Politics & Government

Environmental groups accuse Kentucky coal company of resuming falsified pollution reports

A coal train near Typo Tunnel Lane in Typo on Dec. 11, 2006.
A coal train near Typo Tunnel Lane in Typo on Dec. 11, 2006. LEXINGTON HERALD-LEADER

A coal company in Eastern Kentucky has resumed filing false water-pollution reports despite being caught cheating on previous reports that concealed widespread violations, environmental groups have charged.

Four groups notified state and federal officials Monday of their intent to sue Frasure Creek Mining and an affiliate, Trinity Coal Corp.

It appears Frasure Creek stopped submitting false reports for a while after citizen groups first notified state regulators of the problem in 2010, but the company returned to filing improper reports last year, the notice filed Monday alleged.

"We were completely shocked to find they were doing the same thing again," said Mary Cromer, an attorney with Appalachian Citizens' Law Center in Whitesburg, who is helping represent the environmental groups.

The notice also accuses state mining regulators of failing to police the coal company properly.

However, a spokesman for the state Energy and Environment Cabinet said regulators spotted violations on water-monitoring reports from Frasure Creek this year and were processing enforcement actions.

Efforts to reach the company Monday were not successful.

The groups that filed notice of intent to sue were Appalachian Voices, Waterkeeper Alliance, Kentuckians for the Commonwealth and Kentucky Riverkeeper. Also suing is Pat Banks of Richmond, who is with Kentucky Riverkeeper.

The groups were required under federal law to give notice of their intent to sue 60 days before filing a lawsuit.

Coal companies must monitor pollutants draining from surface mines into streams and report the data to the state. If pollutants exceed certain levels, the state is supposed to investigate and may issue citations.

The groups allege that Frasure Creek copied identical information from some reports onto later reports in dozens of instances in 2013 and the first half of 2014. It would be unusual for discharges from different times to be exactly the same.

The company also reported that the level of pollutants, such as manganese and iron, from its surface mines exceeded legal limits in more than 900 instances during the first half of 2014, according to the notice filed Monday.

The road to Monday's notice stretches back to 2010.

Citizen groups said then that their review of discharge monitoring reports from 13 mountaintop mines operated by Frasure Creek, as well as reports from another coal company, ICG, found numerous instances in which the companies had copied and pasted data from report to report.

The federal clean water act relies on honest self-reporting by companies, but Frasure Creek did not report a single case of being over pollution limits in suspect reports from 2008 and 2009, the groups said. They also said the state had failed to notice the problem.

The state negotiated a settlement with the companies. ICG agreed to pay $575,000. The deal called for Frasure Creek to pay $310,000, but the environmental groups sued to intervene, arguing the proposed penalty wasn't sufficient to deter the company from committing more violations.

The settlement has not been finalized.

After Frasure Creek switched testing labs, it reported 2,800 instances of exceeding pollution limits during the first quarter of 2011 alone, according to the notice filed Monday.

That was a clear indication the company's earlier reports had concealed serious pollution problems, the groups said.

After the groups threatened to sue again, the state negotiated another settlement with Frasure Creek, which the groups argue was a "sweetheart deal" to head off their effort to hold the company accountable in court.

The company started giving state regulators discharge reports with duplicated information after that settlement was finalized in April 2013, submitting more than 100 that contained identical or nearly identical data, the new notice alleges.

Regulators at the Energy and Environment Cabinet have failed to notice the widespread improper reporting, an "unforgivable dereliction" of their duty to protect the public, the groups said in the lawsuit notice.

The cabinet disagrees, saying in a statement on its website that contrary to "inaccurate and inflammatory statements" by the environmental groups, the agency has been actively monitoring Frasure Creek and other mining companies to enforce the law.

The Division of Enforcement has reviewed 179,000 discharge monitoring reports since 2011, levied $3.69 million in penalties and set up 67 enforcement agreements, the cabinet said.

"The agency has and continues to proactively review and take appropriate enforcement actions to resolve violations identified during the inspection and review of coal mining operations," the cabinet said.

The cabinet said it required Frasure Creek to set up a plan to fix violations in 2013. In monitoring compliance, the Division of Enforcement did a review in January and identified violations on monitoring reports, according to the cabinet.

The statement said action on those violations was pending. Spokesman Dick Brown said it would be premature to discuss whether those violations involved submission of alleged false data.

Brown said Frasure Creek paid $220,000 under the 2013 settlement.