Clean Water Legal Action

Protecting Water in Central Appalachia

Appalachian Voices and its partners pursue legal action against the most egregious violators of the Clean Water Act and other mining laws.

Frasure Creek Mining

Plaintiffs: Appalachian Voices, Kentuckians for the Commonwealth, Kentucky River Keeper, Waterkeeper Alliance

    Representation: Mary Cromer at Appalachian Citizens’ Law Center, Lauren Waterworth, and Pace Environmental Litigation Clinic

    Overview: In October 2010, Appalachian Voices and its partners filed a 60 day notice of intent to sue under the Clean Water Act against Frasure Creek Coal Company for more than 10,000 violations of the Clean Water Act in Eastern Kentucky. The violations were identified by Appalachian Voices when reviewing Clean Water Act compliance records (referred to as discharge monitoring reports or DMRs). State-issued permits allow coal companies to discharge limited amounts of pollutants into streams, but require the companies to carefully monitor and report their pollution discharges to state officials.

    The violations identified included false, potential fraudulent Clean Water Act compliance records (referred to as discharge monitoring reports or DMRs). Some DMRs contained identical effluent data for different dates or outfalls, while others had different data submitted in multiple reports for the same outfall on the same dates. The Kentucky Energy and Environment Cabinet had failed to address, or even identify these violations. Under the Clean Water Act, these violations could result in hundreds of millions of dollars in fines.

    After 57 days, the Kentucky Energy and Environment Cabinet charged Frasure Creek with a total of 1,520 violations and combined fines of just $310,000, in an attempt to preempt our case. In response Appalachian Voices and partners filed a motion to intervene in the state settlement, which was granted in State Circuit Court. Frasure Creek and the Cabinet appealed our intervention, but the decision was uphealed in the Kentucky Supreme Court.

    After Frasure Creek began reporting more accurate DMR data in 2011, Appalachian Voices identified more than 2,800 permit limit violations. After an evidentiary hearing held in September, 2011, Judge Phillip Shepherd ordered all parties to mediation.

    Current Status: The case is still active in state court.

    Learn more here

    International Coal Group

    Plaintiffs: Appalachian Voices, Kentuckians for the Commonwealth, Kentucky River Keeper, Waterkeeper Alliance

    Representation: Mary Cromer at Appalachian Citizens’ Law Center, Lauren Waterworth, and Pace Environmental Litigation Clinic

    Overview: In October 2010, Appalachian Voices and its partners filed a 60 day notice of intent to sue under the Clean Water Act against International Coal Group for more than 10,000 violations of the Clean Water Act in Eastern Kentucky. The violations were identified by Appalachian Voices when reviewing Clean Water Act compliance records (referred to as discharge monitoring reports or DMRs). State-issued permits allow coal companies to discharge limited amounts of pollutants into streams, but require the companies to carefully monitor and report their pollution discharges to state officials.

    The violations identified included false, potential fraudulent Clean Water Act compliance records (referred to as discharge monitoring reports or DMRs). Some DMRs contained identical effluent data for different dates or outfalls, while others had different data submitted in multiple reports for the same outfall on the same dates. The Kentucky Energy and Environment Cabinet had failed to address, or even identify these violations. Under the Clean Water Act, these violations could result in hundreds of millions of dollars in fines.

    After 57 days, the Kentucky Energy and Environment Cabinet charged the coal companies with a total of 1,245 violations and a fine of just $350,000, in an attempt to preempt our case. In response Appalachian Voices and partners filed a motion to intervene in the state settlement, which was granted in State Circuit Court.
    After ICG began reporting more accurate DMR data in 2011, Appalachian Voices identified more than 1,400 pollution limit violations by ICG in the first three months of 2011. After an evidentiary hearing held in September, 2011, Judge Phillip Shepherd ordered all parties to mediation.

    Current Status: Settled. On October 12, 2012, a final settlement was approved. The settlement includes a robust 3rd party auditing program to ensure accurate reporting, $575,000 in penalties that will go towards water quality programs in Eastern Kentucky and set penalties for future violations.

    Learn more here

    Nally & Hamilton Enterprises

    Plaintiffs: Appalachian Voices, Kentuckians for the Commonwealth, Kentucky River Keeper, Waterkeeper Alliance

    Representation: Cassie Rahm, Aaron Colangelo, and Steve Fleischli from Natural Resources Defense Council

    Overview:

    In March 2011, Appalachian Voices and its partners filed a 60 day notice of intent to sue under the Clean Water Act against 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. We later identified 5,000 additional violations in a second notice of intent to sue.

    The violations identified included false, potential fraudulent Clean Water Act compliance records (referred to as discharge monitoring reports or DMRs). Nally & Hamilton submitted DMRs 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. The company also repeatedly omitted legally required data from its reports. The maximum fine allowed under the Clean Water Act could amount to more than $580 million. These violations had not been identified by the Kentucky Energy and Environment Cabinet.

    The Cabinet filed an administrative complaint, 58 days after we filed our first notice letter, in an effort to preempt our case. We filed for intervention in the State Court case and filed the case in Federal Court as well. We were allowed to intervene in the state settlement in name only and were not permitted any meaningful participation in the settlement.

    The Cabinet and Nally & Hamilton eventually reached a settlement resolving all our identified violations. The settlement included only $507,000 in penalties and no meaningful measures to assure proper compliance and monitoring in the future. The Kentucky State Court denied our appeals to the settlement, affirming the settlement between the Cabinet and Nally & Hamilton. Our federal case was dismissed in October 2012.

    Learn more here

    Penn Virginia

    Plaintiffs: Sierra Club, Southern Appalachian Mountain Stewards, and Appalachian Voices

    Representation: Appalachian Mountain Advocates

    Overview: In July, 2012, Appalachian Voices and partners filed suit against Penn Virginia Resource Partners for violations of the Clean Water Act at 14 locations on 7 former surface mining sites in Wise County, VA. Penn Virginia is a publicly traded limited partnership that leases land to coal companies. The violations include the discharge of iron, manganese, sediment, and aromatic hydrocarbons without a Clean Water Act pollution discharge permit (National Pollution Discharge Elimination System permit or NPDES permit).

    Current Status: Active case in the U.S. District Court for the Western District of Virginia

    See the press release here

    A&G Coal Corporation

    Plaintiffs: Sierra Club, Southern Appalachian Mountain Stewards, and Appalachian Voices

    Representation: Appalachian Mountain Advocates

    Overview: In May 2012, Appalachian Voices and partners filed suit against A&G Coal Corporation for violations of the Clean Water Act and the Surface Mining Control and Reclamation Act through the discharge of the toxic pollutant, selenium, from the Kelly Branch Mine in Wise County, VA. The discharge of selenium is not allowed under the mine’s current permit. Selenium is toxic to aquatic life at very low levels and accumulates in tissues of organisms over time.

    Current Status: Active case in the U.S. District Court for the Western District of Virginia

    See the press release here