Two years later, Pike disaster victims deserve answers, protection from state and federal governments

July 15, 2012 

Two years ago this week, Joyce Blackburn got the call that too many Kentuckians both dread and expect.

"Get out of the house now," a neighbor said.

Blackburn has lived all her 82 years on Harless Creek in Pike County. Except for serving in World War II, her late husband, James Blackburn, a coal operator and miner, lived his whole life in the narrow hollow, too.

Never had she seen anything like the flood that would wreck her home and wipe out the rural neighborhood of about 80 households.

A heavy, but not yet extraordinary, rain was sending powerful surges of mud rumbling off the surrounding mountains. Residents were not surprised because Cambrian Coal had been stripping without reclaiming the ridge at the head of Harless Creek. What they didn't know was the company had been mining without a permit for 18 months.

Blackburn grabbed her pocketbook, ran out and tried to scale the slope behind her house on her hands and knees but kept sliding back. Finally, neighbors helped her to higher ground.

Clambering to the safety of a hillside cemetery, Blackburn's grandson and great grandson watched crushed vehicles, boats, houses and tanks spewing propane tumble in the waves.

Harless Creek slammed into the Russell Fork of the Big Sandy River with so much force the normally larger stream ran backward.

Mercifully, the flash flood struck before people were asleep. No one died on Harless, though Pike County had two flood-related deaths.

Two years later, Harless is rebuilding but will never fully recover from the trauma.

About 160 residents filed suit, claiming that unlawful mining and reclamation by Cambrian Coal and AEP Coal were to blame for the damage. The companies agreed to confidential settlements.

Now the Harless residents are seeking something more important: An answer to why the state of Kentucky failed them so disastrously.

They have gone to court seeking protection — not just for themselves but for all those in the region who worry a heavy rain will bring down an avalanche of mud and water on their homes.

If they can't get the reassurances they seek from the Beshear administration, the federal government should step in and guarantee that Kentucky is enforcing surface mining laws enacted to protect public safety.

You didn't have to be an expert to recognize that the Cambrian mine was a ticking bomb. Several times citizens filed complaints that produced perfunctory inspections but no enforcement.

After the flood, they discovered that regulators had allowed Cambrian to mine for 18 months without a permit, even though state law required a shutdown as soon as the permit expired in January 2009.

Also, the company had done almost none of the required reclamation that could have eased the flooding. Profits flow quicker when an operation puts all its equipment and work force into producing coal rather than stabilizing and re-vegetating the bulldozed land.

Cambrian's president, Jim Booth of Inez, was Gov. Steve Beshear's biggest financial supporter during his re-election last year. Booth, his family and associates donated $279,300 to Beshear's campaign and inauguration and the Democratic Party.

We know of no evidence connecting Booth's support for Beshear and the regulatory breakdown.

Indeed, the Harless plaintiffs blame something more pernicious: a culture of non-enforcement that endangers every Kentuckian who lives below mountaintop mining.

They point to other floods, including one in Breathitt County in 2009, in which the state had enabled shoddy and dangerous reclamation.

Accountability won a round July 6 when Pike Circuit Judge Steve Combs rejected the state's claim of sovereign immunity and allowed the Harless residents' lawsuit against the state to proceed.

Mine operators are legally responsible for preventing changes in water quality or flow that cause flooding or harm groundwater.

The state also has a responsibility to deny permits that, combined with earlier mining, would cause flooding or damage water. People who live in Kentucky's eastern coalfield say surface-mined areas are so vast in places that, even when reclaimed, the new Western-like landscapes of grass and silvery shrubs cannot absorb widespread rains or slow runoff like the forests they replaced.

Citing the cumulative impact, a hearing officer in 2010 denied a permit to Cambrian to strip mountains along a nearby tributary of the Russell Fork in Pike County. Beshear's environmental secretary Len Peters overruled the hearing officer and allowed the mining. A hearing in that controversy is set for this week.

The Department for Natural Resources commissioned a study that found no correlation between surface mining and the Harless flood. The state also made a database change that will stop inspection reports from being generated after a permit expires.

Greg Stapleton, the inspector who kept giving the outlaw mine a clean bill of health, retired the month after the flood.

In response to our questions, Beshear called the "oversight failure" "indisputable" but said "this type of error cannot happen again" because of the change the state made. He cited the study that found no link between the Harless flood and mining and said "political affiliations have zero impact on the enforcement of our mining policies."

Joyce Blackburn's daughter, Janie Caudill, a hairdresser who had to build a new salon to replace the one ruined by the flood, helped organize the lawsuits. Her SUV sports a "friend of coal" decal, but she wonders why the state let coal companies "endanger our lives." She fears it will happen again. Given the history, her worries are reasonable.

Her husband, Robert Caudill, an outdoorsman who led Boy Scouts on hikes on Pine Mountain, says, "I don't have a thing against mining — just do it responsibly."

U.S. Interior Secretary Ken Salazar is ultimately responsible for enforcing surface mining laws. Everyone could sleep better if he investigated whether Kentucky is protecting the public when mining is done irresponsibly.

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