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.”
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.