Ky coal company violating federal water law, again

Erin Savage, Appalachian Voices, 828-262-1500,
Ted Withrow, Kentuckians For The Commonwealth, 606-784-6885 (h) or 606-782-0998 (c),
Pat Banks, Kentucky Riverkeeper, 859-200-7442,
Pete Harrison, Waterkeeper Alliance, 828-582-0422,
Sean Sarah, Sierra Club, 330 338-3740,

For the fourth time in the last five years, several citizens groups have put Frasure Creek Mining on notice for violations of the Clean Water Act at numerous sites in eastern Kentucky. The groups have documented thousands of instances in which the company submitted false water quality monitoring reports, dating back to 2008, that were later shown to be masking violations of the pollution limits in its permits.

In the latest Notice of Intent to Sue sent late yesterday, the groups allege that, among other things, Frasure Creek engaged in false reporting in the very documents it submitted to correct previous false reporting.

>> Notice of Intent to Sue (pdf)
>> Appendix (pdf)

In a Notice of Intent sent last November, the groups cited thousands of instances where Frasure Creek falsified water pollution discharge monitoring reports—-mostly by submitting duplicate reports. The groups alleged that almost 50 percent of the reports filed in the first quarter of 2014 were exact duplicates of earlier reports. In the resulting enforcement action initiated by the Kentucky Energy and Environment Cabinet, the company submitted new reports for the purpose of correcting the falsified data.

But many of them also had been falsified.

“Of the discharge monitoring report data for which we were able to obtain the original lab results, 25 percent of the reports falsely reported no violation, when in fact, a violation was present on the original lab documents,” said Erin Savage with Appalachian Voices, which has been monitoring Frasure Creek’s water pollutant discharge reports for several years and caught the violations.

Raw laboratory data was made available for some of the corrected reports, which made it possible to discover the discrepancies.

“Without the raw laboratory data, this kind of false reporting is virtually undetectable,” said Lauren Waterworth, one of the attorneys for the citizen groups. “This analysis shows that without that raw data, no report from Frasure Creek can be trusted.”

In other cases, where accurate data was reported, there were numerous violations of pollution limits.

“We also see that many of the duplicate reports were masking pollution violations,” said Mary Cromer, an attorney with the Appalachian Citizens Law Center. According to the notice letter, 640 pollution violations were masked by the company’s first quarter 2014 duplicate monitoring reports. “In the corrected reports, we now see numerous effluent violations where originally there were none.”

In addition, several reports indicating there was “no flow” at monitoring sites were contradicted by field test results showing there were flows.

“It has been almost five years since we first found thousands of falsely reported Discharge Monitoring Reports submitted and signed by Frasure Creek Mining. Once again we find the same false reporting over and over,” said Ted Withrow with Kentuckians For The Commonwealth. “These reports are supposed to be a vehicle to protect people and the environment from harm under the Clean Water Act. So we are filing a Notice of Intent to Sue once again to bring this outlaw company to justice for the people of the Commonwealth. A signal must be sent that non-compliance with the law will not be tolerated.”

Frasure Creek has 60 days to respond or correct the violations before the groups can proceed with legal action.

“These most recently discovered reporting violations reveal yet another, more insidious layer of falsification by Frasure Creek and call into question the reliability of every single Discharge Monitoring Report Frasure Creek has submitted without accompanying raw data for at least the last seven years,” the groups said in the notice.

“Therefore, the citizen groups have a good faith belief that Frasure Creek has failed, and continues to fail, in its obligation to submit and maintain accurate Discharge Monitoring Reports in accordance with federal and state regulations and the terms and conditions of its [state wastewater discharge] permits.”

The notice was sent by Appalachian Voices, Kentucky Riverkeeper, Kentuckians For The Commonwealth, Waterkeeper Alliance and the Sierra Club. The groups are represented by Cromer, Waterworth and the Pace Law School Environmental Litigation Clinic.

The previous notices, first submitted in October 2010, have resulted in ongoing litigation in Franklin Circuit Court, administrative hearings in the Kentucky Energy and Environment Cabinet, and a pending federal lawsuit.