Clean Water Advocates Seek to Intervene in Kentucky’s Settlement with Polluter Coal Companies


Falsified Monitoring Data in Violation of Federal Law Among the Groups’ Claims

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
Nicole Summer and Heath Fradkoff for Waterkeeper Alliance, 212-576-2700

Eastern Kentucky, December 14, 2010 – A coalition of environmental and social justice organizations today filed a motion to intervene in consent judgments in the legal action “Commonwealth of Kentucky’s Energy and Environment Cabinet vs. Frasure Creek Mining Company, LLC, et al.” Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance today filed their motion to intervene as plaintiffs to assert their specific interests in protecting the cleanliness and health of the Kentucky River, Big Sandy River, Licking River, and their tributaries.

The motion to intervene was brought forward because the groups’ interests in protecting the waters of Kentucky were not represented by the Cabinet. The groups maintain that the consent judgments reached in the Cabinet’s legal action preclude the groups from bringing citizen suits against the defendants for violations of the law and would damage the groups’ ability and authority to punish and deter violations, granted under provisions of the Clean Water Act.

“Today, we seek to intervene in the Commonwealth’s suit because the Cabinet’s settlement doesn’t go far enough in enforcement, and goes too far in leniency toward these companies, which are among Appalachia’s largest scofflaw polluters,” said Donna Lisenby. “In addition, many of the violations committed by these companies outlined in our separate suit were made possible by a lack of adequate oversight on the part of the plaintiff Cabinet. Why would you trust a body that failed to hold these companies to the law in imposing a fair settlement?”

The original suit – outlined in a Notice of Intent filed on October 7, 2010 by the groups and several local residents impacted by the dumping of mining waste into Kentucky’s waterways – alleges that ICG Knott County, ICG Hazard, and Frasure Creek Mining – a subsidiary of Trinity Coal, exceeded the pollution discharge limits specified 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.

“The creation of false reports is acknowledged in the Cabinet suit, but as the Cabinet fails to put forth any allegation for fraud or intentional false reporting, it appears that the false statements are simply considered negligence.” said Scott Edwards, Director of Advocacy for Waterkeeper Alliance. “As there is a strong possibility that these reports – many of which are carbon copies of previously submitted reports with the dates changed – were knowingly given to the Commonwealth by the defendants, this settlement begins to look like a free pass for polluters.”

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 by the groups in their notice of intent 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.

“Despite bringing these violations to the attention of the Cabinet through the Notices of Intent to Sue, we were never made part of the Cabinet’s investigations,” said Ted Withrow of Kentuckians For The Commonwealth. “We were prevented from knowing the extent to which the Cabinet represented our interests during negotiations with the Defendants, and given the insufficiencies in the proposed Consent Judgments outlined above, we believe that our interests were not fully represented by the Cabinet. Further, resolution of these actions without our participation will harm our ability to ensure that the water of Eastern Kentucky and downstream area of Appalachia are safe and clean.”

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. In the face of that disregard, we are forced to act where and when the government won’t.”

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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