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A government, for protecting business only, is but a carcass, and soon falls by its own corruption and decay.

--Amos Bronson Alcott

Eastern Kentucky is home to 60% of the mountaintop removal mines in Appalachia. Adding further insult to the environmental devastation, state regulators in the Kentucky Energy and Environment Cabinet (EEC) are doing a better job protecting the mining companies than enforcing even minimal water quality standards. Not only have EEC regulators not even bothered to review required water quality reports by mountaintop removal mining operations, the agency is fighting penalties for violations by the coal companies in court.

For those not familiar with the "standards" of compliance with water discharge permits for coal mining operations, the companies are required to submit water sampling reports to state regulators like the ECC on a quarterly basis. In theory, state regulators review those reports and follow-up on values exceeding discharge permit limits. It is basically testing by honor code, with the state supposedly acting to protect the public by doing more than stamping the forms as received and filing them away in the bowels of a government office building.

Anyone who has ever spent time in coal country knows what acid mine drainage looks and smells like. It is the starting point for asking questions about water quality. Those questions should lead state regulators to review discharge monitoring reports and implement steps to improve water quality. The state then orders a herd of unicorns to touch their majestic horns to the water, making it pretty and pure again. Or something like that.

When state regulators did not respond to questions about the discharge monitoring reports for mountaintop removal mines in eastern Kentucky run by the International Coal Group (ICG) and Fraser Creek, local environmental organizations decided to visit the EEC offices. Discharge monitoring reports are public records. Functioning democracies welcome transparency and citizen participation.

A recent trip to Kentucky’s Division of Mine Reclamation and Enforcement regional offices by Appalachian Voices’ Waterkeeper found stack after stack of discharge monitoring reports (DMRs) from more than 60 coal mines and processing facilities covered in dust on the desks of mine inspectors’ secretaries. They did not appear to have been evaluated for compliance by the regulators for more than three years. A sampling of the reports showed hundreds of repeated violations by coal mine operators in the state.

“Our state officials have closed their eyes to an obviously serious problem,” said Ted Withrow, the retired Big Sandy Basin Management Coordinator for the Kentucky Division of Water and a member of Kentuckians For The Commonwealth. “These are not small exceedances – some are over 40 times the daily maximum. This should have been a red flag.”

Appalachian Voices

No wonder the unicorns had not been sent out. The regulators have been too busy to even look at the discharge reports. When four environmental groups decided to take a look at those reports, here is what they found:

The four groups, in reviewing forms for Frasure Creek and ICG over 2007 and 2008, said they found instances of mineral discharges exceeding legal limits by up to 40 times, missing reports, forms signed and dated by supervisors before testing took place, forms copied and pasted from one quarter to the next, and testing dates scratched out and rewritten.

Lexington Herald-Leader, Oct 8, 2010, article by Dori Hjalmarson

They also found evidence of falsification of reports. One of the more striking examples is conductivity levels reported by both companies. Conductivity levels dropped in reports filled after the EPA announced new standards, which included several months before the announcement was made. It is a fascinating coincidence since the companies cannot point to any process modification that would cut their conductivity levels in half.

Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance filed notices of intent to sue ICG and Fraser Creek on October 7, embarrassing the EEC in the process.

Among the allegations cited in the notice letter are exceedances and misreporting of discharges of manganese, iron, total suspended solids and pH. The groups and local residents bringing these claims cite a total of over 20,000 incidences of these three companies either exceeding permit pollution limits, failing to submit reports, or falsifying the required monitoring data. These violations could result in fines that may exceed 740 million dollars. “The sheer number of violations we found while looking over these companies’ monitoring reports is astounding,” said Donna Lisenby of Appalachian Voices. “It shows a systematic and pervasive pattern of misinformation. These companies are making a mockery of their legal responsibility under the Clean Water Act and, more troubling, their moral obligation to the people of the state of Kentucky.”

As the environmental groups prepared to file papers at the end of 60-day notification period (which contained even more damaging allegations about the coal companies and state regulators), the state intervened. It blamed the problems on the water-testing labs, slapped the companies with small fines, and told those pesky treehugging pests to take a hike.

The companies and the state had 60 days to review the groups' accusations. In court documents filed Friday, the 59th day, the Energy and Environment Cabinet said it found no evidence of intentional fraud but did find lax procedures and documentation at the two labs.

The state's review found seven instances of discharged pollutants exceeding acceptable levels, but officials acknowledged that they can't trust the data.

"We can't say with 100 percent certainty" that the companies aren't polluting, said Bruce Scott, Kentucky's commissioner for environmental protection.

Lexington Herald-Leader, Dec 4, 2010, article by Dori Hjalmarson

You have to hand to it to fine folks at the EEC. They found a way to blame all the violations on transcription errors by two labs and let the coal companies off the hook. The EEC hit the coal companies with fines totaling $660,000 for not hiring better transcriptionists. To put those fines in context, Arch Coal just agreed to pay $3 million in fines for water quality violations for four of its mining operations. The violations by Arch Coal were a tiny fraction of the 20,000 violations found in discharge monitoring reports filed by ICG and Fraser Creek.

The EEC was not finished fighting to protect the coal companies (not to mention cover its own substantial ass).

Calling environmentalists' demands "an unwarranted burden," the state Energy and Environment Cabinet has opposed a motion by eight groups and individuals to intervene in a $660,000 settlement with coal companies ICG and Frasure Creek Mining. Public commenting on the settlement, ordered last month by Franklin Circuit Judge Phillip Shepherd, ended Wednesday with dozens of comments submitted to the court.

In the latest court filings, the cabinet called allegations that the state did a poor job of investigating complaints "bordering on specious" and said the environmental groups have no standing to join a suit in state courts over alleged violations of federal law. A hearing on whether the environmental groups may intervene in the case is set for Thursday.

Lexington Herald-Leader, Jan 21, 2011, article by Dori Hjalmarson

The environmental groups had petitioned to court to join the state suit because the last-minute intervention by the EEC prevented more damning evidence against the coal companies and the EEC from entering the public record. A parallel lawsuit has been filed against Frasure Creek based on mine inspection records. (Frasure Creek was mining areas without permits. This evidence invalidates claims that violations were solely attributable to lax lab procedures.) And you have to admire the shear chutzpah in labeling evidence that the EEC has not reviewed discharge monitoring reports for over 3 years as "bordering on specious."

Apparently the EEC regulators learned their craft from their counterparts in the West Virginia Department of Environmental Protection (DEP). In 2007, the EPA found a similar failure to read discharge monitoring reports by the DEP, which ignored over 42,000 permit violations by Massey Energy.

Most of the federal government's lawsuit was based on self-monitoring pollution reports Massey subsidiaries filed every month with the state Department of Environmental Protection.

But for nearly five years, DEP officials had not been looking at the reports. Inspectors didn't print them out and read them. Enforcement staffers didn't study them on computer spreadsheets.

And the problem wasn't confined to Massey. DEP gave the entire coal industry a pass.

West Virginia Gazette, Jan 20, 2008, article by Ken Ward Jr.

The WV DEP blamed its troubles on a computer glitch and promised to try harder. Over in KY, the EEC figured out a way to shift the blame to water testing labs. Clever.

Perhaps not clever enough, however. Last week, the four environmental groups filed an intent to sue notification for another mountaintop mining operation in KY.

EASTERN KENTUCKY (March 9, 2011)—Another Kentucky-based coal company has filed false, potentially fraudulent, water pollution monitoring data with state agencies over the past three years, putting people and waterways at risk, a coalition of clean water advocates say.

Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance notified Nally and Hamilton coal company today that they have identified more than 12,000 violations of the Clean Water Act at more than a dozen of its operations in seven eastern Kentucky counties. These groups previously identified ICG and Frasure Creek coal companies as submitting false or fraudulent water monitoring data.

And for good measure, they note that these allegations are not going to be easily written off as bad lab behavior.

Based on their review of the reports, the groups allege the company repeatedly misreported discharges of iron, manganese and other pollutants. Nally and Hamilton submitted reports in which all effluent data reported for a certain outfall in a certain month repeat exactly the data reported for the same outfall in other months. In other words, the company seems to have cut-and-pasted previous sets of data in later reports rather than monitoring the discharge and submitting accurate data for each month. The company also repeatedly omitted legally-required data from its reports.

The funny thing is that environmentalists are often accused of being "nihilists" for not respecting all the "good" that comes out of reckless, destructive, and dishonest companies like ICG, Frasure Creek, and Nally and Hamilton. That is ironic given that eastern Kentucky coal country has the highest rate of poverty in the nation. In fact, the 5th Congressional District, home to all of the mountaintop mining operations in KY, has life expectancy and quality of life indicators that rival third world nations. It also has the distinction of having the highest rates of cancer in Kentucky and fourth highest in the nation. Someone should tell the libertarians that nihilism embraces destruction, rejects the rule of law, and ignores the common good in favor of personal self-interest. According to big-brain libertarians, "nihilism’s final ideal is a moonscape scrubbed clean of life." Sounds like what coal companies and state politicians have in mind for eastern Kentucky.

Originally posted to DWG on Wed Mar 16, 2011 at 12:55 PM PDT.

Also republished by J Town.

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Comment Preferences

  •  maddening... it does not matter (8+ / 0-)

    if water, endangered species, or mining, if environmental groups did not file litigation, there would be virtually no  oversight and thus no chance to correct. Corporations see the slap of a wrist financial penalties as business expense.

    I really don't see a lot changing until we do some effective campaign finance reform.

    Earth provides enough to satisfy every man's need, but not every man's greed. Mohandas K. Gandhi

    by Patriot Daily News Clearinghouse on Wed Mar 16, 2011 at 01:18:54 PM PDT

    •  Funny you should mention campaign finance (6+ / 0-)

      ICG is one of the big coal companies to looking to exploit Citizens United and buy politicians that do their bidding in WV and KY.

      It is pretty sad that environmental groups are the last remaining backstop. Without them, coal, shale gas, and tar sands oil extraction in the US would turn much of the US into a wasteland, impair dwindling resources, and destabilize the climate beyond hope.

      Be radical in your compassion.

      by DWG on Wed Mar 16, 2011 at 01:37:46 PM PDT

      [ Parent ]

      •  exactly, buy their way again and again (5+ / 0-)
        Recommended by:
        JanF, DWG, vacantlook, Unduna, eeff

        we don't have a shot at real substantive legislation on generally any issue until we take care of campaign finance because they simply line lawmakers' pockets with coin.

        Just with endangered species, to get them listed takes a lawsuit. Bush only listed species that eco groups forced him to list via lawsuit to uphold the law. Better with Obama, but not much.

        Earth provides enough to satisfy every man's need, but not every man's greed. Mohandas K. Gandhi

        by Patriot Daily News Clearinghouse on Wed Mar 16, 2011 at 01:50:34 PM PDT

        [ Parent ]

        •  And what is really depressing (3+ / 0-)

          Dems in WV, KY, and VA have joined Republicans in pushing back against regulations. For example, KY governor Steve Beshear has sided with the coal industry against any strengthening of the permitting process for mountaintop removal mines to cut valley fills.

          "Kentucky can and does mine coal while at the same time protecting Kentucky's environment," Beshear said in a news release. "However, the arbitrary and unreasonable decisions being made by the EPA threaten to end the responsible mining of coal and eliminate the jobs of an estimated 18,000 Kentucky miners who depend on mining for their livelihood."

          I am deeply moved by the Beshear administration's commitment to enforce mining permit requirements in KY. He bundled environmental regulation and energy exploitation into a single unit. It looks like environmental regulation is only a secondary or tertiary priority in the combined EEC structure.

          Be radical in your compassion.

          by DWG on Wed Mar 16, 2011 at 02:20:20 PM PDT

          [ Parent ]

  •  every industry is out of control (3+ / 0-)
    Recommended by:
    DWG, Unduna, eeff

    the worst criminals reap the greatest rewards.

    You should see what that Marxist, Adam Smith had to say about the "dealer" class(yes Smith uses that term, among others).  Andrew C White's outstanding diary on the subject quotes Smith and then explains the quote because it's a bit hard for the modern reader.  I went ahead and added parenthesis to make certain parts clearer and duplicate what White points out.  The "third order" referred to below.  :

    Smith
    The interest of this third order, therefore, has not the same connection with the general interest of the society as that of the other two. Merchants and master manufacturers are, in this order (the third order), the two classes of people who commonly employ the largest capitals, and who by their wealth draw to themselves the greatest share of the public consideration. As during their whole lives they are engaged in plans and projects, they have frequently more acuteness of understanding than the greater part of country gentlemen (I translate this to middle class, main street, property owners, ...). As their thoughts, however, are commonly exercised rather about the interest of their own particular branch of business, than about that of the society, their judgment, even when given with the greatest candour - which it has not been upon every occasion - is much more to be depended upon with regard to the former of those two objects (self-interest and profit), than with regard to the latter (the public interest).

    Andrew White
    To be clear... he is saying that the merchant, manufacturing and profit earning class are focused on their own interests and profits and not the good of society.

    He also states clearly here that when they do express their opinions on what is good for society they are not to be trusted. They are often not honest and even when they are their opinions reflect their self-centered view of what is "good" and are not capable of reflecting what is truly good for the whole of society.

    Can you believe that Smith said this?  The guy sounds like a Marxist which makes me suspect that Marx probably was strongly affected by Smith.  Does anyone know?

    In any case, enjoy Andrew's diary, it's amazing and the info is to be shared (I've been sending the diary around).

    It's a big deal to learn that Adam Smith, so often maligned with being the "Father of Capitalism", "Father of the Free Market" actually had a clear idea about how capitalism will run amok if it is allowed to.  And recommended in the strongest possible terms that people realize what they're dealing with.

    As White points out, Smith warns:

    by raising their profits above what they naturally would be, to levy, for their own benefit, an absurd tax upon the rest of their fellow-citizens.

    It's kind of like the first time you realize that Jesus was apparently in fact, a bad ass progressive.  Like the Buddha was.  And Gandhi.  And MLK.  

    In both cases, you wouldn't know it by the type of people who supposedly revere them.

    Just think of how stupid the average person is, and then realize half of them are even stupider! - George Carlin

    by Earth Ling on Wed Mar 16, 2011 at 02:04:15 PM PDT

  •  Thanks, DWG (4+ / 0-)
    Recommended by:
    DWG, princesspat, Unduna, eeff

    Excellent diary with a ton of information. King coal needs to be dethroned.

    Republished you in:

    J Town Babbling Brook

    Burble Burble

    Much of life is knowing what to Google
    (and blogging at BPI Campus)

    by JanF on Wed Mar 16, 2011 at 02:06:12 PM PDT

  •  Please, they are not libertarians (2+ / 0-)
    Recommended by:
    eeff, DWG

    They are corporate apologists.

    Good diary. Those fraudulent conductivity figures are appalling.

    look for my eSci diary series Thursday evening. "It's the planet, stupid."

    by FishOutofWater on Wed Mar 16, 2011 at 06:10:51 PM PDT

    •  Pretty striking, isn't it (0+ / 0-)

      especially when you consider that the EPA announced the guidelines in early April with a phase in for enforcement, but the companies showed a sudden drop for the entire first quarter. And the labs decided on their own to doctor the numbers... yeah, sure.

      Be radical in your compassion.

      by DWG on Wed Mar 16, 2011 at 06:46:40 PM PDT

      [ Parent ]

  •  Thank You (1+ / 0-)
    Recommended by:
    DWG

    You have wrote an excellent piece again

    to bad you don't get more eyes on this

    Thanks for posting

    •  Sometimes it is deceptive (1+ / 0-)
      Recommended by:
      eeff

      I did not think my last diary got many eyes, but I just did a search on something related to it and it was high on the Google output.

      I have a lot of family from eastern KY, southern WV, western VA area. My father was born and raised in Pikeville, KY and I have lots of cousins, uncles and aunts in the area. I cannot get over the changes, particularly when you get off the beaten path. I could almost understand if mountaintop removal brought prosperity to the area, but there is no trickle down. It is hard to see.

      Thanks for reading.

      Be radical in your compassion.

      by DWG on Wed Mar 16, 2011 at 06:55:21 PM PDT

      [ Parent ]

  •  This country is turning... (1+ / 0-)
    Recommended by:
    DWG

    ...to shit before our very eyes.

    •  Sad but true (0+ / 0-)

      And you really have to wonder about American's willingness to sacrifice our own national resources and suffer the environments effects of extraction to benefit foreign companies. Frasure Creek is owned by Essar Group, a large energy and manufacturing company. They are expanding their mountaintop removal mining operations in Appalachia to send much of the metallurgic grade coal to steel manufacturing operations in India and Canada. The companies with uranium claims around the Grand Canyon are British and Canadian companies. The companies that are opening the largest gold mine in Alaska in the middle of the most sensitive headwaters of Bristol Bay are British and Australian. The Pebble Mine puts salmon spawning grounds at dire risk. Montana has agreed to the enormous Otter Creek coal mine and even contributing to the building of a spur railroad which will take the coal to Asian markets. The list goes on and on. It seems that America has lost the ability or desire to make anything and seems content to sell off our resources and suffer the environmental consequences to benefit foreign companies and markets. And politicians seem willing to settle for a little royalty and tax money in exchange for lax regulation. Our country is turning to shit before our very eyes.

      Be radical in your compassion.

      by DWG on Thu Mar 17, 2011 at 02:24:36 AM PDT

      [ Parent ]

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