Coal Law Pjct Annual Report Posted: January 28, 2001
FIFTH ANNUAL REPORT
NATIONAL CITIZEN'S COAL LAW PROJECT
June 1999 - June 2000
With the support of an anonymous donor, the National Citizens' Coal Law Project ("Project") was developed in 1995 to better focus and improve the level of service by the Kentucky Resources Council, Inc. to coalfield citizens groups across the nation and in Kentucky on mining-related environmental issues. The Project mission is to secure full and fair implementation of laws to protect the health, safety and quality of life of coalfield residents across the nation.
The Project fulfills its mission through:
(1) regulatory advocacy and monitoring
(2) regulatory litigation
(3) legislative advocacy
(4) case-specific assistance
(5) lawyer support and referral
(6) information and brief assistance
Rationale: Why A Citizens' Coal Law Project?
The federal mining law of 1977 was intended to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations; [and to] assure that the rights of surface landowners" were fully protected from such operations. In the development of a federal mining reclamation program that would rely on participating states to implement the federal standards, Congress knew the states history of ineffective regulation of mining within their borders, and envisioned the role of the public as pivotal in preventing a repetition of past patterns of non-enforcement of laws.
The intervening years since 1977 have seen some improvement in mining regulation, yet the promise of the law remains unfulfilled for many coalfield residents. Grassroots efforts are being rekindled, yet the national and state-level legal and technical support for those efforts has declined. Only one national environmental organization has any staff person dedicated to mining (Citizens' Coal Council of Denver and Washington, D.C.).
The National Citizens' Coal Law Project, a program of the Kentucky Resources Council, Inc., fills a vital support role by providing a consistent, accessible, affordable source of legal and technical assistance on mining-related issues to citizens across the country.
During the past year, the Project has continued to fulfill its mission in the following six ways:
1. Regulatory Advocacy and Monitoring
The Project scans the Federal Register each day for notices concerning any rulemaking activity under the 1977 mining law, and mails copies to state or tribal contacts for each affected coalfield state. Where requested, we also assist in reviewing the proposed rules and providing comments for the local contacts regarding their state or tribal program issues and the impacts of the proposed rulemakings. Additionally, where rules or policies have a national scope, the Project prepares fact sheets to explain the proposed rules and provides sample comments for use by local organizations in developing their comments.
These mailings to state and tribal contacts, coupled with follow-up advice and assistance, improve the ability of those groups to hold their states accountable in developing state rules, and to become involved in shaping the content of national rules.
The Project also develops and submits comments concerning the Kentucky regulatory program on a regular basis. Within the past year, the Project succeeded in securing a rejection by the federal Office of Surface Mining of a Kentucky law that would have allowed permittees to continue to mine after their permits had expired.
2. Regulatory Litigation
With the expansion of the Project staff to include Walton D. Morris as part-time staff attorney (see "Project Expansion", pages 9 - 10), the Project has expanded its capacity to represent the interests of coalfield citizens in the national rulemaking litigation. Walt is a former Office of Surface Mining (OSM) attorney who is intimately familiar with federal law and history, and is a coalfield citizens' lawyer from southwest Virginia of national reputation.
During this past year, the Project staff have been involved in four major national regulation cases. Walt Morris is lead counsel for the Project on each of these cases:
Kentucky Resources Council, Inc. v. Babbitt, (U.S. District Court, District of Columbia)
In this civil action, the Project challenges OSM's promulgation of a regulation that attempts to excuse any abandoned mine land (AML) coal removal project from the duty to comply with the performance standards and reclamation requirements of the surface mining act's Title V, the part of the statute that protects citizens and the environment from damage by coal mining.
The case was submitted for decision on December 7, 1999 and is pending before the district court. We anticipate a decision at any time. If successful, the Project will have assured that any coal removal project occurs only with the full protections afforded by a mining permit.
National Mining Association v. Babbitt, et al., (U.S. District Court, District of Columbia)
The Project, and other citizen groups have intervened in this litigation to support the validity of OSM rule's narrow interpretation of the phrase "valid existing rights," which would require coal operators who claim exemption from the prohibitions against mining in certain types of environmental or socially sensitive areas, such as national parks, churches, residences, or schools, to show that they held or had applied for all needed permits when the mining law was adopted in 1977. This is the only one of the three currently challenged rules that favors citizen rather than industry interests. The groups represented by the Project have intervened in part to show citizen support for the "valid existing rights" regulation and in part to ensure that the Court does in fact receive all of the arguments that support the interpretation that OSM has announced in the rule. Citizen intervention in cases brought by industry to challenge rules favorable to public interest is therefore necessary to protect against the possibility that the Government will file a weak brief.
This "valid existing rights" case will be briefed beginning in September and extending through November, 2000. We anticipate a decision in 2001. If successful, the variances from the law that allow mining in sensitive public lands and areas near homes and cemeteries, will be narrowed considerably.
Citizens Coal Council v. Babbitt, (U.S. District Court, District of Columbia)
This case challenges OSM's rule excluding the impacts of coal mine subsidence from the reach of SMCRA's prohibition of mining near national parks, wilderness areas, schools, churches, homes, or other sensitive areas. OSM has interpreted the Congressional prohibitions against mining certain areas to apply to strip, but not underground, mines. OSM has acknowledged that the new rule will cause millions of dollars in property losses to coalfield residents and will indirectly force numerous families to abandon their current homes.
A defeat of the agency's rule will vindicate the rights of coalfield citizens against the ravages of increasingly popular longwall mining operations, which can trigger localized "earthquakes" that shatter nearby houses and drain local water supplies. In terms of human and environmental impact, this is perhaps the single most significant coal-related rulemaking lawsuit brought since the early-1980s. If the Project is successful, homes can no longer be undermined without approval by the homeowner, and otherwise a 300-foot buffer will have to be maintained around homes.
As lead counsel in this case, Walt Morris, on behalf of the Project has prepared both an original and amended complaint, coordinated strategy with counsel for other citizen groups, and attended the district court's scheduling conference. This case will be briefed throughout the fall, with a decision expected in fall, 2001.
Kentucky Resources Council, Inc. V. Babbitt, (D.C.E.D.Ky)
In addition to these cases, the project has filed a Notice of Intent To Sue on federal and state mining officials, to seek an end to the practice of "wing-dumping" mining wastes into valley streams, and to seek to reduce the damage to streams by requiring all areas to be under permit and stream buffer zones to be enforced. It is anticipated that the state of Kentucky and federal agencies will settle this case, providing enhanced protection for headwater streams from coal mine fills and in-stream sediment ponds.
3. Legislative Advocacy
The Project engages in legislative advocacy (lobbying), within defined limits established by the Internal Revenue Code for non-profit tax exempt organizations, in order to assure that the protection intended to be afforded coalfield citizens are not compromised by state or federal changes.
During the 2000 Kentucky General Assembly session, the Project took these steps:
* Successfully opposed, through testimony before a House Committee and letter and phone contacts with Committee members, the enactment of a bill that would have exempted gravel operations from state mining laws, resulting in the exemption of thousands of acres of gravel mines from any regulation for water pollution, reclamation, or blasting.
* Testified in support of a successful effort to have funds approved by the legislature to pay for the timber and coal rights needed to permanently protect the forested ecosystem on the summit of Black Mountain, the highest mountain in Kentucky.
* Negotiated significant changes in a state law that allows a surface mining violation notice to be terminated where a landowner refuses to allow a coal company onto the land to correct the violation. The Project's involvement assured that all of the legal rights of the landowner would be protected and to prevent collusion between landowners and coal companies.
* Negotiated changes narrowing those instances in which a road can be built above mine highwalls in steep-sloped mining areas to cases demonstrating environmental improvement. Due to the Project's efforts, the cases in which these roads can be approved will be more limited.
* Continued into the next budget cycle, language barring new permits for any company owned or controlled by a person with current violations of environmental laws, until the violations are corrected.
The Project also worked with coalfield and national organizations to defeat an appropriations "rider" that would have undercut the lawsuit in West Virginia that had curbed abuse of the "mountaintop removal" method of mining. That case is pending before the Fourth Circuit Court of Appeals and the Project will be writing a brief in support of the West Virginia groups, at their request.
4. Case-specific assistance
The Project provides a wide array of assistance, from brief informational advice or requests for information from a public agency, to drafting documents, to assisting private representation by direct legal and financial assistance, to providing representation.
Litigation is an unfortunate by-product of a regulatory system that fails to fully and faithfully discharge the obligations to protect the public health and safety. The Project does not shy from litigation where needed to assure full and fair implementation of the law.
* The Project secured last-minute changes in a permit issued by the state of Kentucky allowing surface mining on lower elevations of Black Mountain. The changes reduced the size of the valley fills proposed to be used for placing "excess" overburden material, and secured other improvements to reduce the impact on the high-quality streams which begin on the sides of Black Mountain.
* The Project continues to seek enforcement orders on behalf of seventy residents of Camp Branch in Letcher County, Kentucky, who lost their water supply due to extensive underground mining by Golden Oak Mining Company. Through the Project's efforts to date, interim water supplies have been provided and litigation has been filed seeking permanent replacement supplies. The Project is also negotiating a "global" settlement that would extend a public water line with a combination of abandoned mine land and Golden Oak funding.
* The Project continues to assist Nancy Kline of Toler, Kentucky in seeking review of landslide situations on her property to determine if they are mine-related and eligible for remediation under the abandoned mine land program. Ms. Kline has been denied assistance by OSM, and the consultant retained by the Project is preparing a response in anticipation of appeal, since he believes that the evidence shows mine-relatedness.
* The Project is representing Ms. Mable Hunt in her effort to have OSM require Clintwood Elkhorn Coal Company replace her water supply. Clintwood Elkhorn is extending water to some residents in the area near where they have mined, but refuses to pay the costs of running the line and the cost of the water. Ms. Hunt's well was damaged, and she believes that mining was the cause. The Project is gathering the information regarding OSM's investigation and will have it reviewed by a mining engineer to see if there are grounds for appeal of a denial of assistance by the state.
* The Project represents Daisy Luster and Pauline Stacy, and succeeded in defeating an attempt by the Addington Coal Company to overturn a federal enforcement order requiring it to cease hauling coal through their community until it had received waivers from residents and a permit for the road. The result of this case could have a broader effect on the legal question of when public roads which are used, altered, modified or affected by mining, must be permitted in order to minimize impacts on the public and adjoining landowners.
* The Project represented Harlan County's Pine Mountain Settlement School in its efforts to prevent blasting damage to its historic buildings from a proposed underground mine face-up. As a result of the Project's efforts, the company utilized other methods to excavate the face-up area that did not involve blasting. In a related matter, the School, at the advice of the Project, is having a comprehensive survey of all buildings and structures in order to document their status in advance of any mining in the area.
* The Project continues to assist the Ohio River town of West Point, Kentucky in opposing mining-related operations proposed for their community. The Project is helping residents to oppose a proposed limestone quarry in an area which abuts the busy Dixie Highway and which is in the viewshed of the historic civil war Fort Duffield and within the boundaries of the historic town. The Project is also assisting West Point citizens in their opposition to a proposed sand and gravel transfer site which would place heavy traffic onto the two-lane Main Street. Both permit requests are pending and not yet issued.
* The Project has argued and it awaiting a decision from the U.S. District Court for the Southern District of Ohio in a challenge by the Buckeye Forest Council to the grant by the Office of Surface Mining of "valid existing rights" to a coal company that allows surface mining within the Buckeye National Forest. If the Project is successful, the agency will be required to revoke the grandfathering of this mining activity and to prohibit further mining of those reserves.
For its efforts in this area, the Project was awarded an Environmental Achievement Award for Forest Conservation by the Buckeye Forest Council for coalfield citizen advocacy.
5. Lawyer Support And Referral
In the development of policy positions concerning mining-related problems, citizens groups need to know the legal history behind the issues. During the past year, the Project has provided legal research to residents in many states and their counsel on a range of coal-related issues, including Richard Ehmann, presenting Pennsylvania citizens groups; Joe Lovett, who represents citizens in West Virginia; Michael Nixon, who is also representing Pennsylvania citizens; Ken Humphries, a lawyer representing citizens in Western Kentucky; and Max Goodwin, in Southern Indiana.
6. Information and Brief Assistance
During this project year, the Project fielded and responded to hundreds of requests for brief assistance, guidance, information and advice from local residents, local government, the press, coal activists in and out of state, and regulatory officials. Calls from citizens seeking information or advice average 10 a week.
At the request of the Energy and Mineral Law Foundation, which is composed of lawyers for mineral industries, the Project Director participated in a panel regarding legal ethics and mineral law issues in October, 1999.
The Project Expansion
During the last year, the project expanded to include a new half-time position for Walt Morris, a former OSM attorney and public-interest coal lawyer of national reputation. We established four goals for the project expansion:
1. Service as counsel of record in all civil actions before the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the D.C. Circuit concerning national coal mining regulations;
2. Appearances before Congressional committees and executive branch agencies on matters of concern to the Project and our constituents and client coalfield individuals and groups;
3. Monitoring federal lawsuits concerning the surface mining law or which potentially affect implementation of the law; including lawsuits involving citizen standing to sue violators of federal environmental laws;
4. Expanding the "triage" function of the Project by providing screening capability to coalfield citizens and organizations regarding:
a. Identification and evaluation of legal issues involved in
disputes with coal operators, state regulatory agencies, and OSM;
b. Where appropriate, assisting coalfield citizens and organizations
to acquire counsel to pursue relief in court, before agencies, or
other forums; and
c. As needed and consistent with time and resource constraints, engaging issues as counsel of record where there are no other options available to citizens or groups and the issues are of precedential importance or irreparable harm is threatened.
The Project expansion has met these goals.
Walt has assumed the responsibility for each of the national rulemaking cases detailed in the section captioned Regulatory Litigation (see pages 3 - 4). Walt has spent a modest amount of time every week since August 1999 researching developments in the case law and in state regulatory programs so that the Project is in the best possible position to advise citizens based on current legal authority. Walt maintains a library of the decisions of the Interior Board of Land Appeals in SMCRA cases, and "keeps current" on judicial case law by reviewing the current decisions of the Supreme Court and eastern courts of appeals on the Internet.
In the area of "triage," Walt has expanded the ability of the Project to counsel individual coalfield citizens and citizen groups regarding the availability of relief under SMCRA, its implementing state and federal programs, or other federal environmental laws that govern surface and underground coal mining operations.
Since August 1, 1999, Walt has responded to more than twenty-three telephone inquiries and letters from citizens in all of the Nation's coal producing areas seeking advice on the use of the federal surface mining law to avoid or remedy damages that appear to be mining-related. Walt provides no-cost advice to citizens up to the point that they either invoke administrative or judicial processes or decide to take the matter no further. In instances where it is appropriate to do so, Walt has arranged for initial evaluation of the citizen's claim by competent scientific experts at little or no-cost to the citizen. If an inquiring citizen decides to pursue an administrative or judicial remedy, Walt either assists the citizen in locating other counsel or accepts the case in his private practice and establishes financial arrangements independent from those that fund the general advice he provides on behalf of the Project.
Walt has counseled individual citizens or citizen groups in more than twenty-three separate matters to date. These include, among many others, instances in which:
- citizens have lost or suffered diminution of a domestic water supply;
- citizens have petitioned state regulators to declare environmentally sensitive lands unsuitable for coal mining;
- citizens wish to stop or divert longwall mining operations scheduled to undermine their homes;
- citizen groups question the validity of OSM or state regulatory performance bonding practices that protect industry profits rather than the homes of local residents;
- citizen groups demand that mountain land be restored to its approximate original contour as the federal mining act requires;
- citizens resist the placement of coal combustion refuse in mined out areas, where it may pollute their drinking water or nearby streams;
- citizen groups oppose changes in state mining laws that may allow operators to avoid correcting the damage their operations have caused, and
- citizens oppose the loosening of water quality effluent standards to allow a coal operator to discharge water that pollutes the headwaters of a beautiful mountain stream widely used by local residents for a variety of recreational activities.
Contacts from citizens have grown increasingly more frequent as time has gone along, and will continue to increase in the future. The opportunity to counsel citizens on these subjects is important because the encouragement and direction the Project provides helps to resolve many matters favorably without the need to bring litigation.
For further information on this and other projects of Kentucky Resources Council, Inc., please contact:
Tom FitzGerald, Executive Director
P. O. Box 1070
Frankfort, KY 40602