Emerging Issues, Litigation and Dispute Resolution, Policy and Practice

Pace Environmental Litigation Clinic Serves Notices of Intent to Sue Coal Companies under the Clean Water Act for Submission of Fraudulent NPDES Permit Discharge Monitoring Data in Eastern Kentucky.

by Daniel E. Estrin
Supervising Attorney, Pace Environmental Litigation Clinic, Inc.
Adjunct Professor of Law, Pace Law School

The Pace Environmental Litigation Clinic today served Notices of Intent to Sue upon three mountaintop removal coal mines in Eastern Kentucky.  Two of the mines are operated by subsidiaries of International Coal Group (ICG) and one is operated by a subsidiary of Trinity Coal (Frasure Creek).  The Notices allege that the mine operators have engaged in a pattern and practice of submitting falsified discharge monitoring data to Kentucky environmental regulators in blatant violation of their National Pollutant Discharge Elimination System permits.  The Notices collectively allege approximately 20,000 permit violations with a potential maximum civil penalty (which would be payable to the federal treasury) of approximately $740 million.  In my opinion, these obviously intentional violations could certainly be prosecuted under the criminal provisions of the Water Act.

While the Notices state an intention to sue the coal mining companies, they should also be a tremendous embarrassment to the Kentucky regulators who failed to detect the obviously false data that were submitted, or simply “looked the other way.”

The Notices were served on behalf of Appalachian Voices, Inc., Waterkeeper Alliance, Inc., Kentuckians for the Commonwealth, Inc., Kentucky Riverkeeper, Inc., and several citizens who reside in Eastern Kentucky.  The Clinic’s co-counsel in this matter include the Capua Law Firm and Waterworth Law Offices, both located in Boone, North Carolina, and the Appalachian Citizens’ Law Center, located in Whitesburg, Kentucky.

Copies of the Notices of Intent to Sue, a press release and other pertinent information can be found here.

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