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February 17, 2011

Company that blundered pollution reports will again test mining sites

FRANKFORT — The same people blamed for inaccurate pollution reports from mining sites operated by ICG Coal will be responsible for collecting samples under that company’s corrective action plan submitted to the state.

ICG and Frasure Creek Coal entered a consent decree with the state's Energy and Environment Cabinet in December after environmental groups discovered reams of inaccurate pollution reports by the two companies. Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, Waterkeeper Alliance and three private citizens filed notices of intent to sue the companies under provisions of the federal Clean Water Act and alleged the reports were “fraudulent.” But the cabinet subsequently reached an agreement with the two companies which could have pre-empted the suit. The environmental groups were later granted the right to intervene in the matter by Franklin Circuit Court.

When the settlement was filed in early December, Bruce Scott, Commissioner of Environmental Protection, said the inaccuracies were “mostly transcription errors” by labs which tested the water for the coal companies. S&S Water Monitoring, located in Oil Springs, Ky., was the laboratory used by ICG. ICG’s corrective action plan that was submitted, according to cabinet officials, indicates ICG will now employ Environmental Monitoring, Inc., McCoy & McCoy, and Blackburn Labs to test water samples – but the samples will be collected by a new company called East Kentucky Water Monitoring.

According to the Kentucky Secretary of State, that company was incorporated on Dec. 17, 2010 by brothers Jody and Nathan Salisbury who previously worked for S&S Water Monitoring. The filing lists the same Oil Springs address as that previously listed for S&S Water Monitoring.

Nathan Salisbury confirmed that he and his brother, Jody, collected samples for S&S at ICG sites and are the incorporators of East Kentucky Water Monitoring. But he said he and his brother “did not own any part” of S&S, although the two companies have the same address. CNHI News reached Nathan Salisbury by calling the number listed for S&S and reached a woman who identified herself as the brothers’ mother and who provided their cell phone numbers.

Mary Cromer, an attorney with Appalachian Law Center in Whitesburg who represents the environmental groups, said contracting with the same individuals who collected the earlier samples indicates the coal companies have a cynical view of environmental monitoring.

“The history of this has been that the state and the coal companies blamed the labs,” Cromer said. “They tried to push this off onto the labs so the fact they continue to use the same people is very cynical in my view.”

ICG declined comment through an email from Ross Mazza, a spokesman for the company.

The environmental groups used Kentucky’s open records law to discover what they contended were “fraudulent” discharge reports with thousands of violations that could potentially produce fines of as much as $740 million and accused the cabinet of turning a blind eye. The cabinet subsequently fined the companies $300,000 and $315,000 and required them to submit plans to ensure it doesn’t recur.

Donna Lisenby, of Appalachian Voices, said Wednesday that Jody Salisbury signed many of the questioned reports and the revelation that he and his brother operate the new company which will collect future samples creates doubt in the minds of the environmentalists about future samples.

“If the sample isn’t collected properly – or from the (specified) site – it’s just a joke,” Lisenby said.

Scott and Cabinet Secretary Leonard Peters seemed surprised by questions about East Kentucky Water Monitoring and didn’t know it was operated by the same people connected to S&S.  Scott later confirmed the ICG corrective action plan relies on the new company and said his subsequent investigation showed the company appears to be operated “by the same family ownership name as the former S&S labs.”

An attorney with Pace Environmental Litigation Clinic of New York which has assisted the environmental groups said the connection between the two companies is telling.

“The fact that these companies are ready to hire the exact same people that got them into trouble just shows that the responsibility for these violations lies with the companies themselves, not just their contractors,” said Karl Coplan.

Robert F. Kennedy Jr., Board Chairman of Waterkeeper Alliance, said it appears “that in Appalachia there is one set of rules for the coal companies and another set for other Kentuckians.”

Scott said the cabinet has no “regulatory authority to prohibit a permit holder from contracting with a lab or sample collection entity of its choosing. We do have the authority to hold the permit holder accountable for their contractors, however.”

The cabinet is pushing a bill sponsored by Sen. Brandon Smith, R-Hazard, which would require certification of water testing labs. It passed the Senate but has not yet been posted for a hearing in the House Natural Resources Committee.

Ronnie Ellis writes for CNHI News Service and is based in Frankfort. He may be contacted by email at ellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.

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