Coal company dirtied water, state says let public pay clean up

Ned Pillersdorf is a Prestonsburg attorney. Reach him at pillersn@gmail.com
Ned Pillersdorf is a Prestonsburg attorney. Reach him at pillersn@gmail.com

Imagine the political attack ads if a Kentucky judge did the following to a criminal defendant who was found guilty of destroying the property of his neighbors and was ordered, as part of his sentence, to pay restitution to repair the damage:

Years go by and the defendant ignores the judge's orders. Fed up, the victims return to court to ask the judge to force the defendant to pay for the damage that was done. To their shock, the judge instead announces that he will decline to enforce his own orders and tells the victims that they are going to have to wait until the taxpayers or perhaps a "public funding source" pay for the damage.

In other words, rather than make the private wrongdoer pay for the damage, the judge tells the taxpayers to foot the bill.

Far fetched?

Actually it's not. What I just described is now happening to about 50 families who live in the Premium area of Letcher County.

About five years ago, complaints from the Premium area caused the Kentucky Energy and Environment Cabinet to send investigative crews to determine why the water wells in Premium had suddenly dried up or become discolored and undrinkable. The verdict was the same in all instances: Sapphire Coal, a company that had several mining operations in the community, had destroyed the water systems.

Sapphire, to its credit, did not challenge the findings and agreed to provide temporary water supplies. If you drive around Premiuim today you will see large cream-colored plastic tanks full of water. However, the water in the tanks is undrinkable and folks describe it as "fire-hydrant water."

Sapphire also agreed to deliver bottled water, which it still does today.

Under the administrative orders issued by the cabinet, Sapphire agreed to provide a permanent source of water within two years. These orders look very real and seem authentic, but they are not. Sapphire and the cabinet have decided to pretend the orders don't exist. The residents describe the orders as "decorative," something they can hang on their walls, but have no meaning.

There is no permanent source of water in Premium today. The orders by the cabinet giving Sapphire Coal two years to provide a water supply were issued more than three years ago.

In early February I was contacted about representing the folks in Premium. Driving through the area, you pass mostly humble dwellings — Letcher County is one of the nation's most impoverished counties — along with abandoned mine sites and the large plastic water tanks provided by Sapphire.

When I contacted the cabinet on behalf of the residents about their unenforced orders, the cabinet did not directly respond to me. The following is what I read in the Feb. 27 edition of the Whitesburg Mountain Eagle: "Asked by a WYMT reporter for comment on the lawsuit and accompanying documents that show state regulators determined that Sapphire was responsible for destroying the water wells, (cabinet spokesman Dick) Brown admitted the Energy and Environment Cabinet has given Sapphire a number of extensions on deadlines to fix the water supplies so the problem could be solved when public water lines are extended into the area.

"'Forcing Sapphire into expensive and protracted litigation while the company awaits word of possible public funding for a permanent water supply solution, a project that should be underway soon, is counter-productive, in the department's opinion,' Brown said in a written statement."

Yes, the cabinet's response is exactly like that of the imaginary judge to whom I alluded at the beginning of this article, the one who would let the taxpayers "through possible public funding" pay for the damage that Sapphire has done.

According to the Mountain Eagle, Sapphire Coal is currently owned by Ukranian billionaire Rinat Akhmetov, whose $16 billion fortune placed him at No. 39 on Forbes' March 2012 list of the world's richest people. Alas, another reason why the cabinet won't enforce its own orders — they don't want to upset anyone who lives in the Ukraine. Let the folks in Letcher County suffer instead.

Maybe the cabinet and its Ukranian friend should come to Premium and drink the well water. They would deserve the consequences.