Amid KY coal bankruptcies, who cleans up the environmental mess left behind?

On Sept. 10 and 11, a bankruptcy court held a hearing on the status of Blackjewel’s coal mining permits and environmental violations. More than 15 months after seeking bankruptcy protection, Blackjewel still holds 209 Kentucky mine permits. Though most have sold, the buyers have yet to transfer the permits and assume the responsibilities of environmental compliance and reclamation.

Those responsibilities remain with Blackjewel. Unless they don’t.

Since it entered bankruptcy, Blackjewel has spent little on environmental compliance and has racked up thousands of violations. Last week, Kentucky’s Energy and Environment Cabinet asked the court to order Blackjewel to comply with the state’s environmental laws. The court refused. It found that Blackjewel could only be ordered to address environmental violations that constitute an immediate threat to public health and safety.

The court found such an immediate threat in only one instance. In Harlan County, during recent rains, runoff from a Blackjewel mine washed trees and silt into the drainage system, which subsequently overflowed and washed out the road and public water line below. As the county struggles to fix the road and water line, residents have had to go without water.

In the case of a landslide threatening a home in Bell County, the court did not find an immediate threat. The house is located below a slide on a saturated hillside and, if and when it fails, the mountainside will slide into the house below. Still, the court found that the imminence of the threat was not sufficient to order Blackjewel to fix the problem.

This does not bode well for Kentucky. Twenty-nine percent of Kentucky’s mine permits are involved in seven coal bankruptcies. What’s more, all of those permits are up for grabs, and there’s no guarantee that the clean up responsibilities that come with those permits will be assumed by another company. If the bankrupt coal companies’ permits aren’t transferred, it is likely that the reclamation will fall to either the bonding company or the state. Where the bond isn’t sufficient to clean up the mine site, the state will be responsible.

We’re talking about thousands of acres of unreclaimed mine land, mostly across Eastern Kentucky. As the Cabinet said, “conditions only get worse over time. Ponds fill in with sediment washed from unreclaimed mining areas resulting in polluted discharges, unreclaimed slopes erode and fail while depositing mud, rocks, and debris into creeks and the backyards and homes of the citizens that live in the valley bottoms below.” That, combined with increased high intensity rain events caused by climate change leave those “citizens that live in the valley bottoms below” in a very precarious situation.

Immediate actions are needed to protect those citizens and to address the impact that coal’s collapse is having in Eastern Kentucky.

Many of the problems on Blackjewel’s permits stem from years of lax enforcement by the state. That must stop. Kentucky must stringently enforce all of its environmental laws to ensure that permits are in better shape when they enter bankruptcy. Coal companies must bear the costs of clean up, and the only time that can be assured is before the company seeks bankruptcy protection.

Further, the Cabinet can and must pursue Jeff Hoops and other owners and controllers of these coal companies both for the costs of reclamation that are not covered by the bond amounts and for penalties.

But even that won’t be enough to clean up the hundreds of thousands of acres of scarred land and miles of polluted streams that the industry is leaving behind. The area needs federal investments aimed at creating the jobs needed to clean up these lands and waterways. Eastern Kentucky is transitioning away from coal. So far, that transition is chaotic and unjust. Federal investment in the jobs required to clean up mine sites, as well as the jobs needed to fix the region’s dilapidated infrastructure, are the region’s only hope for a just transition.

Mary Varson Cromer is the Deputy Director of the Appalachian Citizens’ Law Center in Whitesburg.