Herald-Leader Editorial

Mining permitters say protecting human health not their job

February 25, 2014 

No government agency considers itself responsible for weighing the effects on human health before deciding where surface mining will be permitted.

No matter how many peer-reviewed studies link living near surface mining to higher rates of disease, death and birth defects, it's of no consequence to the agencies issuing the permits.

That astounding gap in a process that's supposed to protect the public came to light during arguments this month before a federal appeals court. The three judges are considering a challenge to a James River Coal subsidiary's plan to blast and strip the hills next to the communities of Vicco and Sassafras in Knott and Perry counties for a 756-acre surface mine.

The plaintiffs say the Army Corps of Engineers, one of three agencies that must approve surface-mining plans, was required by federal law and its own regulations to consider risks to public health.

But a U.S. Justice Department attorney, representing the Corps, argued that any such responsibility falls within the jurisdiction of Kentucky's environmental agency.

The Corps is responsible only for considering the effects of filling streams with dirt and rock dislodged by surfacing mining, the attorney said, not for considering the effects of the mining overall — a distinction without a difference, if ever there was one.

Apparently nothing precludes Kentucky from considering public health when ruling on mining permits. But Kentucky, which has been delegated authority to enforce the U.S. Surface Mining Control and Reclamation Act, chooses not to make public health a consideration.

Notably, neither the Corps nor Leeco, the James River subsidiary, is contesting the evidence of harm to human health from living near strip mining.

The studies to that effect have been piling up since 2009, prompting Democratic U.S. Reps. John Yarmuth of Louisville and Harlan County native Louise Slaughter of Rochester, N.Y., to call for a moratorium on the practice until surface mining's public health effects undergo their first comprehensive federal study. Their proposal has made no headway in the Republican-controlled U.S. House.

During the final quarter of 2013, surface mining accounted for 32 percent of Kentucky's coal production and, counting office and preparation plant workers, employed probably 4,000 people. That's 0.2 percent of Kentucky's work force.

One of the three judges hearing the appeal, Eugene Siler Jr., a former Whitley County attorney, twice asked whether considering public health effects would not stop all surface mining.

No, he was assured by the plaintiffs' lawyers, but it would result in conditions being imposed on mining permits to protect public health.

No one mentioned that the blasting, bulldozing, air and water pollution would be right on top of the 700 people who live in Vicco and Sassafras, along with the fears for their and their family's health.

Those who insist that surface mining is overregulated in Eastern Kentucky should get to live next door to it.

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