In August, the companies formally answered the government’s complaint, insisting they did not pollute the waterways in question. In fact, Essar attorney Martin Cunningham said Frasure Creek told the government prior to the suit being filed that it had improperly commenced fill activities before its final CWA permit was issued. Frasure Creek ceased all fill activities, he said, and notified the U.S. Army Corps of Engineers after the company realized it had initiated improper fill activities.
The suit contends the companies failed to obtain a Section 404 CWA permit from the Corps at the 682-acre Bear Fork site in Pike County and 768-acre Hale Fork site in Floyd and Magoffin counties “despite the fact that their surface mining operations involved excavating coal seams, then placing the excavated rock and dirt, or overburden, in streams that are jurisdictional waters of the United States.”
According to the suit, the companies’ surface mining operations have resulted in the excavation and filling of approximately 11,256 linear feet of streams at the two sites—about 7,750 linear feet at Bear Fork and 3,506 ft at Hale Fork. Streams at the two sites are “perennial streams that are tributaries of Levisa Fork,” the suit says.
Cunningham said a negotiated settlement is possible in the case, although he did not elaborate. If an out-of-court deal cannot be reached, he said his clients will press forward with a trial.
Essar Group has operations in more than 25 countries across five continents, including North America. The company employs 75,000 people and has annual earnings in excess of $27 billion.