Chapter 8: How a Kentucky school teacher stopped a 756-acre surface mine — for now

jcheves@herald-leader.comJune 29, 2013 

SASSAFRAS — Knott County protesters blocked bulldozers with their bodies in the 1960s, lying in mud to shut down strip mines for hours. Today, they go to court and tie up everything for years.

Environmental protection laws have grown more powerful, much like the machines used to dismantle mountains, in the half-century since coal operators brought surface mining to southeastern Kentucky.

Now coal cannot legally be ripped from the earth until neighbors are warned about blasting, creeks are tested for existing pollution, post-mining reclamation plans are filed and permits are approved by the state and federal governments.

That's how James River Coal Co. of Richmond, Va., with more than $1 billion in annual sales, found itself thwarted in Knott County by elementary school teacher Pam Maggard and a handful of other activists.

James River Coal announced in 2007 that it wanted to surface-mine 869 acres of mountain on the Knott-Perry county line, just north of the towns of Vicco and Sassafras. The company planned to build six slurry ponds around the site to hold coal sediment waste. It would dump the "overburden" — soil and rocks that it would remove — into six "valley fills," burying 4.2 miles of streams, including Stacy Branch of Carr Creek and Sugar Branch of Yellow Creek, requiring them to be rechannelled.

These small roadside streams make their way into the North Fork of the Kentucky River, which combines with the Middle and South forks to form the Kentucky River itself. A couple hundred miles downstream, this is the drinking water supply for the city of Lexington.

The Sierra Club objected on environmental grounds to the U.S. Army Corps of Engineers, the federal agency that approves surface-mining permits. The group cited heavy metals and toxic chemicals likely to be released by mine runoff. The Environmental Protection Agency, which enforces the Clean Water Act, then raised its own "significant concerns." The EPA warned the Corps that the proposed mine could worsen water quality in streams already damaged by past mining.

James River Coal sent its engineers back to the drawing board. It returned in 2011 with somewhat reduced plans to mine 756 acres and bury 3.5 miles of streams, using one larger valley fill and one larger slurry pond. It also offered to mitigate the destruction in Knott County with restoration work on damaged streams in Wolfe County and $752,047 in payments to the state for additional repairs to Eastern Kentucky waterways.

This time, the Corps approved the company's permit.

On May 11, 2011, Maggard came home to find a form letter from James River Coal taped to her front door in Sassafras. The letter explained that explosions would rock the mountain 1.1 miles north of where she stood, "sunrise to sunset, Sunday through Saturday." It gave a corporate phone number to call for more information. Maggard called several times and left recorded messages. Nobody returned her calls.

In October 2012, Maggard and two others who live in the area, along with the Sierra Club and Kentuckians for the Commonwealth, sued the Corps in U.S. District Court to block the company's permit. They said the Corps failed to consider an emerging body of evidence indicating that people who live near major surface-mining operations are more likely to suffer from cancer, heart disease, birth defects and other serious health problems.

"Coal is not a good neighbor," Maggard, 54, said in a recent interview. "Nobody is rich in my school district. Nobody lives in a fancy house. Eighty (percent) to 90 percent of the kids are on free or reduced lunch. Given the rich resources we're surrounded by, our children should be doing so much better than they are. But the wealth is just taken away. We're left with the mess."

Fifty years ago, Whitesburg lawyer Harry Caudill expressed the same sentiment in his landmark book Night Comes to the Cumberlands: A Biography of a Depressed Area.

"Approximately 75 percent of the plateau's output is produced by a relative handful of large corporations," Caudill wrote. "These giants of the industry are, in most instances, 'foreign' corporations chartered in other states. Nearly all their stockholders live outside the plateau. This absentee ownership of the operating companies promptly drains some three-quarters of the production profits out of the area."

Today, lawyers in the James River Coal case communicate through a flurry of motions to Senior Judge Thomas Russell.

"The Corps' failure to consider the potential health impacts of the mine is particularly puzzling," the plaintiffs said in a January filing.

"The Corps is not obligated to consider the possible health effects that the entire mining project might have on the surrounding community," the Corps replied in February.

Meanwhile, James River Coal, which did not return calls seeking comment for this story, awaits a resolution that might not come for years. Whichever side loses at this level can take its case to the U.S. 6th Circuit Court of Appeals. And the EPA might choose to weigh in again.

Armed with modern laws, citizens have filed dozens of legal and regulatory challenges like the one James River Coal faces, sometimes reducing the size of a mine, forcing more extensive cleanup or even exposing wrongdoing. The Kentucky Coal Association took note of these tactics last year, producing a report for its members that it called Know Thy Enemy: An Update on the Sierra Club.

"The Sierra Club is attacking both coal supply and coal demand. With respect to coal supply, the Sierra Club has turned its resources on filing legal challenges against mining companies," the coal association wrote. It listed several lawsuits that environmentalists have filed in Central Appalachia since 2010 that resulted in court-ordered pollution cleanup, sometimes costing coal companies millions of dollars.

"Our biggest wins come in the courtroom," said Ted Withrow, a retired state Division of Water official in Eastern Kentucky who helps oversee litigation at Kentuckians for the Commonwealth, a grass-roots social-justice group.

"Direct action tends to bring more attention to you. But the lasting impact comes from the courtroom," Withrow said. "That's where you set precedent and change the law. And changing the law means you're changing people's behavior."

'What do we do?'

Maggard's family has been torn over coal for generations.

Her father-in-law was a radical strip-mine opponent who fired a rifle at coal operators to chase them away from his friends' homes. Her father went underground to dig for South East Coal Co.

Knott County's transformation from an agricultural community before World War II to a mining stronghold caused great unease and, for a time, passionate direct-action protests. In 1978, University of Kentucky researchers working for the EPA conducted interviews about surface mining across a six-county region that included Knott.

"These people have a very strong perception that surface mining is causing irreversible damage to the mountain environment," the researchers told the EPA in their report. "However, it is apparent that many respondents feel a deep sense of helplessness due to their economic dependence on an industry of whose negative impacts they are very conscious."

Maggard said she doesn't hold a knee-jerk opposition to coal, but the sheer destructive power of surface mining disturbs her. You can't build a healthy local economy on wrecking the environment, she said recently.

"The public relations people for the coal industry have everyone driving around with this bumper sticker that says, 'Don't like coal? Don't use electricity,'" Maggard said. "I want one that says, 'Don't like trees? Don't breathe oxygen.'"

Maggard said her grandparents were forced to abandon their home in the 1970s because blasting from a nearby strip mine shattered its windows, knocked it off its foundation and sent boulders crashing down the mountain.

"The sad thing is, they were elderly when they had to move," she said. "My grandfather used to go back to their old home and camp out there because he just couldn't bear to be gone. They had to keep going back for him." Maggard joined Kentuckians for the Commonwealth in 2006 in response to massive coal trucks barrelling down her narrow street, using it as a shortcut between state highways. The trucks kicked up thick, choking dust clouds, forced children indoors and destroyed sidewalks and water lines that ran parallel to the road.

KFTC taught Maggard's neighborhood how to organize as a collective to demand justice. This sounded good on paper. In reality, after months of lobbying coal companies and local and state officials, the neighbors were given a "Children at play" sign and occasional street sweeping. Nothing stopped the trucks until the coal industry hit its next slump, at which point the trucks mostly disappeared, she said.

When Maggard learned about James River Coal's plans to strip-mine above her home, with explosions, valley fills and slurry ponds, she decided to join forces with KFTC again. Maggard said her in-laws remember when that same site was mined in the 1960s and '70s, and "rivers of mud poured down the mountain and through everyone's yards."

"I want people to have jobs," she said. "I still have miners in my family. I've got nothing against any of that. But I can stand on my front porch and see that mountain they want to mine on. These places look awful when they're done mining them. What do we do when the last of the coal is gone? If we've polluted the water and destroyed the natural beauty, nobody is going to want to visit or live here."

Neighbor vs. neighbor

At the same time, Knott County desperately needs jobs. More than 16,000 people live in the county, which had the state's fifth-highest unemployment rate in March, at 15.2 percent. Many of them chafe when Maggard and others file lawsuits challenging coal mines.

Until the Eastern Kentucky coal economy dramatically slumped over the past two years, more than 500 people sometimes worked at Knott County's surface mines, compared to more than 700 in its underground mines. Local surface miners sent tens of millions of tons of coal to utility plants in Virginia, South Carolina, Tennessee, Florida and elsewhere.

They also created flat land in an area that has precious little.

"You can't build on the side of a mountain," said Bob Miller, who retired as a coal operator in 2005.

Miller began surface mining in 1980. Among the Knott County sites he flattened are locations for the Sportsplex, a county-owned athletics center, and an ATV training center. Miller said most opponents of surface mining "don't know anything" about coal's contribution to Eastern Kentucky, such as generous wages and severance taxes.

"It's meant about everything," Miller said. "It just affects everything in the county when the coal's not going."

Withrow, the KFTC litigation team member, said it takes courage for people in the coalfields to protest destructive mining practices.

"The reach of the coal companies in these communities is unfathomable until you've been a part of it," Withrow said. "Coal companies control every elected position in the county, every board, every business to speak of. You can lose your job at the Quickie Mart if you speak out against their practices. They've got a death grip on these people because you don't have any other work outside of coal that pays a damn."

Some plaintiffs in mining lawsuits say they've grown accustomed to criticism at family gatherings or the grocery store, or on Facebook. Weakened demand for coal is blamed on them and their environmentalist friends, they said.

"Right now I'm getting flak about this suit from people who work in the mines," said Alice Whitaker, executive director of the Lotts Creek Community School and one of Maggard's co-plaintiffs in the James River Coal case. "They say, 'How dare she do this? People's jobs depend on this industry.' But I won't apologize for being concerned about our health and our environment."

Laws get tougher

Citizen-activists rely on laws that have been tested and refined over four decades.

Spurred by nightmarish levels of pollution — the Cuyahoga River in Ohio caught fire — the federal government established the EPA in 1970 and passed the National Environmental Policy Act (1970), the Clean Air Act (1970) and the Clean Water Act (1972).

The EPA's power waxes and wanes depending on who occupies the White House. Under President Barack Obama, a Democrat, it aggressively enforces anti-pollution rules on mining, controversially delaying some permits or blocking them even after they've been issued by the Corps. Obama's EPA encourages coalfield residents to speak out if they're upset by certain mining practices.

"One of the main premises of environmental justice is making sure that the community is at the table to help tell us exactly what it is that they want," EPA regional administrator Gwendolyn Keyes Fleming told Knott County residents at a public forum in Lotts Creek in 2011.

In 1977, Congress approved the Surface Mining Control and Reclamation Act to require permits, bonds and environmental inspections at mine sites and to attempt to restore land once mining is finished. SMCRA puts federal supervision over state mining regulation and encourages vigilant citizens to be part of the permitting process.

Additionally, SMCRA diminished the power of the controversial broad-form deed, which allowed coal operators to destroy private land if they held the rights to minerals under it. SMCRA banned surface mining within 300 feet of an occupied home, school or church; within 100 feet of a cemetery; and in federally designated historic or natural resource areas.

"By the 1980s, in large part because of SMCRA, the coal industry was using the broad-form deed as a sword, not as a club," said Tom FitzGerald, an environmental attorney for the Kentucky Resources Council .

"Companies would go to landowners and say, 'Look, we have the right to just come in here and mine your land. You have no right to say no. But we're not the bad guys. We'll give you one-fifth of the royalties from whatever we extract,'" FitzGerald said. "They still wanted to use the deed, but they knew they couldn't just keep rolling over people."

In 1988, Kentucky voters went further: By a 4-to-1 ratio, they amended the state constitution to eliminate the right to surface-mine under the broad-form deed. Overnight, coal operators' reach was reduced. Simultaneously, much of the remaining opposition to surface mining evaporated. Fewer people objected if companies ripped up only land they owned or leased rather than somebody else's.

SMCRA has its flaws. To cite one example, coal operators must post bonds that will pay for site reclamation if they disappear into bankruptcy before cleaning up their messes. But those bonds can be too small, leaving communities with "orphaned" surface mines.

That happened with Hannco Energy Corp., a Hindman firm that went bankrupt in 2002. Hannco left a 25-acre mine site in western Knott County that would cost an estimated $4 million to restore. It had posted a wholly inadequate — but entirely legal — $29,900 reclamation bond. Of the 15 to 25 mining permits forfeited in Kentucky every year, according to state data released in 2012, most of the bonds were too small to pay for the necessary hauling of rocks and dirt, grading of land, revegetation and cleaning of ponds and streams.

By and large, though, surface mining in 2013 is much improved, said J. Steven Gardner, a Lexington engineer who has consulted for coal companies in Eastern Kentucky for the past three decades.

For instance, coal companies must pay for watershed assessment studies before they begin mining to determine the health of lakes, rivers and creeks around their sites, Gardner said. Then they must monitor water quality during mining to be sure they aren't exceeding acceptable discharge levels for acid, iron, sediment and other pollutants. None of that was required 50 years ago.

"We learn from the mistakes of the past because we didn't know they were mistakes at the time," Gardner said. "We have improved tremendously. I feel proud of the job the mining industry has done to improve its behavior and performance."

Cancer cluster

Whitaker, the Lotts Creek Community School director, said she suspects that surface mines are not so tame, even with modern laws in place.

"Right now, Lotts Creek probably does not have a living thing in it," Whitaker said. "Sometimes its water runs red. Once in a great while, when they're not stripping for coal and they're not washing coal, we might start to get a few minnows again. But it's never for long."

James River Coal's proposed strip mine would be south of Whitaker's school, "two or three miles as the crow flies," she said. Her campus lies in a valley just east of the Perry County line, surrounded on most sides by mountains that have been flattened, scalped or scraped over the past 50 years. Previous mine blasting in the area broke windows in the school gym, she said.

"I had a coal operator tell me that valley fills are good for our health," Whitaker said. "He told me it cleans the arsenic, lead, sulfur and the other chemicals you get from mining out of the water when the water runs over the rocks and through the dirt of a valley fill, like it's some sort of giant filter. And the thing is, he really believed it. He believed rocks can filter arsenic out of your water."

In their lawsuit against the James River Coal mine, the plaintiffs cite a growing body of evidence — more than 20 epidemiological studies so far — indicating that people who live near major surface-mining operations are more likely to suffer serious health problems.

A cancer mortality cluster sits over the coalfields of southeastern Kentucky. Researchers say this disparity remains even after poverty, low education, smoking, unhealthy diet and other factors are taken into account. Similarly, a 2011 study at UK revealed that toenail clippings taken from Eastern Kentucky coal county residents show higher levels of arsenic, cadmium and nickel than clippings taken from residents of industrialized Louisville. These heavy metals cause a range of illnesses and disabilities, particularly in children.

Surface mining — especially mountaintop removal, the most dramatic kind — involves explosions and massive disruption of land and water, introducing pollutants into the local ecosystem, said Michael Hendryx, a public health professor at West Virginia University. Hendryx helped write many of the peer-reviewed studies in question and is considered a leading scholar on the health impact of mining.

"We don't know exactly what the link is" between surface mining and health problems, Hendryx said. "We don't know exactly what the air and water pollution is and how the contaminants are transferred to people. That is what we're looking at now."

In recent months, coal operators have begun to finance their own research to question Hendryx's assertions. One such study, presented at a coal industry symposium in Charleston, W.Va., in April, confirmed that mortality rates were statistically significantly higher" in counties with mining than in counties without mining, as were rates for cancer and other diseases. But the researchers said they could not control for "personal risk factors" that had nothing to do with mining, so more study is needed before blame can be assigned.

"Additional studies of Appalachian mortality are required to understand the complex interactions of factors and determine the extent to which coal mining plays a part," the industry-backed researchers wrote.

Hendryx said the tobacco industry used the same strategy a generation ago, hoping to make Americans doubt the emerging facts about cancer and heart disease for at least a little longer.

"What you're hearing from the coal industry is the same argument used for the longest time to defend cigarette smoking. 'Well, we don't know exactly how smoking harms the human body, so we can't say for sure that it does. Therefore, it's too soon to tell people to quit smoking.' But we knew enough about smoking then to say that it was a probable source of health problems, and we know enough about surface mining now to say it, too," Hendryx said.

What's left behind

Fourteen percent of Knott County's surface had been mined by 2012, compared to 10 percent for all of Central Appalachia, according to a study of mine permit data and maps by Appalachian Voices, an environmental group in Boone, N.C.

A satellite view reveals raw, scalped patches of land across much of the western third of the county. There also are periodic blowouts at inadequately secured underground mines, such as the one in April 2005 that sent hundreds of thousands of gallons of water gushing from the closed Consol James Fork Mine in northern Knott County. That blowout swept trees and rocks from the hillside and closed Ky. 80 for days until debris could be removed.

A closer look from the ground lays bare significant water pollution.

Knott County drains into two watersheds: the North Fork of the Kentucky on the west and the Lower Levisa on the east. According to the EPA, in 2010, 97 percent of the watersheds' combined 3,958 miles of creeks, streams, rivers and lakes was suspected of being "impaired," falling short of legal water quality standards. The EPA identified mining as one of the most frequent "probable sources" of impairment, along with improper sewage disposal.

These mining-impaired waters include Troublesome Creek, which runs through the county seat of Hindman, and Carr Creek Lake, the heart of a state park. The federal government spent $38 million to build the lake in the 1960s.

Now it's surrounded on three sides by surface mines. In the 1990s, the Kentucky Geological Survey warned that the lake was filling with silt and sediment due to "extensive strip, auger and deep mining," posing a "threat to aquatic life."

"When I look at that 97 percent impaired, it's just so depressing," said Judy Petersen, a former aerospace engineer who now runs the Kentucky Waterways Alliance, a clean-water advocacy group.

"How concerned should you be about impaired waterways if you have a family? Well, if fish can't live there, or if they're greatly reduced in number or they're deformed, do you want to be drinking out of it? That's the big question," Petersen said. "It certainly should raise a red flag for people."

Last week, the Kentucky Division of Water released a study of drinking water from 2000 to 2012, to determine whether heavy metals related to mining were detected.

Overall, the study concluded that public drinking water systems were clean, except for a 2003 contamination in Knox County by antimony, a possible human carcinogen related to mining.

In groundwater, arsenic could be detected in 3.8 percent of wells tested in the Eastern Kentucky coalfield and 6.3 percent of wells in the Western Kentucky coalfield. Chromium was detected in 4.7 percent and 6.3 percent of the wells in those regions, respectively. Statewide, those two contaminants were detected in 2.5 percent of wells on average.

"However, no information was generated to indicate that concentrations were at a level of concern," the report concluded.

Government inaction

Sometimes citizen-activists have to do the government's job for it, protecting creeks and rivers that regulators ignored.

A coalition of plaintiffs, including Appalachian Voices, KFTC, Kentucky Riverkeeper, Waterkeeper Alliance and four affected residents, recently exposed the failure of Gov. Steve Beshear's administration to monitor water quality in southeastern Kentucky.

Conducting an investigation in 2010, Appalachian Voices discovered that subsidiaries of International Coal Group and Frasure Creek Mining had submitted thousands of falsified water-pollution discharge monitoring reports to the Kentucky Energy and Environment Cabinet.

The companies' actual mineral discharges were as much as 40 times the legal limit. The falsified data they presented showed much lower numbers and often was copied and pasted from one quarter to the next.

Shown the evidence, the Beshear administration acknowledged that it had not checked the reports' accuracy. It agreed to cite the companies and fine them a combined $660,000.

At the same time, though, the state fought to prevent the activists from intervening in Franklin Circuit Court to push for the larger fines they said were appropriate, in the millions of dollars. State lawyers argued that allowing citizens to get involved in such cases "will cause regulatory enforcement to slow to a trickle so that the agencies can accommodate the 'right' to be heard by all of those parties the (state) would deem to have a legal and protectable interest."

Judge Phillip Shepherd sided with the activists, allowing them to join the case and signing off last year on a $575,000 penalty for ICG. Frasure Creek Mining went into bankruptcy in March and agreed to pay a $220,000 penalty and transfer ownership of all of its Kentucky surface-mining permits.

Citizens must keep an eye on coal operators because state regulators too often don't, said Withrow, the former state water official at KFTC.

The politically powerful coal industry calls the shots in Frankfort, Withrow said. Coal donors are among the most generous in Kentucky politics, giving more than $200,000 just in the 2011 statewide elections that re-elected Beshear, a Democrat and staunch "Friend of Coal."

"Every time we walk into a conference room in a Clean Water Act case, the state's lawyers are sitting with the coal company lawyers and glaring at us," Withrow said. "The state files briefs with the coal companies against us. The state fights tooth and nail when anyone tries to get the laws enforced. They should actually be on our side, but instead, they make everything an uphill battle."

Dick Brown, spokesman for the Energy and Environment Cabinet, said Withrow's comments are "unfortunate and unfounded." The cabinet negotiates in good faith with coal companies and environmental groups, Brown said.

"We do not choose sides," Brown said. "We enforce laws and regulations. Coal companies today are held to a much higher standard than at any time in past administrations."

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