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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Statement of KRC Director Tom FitzGerald On Proposed Stream Protection Rule  Posted: September 4, 2015

STATEMENT OF TOM FITZGERALD, DIRECTOR, KENTUCKY RESOURCES COUNCIL, INC. ON PROPOSED STREAM PROTECTION RULE
September 3, 2015

Good evening. My name is Tom FitzGerald and I have been for 32 years the Director of the Kentucky Resources Council, Inc., a nonprofit organization providing without charge legal assistance to individuals, communities, and local governments on environmental issues, including mining-related problems.

My first direct involvement in advocacy on mining regulatory issues was back in 1972. Since that time, I have lost a friend and client who was crushed to death by slurry from a failed regulated coal waste impoundment; I have represented hundreds of individuals whose use and enjoyment of their own homes and land has been diminished or destroyed by poor mining and reclamation practices.

In 1977, Congress had three goals – that mining would be a temporary use of the land followed by a restoration of the land to a productive postmining use; that the choice of technology would be determined by what was environmentally sound mining practice; and that the rights of those living downhill and downstream would be protected by requiring minimization of damage to the hydrologic balance off-site and prompt reclamation of disturbed areas. We have fallen so far short of achieving those goals in the intervening 38 years.

After a brief period from 1977 to 1981, the implementation of this law has been in the hands of successive federal administrations either overtly hostile to or indifferent regarding the damage done to land and people. And rather than utilizing smaller equipment more appropriate to the terrain and to careful management of materials, the industry, with the regulatory blessing of weakened federal regulations on spoil management and stream protection, systematically displaced the workforce with larger earth-moving machines, often violating the spirit and letter of water and mining laws in order to, literally, move heaven and earth in order to maximize short-term profit.

You have a chance, in finalizing the first major rulemaking under this law in many years, to restore some of the protections intended by the 1977 law:

* By clearly reaffirming that “approximate original contour” includes premining elevation, thus limiting excess spoil;

* By restoring the requirement that excess spoil be hauled and placed in compacted, constructed lifts rather than end and side-dumped from mine benches into so-called durable rock fills that have resulted in elevated levels of chemical constituents and dissolved solids in runoff;

* By reaffirming that compliance with the water quality standards and effluent limitations of the Clean Water Act are a direct requirement of the mining law;

* By clarifying that the shearing of steep-sloped mountaintops is not “area” mining;

* By clarifying that “material damage to the hydrologic balance outside the permit area” be includes avoidance of violations of water quality standards and protection of existing water quality for streams not currently impaired by sediment or changes in water chemistry;

* By limiting the significant damage that longwall mining can do to surface and groundwaters; and

* By prohibiting disposal of coal combustion wastes at minesites.

The regulatory impact analysis of the proposed rule reflects that there are costs associated with the proposed rule. Yet there are costs associated with continued inaction – costs that 38 years later are still being borne off-budget by downstream flooding, inadequately reclaimed lands, water contamination and loss, and other impacts. Shelving this rule would do nothing to change the decline of mining employment in eastern Kentucky - - the depletion of reserves and the cost of production relative to other coal deposits, as well as development of shale gas, have been the economic drivers that have resulted in a loss of employment. It is time for Kentucky's political leaders and those who would be leaders in our Commonwealth to move beyond the rhetoric and sabre-rattling to develop solutions that will bring new economic opportunities to a region whose communities and people have paid dearly the off-budget health and environmental costs of our supposedly cheap coal. We owe a debt of honor to those who work and have worked in the industry and to their families, and we don’t honor that sacrifice with empty promises.
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