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Nothing to see here: Kentucky Cabinet fails to cover up coal pollution problems

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The Kentucky Energy and Environment Cabinet’s attempts to rebuke critics can’t make up for its failure to notice blatant Clean Water Act violations or prosecute coal company misdeeds.

Kentucky’s environmental regulators can’t have it both ways. On one hand, the Kentucky Energy and Environment Cabinet claims it does not have enough funding to do its jobs. On the other, the Cabinet says it is doing its job just fine.

Longstanding failures of the Cabinet, which regulates coal mines and other polluters, have become even more evident in light of a judge’s recent ruling, and new legal action brought by Appalachian Voices and our partners.

In a scathing opinion, Franklin Circuit Court Judge Phillip Shepherd rejected two settlements last week that the Cabinet had reached with Frasure Creek Mining. Those two settlements were meant to resolve water quality and false reporting violations first identified and brought to the Cabinet’s attention by Appalachian Voices and our partners in 2010.

A week before that decision was released, Appalachian Voices and our partners filed a 60-day Notice of Intent to Sue Frasure Creek Mining for once again submitting false water monitoring reports in 2013 and 2014. Not only were there hundreds of reporting forms where the same data was reused multiple times, in some cases pollution violations were removed before data was reused.

Appalachian Voices is joined in these efforts by Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance, jointly represented by Mary Cromer of Appalachian Citizens’ Law Center, Lauren Waterworth and the Pace University Environmental Litigation Clinic.

Not Just a Matter of Money

The Cabinet has repeatedly claimed to be fulfilling its duties under the Clean Water Act (see Figure 1). Yet in the cases against Frasure Creek the Cabinet has ignored the underlying problems. The original settlement with Frasure Creek ignored the underlying pollution problems that were being masked by false reporting, or what the Cabinet wrote off as “transcription errors.” And the Cabinet’s response to our discovery that Frasure Creek continued its false reporting practices follows this trend by focusing solely on “violations as submitted” on water monitoring reports, ignoring the fact that those reports are false or could even be fraud.

In response to our recent Notice of Intent to Sue Frasure Creek for 28,000 new violations of the Clean Water Act, the Cabinet issued a press release that essentially claimed it has everything under control and we are doing our jobs.’ The statement goes on to defend its settlements with Frasure Creek — the ones thrown out by Judge Shepherd the next week — and also claimed that they had been looking into Frasure Creek’s more recent violations:

“The Division of Enforcement within the Cabinet has been monitoring compliance with the April 13, 2013 Agreed Order with Frasure Creek and initiated an internal compliance review in January 2014 that has identified violations as submitted on DMRs [Discharge Monitoring Reports] to the agency. Administrative action on those violations is ongoing and is pending within the agency.”

Seeking to understand the validity of these claims, our lawyers submitted a formal request for the information on the Cabinet’s “internal compliance review.”

In a bold showing of its own incompetence, the Cabinet responded asking for us to clarify what we meant by “[v]iolations ‘mentioned in’ the press release.” It appeared that they did not even know what they were referring to in their own press release!

Once we clarified our request, we did receive this convoluted response:

The phrase ‘internal compliance review’ that was used in the November 17, 2014 press release is a term used to describe the primary function of staff in the Compliance and Operations Branch of the Division of Enforcement (DENF)…. The phrase does not encompass a specific period of time with dates certain for beginning and ending the compliance process, but it is used within DENF to refer to any ongoing review. With respect to Frasure Creek, our compliance review is ongoing and underway at this time, but it has not progressed to the point where NOVs [Notices Of Violation] have been issued or referrals for enforcement action have been generated.

In plain English, the Cabinet’s response essentially says it has been looking at Frasure Creek’s violations, but officials either haven’t written anything down about them yet or, if they have written anything down, they refuse to disclose it. So, just like past claims that the Cabinet is doing its job, this response is empty.

The fact that the agency is strapped for cash, has never been in question — even Judge Shepherd agrees. As he stated in his recent ruling:

Commissioner Scott further testified that the Cabinet has been subjected to a series of major budget cuts during the last 10 years that have drastically and adversely affected the ability of the Cabinet to do its job in implementing the Clean Water Act.

[T]he record in this case makes it abundantly clear that the Cabinet simply lacks the personnel and budget to effectively investigate and enforce these requirements of law.

But it’s not a lack of funding keeping the Cabinet from effectively enforcing laws as much as it is a lack of will to do so.

You would think that if the Cabinet truly were intent on protecting the environment they would have punished Frasure Creek, to make an example of the company, rather than wasting taxpayer dollars trying to prevent citizen involvement in this case. You would also think that the Cabinet wouldn’t spend its limited resources on unsuccessful legal challenges to EPA guidance on conductivity pollution from coal mines, or weakening water quality standards for selenium, a common coal mining pollutant.

The Cabinet’s the top officials serve at the pleasure of Gov. Steve Beshear. A governor whose strong pro-coal attitude is without a doubt. In one State of the State address, Beshear went so far as to say “Washington bureaucrats continue to try to impose arbitrary and unreasonable regulations on the mining of coal. And to them I say, ‘Get off our backs!’”

Beshear is not the only politician in Kentucky beholden to the coal industry. The recent senate race between Mitch McConnell and Alison Lundergan Grimes was largely a contest of who could could out “pro-coal” their opponent. Shortly after his victory McConnell even said “I’m going to go to war with [Obama] over coal.”

When elected officials are beholden to a single industry, as many are in Central Appalachia, it’s no surprise that regulators would be easy on that industry. But this level of influence is out of control in Kentucky. Coal companies should not be able to flout the law without fear of serious prosecution. And whether their bosses like it or not, the Cabinet still has the legal duty to uphold the Clean Water Act.

Criminal Charges for Frasure Creek

The Cabinet and other Kentucky officials have generally ignored or dismissed the possibility that this false reporting was intentional fraud. But recent cases of lab fraud in West Virginia make criminal prosecution seem more feasible. One case involved discharges from coal mines where a laboratory employee was collecting water samples from a “honey hole,” a spot known to have good water quality rather than from the actual pollution discharges. In another, a contract employee was reusing data from previous water monitoring reports because they had failed to pay their laboratory.

I statement that certainly indicates that a criminal investigation should have been going on. Judge Shepherd stated in his recent ruling:

The conditions observed by the Cabinet’s inspectors during the performance audit of Frasure Creeks’ so-called “laboratory” demonstrated either a plan or scheme to submit fraudulent information in the DMRs or incompetence so staggering as to defy belief.

Kentucky Attorney General and gubernatorial hopeful Jack Conway has vowed to look into the new Frasure Creek violations, but his team looked into the previous violations several years ago, and told reporter Ronnie Ellis that they couldn’t find anything “that rises to the level of intent or criminal fraud that’s ready to be prosecuted.”

The Cabinet’s dismissive attitude toward the seriousness of environmental problems in Kentucky is unsurprising given the state’s political climate, not to mention the fact that the Frasure Creek cases expose the agency’s utter incompetence. But the jig is up. It’s time for the Cabinet to either start doing their jobs or step aside and let the EPA do it instead.

Protecting the Central and Southern Appalachian Mountain Region


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