Late on the night of December 7, a coalition of citizens groups finalized a historic settlement in a case against Frasure Creek Mining. The settlement follows a five-year-long legal battle to protect eastern Kentucky’s waterways and bring to justice a coal company notorious for violating environmental laws.
The agreement is notable not only for the large penalty, but because it effectively bars Frasure Creek from mining in Kentucky. It also marks a welcome, if uncommon, collaboration between clean-water advocates and state regulators. The settlement was crafted through cooperation among the Kentucky Energy and Environment Cabinet, Frasure Creek, and the citizens groups — Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper, the Sierra Club, and Waterkeeper Alliance.
The settlement includes a total potential penalty of $6 million — the highest environmental fine ever levied against a coal company by the Kentucky cabinet. Frasure Creek will not have to pay the fine, however, as long as it no longer mines in the state. The settlement requires Frasure Creek to admit to its violations and immediately pay $500,000. If Frasure Creek fails to pay the $500,000, it will be liable for the full $6 million fine.
If at some later point Frasure Creek or its owners apply for new mining permits, they must first pay $2.75 million before their application will be processed by the state. Essentially, the settlement requires Frasure Creek to either leave Kentucky for good or pay a fine sufficient enough to deter it from returning to its illegal practices.
In 2010, Appalachian Voices began an investigation into coal companies’ discharge monitoring reports (DMRs), submitted to the state by requirement of the Clean Water Act to demonstrate compliance with clean water standards. Starting with the largest Kentucky companies at the time – Frasure Creek, International Coal Group (ICG), and Nally & Hamilton – we determined that all three were falsifying DMRs.
Based on our findings, we initiated a series of citizens’ Clean Water Act lawsuits, which the state environmental cabinet repeatedly attempted to preempt. In each case, we attempted to intervene to ensure diligent enforcement. Our right to intervene in the initial state cases was upheld by the Kentucky Supreme Court, and we ultimately secured a strong settlement with ICG. Though we were technically allowed to intervene in the later administrative court cases, we were given much less input on the outcomes.
In 2014, Appalachian Voices again discovered that Frasure Creek was duplicating DMRs. Once again, the cabinet failed to identify the problem until we filed a notice of intent to sue. This time, when the cabinet filed a case in its administrative court, we were granted intervention and allowed much more input in the settlement. The result is the settlement filed last week, on the last day of Governor Steve Beshear’s term.
There is already reason to be concerned about the leniency of the new governor, Matt Bevin, toward coal. Len Peters, former cabinet secretary under former Governor Beshear, had the right credentials for running the agency. He is a scientist and an academic with experience working for universities, nonprofits and the federal government. Despite this, the cabinet still routinely allowed coal companies and other industries to violate environmental regulations with minimal consequences.
In contrast, Bevin’s appointment for cabinet secretary — announced, coincidentally, the same day we reached our settlement — is Charles Snavely who has spent the past three decades climbing the corporate ladders at several major Central Appalachian coal companies, including Massey Energy and Arch Coal. Apparently running a company in one of the dirtiest industries in the country now qualifies you to protect communities and ecosystems from that industry, in Kentucky at least.
In 2010, he was the executive vice president of mining operations at ICG. That’s right — when we sued ICG for falsifying DMRs, Snavely was a member of the company’s senior management. Snavely was also a vice president at ICG when 12 miners were killed in an explosion at the company’s Sago Mine in West Virginia.
Despite the current decline in the coal market in Central Appalachia, Governor Bevin seems just as beholden to the industry as many politicians who have preceded him. But appointing an industry insider to regulate the industry will not be enough to save it.
This settlement demonstrates to the new administration that citizens will hold the state accountable. But it’s not clear that Governor Bevin is getting the message. During his campaign, Bevin courted the coal industry and criticized the U.S. Environmental Protection Agency. In October, at the height of the campaign, Bevin even chastised his opponent for saying coal can be done “cleaner.”
Coal is rapidly declining in Central Appalachia, but that does not mean the industry, or its influence, will disappear soon or that enforcement of environmental regulations will become any less important. If anything, thin profit margins provide an incentive to break rules intended to prevent harming water, land and communities. As the region envisions a new economy that is not dominated by coal, oversight of mining’s impact on the region is as important as ever.
Erin Savage is Central Appalachia Campaign Coordinator for Appalachian Voices and a water quality expert.