Clean Water Advocates Bring Legal Action Against KY Coal Companies

October 7, 2010
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Donna Lisenby for Appalachian Voices, 828-262-1500
Pat Banks for Kentucky Riverkeeper, 859-622-3065
Ted Withrow for Kentuckians For The Commonwealth, 606-784-6885
Karl S. Coplan for Pace Environmental Litigation Clinic, 914-422-4343
John Bianchi for Waterkeeper Alliance, 212-576-2700
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Falsified Monitoring Data in Violation of Federal Law Among the Groups’ Claims


Eastern Kentucky, October 7, 2010 – A coalition of environmental and social justice organizations and private citizens took the first step today in bringing a lawsuit against three mining companies in Kentucky for violations of the Clean Water Act. Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance filed a sixty-day notice letter alleging that the companies ICG Knott County, ICG Hazard, and Frasure Creek Mining, a subsidiary of Trinity Coal, exceeded pollution discharge limits in their permits, consistently failed to conduct the required monitoring of their discharges and, in many cases, submitted false monitoring data to the state agencies charged with protecting the public. Joining in the lawsuit were several local residents impacted by the dumping of mining waste into Kentucky’s waterways.

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. Those same permits also require industries to carefully monitor and report their pollution discharges to state officials. These monitoring reports are public documents that can be reviewed by anyone who asks for them.

Among the allegations cited in the notice letter are exceedances and misreporting of discharges of manganese, iron, total suspended solids and pH. The groups and local residents bringing these claims cite a total of over 20,000 incidences of these three companies either exceeding permit pollution limits, failing to submit reports, or falsifying the required monitoring data. These violations could result in fines that may exceed 740 million dollars. “The sheer number of violations we found while looking over these companies’ monitoring reports is astounding,” said Donna Lisenby of Appalachian Voices. “It shows a systematic and pervasive pattern of misinformation. These companies are making a mockery of their legal responsibility under the Clean Water Act and, more troubling, their moral obligation to the people of the state of Kentucky.”

Coal mining operations in Appalachia and across the country are notorious for the amount of water pollution that they produce on a daily basis. “Mining coal produces a whole host of pollutants that significantly impact our waterways,” stated Pat Banks, the Kentucky Riverkeeper. “When coal companies don’t bother to properly monitor and report their toxic discharges, it shows a total disregard for the health and safety of our local communities and the folks who use and enjoy these waters.”

The claims brought today may just be the tip of the iceberg when it comes to irresponsible mining reporting practices and a failure in the state’s monitoring program. A recent trip to Kentucky’s Division of Mine Reclamation and Enforcement regional offices by Appalachian Voices’ Waterkeeper found stack after stack of discharge monitoring reports (DMRs) from more than 60 coal mines and processing facilities covered in dust on the desks of mine inspectors’ secretaries. They did not appear to have been evaluated for compliance by the regulators for more than three years. A sampling of the reports showed hundreds of repeated violations by coal mine operators in the state.

“Our state officials have closed their eyes to an obviously serious problem,” said Ted Withrow, the retired Big Sandy Basin Management Coordinator for the Kentucky Division of Water and a member of Kentuckians For The Commonwealth. “These are not small exceedances – some are over 40 times the daily maximum. This should have been a red flag.”

The allegations of falsification of monitoring reports is another in a long list of recent black eyes for the coal industry, which is under widespread pressure to clean up its destructive practices and take responsibility for its enormous and devastating ecological footprint. “The coal industry has proven time and again that it can’t be trusted. It continually downplays its severe environmental impacts, places profit over worker safety and offers false economic analysis to try to keep its inherently destructive practices alive,” said Scott Edwards, Director of Advocacy for Waterkeeper Alliance. “And now, we know they’re not honest in reporting on matters that impact the health of communities where they operate.”

“The Clean Water Act allows citizens to bring polluters into court when government chooses to look the other way,” said Withrow. “In Kentucky, our Department of Natural Resources and Division of Water are required to provide oversight of the permits they issue to the coal industry to ensure compliance. We intend to do what our government won’t; that is, enforce the law and put an end to these illegal practices.”

Under the Clean Water Act, the companies have sixty days to respond to the allegations made in the notice letter. If, at the end of that period, all violations have not been corrected, the groups and individuals plan on filing a complaint in federal court for the Eastern District of Kentucky. The plaintiffs are being represented by lawyers with the Appalachian Citizens’ Law Center, the Capua Law Firm, the Pace Environmental Litigation Clinic and the Waterworth Law Office.

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