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Kentucky Coal Mine Safety, Environmental Violations are ‘Completely out Of Control’ as the Industry Declines

Kentucky Coal Mine Safety, Environmental Violations are ‘Completely out Of Control’ as the Industry Declines

Kentucky Coal Mine Safety, Environmental Violations Are 'Completely Out Of Control' As The Industry Declines

According to internal documents, the state regulators have failed in record numbers to bring down violations at surface mines as Kentucky’s coal industry collapses.

Inside Climate News has access to enforcement data from 2013 through February and recent internal emails. This information was provided by the Kentucky Energy and Environment Cabinet as a response to a state open record law request. It paints a picture that shows an industry and its regulators at crisis point.

The documents reveal a failing agency to enforce regulations that protect the public and environment from some of industry’s most destructive practices. This is in the context of bankruptcies by mining companies and a general industry decline which has also led to the loss of thousands more coal mining jobs.

Environmental advocates worry that there could be lax enforcement in other states with coal mining, such as West Virginia and Virginia, because of similar pressures on the industry. This is despite recent increases in coal mining. They also call on federal regulators for help to ensure that bankrupt, inactive or slow-moving mines don’t continue to deteriorate.

These data show that there are many zombie mines out, according to Mary Varson Cromer, an attorney, deputy director of Appalachian Citizens Law Center Inc. in Whitesburg, Kentucky. This term refers to mines that have been abandoned for years without any reclamation work.

In a December 15 email, a state official said that the number of notices for non-compliance with surface mine regulations had reached an all-time high of 810. Despite the fact that there were only half as many unresolved violations in 2013 than 2013, the increase was still significant.

Courtney Skaggs is a senior environmental scientist at Kentucky Department for Natural Resources. She warned in a separate Dec. 15 email that the department commissioner Gordon Slone that the situation was out of control. Skaggs, an ex-acting director of the agency’s Division of Mine Reclamation and Enforcement wrote that this was going to blow up in somebody’s face.

Skaggs also wrote John Lyons, the Kentucky Energy and Environment Cabinet deputy secretary, that same day. This cabinet oversees state environmental regulations.

Skaggs told me once that you had once told me to go to you if there was a problem. While I prefer to sit down and discuss this, you can look at the data in the interim. There are many variables, such as the massive drop in coal production. However, what we are doing now is not addressing the problem. We must do something before we have a major problem.

Skaggs declined to comment on a request by the media, stating that cabinet policy required all communication to be made through John Mura (the cabinet’s spokesman).

Mura wrote that the enforcement data can be explained in part by the unprecedented number of bankruptcies resulting from market forces in the coal sector, which are not under the control of (the cabinet).

He stated that the cabinet will continue to be obligated inspect mines and write violations regardless of whether there are viable permittees. The majority of violations will not be stopped until another mine operator is found for an idle mine or the mine has been reclaimed. He wrote that if a violation is a danger to the safety of others, the cabinet will seek immediate enforcement.

Enforcement: Less Teeth

Courtney Skaggs raised the alarm about the skyrocketing number non-compliance notifications in December. The situation did not improve for two and a quarter months. Jim Ward, the current director of states Division of Mine Reclamation and Enforcement was accused of not trying fix the problem when she raised the alarm in the energy cabinets.

According to data provided to the energy cabinet by response to an open records request, regulators had counted 817 unresolved notices for non-compliance as of February 31st.

Cromer stated that such notices could include multiple violations of performance standards mining companies are required to follow. These standards can range from environmental monitoring to stabilizing cliffs left by blasting. According to state data, there were 1,219 violations of all performance criteria as of February 31st.

Cromer, the citizens’ law center attorney, stated that the agency’s enforcement capabilities have diminished as coal production has declined. She said that the permit block is the main stick of its enforcement mechanism. This is where the state will stop violators from obtaining new mining permits if there are unresolved violations to existing mining permits.

Cromer stated that the state can continue to write violations. These companies don’t care if they don’t want to get new permits.

Cromer also said that she was frustrated by the slow pace of negotiations between the states and insurance companies, which hold bonds that cover reclamation costs for mining companies that are bankrupt.

She stated that she sees a cascade of events if state regulators are slow to move and more companies file for bankruptcy.

Tucker Davis, president, Kentucky Coal Association, didn’t return voice mail and email requests for comment.

Mura stated that cabinet officials share Skagg’s frustration with the lengthy and laborious process of reaching agreements with insurance companies to fix violations and reclaim mines.

He stated that employees should feel empowered to report any concerns that could affect the safety or health of residents or workers.

Mura stated that the officials have full faith in the Division of Mine Reclamation and Enforcement director Wards ability, to address the many problems presented by the multitude of bankruptcies of coal.

Failed Reclamation

Central Appalachia’s strip mining involves removing forests from the ground and using dynamite blasting away the tops and sides to extract coal that is buried hundreds of yards beneath them. To reduce the damage caused by this violent process, which permanently alters the land, companies must follow certain regulations.

The federal Office of Surface Mining Reclamation and Enforcement, a division of the Interior Department, oversees state regulators.

Companies must also reclaim mine sites as they mine new areas. Reclamation may include backfilling and grading the mined area, removing unstable high walls and mine refuse, planting grass or trees, as well as managing and treating any water that runs off site. This can be dangerous. The federal Surface Mining Control and Reclamation Act of 1978 requires that mined land be returned back to its original contour.

The law requires coal mining companies to obtain bonds to cover costs of reclamation in the event they go bankrupt. Kentucky also has a shared-risk bond pool that is funded by fees collected from the industry. This pool covers reclamation costs for mining companies that fail to meet their bonds.

According to state officials, Kentucky has more than half of all unresolved violations involving mines operated by bankrupt companies, including Ember Energy and Blackjewel.

A coal mining operation in eastern Kentucky, near Whitesburg, in 2019. | Photo by James Bruggers, Inside Climate News

Thirteen months ago, a federal bankruptcy court judge Set the stageTo Allow Blackjewel, once the nation’s sixth-largest producer of coal, will now walk away from cleaning up more than 30 coal mines located in Kentucky. Hundreds more are at risk of being abandoned.

Mura stated that negotiations began with Indemnity Insurance Co. in April 2020 for a number Blackjewel and Revelation permits. They are continuing. Mura also said that negotiations began with Lexon Insurance Co. in March 2021 regarding an Ember Permit. Mura stated that no final agreements have been reached.

One Kentucky landowner, who leased his property to a bankrupt mining company, is growing impatient.

Nearly two miles of unstable, rock-faced cliffs remained on Tracy Neeces property, eastern Kentucky’s Floyd County. Revelation, the bankrupt Blackjewel firm, left behind. Neece estimates they are as high as 250ft. The state had cited the company for failing to maintain proper drainage in order to control sediment runoff.

NeeceHis story was sharedInside Climate News and The (Louisville) Courier Journal. Cromer represented Neece who said last week that state officials have not requested reclamation.

They have not done anything yet, Neece stated. He also said that he had recently complained to state officials regarding drainage problems. However, he was told that it would be very bad for the state to need an insurance company to fix the problem.

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Neece recalled that they said they wouldnt do any thing unless it was life-threatening. He was frustrated and said, “I guess a boulder had to come down and strike a house before they would do anything.”

Surging Reclamation Liability

Peter Morgan, an attorney at the Sierra Club, is closely following coal bankruptcies across the country and sees two possible explanations for Kentucky’s poor enforcement.

Morgan stated that companies that are still in operation or are not bankrupt but are not insolvent could be in financial trouble and not complying with regulatory requirements. He also said that state officials might be concerned about the possibility of pushing the companies into insolvency if they get too aggressive.

Morgan said that with many companies in bankruptcy, state regulators act like they don’t have enough money through surety bonds and the states shared bond pool to fully pay the reclamation costs.

Morgan stated that if the money was available, the cabinet would be able to hire contractors and complete bond forfeiture. I can only see that the cabinet hasn’t taken this route because they know that sureties don’t have the money to pay all the bond amounts and the bond pool lacks the funds to make up the difference.

Mura responded in writing that the cabinet had an obligation to provide bondholders an opportunity to demonstrate their ability to complete the reclamation plans within a reasonable amount of time.

However, it appears that the money is not available.

According to a July 20,21 study, Kentucky’s reclamation liabilities range from $1.9 billion up to $2.4 billion. This compares to bonds issued by companies of approximately $888 million. ReportAppalachian Voices, an environment group. Similar shortfalls are also found in other coal states.

According to bankruptcy court records, the cost to reclaim more than 300 acres of Neeces property was $10 million. The state required only $1.7 million in reclamation bonds.

An actuarial analysis of the state bond pool fund from July 2021 showed that it would continue to be viable for at most three years. It also found that there is a primary risk in the current bonding program that the financial resources generated are not sufficient to cover future losses. The lands could be left in limbo for many years, waiting to be reclaimed.

The U.S. Energy Information Agency ForecastsNational coal production rose 7 percent this year and 2 per cent next year, largely due to increased exports and replenishing power plant inventories that were reduced during the pandemic. Kentucky saw an increase of 12.6 percent in coal production during the fourth quarter 2021, compared to 2020. This is after a sharp decline over the past decade.

Kentucky still has approximately20%According to the agency it is third in coal mines in the nation, behind West Virginia, Pennsylvania and others.

However, the Biden administration is working towards a GoalWith more than 40 countries promising to phase out coal in order to meet climate goals and a commitment to eliminate carbon emissions from electricity production by 2035, the fuels long term future is still uncertain.

Morgan stated that the Biden government must enforce surface mining regulation and reclamation laws more than ever. He said that it will be more difficult now because the White House has yet not to nominate someone for the federal Office of Surface Mining Reclamation and Enforcement. This is well over a year since President Biden was elected.

The White House press team did not respond on a question about the vacancy. OSMRE did no respond to questions about Kentucky’s enforcement record.

Morgan stated that the coal mining sector is facing an unprecedented crisis. It is disappointing and troubling to see a leadership vacuum at federal regulator. The state agencies should respond. Also, a coordinated federal response is required.

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