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State fails enforcement test, blames laboratories
Two coal companies operating in eastern Kentucky have agreed to pay more than $300,000 each in fines for major violations of the Clean Water Act that they had previously categorically denied.
Energy and Environment Cabinet Secretary Len Peters announced the fines and other remedial action Friday after the agency conducted an investigation and confirmed the allegations that Appalachian Voices, Kentucky Riverkeeper, the Waterkeeper Alliance and KFTC documented two months ago.
The allegations include numerous and repeated violations of pollution discharge monitoring requirements, as well as exceeding limits on pollution levels, over a two-year period by Frasure Creek Mining and ICG. There were thousands of violations at just a few of these companies' mining operations.
But the proposed judgments against the coal companies (they have to be approved yet by a Franklin Circuit Court judge) are weak and do not address the culture of non-enforcement of the Clean Water Act that permeates the Kentucky Energy Cabinet.
"This settlement appears to have been written by the coal companies and does not address the criminal fraud that we alleged," pointed out Ted Withrow, a member of KFTC's litigation team. "The fines are so minimal for much major violations of the Clean Water Act, especially compared to the tens of millions of dollars they could have been. The remedial actions are what is required by law anyway."
The groups had sent the coal companies 60-day Notices of Intent to Sue in October. The 60 days would have been up on Monday. The state's action is seen as an attempt to pre-empt the filing of lawsuits. But the companies can be sued anyway if the settlements do not adequately remedy the problems cited.
Peters' action also fell short in other significant ways:
1) He did not address the allegations of criminal fraud in these violations. Some of the monitoring reports 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. In some instances, dates were just scratched out and written over.
2) He also did not address the cabinet's own complicity in the violations, evidenced by their complete failure to even look at the monitoring reports when the companies did turn them in. Stacks of reports going back three years, some literally with dust on them, were found on secretaries' desks, having never been reviewed or processed.
In a separate statement released by his office, Gov. Beshear took absolutely no responsibility for the state's failures. Instead, he blamed the laboratories with whom the coal companies contract for the testing, and called for the legislature to pass a law to certify the labs.
"Blaming the laboratories is just an effort to deflect responsibility and muddy the waters from the real issue of apparent willful fraudulent reporting," said Withrow. "The Energy and Environment Cabinet totally ignores its own complicity by its complete failure to even look at the monitoring reports."
KFTC and the other organizations are represented by lawyers with the Appalachian Citizens' Law Center, the Capua Law Firm, the Pace Environmental Litigation Clinic and the Waterworth Law Office.
Resources
- Frasure Creek Mining Notice of Intent
- ICG Knott Notice of Intent
- ICG Hazard Notice of Intent
- Frasure Creek Complaint and Consent Judgment
- ICG Complaint and Consent Judgment
- Energy Cabinet's press release Dec. 3, 2010
- List of Remedial Actions required
- Gov. Beshear's press release
State Takes Action Against Coal Companies
You want us to applaud the investigation of the laboratories that do the analysis, you only point out more flaws in the system, thank you. Citizen water quality monitoring programs are held to higher standards than these companies. Once again no real oversight by the Cabinet of crucial areas, until citizens forced the Cabinet to take action; it should not be that citizens have to force the Cabinet to do their job.
Philip, you would have us believe that the State is doing a grand job protecting the public. Only after citizens investigate and threaten a lawsuit does the Cabinet find time to review reports that are supposed to be reviewed carefully when they are submitted. The alleged complicity is there for any thinking person to see, the arrogance of these companies is fueled by the Cabinet's deliberate lack of oversight of environmental programs that the Cabinet is charged with enforcing.
Philip, as to the administrative nature of these violations we shall see how this shakes out, since the foxes run the henhouse one cannot expect the foxes to convict another fox of eating chickens. The fines represent less than one percent of the maximum penalty allowed under the law. It will be far cheaper to pay the fines than correct the behavior.
Philip, as to discussing concerns with the state, that is normally futile and only results in waltzing to the Frankfort two step. Maybe one day we will have an Environmental Cabinet that is there to protect the people and not corporations; I will not be holding my breath.
As you say, I know the inner workings of the Cabinet and that's why I stand behind everything I said.
You got it wrong dude
Posted by Bob at December-04-2010 07:49 PM
Whoa Ted. dude. You're wrong on this one man ... You don't have a clue what all went on with this investigation by the state. Those inspectors and enforcement staff busted their butts and you're sitting there ripping them when you have no basis to do so what so ever. Let it go dude. Your flat wrong on this one.
State takes action against coal companies
By minimizing the number and seriousness(dismissing without explanation obvious alleged falsifications) of the violations against these coal companies they once again have come down on the side of big coal over our citizens.
who are we talking about?
On the alleged falsification, the inspection reports that the inspectors did clearly speak to why those allegations are not accurate. Not a question of minimizing anything, those matters were taken very seriously and investigated. Nobody dismissed anything casually in this case.
Yeah right, Bob.
http://appvoices.org/2010/12/07/kentuckys-investigation-into-coal-company-water-violations-should-dig-deeper/
It has also been cross posted to the Institute for Southern Studies Facing South blog and can be found by going to this link:
http://www.southernstudies.org/2010/12/voices-kentuckys-investigation-into-coal-company-water-violations-should-dig-deeper.html
Lastly Bob, Doug and I are still waiting for an answer to our questions as to why the state did nothing about these violations until KFTC, Appalachian Voices, Kentucky Riverkeeper and Waterkeeper Alliance found them and told the state about it in our Notice of Intent to Sue letters? What's the matter brother, cat got your tongue?
You Got it wrong dude
Scott said the cabinet “will respond accordingly” to Shepherd’s ruling and time line. He said the impression the cabinet was negligent in monitoring the discharge reports “is earned unfortunately by the agency’s lack of oversight of the coal (discharge monitoring reports).”
It appears you have it wrong since the agency you work for has admitted the guilt.
Since we have let you know who we are why not use your name so we all know who is talking "Bob".
Actually, this is what was said:
Actually, the more accurate report was provided by the Louisville Courier Journal:
"After the hearing, R. Bruce Scott, commissioner of the Kentucky Department of Environmental Protection, agreed the state could have done better.
“That's a criticism that was earned, unfortunately,” he said.
But he said enforcement staff has been reconfigured to better track pollution discharge reports. State environmental officials also have said they are investigating other coal companies and laboratories for similar problems, and additional enforcement action is possible."
You seem to have conveniently left off the last half of that article, just like Ronnie Ellis did.
Keep things in perspective
If you submit false monitoring reports, that means that no one has any idea what pollutants have been discharged, or in what quantity (or at least no one is telling). The reports are required for a reason, they aren't merely an administrative hoop to jump through. I could discharge plutonium into the Kentucky River and submit a false DMR claiming that I didn't discharge anything. Is that just an administrative infraction?
We could applaud the DOW staff for devoting a lot of time to investigating the charges, but why not ask why no one at DOW noticed the violations until the Notice of Intent to Sue was filed? Isn't it the state's responsibility to notice these things first, not after someone else points it out to them?
Peters might be a good guy and all, but his first (and last) inclination is to protect the coal industry and his agency; this is just the latest evidence of that. Kentucky politics, that's all.
While we're on the subject, can someone please tell me why Kentucky requires a hairdresser to certify competency, but not water quality laboratories?
RXM
process
On the process, DNR gets the DMR's first and then sends them electronically to the enforcement division. Water isn't involved in the enforcement of the DMR's. In this investigation water inspected the labs.
process
Kentucky’s Investigation into Coal Company Water Violations Should Dig Deeper
Now back to the fraud question, we used the same forensic accounting techniques that auditors use to catch banks and corporations cooking the books to show precisely why the State of Kentucky failed to diligently prosecute ICG & Frasure Creek for fraud. Check out our latest blog post below to see bleeding edge environmental data analysis applied to clean water act violators and why the fraud is obvious to anybody who isn't a handmaiden of the coal industry. Here is the link:
http://appvoices.org/2010/12/07/kentuckys-investigation-into-coal-company-water-violations-should-dig-deeper/
coal
You state, "The basic question is why have Kentucky regulators been so asleep at the switch in terms of Clean Act oversight and compliance against coal companies for so long? Is it collusion, corruption or incompetence?"
Answer, none of the above. I find it insulting and arrogant for you to sit there and throw out unfounded allegations of collusion, corruption or incompetence. If you really believe that, then you don't have a clue what the vast majority of state employees do on a daily basis.
The truth of the matter is that the environmental programs are historically substantially underfunded. You should be well aware of that reality instead of arrogantly and condescendingly slaming a lot of good people.
Let's get something clear, NOBODY has said that the Notice of Intent didn't prompt the state to action. NOBODY. The state has clearly and consistently said that the legal action expedited the review of DMRs and a review of labs. You want credit for your efforts, great, congratulations. But if you have to make yourself feel better by slaming otherwise well-intentioned and hard-working employees, then don't expect to get the respect that you otherwise feel you deserve. Congratulations on acting like a spoiled child.
What is useful is have the problems addressed and resolved and by all accounts the state is doing just that. To that end, you merit credit for prompting that. You can otherwise get off of your arrogant high horse and quit pretending that you are the only person in the world who knows what is going on. The term self-righteous comes to mind.
State takes action against coal companies
As to the labs, according to the records filed by the agency, the labs were very poorly operated. The state held the companies accountable for those labs and fined them accordingly. Mr. Withrow is incorrect about that too.
Regarding the state's supposed complicity, the state very clearly states that they are investigating other labs and other mining operations. Mr. Withrow is incorrect about that.
With respect to the penalty, Mr. Withrow needs to read the complaint as filed in Franklin Circuit Court. Virtually all of the violations were administrative in nature. Given that Mr. Withrow has worked with the agency he should know that the highest penalties are reserved for the most severe of violations. Clearly, these do not fall in this category. The penalty is more than adequate. Mr Withrow is inaccurate about this as well.
Perhaps Mr. Withrow should contact the state to discuss his concerns rather than inaccurately discuss them in public first.