CAPITOL ROTUNDA NOVEMBER 28, 2000, 12:OO
Good afternoon. This statement is made on behalf of the Bluegrass Group and Cumberland Chapter of the Sierra Club and the Kentucky Resources Council, Inc.
We have gathered today in the aftermath of the Martin County Coal Corporation coal slurry impoundment failure, to express our deep concern, to voice our bitter disappointment, and to outline those immediate actions that we believe represent the appropriate response to this latest in an unbroken line of tragedies, great and small, that have been imposed on a region of this state by today?s coal industry.
We stand here in solidarity with coalfield citizen organizations and individuals, twenty-eight years after the Buffalo Mining Company coal refuse dam collapse in Logan County, West Virginia; twenty-three years after the passage of the Surface Mining Control and Reclamation Act of 1977 - the law that was to fully protect the public and environment from the adverse effects of the coal industry, and almost nineteen years after the death of Nellie Woolum from the collapse of the Eastover Mining Company coal refuse impoundment in Ages, Kentucky, to say never again.
Never again will we accept coal corporations denying responsibility for acts that were squarely within the control of the coal company and for consequences that were foreseeable and avoidable.
Never again will we allow coal company profits and convenience to trump public safety and environmental protection.
Never again will we sit in quiet complicity as with resignation these avoidable tragedies are accepted as a necessary price of a coal economy.
Never again will we quietly accept a legislative policy for this Commonwealth that doing the bare minimum required by federal law is sufficient to protect the lives and communities of our coal field neighbors to the east and west.
And never again will we allow our coal field neighbors to be victimized twice - by the damage inflicted from this tragedy and the insult of having to fight for fair compensation.
We are here to show support for the continued plight of those whose lives, homes, and health have been affected by this avoidable tragedy, and to outline a series of actions that we believe are needed to address the aftermath of this avoidable tragedy and to restore accountability to the regulation of the environmental impacts of coal production. Those actions include these:
Measures to Improve Accountability:
a. Impose a moratorium on further issuance of permit approvals or revisions authorizing new or increased size of coal waste impoundments, and implement process and technical review changes after a comprehensive assessment of the failure mechanisms associated with coal waste impoundment structures.
b. The roles of the state and federal agencies in reviewing and approving placement of coal refuse material should be clarified and both coordination and technical review should be strengthened in order to assure protection of the public, of miners on the minesite, and of the environment.
It appears that, despite the waste dam failures at Ages, Kentucky in 1981, and in Virginia in the 1990?s, that adequate coordination in technical review and alternatives analysis is still not being undertaken.
c. Existing impoundments should be reviewed and closure of the impoundments required where there is any potential for catastrophic failure due to dam breach or pool breakthrough due to subsidence or earthquake.
All high and moderate risk impoundments should be required to submit closure plans to phase out the use of wet coal processing and slurry impoundments, and those impoundments should be dewatered, capped and closed. Low-risk impoundments should also be phased out in favor of dry processing technology.
d. Dry coal processing technology should be required for all existing and new coal processing plants, since it is available, competitive in costs when full cost accounting is used, and represents better and safer technology.
e. For all existing impoundments, the probable hydrologic consequences determination and hazards assessment should be required to consider the worst-case failure scenario, and to require reduction of hazards, alternative management approaches, and revised bonding sufficient to fully fund reclamation and repair of all damages under the worst-case failure scenario.
f. All enforcement actions should be vigorously pursued and penalties imposed sufficient to compensate the public for response and natural resource damage costs. The remediation of the natural resource damage should include full restoration of the affected streams under a remedial plan subject to public and resource agency scrutiny, not merely removal of the coal slurry material.
g. The U.S. Army Corps of Engineers should enforce the Clean Water Act and prohibit the placement of coal waste in in-stream impoundments such as this structure.
h. The proposed EPA-Corps of Engineers rulemaking that would legitimize further construction of in-stream coal waste impoundments by removing the Corps? regulatory prohibition against such waste disposal, should be scrapped.
i. The legislature should eliminate the "no more stringent than" shackle that ties Kentucky to the bottom rung of the ladder of environmental and public protection. Our public policy should not be doing the bare minimum, but doing what is right for the public and our environment.
Measures to Accept Responsibility and to Compensate Those Injured
a. Martin County Coal Corporation should accept legal responsibility for its actions and establish a prompt and fair process for compensating individuals, businesses and communities injured by its actions.
While company officials have expressed regret for the disaster and sympathy for the victims, the legal posture of the corporation is that the disaster and the violations of law that the state claims to have occurred, are not its? fault.
In language eerily reminiscent of the "Act of God" defense provided of company officials after the Pittston?s Buffalo Mining Company impoundment collapsed in 1969, the Petition for Review filed on November 9, 2000 on behalf of Martin County Coal Corporation claims that the alleged violations of the Martin County Coal Corporation "are the result of acts and/or forces outside the control, influence or supervision of Martin County [Coal Corporation]."
The company has filed administrative challenges disputing that the slurry impoundment release caused any violations of state mining or water quality laws.
This coal slurry impoundment was, to the best of our knowledge, designed, constructed, maintained, repaired in 1994, and used thereafter, by individuals who were squarely within the control of the Martin County Coal Corporation. Neither God nor any others except those associated with the corporation were responsible for the decision to shift from dry coal processing to the use of a slurry impoundment in the 1980s, or the decision to continue to use and add slurry and water to an impoundment which had already failed by a breakthrough into adjacent underground workings. These acts were the acts of man, and the consequences that followed were foreseeable and avoidable.
We believe that Martin County Coal Corporation and its? parent corporation A. T. Massey, should accept legal responsibility for the consequences of its decisions to use wet coal processing and to continue to use the impoundment after 1994 by:
1. Amending their legal pleadings to accept responsibility for their actions;
2. Establishing a fair, expeditious and impartial process for handling all claims for restitution for damage caused by the impoundment release, including:
- independent and fair valuation of all claims;
- payment for all personal and real property damage caused by the impoundment failure and by any corrective measures;
- payment at replacement cost for all structures and
- payment for any costs directly or indirectly associated
with the impoundment failure by individuals, water
and other utilities, communities, and businesses, including lost wages, out-of-pocket expenses, and lost income;
- payment of all medical costs, including follow-up
medical costs associated with the physical and psychological effects of the impoundment failure,
the concern with future failures associated with the
remaining material, and the disruption of lives caused
by the intrusion of the catastrophe and the remedial
- payment of all transaction costs, including attorney
and expert fees, incurred by claimants.
3. Setting the standard for responsible conduct by adopting dry coal processing technology for all of the operations owned, under contract or under the control of Fluor, A.T. Massey and Martin County Coal Corporation, and for all operations from which these corporations purchase coal, and by dewatering, capping and closing any coal slurry impoundments.
Measures That We Must Take
As voters, as citizens, as consumers, we have an obligation to demand never again and to take actions to this end. Silence in the face of the ongoing failure to require the coal industry to accept responsibility for its actions and to choose the high rather than the low road in how it affects our environment and coalfield communities, is complicity with those decisions.
As consumers, we should demand that the electric utilities who consume almost all of the output of the coal industry, require their suppliers to use the safest approaches and the best technology for handling coal wastes, rather than the cheapest. The costs of doing less must not be paid by those who live downhill and downstream from coal mines and processing plants.
As citizens we must demand that our elected and appointed officials maintain vigilant oversight of the coal industry before tragedy occurs, not as a temporary sop after tragedy strikes.
As voters we must demand that our elected legislative and executive branch officials place a higher premium on public and miner protection than on industry profits and convenience. With all due respect, we don?t need further study of alternatives, we need a clear commitment to a public policy that elevates public safety and environmental quality over the cheapest processing technology or mining method.
Thank you for your attendance today, and for the continued interest of the media in the aftermath of this avoidable tragedy.