Herald-Leader Editorial

Successful fight for clean water

Phony reports, lax state oversight

October 9, 2012 

Two years later, it's still hard to believe the travesty of phony water monitoring that Kentucky let the coal industry get away with.

The "false-reporting epidemic" was possibly the "most far-reaching and egregious noncompliance with the Clean Water Act in the law's entire 40-year history," according to a lawyer for the Waterkeeper Alliance, one of four groups, including Kentuckians for the Commonwealth, that recently reached what they call an historic settlement with the state and International Coal Group.

"It's astonishing that the cabinet could have been so oblivious," said the attorney, Peter Harris.

And he's right. It is astonishing — even in Kentucky where painful experience has taught us to expect government complicity with coal industry abuses.

The settlement, which awaits Franklin Circuit Judge Phillip Shepherd's approval, includes third-party auditing of ICG's water monitoring. The Clean Water Act relies on industry self-reporting with state oversight.

The lawsuit revealed a complete breakdown of state oversight, along with thousands of inaccurate water monitoring reports, including instances of cutting and pasting water data from one report to another for years, with only the dates changed.

These revelations prompted a state clampdown in late 2010. The onset of accurate reporting revealed subsequent water pollution violations for which ICG was fined $225,000. That's part of the $575,000 that ICG has agreed to pay in the proposed settlement.

ICG also has agreed to pay $125,000 to the Appalachian Citizens Law Center, a Whitesburg non-profit, to defray the plaintiffs' legal costs.

The groups that brought the suit insisted the money go into improving water quality in Eastern Kentucky. So, $335,000 will go to Eastern Kentucky PRIDE to eliminate straight pipe disposal of raw sewage.

In addition, $240,000 will go to help the state better gauge the cumulative effects on water quality of proposed mining.

The federal Office of Surface Mining is expected to provide matching funds, which if put to good use could shore up a major weakness in environmental protection and also help prevent flooding.

Still remaining to be seen is whether Frasure Creek Coal will be able to poor-mouth itself off the hook. Frasure Creek also submitted inaccurate water monitoring reports for years. But Frasure insists it can't afford to settle like ICG because it is no longer operating mines in Kentucky and is fending off involuntary bankruptcy.

In a filing in Franklin Circuit Court, Frasure claims it is being "held hostage" by the plaintiffs' "demands for a ransom" that the company cannot pay.

Frasure is a subsidiary of India's Essar Group, which has annual earnings in excess of $27 billion, according to CoalAge magazine. Essar acquired Frasure in 2010 after most of the violations had occurred.

Likewise, Arch Coal acquired ICG in 2011 after the suit was filed but still agreed to pay for ICG's misdeeds.

Finally, the Beshear administration should be ashamed that it fought Kentuckians for the Commonwealth and the other three groups at every turn.

The administration took its fight to exclude the citizens groups from being heard all the way to the state Supreme Court, where the administration suffered a unanimous rebuff.

Among the many positives the groups accomplished was clearly establishing the right of Kentuckians to have a say in clean water actions in state courts.

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