Lawsuit filed over mine waste dumped in Ky. valley

The company, Clintwood Elkhorn Mining Company, has acknowledged the dumping and called it an "isolated incident."

The Sierra Club and Kentuckians for the Commonwealth said in the lawsuit filed Tuesday in Pikeville federal court that Clintwood was operating near Fishtrap Lake in Pike County without a permit required by the Clean Water Act.

"They cannot disturb waterways without a federal permit," said Aaron Isherwood, a staff attorney with the Sierra Club in San Francisco. "This was a flagrantly unlawful act by the coal industry."

Isherwood said the company applied for the permit but didn't wait for approval before dumping fill material into the valley.

A spokesman for the company said the dumping was unintentional.

"When we discovered the issue, we took immediate action, we seized all of our operations and we reported to the appropriate regulatory agencies," said Rick Morera, a spokesman for Clintwood's parent company, TECO Energy of Tampa, Fla.

Isherwood said he was skeptical of the company's explanation.

"All I can say is it wasn't an accident, because they applied for a permit," he said.

The company was performing mountaintop removal operations in an area that included "headwater streams in the Millers Creek watershed near Fishtrap Lake," according to the lawsuit. The procedure involves blasting rock to access coal seams and dumping the excess material in valleys. The co-plaintiff in the lawsuit, Kentuckians for the Commonwealth, opposes the mining industry practice.

Kenneth Taylor, a member of Kentuckians for the Commonwealth, said he lives near Fishtrap Lake.

"If I filled in or altered the creek in front of my house, or built sediment ponds in it, I believe the state and Army Corps would put the law to me," Taylor said in a statement. "I don't see why a coal company should be treated any differently."

The suit said the environmental groups sent a notice of the violations to the Environmental Protection Agency and the U.S. Army Corps of Engineers in June. The groups sued after 60 days went by without a reply from the EPA or the Army Corps.

It asks a judge to issue civil penalties and order mitigation to clean up the site.