Judge Rejects Deals Over Coal Company Clean Water Act Violations

Erin Savage, Appalachian Voices, 828-262-1500, erin@appvoices.org
Ted Withrow, Kentuckians For The Commonwealth, 606-784-6885, tfwithrow@windstream.net
Pat Banks, Kentucky Riverkeeper, 859-200-7442, kyriverkeeper@eku.edu

Frankfort, KY — The Franklin Circuit Court today issued two long-awaited orders rejecting settlement deals between the Kentucky Energy and Environment Cabinet and Frasure Creek Mining arising from the coal company’s thousands of violations of the Clean Water Act from 2008 through 2011. In extraordinarily vigorous language, Judge Phillip Shepherd said that due to the coal company’s actions, “The inherent danger of the violations at issue here to the environment is impossible to determine based on Frasure Creeks’ wholesale abdication of its monitoring and reporting responsibilities, and the cabinet’s inability to fully investigate the environmental harm that is likely to have occurred.”

The orders come on the heels of legal action taken just last week by citizens groups who discovered the company had continued the same pattern of non-compliance from early 2013 through at least the first quarter of 2014, perpetrating almost 28,000 new violations of federal law. Frasure Creek has resumed submitting duplicated water pollution monitoring reports to the state, falsifying data and hiding the extent of pollution at its mines.

“These are much more than ‘paper violations.’ With each false entry on these reports, the company is deceiving regulators and the public about the pollution it may be discharging into Kentucky waters,” said Erin Savage, Central Appalachian Campaign Coordinator with Appalachian Voices. “The judge’s orders confirm what citizens have known for some time — that the state is failing to enforce the Clean Water Act in eastern Kentucky.”

In one order, Judge Shepherd rejected a settlement proposed four years ago between the cabinet and Frasure Creek that purported to address reporting violations uncovered by citizens groups. In 2010, Appalachian Voices, Kentucky Waterkeeper Alliance, Kentuckians For The Commonwealth, Kentucky Riverkeeper and several individuals filed a 60-day Notice of Intent to sue the company for more than 10,000 violations of the Clean Water Act from 2008 to 2010. Under the law, these violations could be subject to hundreds of millions of dollars in fines. On the 57th day, the cabinet and Frasure Creek entered a proposed consent agreement that included only 1,520 violations and combined fines of just $310,000.

In rejecting the deal today, Judge Shepherd writes: “The proposed consent decree is unlikely to be successful in producing a change in behavior by Frasure Creek, because the economic benefit that it obtains by taking short-cuts and submitting unreliable data far outweighs the costs of compliance, or the risk of any fines and penalties that the cabinet will impose. This case demonstrates that the fines and penalties are an acceptable cost of doing business.” >>Order on Proposed Consent Judgement

In his other order, Judge Shepherd rejected a second settlement from 2013 between the cabinet and Frasure Creek. This settlement attempted to resolve pollution permit limit violations reported by Frasure Creek once new laboratories were hired and duplicate reporting temporarily ended. The cabinet finalized the settlement over the objection of citizens groups, who claimed that the settlement’s meager fines and weak stipulations resulted in little more than a slap on the wrist. The citizens groups subsequently petitioned the court to review the settlement on grounds that it was insufficient to accomplish enforcement goals and that the cabinet’s handling of it violated their due process rights.

Again, the court has agreed: “While the cabinet may enter into an agreement with Frasure Creek, it cannot circumvent the rights of intervening parties to question that agreement, to gather evidence concerning its adequacy, and to put on proof before a hearing officer raising objections to the agreement.” >>Order Reversing Cabinet’s Final Order

“Since October 2010, we have been in the courts to see that the law be enforced in the state of Kentucky. This struggle has taken us all the way to the State Supreme Court, which ultimately upheld the rights of citizens to intervene in legal proceedings by the cabinet,” said Ted Withrow of Kentuckians For The Commonwealth. “These rulings by Judge Shepherd serve to enforce that right of the people. Our most recent Notice of Intent to sue Frasure Creek Mining for 28,000 violations of the Clean Water Act reinforces our conviction that the law is not being enforced in any meaningful way.”

At the time of the 2010 filings, Frasure Creek was one of the largest mountaintop removal mining companies in Kentucky. It continues to operate mines in Kentucky and West Virginia to this day. In all instances, the violations were discovered by Appalachian Voices water quality specialists and others who analyzed thousands of documents. As Judge Shepherd noted in one order today: “The fact that these massive reporting violations were brought to light by citizens acting independently of the cabinet further supports the conclusion that the public interest in the consent decree was not objectively considered by the cabinet prior to the intervention by the citizen intervenors in this action.”

The citizens groups are represented by Mary Cromer of the Appalachian Citizens’ Law Center (Whitesburg, KY), Lauren Waterworth of Waterworth Law Office (Boone, NC), and the Pace Law School Environmental Litigation Clinic (White Plains, NY).