Group files notice of intent to sue coal mining company for polluting water

dhjalmarson@herald-leader.comMarch 10, 2011 

An environmental coalition filed a second notice of intent to sue a Kentucky coal mining company and called the state's enforcement of the federal Clean Water Act an "abysmal failure."

The group Appalachian Voices announced Wednesday it found that Bardstown-based Nally & Hamilton Enterprises submitted inaccurate water pollution reports to the state and might have failed to perform testing and monitoring. Appalachian Voices said it reviewed discharge monitoring reports, which are public records, and identified more than 12,000 violations of the Clean Water Act with potential penalties of more than $400 million.

"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," Appalachian Voices said in a news release Wednesday.

"As it is, we don't know what's being dumped in our water. We can't trust the reported data," said Pat Banks, of Kentucky Riverkeeper.

The group said Nally & Hamilton misreported levels of manganese, iron and other pollutants from July 2008 to June 2010 at operations in seven Eastern Kentucky counties.

The same coalition comprising Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance filed a similar action in October against ICG of Knott County and Hazard and Frasure Creek Mining, the two largest producers of surface-mined coal in the state.

The state Energy and Environment Cabinet investigated and settled a resulting Franklin Circuit Court lawsuit with the two companies for a total of $660,000 for 2,700 violations and said most of the violations were paperwork errors by the contracted water testing laboratories.

Franklin Circuit Judge Phillip Shepherd ruled Appalachian Voices can intervene in that settlement, and the state has appealed his decision.

Under Clean Water Act rules, the cabinet and Nally & Hamilton have 60 days to investigate and take corrective action before Appalachian Voices can file a citizen suit in U.S. District Court.

"When we first made violations by ICG and Frasure Creek Mining public in October, the state agency said they would start reviewing water test results submitted by coal companies and start enforcing the law. Clearly they haven't done that and yet again, citizens groups are forced to take legal action in order to protect waterways and communities in Kentucky from water pollution," said Donna Lisenby of the North Carolina-based Appalachian Voices.

Lisenby said her group found by the Energy and Environment Cabinet an "abysmal failure to properly review water testing companies' reports."

She said Nally & Hamilton is the fourth-largest producer of surface-mined coal in Kentucky. Appalachian Voices is reviewing discharge monitoring reports from the third-largest producer, too, Lisenby said, but isn't prepared to discuss findings.

"The Energy and Environment Cabinet has not been idle on this issue," cabinet spokesman Dick Brown said in an e-mail.

"We've been developing a long-term approach to the issues and working aggressively to implement the changes that will address these concerns. Many of these procedures are already in place."

The cabinet's Department for Environmental Protection is reviewing all contract labs that provide water analyses for reporting on mine discharge monitoring reports, Brown said. Gov. Steve Beshear supported legislation to create a certification process for those labs.

"This is a tremendous step forward," Brown said.

The Department for Natural Resources has inventoried all discharge monitoring reports for completeness and has issued citations where appropriate, he said.

Nally & Hamilton, a private company, according to its Web site pays its 420 employees $26 million a year and operates eight surface mines in Bell, Harlan, Leslie and Letcher counties. Its contractors operate one deep mine and one highwall mine in Bell County. It sells coal to Tennessee Valley Authority, Kentucky Utilities and others.

Nally & Hamilton owners and employees donated $7,500 to Gov. Ernie Fletcher's 2007 election campaign and $4,000 to Beshear's 2011 campaign, according to the Kentucky Registry of Election Finance.

New York-based Waterkeeper Alliance President Robert Kennedy Jr. said the state defends an industry that touts false claims of bringing economic prosperity to Appalachian communities.

"What happens when state agencies and enforcers become captured by the industries that they are supposed to regulate? We've seen that in Kentucky," Kennedy said. "There's no stomach by the U.S. attorney in Kentucky and the Kentucky attorney general to prosecute these crimes."

Nally & Hamilton Vice President Stephen Hamilton said Wednesday that he hadn't received the notice from Appalachian Voices.

"I can't comment on something I haven't seen," he said.

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