20,000 Clean Water Act violations?

Three eastern Kentucky coal companies may have committed more than 20,000 Clean Water Act violations over the past few years, KFTC and several other groups announced this morning during a telephone press conference.

Kentucky Riverkeeper, Appalachian Voices, the Waterkeeper Alliance and KFTC said they had filed 60-day "notice of intent" letters alleging that 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.

"When coal companies don't bother to properly monitor and report their toxic discharges, it shows a total disregard for the health and safety of our local communities and the folks who use and enjoy these waters," said Pat Banks with Kentucky Riverkeepers.bad-water (Knott)

Each of the named companies operates under state-issued permits that allow them to discharge limited amounts of pollutants into nearby streams and rivers. Those same permits also require the companies 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 pollution limit 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.

"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 KFTC. "These are not small exceedances – some are over 40 times the daily maximum. This should have been a red flag."

Besides violating pollution limits, many of the monitoring reports reviewed did not change from one reporting period to the next. For example, at one Frasure Creek operation all monitoring data from the second quarter 2008 are repeated identically on the third quarter report, and both reports are dated 7/15/2008 – weeks before the end of the third quarter monitoring period. This pattern was seen over and over, Donna Lisenby of Appalachian Voices explained during the press conference.

Robert Kennedy Jr., president of the Waterkeeper Alliance, said the violations "appeared to be" a "criminal act" comparable to falsifying information on one's income tax return. "Fraud was not just an occasional occurrence, it was a practice."

In some instances, dates were just scratched out and written over, "not even giving the state cover," Kennedy pointed out.

These claims made today may just be the tip of the iceberg. 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 state has failed to enforce the Clean Water Act due to ineffective permitting and lack of enforcement by Kentucky state agencies," said Withrow. "The Big Sandy River is a dying river and the Licking River, the Kentucky River, and the Cumberland River are also suffering from significant coal mining pollution."

Withrow cited the Division of Water's own data that shows that 82% of the streams in the Big Sandy River basin are impaired.

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. The plaintiffs are being represented by lawyers with the Appalachian Citizens' Law Center, the Capua Law Firm, the Pace Environmental Litigation Clinic and the Waterworth Law Office.

Here are copies of the Notice of Intent letters:

 Here's some media coverage:

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