Bringing Polluters to Justice — One Court Case at a Time

By Eric Chance and Erin Savage

This chart shows some of the changes in reporting by International Coal Group before and after legal action by Appalachian Voices and our allies in October of 2010.

On Oct 1., Appalachian Voices and a coalition of citizens’ groups reached a historic settlement in a Kentucky case involving some of the most far-reaching and astonishing violations of the Clean Water Act in its 40-year history.

The agreement between the citizens’ groups, International Coal Group, Inc., and the Kentucky Energy and Environment Cabinet settled a lawsuit filed by the coalition over years of false reporting and water pollution violations, caused by a failure of the state of Kentucky to enforce the Clean Water Act.

The settlement, approved by the Franklin Circuit Court on Oct. 10, includes a stipulation for ongoing third-party auditing of ICG’s water pollution monitoring and reporting to ensure the company submits accurate data to the state in the future, and also establishes stipulated fines for potential future violations.

The settlement also includes $575,000 in penalties. Although that represents a fraction of the maximum penalties allowed by the Clean Water Act, it is the highest fine ever levied by the state of Kentucky against coal companies and the first time a state court has allowed affected citizens’ groups to intervene in a Clean Water Act enforcement case. The fees are to be allocated to directly fund water quality improvements and water monitoring programs in the eastern part of the state.

In 2010, Appalachian Voices uncovered thousands of falsified pollution monitoring reports submitted by two of Kentucky’s largest coal companies, ICG and Frasure Creek Mining. In all, the analysis uncovered more than 20,000 violations of the Clean Water Act at dozens of coal mines in eastern Kentucky, from obvious duplications of data in one report to the next to contradictory reports for the same discharge points.

“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. It’s astonishing that the cabinet could have been so oblivious,” says Waterkeeper Alliance attorney Peter Harrison.

We are proud to work with a great coalition of citizens’ groups including Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance, represented by Mary Cromer of Appalachian Citizens’ Law Center, Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

In October 2010, the environmental coalition and several individual citizens filed notices of their intent to sue ICG and Frasure Creek. In response to the coalition’s notice, the Kentucky Energy and Environment Cabinet reacted by attempting to shelter the coal companies by reaching a low settlement that contained no meaningful measures to ensure the companies would submit accurate reports in the future.

Following an objection by the citizens’ groups, the judge in the case withheld approval of the settlements, and instead allowed the coalition to intervene. The intervention was later upheld by the Supreme Court of Kentucky.

A settlement with Frasure Creek Mining has not been reached, therefore that case will move forward in state and federal court.

Appalachian Voices is also involved in a similar lawsuit against another Kentucky coal company, Nally & Hamilton, as well as two separate lawsuits against Virginia coal companies Penn Virginia and A&G Coal Corporation, all for pollution discharge violations under the Clean Water Act.

Visit appvoices.org/waterwatch/ for updates on all our legal actions to protect the waterways of Appalachia.

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