Editorials

What internal compliance review? Ky. environment cabinet can't document its own enforcement claim

When four citizens groups notified Kentucky's environmental cabinet on Nov. 17 that Frasure Creek Mining was up to its old tricks, filing false water monitoring reports, and that the groups again intended to sue, the cabinet issued a news release that made it sound as if state enforcers had spotted the violations and were taking action.

"The Cabinet has been monitoring compliance with the April 13, 2013, agreed order with Frasure Creek and initiated an internal compliance review in January that has identified violations as submitted ... to the agency. Administrative action on those violations is ongoing and is pending within the agency."

It made sense that the cabinet would be keeping close watch, if only to spare itself from another spectacularly embarrassing revelation like the one in 2010 that Frasure Creek and another large coal company had been submitting obviously false water pollution data for years without anyone in Frankfort noticing.

But if the cabinet is taking action, internal or otherwise, to enforce the Clean Water Act against Frasure Creek, there's no paper trail.

We know this because one of the lawyers for the citizens groups, Mary Cromer of the Appalachian Citizens' Law Center in Whitesburg, filed an open-records request and was informed there were no records matching the description in the cabinet's news release.

Michael Haines, general counsel for the Energy and Environment Cabinet, explained that the "internal compliance review" cited in the Nov. 17 news release referred to the Division of Enforcement's general responsibility to "examine the records and actions of companies throughout Kentucky to determine whether" they were complying with the laws and regulations. "With respect to Frasure Creek, our compliance review is ongoing and underway at this time, but it has not progressed to the point where NOVs (notices of violation) have been issued or referrals for enforcement action have been generated."

Ronnie Ellis of CNHI News reports that a spokesperson for the cabinet had nothing to add to Haines' explanation.

We don't know what to add, either, except that the state's environmental agency has again sent the message, perhaps unwittingly, that if you're a coal company in Kentucky, it probably does pay to cheat.

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