Legal Update: Shining the White Hot Spotlight of Justice

Our legal case involving the two Kentucky coal companies’ 20,000+ violations of the Clean Water Act is making Big Coal squirm. On Monday February 21, 2011 Frasure Creek Mining and the Kentucky Energy and Environment Cabinet made an unprecedented move to appeal Judge Shepherd’s decision to the Kentucky Appeals Court. In early February, Judge Shepherd allowed Appalachian Voices, KFTC, Kentucky Riverkeeper and Waterkeeper Alliance to intervene in the proposed settlement between the Kentucky Energy and Environment Cabinet and two of the largest mountaintop removal coal companies (International Coal Group and Frasure Creek Mining) in the state. His decision allowed us to initiate a discovery and deposition process against the two coal companies and the Cabinet in order to determine whether the settlement they negotiated in secret was “fair, adequate, reasonable and consistent with the public interest.”

The appeal by the Cabinet and the coal companies is a blatant attempt to do an “end around” Judge Shepherd by jumping up to the appeals court level before discovery, establishment of facts or even a hearing on the merits. We are preparing an exhaustive response showing why this move is premature, not consistent with Kentucky law and not in the best interest of Kentuckians.

The appeal just shows how desperate they are to avoid third party, independent review of their secret deal. Not surprising since the Cabinet characterized the intervention of citizens groups as “unwarranted burdens.” We expected the coal companies and the Cabinet to pull out all the stops to try and get out of having citizens groups review the circumstances that led to the inadequate consent judgments. The cozy relationship between the Cabinet and the coal companies can’t stand the white hot spotlight of our investigation. They know it and they are squirming like worms on the hook trying to get out of Judge Shepherds court ordered discovery/deposition process so they can keep things hidden. It will be interesting to see if the Appeals Court buys their specious arguments.

In yet another blatant example of how the Cabinet continues to allow the coal companies get away with token clean water act “compliance”, we discovered a huge problem in the proposed corrective action plan submitted by ICG. After the Cabinet completed its investigation of the clean water act violations, they attributed most of the problems to incompetent water monitoring contractors hired by the coal companies. Many of the blatantly false discharge monitoring reports were improperly signed by an unauthorized ICG contractor named Jody Salisbury, an employee of S & S Water Monitoring. The Cabinet announced its settlement with the coal companies noting, “that both GSL and S & S Monitoring, Defendants’ contractors during the time of the subject violations, to the knowledge and belief of the Cabinet, are no longer in business.” Last week we discovered what amounts to a shell game.

The corrective action plan submitted by ICG indicates that from this point forward, their water samples will be collected by a new company called East Kentucky Water Monitoring. According to the Kentucky Secretary of State, that company was incorporated on Dec. 17, 2010 by brothers Jody and Nathan Salisbury who previously worked for S&S Water Monitoring. The filing lists the same Oil Springs, Kentucky address as that previously listed for S&S Water Monitoring. The Salisbury brothers didn’t even bother to get a post office box to hide the fact that East Kentucky Water Monitoring is fundamentally the same outfit as S & S.

Interesting in light of the fact that the state cabinet claims that the inaccuracies are “mostly transcription errors” made by the water monitoring company that took the samples. Why would ICG hire what amounts to the same company that made all those so-called “transcription errors” to continue working for them? One rational reason as to why a company might continue employing an incompetent contractor that cost them thousands of dollars is because that contractor is providing a valuable service by not doing the job correctly. If the average American hired an accountant to do their taxes and they were subsequently audited and fined thousands of dollars by the IRS, would they turn around and hire the same incompetent accountant again?

This bizarre journey began when Donna Lisenby, our Director of Water Programs blew the dust off of water monitoring reports that coal companies are legally required to submit to the state, and that the state is legally required to review. She was dismayed to find higher than allowed levels of pollutants, but also gross and obvious falsification of these reports. Partnering with a number of allies, we submitted our “intent to sue” to the state of Kentucky, who then had 60 days to respond by either taking legal action themselves or allowing us to move forward with our suit.

On the 59th day, the Kentucky Cabinet of Energy and Environment announced their own settlement plan, which laid the blame at the feet of water monitoring contractors, citing above mentioned “transcription errors” as the cause of the discrepancies in water discharge reports. The two companies voluntarily agree to pay a combined total fine of $660,000. This is a pittance (0.1%) of the maximum allowed by the Clean Water Act. For 20,000 violations, the companies could have been fined up to $740 million. The settlement deal cut between the coal companies and the Cabinet is so inadequate that it won’t compel adherence with the Clean Water Act, especially if the exact same contractors continue collecting water samples. It simply does not protect the public’s interest in ensuring safe drinking water.

Ironic that Len Peters, Kentucky Cabinet Secretary recently griped in an Op-Ed that federal Clean Water laws were too onerous for the state to comply with. So why did the Cabinet feel the need to give themselves more work by voluntarily choosing to defend coal companies who are potentially breaking the law, instead of letting our team proceed with our case in federal court? The Cabinet chose to make more work for itself when it entered into a plea bargain with the coal companies giving them minimal fines.

With the appeal made this week, the Cabinet under the Beshear Administration shows they have plenty of staff time and resources to continue taking legal action to defend the coal companies who are polluting public water supplies. In a nutshell, it means Beshear will go to great lengths to allow coal companies to continue polluting while obstinately refusing to use those same resources to protect waterways in Kentucky. It is really sad that the governor and the Cabinet continue to aid and abet law breaking coal companies rather than protect the people. Rest assured that Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, Waterkeeper Alliance, Appalachian Citizens’ Law Center, Pace Law School Environmental Litigation Clinic and the Capua Law Firm will continue fighting BOTH the coal companies and the Beshear administration until they stop polluting Kentucky waterways. We will not yield or rest until we exhaust every legal means necessary to bring these polluters to justice.

About Sandra Diaz

With Colombian roots, a Philadelphia, Pa.-childhood, and more than a decade in Florida before joining Appalachian Voices, Sandra served as AV's North Carolina campaign coordinator and driving force behind the Red, White & Water campaign from 2007 to 2013.