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

Pine Mtn Settlement School Petition  Posted: January 28, 2001
November 14, 2000

Yesterday, the Pine Mountain Settlement School filed a petition to designate the school property and a buffer area around the school as unsuitable for mining operations. The petition (without attachments) is printed below.

Letters asking that the Patton Administration support of the designation of this area as unsuitable for mining should be addressed to Governor Paul Patton, State Capitol, Frankfort, KY 40601, and Secretary James Bickford, NREPC, Fifth Floor, Capital Plaza Tower, Frankfort, KY 40601, with a request that they be placed in the file for the lands unsuitable petition.

PINE MOUNTAIN, KENTUCKY - On November 13, 2000, the Pine Mountain Settlement School filed with the Kentucky Department for Surface Mining Reclamation and Enforcement, a petition to declare 5,226 acres of land surrounding the historic school, as unsuitable for all types of coal mining operations.

The historic Pine Mountain Settlement School, which was founded in 1913, has provided programs of education, culture, community development and mountain heritage for over 87 years. Since 1972 the school has provided an Environmental Education program for adults and school children from across the state, region and nation. The School takes this action in response to proposed mining activities that would degrade the cultural, historic and ecologic values of the school. Within the past year, runoff from nearby operations have polluted one stream. A proposed mountaintop mining operation on the Cumberland Plateau to the north of the school property would materially disrupt the mission, the historical setting, and the viability of the school as a National Historic Landmark and outdoor education center.

"The process for designating lands as unsuitable for mining was intended by Congress to protect those lands where simply mitigating mining impacts on the environment would not be enough," said Robin Lambert, Executive Director of the School. "As trustees for a National Historic Landmark which provides a unique resident outdoor environmental education experience to over 3,000 school children each year, and which has been a cultural and educational resource to this community for over 85 years, the Board of Trustees of the School believes that the permanent protection of the School property, the spring-fed water supply, and the viewshed, from mining impacts, must be our first priority."

The petition, which is 32 pages in length, alleges that surface coal mining operations will affect historic and fragile lands in which the surface coal mining operations could result in significant damage to important historic, cultural, scientific, or aesthetic values or natural systems, and that the spring-recharge areas on Pine Mountain must be protected in order to avoid damaging the water supply for the school.

The Department for Surface Mining Reclamation and Enforcement will now determine whether the petition is "complete" and if so, it will accept public comments and schedule a local public hearing. "A decision on whether to designate an area unsuitable for mining is at the discretion of the Patton Administration," said Tom FitzGerald, Director of the National Citizens' Coal Law Project of the Kentucky Resources Council, Inc., which authored the petition on behalf of Pine Mountain Settlement School.

"Pine Mountain has been a truly important institution for thousands of students and community residents and others who have participated in its programs over many years. Students, former students, teachers and any others in the Commonwealth and the region who have benefited from the Pine Mountain Settlement School are encouraged to join with the Board of Trustees in trying to protect the cultural, historical and environmental integrity of Pine Mountain Settlement School from the impacts of mining. We urge them to write to Governor Patton and tell him what Pine Mountain Settlement School means to them and ask him to protect this unique and precious resource," said President of the Board of Trustees, Bill Ramsay.

For further information related to Pine Mountain Settlement School, its mission and programs, contact Robin Lambert, Executive Director, 36 Highway 510, Pine Mountain, Kentucky, (606) 558-3571. For technical information related to the petition, contact Tom FitzGerald.

A copy of the petition without attachments can be obtained electronically at www.kih.net/pinemountain.

A PETITION TO DESIGNATE THE PINE MOUNTAIN SETTLEMENTSCHOOL

AND THE VIEWSHED FROM THE SCHOOL PROPERTY

AS AN AREA UNSUITABLE FOR MINING





I don't look after wealth for them. I look after the



prosperity of our nation. I want all young-uns taught



to serve the livin God. Of course, they wont all do that,



but they can have good and evil laid before them and



they can choose which they will. I have heart and



cravin that our people may grow better. I have deeded



my land to the Pine Mountain Settlement School to be



used for school purposes as long as the Constitution



of the United States stands. Hopin it may make abright



and intelligent people after I'm dead and gone.





From a letter by William Creech, Sr., 1915, Pine



Mountain, Kentucky.







With those words, William Creech described his vision for the PineMountain Settlement School, a National HistoricLandmark located at Pine Mountain in Harlan County,Kentucky. This petition seeks to designate the PineMountain Settlement School and the viewshed from theschool campus as unsuitable for all types of surface coalmining operations.



Petitioner:





Pine Mountain Settlement School, Inc.



Robin Lambert, Executive Director



36 Highway 510



Pine Mountain, Kentucky



(606) 558-3571





Introduction and Scope of Petition



This petition to designate an area as unsuitable for surface coalmining operations (hereinafter "petition") seeks thedesignation of the lands comprising the Pine MountainSettlement School, Inc., and the viewshed from thesettlement school property, and an area on the south faceof Pine Mountain in order to protect the water source forthe school, as an area unsuitable for surface coal miningoperations, pursuant to KRS 350.465(2)(b), KRS 350.610and 405 KAR Chapter 24.



405 KAR 24:001 Section 1(5) demands that where an area ispetitioned as unsuitable for surface coal miningoperations, the area for which the designation is soughtmust be defined as a "geographic unit in which thecriteria alleged in the petition . . . occur throughout andform a significant feature." This petition for designatinglands unsuitable for mining seeks the designation ofunsuitability for mining for a defined geographic unitidentified on the map included as Appendix A which runsalong the southern slope of Pine Mountain at an elevationof 1800 feet, which is just below an elevationcorresponding to the location of the spring on the northside of Pine Mountain, and to the center of the ridgelineof the Cumberland Plateau to the north, and includesboundaries on the east and west necessary to provide avisual buffer to prevent adverse effects on the uses andhistorical and cultural values of the Pine MountainSettlement School property.



The approximate size of the area covered under this petition is: 5,226 acres.



. The boundary of the petitioned area is identified on the map attachedas Appendix A. If there is any conflict, the boundarydefined on the attached map is intended to govern thedelineation of the petitioned area.







Statement of Applicable Law



Pursuant to 405 Kentucky Administrative Regulation (KAR) Chapter24, and specifically, 405 KAR 24:030(8), the criteria fordesignating lands as unsuitable for mining are as follows:



(1) The cabinet shall designate an area as unsuitable for



all or certain types of surface coal mining operations, if upon



petition, it determines that reclamation is not technologically



and economically feasible under the performance standards



of Title 405, Chapters 7 through 24 at the time of designation.





(2) The cabinet may designate an area as unsuitable for all or



certain types of surface coal mining operations, if, upon petition,



it is determined that the surface coal mining operations will --





(a) Be incompatible with existing land use policies, plans or



programs adopted by state, area-wide, or local agencies with



management responsibilities for the areas which would be



affected by such surface coal mining operations;





(b) Affect fragile or historic lands in which the surface coal



mining and reclamation operations could result in significant



damage to important historic, cultural, scientific, and aesthetic



values and natural systems;





(c) Affect renewable resource lands in which the surface coal



mining operations could result in a substantial loss or reduction



of long-range productivity of water supplies;





(d) Affect renewable resource lands in which the surface coal



mining operations could result in substantial loss or reduction



of the long-range productivity of food and fiber products; or





(e) Affect natural hazard lands in which the surface coalmining



operations could substantially endanger life and property





405 KAR 24:030 Section 8.



The key phrases for discretionary designations of areas as unsuitablefor mining are "fragile lands," "historic lands," "naturalhazard lands," and "renewable resource lands." Forpurposes of designation petitions, these terms are definedat 405 KAR 24:001, as follows:



(19) Fragile lands means areas containing natural, ecologic,



scientific, or aesthetic resources that could be significantly



damaged by surface coal mining operations. Examples of



fragile lands include uncommon geologic formations,



palentological sites, national natural landmarks, valuable



habitats for fish or wildlife, areas where mining may result in



flooding, critical habitats for endangered or threatened species



of animals or plants, wetlands, environmental corridors contain-



ing a concentration of ecologic and aesthetic features, state-



designated nature preserves and wild rivers, and areas of



recreational value due to high environmental quality.





(23) Historic lands means areas containing historic, cultural, or



scientific resources. Examples of historic lands includeproperties



listed on or eligible for listing on a state or national register of



historic places, national historic landmarks, archaeological sites,



properties having religious or cultural significance to native



Americans or religious groups, and properties for which historic



designation is pending.



(28) Natural hazard lands means geographic areas in which



natural conditions exist that pose or, as a result of surface



coal mining operations, may pose a threat to the health, safety,



or welfare of people, property, or the environment, including



areas subject to landslides, cave-ins, subsidence, substantial



erosion, unstable geology, or frequent flooding.





(43) Renewable resource lands means geographic areas which



contribute significantly to the long-range productivity of water



supplies or of food or fiber products, such lands to include aqui-



fers and aquifer recharge areas.





405 KAR 24:001.



The designation of an area as unsuitable for mining may be madeby the regulatory authority based on whether surface coalmining operations "will . . . affect" fragile, historic,renewable resource or natural hazard lands resulting insubstantial or significant damage to the protected valuesor resources. 405 KAR 24:030 Section 8.



At the onset, it is important to proper agency consideration of anunsuitability petition that the intent behind thedesignation process be understood. The designationprocess is premised on "the notion that successfulmanagement of surface mining depends, in large part, onthe application of rational planning principles." House ofRepresentatives Report No. 95-218, 95th Congress, 1stSession 94 (1977). Congress expressed the intent of thedesignation process in this manner:



While coal surface mining may be an important and pro-



ductive use of land, it also involves certain hazards and



is but one of many alternative land uses. In some circum-



stances, therefore, coal surface mining should give away



(sic) to competing uses of higher benefit.





As the objective evidence presented in the pages that followreflects, this petition presents a situation in which the"higher benefit" to the public-at-large from the protectionof the cultural, historic, and biological integrity of thelands and watersheds comprising the Pine MountainSettlement School properties, should be accorded primacyover the competing land use of surface coal mining. Thecase of the Pine Mountain Settlement School, Inc.property and the school viewshed is clearly one in whichapplication of the unsuitability process is appropriate: onein which surface coal mining "is inconsistent with rationalplanning" for the long-term viability of the PineMountain Settlement School as a cultural and historicenclave which has served for almost a century as acultural, educational, scientific, and historical resourceunparalleled in the state or region. The water quality,blasting, noise, and visual impacts of mining wouldindelibly debase the historic, cultural and biologicalresources of the school, and destroy visual values that arean integral part of the educational, cultural and publicvalues of the school.



The petitioner in a designation petition is obligated to provide thefollowing information, paraphrased from 405 KAR24:020 Section 3:



l. The petitioner's name, address, telephone number and



notarized signature;





2. Identification of the petitioned area, including its location



and size, and a 7 1/2 minute U.S. Geological Survey topographic



map outlining the perimeter of the petitioned area;





3. An identification of petitioner's standing interest;





4. A description of how mining in the area has or may affect



people, land, air, water, or other resources, including the



petitioner's interests; and





5. Allegations of fact and supporting evidence, covering all lands



in the petition area, which tend to establish that the area is un-



suitable for all or certain types of surface coal mining operations,



assuming that contemporary mining practices required under



the Kentucky regulatory program would be followed



if the area were to be mined.



With respect to the level of "supporting evidence" required in anunsuitability petition, the Cabinets' regulations do notrequire that the supporting evidence establish by apreponderance of the evidence, or beyond a reasonabledoubt, that the allegations are correct; merely that theevidence "tend to establish" the validity of theallegations. The petitioner is requested to provideevidence which speaks to each of the criteria for whichdesignation is sought, and to cast the allegations in amanner that each pertains to the "area" for which theallegation is made.



Once that information has been provided and the threshold foracceptance of the petition has been met, the agency isrequired to develop the record in order to determinewhether the evidence, gathered by the agency andprovided during the public comment period, is sufficientto warrant designation of the petitioned areas asunsuitable for mining.





This petition contains information concerning the petitioned area that isclearly sufficient to meet the threshold for acceptance,processing and approval of such a petition.



Timeliness of Petition And Timeframe For Review



Petitioner is aware of one permit that has been issued authorizingsurface coal mining operations within the petitioned area. Petitioner is not aware of any permit application that ispending for the petitioned area. With respect to anyareas currently under permit within the petitioned area,Petitioner asks that those areas be included within thepetition with respect to future mining under new oramended permits.



Concerning the timeframe for processing and determination on thedesignation petition, the Petitioner believes that a ten (10)month period for review of the petition prior to a publichearing thereon, is appropriate under the prevailing lawand applicable regulations.



KRS 350.610 defines the process and standards for review of anddeterminations on petitions to designate lands asunsuitable for mining. In relevant part, that statuteprovides that where a petition to designate has beensubmitted:





[t]he cabinet shall make a determination or finding whether



the petition is complete, incomplete, or frivolous. Within ten



(10) months after the receipt of the petition, the cabinet



shall hold a public hearing in the locality of the affectedarea,



after appropriate notice and publication of the date, time,



and location of such hearing, pursuant to regulations



promulgated by the cabinet to implement this section,



provided that when a permit application is pending before the



cabinet and such application involves an area in a



designation petition, the cabinet shall hold the hearing on



the petition within ninety (90) days.





Section 7 of 405 KAR 24:030 incorporates the hearing timeframesestablished by KRS 350.610, reflecting that where a"permit application is pending before the cabinet andsuch application involves an area in a petition, the cabinetshall hold the hearing on the petition within ninety (90)days of its receipt."



The determination of whether the hearing is held within ten (10)months after receipt of the designation petition, or ninety(90) days after receipt, hinges on whether a "permitapplication is pending before the cabinet" and whetherthat application "involves an area in a designationpetition[.]"



This petition to designate lands as unsuitable for mining includes,within the petitioned area, one proposed mining operationfor which a preliminary application has been filed but forwhich, according to the best information available to thePetitioner, a permit application has not been filed as ofthe time of the Cabinet's receipt of this designationpetition.



Under this circumstance, the ten (10) month timeframe rather thanthe ninety (90) day timeframe governs, since a "permitapplication" as that term is used in KRS Chapter 350 and405 KAR Chapters 7-24, has not yet been filed and istherefore not pending as of the date of the cabinet'sreceipt of this petition.



The General Assembly has defined what constitutes a permitapplication by identifying those components of a permitapplication in KRS 350.060(3), which requires amongother things, legal and ownership information,right-to-mine information, hydrologic information,geologic information, method of operation andreclamation information. There is no statutory provisionspecifically addressing a "preliminary application" in thestatute, but it is clear that such "preliminary" applicationsdo not contain most of the essential components of apermit application.



Specifically, the preliminary application that has been filedregarding the proposed surface coal mining operationdoes not constitute a "permit application" within themeaning of KRS 350.060 and 350.610, since many of theessential components of a permit application are notfound in that preliminary application. It is clear that the"preliminary application" is not a permit applicationunder the cabinet's regulations, but is instead amechanism created by the cabinet as a prelude to apermit application.



405 KAR 8:010 Section 4 describes the preliminary application,noting that the preliminary application is required tocontain a map and to identify the proposed permit areaand areas of land to be affected. On receipt of suchpreliminary application, the cabinet conducts an on-siteinvestigation of the area "after which the person maysubmit a permit application." The Cabinet's regulationsthus recognize a distinction between a permit application,whose contents are outlined in 405 KAR 8:010 Section 5,and the preliminary application described in Section 4.



In sum, the legislature provides for an expedited hearing processonly where a permit application is pending at the time ofthe filing of a petition to designate lands unsuitable formining. That expedited hearing timeframe attaches onlywhere a permit application is pending, and the legislaturehas defined in KRS 350.060 what constitutes a "permitapplication." The Cabinet has created by regulation astep preliminary to and distinct from filing of a permitapplication, which is not sufficient, under KRS 350.060and KRS 350.610, to trigger the more expedited hearingtimeframe, since the document filed under 405 KAR8:010 Section 4 is not a "permit application" as that termis used in KRS 350.060 and 350.610.



Summary Of Petition Allegations

This petition seeks the designation of the petitioned area asunsuitable for all types of surface coal mining operations,including without limitation strip, area, auger,mountaintop removal and other forms of strip mining, aswell as the surface operations and surface effects ofunderground coal mining.



Allegation #1 presents the evidence to support the designation ofthe petitioned area as a "historic land," for which surfacecoal mining operations could affect historic propertywhich is a National Historic Landmark site on theNational Register of Historic Places, and which containsimportant scientific, historic and cultural resources thatcould be significantly damaged by the effects of surfacecoal mining operations.



Allegation #2 seeks designation of the area as unsuitable for miningas a "fragile land," in which the surface coal miningoperations could result in significant damage to importantnatural, ecologic, scientific and aesthetic resources.



Allegation #3 seeks designation of the area as unsuitable for surfacecoal mining operations because such operations willaffect renewable resource lands in which the surface coalmining operations could result In a substantial loss orreduction In the long-range availability of water supplies.







Petitioner's Interests

The Pine Mountain Settlement School, Inc., a 501(c)(3) non-profitprivate educational institution, has an interest in theprotection of the scientific, cultural, historic andecological resources that comprise the settlement schooland the viewshed from the school campus.



The interests of the school which may be adversely affected includeproperty interests in the protection of the integrity of theproperty owned by the school and the use and enjoymentof the lands as an environmental education center. Theconducting of surface coal mining operations nearby hasalready damaged the biological integrity of one streamthat has been utilized as part of the educationalcurriculum of the school. The noise, visual impacts, andother adverse effects of mining on the school propertyinhibit the utility of the property for the school'seducational mission, and the historical and cultural valuesof the school property.



Additionally, the school has a legitimate interest, as owner andguardian of the school properties, in preventing adversevisual effects and damage to the historic structures andlands which together comprise the designated PineMountain Settlement School National Landmark.



Further, the use of the lands comprising the school as an outdoorclassroom will be adversely affected by vibrational,flyrock and airblast impacts from blasting associated withmining operations, which presents a public safety riskboth within school structures and a cave utilized as partof the educational curriculum, and also to student hikersalong the school properties.



The interests sought to be advanced by the Petitioner are clearlywithin the zone of interests sought to be protected byCongress in enacting 30 U.S.C. 1271; see: 30 U.S.C.1202(a); and by the Kentucky General Assembly inenacting KRS 350.610, and there is a direct causal linkbetween the threatened harm to Petitioner's interests, andthe remedy sought through this petition.



The interests of Petitioner plainly fall within the ambit ofcognizable legal interests under the applicable tests. See:H.R. Rept. No. 95-218, 95th Cong., 1st Sess. 90 (1977);Sierra Club v. Morton, 405 U.S. 727 (l972); U.S. v.S.C.R.A.P., 412 U.S. 669 (l973).



Petitioner satisfies the requisite standing tests under 405 KAR24:020.



A description of how mining of the area has affected or

may adversely affect people, land, air, water, or other

resources, including the petitioner's interests.

Surface coal mining operations conducted within the petitioned areawill adversely affect the Pine Mountain SettlementSchool, Inc. by adversely impacting and significantlydamaging the cultural, historic, ecologic and scientificintegrity of the school properties, and by degrading theaesthetic values of the school property.



Many activities associated with surface coal mining operations,including but not limited to road construction and use,and the impacts of increased flow from runoff divertedaround the disturbed area, are not controlled as pointsource activities for purposes of meeting effluentlimitations. These activities contribute to the totalloading of suspended and settleable solids and othercontaminants into receiving streams. In this case, miningbeing conducted by an already-permitted miningoperation has already interfered with the water quality ofone stream which flows through the school property andwhich had been utilized as an integral component of theenvironmental education curriculum for thousands ofschool children who annually attend the residentenvironmental education programs.



Active surface coal mines have the potential to contribute as muchas 48,000 tons of sediment annually per square mile ofactive mine, as compared with 24 tons of annualsediment yield from forested lands. Compliance witheffluent limitations controls to some extent, but does noteliminate these additional contributions of sedimentationto receiving waters. (Skelly and Loy, 1979). The U.S.Environmental Protection Agency has estimated that soilloss from a watershed can be increased by surface miningby as much as 2,000 times during active mining to10-100 times after mining, depending on the quality ofreclamation. Assuming, as must be assumed in adesignation petition, that the mining operation will be incomplete compliance with provisions intended tominimize off-site hydrologic impacts, there will yet be anincrease in sediment yields compared to baseline, sincethe mining activities control sediment transport onlyabove a certain particle size and below a certain stormevent size. Surface mining, even within the confines ofexisting regulations, does not significantly reducesediment yield and pollutant transport, especially forstorm runoff events with a return frequency of greaterthan 10% in any given year.



An increase in sedimentation, as well as additional contributions ofmetals and an alteration of pH from both point andnon-point activities has the potential to impact the qualityof the streams flowing through the school property.



Increased sedimentation will adversely affecting the biologicalcommunity existing within the streams, interfering withthe environmental education uses of the streams.





For the purposes of this petition, it is assumed that any surface coalmining operation that would be conducted within thewatershed would do so in full compliance with theSecretary's regulations.(1) In a situation such as this, because of the sensitivity of the resources, theenvironmental consequences associated with mining evenassuming full compliance with the Act are yet too greatto allow within the petitioned area. This isquintessentially the type of situation for which Congresscrafted the unsuitability process. Congress understoodthat, notwithstanding compliance with the environmentalprotection standards of Sections 515 and 516 of the Act,there were certain areas where mining was fundamentallyincompatible with other values, (i.e. the Section 522areas). Congress authorized states and the Secretary,when acting as regulatory authority, to declare areasoff-limits to mining, based on competition betweenmining and other values that would be adverselyimpacted by environmental consequences associated witheven lawful mining.



It is to be remembered that the permitting standards of the Act doesnot demand "no impact" concerning land, aesthetic, andhydrologic effects off-site, rather, only minimization ofthose impacts. Despite application of the best availabletechnology, and the standards of the Act governing sitepreparation, blasting, backfilling, grading andrevegetation, there are off-site consequences that cannotbe prevented entirely. It is the sensitivity of the resourcethat is Pine Mountain Settlement School that makes themere application of the permitting and performancestandards insufficient to protect these values.



The analysis conducted by the Commonwealth of Kentucky ingranting Lands Unsuitable Petition 87-2 for the CannonCreek Lake watershed, provides important evidence thatdespite compliance with all environmental performancestandards of Sections 515 and 516 of the Act, and theSecretary's regulations (or in that case, the statecounterpart thereto), impacts "could result from thesurface disturbances associated with coal mining activitiesand discharges of water [which] have been demonstratedto be significant in terms of both the water supplysystems and the natural systems[.]"



Among the conclusions of that analysis, equally applicable to thiscase, were these points:



Typical water quality impacts which are commonly associated



with surface coal mining and reclamation operations include



but are not limited to sedimentation, acid mine drainage and



release of heavy metals.





All of these impacts can be associated with both surface and



underground mining methods. . . .





The differences in surface and underground mining methods



must be acknowledged before drawing any conclusions.



Both mining methods in terms of actual surface disturbance,



start out essentially the same. Both require roads to be built



for mine access, construction of ponds prior to surface dis-



turbance, overburden removal to develop a working bench or



to remove the coal and the creation of fills to either temporarily



or permanently store excess spoil which is generated.





The Commonwealth of Kentucky modeled the impact of increasedsedimentation associated with mining disturbances,assuming that all disturbed areas including roads werecontrolled by sediment ponds, that all ponds would meetall effluent limitations all the time, and that no sedimentwould be generated from a forested area or reclaimedareas after 12 months.



The result of the analysis indicated that the average sediment yieldfrom a 500 acre mine would be 38,200 tons per year. Sediment ponds would trap 79% of the sediment, withthe remaining 8,020 tons entering the receiving waterway. Total suspended solids levels would rise to between 90and 120 milligrams per liter (mg/l) above naturalbackground levels. "These concentration predictions aredirectly proportional to the sediment load and amount ofdisturbance."



Additionally, as argued below, even assuming complete compliancewith the environmental performance standards of Sections515 and 516 of the Act, the visual impacts of thealteration of the land surface associated with coal miningoperations are fundamentally incompatible with themission of the Pine Mountain Settlement School, whichdepends on the natural, unspoiled splendor of theproperty to help convey a sense of the historic andcultural importance of the settlement school in Americanhistory, and as an integral component of the outdoorenvironmental education experience.



Other adverse effects of surface coal mining operations includeimpacts on the aesthetic and recreational interests due tothe deforestation and destruction of natural vegetationthat attends surface coal mining operations; noiseassociated with the mining and blasting operations;vibrational, airblast and flyrock impacts associated withmining, and other adverse effects on land, air and waterresources.



Allegation #1: Surface coal mining operations will affect

historic lands in which the surface coal mining operations

could result in significant damage to important historic,

cultural, scientific, or aesthetic values or natural systems

The Petitioned Area constitutes "historic lands" within the meaningof the applicable regulations and statute, because theschool campus represents a nationally-recognized historic,cultural, scientific and aesthetic resource.



It is not an overstatement that the Pine Mountain Settlement Schoolis a cultural, historic and ecologic resource unique toKentucky and the southeastern United States as a whole. The school property was nominated to the NationalRegister of Historic Places and was later designated bythe Secretary of the Interior as a National HistoricLandmark, (Appendix B) and is recognized by the StateHistoric Preservation Officer (SHPO) of the KentuckyHeritage Council, which is the State Historic PreservationOffice, as a site that is "very significant historically andarchitecturally" (Appendix C). The significance of theproperty in historic terms is reflected in the designationof the school to the highest level of designation that isoffered under federal law for historic sites - designationas a National Historic Landmark.



The SHPO noted (in a September 11, 2000 letter) that two miningoperations in the vicinity of the school posed a potentialadverse impact on the school, and stated that "the historicstructures at the Pine Mountain Settlement School arefragile due to their uniqueness and significance. Allefforts to avoid or minimize impacts and encourage thepreservation of this site are imperative." (Emphasisadded).



The historic importance of the Pine Mountain Settlement School hasbeen recognized by the designation as a NationalLandmark, and that designation is conclusive evidencethat this property is an "historic land," but the uniquenature of the school and its history must be understood inorder to fully comprehend how incompatible miningimpacts are on the school, its mission and properties, andhow vulnerable the school property is to damage due tomining.



Pine Mountain Settlement School was founded in 1913 by KatherinePettit and Ethel De Long, and was one of the firstapplications of the urban Settlement



approach in a rural area and in the context of a school. Pine MountainSettlement School, during its three distinct phases, hasalways pioneered new educational endeavors - from theboarding school organized around settlement schoolprinciples in response to the vision of the founders andWilliam Creech, the landowner whose donation of landand vision led to the founding of the school,(2) through thesecond chapter of the school's history, in which theschool served as the public elementary school combiningand elevating the quality of public education for HarlanCounty and pioneered preschool education, providing themodel that would become the Head Start program in thearea, until the adoption in 1972 of an outdoorenvironmental education mission that is placed in seriousperil by the direct and indirect effects of surface coalmining operations. A more complete history of PineMountain Settlement School is found at Appendix E.



The National Register of Historic Places Inventory NominationForm and the Nomination Form for designation of thePine Mountain Settlement School as a National HistoricLandmark, are attached at Appendix B. These documentsdescribe in great detail the individual structurescomprising the National Landmark school property, anddescribe the historical significance of the school. Whilethese documents are incorporated herein by reference asoverwhelming evidence of the historic nature of theproperty and the significance of the property, theseexcerpts are particularly highlighted:





Although chronologically second in its origins to Hindman



Settlement School in Knott County, the settlement school at Pine



Mountain, launched in 1913, was the largest such institution to be



established in a rural setting; and many of its early buildings



remain intact. By virtue of its longevity, its size, and the scope and



flexibility of its approach, it is unique in the Bluegrass State and in



the South. Furthermore, it represents a project that was basically



originated, developed, and managed by women in its founding



stages and during its early years.





* * *



Social conditions of the late nineteenth and early twentieth centuries



coalesced to produce Pine Mountain Settlement School, a ruraladaptation



of the urban settlement that was unique in the national, southern,and



Appalachian experience by virtue of the flexibility of its program,



its longevity, and the scope of its work.(3)





* * *





Originally the school included a boarding grade school which laterin



the 1920s incorporated a high school. In the 1930s the grade school



was phased out because the county was establishing more one-room



schools. The high school curriculum was expanded to include a



full-scale work program for rural growth in building, farming,mechanics,



woodworking, printing, and service in the dining room andcommunity



hospital.





Since 1949 the school has seen many changes. "From 1949 untilthe



spring of 1972 the school cooperated with Harlan county in housingand



enriching a public elementary school brought about by consolidationof



seven local one-room schools." ("Pine Mountain SettlementSchool,")



Appalachia, Vol. 5, 1972 p. 42). It now serves as an environmental



education center.(4)



Reflecting on the historical significance of the Pine MountainSettlement School on the Commonwealth, the nominationform summarized the nomination with these words:



The benefit of the school at Pine Mountain to the community has



been immense. Eastern Kentucky contained few schools in the late



1800s. Even as late as 1880 in Harlan County, there were nolibraries,



no private schools, no academies, and no high school. It was notuntil



1910 at Mt. Pleasant (renamed Harlan in 1912) that the first high



school was organized in the county (Harlan County Daily Enterprise,



September 23, 1962, p.11). With the coming of the railroad toHarlan



and the rapid development of the coal industry in the second decadeof



the twentieth century, more schools were constructed. However, for



many years places such as Pine Mountain remained isolated and



difficult to reach even by wagon.





The Pine Mountain Settlement School can in many respects becalled



a school of, for, and by the mountain community. It was initiatedby a



local resident, built on land donated by him, and constructed by the



students who were to live and study there. Wrote Ethel DeLong,



"Gradually one building after another was erected, all beingconstructed



from material at hand, and by local and student labor, until in 1928



the last building was completed." The oldest building (1913),named



Old Log, still stands. Originally a dormitory, the structure is nowused



as a residence for staff. The library (1919-1920) was a boysdormitory



and guest house until 1949. Amazingly there remain sixteen of the



buildings in the complex over 50 years of age.





With its unspoiled forrested (sic) location, the school nowappropriately



serves as an environment education center.





The adverse effects of mining on the current mission of thePine Mountain Settlement School will be furtherdiscussed below. The adverse consequences of miningwithin the petitioned area include these possible effects:



1. Adverse effects on the structures from vibrational impactsassociated with blasting. The standards for controllingoff-site structural impacts of blasting were developed formodern structures, and are neither based on norsufficiently protective of historic structures built oftraditional materials, particularly mortar ingredients. Theimpact of vibrations from mine blasting and mine-relatedequipment, including transportation and excavationequipment, may damage the structural integrity of thehistoric buildings. Among the buildings is the Chapel,widely considered the best example of fine Italian stonemasonry in eastern Kentucky, and was crafted by LuigiZande, a stone mason.



2. Additionally, it is the entire campus of the Pine MountainSettlement School, including the structures and theirrelationship to the natural environment, rather than theindividual building or buildings, that has been declared aNational Historic Landmark. The natural setting of theschool would be adversely impacted by the visualintrusion of mining operations along the upper reachesand ridgelines of the watersheds wherein the school islocated.



3. Further, an integral component of the education and history ofthe school is a prehistoric rock shelter located on theschool property, across from the gate of the PineMountain Settlement School and at the base of themountain which is under consideration for mountaintopremoval. The archaeological site, #15H14 is a rockshelter in which significant Native American discoverieshave been made, and the shelter is used extensively aspart of the outdoor education curriculum. This rockshelter, identified in 1923 by a student at the PineMountain Settlement School, was recognized in thetreatise Ancient Life in Kentucky, as being of"considerable archaeological interest." See Appendix F.



Blasting and other vibrational impacts associated with mining on theridge above the rock shelter could jeopardize the safety ofstudents and staff using the rock shelter, and coulddamage a significant archaeological site.



Another significant archaeological site has been identified on themain field of the school campus. #15HL322.



Designation of an area as unsuitable is also appropriate here becausethe Settlement School property is an "historic land"whose cultural values could be significantly damaged bymining. The cultural importance of maintaining theintegrity of the Pine Mountain Settlement School propertyfrom the intrusive noise, vibrational and visual impact ofsurface coal mining operations itself justifies designationof the petitioned area. The unique setting, orientation ofthe structures, and unspoiled vistas of the school haveinspired visual artists and authors for nearly a century.



My Land - My People, written by Charles D. Cole, and published in1967, was inspired by the "beauties of the mountains"and includes a poem inspired by William Creech, whothe author knew and who was, in the author's words, "agreat benefactor to the mountain people[,] a good man,[whose] goodness continues to live after him." Id.



"The Cabin of William Creech" a poem dedicated to WilliamCreech and describing the cabin located on the SettlementSchool property, reflects on the monument and shrine-likequality of that cabin. It is included in Appendix G.



Appendix H includes illustrations for this volume of prose andpoetry which were drawn by Mary (Mrs. Burton) Rogers,who was environmental educator for many years at theSettlement School. There is little question but that theintrusion of noise, water pollution, vibrational impacts,and loss of visual quality along the ridgeline vistas fromthe school, would adversely affect the values reflected inprose, poetry and visual arts inspired by the historicschool campus.



The cultural importance of the structures and their relationship to anunspoiled natural environment is evident in the woodcutsand writings of the 1939 volume At Home In The Hillsby John A Spelman III. In the second chapter of hisbook, Spelman reflects in word and linoleum woodcut, onthe significance of Pine Mountain and the school"founded for its people . . .[i]n the midst of these remotehills of Harlan County." The second chapter is reprintedat Appendix I.



The central role of the Pine Mountain Settlement School incollecting, promoting and preserving the traditions of themountains is well-documented. The publication of SongBallads and Other Songs of the Pine Mountain SettlementSchool, in April, 1923, collected and published manysongs sung by



residents of the area and not printed in any previous collection. SeeAppendix J.



The website for the European Association For American SquareDancing, (www.eaadsc.de/history/sheappal.htm) relates anhistorical event of significance regarding the collectionand preservation of traditional folk dances in which theschool was pivotal. In 1917, the great English folkloristCecil J. Sharp was traversing the southern Appalachianmountains seeking folk songs and ballads. At PineMountain Settlement School, which had among its goalsthe celebration and maintenance of mountain traditionalmusic and crafts, Sharp encountered and catalogued aEnglish country dance that had been lost to tradition inhis land.



Loraine Wyman and Howard Brockway used the settlement schoolas their base while they traversed 300 miles through theCumberland Mountains on a six-week trip seekingtraditional folk music. Their "rich harvest" of music waspublished in Lonesome Tunes: Folk-Songs from theKentucky Mountains in 1917 and Twenty KentuckyMountain Songs, in 1920.



Pine Mountain Settlement School has been associated withmany of the region's most prominent authors. John Fox,Jr. wrote parts of "The Little Shepherd of KingdomCome," of the nation's first million-selling novels, whilein residence at the school. Leonard Roberts, prominentKentucky folklorist, used the settlement school as a basefor some of his folklore collecting, which results in suchimportant folklore collections as Sang Branch Settlers, UpCutshin and Down Greasy, and South FromHell-Fer-Sartin. Richard Chase, widely known for hisbooks and public performances of "Jack Tales," wasinspired to collect and perform traditional songs and talesof the Appalachian region after a visit at age 20, in 1924,to the Pine Mountain Settlement School. "He wascaptivated by students singing traditional Americanballads and from that time on devoted his life tocollecting the traditional songs and stories of themountain South."(5) Rebecca Caudill related herexperiences at Pine Mountain Settlement School in thepopular story Did You Carry The Flag Today, Charlie? Doris Ullman, a noted photographer, used the PineMountain Settlement School as her base while shootingthe portfolio of Appalachian photographs.





The cultural significance of the school goes beyond the arts. TheSettlement School was also instrumental in affecting thehealth of eastern Kentuckians. As recognized by SandraLee Barney in her article "Maternalism and thePromotion of Scientific Medicine During the IndustrialTransformation of Appalachia, 1880-1930", PineMountain Settlement School was instrumental in bringinga more scientific practice of medicine into the easternKentucky mountains. The School provided localresidents their first access to professionally trainedmedical personnel, and led to the diagnosis of manydiseases and medical conditions undiagnosed before theestablishment of the school.



The cultural significance of the school is not merely a matter ofhistory - Pine Mountain Settlement School maintains adynamic relationship with a changing world as it hasthroughout its history. In November 2000, the schoolreceived the Al Smith Award for contributions to schoolsin our community, from Forward In The Fifth. The EastKentucky Leadership Network recognized the school inApril 2000 for Outstanding Leadership In Education andCommunity Service. The Kentucky EnvironmentalEducation Council recognized the school in April 1995for Exemplary Environmental Education. The U.S.Environmental Protection Agency gave the school anaward for Outstanding Achievement in Development andImplementation of its Wellhead (Spring) ProtectionProgram.



4,000 people annually participate in the programs at the PineMountain Settlement School. The EnvironmentalEducation Program hosts approximately 3,000- 3,500participants each year, mostly children of school age. This is the main revenue source for the school, and usesthe entire campus, including trails on the mountainproposed for mining, and the rock shelter on that samemountain, as "classrooms."



The infringement of surface coal mining operations on theenvironmental education programs of the School wouldbe significant and adverse. The use of the northernforested component of the campus for hikes would haveto be curtailed, and the ability to teach wildlifeidentification through sound would be interfered with bythe noise of the coal mining activities. The use of theschool property for hiking generally would becompromised in a number of respects - noise and lightpollution, vibrational and airblast impacts from blasting,and degradation of visual quality, will detract from thenatural environment that is so integral to the outdoorcurriculum. Additionally, safety considerations regardingpossible flyrock impacts and concerns regarding blastingimpacts on structures and the rock shelter will interferewith hiking, with the plant identification classes and otheroutdoor classroom curricula, as well as the use andenjoyment of those properties.



Additionally, the use of the headwater streams for water ecologyclasses is an integral component of the environmentaleducation curriculum, and one of those streams, Isaac'sCreek, which joins Shell Branch to form Greasy Creek,has already been somewhat compromised by violation ofwater quality limitations from mining operations.Appendix K. The high quality of the streams on the PineMountain School property, reflected in the water qualitydata contained in Appendix L, would be compromised bythe addition of any runoff from surface coal miningoperations and from disturbances in the watersheds whichform these streams. Loss of water quality and habitatdue to sedimentation and changes in water chemistry, willalso adversely affect the biological integrity of thestreams and their utility for educational and scientificpurposes.



Surface coal mining within the petitioned area will adversely affectother uses of the campus for this environmentaleducation. As earlier mentioned, the Native Americancomponent of the curriculum utilizes the NativeAmerican Heritage rock shelter site as an integralcomponent of the curriculum; a use that would beadversely affected by potential and actual blastingimpacts on the integrity of the rock shelter roof.



The unique value of the school property for environmentaleducation rests in the relatively unspoiled nature of theproperty. Mining will debase the "Pine MountainSettlement School" experience. If the property is subjectto the noise, vibrations, and visual impacts of surfacemining operations, it will potentially jeopardizecontinuation of school itself, since visiting groups whoprovide a significant portion of the financial support forthe school, will be disinclined to return to an area whoseeducational value has been degraded due to the mining,and where the safety of school children could be placeddirectly at risk due to mining impacts.



The aesthetic loss of value to the school property from the visual,vibrational and noise impacts of surface coal miningoperations is a significant adverse effect as well. Anintegral component of the aesthetic value of the PineMountain Settlement School programs is the ability tofind solitude in a natural and relatively unspoiledenvironment.



The natural and unspoiled setting of the Pine Mountain SettlementSchool is the venue for a number of other special eventswhich draw local residents and visitors: Fair Day - begunin 1910's and continuing today; Fall Color Weekend;Spring Wildflower Weekend; and Black MountainWeekend. The visual impact of mining on land andwater resources, and noise and vibrational impacts fromblasting, are incompatible with these goals and damagethe aesthetic values sought to be elevated by these events. Additionally, blasting in the proximity of the PineMountain Settlement School property presents safetyconcerns for visitors traversing the trails and the forestareas of the school; potential impacts that would bedifficult to protect and insure against.



We are soon approaching the time of the annual Nativity Play. Compiled by Ethel DeLong Zande in 1917 and performedannually for each of the intervening 83 years, it is acelebration where friends and neighbors of the schoolgather in the oldest of Pine Mountain's Christmastraditions, taking the roles of prophets, shepherds, angels,Joseph and Mary, and joining scores of Pine Mountainresidents and students in the darkened Chapel on theschool property to reenact the story of promise.(6) Theadverse impact on this important cultural tradition of thedeforestation of the natural vista on the ridgeline areasacross from the Chapel, highlights the incompatibility ofmining on this historic property, as it would detract fromthe natural setting and the natural majesty of theviewshed of the Chapel and school property; intruding onwhat Spelman called "[a] sanctuary built of rock from themountain side, and thus a growth of the hills, simple inline and form." See Appendix I.



The degradation of aesthetic values of the campus from mining willalso adversely affect the ability of the school to adjust tothe needs of generations yet to come. To the extent thatthe school experience is compromised by the intrusion ofa heavy industrial activity, it will produce a hugenegative program impact due to loss of income, and willpreclude or narrow future options for programming andbuilding uses.



For each and all of these many reasons, the petitioned area shouldbe deemed as unsuitable for mining in order to protect"historic lands" in which surface coal mining operationscould result in significant damage to important historic,cultural and aesthetic values and natural systems.





Allegation #2: Surface coal mining operations will affect

"fragile lands" in which the surface coal mining operations could

result in significant damage to important historic, cultural, scientific

or aesthetic values or natural systems

"Fragile lands" as used in this context includes areas containingnatural, ecologic, scientific or esthetic resources thatcould be significantly damaged by surface coal miningoperations.



As earlier discussed, blasting associated with surface coal miningoperations could adversely affect the rock shelter on thenorthern school property, which is a geologic formationof significant archaeological and educational importance.



Additionally, the headwater streams which traverse the schoolproperty, originating on Pine Mountain to the south or theCumberland Plateau to the north, are valuable habitatsfor fish and wildlife due to the high water quality andrelative lack of disturbance of the streams by humanactivity. Mining has already intermittently degraded thequality of Isaac's Creek due to an apparent violation ofmining regulations intended to protect water quality, andfurther disturbances in the watershed will compromisethese high quality streams and habitat through changes inwater chemistry and addition of suspended and settleablesolids.



Additionally, the Pine Mountain Settlement School property is afragile land



because it is an "environmental corridor[] containing a concentration ofecologic and aesthetic features" 405 KAR 24:001(19) thatare deserving of protection. A 1998 research paper, theVascular Flora of Pine Mountain Settlement School,Harlan County, Kentucky, provides a glimpse of the "richvascular flora" of the Pine Mountain Settlement School. Appendix N. Among the threatened or endangeredspecies identified in the literature as occurring on theproperty are these:



Juglans cincerea. Butternut. (S) G3, G4/S3



Cypripedium calceolus L. Var. Parviflorum (Salisb.) Fern. (T) G-5, S2



Chrysosplenium americanum Schwein. Golden Saxifrage. (E) G5, S1



Leucothoe recurva. (E)



Coralorrhiza maculata.



Triphora trianthophora.



Pseudoanopthalmus rogersae (T). G1 G2/S1



Pseudoanopthalmus scholasticus. (T) G1 G2/S1



Occipiter striatus. (S) G5, S3B, S4N



Junco hymenalis. (S) G5, S2, S3B, S5N



Clethrionomys grapperi maurus (S) G5, T3, T4/S3



Additionally, sorex linarius, liparis loeselii and corydalis are knownto be within 1/2 mile of the school property.



Mining activities occurring within the petitioned watersheds wouldcause habitat alterations and changes in water quality andchemistry, storm peak response and baseflow conditions,that could adversely affect these species.



Finally, the Pine Mountain Settlement School property qualifies as a"fragile land" "of recreational value due to highenvironmental quality." The lands of the school comprisean area "containing natural . . . [and] aesthetic resourcesthat could be significantly damaged by surface coalmining operations." The historic context and scenicsplendor of the vistas from the school property should notbe marred by the loss of vegetative cover and forestlandsassociated with surface coal mining operations. Maintenance of the scenic vistas from the school propertyis of much higher public benefit than the value of thewatershed as host to surface coal mining operations.



For these reasons, the petitioned area should be determined a fragileland in which significant damage could occur due tosurface coal mining operations, and which is off-limits tosuch activities for these reasons.





Allegation #3 Surface Coal Mining Operations Will Affect Renewable ResourceLands in Which the Surface Coal Mining Operations Could Result In ASubstantial Loss Or Reduction In The Long-Range Availability Of WaterSupplies

Any surface coal mining operations occurring along the PineMountain ridge above an elevation of 1,800 feet withinthe petitioned area could damage the long-rangeavailability of water supply to the school.



The source of water for the school is a spring which originates fromthe Newman Limestone formation on Pine Mountain inHarlan County, and which is identified as the "SettlementSchool Spring." The Settlement School Spring is thesubject of an approved Wellhead Protection Programdesignation, and has been an adequate source of highquality water for the school operations and forconsumption since 1913. Mining along Pine Mountainwithin the designated area could adversely affect thequality and supply of water to the school throughdiminution in the quality and quantity of water frommining and blasting. Additional information concerningthe wellhead protection plan and water supply of theschool is found at Appendix O.



Conclusion

For the reasons stated above, Petitioner respectfully urges that thispetition be accepted as complete, and that the petitionedarea be designated as unsuitable for surface coal miningoperations.



A 1977 paper by Jim Stokely entitled To Make A Life: SettlementInstitutions Of Appalachia, (attached as Appendix P)reflected on the history and many cultural programsongoing at the school, and then spoke of the currentmission of the school as an environmental educationcenter:





While it continues these programs and more, Pine Mountain



presently concerns itself in great measure with environmental



education. Shifting to this approach in the spring of 1972, Pine



Mountain has attempted to develop a broad scope of offeringwhich



give to young and old alike the opportunity to understand and



appreciate the natural and human heritage of Appalachia. In



return for a small fee that covers perhaps one-third of the actual



cost, groups of as many as 70 persons from across the country



can come to Pine Mountain, stay for a period of days or weeks,



and engage in field trips, seminars, daily lesson activities, indoor



and outdoor recreation.





* * *



Now, when the imagination begins to come alive, is the hightime



for Pine Mountain Settlement School.





It is a mission which will be inalterably damaged by the intrusionof surface coal mining operations into the viewshed andwatersheds of this precious historic, cultural, scientific,ecologic and educational treasure.(7)















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