Members of KFTC and Appalachian Voices arranged for the delivery of 30,000 bottles of Keeper Springs drinking water for 13 Pike County families whose water has become dangerous to drink as a result of nearby mining.

Residents say their well water flows black and orange sometimes and other times burns their skin. Earlier this year a well became contaminated with so much methane gas that it caught on fire. Another family says their daughter's hair is falling out and their son has been vomiting, both they believe connected to their water.

They reported the problem to local and state government officials and the coal company in May. And WYMT, the regional TV station out of Hazard, ran a story about the burning well. But nothing happened until KFTC member Ted Withrow learned about the situation, contacted the families and agreed to help.

“Based on my direct, first hand experience with contamination of water by coal operations, I am deeply worried about the safety of the drinking water of these families,” said Withrow the former Big Sandy River basin coordinator for the Kentucky Division of Water. “I just had to take the bull by the horns and move beyond the inaction by the coal company and government to get something done.”

He contacted Donna Lisenby, the director of water programs for Appalachian Voices and asked for help testing the well water for contamination. Lisenby also agreed to arrange for a delivery of water to the families through a partnership with Keeper Springs. Chris Bartle, the president of Keeper Springs was contacted and he arranged for the donation of water.

The water was delivered on Thursday.

Now that the story is in the news spotlight, local officials and state mining inspectors are interested in helping. The coal company, a subsidiary of Alliance Resource Partners, has been ordered to provide replacement water supplies for the families most affected. But the state has not concluded that all 13 families have been damaged by the mining.

Below is some video of the water delivery. Links to two good media reports of the situation are:

• Ronnie Ellis in the (Ashland) Daily Independent
• Facing South (Institute for Southern Studies)

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
  

The Lexington Herald-Leader had a great editorial Sunday describing how the Beshear administration overruled an administrative judge's ruling to give a pollution permit to one of his campaign contributors. This is one of a series of actions recently by the governor to block the U.S. EPA from enforcing the Clean Water Act.

The latest example is the administration's eagerness to enable one of Beshear's political contributors to pollute tributaries of the Russell Fork of the Big Sandy River.

Despite serious questions about whether the operation has been lawfully permitted, the administration is allowing Cambrian Coal to blast and bulldoze away a few hundred feet of mountain at a 791-acre site near Elkhorn City in Pike County.

The company's plans call for filling seven hollows with dirt and rock displaced by mining and enlarging two existing hollow fills.

Cambrian's president, James Booth of Inez, is a prominent contributor to political campaigns. In March, he gave $1,000 toward Beshear's re-election.

In May, KFTC and the Sierra Club had challenged Cambrian's permit because of the damage the mining would do to local water resources, resulting in the administrative judge's ruling. We've now challenged the latest action to restore the permit in Franklin Circuit Court.

Read the Herald-Leader editorial here.

The Kentucky Coal Association (KCA) on Monday sued the EPA after the federal agency rejected state officials' approval of 11 water discharge permits for failing to protect water quality. Beshear ordered the state to join in the action on behalf of coal companies.

Bill Bissett, KCA director, in an oft-repeated message, said the EPA has an "agenda to end coal mining in Kentucky," He wants to make sure the EPA is enforcing the Clean Water Act for environmental and not political reasons.

The plaintiffs asked the U.S. District Court in Pikeville to issue an injunction barring the EPA from further enforcement until interim rules the EPA applied to block those 11 permits are finalized or rejected.

Those interim standards, issued in April, set limits for stream conductivity – a general measure of the contaminants in a stream. The EPA found that conductivity levels above 500 μS/cm means the stream is in poor health and stream life is dying.

Many streams already impacted by mining have conductivity levels far in excess of this maximum. Rick Handsoe, for example, has measured conductivity in streams near his home in Floyd County in excess of 1900 μS/cm – the highest his meter will read.

If the state considers the cumulative impact of pollution discharges in a stream – which it is required to do by law but doesn't – that would mean no more pollution should be allowed into those streams until they recover.

The EPA also found that state officials failed to analyze the impact of the discharges on water quality and set pollution limits too high.

Beshear called the EPA's action "arbitrary and unreasonable."

The EPA noted that Kentucky's own data shows that coal mining is heavily damaging water resources in eastern Kentucky – data that Beshear has ignored in continuing to issue permits that add to accumulated pollution levels. A recent state study indicated that 82% of waters in the Big Sandy River basin are "impaired," mostly from surface mining.

The struggle between the EPA and state officials mirrors a similar case in which KFTC and the Sierra Club challenged a water pollution permit issued to Cambrian Coal in April. A state administrative hearing officer last month agreed with our claims that the mining operation would likely degrade water quality and that state officials had not done enough to prevent this. He blocked further mining.

But last week Kentucky Energy Cabinet Secretary Len Peters overruled this order and allowed the pollution to resume.

Some media coverage:

• EPA opposes 11 Ky. coal mining water permits (The Courier-Journal)
• EPA sued by Beshear, coal industry (Lexington Herald-Leader)
• EPA says Kentucky resisting talks on mining practices (The Courier-Journal)
• Len Peters allows destructive mining to resume (KFTC blog)
  

Residents in Pike County are working to pick up the pieces from last week's flooding.  Although there was certainly a lot of rain, some areas of the county were much worse than others.  People are starting to ask the question, "why?"

Near Raccoon Creek, people are talking about the impact of the construction of Hwy 119.  In Harless Creek, people are talking about the impact of strip mining.

"I think everybody up this holler would say that there wasn't enough rain to cause all of this," Bo Sayler, Harless Creek resident shared.  He described the flooding as coming in 2 waves shortly after the rain started and has concerns about the sediment ponds at the head of hollow. 

"The creek has been getting higher and higher since they started stripping," Freddie Coleman shared who grew up in the community and is helping several family members rebuild. 

Apex Coal is actively mining on the left-hand side, and there is an abandoned strip mine on the right-hand side. 

Both are retired coal miners and acknowledged how a lot of the companies do. 

"I think the mining contributed to it. It's not fair that people be put in this situation," Freddie added.  Folks are working to figure out what can be done as they continue to rebuild.

Check out photos

KFTC, the Sierra Club and the Appalachian Citizens Law Center have joined outdoor enthusiasts and paddlers to challenge a mining permit granted in April to Cambrian Coal that allows the company to add to the pollution levels in several streams in Pike County.

Under the permit, Cambrian Coal will discharge mining waste into tributaries of Elkhorn Creek, Marrowbone Creek and Pond Creek, all of which are tributaries of Russell Fork, a major tourism attraction and destination for many paddlers.

“For the past 7 years, I have participated in the Russell Fork Whitewater Rendezvous,” said Bill Pierskalla, a Sierra Club member and whitewater paddler.  “If the proposed mine goes forward, I am concerned that people like myself will stop visiting Elkhorn City and paddling Russell Fork out of concern that the mining has polluted the water beyond safe limits.” 

The 792-acre Cambrian Coal surface mine, located near Elkhorn City, would severely jeopardize creek quality as well as land preservation, making recreational use of the area a less attractive option for tourists. The operation will create seven new valley fills and significantly expand two existing ones in order to dispose of 15 million cubic yards of mining wastes.

“I grew up along Elkhorn Creek, I’ve hiked and fished in that area for years. As a child I used to swim in the creek, but now I am concerned that surface mining in this area has started to degrade the water to an unsafe level,” said aquatic biologist and local resident James Stapleton.

Recently the U.S. Environmental Protection Agency (EPA) released new water conductivity standards in order to protect water and the health of surrounding communities. Water testing downstream of Cambrian’s existing mines in the area has found the water to be far above EPA’s conductivity standards.

The state's granting of the permit did not take into consideration that more pollution would add to the cumulative levels of the impacted streams, some sections of which are already too polluted to support their designated uses.

“I see no way this proposed mining operation could meet the requirements of the recent EPA guidance concerning conductivity.  Already the area is above the recommended federal clean water standards,” said Rick Clewett of the Cumberland Sierra Club.  “We should not be adding pollution to the area but cleaning it up.  Additional mining could potentially eliminate the prospects for that community being able to succeed in their current efforts to develop and expand an economy based on water recreation and fishing”.

“Water is the back bone of our economy here in Elkhorn City. And at the end of the day, we need people to keep visiting our area to recreate and support our local businesses,” said Stapleton.

A copy of the Petition is available here.

It was 28 years ago that KFTC became "official."  According to the book Making History: The First Ten Years of KFTC,

"Twenty-six people from 12 counties formally organized and named the Kentucky Fair Tax Coalition on August 17, 1981. They also agreed on a statement of purpose:

The Kentucky Fair Tax Coalition is a group of community based organizations and individuals promoting more effective and efficient community services through a fair and equitable taxation system throughout the state of Kentucky, with a particular interest in coal counties.

Also at that meeting, members "passed the hat for the first time. They netted KFTC's first funds, $38.

This Hazard meeting was not the first meeting of this group of people who were coming together from across eastern Kentucky. The group had met on several prior occasions to explore the possibilities of working together on common issues. Shared concerns included the quality of (or lack of) community services and public education in coal counties (which suffered from gross inequalities in the tax system) and the rights of landowners.

Many of the people involved were organizing in their respective home counties around these and related issues. The decision to launch a new organization was based on the understanding that the issues were all related and shared a common underlying roots cause: "the inequality of life with a single dominant industry – coal – that was not contributing its fair share."

"People, especially in eastern Kentucky, were getting to know each other. All around the region there was a loose network of people who had worked together with each other in various ways over the past 15 years or so. What we didn't have in those days was a structured connection between us. There was a no interlocking of these community-level efforts, until KFTC" — Herb E. Smith

Thanks to everyone who is helping KFTC continue to make history! If you're not a member click the here or Join button at the top of the page and become a part of the next 28 years!