ACLC client's reports of water pollution yield state fine for violation

Daily Independent (Ashland, KY)
July 29, 2012

State fines LMR over Raccoon Creek’s pollutants

By RONNIE ELLIS
CNHI News Service
FRANKFORT — After years of complaints from a private property owner, the state has fined Laurel Mountain Resources $11,000 for failing to report discharges of pollutants from a settlement pond into Raccoon Creek in Floyd County.
The Cabinet for Energy and Environment entered the order, agreed to by Laurel Mountain Resources (LMR), before its administrative hearing office on July 10, more than a year after the specific violation — and two days after CNHI News published stories about mining pollution on the property of Ricky Handshoe and his repeated attempts to get the state to act against the company.
Handshoe said he knew nothing of the settlement until he was asked about it by a reporter, but cabinet officials say Handshoe was informed about negotiations which led to the order.
The order, signed by LMR President Dexter Brian Patton III on June 1 and cabinet Secretary Len Peters on July 10, says: “LMR failed to report a spill or discharge to the Division of Water as required” and that “LMR has degraded the waters of the Commonwealth and has caused pollutants to enter and contributed to the pollution of the waters of the Commonwealth.”
In addition to the $11,000 in civil fines, the order requires Laurel Mountain Resources to “cease all activities which are contributing to the degradation of the waters of the commonwealth” and orders the company to perform remedial measures or face additional $5,000 penalties for future violations for one year.
CNHI News left a voice message at a number listed for Laurel Mountain Resources seeking comment but did not receive an immediate reply.
Bruce Scott, the cabinet’s Commissioner of Environmental Protection, said the timing of the order was not related to the July 8 CNHI stories about Handshoe’s complaints about alleged pollution from nearby mining operations of Laurel Mountain, a subsidiary of James River Coal.
“The Agreed Order was routed for signature the first week of June 2012, well before the stories were published on July 8,” Scott said. He said the negotiations between the cabinet and LMR followed standard timelines and procedures and Peters signed it on July 10, following review by cabinet attorneys between the two dates.
Mary Cromer, an attorney who represents Handshoe, said she wants to review the language and penalties in the order before judging its significance. But she said it appears more severe than some others she’s seen.
Scott said the fines are consistent “with development of penalties in other cases which are subject to enforcement action.”
On July 8, CNHI News published stories about Handshoe’s long battle with the cabinet over pollution to Raccoon Creek, which runs through his property, and his fear that the mountain behind his house has been compromised by pollution from a partially reclaimed surface mine. Polluted water is flowing from new “seeps” on the mountain, causing a couple of landslides and polluting another creek on the property. Handshoe’s physician has ordered him not to water his vegetable garden with the creek water or eat any animal which may have drunk from it.
Peters was interviewed for those stories on July 5 but didn’t mention the pending order.
“Pending enforcement actions are not typically discussed prior to being finalized,” Scott said. He said Peters “was not directly involved in the Division of Enforcement (DENF) action and would not have been aware of the specific details and timeline of that pending action.”
Handshoe said he was never told the cabinet was discussing a settlement with LMR.
Scott said such settlements are routinely completed between the cabinet and companies without involvement by others, but in this case the cabinet “had informal discussions and had input from Mr. Handshoe regarding the matter.” He cited a visit to Handshoe’s property by DENF Director Jeff Cummins on Jan. 23 of this year. During the visit, Cummins said Handshoe indicated he was satisfied with improvements to Raccoon Creek, according to Scott.
Handshoe acknowledges the conversation with Cummins.
“He asked me if the water (in Raccoon Creek) had been orange for a while, and I said, no it hadn’t,” Handshoe said. “But they never told me they were negotiating an agreed order.
“I should have been notified they were in meetings and asked what I had to say,” Handshoe continued. “That’s not the same as asking me if the creek has been orange lately. That’s not about a settlement agreement.”
Cromer said Handshoe is the one “who called in the complaint and he was dogged in trying to get something done. For him not to be included is a shame.”
She also questioned why the cabinet did not require remedial measures to try to repair the creek which currently won’t support aquatic life.
“I just feel it affects me and my neighbors whatever decision they make behind closed doors,” Handshoe said. “I should know exactly what they are putting in that pond and what they’re doing to fix the problem. They collect the money, but what does that do for me and my neighbors?”
RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.