Frasure Creek Mining-Up to the Same old Tricks: Fake Water Reporting Continues at Kentucky Coal Company

They say you can’t teach an old dog new tricks. That certainly seems to be the case with Frasure Creek Mining. Four years ago we took legal action against them for submitting false water monitoring reports, and now they are at it again, but this time the false reporting is even more extensive.

In 2010 Appalachian Voices and our partner organizations filed a Notice of Intent to Sue Frasure Creek and International Coal Group (ICG) for submitting water monitoring reports to the state of Kentucky that were blatantly incorrect. Back then both companies were re-using the same quarterly reports, changing the dates on the reports but reusing all the water monitoring data. The reports have changed from paper to electronic documents, but Frasure Creek’s practice of reusing them has returned. Today we sent the company another Notice of Intent to Sue for these new duplicated reports.

The Kentucky Energy and Environment Cabinet filed a slap on the wrist settlement with the companies, writing off the duplications as “transcription errors” and effectively preventing our legal case from going forward. We challenged that settlement in state court and eventually reached a settlement with ICG, but not with Frasure Creek. We are still waiting on a decision in that case.

Before our initial legal action the companies rarely, if ever, submitted reports that showed violations of their pollution limits. As a result of our investigation the companies hired new, more reputable labs and began reporting lots of pollution problems, making it clear that their false reports were hiding serious pollution problems. We tried to sue Frasure Creek for these pollution violations, but the state reached another slap on the wrist deal with them, effectively tying our hands.

All of this raises one important question: who would be stupid enough to do the exact same thing that they got in trouble for again? One would think that it must have been an accident, because no one would be stupid enough to do this again, but there are a few factors that seem to contradict that idea:

• In 2014 when Frasure reused data they occasionally changed a little bit more than just the dates. There are a number of new duplications where the original report showed violations of pollution limits. All of the data in these reports was reused except for any violations which were replaced with a few very low numbers. Basically, they are removing violations from reports before reusing them. Personally, I am really looking forward to the convoluted tale that Frasure will tell to try to explain away these as “transcription errors.”

• These new duplications are far too common for them to be an accident made by someone who was putting any modicum of effort into their job. In the first quarter of 2014 the company submitted over 100 duplicated reports, meaning almost half of the reports they submitted that quarter were false. That is almost three times the number of false reports they got caught for the first time around, and translates out to almost $1billion in potential fines.

• They aren’t afraid of getting caught because the consequences are extremely low. The Cabinet’s settlements with Frasure Creek are so weak that they don’t discourage this type of false reporting, and our challenges to these two settlements have been going nowhere, just sitting in court for several years. In fact it seems that one of these settlements was so weak that it may have even encouraged Frasure Creek to begin using false data again. The new duplications occurred during the one year where one of these settlements set automatic penalties of $1,000 pollution violation. When those penalties were in effect Frasure Creek submitted lots of duplicated reports, but only reported a handful of pollution violations. (See the period in the blue box on the graph.)

Frasure Creek has about 60 permits across Eastern Kentucky, mostly for Mountain Top Removal mines. Most of these new duplications occurred at their mines in Floyd County, but some of them also occurred at their mines in neighboring counties. Pollution from these mines flows into the Big Sandy, Licking and Kentucky Rivers.

Frasure Creek may be a bad actor in the mining industry but they are not alone in this type of false reporting. A few years ago we took legal action against the three largest coal producers in Kentucky (including Frasure Creek), all of which were turning in false water monitoring reports produced by three different laboratories. In recent weeks there have been two criminal cases in West Virginia for false water monitoring, one at coal mines, and one for duplicating reports exactly like what has been going on here.

These pollution reports are the foundation of the Clean Water Act regulations. Without accurate reporting it is impossible for regulators to effectively protect the people and the environment from dangerous and illegal pollution. So the fact that the Kentucky Energy and Environment Cabinet and the EPA have done so little to stamp out false reporting in Kentucky is simply deplorable.

Appalachian Voices is joined in this effort by Kentuckians For The Commonwealth, Kentucky Riverkeeper, and the Waterkeeper Alliance. The groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

>> View The Notice of Intent to Sue here (.pdf)
>> View our Press Release here
>> View some examples of duplicated reports here