Citizen groups initiate legal action against Kentucky coal company for falsifying pollution reports | Kentuckians For The Commonwealth
Release Date: 
Monday, November 17, 2014
Press Contact: 
Ted Withrow
KFTC member
606-784-6885 (h) or 606-782-0998 (c)

Citizen groups initiate legal action against Kentucky coal company for falsifying pollution reports
State regulators ignore clean water protections and enforcement

Click HERE to download a copy of the Notice of Intent letter sent to Frasure Creek

Additional Contacts

Here are some past blog posts about the ongoing citizen enforcement action against Frasure Creek Mining

Massive boulder rips through a Floyd County home (Sept 5, 2009)

Frasure Creek Mining is filling streams without permits (March 24, 2010)

20,000 Clean Water Act violations? (Oct 6, 2010)

State fails enforcement test, blames laboratories (Dec 2, 2010)

Officials not revealing all charges against coal companies (Jan 11, 2011)

Beshear working to shield companies, block citizens (Feb 10, 2011)

Citizens' rights again upheld (April 1, 2011)

Coal companies continue to pollute, citizens act (June 27, 2011)

Hearing begins in Clean Water enforcement case (Aug 30, 2011)

Victory! Court recognizes public's interest in clean water (April 25, 2012)

EPA action targets illegal valley fills (June 6, 2012)

Historic agreement means water quality improvements (Oct 6. 2012)

Clean water still the goal in state enforcement case (Oct 23. 2012)

Another legal round in the campaign for clean water (May 17, 2013)

Eastern Kentucky – Over the past year, a large coal company with operations in eastern Kentucky sent the state false water pollution reports constituting almost 28,000 violations of federal law, and Kentucky Energy and the Environment Cabinet officials failed to detect the falsifications, according to legal documents filed by four citizens groups.

In a 32-page notice of intent to sue served on Friday, the groups document that Frasure Creek duplicated analytical results from one water pollution monitoring report to the next, misleading government officials and the public about the amount of water pollution the company has been discharging from its eastern Kentucky coal mines. In some cases, Frasure Creek changed only the values that would have constituted violations of pollution limits in the company’s discharge permits.

“This is shameful. Frasure Creek Mining has apparently never stopped flaunting the law even though they were caught red handed in 2010,” said Bev May of Floyd County, where many of the violations occurred. “They dropped a boulder on a house near here a few years ago and they have been illegally discharging poisons into our creeks for years. It is absurd that the state allows a scofflaw operator like this to continue.”

The notice letter was sent by Appalachian Voices, Kentucky Riverkeeper, Kentuckians For The Commonwealth and the Waterkeeper Alliance. It is the second time the groups have taken legal action against Frasure Creek Mining for similar violations of the Clean Water Act.

Four years ago, the groups found similar falsified pollution reports from Frasure Creek, where the company copied data from one report to the next. When the violations were brought to light, the state cabinet gave the company a minimal fine and promised reforms to ensure the agency would detect misreporting in the future. According to the notice filed yesterday, the more recent duplications are even more extensive, and the state again failed to detect the violations or take enforcement action.

“Copy and paste is not compliance,” said Eric Chance, a water quality specialist with Appalachian Voices. “The fact that Frasure Creek continued to flout the law to this extent, even after being caught before, shows it has no regard for the people and communities they are impacting. Equally disturbing is the failure of state officials to act to stop the obvious violations. We’re not sure state officials even look at the quarterly reports.”

Frasure Creek has filed false reports or violated permit limits at more than 70 discharge points from the company’s numerous coal mines across eastern Kentucky. These violations are primarily at mines in Floyd County, but also occur at mines in Pike, Magoffin, Knott and Perry counties. The impacted waterways include tributaries of the Big Sandy River, Licking River and Kentucky River. In the first quarter of 2014, more than 40% of the all reports filed by Frasure Creek contained data that the company had already submitted in 2013.

“The Clean Water Act absolutely depends on accurate reporting of pollution discharges. False reporting like this undermines the entire regulatory framework that safeguards the people and waters of Kentucky from dangerous pollution,” said Waterkeeper Alliance attorney Pete Harrison. “By all indications, this case looks like the biggest criminal conspiracy to violate the federal Clean Water Act in the history of that law. The refusal of the U.S. Attorney and the Environmental Protection Agency to bring criminal cases against Frasure Creek is just as inexcusable as the state’s failure to bring this company into compliance.”

“Once gain we find ourselves in the position of having to take action against Frasure Creek for the exact same type of violations we found four years ago. The Environmental Cabinet says they do not have the personnel to enforce the Clean Water Act. I would add they do not have the will to do so,” said Ted Withrow with Kentuckians For The Commonwealth.

When the citizen groups made those violations public four years ago, the cabinet attributed the false reporting to “transcription errors” and attempted to let Frasure Creek off the hook with minimal fines and no consequences if the violations continued. (That case is still pending in Franklin Circuit Court.) Though the false reporting stopped for a short time, during those months when accurate monitoring reports were submitted the pollution levels spiked.

“Frasure Creek’s false reports are hiding very serious water pollution problems,” said Kentucky Riverkeeper Pat Banks. “It’s reprehensible that our state officials are ignoring the serious consequences of this illegal activity for the people and the economy of eastern Kentucky.”

The groups pointed out that eastern Kentucky residents will have to deal with the water polluted by coal companies, and the resultant health impacts, for decades to come if laws continue to be ignored.

“We cannot make an economic transition in eastern Kentucky without clean water for the future,” added Withrow. “More than 28,000 violations of the Clean Water Act cannot be swept under the rug.”

The groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic. Under the Clean Water Act, citizens must give the government 60-days notice of their intent to sue for violations. If Frasure Creek does not correct the violations within the 60-day time period, the groups said they will file suit in federal court.

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