Clean water advocates and concerned citizens across the nation will be monitoring a blockbuster Kentucky court case today, which will ultimately determine whether citizens can intervene in a state's gross mishandling of indisputable acts of contempt and egregious Clean Water Act violations by two coal companies.
According to many observers, the sheer number of fraudulent acts and mind-boggling oversights could turn this case into Big Coal's Watergate -- or Clean Watergate.
Thanks to the extraordinary investigative work of clean water advocates, Kentucky subsidiaries of International Coal Group and Frasure Creek Mining were singled out in an intent to sue notice last October of "over 20,000 incidences of these three companies either exceeding permit pollution limits, failing to submit reports, or falsifying the required monitoring data. These violations could result in fines that may exceed 740 million dollars."
Read that again: Over 20,000 incidences.
And yet, on one side of the courtroom today, humiliated Kentucky state officials who made an 11th hour move in December to slap a small fine -- less than 1% of the possible fine -- and limited "corrective actions" on the two companies' admittedly blatant violations, now claim that citizens groups are "unwarranted burdens."
Unwarranted burdens?
Today's hearing in the Franklin Circuit Court in Kentucky comes at the end of a public comment period required by the judge, regarding an intent to sue notice filed by affected Kentucky residents and citizens groups including Appalachian Voices, Kentuckians for the Commonwealth (KFTC), the Kentucky Riverkeeper, Waterkeeper Alliance and The Appalachian Citizens' Law Center last October.
Back in October, Appalachian Voices' legendary waterkeeper and watchdog Donna Lisenby, hailed by many in the nation as a cross between Rachel Carson, Mother Teresa and Rudy Guliani. spelled out the troubling nature of this case:
"The sheer number of violations we found while looking over these companies' monitoring reports is astounding. It shows a systematic and pervasive pattern of misinformation. These companies are making a mockery of their legal responsibility under the Clean Water Act and, more troubling, their moral obligation to the people of the state of Kentucky."
As part of their public comment, the Kentucky Riverkeeper and Appalachian Voices advocates filed an additional 35-page review last week of "additional data, facts and analysis that demonstrate why the Cabinet has not diligently prosecuted the case and why environmental groups should be allowed to intervene." Noting blatant cut and pass infractions, among numerous errors, their analysis found:
Stronger remedial measures and a corrective action plan with third party neutral oversight is needed to make the coal companies come into compliance...
First, the weakness of the consent judgments becomes apparent when you note that the environmental groups found over 20,000 violations of the Clean Water Act with 740 million in fines while the Cabinet found only 2,765 violations with fines of $660,000. Thus, the Cabinet found only 13.85 % the number of violations and levied less than 1% of the maximum fines possible.
Second, the weakness of the consent judgments becomes even more apparent when you examine what was possible using the Cabinet's own data.
In just one example of the many discharge monitoring reports submitted by ICG, they added:
"The DMR contains 42 identically repeated test results from the first quarter of 2009 to the second quarter of 2009. In the second quarter DMR, the 4 in the first quarter submittal date of 4/15/09 was scratched out and above it someone working for ICG penciled in the number 7. If this were a forgery case brought by the criminal justice system against someone accused of forging checks, the state would use this as evidence in the criminal prosecution that someone intentionally forged the check. For example, if John Doe originally wrote a check to Jane Simpson for 400 dollars and then Jane Simpson scratched out the number 4 and replaced it with the number 7 to make the check 700 dollars; this would be compelling evidence that Ms. Simpson made the change intentionally."
As many coalfields residents know, the $660,000 fine is a worthwhile slap on the wrist for coal companies like International Coal Group that continue to post huge million dollar quarterly profits.
More so, affected citizens argue that's it hard to imagine what Kentucky -- or any coalfields community -- would look like without neutral third party monitoring. Nearly a year ago, Kentuckians for the Commonwealth and the Sierra Club filed a complaint that the Frasure Creek Mining company had begun three mountaintop removal mining operations without proper permits. Less than two years ago, a massive boulder from a Frasure Creek Mining operation smashed the bedroom walls of a Floyd County resident's home.
The Kentuckians for the Commonwealth have posted an excellent background on the case here.
Looking back on the Watergate scandal in the 1970s, Washington Post publisher Katharine Graham noted: "If we had failed to pursue the facts as far as they led, we would have denied the public any knowledge of an unprecedented scheme of political surveillance and sabotage."
Considering the unprecedented scheme of Clean Water Act violations in these Kentucky cases, let's hope the Franklin Circuit Court -- and the nation's media -- will pursue the facts and make sure the public is not denied any knowledge or intervention in these outrageous acts.