Protecting Kentucky Waterways

Cross-posted from Appalachian Voices

Clean Water Advocates Bring Legal Action Against Kentucky Coal Companies

Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper, Waterkeeper Alliance and private citizens are pursuing legal action against three mining companies in Kentucky for over 20,000 violations of the Clean Water Act.

Legal case #1 – ICG and Frasure Creek

In October of 2010, Appalachian Voices and partners filed a legal action against two of the largest mountaintop removal coal mining companies in Kentucky—ICG and Frasure Creek.

Through our review of Clean Water Act records (also known as discharge monitoring reports or DMRs), we found that these two companies had more than 20,000 violations of the Clean Water Act, with maximum potential fines of $740 million.

Our lawsuit alleges that the companies exceeded pollution discharge limits in their permits and in many cases submitted false monitoring data.

A rundown of the lawsuit includes:

• October 7, 2010– We filed a 60-day intent to sue with the state of Kentucky
• December 3, 2010– After 57 days, The Kentucky Energy and Environment Cabinet charged the coal companies with a total of over 2,700 violations and combined fines of just $660,000, in an attempt to preempt our case and prevent us from pursuing the lawsuit in federal court (the state’s fines represented less than 1/10th of 1% of the total fines allowable by the Clean Water Act). Read the settlement (.doc file)
• December 14, 2010– Appalachian Voices and partners file a motion to intervene in the state’s proposed settlement, stating that the settlement did not sufficiently address ICG and Frasure Creek’s violations. Nor did it deter future violations, shifting responsibility away from the coal companies and toward the water monitoring contractors.
• February 11, 2011– State Judge Phillip Shepard ruled in favor of Appalachian Voices and partners, granting us limited rights for the groups to intervene in the state’s proposed settlement (allowing our legal team to join the Cabinet in collecting evidence and witness interviews against the coal companies, as well as investigating the state’s actions). The ruling marks the first time a third party intervention has been allowed in a state proceeding between a potential Clean Water Act violator and a state agency in Kentucky.
• February 21, 2011– The Kentucky Energy and Environment Cabinet and Frasure Creek attempt to appeal the decision by requesting emergency relief to block our intervention. A week later, the state Court of Appeals denied the request, for emergency relief reasoning, “In sum, the fact that petitioners would prefer to settle their differences without submitting to the additional discovery requested by Appalachian Voices (and other groups) simply does not warrant intervention by this Court on an emergency basis. Accordingly, the requested stay must be denied.” Even though the emergency relief was denied the appeal is still pending.
• A June 14 court date has been set for a hearing on the case.

The coal companies, ICG and Frasure Creek Mining, a subsidiary of Trinity Coal which is owned by India based Essar Group, 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.

Our legal team in this case consists of the plaintiffs Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper, represented by lawyers with the Appalachian Citizens’ Law Center, the Capua Law Firm, the Pace Environmental Litigation Clinic and the Waterworth Law Office.

Additional information on the ICG and Frasure Creek legal action

• –Full Press release
• –Notice of Intent to Sue: Frasure Creek Mining, LLC (pdf)
• –Notice of Intent to Sue: ICG Hazard, LLC (pdf)
• –Notice of intent to Sue: ICG Knott County, LLC (pdf)

Legal Case #2 – Nally & Hamilton Coal Company

On March 9, 2011, we announced another 60 day intent to sue Nally & Hamilton Coal Company for more than 12,000 violations of the Clean Water Act at more than a dozen of its operations in 7 eastern Kentucky counties.

The notice letters provide evidence indicating that Nally and Hamilton has filed false and potentially fraudulent, water pollution monitoring data with state agencies over the past three years.

Nally & Hamilton submitted reports in which all effluent data reported for a certain outfall in a certain month repeat exactly the data reported for the same outfall in other months. In other words, the company seems to have cut-and-pasted previous sets of data in later reports rather than monitoring the discharge and submitting accurate data for each month.

The company also repeatedly omitted legally-required data from its reports.

If fined, the maximum allowed under the Clean Water Act could amount to potential penalties of more than $400 million.

Our legal team consists of the plaintiffs Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper, represented by lawyers with the Natural Resources Defense Council.

Additional information on the Nally & Hamilton legal action:

• –Press Release
• –Notice of Intent to Sue

Read the original post here:
Protecting Kentucky Waterways