State opposes motion to intervene in coal water case

Challengers questioned pollution findings

dhjalmarson@herald-leader.com,By MeJanuary 21, 2011 

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.

They want to intervene because they believe the state has not been tough enough on the coal companies.

"I am extremely disheartened at the low dollar amounts and other penalties as currently negotiated in the consent judgments," Don Ament of Lexington wrote in a letter submitted through Appalachian Voices of North Carolina, an environmental advocacy group.

"The river in our town used to be safe enough to fish in. The river is now contaminated with mining waste and is not fishable," wrote Lisa Lyford, a University of Cumberlands biology department employee. "The mining companies need to follow the law and stop polluting our water resources. Please prosecute them to the fullest extent of the law for the crimes they have already committed."

The Herald-Leader obtained the comments that were submitted to the Appalachian Voices group.

The lawsuit and simultaneous settlement occurred after several environmental groups filed a notice of intent to sue ICG of Hazard and Knott County and Frasure Creek Mining. The groups said they had evidence of thousands of instances of false reporting of the amount of pollutants discharged into the waters of Kentucky.

The state said they found no evidence of fraud in the reporting.

The groups' initial filing of intent to sue triggered an investigation by state officials, who are charged with enforcing the Clean Water Act. On Dec. 3, the Energy and Environment Cabinet announced that it had found around 2,700 instances of poor record-keeping by the laboratories that test the water for the companies and report it to the state and one instance of excessive pollution by the companies. Frasure Creek Mining agreed to pay $310,000, and four subsidiaries of ICG — East, Knott County, Hazard and Powell Mountain Energy — agreed to pay $350,000.

As a result of the environmental groups' action, the cabinet said, it investigated, issued citations, and negotiated a comprehensive settlement with the companies, which are complying.

The state also announced a plan to push for the legislature to require certification of the laboratories that test coal mine waste water.

"The Cabinet's response to the allegations ... was swift and thorough," the cabinet's attorneys wrote to the court. The cabinet conducted new tests of water discharges, inspected the Hazard and Johnson County laboratories, and found and inspected missing and unfiled data that the environmental groups would not have had access to.

Appalachian Voices analyzed data collected on the three companies. The group told the court it is suspicious of significant drops in conductivity values reported by the companies before and after April 1 guidelines by the Environmental Protection Agency. Conductivity is a measure of how well water carries an electric charge; the more microSiemens, the more dissolved minerals and other matter in the water.

In the last quarter of 2009, conductivity of water covered by Frasure Creek's permits, for example, hovered between 900 and 1,200 microSiemens. But in the first quarter of 2010, all conductivity measure dropped to between 400 and 600 microSiemens.

The cabinet is trying to help the coal companies evade federal regulation, Appalachian Voices said.

"It is obvious to us that the cabinet is acting in collusion with the defendants in their best interests," Kentuckians for the Commonwealth Chairman Steve Boyce said in a letter submitted to the judge. "The evidence of fraud is plain and in the open and the cabinet dismissal of this evidence as merely a clerical mishap reinforces all the concerns we have expressed in this letter and in our legal filings."

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