New legal action targets Ky. mine pollution

October 7, 2010 by Ken Ward Jr.

A coalition of environmental groups late this morning announced the start of new legal action that alleges three Kentucky mining companies violated important provisions of the Clean Water Act.

Lawyers for Appalachian Voices, Water Keeper Alliance, Kentuckians for the Commonwealth, and Kentucky Riverkeeper issued formal notices of intent to sue International Coal Group’s ICG Knott County and ICG Hazard and Trinity Coal’s Frasure Creek Mining. They allege the companies exceeded pollution discharge limits, consistently failed to conduct required monitoring of their discharges, and — in many cases — submitted false monitoring data to the state agencies charged with protecting the public.

I’ve posted copies of the three notice of intent letters here, here and here. The citizen groups are represented by the environmental law clinic at the Pace University School of Law and its co-director, Robert F. Kennedy Jr., and by the Appalachian Citizens Law Center.

In their news release, the groups cite more than 20,000 instances of pollution limit violations, failing to submit reports or falsifying required monitoring data. They say the violations could result in fines exceeding $740 million.

Donna Lisenby of Appalachian Voices said:

The sheer number of violations we found while looking over these companies’ monitoring reports is astounding. It shows a systematic and pervasive pattern of misinformation. These companies are making a mockery of their legal responsibility under the Clean Water Act and, more troubling, their moral obligation to the people of the state of Kentucky.

One of the notices of intent to sue explained the allegations of false discharge monitoring reports this way:

DMRs on file with KDNR repeatedly show duplicate DMR submissions that contain exactly the same effluent data for all effluent characteistics reported on other DMRs for different outfalls during the same yearly quarter. In other words, ICG Hazard used the same effluent monitoring data for two or more outfalls. This pattern and practice of duplicating and recycling DMR data from one DMR to another continues over a period of two years from 2008-2009.

In addition to submitting identical effluent data for different monitoring periods or outfalls, ICG Hazard conversely submitted different effluent data for the same outfalls in the same monitoring periods. In many instances, ICG Hazard maintained multiple DSMRE numbers for a single outfall. Accordingly, ICG Hazard submitted multiple DMRs for the same outfalls for each monitoring period. Although effluent monitoring data on these DMRs should be identical, there are numerous discrepancies between data on multiple DMRs submitted by ICG Hazard for the same outfall in the same monitoring period. This pattern of submitting conflicting monitoring data for the same outfalls continues over a period of at least 21 months in 2008 and 2009.

The repeated submission of duplicate DMRs that are fraudulent, or otherwise false, on their face raises obvious suspicion regarding the validity of data submitted in all of ICG Hazard’s DMRs on file with the KDNR for the past five years. Therefore, Appalachian Voices has a good faith belief that ICG Hazard has failed, and continues to fail, in its obligation to submit and maintain accurate DMRs in accordance with federal and state regulations and the terms and conditions of KPDES Permit No. KYG04000.

The groups also explained that they believe these violations “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.” They say:

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.

The whole situation reminds me of the West Virginia Department of Environmental Protection, which didn’t bother checking mining company DMRs for years, until the federal government came in and sued Massey Energy for thousands  of violations that the WVDEP had ignored.


Here’s a response from ICG general counsel Roger Nicholson —

International Coal Group is reviewing the notices of intent to sue its subsidiaries, ICG Knott County and ICG Hazard, and will investigate promptly any allegations of Clean Water Act violations. The company is completely committed to conducting its operations in accordance with applicable laws.

The anti-mining extremist groups that filed the notices of intent to sue made very serious allegations of falsification of water monitoring reports. The company relies on third party contractors to conduct water sampling and monitoring. The company categorically denies that the ICG companies have falsified any water monitoring data, and is not aware of any facts that even suggest that its contractors might have done so. Company officials will immediately review the underlying data to determine whether there were exceedances of standards or errors in reporting.

Allegations of falsification of water monitoring reports appear to be scurrilous and dramatic assertions designed to garner headlines and impugn the reputations of the company and those who diligently work in our operations. Accusations of fraudulent behavior go far beyond objections concerning the practice of mining and burning coal for electricity, which these groups oppose. The company will pursue its investigation fully and unless clear and convincing proof of wrongdoing by company personnel can be shown, it will explore avenues of redress against those responsible for such reputation-tarnishing statements.

Indeed, the comments attributable to representatives of the anti-mining extremists appear to be deceptive misrepresentations of the ICG companies, the coal industry and its impact. Coal has been mined for well over a century in Appalachia, and surface mining has been conducted for decades. With technology and advanced mining techniques, water and air quality have improved over the past several decades.

We believe the announced litigation by Appalachian Voices and the other anti-mining groups is a poorly disguised attack on the entire Kentucky coal industry that these activists wish to eliminate. International Coal Group will vigorously challenge these outrageous allegations and defend the interests of the tens of thousands of Kentuckians whose livelihood depends on coal mining and the low cost energy it supplies to our nation.

2 Responses to “New legal action targets Ky. mine pollution”

  1. KY says:

    It is disappointing that the media takes on face value anything that someone alleges in a lawsuit but does not followup on it. 20,000 violations alleged by this lawsuit. Did anyone ask where they got that number. Would it surprise anyone if the actual number of violations is actually less than two order of magnitude less than that? Responsible reporting should mean holding accountable those that make allegations as well. It is disappointing that so many are so quick to assume and report the worst without exploring that true facts of the matter.

  2. Andrew says:

    I particularly enjoyed that ICG’s response starts by saying that the allegations are probably not true, but they’ll investigate it, and end with saying that these are “outrageous allegations.”

    I’ve seen examples of this same exact thing happening before, and I can tell you that while it is up to the courts to decide, these allegations are certainly not outrageous. I doubt that these environmental groups, with their limited budgets, would bring a lawsuit unless they had some proof of what they were alleging.

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