FRANKFORT — Two coal companies accused by environmental groups of polluting eastern Kentucky streams continued to dump pollutants into streams at higher levels than their permits allow after an agreement with the state to correct the problem.
Several environmental groups and individuals filed notice in October they planned to sue Frasure Creek Mining and International Coal Group (ICG) for exceeding permitted levels of pollution discharges and accused the state Cabinet of Energy and the Environment of ignoring the violations. After the cabinet conducted its own investigation, it and the coal companies settled on a plan to correct the problem and pay about $650,000 in fines. The environmental groups went to court seeking to intervene, claiming the settlement was inadequate and does not protect the public interest. They have also subsequently filed notice of intent to sue Nally and Hamilton, another coal company in Kentucky.
Donna Lisenby, Director of Water Programs for Appalachian Voices, one of the environmental groups, and her assistant, Eric Chance, filed affidavits in Franklin Circuit Court Monday alleging the violations have continued and in some cases increased during the first quarter of 2011.
Bruce Scott, Commissioner of Environmental Protection, said the cabinet is aware of the violations because the two companies “verbally reported” them. He said the cabinet’s Division of Enforcement (DENF) subsequently reviewed the companies’ discharge monitoring reports (DMR) and found them out of compliance. Frasure Creek was issued a notice of violation on June 8, Scott said.
“DENF has reviewed (ICG’s) DMRs and a notice of violation is forthcoming in the next week or two,” Scott said. Given the continuing litigation over the cabinet’s proposed settlement, Scott said he couldn’t say if the cabinet will seek to deal with the latest violations as part of the current litigation or separately but it will act, he said.
Lisenby’s and Chance’s affidavits allege a review of the companies’ DMRs showed the companies “self-reported” pollution levels as much as eight to 15 times above allowable, permitted levels of several pollutants.
“The analysis found very serious pollution problems,” Lisenby said in her affidavit. “In summary, almost every reported pollutant in the permits analyzed had multiple violations at significant factors above what is considered safe for waterways of Kentucky and the people who use and enjoy those waterways like our members.”
Last Thursday, members of Kentuckians for the Commonwealth – one of the environmental groups seeking to intervene in the December settlement with the coal companies – presented a study to the Attorney General’s Office conducted by Washington State University and West Virginia University researchers indicating a correlation between mountaintop removal mining and higher levels of birth defects. They also showed the AG staff charts which indicated the level of pollutants increased dramatically in January after the coal company used a certified, independent lab to monitor discharges.
“Any suggestion that there isn’t very serious pollution going into the waterways of Kentucky is (disproved) by the Appalachian Voices’ most recent analysis,” Lisenby said in a brief phone interview.
In the proposed settlement worked out by the cabinet and the coal companies in December, the problems were attributed in part to errors on the DMRs and to inaccurate or faulty testing by outside laboratories.
“These most recent violations are indicative of a true pollution problem and not just an administrative or paper violation,” said Lauren Waterworth, co-counsel for the environmental groups. “It shows state enforcement has not been effective.”
She wouldn’t say what the environmental groups will do next.
"Violations of this type could be grounds for additional litigation,” said Waterworth. “Whether we take that route will depend very much on how these coal companies respond, whether they accept responsibility, and whether they are willing to take the steps necessary to bring themselves into compliance."
Kevin M. McGuire, an attorney with Jackson Kelly who represents ICG, declined to comment on the affidavits given continuing litigation.
“As the subject affidavit was submitted to the Court in connection with an ongoing case (and will be addressed in due course), we do not believe that our comment would be appropriate at this time. As such, we must respectfully decline your offer to comment,” McGuire said in an email response.
An attorney for Frasure Creek did not immediately respond to an email request for comment.