Citizens File Against KY Coal Company for Falsifying Water Pollution Reports

State regulators ignore clean water protections and enforcement

CONTACTS

Erin Savage, Appalachian Voices, 828-262-1500, erin@appvoices.org
Ted Withrow, Kentuckians For The Commonwealth, 606-784-6885 (h) or 606-782-0998 (c), tfwithrow@windstream.net
Pat Banks, Kentucky Riverkeeper, 859-200-7442, kyriverkeeper@eku.edu
Pete Harrison, Waterkeeper Alliance, 828-582-0422, pharrison@waterkeeper.org

Eastern Kentucky – Over the course of 2013 and 2014, Frasure Creek Mining – one of the largest coal mining companies in Kentucky – sent the state false pollution reports containing almost 28,000 violations of federal law, and the Kentucky Energy and the Environment Cabinet failed to detect the falsifications, according to a letter of notification served to the company by four citizen groups. It was the second time the groups have taken legal action against Frasure Creek for similar violations.

In a 30-page notice of intent to sue mailed Friday, the groups document that Frasure Creek duplicated results from one water pollution monitoring report to the next, misleading government officials and the public about the amount of water pollution the company has been discharging from its eastern Kentucky coal mines. In some cases, Frasure Creek changed only the values that would have constituted violations of pollution limits in the company’s discharge permits. With a potential fine of $37,500 per violation, the maximum penalty could be more than $1 billion.

The notice letter was sent by Appalachian Voices, Kentucky Riverkeeper, Kentuckians For The Commonwealth 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. Under the Clean Water Act, citizens must give the government 60-days notice of their intent to sue for violations. If Frasure Creek fails to correct the violations within the 60-day time period, the groups said they will file suit in federal court.

>>The notice letter can be downloaded here.

Four years ago, the groups found that Frasure Creek had sent similar falsified pollution reports, copying data from one report to the next. When the violations were brought to light, the state cabinet gave the company a minimal fine and promised reforms to ensure the agency would identify misreporting in the future. However, according to the notice served yesterday, the more recent duplications are even more extensive, and the state again failed to detect the violations or take enforcement action.

“Copy and paste is not compliance,” said Eric Chance, a water quality specialist with Appalachian Voices. “The fact that Frasure Creek continued to flout the law to this extent, even after being caught before, shows it has no regard for the people and communities they are impacting. Equally disturbing is the failure of state officials to act to stop the obvious violations. We’re not sure state officials even look at the quarterly reports.”

Frasure Creek has filed false reports or violated permit limits at more than 70 discharge points from the company’s numerous coal mines across eastern Kentucky. In the first quarter of 2014, more than 40% of the all reports filed by Frasure Creek contained data that the company had already submitted in 2013. These violations occur primarily at mines in Floyd County, but also at mines in Pike, Magoffin, Knott and Perry counties. The impacted waterways include tributaries of the Big Sandy River, Licking River and Kentucky River.

“The Clean Water Act absolutely depends on accurate reporting of pollution discharges. False reporting like this undermines the entire regulatory framework that safeguards the people and waters of Kentucky from dangerous pollution,” said Waterkeeper Alliance attorney Pete Harrison. “By all indications, this case looks like the biggest criminal conspiracy to violate the federal Clean Water Act in the history of that law. The refusal of the U.S. attorney in Lexington and the Environmental Protection Agency to bring criminal cases against Frasure Creek is just as inexcusable as the state’s failure to bring this company into compliance.”

“Once gain we find ourselves in the position of having to take action against Frasure Creek for the exact same type of violations we found four years ago. The Environmental Cabinet says they do not have the personnel to enforce the Clean Water Act. I would add they do not have the will to do so,” said Ted Withrow with Kentuckians For The Commonwealth.

When the citizen groups made those violations public four years ago, the cabinet attributed the false reporting to “transcription errors” and attempted to let Frasure Creek off the hook with minimal fines and no consequences if the violations continued. That case is still pending in Franklin Circuit Court. Though the false reporting stopped for a short time, during those months when accurate monitoring reports were submitted the pollution levels spiked.

“Frasure Creek’s false reports are hiding very serious water pollution problems,” said Kentucky Riverkeeper Pat Banks. “It’s reprehensible that our state officials are ignoring the serious consequences of this illegal activity for the people and the economy of eastern Kentucky.”

“We cannot make an economic transition in eastern Kentucky without clean water for the future,” added Withrow. “More than 28,000 violations of the Clean Water Act cannot be swept under the rug.”

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