This week, Letcher County member, Carrie Wells, helped to build our I Love Mountains Day pinwheel collection with her art classes in Knott County.  Students from 1st grade to 12th grade made pinwheels throughout the day, ending with a total of over 200 pinwheels! 

During the day of pinwheel making, a dozen Cordia high school students signed up to travel with "Ms. Wells" and other east Kentucky KFTC members to I Love Mountains Day in Frankfort on February 14th!  The theme of this year's rally is the community health impacts of living near mountaintop removal in Central Appalachia, which has been highlighted dozens of times in the past 2 years in regional, peer-reviewed studies.   Everyone is being asked to bring one pinwheel to the rally to represent 50 people living with cancer that has been linked to the pollution from mountaintop removal mining. A study that came out in July that found that 60,000 people living in Central Appalachia have cancer because of mountaintop removal.  So, 1,200 people expected to attend with pinwheels x 50 = 60,000. You can learn more about this data on our 'Health Impacts Fact Sheet' or by registering for our upcoming Webinar on the health impacts of MTR in preparation for I Love Mountains Day! 

Making pinwheels has proven to be a blast for all ages, so get started on your own!  As the pictures below illustrate (and more on our flickr), your pinwheel can be as unique as you!  One six year-old, Cash, said he made his pinwheel "yellow and blue for the sun and the sky".... 

This week we've been reporting to you on the Environmental Justice Listening Tour that KFTC members hosted for the Environmental Protection Agency. You've read the comments of members in Clay County, at the Cordia School, in Whitesburg, and in Harlan County here; and you've witnessed regular Kentuckians speaking directly to the EPA here and here.

Today we bring you one more inspiring voice from eastern Kentucky and a report on the false controversy that paid coal industry spokespeople and coal politicians have tried to cook up.

Ada Smith is a KFTC member from Letcher County. She spoke to EPA administrators during the community meeting held at the Appalshop theater in Whitesburg last Thursday. First Ada shared her concerns that that those living near mountaintop removal coal mines "can't turn their faucet on and get a drink of water, that they can't take a bath without being scared that there's arsenic in their water...There's been stories all this week of people's well water being on fire under the ground." Then, as if sensing the political backlash that had just taken place early in the day in Frankfort, Ada told the EPA: "My state is not going to respond to the concerns I have around coal mining." She said, "What I know is that...our state people are not going to do the job, but [the EPA] can."

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Earlier that day, in an Interim Subcommittee on Energy of the General Assembly meeting at the Capitol in Frankfort, politicians railed against the EPA's visit and the fact that the Agency had the opportunity to hear regular Kentuckians voice their hopes and concerns without being drowned out by the noise of coal industry. Media outlets who reported on the EPA's listening tour, and on the comments of residents, also picked up the story of the false controversy created by industry spokespeople and legislators--often without a response from KFTC or local residents.

Read some of the comments by the politicians that put the interests of the coal industry and elected officals before those of the regular Kentuckians dealing everyday with the impacts of the industry at the bottom of this blog post. Those politicians who blasted the EPA, who discounted the voices of the Kentuckians addressing the EPA during the tour, and who spoke up to protect the industry include: Rep. Leslie Combs, Rep. Tim Crouch, Rep. Myron Dossett, Rep. Rocky Adkins, Rep. Lonnie Napier, Rep. Fitz Steele, Sen. Robert Stivers, and U.S. Congressman Hal Rogers, among others.

KFTC couldn't let such irresponsible comments go unacknowledged or unchallenged and promptly issued a statement, highlighting the importance of the listening tour and the opportunity that Kentuckians had to speak directly to the agency charged with protecting them, as well as calling out the politicians for their silence when the deadly impacts of the industry are made known. WYMT printed this statement in full.

On Thursday and Friday of this past week, more than 150 eastern Kentucky residents participated in a tour with leaders of the U.S. Environmental Protection Agency. At stops in Manchester, Vicco, Whitesburg and Lynch, the residents over and over asked the federal officials to enforce the law and help us create safe and healthy communities. Concerned mothers, teachers, students, retired coal miners, nurses, entrepreneurs, the unemployed and many others spoke directly to the EPA officials.

• We expressed our vision for a prosperous eastern Kentucky and shared our hope that by working together we could create economic opportunities so that our children won’t have to leave the region to find meaningful work.

• We expressed hope that those jobs would not put workers in danger, and would not do damage to our land and water.

• We asked for assurances that our drinking water not make us sick, and that those companies that are poisoning our water be stopped and held accountable.

• The mayor and residents of one small town asked that mining not be allowed to destroy the town’s drinking water source and future economic potential.

• One family asked that someone stop the dust and water pollution from a coal processing plant that a doctor told them is making their daughter sick.

• And we let it be known that one of the biggest obstacles to safe workplaces and healthy communities is systematic non-enforcement of the laws designed to protect our health and safety and inaction by the state and federal agencies.

As Kentuckians and members of KFTC, we thank and commend the EPA officials for coming to listen to the people most impacted by the decisions that they make regarding the issuing of permits and enforcing the law.

As if on cue, by Friday afternoon, the airwaves and the internet were filled with howls of protest from paid coal industry spokespeople (who had turned down a meeting with the EPA officials) and state and federal politicians, complaining that ordinary Kentuckians had the chance to have their concerns heard by the EPA. They claimed the EPA had no right to come to Kentucky to see and hear for themselves the dangerous and deadly impacts of the modern coal industry. They expressed outrage that EPA got an opportunity to hear, and the chance to value, the opinions and concerns of the people who bear the consequences of an industry that has no respect for the law – a reality these politicians won’t acknowledge.

But not one of these politicians expressed any concern about the families who are without safe drinking water; about the children who are sick because of the pollution in their neighborhood; about the damage to the homes and drinking water wells of families who live near mining operations, or our youth who must leave the region to find meaningful jobs while they do little to help create new job opportunities.

While these officials were howling against the one federal agency that has shown some inclination to enforce the law, their past silence is also of note:

When a study was released recently showing that people who live near mountaintop removal mines have an increased risk of cancer, we didn’t hear one word of concern for the people who are sick, only attacks on the scientists.

When a study was released recently documenting that children born in communities near mountaintop removal mines have a 26% higher incidence of birth defects, we heard not one word of concern or compassion from these same political leaders.

When it was demonstrated that specific coal companies had been filing fraudulent water monitoring reports and poisoning streams below their mine sites (violations the companies have acknowledged), we heard not one word of disappointment from these same politicians.

But when a federal agency – charged by Congress with enforcing the laws that protect our health, our water, our air and land – comes to talk with real people affected by these issues, Kentucky’s political leaders are beside themselves with fury over the very notion that an enforcement agency might actually make coal companies obey the law.

Have these politicians no shame, whatsoever?

In Kentucky, we still have a chance to help lead the nation toward a new power, clean energy economy with more and better jobs, healthier communities, and more affordable energy. But we have to stop the destruction being caused today by our old power coal industry and old power ways of thinking. And that requires leaders with vision, compassion, and political courage. The ones squawking about the EPA doing its job have shown, again, that they are not these leaders.

If your state legislator or Congressperson is one of the politicians listed below, please consider writing a letter directly to him or her. Also, send a letter to the editor of your local paper, especially if they've run a story about the EPA visit or the false controversy. You're encouraged to use points in KFTC's statement above, putting the voices of regular Kentuckians before the coal industry and its politicians.

There are tips on writing a letter to the editor here.

And you can locate your legislator here.

Let us know if you send in a letter by calling your local KFTC organizer or emailing info@kftc.org.

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Here are some of the comments by legislators and industry spokespeople, with a link to the news source for each comment:

• Rep. Rocky Adkins: “My problem with the federal EPA is that I think they have an agenda and I think they are tied to groups that have an agenda and I think that is flat wrong for a federal agency to have a drawn opinion without hearing a cross-section of views and opinions come from everyone.”
• Rep. Lonnie Napier: "I just want my fellow legislators from Eastern Kentucky and those in the coal industry to know that many of us have and will continue to support any efforts to protect our coal industry."
• Rep. Myron Dossett: "I pledge to...stand with my fellow legislators in Eastern Kentucky to fight any Federal restrictions on the coal industry."
• Rep. Fitz Steele: "[A] federal agency coming to our communities to conduct the people’s business in private? That does (not) pass the smell test.”
• Rep. Leslie Combs: "I continue to be disappointed by the EPA and their actions toward Kentucky’s coal industry...[T]o stage meetings and site visits with people sympathetic to only one side of this issue is mind boggling to me. It’s bad enough that the elected officials weren’t invited – to snub our people is just terrible. I do feel that in my position I have worked cooperatively to engage the coal industry with other businesses and industry across the state to meet common ground. This stunt of the EPA is a slap in the face to me, my constituents and all of Kentucky.”
• Sen. Robert Stivers: "I was shocked to have to read in the paper that the EPA was visiting my hometown. If they truly wanted to hear the impact that mining has produced, they could have, as a courtesy, invited legislators and other elected officials.

On August 18 and 19, Kentuckians had the opportunity to speak directly to key officials of the U.S. Environmental Protection Agency (EPA) about their vision for Kentucky and, especially, about their concerns related to the devastating effects of mountaintop removal mining and valley fills. KFTC hosted Lisa Garcia from the Washington, D.C. office, who is a special advisor to EPA Administrator Lisa Jackson on Environmental Justice, and Gwendolyn Keyes Fleming, administrator for EPA's Region 4, as well as seven other EPA directors and staff members.

EPA Region 4 Administrator Gwendolyn Keyes Fleming (left) listens to the concerns
of Anne Carr (far right) and other residents in Lynch.

The tour brought the EPA in contact with more than 150 Kentuckians, many of whom were able to share their stories and concerns. At stops in Manchester, Vicco, Whitesburg and Lynch, the residents over and over asked the federal officials to enforce the law and help create safe and healthy communities. Concerned mothers, teachers, students, retired coal miners, nurses, entrepreneurs, the unemployed and many others spoke directly to the EPA officials.

• We expressed our vision for a prosperous eastern Kentucky and shared our hope that by working together we could create economic opportunities so that our children won’t have to leave the region to find meaningful work.
• We expressed hope that those jobs would not put workers in danger, and would not do damage to our land and water.
• We asked for assurances that our drinking water not make us sick, and that those companies that are poisoning our water be stopped and held accountable.
• The mayor and residents of Lynch asked that mining not be allowed to destroy the town’s drinking water source and future economic potential.
• One family in Clay County asked that someone stop the dust and water pollution from a coal processing plant that a doctor told them is making their daughter sick.
• And we let it be known that one of the biggest obstacles to safe workplaces and healthy communities is systematic non-enforcement of the laws designed to protect our health and safety and inaction by the state and federal agencies.
  

As Kentuckians and members of KFTC, speakers also thanked and commended the EPA officials for coming to listen to the people most impacted by the decisions that they make regarding the issuing of permits and enforcing the law.

In Clay County, Anne Shelby described her community's efforts to protect their land and water through a Lands Unsuitable for Mining petition, which the state ignored and, as she says, often ridiculed. Listen to her passionate statement here (and check back on this blog throughout the week for more inspiring Kentucky voices speaking directly to the EPA):

After leaving Clay County, the caravan of Kentuckians and EPA officials headed to Knott County to hear from more community members.

 

The Hazard Herald printed a detailed article on this next stop on the EPA's visit, to the Cordia School in Knott County:

Ivy Brashear, [pictured above right] a Viper resident and graduate student at the University of Kentucky, thanked the EPA for changes that have been made to coal mining regulations recently. She said she believes that EPA officials have gone to bat for the environment[...]

“Thirty years is all we have left of the coal, 30 years and then they are gone,” she said. “They are going to leave here and we are going to be here with dirty water and dirty air and cancer clusters and birth defects.”

And to round out the first day, the EPA officials heard from a long list of folks from throughout eastern Kentucky. The Appalshop theater in Whitesburg was packed as KFTC members spoke about their concerns, including a barrage of recent studies that show the harmful impacts of strip mining and valley fills. Reporter Erica Peterson with WFPL-FM in Louisville followed along on the whole trip and had this to report on the Whitesburg stop:

Later that night, people packed into a theater in Whitesburg and testified about water pollution, the perils of an economy that’s too dependent on coal and the industry’s political influence.

“I want to talk for a moment about another insidious form of coal pollution," said former Kentuckians for the Commonwealth chair Doug Doerrfeld

“It is hard to overstate the degree to which the influence of coal has also polluted our democracy,” he said. “While coal mining provides just 1 percent of all jobs in the state and the industry contributes 2.5 percent of Kentucky’s economic output, the power of the industry’s money in our political system is overwhelming.”

The next day, the EPA wrapped up their trip in Lynch, in Harlan County. The Harlan Daily Enterprise reported on the story there:

“We have a beautiful area. Right now, it is virgin territory as far as surface mining goes, and we like to keep it that way,” said Stanley Sturgill, member of Lynch City Council and Kentuckians for the Commonwealth.

...

A statement by former council member Carl Shoupe captured what seemed to be the sentiment of many of those gathered.

“We’re not against coal, but we are asking the EPA to listen to us and help us preserve and save what we cherish. EPA is our last bastion,” said Shoupe.

Media coverage of the tour was extensive and came from a variety of sources. The local news station, WYMT, broadcast two reports on the tour, one on the community testimony in Whitesburg and one on the stop in Lynch.

Throughout the trip, Keyes Fleming and Garcia stated that environmental justice is important to the administration and that low-income and minority voices need to be heard in the decisions that affect them most, particularly as they relate to pollution. Keyes Fleming said the residents who spoke to them throughout the trip were heard "loud and clear."

By Friday, the internet and airwaves were full of complaints from the coal industry about the visit. In their wrap-up, WFPL reported on the controversy:

[Charles Baird of the Coal Operators and Associates] criticized the lack of advance notice to members of the media other than WFPL. But there were local media outlets at each event.

And two employees from the state Division of Water were present. Also, Bill Bissett of the Kentucky Coal Association confirmed that he was notified of the tour, and the EPA offered to meet with coal supporters for an hour on Friday.

But many members of the mining industry were at a conference in Lexington.

Soon, we will report more on the backlash from the coal industry and the coal politicians--and KFTC's response to their irresponsible statements.

Perry County resident Pam Maggard told EPA officials that if coal mining continues in Eastern Kentucky, there needs to be a bigger emphasis on safety and environmental issues.

“If they are going to mine then they need to do it with regards to miners’ safety and community health and safety,” said Maggard. “We need clean air; you can see how dusty it is here. We need homes left on their foundations. We need clean water. We can find another electricity source, we can’t find water.”
...
Tiffany Stiles, a 2011 graduate of Cordia, is currently a radiology student at Hazard Community and Technical College. She and her fiancé and hoping to build a home, but she fears the land they have may end up being negatively affected by coal mining.

“I don’t want to have to move away to build a life,” said Stiles.

This past Thursday, over a dozen folks gathered at two locations near a proposed Leeco mountaintop removal permit area, stretching across two east Kentucky counties, to talk with their Environmental Protection Agency (EPA). From one location in Perry County and one in Knott County, local residents gathered to share their stories and concerns with the Region 4 EPA on a one-hour conference call.  

Gwendolyn Keyes Fleming, Region 4 administrator, was expected to join us and several members of her staff for only the first few minutes of the call but surprised us all by staying til the very end.

People living all around the 849 acres, six valley fills, and over 4 miles of streams included in the proposed mine permit showed up to tell Gwendolyn and her staff why this mine does not belong in their community and insist she come see for herself.

Several long time members from the area converged at both locations with local neighbors and friends.   Many were new to KFTC and new to organizing, but all were experts in their community needs and visions.  Sharing their stories on the call were local nurse practitioners, retired miners and service workers, teachers, young journalists, students, grandmothers, great grandmothers, and great grandchildren (of the brave widow, Ollie Combs).  These amazing people came from and represented families from the head of Stacys Branch in Perry County all the way to the far reaches of Lotts Creek in Knott County.   

This letter, written by Pam Maggard of Sassafras, read in her absence from the call, touches on the spectrum of issues weighing heavy on hearts and minds:

Ms. Fleming,

Please accept the invitation of Cordia, Stacy's Branch, and Sassafras residents to visit our area. You will see first hand the life we are trying to protect. I am very concerned about damage from blasting near my home (approx. 1 mile). Potential flooding is another concern. I am confident the EPA will want to continue their new commitment to putting clean water and health above mining profits

I understand the EPA asked Leeco to make some changes to its permit, to reduce anticipated water quality impacts and monitor stream quality and Leeco refused. This is typical of what we must deal with in the area. Profits before people. That is how we are treated - "Oh, they're not rich, they don't matter. We did it before, let's get the rest of the coal." We do matter. My neighbors and I are tax paying, modest income to poor people. I have worked hard to own a home. The coal trucks from the last mining in the area have wreaked havoc on our roads and water lines. We can't take much more

I implore you to at least come and see for yourself. Pictures and letters cannot even begin to tell the story. Come and visit with us - see it with your own eyes - then help us stop Leeco - for our water, homes, and health!

Nally & Hamilton, the 4th largest coal producer of surface mined coal in Kentucky, was put on notice this afternoon that citizens plan to sue the company for 12,000 violations of the Clean Water Act.

The violations occurred from May 2008 through June 2010 and happened at more than a dozen of the company's mines in Bell, Harlan, Knott, Knox, Perry, Letcher and Leslie counties.

The allegations involve failing to perform accurate testing and monitoring of pollution dumped into Kentucky waterways. As in a similar ongoing case against ICG and Frasure Creek Mining, the results of many reports were copied exactly from one reporting period to the next and submitted as new reports.

"Before our collective vision for renewable energy resources, a renewed economy and a new politics that reflect a true democracy can be realized, the destruction of our air, water and land must be stopped," said KFTC Vice-Chair Suzanne Tallichet in a telephone press conference. "That collective vision explains why we are involved in legal actions against coal companies such as ICG, Frasure Creek and today, Nally & Hamilton."

She was joined by representatives from Kentucky Riverkeeper, Appalachian Voices, the Waterkeeper Alliance and the Natural Resources Defense Council.

"We don't know what's being dumped into our waters. We can't trust the reported data," said Pat Banks of Kentucky Riverkeeper. "Submitting a false report is an irresponsible and dangerous act – and so is failure to enforce" the law.

Also similar to the ICG / Frasure Creek case, the monitoring reports Nally and Hamilton did submit "were piled in dust-covered stacks and had not been reviewed for compliance in years," explained Donna Lisenby with Appalachian Voices. They reviewed those permits at the London office of the Kentucky Division of Mine Reclamation and Enforcement .

After filing the ICG and Frasure Creek claims last October, the groups "waited five months to see if [state officials] would make good on their promise to enforce the Clean Water Act," Lisenby continued. Instead, they've seen the opposite coming from the Beshear administration.

"If the government fails to prosecute then we are going to do it and do it vigorously," said Robert F. Kennedy Jr., representing the Waterkeeper Alliance. He called on the U.S. Attorney and the Kentucky Attorney General to prosecute the companies for fraud.

The speakers noted that water pollution carries a cost for human health. Tallichet pointed out that Kentucky's 5th Congressional district, represented by Rep. Hal Rogers and where all these violations occurred, ranks last in the nation in life expectancy, physical health and overall well-being.

Rogers recently used his position in Congress to attempt to block efforts by the U.S. Environmental Protection Agency to make coal companies comply with the Clean Water Act.

"Mining companies discharging toxic pollutants in our water is nothing new to our coalfield citizens,"  Tallichet said. "Too many of us have been getting sick and dying for too long. It's high time that mining companies are held accountable for their actions.

"At the same time, why not invest in wind and solar energy sources as neighboring states have? Energy efficiency is also a very important step in ensuring our energy future. A more vigorous state-wide weatherization program would create hundreds of jobs."

 A copy of the 60-day Notice of Intent to Sue letter sent to Nally and Hamilton is here.

News Coverage:

• Environmentalists accuse Kentucky mining company of faking data (The Courier-Journal)
• Group files notice of intent to sue mining company (Lexington Herald-Leader)
• Groups announce intent to sue coal company (CNHI)
• Enviro groups: Ky. coal company falsified reports (MSNBC - Associated Press)
• Another citizen lawsuit against a coal company spotlights Kentucky's regulatory breakdown (Institute for Southern Studies)
• Environmental Groups Plan to Sue Coal Company (WFPL-FM, Louisville)

KFTC and our allies were back in Franklin Circuit Court Thursday asking that citizens and public interest groups be allowed to intervene in an important Clean Water Act enforcement case.

The Beshear administration took the opposite position, arguing that citizens have no legal interest in the state's clean water enforcement actions. They supported the arguments of the two coal companies guilty of those violations.

Judge Phillip Shepherd said he would issue a ruling promptly.

"Prevention, abatement and control of water pollution are in the public interest," stated Mary Vance Cromer of the Appalachian Citizens Law Center in support of the citizens' Motion to Intervene.

She cited specific provisions in the federal Clean Water Act that "allowed and encouraged [citizens] to fully participate," and that specifically require states to not oppose citizen intervention.

Arguing for the Kentucky Energy Cabinet, Mary Stevens said that what holds true for federal law is not necessarily applicable in the state. "While they [citizens] have a clear interest in clean water, that is not a legally protectable interest in the state of Kentucky."

She and the other company attorneys argued that state court has no jurisdiction in a case brought under federal citizen intervention provisions, and that the proper venue is where the violations occurred, not in Franklin County. In their written brief, they stated that having to deal with citizens would be an "unwarranted burden."

Attorneys spent two hours before Shepherd presenting arguments about these issues.

Last October, Appalachian Voices, Kentucky Riverkeeper, Waterkeeper Alliance and KFTC threatened to sue – in federal court – International Coal Group and Frasure Creek Mining for an alleged 20,000 violations of the Clean Water Act. But the Kentucky Energy Cabinet stepped in and sued the companies in state court, preempting our federal court action.

The Cabinet sued after investigating and documenting more than 2,700 of those alleged violations. But instead of asking the court to help prosecute to companies, they asked the court to accept Consent Judgments, or agreements, they had already negotiated with the companies to settle the matter. The companies are not denying the violations.

Those Consent Judgments are anemic and proof that state officials are not acting in the public interest, Lauren Waterworth argued for our side. "We do not think the consent judgment is adequate. There's no transparency here. They have bypassed any opportunity for public scrutiny. They are asking us to give them the benefit of the doubt."

She said that additional discovery is needed to understand the full nature of the violations and answer questions about possible fraud by the companies (a claim state officials have ignored).

It was clear that the cabinet and companies were most worried that allowing third-party interveners might result in just such a deeper investigation into the companies' violations and the Cabinet's lack of enforcement.

"The coal industry attorneys are desperate that we don't get to discovery," observed Doug Doerrfeld.

Shepherd understood that if he approved the Consent Judgments that a federal court likely would interpret that to mean that the case had been diligently prosecuted. and dismiss any citizen lawsuit. So he questioned the attorneys about how the citizens interest could be represented.

Shepherd acknowledged the letters the court has received through a public comment process from a lot of people who believe the Consent Judgments need to be strengthened to ensure future companies with the law by the companies.  But he observed that "the only two parties I have before the court are those who are in agreement. How is the court going to be able to determine if the Cabinet acted appropriately?"

Several KFTC members impacted by water quality attended Thursday's hearing in Frankfort.

Media coverage:

• Ronnie Ellis, Ashland Daily Independent
• James Bruggers, The Courier-Journal
• Beth Musgrave, Lexington Herald-Leader
• Jeff Biggers, The Huffington Post
  

State officials are resisting requests that it post on its website documents detailing violations by ICG (International Coal Group) and Frasure Creek Mining related to enforcement action against those companies.

After a hearing on December 17, Franklin Circuit Judge ordered the Kentucky Energy & Environment Cabinet to post proposed consent judgments with ICG and Frasure Creek to its website and provide for a 30-day public comment period. Those consent judgments represent agreements between the cabinet and coal companies concerning thousands of violations of the Clean Water Act.

The cabinet did post the proposed agreements but have not posted hundreds of pages of court filings referenced in the documents that detail the violations.

Citizens groups asking to intervene in the enforcement case (Appalachian Voices, Kentucky Riverkeeper, Waterkeeper Alliance and KFTC) sent a letter to Judge Shepherd and asked him to clarify his order and require that the full Complaints and Exhibits be posted on the cabinet’s website. Cabinet officials objected and complained that our request was “unreasonable” and “unduly burdensome.”

Here they are, and much more:

• Frasure Creek Complaint and Consent Judgment (Ky)
  
• ICG Complaint and Consent Judgment (Ky)

Because the proposed consent judgments are weak (fail to reflect the seriousness and extensiveness of the violations), the four citizens group asked to intervene in the case. Here is our statement of why:

• ICG / Frasure Motion to Intervene

All of this got started in October when the groups gave the coal companies 60-day Notices of Intent to Sue because of an alleged 20,000 violations of the Clean Water Act over a two-year period. Here's the documentation of those charges:

• Frasure Creek Mining Notice of Intent (Oct 2010)
  
• ICG Knott Notice of Intent (Oct 2010)
• ICG Hazard Notice of Intent (Oct 2010)

The Energy and Environment Cabinet was startled by these allegations, which also seriously implicated state officials for their failure to enforce the law, whether by design or not. After some investigation, the cabinet confirmed many of these violations and issued these statements:

• Energy Cabinet's press release Dec. 3, 2010
• List of Remedial Actions required
• Gov. Beshear's press release Dec. 3, 2010

Currently, the cabinet and coal companies have until the end of this week to file responses to the Motion to Intervene, stating why they do want citizens involved in the case.

Even as the court case goes forward, there are questions that Gov. Beshear and Cabinet Secretary Len Peters are not answering, such as: How do you not notice 20,000 violations of the Clean Water Act? If some business besides coal was involved, Lexington Herald-Leader editors have pointed out, the governor would have called for an investigation and legislators would be asking what bills do they need to pass to correct the situation. Instead, state officials are ignoring the culture of non-enforcement that exists in the Energy and Environment Committee, especially as related to making coal companies obey the law.

Citizens were heard Tuesday afternoon when they asked Franklin Circuit Court to allow them to intervene in a case between the Energy and Environment Cabinet and two coal companies operating in eastern Kentucky.

Judge Phillip Shepherd accepted and agreed to hear arguments on a Motion to Intervene filed on behalf of Appalachian Voices, Kentucky Riverkeeper, the Waterkeeper alliance and KFTC. The groups want to challenge a proposed Consent Judgment between the cabinet and Frasure Creek Mining and ICG. Shepherd gave those parties until January 7 to file briefs opposing citizen intervention. A hearing for oral arguments is likely in mid-January.

The case involves serious, numerous and repeated violations of the Clean Water Act by the two companies, including what appeared to be fraudulent reporting. These violations first came to light in October when the four groups filed 60-day Notices of Intent to Sue against Frasure Creek, ICG Knott and ICG Hazard with the allegations.

The Kentucky Energy and Environment Cabinet investigated the claims, found them to be true and found additional violations.  The cabinet then negotiated with the coal companies and filed in Franklin Circuit Court a proposed consent judgment that imposed fines and called for some remedial actions.

Although technically the cabinet sued the coal companies in this case, those parties were in agreement that they wanted the court to approve immediately the Consent Judgment they had negotiated.

But the four citizens groups oppose that settlement.

In a press conference before the court hearing, Ted Withrow pointed out that the penalties in the agreement “are so low in comparison to the number and severity of violations assessed that the Consent Judgment appears to incentivize future false reporting and non-reporting by these Defendants.”

He also said the cabinet treated the apparently fraudulent reporting as nothing more than "clerical errors.”

Mary Cromer of the Appalachian Citizens Law Center told Judge Shepherd that the agreement impairs her clients interest in “protecting the cleanliness and health of watersheds” because the fines are insufficient to compensate for damage, punish bad behavior and prevent further violations.

Even though the coal companies agreed to pay more than $300,000 in fines each, that amount is less than $250 per violation, and probably less than the cost of compliance.

This case is also significant because it has put the Cabinet under scrutiny for its culture of non-enforcement. These thousands of violations had gone unnoticed by the state agencies responsible for monitoring and enforcing water protection laws.

Shepherd said that it is his inclination to give the public the right to comment on matters that affect their well-being, citing previous cases concerning the Clean Water Act.  A cabinet attorney said they were ready to argue for approval of the Consent Judgment but did not object to a public notice and comment period.  Attorneys for Frasure Creek and ICG argued that they are under deadlines for compliance and would prefer that the Consent Judgment be approved.

The cabinet and companies “were trying to cram the agreement through,” observed Withrow. “It didn’t work.”

Shepherd said he would enter an order for the cabinet to post the proposed Consent Judgment on its website with a public notice and 30-day comment period, with submitted comments made part of the court record. A January hearing on approval of Consent Judgment also is likely, once the intervention motion is decided.

Pat Banks with Kentucky Riverkeeper said it was a fair hearing. “He took us seriously.”

“He was considerate of the citizens’ viewpoint,” added Withrow.

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
  

Daira and her translator at Old Louisville Coffee Shop

Afro-Colombian human rights activist Daira Elsa Quinones visited Kentucky in October to speak out about the impacts of foreign corporations seeking natural resources in her home country. The tour was sponsored by Witness For Peace.

Daira was brutally removed from her home village by private militia hired by extractive-industry companies. She has endured multiple death threats against her and her family for her work fighting for human rights. During her visit to Kentucky, Daira told crowds about how the brutality, threats and murders inflicted on her people by multi-national and American corporations seeking Colombian natural resources inspires her to work even harder against the oppression.

"Everyday I feel stronger, I feel a great responsibility to do something about these problems - and it is not just Colombia. These problems exist in countries across the world."

She called on all of us to join the effort, saying "We all have a responsibility to work for a world that is more just. We are all human beings - the only way to go forward is to unite and work for a more just world. This is the only way this world will change. These politics are affecting all of us."

To bolster the exchange, KFTC member Cari Moore of Knott County, spoke with Daira at several events. Cari visited villages near where Daira used to live on Witness For Peace's recent tour to Colombia in July 2010, entitled "The People Behind the Coal in Appalachia and Colombia." (To learn more about the Kentucky-Colombia exchange, click here).

Daira and Cari Moore

In her presentations, Cari discussed the cultural connections and the legacy of destruction by outsiders that is shared between her home of Appalachia and Daira's Colombia. After hearing Cari speak so eloquently about her home, Daira recognized their shared love of land and sense of place.

As a result of her connection with Cari, Daira chose to spend the only days she had open on her schedule in Kentucky - her "rest" days - traveling to Appalachia learning about the human rights struggles, the struggle for clean water and health, faced by Cari and others. After touring with several KFTC members and staying with Randy Wilson, Daira, just like Cari, found herself in love with Appalachia and yet torn by its destruction.

KFTC co-sponsored a few events during Daira's tour through Lexington, Bowling Green and Appalachian Kentucky as a part of our ongoing exchange with Colombia. Please learn more about the Kentucky and Colombia connection here. You can join the delegation to Colombia next year!