Kentucky coal: who'll guard the henhouse?
Salvo, Charles R. Di
IF ENFORCEMENT IS LEFT TO THE STATES .. Kentucky coal: who'll guard the henhouse? CHARLES R. DiSALVO DARRELL YOTHER, a strapping 28-year-old East Kentuckian, stood on his front porch one...
...In one of the worst episodes of the flood, the Cumberland River surged over the flood wall protecting Pineville, Kentucky, and destroyed much of that small town...
...So the same type of people who turned deaf ears to Darrell Yother could soon be administering the tougher federal standards—and with about 15 February I960: 85 as much enthusiasm as they've shown in the past...
...But, as he anticipated, county officials refused to take any action against the coal operator, whose family controlled much of the political action in the county...
...This piece of paper, unfortunately, bore no relationship to what was to happen in the hills above Clover Fork...
...So, in order to prepare for the child his wife was about to deliver—she was 81/2 months pregnant—Darrell Yother packed up a few possessions, left his now useless car in front of his house, and led his wife up the side of the hill, around the pond, through nearly a half-mile of ankle deep mud, down to the main road...
...The case of a district supervisor for DNREP who took reports of violations from his area inspectors and, instead of referring them to Frankfort for action, stuffed them into a secret briefcase for over a year...
...Thus, seven months after the state ordered the' 'immediate'' performance of reclamation, the effort on Clover Fork had degenerated into farcical chaos...
...If Walter Heine, OSM's Director and a man whose reputation was earned by the strict enforcement of Pennsylvania's strip-mining law, has the slightest doubt that this would inevitably be the case, then perhaps he should spend a rainy morning with Darrell Yother, trudging down a muddy Madlock Hollow Road...
...In April and October of that year two devastating floods ripped through the heart of central Appalachia...
...Put into practice, T & T's "plan" was an abysmal failure...
...Two weeks after T & T was ordered to submit a reclamation plan, it had not done so...
...Still there were no fines, no enforcement...
...Next stop: The state's Department for Natural Resources and Environmental Protection (DNREP), whose duty it is, under Kentucky law, to regulate strip mines...
...Doubts which have risen within OSM ranks over the choice of strict or lenient enforcement have generally been resolved in favor of strict enforcement...
...These conditions were not new to the residents of Clover Fork who have lived with the fear of floods for years...
...Finally, Darrell had to institute a private lawsuit and to file charges against the company with DNREP's legal office in Frankfort, the state capital...
...Yother and his hollow were now cut off from State Route 11 and from the world outside...
...Consequently, faith in Kentucky's effort to enforce its own strip-mine law has been, for years, virtually non-existent...
...As one of them said after October's flood, "We don't sleep too much when it rains...
...So it will be for Kentuckians...
...CHARLES R. DiSALVO served as an attorney for the Appalachian Research and Defense Fund of Kentucky...
...TO BEGIN WITH, none of the companies that were shut down in October were fined either at that time or when the state later held hearings on the closures—this, despite the tremendous weight of the evidence against them...
...The Department of the Interior and some members of the public may have been fooled by this posturing, but the industry was not...
...The admitted reluctance of the present DNREP chief to enforce reclamation laws against underground operations because of "political pressure...
...Rather than delay a pending application for a strip-mine permit, the coal company came to a quick settlement with the homeless Yother...
...The fears of state control are greatest in Kentucky where state officials have a history of coziness with the strip-mine industry...
...When asked why, some weeks later, the responsible inspector said, "I forgot...
...the hollows disgorged a rampaging avalanche of rock, dirt, and debris...
...He is assistant professor of law at West Virginia University...
...it requires, among other things, that operators restore the mined land to its approximate original contours and to a condition that would support prior or higher uses, stabilize and control spoil piles, segregate topsoil in the mining process and carefully restore it after mining, minimize disturbances to the water system, and establish permanent revegetation on mined areas...
...The state, so lax for so long, was now trying to restore its tarnished image...
...Only if the state's enforcement program does not meet federal requirements—on paper—will the federal Office of Surface Mining (OSM) take over the task...
...When president Carter signed the Federal Surface Mining Control and Reclamation Act into law in August of 1977, environmentalists hoped that there would be fewer Darrell Yothers in strip-mining's future...
...the state-approved sediment ponds of the mines above the community gave way...
...There is an almost never-ending litany of similar incidents...
...OSM inspectors and lawyers, in this present interim period in which OSM has had regulatory authority, have already shown themselves to be particularly immune to local political pressure...
...It was not...
...We're packed and ready to go...
...Another two and a half weeks passed...
...This elicited a letter deferentially Commonweal: 86 noting that it "would appreciate" notice of how the plan was coming along...
...J & F Coal, for example, was ordered to stop mining, seed all areasof its mine, stabilize all landslides, remove misplaced spoil, clean all debris-laden streams and waterways, and control siltation...
...The community of Cranks Creek in southern Harlan County, Kentucky, suffered a fate similar to Pineville's in the October flood...
...Eleven days after the October flood the state shut down five Cranks Creek and Clove Fork mines...
...and though no lives were lost, the community was washed away...
...Governor Julian Carroll and DNREP Secretary Robert Bell, who had lobbied against the federal bill, now sought the stance of tough enforcers...
...The company's equipment," he reported, "sinks down and has to be pulled out by other dozers...
...Before the ink dried on this order the coal company asked for an extension...
...For the Act assigns to each coal-producing state primary responsibility for enforcing the federal act within its borders...
...DNREP's shutdown orders against the companies prescribed a host of measures designed to heal the wounds inflicted on the environment by the operators...
...to be performed...
...The only sensible alternative to this dismal prospect is enforcement of the law by federal officials whose interests are not subject to the persistent political and ecoomic pressures to which local authorities have proven themselves so susceptible...
...But only after the April, 1977 floods did the state grudgingly and officially admit that surface mining contributed to the severity of the flooding, that Harlan County's steep slopes should never have been stripped at all because of the "inability" of the operators to effect reclamation of these hills...
...The order announced that all this was to be done "immediately," according to a plan to be submitted to and approved by the Department "immediately...
...Was this a signal that even the state had finally seen too much...
...The rains fell...
...If primary enforcement power over strip-mining is handed over to their state officials, Kentuckians will be forced to depend primarily for the preservation of their lives, property, and environment upon the same officials who have consistently failed the citizenry in the past...
...KENTUCKY'S APPALACHIAN citizens find themselves in a situation remarkably similar to that of Southern blacks during the 1960s...
...After leaving his wife at the home of relatives, Darrell proceeded directly to the county courthouse...
...But far worse than this was the subsequent lack of reclamation which meant that the citizens of Clover Fork and Cranks Creek would conti me to be endangered by renewed flooding...
...In fact, the foreman had never met the T & T engineer who had drawn up the reclamation plan and, according to Rosenbaum had only a "vague idea of the work...
...No," he replied, "it's too late...
...In May, a state inspector found T & T's proposal for removing the silt clogging Clover Fork's tributaries "unfeasible...
...In the early dawn hours a coal operator had built an earthen sediment pond—to catch run-off from the operator's strip-mine—right in the center of Madlock Hollow Road, the county road which served the Yother home...
...Section SIS of the Act is the heart of the new law...
...In response the department allowed that it had "no objection to a reasonable extension of time.'' How much would be reasonable...
...CHARLES R. DiSALVO DARRELL YOTHER, a strapping 28-year-old East Kentuckian, stood on his front porch one rainy October morning in 1977, staring in disbelief...
...The state finally coaxed a plan out of T & T on January 14, 1978...
...David Rosenbaum, Director of the Department's Division of Water Resources (a division not directly responsible for the strip mining enforcement effort) confirmed this judgment...
...The shut-down orders were issued on October 13, 1977 against five companies operating on Cranks Creek or on nearby Clover Fork (both branches of the Cumberland River within Harlan County): T & T Darby, J & D Coal Company, Dean Trucking Company, J & F Coal Company and Kentucky Bell Coal Company...
...They have not hesitated to order on-the-spot mine shutdowns and to march into federal courts for injunctions against recalcitrant operators...
...It too refused to take any immediate action against the company...
...At its hearing on October 24, 1977, J & F was ordered to complete its reclamation within ten days...
...A chorus of citizen voices alleged that both floods had been exacerbated, if not caused, by the extensive and illegal surface mining of the steep slopes along the two rivers...
...By the Department's own admission on November 9, 1977 T & T (as well as J & D and Dean Trucking) had at that<ime "performed little or none of the measures indicated in the order.'' Perhaps T & T could be excused: it was busy, according to the state's records, illegally strip-mining without a permit on another site...
...Would some action eventually be taken to discipline the company...
...The orders catalogued the various abuses committed by the companies which led to conditions hazardous to "the health or welfare of this state...
...THE commonwealth's lackadaisical enforcement policy came under renewed scrutiny in 1977...
...It was there that unprejudiced hearings took place, there that the landmark voting rights and segregation cases were fairly decided...
...Sit down-almost any East Kentuckian not connected with the coal industry or read the pages of the Louisville Courier Journal and you will learn of • The Cowrier-induced admission by the Department's legal staff that it had' 'lost'' the files of scores of cases of violators referred to it for prosecution...
...In the months following the October floods and the mine closures, Kentucky so coddled the offending operators and so mishandled the reclamation effort that it showed itself unworthy of responsibility for enforcing the federal Act...
...The T & T foreman responsible for the operation told Rosenbuam that he didn't believe he could clean the nearby channels with the equipment available to him...
...The state's orders to "abate and alleviate" were a first: never before had DNREP's emergency powers been used to shut down a mine...
...There was then no resort except to the federal courts...
...Then blacks could expect no justice from their state and local courts, for those tribunals then simply reflected the pattern of the predominant, anti-black power structure...
...The department simply asked J & F "please" to "let us know how much additional time" it would need...
...The first was more widespread...
...It did millions of dollars of damage to East Kentucky and Tennessee and Southwest Virginia and West Virginia...
...15 February 1980: 87...
...The DNREP bureaucracy, however, did not get round to approving it until March 22,1978, more than five months after the original order to submit a reclamation plan "immediately...
...Similarly casual treatment was accorded to T & T Darby...
...To grant Kentucky primary enforcement power would be equivalent—as the Courier-Journal has tartly editorialized— to putting the fox in charge of the henhouse...
...Now, two years later environmentalists are having second thoughts...
Vol. 107 • February 1980 • No. 3
