A coalition of environmental advocates took the first step today toward bringing a lawsuit against three mining operations in Kentucky for a staggering number of alleged violations of the Clean Water Act -- more than 20,000 in all.
The companies targeted are ICG Hazard and ICG Knott, subsidiaries of West Virginia-based International Coal Group, and Frasure Creek Mining, a subsidiary of West Virginia-based Trinity Coal, which was recently purchased by India's Essar Group. These are the largest producers of mountaintop removal-mined coal in Kentucky.
The companies have been sent intent-to-sue letters charging that they exceeded pollution discharge limits set by their state-issued operating permits, consistently failed to conduct the required monitoring of their discharges, and submitted false monitoring data to state agencies. Among the pollutants allegedly discharged at excessive levels include iron, total suspended solids, pH and manganese, ingestion of which can cause neurological problems resembling Parkinson's disease; some of the manganese exceedances are over 40 times the maximum allowable levels. The violations could bring federal fines totaling over $740 million.
"The sheer number of violations we found while looking over these companies' monitoring reports is astounding," said Donna Lisenby, the Upper Watauga Riverkeeper with North Carolina's Appalachian Voices, one of the groups involved in bringing suit. "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."
Among the environmental advocates' allegations is that the companies' discharge monitoring reports filed with state environmental regulators show exactly the same effluent data over time, indicating that the companies merely re-filed previously submitted reports under a different signature and date. Such fraudulent submissions -- criminal acts that can bring jail time -- comprise the majority of the alleged violations.
"In some cases they just scratched out the date and wrote in another -- they didn't even bother to white it out," said Robert F. Kennedy Jr., president of the Waterkeeper Alliance, which is also involved in the legal action along with Kentuckians for the Commonwealth (KFTC) and Kentucky Riverkeeper. "That's the contempt this industry has for the law."
Under the Clean Water Act, the companies have 60 days to respond to the allegations made in the notice letter. If violations have not been corrected by then, the groups plan to file suit in federal court for the Eastern District of Kentucky. Representing the plaintiffs are attorneys with the Appalachian Citizens' Law Center, the Capua Law Firm and the Pace Environmental Litigation Clinic.
The environmental advocates say their findings may represent only the tip of the iceberg of companies' irresponsible mining practices -- and the state's monitoring failures.
On a recent trip to Kentucky's Division of Mine Reclamation and Enforcement regional offices, Appalachian Voices' Waterkeeper staff found on secretaries' desks stack after stack of discharge monitoring reports from more than 60 mines and coal processing facilities. Covered in dust, the documents did not appear to have been evaluated for compliance for more than three years. A sampling of the reports showed hundreds of repeated violations by mine operators.
"Our state officials have closed their eyes to an obviously serious problem," said Ted Withrow, a retired official with the Kentucky Division of Water and a KFTC member.
This is not the first time these companies have been in trouble for breaking the law. Earlier this year, KFTC and the Sierra Club documented how Frasure Creek was starting mining operations before getting needed approvals from the U.S. Environmental Protection Agency and the Army Corps of Engineers. The company was also accused of destroying streams at three mountaintop removal coal mines in eastern Kentucky without the proper permits.
And last month, federal investigators concluded that a 28-year-old coal miner in Raleigh County, W.Va. died in April because ICG did not have effective policies to keep workers out of dangerous areas in the company's Beckley Pocahontas Mine. The U.S. Mine Safety and Health Administration cited ICG's Beckley subsidiary for failing to comply with safety plans.
Today's legal action comes as Kentucky is under increasing scrutiny for its environmental permitting system: Just this week, the EPA objected to 11 water discharge pollution permits granted by the state of Kentucky, saying they failed to protect waterways. The Courier-Journal reports that this is the first time in about 20 years that the EPA has made such a move in the state, and it could lead to the federal government taking over the issuing of permits.
"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 photo above, by ChristopherM via Wikimedia Commons, shows the North Fork of the Kentucky River that flows past Hazard, Ky, where ICG is accused of dumping mine pollution in violation of the Clean Water Act.)