Frasure Creek lawsuit

Last updated

The Frasure Creek lawsuit was a legal action by environmental organizations Waterkeeper Alliance and Appalachian Voices against Frasure Creek Mining and International Coal Group (ICG) on grounds of falsifying pollution discharge in their reports. [1] This violated many key components of the Clean Water Act (CWA), which controls and regulates many types of pollution entering into waterway. [2] Individual citizens joined the environmental organizations to sue the coal mining companies under the CWA. [3] The Kentucky Energy and Environment Cabinet attempted to settle in Franklin Circuit Court in December, 2010 but was denied. [4] The case moved forward to the Kentucky Supreme Court in April, 2012 who agreed with lower court rulings that Appalachian Voices and others were legally supported by the CWA to intervene in the lawsuit against Frasure Creek Mining and ICG. [5]

Contents

Frasure Creek history

Found in McDowell Floyd County, Kentucky, [6] Frasure Creek, officially known as Frasure Creek Mining LLC, was a Surface mining/Mountaintop removal mining location in Eastern Kentucky [7] counties of Floyd, Magoffin, Pike, and Knott. This mine was formally the largest producer of coal in the state of Kentucky Coal mining in Kentucky however after being cited for nearly 20,000 violations of the clean water act, the mine had a maximum penalty of 700 million dollars for shutting down the mine.

Frasure Creek Mining lawsuit

In 2010, environmental organizations Appalachian Voices and Waterkeeper Alliance had reason to believe that Frasure Creek Mining and International Coal Group (ICG) were falsifying reports and violating permit limits. [1] Frasure Creek Mining was accused of having close to 20,000 violations of the Clean Water Act. [7] The Clean Water Act (CWA), previously known as the Federal Water Pollution Control Act of 1948, was amended in 1972 with growing environmental concerns in the United States. [3] For years, Frasure Creek Mining and ICG were suspected of falsifying pollution discharge by reporting the same numbers but changing the dates. [8] The coalition of environmental organizations including Appalachian Voices, Waterkeeper Alliance, Kentuckians for the Commonwealth and Kentucky Riverkeeper moved forward to sue Frasure Creek and ICG with support from citizens in October, 2010. Legal representations for the groups included Pace Law School Environmental Litigation, Appalachian Citizens' Law Center and Waterworth Law Office. [8] The Kentucky Energy and Environment Cabinet attempted to reach a settlement before a federal lawsuit ensued in Franklin Circuit Court December, 2010. Judge Phillip Sheperd denied these settlements, agreeing with the environmental organizations that fines would not prevent future violations from the companies who had already failed to comply previously. [4] On April 26, 2012, the Kentucky State Supreme Court also agreed with lower court rulings that Appalachian Voices, Kentucky Riverkeepers and others were supported by the Clean Water Act to intervene in the lawsuit. The Clean Water Act allows public enforcement on standards and regulations, established and assisted by the Administrator and the States. [5]

Broken regulations and the effects of Frasure Creek Mining

The tens of thousands falsified data measurements that Frasure Creek reported to the state of Kentucky in and around 2010 included over 200,000 data points that broke multiple rules and regulations within the Clean Water Act. [9] Coal companies, like Frasure Creek, are required to report water quality data for runoff. [10] Because the only measurements of water quality that were taken were proven inaccurate or completely reused from previous monthly reports, it is unclear what the true damage was to the environment and watershed in and around Frasure creek mine. [11] Remediation processes are still being monitored by the Environmental Protection Agency (EPA) and other environmental groups like Appalachian Voices to ensure and prevent no further leakage . [12]

Settlement of the Frasure Creek case

After a five-year battle against a large number of environmental groups, Frasure Creek Mining company and Kentucky's Energy and Environmental Cabinet agreed on a settlement on Dec. 7th, 2015. [13] Frasure Creek Mining complied with a settlement agreeing to pay $500,000.This also includes a potential $6 million fine if the company does not abide by the guidelines of the deal. [13] With years of violations of the Clean Water Act, Frasure Creek was issued the largest fine ever entered by the state of Kentucky for environmental violations against any company. [14] Following the settlement, if at any point Frasure Creek mining company or any of its owners want to apply for new permits, a fine of $2.75 million must be paid. The company is also affiliated with two others, Trinity Coal Corporation and New Trinity Coal. [13] These companies and their owners also agreed to pay the fine for future permits. Frasure Creek had already transferred their permits over a month before the settlement was reached. Otherwise, their mining application will not be processed by the state. [15] By doing this, the settlement forced Frasure Creek to leave the state of Kentucky or pay a detrimental fine. [13] From 2010 through 2014, various environmental groups claimed numerous cases water-monitoring data had been falsely submitted to the state. [16] Part of the settlement was Frasure Creek had to admit to these violations at surface mines in Perry, Magoffin, Pike, and Floyd county, with the total number rising to the thousands. Many leaders of the environmental groups that fought against Frasure Creek thought the settlement was a strong one and that it sent a strong signal that citizens will continue to hold the state accountable to ensure communities and water remain healthy. [13]

Related Research Articles

<span class="mw-page-title-main">Clean Water Act</span> 1972 U.S. federal law regulating water pollution

The Clean Water Act (CWA) is the primary federal law in the United States governing water pollution. Its objective is to restore and maintain the chemical, physical, and biological integrity of the nation's waters; recognizing the responsibilities of the states in addressing pollution and providing assistance to states to do so, including funding for publicly owned treatment works for the improvement of wastewater treatment; and maintaining the integrity of wetlands.

<span class="mw-page-title-main">Concentrated animal feeding operation</span> Type of American intensive animal farming

In animal husbandry, a concentrated animal feeding operation, as defined by the United States Department of Agriculture (USDA), is an intensive animal feeding operation (AFO) in which over 1,000 animal units are confined for over 45 days a year. An animal unit is the equivalent of 1,000 pounds of "live" animal weight. A thousand animal units equates to 700 dairy cows, 1,000 meat cows, 2,500 pigs weighing more than 55 pounds (25 kg), 10,000 pigs weighing under 55 pounds, 10,000 sheep, 55,000 turkeys, 125,000 chickens, or 82,000 egg laying hens or pullets.

<span class="mw-page-title-main">Mountaintop removal mining</span> Type of surface mining

Mountaintop removal mining (MTR), also known as mountaintop mining (MTM), is a form of surface mining at the summit or summit ridge of a mountain. Coal seams are extracted from a mountain by removing the land, or overburden, above the seams. This process is considered to be safer compared to underground mining because the coal seams are accessed from above instead of underground. In the United States, this method of coal mining is conducted in the Appalachian Mountains in the eastern United States. Explosives are used to remove up to 400 vertical feet of mountain to expose underlying coal seams. Excess rock and soil is dumped into nearby valleys, in what are called "holler fills" or "valley fills".

<span class="mw-page-title-main">Surface mining</span> Type of mining in which the soil/rock above mineral deposits is removed

Surface mining, including strip mining, open-pit mining and mountaintop removal mining, is a broad category of mining in which soil and rock overlying the mineral deposit are removed, in contrast to underground mining, in which the overlying rock is left in place, and the mineral is removed through shafts or tunnels.

<span class="mw-page-title-main">Kentuckians for the Commonwealth</span>

Kentuckians for the Commonwealth (KFTC) is a grassroots community organization under the original name of the Kentuckian Fair Tax Coalition. It began when 26 people from 12 countries met in Hazard on August 17, 1981. Though statewide, KFTC has deep roots in eastern Kentucky where coal mining remains the dominant industry. KFTC is a multi-issue organization of working-class families, with a history of working for land reform, environmental justice, and low income assistance programs. In the 1980s, KFTC was part of a campaign to end strip mining using the broad form deed and has since continued to provide support to the Appalachian region. Joe Szakos was one of the founding organizers.

<span class="mw-page-title-main">Massey Energy</span>

Massey Energy Company was a coal extractor in the United States with substantial operations in West Virginia, Kentucky and Virginia. By revenue, it was the fourth largest producer of coal in the United States and the largest coal producer in Central Appalachia. By coal production weight, it was the sixth largest producer of coal in the United States.

In the United States, a citizen suit is a lawsuit by a private citizen to enforce a statute. Citizen suits are particularly common in the field of environmental law.

International Coal Group, Inc. (ICG), is a company headquartered in Teays Valley, West Virginia that was incorporated in May 2004 by WL Ross & Co for the sole purpose of acquiring certain assets of Horizon. ICG eventually operated 12 mining complexes in Northern and Central Appalachia and one complex in the Illinois Basin. In November 2005, ICG had a stock offering on the New York Stock Exchange. In 2011 ICG became a subsidiary of Arch Coal, Inc in 2011.

<span class="mw-page-title-main">Appalachian Voices</span>

Appalachian Voices is an American environmental organization. Their stated environmental concerns include eliminating air pollution, ending mountaintop removal, cleaning up coal ash pollution and promoting renewable energy and energy efficiency.

The Clean Water Protection Act was a bill introduced in the 111th United States Congress via the House of Representatives Subcommittee on Water Resources and Environment, of the Committee on Transportation and Infrastructure. It proposed to redefine "fill material" to not include mining "waste" under the Federal Water Pollution Control Act.

Arch Resources, previously known as Arch Coal, is an American coal mining and processing company. The company mines, processes, and markets bituminous and sub-bituminous coal with low sulfur content in the United States. Arch Resources is the second-largest supplier of coal in the United States, behind Peabody Energy. As of 2011 the company supplied 15% of the domestic market. Demand comes mainly from generators of electricity.

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261 (2009), is a United States Supreme Court case that was decided in favor of Coeur Alaska's permit to dump mine waste in a lake. The case addressed tailings from the Kensington mine, an underground mine located in Alaska. The gold mine had not operated since 1928, and Coeur Alaska obtained a permit in 2005 from the United States Army Corps of Engineers (USACE) to dispose of up to 4.5 million tons of tailings in Lower Slate Lake, which is located in a National Forest.

North Mara Gold Mine is a combined open pit and underground gold mine in the Tarime District of the Mara Region of Tanzania. It is one of three gold mines of Acacia Mining plc, a company listed on the London Stock Exchange, that operates in Tanzania, the other two being Bulyanhulu and the Buzwagi Gold Mine.

<span class="mw-page-title-main">Nonpoint source water pollution regulations in the United States</span>

Nonpoint source (NPS) water pollution regulations are environmental regulations that restrict or limit water pollution from diffuse or nonpoint effluent sources such as polluted runoff from agricultural areas in a river catchments or wind-borne debris blowing out to sea. In the United States, governments have taken a number of legal and regulatory approaches to controlling NPS effluent. Nonpoint water pollution sources include, for example, leakage from underground storage tanks, storm water runoff, atmospheric deposition of contaminants, and golf course, agricultural, and forestry runoff.

<span class="mw-page-title-main">United States regulation of point source water pollution</span> Overview of the regulation of point source water pollution in the United States of America

Point source water pollution comes from discrete conveyances and alters the chemical, biological, and physical characteristics of water. In the United States, it is largely regulated by the Clean Water Act (CWA). Among other things, the Act requires dischargers to obtain a National Pollutant Discharge Elimination System (NPDES) permit to legally discharge pollutants into a water body. However, point source pollution remains an issue in some water bodies, due to some limitations of the Act. Consequently, other regulatory approaches have emerged, such as water quality trading and voluntary community-level efforts.

<span class="mw-page-title-main">Clean Water Rule</span> 2015 EPA regulation

The Clean Water Rule is a 2015 regulation published by the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) to clarify water resource management in the United States under a provision of the Clean Water Act of 1972. The regulation defined the scope of federal water protection in a more consistent manner, particularly over streams and wetlands which have a significant hydrological and ecological connection to traditional navigable waters, interstate waters, and territorial seas. It is also referred to as the Waters of the United States (WOTUS) rule, which defines all bodies of water that fall under U.S. federal jurisdiction. The rule was published in response to concerns about lack of clarity over the act's scope from legislators at multiple levels, industry members, researchers and other science professionals, activists, and citizens.

<span class="mw-page-title-main">Environmental justice and coal mining in Appalachia</span>

Environmental justice and coal mining in Appalachia is the study of environmental justice – the interdisciplinary body of social science literature studying theories of the environment and justice; environmental laws, policies, and their implementations and enforcement; development and sustainability; and political ecology – in relation to coal mining in Appalachia.

<span class="mw-page-title-main">Environmental issues in Appalachia</span>

Environmental issues in Appalachia, a cultural region in the Eastern United States, include long term and ongoing environmental impact from human activity, and specific incidents of environmental harm such as environmental disasters related to mining. A mountainous area with significant coal deposits, many environmental issues in the region are related to coal and gas extraction. Some extraction practices, particularly surface mining, have met significant resistance locally and at times have received international attention.

As a legal document, the broad form deed severs a property into surface and mineral rights. This allows other individuals or organizations other than the land owners to purchase rights to resources below the surface. These parties also receive use of surface resources — such as wood or water — to facilitate gathering the resources below ground. Based on English legal theory but an American creation from the early 1900s, the broad form deed was used by land and coal companies in many states within the Appalachian Region.

The Martin County water crisis is an on-going public health crisis that began in 2000, when a coal slurry spill contaminated the area's water supply with cancer-causing disinfection byproducts and coliform bacteria. Residents report the water having a strong smell of chlorine, discoloration, odd taste, sediment and irritation/burning when in contact with skin. The contamination was caused by the spillage of approximately 300 million gallons of arsenic and mercury concentrated coal sludge into an abandoned underground mine and two tributaries of the Tug Fork River by local coal company Massey Energy Company on October 11, 2000. According to the Environmental Protection Agency (EPA), the spill was one of the worst environmental disasters ever in the southern United States.

References

  1. 1 2 "Clean Water Act case against ICG and Frasure Creek Mining". Kentuckians for the Commonwealth.
  2. "History of the Clean Water Act". U.S. Environmental Protection Agency. 22 February 2013. Retrieved 2018-03-16.
  3. 1 2 "History of the Clean Water Act". United States Environmental Protection Agency. 22 February 2013. Retrieved 27 February 2018.
  4. 1 2 "Hearing begins in Clear Water enforcement case". Kentuckians for the Commonwealth. Retrieved 12 March 2018.
  5. 1 2 Chance, Eric (27 April 2012). "KY Supreme Court Rules in Favor of Citizens and Water". Appalachian Voices. Retrieved 12 March 2018.
  6. "Frasure Creek Mining LLC F-2". minesdatabase.com.
  7. 1 2 "Groups Sue Frasure Creek Mining". Waterkeeper Alliance.
  8. 1 2 "Landmark settlement in Clean Water Act case". Kentuckians for the Commonwealth. Retrieved 15 February 2018.
  9. Wines, Michael (18 November 2014). "Clean Mining a Deception in Kentucky, Groups Say". The New York Times.
  10. "What EPA is Doing to Reduce the Adverse Impacts of Surface Coal Mining in Appalachia". U.S. Environmental Protection Agency. July 2016. Retrieved 2018-03-16.
  11. "Going to Court for Clean Water". Appalachian Voices. Retrieved 2018-03-16.
  12. "Appalachian Waterwatch". appalachianwaterwatch.org. Retrieved 2018-03-16.
  13. 1 2 3 4 5 "Coal company acknowledges violations, agrees to $6 million fine". kentucky.com.
  14. Service, RONNIE ELLIS CNHI News (7 December 2015). "Frasure Creek hit with heavy fine in settlement". dailyindependent.com.
  15. "KY Supreme Court Rules in Favor of Citizens and Water". Appalachian Voices. 27 April 2012.
  16. "Landmark settlement in Clean Water Act case". kftc.org.