Twenty-seven hundred coal mine owners have gotten away with dodging nearly $70 million in safety fines in Kentucky. Miners are injured at much higher rates in delinquent operations. Seven of the top 10 scofflaws, including West Virginia billionaire Jim Justice, control mines in Eastern Kentucky.
Last week, a ruling by Franklin Circuit Judge Phillip J. Shepherd laid bare the charade that is Kentucky’s enforcement of coal industry compliance with the Clean Water Act. The judge described a state agency that barely even goes through the motions of enforcing the law. Shepherd rejected a state-proposed settlement with what was one of Eastern Kentucky’s largest producers of surface mined coal before going through bankruptcy, the West Virginia-based Frasure Creek Mining, which still has mining sites under permit in the state. The company for years submitted false water monitoring data. Shepherd concluded there was either a scheme to commit fraud “or incompetence so staggering as to defy belief.”
The Beshear administration’s Cabinet for Energy and Environment chose to handle the 1,520 violations as paperwork errors, so did not investigate “substantive pollution violations” except in a very limited way and even that “tasked the staff significantly,” wrote Shepherd. “With only a handful of enforcement personnel, and a dwindling number of field inspectors, and with the position of Director of Enforcement unfilled since 2007, it is impossible for the Cabinet to effectively regulate permittees such as Frasure Creek who systematically violate” the Clean Water Act.
No wonder 93 percent of the Big Sandy River, the watershed where Frasure Creek does most of its Kentucky mining, is unfit to support aquatic life mainly because of surface-mining runoff. The cabinet does not even know how many discharge outfalls are associated with the state’s 2,200 coal general permits, Shepherd wrote. Therefore, the cabinet can’t say whether coal companies are self-monitoring water pollution as required by federal law, much less whether they are violating their water pollution limits.
The massive violations were discovered by citizens who threatened to sue. The cabinet agreed to a consent decree under which Frasure Creek would pay $310,000. The cabinet also fought — and lost — all the way to the state Supreme Court to exclude citizens from any involvement in deciding the case. Shepherd ruled the penalties were too small “to deter future violations” and sent “the message that cheating pays. This puts the many companies that comply with the law at a competitive disadvantage.”
Hiring a new lab cost Frasure Creek an extra $30,000 a month. For a while, the company’s quarterly reports appeared to be accurate with many more actual violations reported. Then, as if to prove Shepherd right, Frasure Creek started sending obviously false reports again.
Operators who increase profits by taking shortcuts on safety and health, put lives at risk. Economic dependence on cheap energy from coal is not cheap. The costs are high — they just get pushed onto someone else, the disabled or dead miners, or Kentuckians who depend on water, ruined by surface mining, that flows from the mountains across the state.