Ever since the coal industry came to eastern Kentucky more than 100 years ago, residents have dealt with polluted water, coal-truck traffic, dust, mud, flooding, blasting damage to homes and a long list of other challenges.
For more than 30 years, Kentuckians For The Commonwealth, a grassroots organization born in eastern Kentucky, has worked to confront these abuses.
In a historic case that ended with a negotiated settlement this fall, KFTC and its allies ensured that citizens have a right to intervene in state enforcement actions when coal companies break the rules for protecting their water.
The settlement is in connection with thousands of Clean Water Act violations involving years of false reporting and permit violations by a major coal company, and insufficient enforcement by state officials.
It’s the first time a Kentucky state court has allowed affected citizens or public interest groups to intervene in a Clean Water Act enforcement case brought by the state.
In many cases, it’s citizens or public interest groups that uncover the violations in the first place.
Two years ago, in Kentucky, Appalachian Voices and Waterkeeper Alliance were reviewing monitoring reports filed by International Coal Group and discovered false reports amounting to more than 20,000 violations of the Clean Water Act at dozens of coal mines in eastern Kentucky.
The mines are owned by Kentucky’s two largest producers of mountaintop removal coal, ICG and Frasure Creek Mining.
Coal companies receive permits allowing them to discharge a certain amount of coal-mine wastes into Kentucky waters, but they are required to report their discharges and stay within permitted levels. Mining waste typically includes high concentrations of heavy metals.
The groups discovered that for years, the coal companies had repeatedly simply cut and pasted the numbers from one pollution discharge report to the next, changing the dates but reporting the exact same monitoring data in consecutive quarters.
“They apparently were not actually doing the required testing,” said Eric Chance, 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.”
When the U.S. Environmental Protection Agency recommended a lower limit for a certain type of pollution, the reported levels uniformly – and suddenly – dropped by half.
“There was no change in operations to explain that – the numbers just took a dive,” he said.
The false reporting claim triggered an investigation by state regulators, and the two companies began reporting dramatically higher levels of pollution in their discharges, sometimes spiking to 20 times the previously reported level with thousands of violations per reporting period.
Before the problems were brought to light, the companies had rarely, if ever, reported violations of the discharge limits in their permits.
“The false-reporting epidemic we uncovered in Kentucky can be considered the most far-reaching and egregious noncompliance with the Clean Water Act in the law’s entire 40-year history,” said Waterkeeper Alliance attorney Peter Harrison. “It’s astonishing that the cabinet could have been so oblivious,”
The settlement requires ongoing third-party auditing of the coal company’s water pollution monitoring and reporting. Fines will go directly to fund general water quality improvements and water monitoring programs in eastern Kentucky.
“It means that from here on out, the (state) cabinet can no longer go behind closed doors and conclude some negotiations with a coal company without the right of citizens to intervene – to open the door and shine the light on what’s going on,” said KFTC member Ted Withrow. “We didn’t have that right before. That’s huge.
“Third-party monitoring is a very important part of this agreement,” Withrow said. “Third-party monitoring was necessary because the cabinet has shown it was either unwilling or unable to do this mandatory work.
“We hope that this will help begin to change the culture of non-enforcement that has existed for way too long in the Kentucky Energy and Environment Cabinet,” he said.
In October 2010, a coalition of citizen and environmental groups – Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper, Waterkeeper Alliance, and several individual residents – filed 60-day notices of their intent to sue ICG and Frasure Creek.
In response to this notice ‒ sent on day 59 ‒ state officials announced a settlement with the two companies, but the coalition objected on the grounds that the settlements contained no measures to ensure accurate reporting in the future and assessed only nominal fines.
The judge withheld approval of the settlements and allowed the coalition to intervene.
“There is so much we do not know, but we have learned that we cannot be complacent,” said Pat Banks of Kentucky Riverkeeper.
“Clean water for our children, our families and our communities is not an option – it is our right. The Clean Water Act enforces the notion that if companies are out of compliance and enforcement by the state fails, then citizens can and must step in to protect their waters.”