Kentucky Coal Companies Cited for Falsified Monitoring Data in Violation of Federal Law
White Plains, N.Y., October 7, 2010 – Student interns at the Pace Environmental Litigation Clinic, under the supervision of law professors Karl S. Coplan, Robert F. Kennedy, Jr., and Daniel Estrin, took the first step today in bringing a lawsuit against three mining companies in Kentucky for violations of the Clean Water Act. Representing a coalition of environmental and social justice organizations and private citizens, including Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, and Waterkeeper Alliance, filed a sixty-day notice letter alleging that the companies ICG Knott County, ICG Hazard, and Frasure Creek Mining, a subsidiary of Trinity Coal, exceeded pollution discharge limits 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. Joining in the lawsuit were several local residents impacted by the dumping of mining waste into Kentucky’s waterways.
The coal companies cited in the notice letter are all operating in eastern 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 in the notice 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. These violations could result in fines that may exceed 740 million dollars. Speaking at a press conference call this morning, Professor Coplan said, “No one should make money by violating the Clean Water Act.”
Under the Clean Water Act, the companies have sixty days to respond to the allegations made in the notice letter. If, at the end of that period, all violations have not been corrected, the groups and individuals plan on filing a complaint in federal court for the Eastern District of Kentucky.
The claims brought today may just be the tip of the iceberg when it comes to irresponsible mining reporting practices and a failure in the state’s monitoring program. A recent trip to Kentucky’s Division of Mine Reclamation and Enforcement regional offices by Appalachian Voices’ Waterkeeper found stack after stack of discharge monitoring reports (DMRs) from more than 60 coal mines and processing facilities covered in dust on the desks of mine inspectors’ secretaries. They did not appear to have been evaluated for compliance by the regulators for more than three years. A sampling of the reports showed hundreds of repeated violations by coal mine operators in the state. Commenting during the press briefing, Robert F. Kennedy, Jr. added, “Regular, systematic open fraud that anyone could have uncovered shows the contempt that the coal industry has, not just for the law but for the state agency supposed to enforce it.”
“Our state officials have closed their eyes to an obviously serious problem,” said Ted Withrow, the retired Big Sandy Basin Management Coordinator for the Kentucky Division of Water and a member of Kentuckians For The Commonwealth. “These are not small exceedances – some are over 40 times the daily maximum. This should have been a red flag.”
The allegations of falsification of monitoring reports are another blow in a long list of recent black eyes for the coal industry, which is under widespread pressure to clean up its destructive practices and take responsibility for its enormous and devastating ecological footprint. “The coal industry has proven time and again that it can’t be trusted. It continually downplays its severe environmental impacts, places profit over worker safety and offers false economic analysis to try to keep its inherently destructive practices alive,” said Scott Edwards, Director of Advocacy for Waterkeeper Alliance. “And now, we know they’re not honest in reporting on matters that impact the health of communities where they operate.”
“The Clean Water Act’s ‘citizen suit’ provision empowers citizens to be ‘private attorneys general,’ and to bring polluters into court when government doesn’t do its job,” said Professor Estrin. The organizations bringing this legal action are taking it upon themselves to enforce the law and put an end to the illegal practices.
The Pace Environmental Litigation Clinic, which represents public interest environmental advocacy groups, has been working on this matter since April. When he first reviewed the coal companies’ monitoring reports, Professor Coplan knew it would be a good project for the students. Clinic Legal Interns drafted the notice letters and worked with the clients to assemble the appendices to the letters identifying the specific permit violations.
Peter Harrison, one of the Clinic law students who has been working on the case since June, came to Pace from Appalachia, where he was involved in grassroots environmental initiatives. “It’s gratifying to come to law school in New York and get to work on a lawsuit that we hope will make a difference in the lives of people in the South,” said Harrison. “Working at the Clinic has given me an opportunity to practice law before I even pass the bar, and has really crystallized the whole reason I came to law school.”
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