KFTC Blog

Big win: Judge rejects deals between Kentucky officials and coal company

Posted by: KFTC staff on November 24, 2014

The Franklin Circuit Court on Monday issued two long-awaited orders rejecting settlement deals between the Kentucky Energy and Environment Cabinet and Frasure Creek Mining arising from the coal company’s thousands of violations of the Clean Water Act from 2008 through 2011.

In extraordinarily vigorous language, Judge Phillip Shepherd said that due to the coal company’s actions, “The inherent danger of the violations at issue here to the environment is impossible to determine based on Frasure Creek's wholesale abdication of its monitoring and reporting responsibilities, and the cabinet's inability to fully investigate the environmental harm that is likely to have occurred.”

“Since October 2010, we have been in the courts to see that the law be enforced in the state of Kentucky,” said Ted Withrow, a member of KFTC's Litigation Team. “These rulings by Judge Shepherd serve to enforce that right of the people."

In 2010, Appalachian Voices, Kentucky Waterkeeper Alliance, Kentucky Riverkeeper, KFTC and several individuals made public more than 20,000 violations of the Clean Water Act from 2008 to 2010 by Frasure Creek and a second coal company, International Coal Group (which later settled out of court). Under the law, these violations could be subject to hundreds of millions of dollars in fines. On the 57th day, the cabinet and Frasure Creek entered a proposed consent agreement that included only 1,520 violations and combined fines of just $310,000.

The violations largely had to do with falsifying water quality monitoring reports that the companies were required to submit under their pollution discharge permits. The false reports hid significant water quality violations.

“These are much more than paper violations [as state officials at the time claimed]. With each false entry on these reports, the company is deceiving regulators and the public about the pollution it may be discharging into Kentucky waters,” said Erin Savage, Central Appalachian Campaign Coordinator with Appalachian Voices. “The judge’s orders confirm what citizens have known for some time – that the state is failing to enforce the Clean Water Act in eastern Kentucky,”

In one order, Judge Shepherd rejected a settlement proposed four years ago between the cabinet and Frasure Creek that purported to address reporting violations uncovered by citizens groups. In rejecting the deal, Judge Shepherd wrote: “The proposed consent decree is unlikely to be successful in producing a change in behavior by Frasure Creek, because the economic benefit that it obtains by taking short-cuts and submitting unreliable data far outweighs the costs of compliance, or the risk of any fines and penalties that the cabinet will impose. This case demonstrates that the fines and penalties are an acceptable cost of doing business.”

In his other order, Judge Shepherd rejected a second settlement from 2013 between the cabinet and Frasure Creek. This settlement attempted to resolve pollution permit limit violations reported by Frasure Creek once the falsified reporting temporarily ended. The cabinet finalized the settlement over the objection of citizens groups, who claimed that the settlement’s meager fines and weak stipulations resulted in little more than a slap on the wrist. The citizens groups subsequently petitioned the court to review the settlement on grounds that it was insufficient to accomplish enforcement goals and that the cabinet’s handling of it violated their due process rights.

Again, the court has agreed: “While the cabinet may enter into an agreement with Frasure Creek, it cannot circumvent the rights of intervening parties to question that agreement, to gather evidence concerning its adequacy, and to put on proof before a hearing officer raising objections to the agreement.”

At the time of the 2010 filings, Frasure Creek was one of the largest mountaintop removal mining companies in Kentucky. It continues to operate mines in Kentucky and West Virginia.

In all instances, the violations were discovered by Appalachian Voices water quality specialists and others who analyzed thousands of documents. As Judge Shepherd noted in one order: “The fact that these massive reporting violations were brought to light by citizens acting independently of the cabinet further supports the conclusion that the public interest in the consent decree was not objectively considered by the cabinet prior to the intervention by the citizen intervenors in this action."

Throughout the four years of litigation, the citizens groups had to fight the insistence of cabinet offiicals that the public has no right to intervene in the enforcement of the Clean Water Act. They once labeled having to deal with the public as an "unwarranted burden."

"This struggle has taken us all the way to the State Supreme Court, which ultimately upheld the rights of citizens to intervene in legal proceedings by the cabinet,” said Withrow. "Our most recent Notice of Intent to sue Frasure Creek Mining for 28,000 violations of the Clean Water Act reinforces our conviction that the law is not being enforced in any meaningful way.”

Just last week the citizens groups made public that Frasure Creek had continued the same pattern of non-compliance from early 2013 through at least the first quarter of 2014, perpetrating almost 28,000 new violations of federal law. Frasure Creek has resumed submitting duplicated water pollution monitoring reports to the state, falsifying data and hiding the extent of pollution at its mines.

The citizens groups are represented by Mary Cromer of the Appalachian Citizens’ Law Center (Whitesburg, Kentucky), Lauren Waterworth of Waterworth Law Office (Boone, NC), and the Pace Law School Environmental Litigation Clinic (White Plains, NY).

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Building power for KFTC and for Kentucky: KFTC PowerBuilders

Posted by: George Eklund on November 18, 2014

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Thanks for helping build a Healthier Democracy in Ky!

Posted by: KFTC staff on November 4, 2014

The polls in Kentucky are getting ready to close. As we await the election results we want to say THANKS for the incredible work done by KFTC members, volunteers, short-term voter empowerment organizers and staff over the past few months. With your help we are building a healthier democracy in Kentucky.

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KFTC and Berea College team up for candidate forum

Posted by: KFTC Staff on October 31, 2014

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Madison chapter celebrates 10 years of grassroots work

Posted by: KFTC Staff on October 30, 2014

Madison County KFTC members gathered in Berea on October 25 to celebrate the chapter’s 10th birthday, share a potluck, enjoy live music and take silly photos.

The annual Friendraiser was a chance to not only reflect on the past year’s work but also celebrate the good work of the chapter’s first 10 years.

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'After Coal' forums connect mining communities across globe and bring out local candidates

Posted by: Lillian Prosperino on October 27, 2014

On October 7, KFTC’s Letcher County Chapter paired with Appalshop in Whitesburg and the After Coal project of Appalachian State University, to host a public community forum on economic transition, and a local candidate meet and greet reception.

The evening reception began with informal conversation among the 80 guests and several candidates for local office, including the mayor of Whitesburg and a few city council candidates. Mair Francis, founder of the DOVE Workshop, and Hywel Francis, a Labour Member of Parliament for Aberavon, Wales, traveled all the way to Whitesburg in order to discuss policies on sustainable community development in Wales and Appalachia. This was Mair and Hywell's first visit back to east Kentucky since sharing their experiences as the opening session of Appalachia's Bright Future conference in Harlan last year.

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Be the Change: Sign up to help build power this fall

Posted by: KFTC Staff on October 24, 2014

Be the Change!

This Fall KFTC is PowerRaising: registering, educating and empowering voters; developing a statewide network of community leaders; and inviting people to invest in Kentucky’s bright future. With more voters, members, leaders, and the resources to fund these efforts, we can build the Kentucky we want to call home.  

We are Kentuckians. We are our best hope for change.  

That’s you. All of us together investing in KFTC and in Kentucky.

We CAN make a difference by (click on the link):

Getting Involved

Creating a personal fundraising (PowerBuilder) page

Donating, joining or renewing your membership

For more information, reach out to KFTC Development Associate JoAnna House at joanna@kftc.org or 502-532-1286.

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Act now to cast an absentee ballot in November election

Posted by: KFTC staff on October 22, 2014

Take action NOW if you need to vote absentee in Kentucky

If you are registered to vote in Kentucky but won’t be able to get to your polling location on Tuesday, November 4, you need to act NOW to cast an absentee vote, either in person or by mail, in the upcoming election. We recommend in-person if you can manage that.

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Paradise Waitin': A John Prine Hootenanny Benefitting Kentuckians For The Commonwealth

Posted by: Beth Howard on October 22, 2014

For the second year in a row, folks gathered for a good, old fashioned hootenanny to the tune of John Prine at Paradise Waitin’: A John Prine Hootenanny benefitting Kentuckians For The Commonwealth on Saturday, October 11th at Willie’s Locally Known in Lexington. 

UntitledLocal bands paid tribute to folksinger and songwriter John Prine by putting their own touch to his songs all night. The event was sponsored by Willie’s Locally Known, WUKY, and West Sixth Brewing CompanyParadise Waitin' 2.

Folks packed the house and loved the event. KFTC member Katie Goldey was excited to come out again this year. “This is the kind of stuff that makes me proud to be from Kentucky . . . being able to hang out with great people who really care about one another and the community, topped off with buckets of fabulous music. It was a simply wonderful night to be a part of!”

Local musicians who performed were Pulse, Bear Medicine, Blind Corn Liquor Pickers, Burton Joyner, Egon Danielson, Carla Gover, Warren Byrom and the Fabled Canelands, Zen Highway, The Jar Flies, and the DeBraun Thomas Trio. West Sixth took over the taps and created a special Paradise Waitin’ pale ale with New Zealand hops. KFTC member and musician Ray Smith organized the bands and the event for the second year running. 

 The Central Kentucky Chapter raised more than $3,000 and recruited 23 new members at Paradise Waitin' and are already planning next year's hootenanny. 

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KentuckyElection.org has been updated for the November 4 election!

Posted by: Erik Hungerbuhler on October 14, 2014

KFTC's voter guide website has been updated with new information about candidate stances, voting locations, key links and other information to help you cast an informed vote in the election on Tuesday, November 4. We've surveyed candidates running for the U.S. Senate and House, state legislative races, and local races in Louisville, Lexington, Danville, Berea, Richmond, Georgetown, Newport, Florence, Covington, Bowling Green and more!

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KFTC is "Powering Up" this election season

Posted by: Kentuckians For The Commonwealth on September 25, 2014

KFTC’s Fall 2014 Power Up webinar series is in full swing. These webinars will help members learn skills and opportunities to use this intense election season as a platform for KFTC’s values, frames, and vision.

We're recording these webinars on Monday evenings at 8 p.m. eastern. Join in to to participate in the discussion and have some good workshopping space, or find them here to watch them on your own time.

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