Environmental groups sue ahead of fine mediation

LOUISVILLE — A coalition of environmental groups unhappy with a settlement Kentucky officials offered to two coal companies for violations at Appalachian surface mines has filed federal lawsuits against the companies under the Clean Water Act.

The four groups sought to block the settlement that Frasure Creek Mining and ICG reached with Kentucky officials last year over water-quality monitoring violations. They say the $660,000 total fine was too light a punishment for allegedly falsifying water discharge reports and releasing polluted water.

In September a judge in Frankfort asked the groups and the coal companies to meet with a mediator to attempt to reach a new settlement.

The Oct. 25 filings in federal court in Pikeville allow the groups to keep their Clean Water Act legal action going in federal court in case there is a stalemate in mediation, said Ted Withrow, a Morehead-based organizer with Kentuckians for the Commonwealth, one of the four environmental groups involved in the suits.

Withrow said mediation was set to begin in January.

"We will go in good faith and we would be willing to settle this," Withrow said. The companies "know what we want based on previous mediations." He said that the parties are under a gag order and that he could not give details about what the environmental groups are seeking.

A spokesman for St. Louis-based Arch Coal Inc., which owns ICG, did not respond to a request for comment on the suits.

No one answered calls to a Frasure Creek office in Kentucky on Wednesday. The company, based in Scott Depot, W.Va., is a subsidiary of India energy giant Essar and operates seven surface mines in West Virginia and Kentucky.

Withrow, a former coordinator with Kentucky's Division of Water, said blasting at mountaintop-removal and other surface mining sites exposes long-buried metals and minerals that are then carried into waterways.

"When it rains, you get a toxic tea that comes out of there because the water runs through the rocks, (and) picks up the metals and minerals at much higher levels that are safe for human consumption," he said. He said if the water discharges are not monitored properly, "the Clean Water Act has no value."

The federal suits ask for civil penalties of up to $37,500 a day for each violation of the Clean Water Act.

North Carolina-based Appalachian Voices, Kentucky Riverkeeper, New York-based Waterkeeper Alliance, along with Kentuckians for the Commonwealth and four citizens are named as plaintiffs in the suits. The groups first took action in October 2010 by filing a notice saying they intended to sue the two coal companies for falsifying water quality reports that record pollutant levels contained in water runoff at surface mines.

The suits say after the October 2010 notice was filed, the companies hired new laboratories to handle the reports, and the reports began showing pollutant levels beyond what is allowed by federal regulations.

In December, the state negotiated a settlement, called a consent decree, in Franklin Circuit Court with Frasure Creek and ICG for $660,000 that covered all known and unknown violations over a five-year period. Franklin Circuit Judge Phillip J. Shepherd later allowed the environmental groups to intervene in the settlement case in his court.

This story was originally published November 3, 2011 at 6:01 AM with the headline "Environmental groups sue ahead of fine mediation."