Coal companies sued for more than 20,000 clean water violations, fraud

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Environmentalists are asserting that three coal companies in Kentucky have falsified monitoring data and are in violation of the Clean Water Act many, many times over. The plaintiffs are Kentucky residents, Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance, and they've filed a 60-day notice of their intent to sue (which they're required to do by law) alleging three coal companies in eastern Kentucky, ICG Knott County, ICG Hazard and Frasure Creek Mining (a subsidiary of Trinity Coal) have "exceeded pollution discharge limits in their permits, consistently failed to conduct the required monitoring of their discharges and, in many cases, submitted false monitoring data to the state agencies charged with protecting the public."

“Our state officials have closed their eyes to an obviously serious problem,” said Ted Withrow, the retired Big Sandy Basin Management Coordinator for the Kentucky Division of Water and a member of Kentuckians For The Commonwealth. “These are not small exceedances — some are over 40 times the daily maximum. This should have been a red flag.”

During a telephone conference this morning, Donna Lisenby, of Appalachian Voices, said the environmentalists realized something was amiss when data in permits was missing, dates and signatures didn't match, and, in at least one instance, it appeared that a coal company copied and pasted monitoring data from one report to another. Lisenby says the odds of that monitoring data being exactly the same on two reports "is less probable than the odds of winning the Power Ball lottery." Also, they found instances where test results were submitted to the state months before they could have been taken. In the example Lisenby used, August and September data was submitted in July at one point.

Robert F. Kennedy Jr. (yes, that one), of the Waterkeeper Alliance, was also on the call. He said it's unusual to discover fraud of this magnitude, pointing out that the entire system is based on integrity and honesty since many discharge permits allow the coal companies to monitor themselves. He likened lying on the monitoring reports with lying on your tax returns, an act that can lead to both federal and state penalties and even jail time.  Kennedy said the fraud in these cases wasn't an accident, saying it appears to have been the company's regular practice.

All you have to do, he said, is look at the signatures on the documents, signatures affirming the information was correct even though it was dated before the data could have been collected. "In some cases, they didn't even bother to conceal the fraud," he said, adding that on some documents, the companies simply scratched out dates and wrote in new dates. "They did it so openly, it was almost like begging to be caught."

The violations could result in penalties totaling nearly $750 million, since each violation could result in a $37,500 fine. However, based on the violations uncovered, the liability exposure — in addition to fines — is significantly higher. There may also be criminal implications.

When asked by a member of the media if the U.S. Environmental Protection Agency or the state of Kentucky has acted on the violations, Kennedy, a former prosecutor, pointed out that the EPA just released a statement indicating they oppose the renewal of the companies' discharge permits. He also said he's never known the agency to use such strong language and that it appears the federal agency is about to strip the state's regulatory authority and ability to issue their own permits, which he says he believes is unprecedented.

Lisenby says she asked the EPA for evidence that the agency issued violations for the instances noted in the lawsuits and found that they had not. She says she found no evidence that any regulatory body has acted on the violations. She also said she and her peers are not about to stop requesting information and investigating discharge monitoring data, but she declined to say which companies will next be the focus of their investigation.

It should be noted that Duke Energy, a Charlotte-based coal company, does do business in Kentucky.

Lisenby called for independent, third-party reviews of discharge permits across the nation, saying she feels they've just begun to scratch the surface of these types of violations. She specifically asked the media, academics and citizens to blow the dust of their area's monitoring data — as she literally had to do in Kentucky. She also said it's clear state regulatory bodies aren't actively reviewing the monitoring data from coal companies.

Here's why this is important for Charlotte:

Under the Clean Water Act, anyone discharging pollutants into waterways must have a permit. Those permits establish limits for what companies can discharge. In some cases, the state does not limit the amount of some substances. (At Duke Energy's Riverbend coal plant — the one that discharges 1-3 pounds of arsenic per day into Mountain Island Lake, aka our drinking water — the N.C. Department of Environment and Natural Resources does not limit the amount of arsenic, a known carcinogen, despite pleas from local governments and environmentalists to do so.)

As you know, we've got more high-hazard coal ash ponds in our state than any other. There are four near Charlotte and two — both behind the Riverbend coal plant — discharging directly into our main drinking water reservoir. As things go, the discharge permits for all four of those Charlotte-area coal ash ponds are up for renewal — in fact, the ones discharging into Mountain Island Lake expired on Feb. 28 of this year.

There's going to be a public hearing regarding these permits on Oct. 19 in Mooresville. You can learn more about it from the Catawba Riverkeeper.

Review the documents:

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