Members ask for strong protections for streams affected by mining

Members of KFTC, the Sierra Club, Kentucky Waterways Alliance, Appalachian Citizens Law Center, Kentucky Conservation Committee, Appalachian Voices, Kentucky Resources Council and others had a strong presence at a public hearing September 3 to advocate for the strongest possible protections for water in communities where coal is mined and downstream.

More than 25 folks asked the U.S. Office of Surface Mining Reclamation and Enforcement to keep many of the provisions in the draft Stream Protection Rule. The new rule is an effort “to modernize 30-year-old regulations to reflect current science and technology,” according to the agency.

They also asked OSMRE to restore the Stream Buffer Zone that is done away with in the draft rule. That rule prohibited the impacts of coal mining within 100 feet of a stream or waterway.

Michael Nixon of the Citizens Coal Council called on OSMRE to stand firm on the draft rule “that truly protects our nation’s streams and waters.” He said the agency’s approach should be “preventing damage instead of correcting damage.”

Several speakers made the connection between clean water and good health, noting that the health of many people living near coal operations has been negatively affected.

“Our lives in Appalachia are being shortened,” pointed out Elaine Tanner of Letcher County, noting the “unimaginable damage to our environment” coal companies are leaving behind and the “legacy pollution we face in our future.” She said that coal companies should be held accountable for this damage.

Jimmie Hall, also of Letcher County, said the water supply in his community of Mill Creek had “been destroyed. I don’t know what to say, I just know I’ve been hurt… it’s one of the things that destroyed my way of life.”

Russell Oliver of Hazard asked for “stronger laws and enforcement of those laws. We needs laws to protect the water … when the mining is gone, water will be left.

“Stricter laws should be passed to protect the remaining water so that future generations will not suffer from cancer and other diseases,” Oliver added, noting that cancer rates in eastern Kentucky are already high and have been associated with pollution from mining operations.

“I have witnessed the streams in Harlan County running orange from toxic waste,” added Joanne Golden Hill. She asked OSMRE to strengthen the rule by requiring pollution discharges to be tested at their source rather than downstream, and that “the 100-foot Stream Buffer Zone is essential. Strong stream protections will go a long way to begin repairing the damage done.”

The new draft rule replaces the Stream Buffer Zone rule that required the impacts of coal mining to be kept out of waterways, with a 100-foot buffer zone to help make that possible. Though in place since the early 1980s, that law was not enforced by Republican or Democratic administrations.

The Bush administration did away with the buffer zone in 2008 when Appalachian groups pushed to have it enforced and mountaintop removal was out of control. That action was challenged in court, and the Obama administration pledged to restore the rule after it came into office.

But when the current administration dragged its feet, Appalachian groups along with national environmental organizations pursued the legal action against the weakening of the law done by President Bush. The courts agreed and in February 2014 restored the original 1983 version of the law.

The new draft rule is a major rewrite of the 1977 federal Surface Mine Control and Reclamation Act (SMCRA). It requires much more in the way of pre- and post-mining water quality monitoring, including selenium and conductivity. It addresses the de-watering of streams that results from subsidence caused by underground mining. It requires mine operators to restore both the hydrologic form and ecological functions of streams disturbed by mining.

But it does away with the buffer zone, meaning that valley fills, responsible for the burying of more than a thousand miles of Kentucky streams, could continue.

“I have worked my entire career with SMCRA [in the industry and as a regulator],” said Davie Ransdell, speaking for KFTC and the Alliance for Appalachia. “In reading the 524 pages of the actual rule, I got excited for the first time in a long time because it reads very much like SMCRA was first intended to be.

“It’s not perfect … the science behind a lot of these changes is a long time coming.”

She and many others again emphasized that a buffer zone needed to be reinstated and strictly enforced.

“I was present at the Rose Garden in 1977 when Jimmy Carter signed the strip mining law. I’m here to plead that the promise of this occasion be finally implemented,” said George Brosi of Berea. “Clean water provides many times more jobs than polluting industries. The stream buffer must be forced with exactly no exceptions.”

The reaction to the draft rule from those involved in or representing the coal industry was not so favorable or generous. Most of the several dozen industry speakers railed against “regulatory overreach” and the lack of industry input into the writing of the rule.

Because of the length of the rule and the thousands of pages of accompanying science and documentation, many asked for an extension of the public comment period that currently is scheduled to end September 25. This also is a tactic to drag out the rule-making process in hopes that there will not be sufficient time to issue a final rule before the change in administrations in the White House.

The rhetoric was most shrill from politicians, led by Attorney General Jack Conway and U.S. Rep. Andy Barr.

Conway said the draft rule would “end mining as we know it,” and called it “an insult to Kentuckians.”

Barr said the draft represented “the efforts of the Obama administration and MSHA [Mine Safety and Health Administration] to ban coal mining in Appalachia … We don’t solve problems through central planning that looks like the Soviet Union.”

A representative of U.S. Sen. Rand Paul went into a tirade that bordered on a verbal assault on the OSMRE representatives listening attentively to each commenter. Sen. Mitch McConnell also sent a representative, and Andy Beshear (candidate for attorney general), Jenean Hampton (candidate for lieutenant governor) and several state legislators all reiterated the coal industry’s talking points.

None of them, however, mentioned water or the goal of protecting streams and the people who live along them or downstream.

More reasoned opposition came from several coal miners who talked about the hardships they and their families have faced from the disruptions in the industry and the loss of employment. Some moved hundreds of miles to find new mining jobs. All were worried about their future and the impact new rules requirements would have on their industry.

Similar worries were shared by those who don’t make their living from coal.

“I’m 19 years old and I’m here because I’m concerned about my future. I’m worried because there are not jobs for me. The coal industry has never looked out for me or my friends,” said Emma Anderson. “The coal jobs are moving out, and no one is doing anything to help the devastated communities left behind. They destroy everything that I love. I think this is a really good step for doing something and gives me hope for my future.”