Historic agreement means water quality improvements

Floyd Co water

KFTC’s effort to improve the water quality and thereby protect the health of people in eastern Kentucky took a significant step forward Friday with the filing of a settlement in the Clean Water Act case against the International Coal Group (ICG).

“We know that to create a better future for eastern Kentucky, we have to have water that is safe to drink and a more diverse economy,” said KFTC member Ted Withrow. “This agreement gives us the right, as Kentuckians, to know what’s in our water and to work to restore and maintain its quality.”

Read powerful statements from our press conference

 

Key provisions of
the agreement

  • an independent auditing firm will monitor ICG's self-reported pollution discharges to assure compliance and enforcement;
  • pre-determined automatic penalties will apply for future violations;
  • ICG will pay $575,000 in fines, representing an amount originally assessed by the cabinet plus an additional amount for violations brought to light since the enforcement stated;
  • of this amount, $240,000 will be used by the cabinet to monitor water quality in eastern Kentucky streams, an amount to be matched by the U.S. Office of Surface Mining, increasing its impact;
  • $335,000 will go to Kentucky PRIDE for its program eliminating residential straight pipes dumping sewage into streams.

The historic agreement filed in Franklin County Circuit Court settles – pending approval by the court – a two-year-old case involving tens of thousands of reporting and permit-limit violations over the past several years that impacted waters in several eastern Kentucky communities. The violations were discovered by Appalachian Voices, and the company and state officials put on notice in October 2010.

“They apparently were not actually doing the required testing,” said Eric Chance, a water quality specialist for Appalachian Voices. “And the state, which citizens depend on to protect their health and the environment, failed utterly in its responsibility to catch this industry-wide pattern of misreporting.”

The agreement is between Appalachian Voices, Kentucky Riverkeeper, the Waterkeeper Alliance, four individual Kentucky residents and KFTC – the coalition that intervened in the case – ICG and the Kentucky Energy and Environment Cabinet.

It is the result of negotiations, with the assistance of the court-appointed mediator, between the coalition and ICG (which is now owned by Arch Coal) since January. Cabinet representatives were also involved at times.

“We got what we needed to protect the people of eastern Kentucky,” Withrow added. “That was our goal going into this litigation and we believe we have a solid agreement that will help us improve the water quality in eastern Kentucky, assure better enforcement of the Clean Water Act and stop the blatant disregard for the people who live downstream from these mining operations.”

The case not only exposed widespread violations of the Clean Water Act by ICG and Frasure Creek Mining (which is still part of an ongoing case in Franklin Circuit Court but not party to this settlement), but also the culture of non-enforcement that exists in the Kentucky environmental cabinet. As a result, the coalition insisted on having independent third-party monitoring, “necessary because the cabinet has shown it was either unwilling or unable to do this mandatory work,” Withrow pointed out.

“I frequently go paddling and swimming in the Kentucky River, but I am worried about the safety of the water," said Pat Banks of Kentucky Riverkeeper." We have agencies like the cabinet whose job it is to protect us from dangerous pollution. What are we to do when cases like this clearly show that the cabinet is not doing its job. How are we supposed to know that the water we drink, play, and bathe in is safe?”

“The Clean Water Act is premised on credible self-reporting by industry and stringent enforcement by the state,” said Mary Cromer, staff attorney with Appalachian Citizens Law Center who represented the coalition along with Lauren Waterworth of Waterworth Law Office (Boone, NC), and the Pace Law School Environmental Litigation Clinic. “Citizens are given a right to enforce the law themselves when either of those two fail. We discovered systemic failures in both, and were allowed to intervene in order to negotiate a resolution that will better protect eastern Kentucky’s citizens and environment.”

“This agreement goes well beyond what the cabinet tried to pass off as a ‘prosecution’ nearly two years ago. This is a plan that will actually protect the people of eastern Kentucky by ensuring that the public knows how much pollution these mines are putting in our rivers and streams,” said Peter Harrison of the Waterkeeper Alliance.

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