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper, represented by lawyers with the Appalachian Citizens’ Law Center, the Pace Environmental Litigation Clinic and the Waterworth Law Office.

Additional information on the initial ICG and Frasure Creek legal action:

Legal Case #2 – Nally & Hamilton Coal Company

On March 9, 2011, we announced another 60 day intent to sue Nally & Hamilton Coal Company for more than 12,000 violations of the Clean Water Act at more than a dozen of its operations in 7 eastern Kentucky counties.

The notice letters provide evidence indicating that Nally and Hamilton has filed false and potentially fraudulent, water pollution monitoring data with state agencies over the past three years.

Nally & Hamilton submitted reports in which all effluent data reported for a certain outfall in a certain month repeat exactly the data reported for the same outfall in other months. In other words, the company seems to have cut-and-pasted previous sets of data in later reports rather than monitoring the discharge and submitting accurate data for each month.

The company also repeatedly omitted legally required data from its reports.

If fined, the maximum allowed under the Clean Water Act could amount to potential penalties of more than $400 million.

Our legal team consists of the plaintiffs Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper, represented by lawyers with the Natural Resources Defense Council.

A rundown of the lawsuit includes:

  • March 9, 2011– We filed a 60 day Notice of Intent to Sue against Nally & Hamilton, by the next day they had taken down their website, but screen shots of it are still available here.
  • May 6, 2011– 58 days later, the Cabinet filed an administrative complaint against Nally in their own Office of Administrative Hearings, but had not reached a settlement.
  • August 23, 2011– We filed a second Notice of Intent to Sue, for an additional 5,000 violations with potential fines of up to $180 million. Read more here.
  • September 6, 2011– The Cabinet and Nally come to an agreement and file a settlement to resolve all of our claims from both notice letters.
  • November 14, 2011– Cabinet Secretary Len peters signed the agreement between the Nally and the Cabinet over our objections. You can read more about the deal here.
  • December 8, 2011– We filed a Petition for Review and Complaint, which is basically an appeal of the agreement between the Nally and the Cabinet. The appeal was filed in Franklin Circuit Court, where a decision is still pending. Click here to read more.

Additional information on the initial Nally & Hamilton legal action:

Legal case #3 – ICG and Frasure Creek (Again)

On June 28, 2011, Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance filed two sixty-day notice letters alleging that the companies, ICG and Frasure Creek Mining, exceeded pollution discharge limits in their Clean Water Act permits more than 4,000 times in the first three months of 2011.

The coal companies cited in the notice letter are all operating in the eastern part of Kentucky under state-issued permits that allow them to discharge limited amounts of pollutants into nearby streams and rivers. In October of 2010, the groups filed similar notice letters against ICG and Frasure Creek for more than 20,000 violations of the Clean Water Act, alleging that the companies had falsified discharge monitoring reports by illegally filing the same data month after month.

The groups found more than 1,400 alleged pollution limit violations by ICG in the first three months of 2011, including average monthly total suspended solids (TSS) levels that were up to 15 times higher than allowed by the permit, average monthly manganese and iron levels more than three times higher than allowed, as well as numerous pH, alkalinity and acidity violations.

The groups also found that Frasure Creek had more than 2,800 violations, including monthly average manganese levels more than 10 times higher than allowed by their permit, daily maximum iron up to 13 times higher than allowed, and daily maximum total suspended solids (TSS) up to 4.7 times higher than allowed.

The plaintiffs are being represented by Mary Cromer with the Appalachian Citizens’ Law Center, Lauren Waterworth of Boone, North Carolina, Burke Christensen of Richmond, Kentucky and the Pace Environmental Litigation Clinic in White Plains, New York.

A rundown of the lawsuit includes:

  • June 28, 2011– We filed our second round of 60 day Notice of Intent to Sue letters against Frasure Creek and ICG.
  • August 26 2011– 59 days later, the Cabinet filed complaints against ICG and Frasure Creek in their own Office of Administrative Hearings. A settlement has not yet been reached in this case.

Additional information on the second round of legal action against ICG and Frasure Creek:


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