Press conference statements on ICG / EEC settlement

Pat Banks, Kentucky Riverkeeper

Statement about the Landmark Settlement Citizens Reached with Kentucky Regulators and Coal Company
October 8, 2012

Clean Water is not an option. Clean water is not just a good idea. Clean water is critical to our health and well being. This settlement we have entered into with ICG and the State Energy and Environmental Cabinet will help protect the public health from abuse of a very powerful and influential industry while exposing enforcement and compliance issues.

We must protect our water for the health and development of our children. There are examples around the world, in our past and present, where children have been the first to suffer and die because of poisons put into water. The Clean Water Act was passed by the U.S. Congress 40 years ago because our rivers were being used as a cheap dumping ground by industry. Those rivers started catching on fire. We had a wakeup call. We could not keep doing business as usual.

Because of the Clean Water Act safeguards were put into place to protect the public interest. Companies must self monitor. State agencies must enforce the regulations. The state works for us, the people. Somewhere there was a breakdown of major proportions. Our citizen groups found that for years companies, ICG and Frasure Creek specifically, were making false discharge monitoring reports, over 20,000 violations in dozens of mines, in two years! We don’t know what poisons were being dumped, leaked and discharged into our waters. How could this happen!

That means because we do not know what has been put onto our streams and rivers any research or policy initiatives preformed by the state and or universities using this false data provided by the companies is suspect. This seems like an incredible and potentially dangerous scenario. And the really important thing is that we do not know what our children and our environment have been exposed to! This is not an easy victory with ICG ( we have not reached an agreement with Frasure Creek). There is so much we do not know but we have learned that we cannot be complacent. Clean water for our children, our families and our communities is not an option -- it is our right. The Clean Water Act enforces the notion that if companies are out of compliance and enforcement by the state fails, then citizens can and must step in to protect their waters.

We are all downstream! Swim, fish, drink!

Mary Cromer, Appalachian Citizens Law Center

October 8, 2012

Good morning and thank you.

My name is Mary Cromer, and I’m a lawyer from Appalachian Citizens’ Law Center, in Whitesburg, Kentucky.   I am an attorney for the citizens in this case.

Two and a half years ago, representatives of these citizens groups came to Appalachian Citizens’ Law Center with a stack of discharge monitoring reports.

This stack of DMRs showed that what ICG and Frasure Creek were telling the state about the pollution they were discharging into Eastern Kentucky waterways was false.

Even more importantly, the state HAD NOT NOTICED that the data presented by the companies was false.

Not only that, after the Cabinet investigated further, it determined that NOT ONLY had the companies been submitting false reports, they had also failed to submit ANY reports at all for many of their facilities.

Obviously the system was broken. 

The Franklin Circuit allowed our intervention in the state’s case so that we could negotiate a stronger settlement, one that would not only punish the violators, but also put measures in place to assure that these systemic problems with the companies and the Cabinet are halted.

The Cabinet and Frasure Creek sought to have the Franklin Circuit’s decision to allow us to intervene overturned by the Supreme Court of Kentucky.  The Supreme Court of Kentucky refused, noting Congress’s stated intent to ensure that public participation in the enforcement of the Clean Water Act is “provided for, encouraged, and assisted” by the states.

We are proud of the settlement that we present now to the court and we are hopeful that it will be approved.  Unlike the settlement the Cabinet tried to have entered back in 2010, this settlement looks to the future with an oversight plan to ensure ICG’s accurate reporting and with guaranteed penalties for future violations.  It also provides that the money from penalties for past violations goes to water monitoring and water clean up projects in Eastern Kentucky.

Ted Withrow, Kentuckians For The Commonwealth

My name is Ted Withrow. I am a member of Kentuckians For The Commonwealth and a former employee of the Kentucky Division of Water where I was the Big Sandy Basin coordinator – an area where more than 90% of the streams have been impaired, mostly from coal mining.

I am satisfied with this agreement. Although we made some concessions on some points, we got what we needed to protect the people of eastern Kentucky. That was our goal going into this litigation and we believe we have a solid agreement that will help us improve the water quality in eastern Kentucky, assure better enforcement of the Clean Water Act and stop the blatant disregard for the people who live downstream from these mining operations.

To achieve this we insisted on three things in this settlement.  One a trustworthy 3rd party independent monitoring program, two strong stipulated penalties that punish future water quality violations and third a penalty award that must be spent in southeastern Kentucky where the violations occurred and on programs that will improve water quality.  The Cabinet wanted the civil penalty to go to The Kentucky Heritage Land Trust to buy land anywhere in Kentucky.

As Kentuckians, we all deserve safe water and we deserve to know what's in our water so that we can determine whether it's safe or not.  We uncovered the fact that neither the companies nor the cabinet knew what was really being discharged into Kentucky waterways. As a Kentuckian, I have a right to know that information.  This settlement will help ensure that we have access to that information.

We have an historic document here. The citizens of this commonwealth, henceforth shall have the right to intervene in cabinet enforcement actions taken to state court  an underlying principle of the Clean Water Act that we had previously been denied. This is huge.

It means that from here on out, no longer can the cabinet go behind closed doors  and conclude some negotiations with a coal company without the right of citizens to intervene, to open the door and shine the light on what’s going on. We have that right now. We didn’t have that right before. That’s huge.

Third-party monitoring is a very important part of this agreement. Third-party monitoring was necessary because the cabinet has shown it was either unwilling or unable to do this mandatory work. We hope that this will help begin to change the culture of non-enforcement that has existed for way too long in the Kentucky Energy and Environment Cabinet.

We know that to create a better future for eastern Kentucky we have to have water that is safe to drink and usable by a more diverse economy. We’re excited by the potential of this agreement for moving us in the right direction.