TheTimesTribune.com, Corbin, KY

State News

October 8, 2010

Three Ky. mining companies to be sued

CORBIN — By Ronnie Ellis/CNHI News Service

A coalition of environmental groups and private citizens announced plans Thursday to sue three mining companies, alleging they exceeded discharge limits for pollutants and falsified monitoring reports on as many as 20,000 occasions.

The group represented by Pace Environmental Litigation Clinic of New York and Robert F. Kennedy Jr. sent a letter of intent Thursday to companies operating in eastern Kentucky, ICG Knott County, ICG Hazard, and Frasure Creek Mining, a subsidiary of Trinity Coal, giving them 60 days notice that they intend to sue.

The letter from Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance alleges the companies exceeded pollution discharge limits in their permits and “consistently failed to conduct the required monitoring of their discharges and, in many cases, submitted false monitoring data.”

The environmentalists also allege the state Division of Water turned a blind eye, ignoring obvious duplications of data and significant exceeding of permit limits. The group said the violations could result in as much as $740 million in fines.

“The sheer number of violations we found while looking over these companies’ monitoring reports is astounding,” said Donna Lisenby of Appalachian Voices of North Carolina. The group viewed the documents after obtaining them through open records requests.

Roger Nicholson, General Counsel for ICG which owns ICG Hazard and ICG Knott County, said the company “categorically denies” the company falsified reports and called the environmental groups “anti-mining extremists.” CNHI News Service was unable to contact officials of Frasure Creek.

Lisenby said discharge monitoring reports covering the months of August and September 2009 were dated July 2009. She said 42 of reported pollutant levels for the first quarter of 2009 “exactly matched all the reported pollutant levels for the second quarter” a coincidence she said is nearly impossible. Some reports indicated pollutants 40 times above the allowable limit.

“Our state officials have closed their eyes to an obviously serious problem,” said Ted Withrow, a retired Big Sandy Basin Management Coordinator for the Kentucky Division of Water and a member of KFTC. “These are not small exceedances. This should have been a red flag.”

Bruce Scott, Commissioner of the state Department of Environmental Protection, said he was aware of the letter of intent to sue but had not had time to review the allegations.

“We’ll have to go look back and see what the facts are and what they aren’t,” he said. “If there are violations, we’ll deal with the violations.”

Asked why DOW staff hadn’t been able to pick up on what the environmentalists found so easily and so obvious, Scott said he didn’t know.

“I am aware of situations in the past where people submitted DMRs that had illegal actions which were dealt with,” Scott said. “If that’s the case here, we’ll deal with it.”

In a statement provided through his spokeswoman, Gov. Steve Beshear said: ““These allegations are serious, and I have directed the Cabinet to investigate these claims.  We will look further into the issues raised in the notice by these groups.”

ICG’s Nicholson called the allegations “scurrilous and dramatic assertions designed to garner headlines and impugn the reputations of the companies.” But he said the companies “will investigate promptly any violations of the Clean Water Act.”

Kennedy said Clean Water Act enforcement relies on self-reporting and any deliberately falsified reports represent criminal fraud. He said he’d been involved in 400 cases of environmental litigation over 25 years and only once before had he encountered what he alleged is deliberate fraud.

“I would expect this kind of case would call for severe and robust action by state and federal enforcement agencies,” Kennedy said.

The companies have 60 days to respond to the letters of intent which were also provided to the federal Environmental Protection Agency and the state. Karl Coplan of Pace said during that time the state can settle complaints against the company and has in the past “for pennies on the dollar.” He said the groups will watch closely for that possibility and appeal any such decision.

Withrow said Frasure Creek self-reported a discharge of 40 times the allowable limit for manganese in 2009, a level toxic to aquatic life and humans which can cause Parkinson’s disease in adults and developmental problems for children.

“The very lives of our people are being adversely affected by high pollutant levels that are in violation of the law,” Withrow said. “The coal industry appears to treat the people of Appalachia as expendable to profit.”

Ronnie Ellis writes for CNHI News Service and is based in Frankfort, Ky. He may be contacted by email at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.

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