Posts Tagged ‘Kentucky’

Drinking water problems still plague eastern Kentucky

Friday, May 6th, 2016 - posted by tarence

Basic needs must be met to ensure successful economic transition

A creek in Martin County, Ky., ran bright yellow in April. The state claimed that yellow highway-marking paint was to blame. Photo via Facebook

A creek in Martin County, Ky., ran bright yellow in April. The state claimed that yellow highway-marking paint was to blame. Photo via Facebook.

When Rockhouse Creek in Martin County, Ky., ran bright yellow last month, Tomahawk resident Gina Patrick said she had one major concern: that the pollution might ruin her water well.

Patrick has relied on well water her whole life and didn’t want to pay to be hooked up to the municipal water system. That’s because the Martin County Water District is one of the worst water infrastructure systems in the state in terms of water quality and water loss.

Patrick lives on Rockhouse Creek. She said that as she watched the bright yellow plume move down the creek, she took a sample of the water and put it in a paint bucket under her porch. Two curious newborn puppies on her property found the paint bucket and drank its contents. They became violently ill and died later that day.

At the end of April, the Kentucky Energy and Environment Cabinet released a report detailing the state’s investigation into the spill, but there was no mention of Patrick’s dead dogs. Although many local residents thought the pollution might have been related to fracking — an oily sheen was noticed on the surface of the water — the state claimed that yellow highway-marking paint was to blame. According to Lanny Brannock, a spokesman for the Energy and Environment Cabinet, regulators do not know if someone intentionally put paint in the creek or if it was an accident.

But many Martin County residents still have questions, and that’s not uncommon in a county that has seen its fair share of coal slurry spills and municipal water problems. The Mountain Citizen, located in the county seat of Inez, has doggedly reported water quality and environmental issues for decades. In fact, the newspaper’s diligence, combined with the hard work of local organizers, prompted the Kentucky Public Service Commission to investigate the county’s water system, which has a water loss rate of more than 60 percent and often delivers smelly, foul water.


In the aftermath of Flint, Mich., this video from Martin County caught the attention of consumer advocate and environmental activist Erin Brockovich, who posted it to her Facebook page.

When I spoke with Inez resident Josie Delong back in February, she was very clear about the long-term burdens that come with having bad water:

The biggest [burden] is definitely health issues. But also the fact that most of us are on a fixed income here. Everybody’s losing their jobs in the mines, losing their jobs here or there, and can’t afford these high water bills, and we can’t even use the water. We’re paying these bills and yet still having to go to the store and get water, and we don’t know what it’s doing to us. And that’s the big fear. We have no idea.

In 2015, the Martin County Water District accrued multiple non-compliance violations for known carcinogens such as trihalomethanes and haloacetic acids. In the offices of the Mountain Citizen, editor Gary Ball points to the back of his latest water bill, which includes a notice for anyone with an immunodeficiency disorder: do not drink the water. “In other words, if you’re as healthy as a horse, drink away,” Ball says. “But sooner or later it’s going to get to you.”

Ball and the Mountain Citizen have also extensively documented the unequal way in which water is distributed in the county, and how many customers are often not informed of boil water advisories or shut-offs in the system. According to Gary and Lisa Smith Stayton, owner and publisher of the Mountain Citizen, the excessive water loss rate often impacts the poorer or more remote areas of the county first. As water is diverted to more populated and wealthy areas in the county, some customers are forced to go without.


Sometimes there’s no water at all. As Ms. McCoy explains in this Facebook post, not having water creates all kinds of social and financial hardships on her day-to-day schedule.

Officials in the county have adamantly denied the extent of the problems, and often portray concerned citizens as alarmists and idealists. The Martin County Judge Executive, Kelly Callaham, has publicly stated that the 60 percent water loss rate in the system is due to people stealing water from fire hydrants and industrial coal mine sites. (I reached out to Mr. Callaham and the Martin County Water District; neither returned my requests for a comment).

“Our officials downplay every single issue, and go to great extents to discredit those who speak up,” says Lisa Smith Stayton. She described a recent fiscal court hearing that turned into an attempt to publicly discredit a Mountain Citizen report about disinfection byproducts in the water. Lisa was incredulous. “One magistrate even said ‘you’re more likely to get cancer from eating a hot dog.’”

In late March, due to pressure from citizens like Delong, Ball and Stayton, state Senator Ray Jones convened a meeting at his office in Frankfort to discuss issues with the water system. Watching footage of the meeting is frustrating; a great deal of time is wasted on discussing surreal and overstated accusations of “water theft.” At several points in the conversation, some variation of this statement is heard: “Martin County is not the only county where these problems occur.”

This is a familiar tactic deployed by the powerful: make the victims appear as if their demands are inherently selfish because, after all, it’s happening to everyone. If you can portray the powerless as hyperbolic and alarmist, you eventually start to convince them that their demands are crazy. This is known as “gaslighting,” and it’s a depressingly effective way to evade accountability.

But residents like Delong aren’t deterred. As she told me:

The more people who talk about it and share their concerns, the better. Because, I’ll be honest, I sat back for a long time and said, “Well why should I say anything about it? I’m just one person. That’s not gonna change anything.” And then the very second I did mention it on social media, and posted a picture, I saw a huge response. And that gave me confidence. Maybe we can change this.

Motivated by health problems that she believes to be caused by the water, as well as mounting medical bills, Delong started a public Facebook forum. She began polling her friends to see if they suffered from similar afflictions and medical costs. The results are astounding in their detail and specificity; many respondents reported skin irritations, stomach issues and autoimmune disorders.

It’s obvious from reading the comments on Delong’s poll, as well as the many comments on the Martin County Water Warriors’ Facebook page, that the public health costs of living in coalfield counties are increasingly burdensome. My own experience bears that out; I live in Letcher County, Ky., about an hour and a half south of Martin County. I spend upwards of $50 each month on bottled water, and most of my friends and neighbors do the same. With coal severance funds declining, we’re also forced to pay more for basic services like trash and recycle collections. The Letcher County Recreation Center, built with coal severance funds, is constantly at risk of closing.

In fact, Gina Patrick’s anxiety about having to switch from well water to potentially-dangerous municipal water is not uncommon. Whether it comes from a well or a municipal system, the drinking water of many eastern Kentuckians is at risk of being polluted. When a dangerous acid mine drainage spill occurred five miles upstream of the Letcher County water intake in March, we were reminded of the many times our water system was poisoned by diesel fuel from local oil magnate Don Childers. It doesn’t help knowing that the state actively works to sweep those violations under the rug, or that it neglects to include important factors like dead dogs in its investigation of a bright yellow creeks.

Delong articulates the full scope of this problem and the struggle to stay:

It just feels like we’re going downhill so fast. I’ve had a lot of friends move out of the county. And it’s sad. I grew up here. And everyone’s just leaving. And it’s becoming a ghost town. And I don’t want to leave. I mean, I could, I’m sure. But who’s going to want to buy a home in this county? How could you sell your home? When someone away from here looks up Martin County, they automatically see repeats of all these troubles and problems and people moving away and no jobs and no opportunities. It’s gonna be impossible to sell your home right now. And I don’t want to leave. I want to do what I can — I’m just one person but I want to do what I can to try and make things better for us, instead of just watching it go downhill.

Officials say that they want people to stay. Some even say that they want economic transition. But what are they doing to help us save money where it matters — on very basic needs like food, water and healthcare? The solutions to these needs amount to the most basic and essential forms of economic development: safe drinking water, functioning local services, affordable healthcare and access to adequately funded social programs. They are simple solutions to very real problems that would save people money and help them stay in the region that they love.

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States Consider Cuts to Mine Safety, Coal Taxes

Monday, April 18th, 2016 - posted by molly

By Brian Sewell

In Kentucky, Virginia and West Virginia, high-profile legislation related to mine safety laws and coal taxation policies is showing how far Appalachian lawmakers will go in attempts to sustain the ailing industry.

On April 1, West Virginia Gov. Earl Ray Tomblin signed into law legislation that rolls back a requirement that coal companies provide private rescue teams in the event of a mine disaster, a measure enacted following the Sago Mine explosion in 2006 that killed 12.

The bill, which would also relax fines for not immediately reporting major incidents like fires or explosions, was passed before the state Office of Miners’ Health, Safety and Training was able to analyze its potential impact. Nor was the bill’s economic benefit to the industry calculated.

“I don’t know that that created or saved one job,” state Senate Minority Leader Jeff Kessler, a Democrat running for governor who opposed the bill, told the Charleston Gazette-Mail after the Senate vote. “Once again, just because the industry is asking for it, we’re willing to roll over and give it to them.”

The West Virginia Senate passed a bill in March to reduce the state’s coal severance tax from the current rate of 5 percent to 2 percent. Severance tax revenues, which provide critical funds for counties and the state budget, are already in steep decline, contributing to budget cuts and public employee layoffs.

According to the West Virginia Center on Budget & Policy, which opposed the bill, the tax cut would cost the state $159 million and local governments $11.6 million annually while doing little to fight the forces making central Appalachian coal uncompetitive. The bill was shelved by the state House of Delegates.

Both efforts were backed by the West Virginia Coal Association.

In Kentucky, the severance tax pie is shrinking even faster than in West Virginia. Tax revenue in January 2016 was $8.9 million, compared to $20.5 million during the same month in 2011. Multiple bills have been introduced this session to direct a larger portion of the dwindling coal tax revenue to eastern Kentucky counties most affected by coal’s decline. But bickering over how to divide the total $44 million in severance taxes in the state budget has dimmed the prospect for reform.

Kentucky legislators are also at odds on mine safety. In March, the Senate easily passed measures to eliminate state safety inspections of coal mines — leaving the role to federal inspectors — and end mandatory safety training for mine foremen.

Sen. Robin Webb, a former coal miner, was appalled. “I cannot ever have the blood of my brothers and sisters on my hands as a state policymaker, and I cannot support this measure,” she told her colleagues.

The measure is supported by the administration of first-term Gov. Matt Bevin and the Kentucky Coal Association.

In a recurring battle in Virginia, Gov. Terry McAuliffe vetoed House and Senate versions of a bill to extend state tax credits for the coal industry, which he described as “ineffective at creating or protecting economic activity or jobs.”

Between 1988 and 2015, the coal industry claimed more than $160 million under the Virginia credits. Over the same period, coal jobs in the state fell from 11,000 to less than 3,000.

UPDATE: On April 20, an effort to override Gov. McAuliffe’s veto of a bill to extend Virginia’s coal tax credit narrowly failed in the state Senate. The tax credit will expire on Dec. 31.

Pine Mountain One Step Closer to Full Protection

Friday, April 15th, 2016 - posted by molly

By Dylan Turner

In March, the Kentucky Natural Lands Trust announced that it had acquired 2,050 acres of Pine Mountain in order to preserve the area’s natural habitats. The environmental conservation organization’s purchase will add to the Pine Mountain Wildlands Corridor project, which plans to protect a portion of land stretching the entire 125-mile length of the mountain from Virginia to Tennessee. The land will also be incorporated into the existing Great Eastern Trail, a hiking path that stretches 1,800 miles through the Appalachian mountains from Alabama to New York.

In a press release, Executive Director Hugh Archer called the tract of land “the single largest addition and most expensive investment in the Wildlands project in KNLT’s 20 year history.”

In recent months, Kentucky Governor Matt Bevin has proposed cutting $10 million from the budget of the Heritage Land Conservation Fund, a state board that provides funding for the conservation and preservation of natural areas. Though the newly protected section of Pine Mountain was purchased with private funds, the Pine Mountain Wildlands Corridor could still be affected. “Cuts to the heritage program could impede inclusion of this new reserve into the state parks system,” says KNLT Assistant Director Greg Abernathy.

Response to Spill Leads to Action Against Coal Polluter

Friday, April 15th, 2016 - posted by molly
Acid mine drainage from a coal mine flooded into Pine Creek in eastern Kentucky, killing wildlife and raising concerns over drinking water safety. Photo by Tarence Ray

Acid mine drainage from a coal mine flooded into Pine Creek in eastern Kentucky, killing wildlife and raising concerns over drinking water safety. Photo by Tarence Ray

Pine Creek in Letcher County, Ky., is a small creek that flows through a hollow off Pine Mountain and into the North Fork of the Kentucky River. The point where Pine Creek and the Kentucky River meet is about five miles upstream of the municipal drinking water intake that serves Whitesburg, Ky., and the surrounding county.

When an auger mine operator drilled into an old underground mine at the head of Pine Creek on March 18, releasing a flood of acidic, orange-colored water into the creek, residents were concerned about the proximity of Pine Creek to the water intake. Our Appalachian Water Watch team was contacted by some of these concerned citizens, and was able to document the spill as it occurred in real-time. Photos of dead fish and turtles were posted to Facebook and Twitter, where they quickly went viral.

Due to public pressure from social media and citizens filing complaints, the state of Kentucky acted to control the spill, and filed three violations against the company, Hardshell Tipples. The state initially denied that the mine waste killed any wildlife, but eventually reversed its findings and issued an additional violation to the company. The state also compelled the company to commit to a fish-restocking plan for Pine Creek — a huge victory for water advocates and a sign that the state is aware of the public’s concern.

While water and fish tissue samples are still being processed, the quick response of our team pushed the state to action and prevented the mine waste from affecting the county’s municipal water system. Unfortunately, this is yet another example of the costs that communities near coal mines have to pay in terms of ecological, personal and financial health.

Read more about what happened on Pine Creek on our Front Porch Blog.

What happened on Pine Creek?

Tuesday, April 12th, 2016 - posted by tarence

Another example of the costs that communities near coal mines pay in ecological, economic and human health.

With support from local residents, the Appalachian Water Watch is responding to coal pollution events like the recent spill along Pine Creek in Letcher County, Ky.

With support from local residents, the Appalachian Water Watch is responding to coal pollution events like the recent spill along Pine Creek in Letcher County, Ky. Photos by Tarence Ray

A lot of folks have had questions about the recent mine blowout on Pine Creek, in Letcher County, Ky. So we’ve put together an explainer that runs through the facts, the science and the regulatory protocols behind spills like this.

Where is Pine Creek?

Pine Creek is a small creek that flows off Pine Mountain and into the North Fork of the Kentucky River. The point where Pine Creek and the Kentucky River meet is roughly five miles upstream of the municipal drinking water intake that serves Whitesburg, Ky., and the surrounding county.

So what happened?

On Friday, March 18, an auger mine company, Hardshell Tipples, was mining at the head of Pine Creek when they inadvertently drilled into an old underground mine. Water had stored up in the mine over time, slowly increasing in acidity and iron content creating what is called “acid mine drainage.” This water rushed out into a sediment pond when the mine was breached by the auger drill, and the pond overflowed into the creek.

What is acid mine drainage?

Acid mine drainage occurs when water flows over or leaches through minerals and materials with high sulfur content. Many times, as in the case at Pine Creek, the minerals exposed to water contain iron pyrite, also known as “fool’s gold.” The result is orange-colored water, which stains rocks and river beds. Acid mine drainage also very likely contains other metals, such as manganese. (The polluted water/mine drainage that spilled into Pine Creek contained manganese, and we’ll get to those test results momentarily). As is indicated by its name, acid mine drainage is also highly acidic — so don’t touch it.

But if all these things are found in nature, isn’t this simply a natural occurrence?

All of the ingredients for making acid mine drainage are naturally occurring, that much is correct. But what is not natural is the excavation of these minerals and their exposure to air and water. Ask yourself: is there anything natural about a stream that is unable to support wildlife?

In the case of Pine Creek, water had stored up in the old underground mine over time, slowly gaining acidity and various metals. These mountains are porous; therefore water got into the mine in the first place through years and years of rain. When the iron pyrite in the mine was exposed to oxygen in the water (you know, the “O” in H2O), it created a highly acidic substance that was harmful for aquatic life. When the mine was breached, this highly acidic substance got into the creek, and was indeed very harmful to aquatic life.

A dead turtle on the banks of Pine Creek after the spill.

A dead turtle on the banks of Pine Creek after the spill.

Got it. So back to what happened. What happened?

Our Appalachian Water Watch team was contacted by a concerned citizen who lives on Pine Creek, and we were able to document the spill as it occurred in real-time. Photos of dead fish and turtles were posted and shared by hundreds of people on Facebook and Twitter. We also spoke to residents on the creek who had been trying to catch minnows that morning. Instead, they had a net full of dead fish.

Officials at the Kentucky Department of Environmental Protection initially denied that the spill was responsible for killing wildlife. However, due to public pressure from social media and citizens filing complaints, state officials reversed their findings and determined that over 700 fish were killed as a result of the spill.

The state eventually issued four violations against Hardshell Tipples, and compelled the company to commit to a fish-restocking plan for Pine Creek — a huge victory for clean water advocates and a sign that the state is aware of the public’s concern about how state agencies respond to spills like this.

Was this preventable?

Samples taken on the day after the spill show massive amounts of iron and manganese in the water. State documents obtained by Appalachian Voices and the Appalachian Citizens’ Law Center show that Hardshell Tipples had been issued multiple violations in the past for discharging high amounts of iron from its permit. However, these violations were considerably lower than the most recent Pine Creek spill, and the pictures show it.

It’s established fact that Hardshell Tipples has been reckless in the past with what it choose to discharge off of the permit. But state documents reveal that the company was also issued a citation in 2002 for failing to submit comprehensive underground mine maps to the state. It might be impossible to determine whether this documented negligence had anything to do with the recent mine blowout; however, it’s safe to say that the company has been a consistently careless operator in a watershed that is both ecologically and aesthetically important to eastern Kentucky.

The mine blowout on Pine Creek was clearly preventable. However, this is not to imply that all incidents of acid mine drainage are preventable. The majority of acid mine drainage problems in Letcher County, for example, are from mining that occurred decades ago, and persist to this day. These legacy problems will likely exist for many more decades, unless action is taken by state and federal government agencies.

The main point is that the Pine Creek spill is yet another example of the costs that communities near coal mines have to pay for in terms of ecological, economic and human health.

What do I do if this happens to my creek?

In this case, the quick response of nearby citizens and our team pushed the state to action and prevented the mine waste from affecting Letcher County’s municipal water system. However, in other instances, communities may not be aware of the problem for days, or they may be unable to contact their proper state agencies — especially if the problem begins on a weekend.

In any case, there are several things you can do to get the state to respond:

1. Take photos. Put your photos on social media, and make sure you tag the respective state or federal agencies in your post. Pictures of dead wildlife are especially useful, as they paint a more comprehensive portrait of the affected stream.

You can also send the photos to us through the Appalachian Water Watch Facebook page. If you don’t use social media, make sure you hang on to the photos, and call us immediately at 1-855-7WATERS.

2. Take notes. Make sure you note the date, time, location and any other characteristics of the affected stream. This includes changes in water color, consistency and/or smell. Don’t touch the water unless you’re taking a sample, in which case you should wear gloves.

3. Take a sample. Contact us and we can likely sample the spill within a few hours. If nothing else, purchase a plastic water bottle from your nearby grocery, empty it out, fill it with the contaminated water, and store it on ice until it can be tested. Be sure to wear latex gloves when you grab a sample. The water is likely highly acidic, and could burn your skin. Also, be careful — don’t risk a broken ankle or worse by wading into a fast moving stream just to get a sample. Pictures and notes are often the best course of action.

From inside Appalachia, a look at WGN’s “Outsiders”

Friday, April 8th, 2016 - posted by guestbloggers

Exclusive to the Front Porch: Award-winning author Ron Rash, known for his distinctly Appalachian voice as a poet, novelist and essayist, offers this reflection on WGN original series, Outsiders, about a clan of Kentucky natives living deep in the hills, and well outside of society.

Photo by Ulf Andersen.

Photo by Ulf Andersen.

So meet the Farrells (get it, feral), who live atop a mountain in southern Appalachia. It is 2016 elsewhere in America, but the Farrell tribe (who number between twenty and two hundred depending on which episode you watch) is living a lifestyle that is a bit retro, say by about two thousand years. They clothe themselves in animal pelts, walk barefoot, and do their internecine “feuding” with clubs.

There is no need to worry about any instances of micro-aggressions in this show. Five minutes into the premiere, we are assured that these mountain folks are nothing but a bunch of incestuous “retard hillbilly animals,” which the next scene confirms. We meet the Farrells at a clan-wide hoedown where everyone is at least a cousin and hell-bent on keeping it that way, openly fornicating when not swilling moonshine or brawling. No stereotype is overlooked: everyone is illiterate except for one heretic who left for some book-larning; Indoor plumbing? Are you kidding, these folks don’t have electricity except for a generator, whose sole purpose appears to be powering a screeching electric guitar. Otherwise, it’s candles and wood stoves. In the first three episodes, we get hexings, attempted matricide, fingers chopped off for violating tribal law, a Viking-like raid of the local Wal-Mart, and language that makes the bad guys in Deliverance sound like Rhodes Scholars. No one plants anything but marijuana and the only hunting is for “furrinurs’ unlucky enough to get these folks riled up. So where does the food come from? I’m expecting a later episode to reveal why Ferrell and cannibal sound so similar.

Assuming reviewers if not TV executives would find such outrageously grotesque depictions disturbing if not reprehensible, I checked their responses to Outsiders. That the show might even be remotely offensive went unmentioned. If anything, three of the four reviewers found the idea that such people existed in Appalachia plausible. Variety praised the show’s ability to depict “a strong sense of place in the wilds of a still-untamed pocket of America.” The Washington Post found it “artfully conceived” although acknowledging parts of the show were ridiculous “{e}ven if rooted in some anthropological research.” The New York Times also found the show cartoonish, though cautioning “Maybe there really are Kentucky hill clans who act like the staff at Medieval Times, but the best efforts of the actors in Outsiders can’t make the Farrells credible.” The L.A. Times gave Outsiders a largely positive review, although noting during a publicity event for the show that a reporter “asked if some of the characters might be werewolves.”

It’s all in good fun, I can imagine the writers and producers saying, and I myself have had some laughs while discussing the show with fellow Appalachians. But I also think of the national outrage when residents of Flint had to drink bottled water for weeks because their own supply was polluted, yet there is no national outrage that in parts of Appalachia the water has been undrinkable for years. Appalachia has always given more to this country than has been given back, especially its natural resources and in times of war, as we’ve recently witnessed, its children. The region is diverse, and many areas are doing well, but for those that are not, might a show focused on “retard hillbilly animals” make it easier for America to ignore the region’s needs? I’m not advocating the show being banned or boycotted. I would even encourage people to watch Outsiders, but with one caveat: if this show were about any other minority group, would you find it nearly as entertaining?

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Ron Rash is the author of the 2009 PEN/Faulkner Finalist and New YorkTimes bestselling novel Serena, in addition to five other novels, including One Foot in Eden, Saints at the River, The World Made Straight, and Above the Waterfall; five collections of poems; and six collections of stories, among them Burning Bright, which won the 2010 Frank O’Connor International Short Story Award, Chemistry and Other Stories, which was a finalist for the 2007 PEN/Faulkner Award, and most recently, Something Rich and Strange. Twice the recipient of the O.Henry Prize, he teaches at Western Carolina University. His latest novel The Risen will be out in September from Ecco.

Kentucky Resident Challenges Coal Company’s Right to Mine

Monday, February 15th, 2016 - posted by interns

Not On My Land

By Tarence Ray

The cut-through Premier Elkhorn made on Phillip Johnson’s property is pictured above. The land to the right is the Johnson family’s land; to the left is an adjacent hollow that has been extensively mined. The cut-through is roughly 300 yards from a cabin Phillip Johnson built on his property prior to the mining in 2014. The mining, including machinery and explosives, is easily heard and felt in the cabin. Photo by Tarence Ray

The cut-through Premier Elkhorn made on Phillip Johnson’s property is pictured above. The land to the right is the Johnson family’s land; to the left is an adjacent hollow that has been extensively mined. The cut-through is roughly 300 yards from a cabin Phillip Johnson built on his property prior to the mining in 2014. The mining, including machinery and explosives, is easily heard and felt in the cabin. Photo by Tarence Ray

For weeks Phillip Johnson lay in bed and listened to them tear up his land.

“To be honest with you, it was about the worst thing I ever experienced,” Johnson recounts. “Them ripping and tearing the rock up there with an excavator, nothing you could do about it. And the dozer running every morning till one or two o’clock, while I’m sitting here trying to sleep. It did a lot of damage to me.”

This was during the spring of 2014, after Premier Elkhorn Coal Company began mining Johnson’s land without his consent. Phillip got the mining temporarily halted with the help of his attorneys in June 2014, but not before Premier Elkhorn blew a massive cut-through on one of his ridges. The company had been using dynamite to level the ridge in order to open up Phillip’s hollow to the adjacent hollow for easier access.

“There’s not many hollers this big that ain’t been tore up,” Phillip Johnson says. “I’d say this is the only one in this area that ain’t been stripped and dozered out. All the rest of them have been tore all to pieces.”

Numerous signs warning of blasting, put up by the company, are located throughout the Johnson family’s property. Photo by Tarence Ray

Numerous signs warning of blasting, put up by the company, are located throughout the Johnson family’s property. Photo by Tarence Ray

It’s immediately obvious how proud Phillip and his younger brother, Justin, are of this fact. They grew up here in eastern Kentucky, a family of ten that worked the land and lived off it through brutal and fertile seasons, bad times and good. The county lines of Knott, Perry and Letcher meet at the head of their hollow. “You can stand on your hands and feet and stand in three counties at one time,” the older brother says with a laugh.

Phillip eventually went to work as an underground coal miner, a job he held for 37 years. He and his father worked together for 13 of those years.

“[My father] paid for all the land with us selling livestock and shoveling coal,” Phillip says. “And my mother raised eight children. You imagine how sick it made me…to hear [Premier Elkhorn] up here working, and knowing this is stuff daddy paid for with a shovel in the mines? It was like them reaching down and sticking a thorn in your side, you know? I lost many a night’s sleep with it.”

But the brothers’ anger with Premier Elkhorn Coal Company began before mining even started. In 2013, the company sent in a land agent to convince members of his family to sell their property rights so that the company could strip and remove the surface to extract the underground coal seams. Two of their siblings sold their share of the land, but Phillip, Justin and the remaining siblings held out. To this day Phillip Johnson isn’t entirely sure how much the two siblings sold for, but he says it tore their family apart.

The image of the hollow adjacent to the Johnson family’s land was taken from the cut-through on Phillip Johnson’s ridge. Photo by Tarence Ray

The image of the hollow adjacent to the Johnson family’s land was taken from the cut-through on Phillip Johnson’s ridge. Photo by Tarence Ray

“We were a close family. We went to Miami Beach, we’d go to the Smokies and camp out. I mean, we were one big, lovable family before,” he says. “Then [Premier Elkhorn] started putting into this, and it’s tore the family all apart. It really tears you up to think that some company with their money and power can come in and do you that way.”

Exactly how Premier Elkhorn managed to do this against the remaining siblings’ objections, and whether the state of Kentucky should allow it to continue, is the subject of an intense argument among lawyers, policy-makers and landowners.

Land ownership in Kentucky

Phillip Johnson and his siblings are legally represented by Mary Cromer of the Appalachian Citizens’ Law Center in Whitesburg, Ky., Joe Childers of Lexington, Ky., and Walt Morris in Charlottesville, Va. According to them, the case is reminiscent of how coal companies used to use the broadform deed — a legal mechanism that severed underground mineral rights from surface rights — to legally justify strip mining a landowner’s property. These deeds were often written to grant the owner of the minerals the right to extract coal over the objection of the surface landowner. Companies bought up many of these deeds during the first half of the 20th century, at a time when surface mining was virtually unheard of.

What remains of the ridge after Premier Elkhorn used explosives to gain access to the Johnson family’s property. Photo by Tarence Ray

What remains of the ridge after Premier Elkhorn used explosives to gain access to the Johnson family’s property. Photo by Tarence Ray

It wasn’t until the 1950s that surface mining as a method of coal extraction really took off. “The mineral owner had the complete dominance of the surface owner and could do whatever they needed to get at the coal,” Cromer explains. “So that’s when you had coal companies stripping away and running people off their land to get to their minerals.”

The Kentucky Supreme Court ruled this practice unconstitutional in 1987, but miles and miles of the state’s mountains had already been removed.

According to Cromer, after the 1987 ruling the state and the coal industry began looking for new ways to strip mine privately owned property. “For years they didn’t need consent because most everyone had unknowingly sold out their minerals a long time ago,” she explains. “So when the broadform deed was no longer able to be used they went to this system where they only needed consent from one owner.”

Land ownership law is a complicated issue in this country, and in Kentucky can be somewhat unconventional. Undivided property, or joint property ownership among family members, is a specific type of land ownership that is very common in eastern Kentucky. Under this scenario, each person owns an interest in all of the property. If, for example, four people jointly own a piece of land, that does not mean that there are four separate corners of the property that each person owns. Instead, each person owns an equal interest in the entire parcel.

In Phillip and Justin’s case, their father left the property for the family to own jointly. Phillip, Justin and three of their siblings jointly own a 62.5 percent interest in the land. Premier Elkhorn, through Pike-Letcher Land Co., now controls a 25 percent ownership interest in the land, after their two other siblings sold their individual rights.

The state of Kentucky has interpreted federal surface mining law to mean that a coal company only needs to obtain a lease from one person that owns an interest, no matter how small that interest, in order to strip away that land — even if the rest of the owners object. “It’s this loophole that allows them to get around the broadform deed reformation,” says Cromer.

An Uncertain Future

In the summer of 2014, Cromer, Childers and Morris won a temporary halt on the mining on the Johnson property. U.S. District Judge Amul R. Thapar subsequently ruled that the Surface Mine Control and Reclamation Act, the first federal law to regulate surface mining in individual states passed in 1977, says that a coal company has to get consent from all surface owners in order to mine.

Despite the judge’s ruling, the state of Kentucky reissued the permit on the Johnsons’ land in September 2014 under a subsection of the Surface Mine Control and Reclamation Act that defers to state property laws. “Kentucky has continued to permit under a different part of [SMCRA], and is still continuing to permit based on the consent of just one surface owner, even if the other surface owners object,” says Cromer.

  The view of the ridge from the Johnson property is pictured at center. Photo by Tarence Ray

The view of the ridge from the Johnson property is pictured at center. Photo by Tarence Ray

When asked about this practice, the Kentucky Energy and Environment Cabinet responded, “The cabinet is in compliance with all court orders and is addressing all of these issues in state and federal administrative actions.”

The cabinet declined to respond to further questions regarding their legal justification and the fact that they continue to issue permits under a different subsection of federal surface mine law despite Judge Thapar’s ruling. Premier Elkhorn could not be reached for comment.

Despite the reissued permit, it’s unlikely that Premier Elkhorn will continue mining Phillip Johnson’s land any time soon. Late last year, parent company TECO sold Premier Elkhorn to Cambrian Coal for virtually nothing, and the price of coal has dipped so low that, according to data from the U.S. Energy Information Administration, not a single mine in central Appalachia is presently operating at a profit. In the meantime, Cromer and Childers have filed a new action against Secretary of the Interior Sally Jewell and the U.S. Department of Interior on behalf of the Johnsons, so that a federal court can review the state agency’s decision to reissue the permit.

For Justin Johnson, the problem is historical. “I question the fairness and how people in eastern Kentucky have been treated for so many years,” he says. “And these coal companies, where are all these coal companies at now? Are they still here taking care of the people? They’re gone. The money’s gone, so they’re gone.”

Yet the uncertainty of the future is also hard on the brothers. “If coal sales get good they might fight harder for it,” Phillip Johnson says. “If it doesn’t, they might leave it alone. You know, I’d like to see coal sales’ price pick up, but I hope they don’t ever take this from me.”

For more, listen to a radio episode that explores Phillip Johnson’s story from WMMT’s Mountain News and World Report. Additional reporting for this article was done by Parker Hobson of Appalshop/WMMT-FM.

Bleak outlook for coal in 2016

Friday, January 8th, 2016 - posted by brian

The new year brings more bad news for a battered industry

It probably comes as no surprise that, after the dismal year coal had in 2015, more hard times for the industry are ahead. Nowhere is the struggle more real than here in Central Appalachia.

The latest look into a window of coal’s burning house comes courtesy of Downstream Strategies. The West Virginia-based environmental consulting firm has been charting Central Appalachian coal’s decline for years and is urging policymakers to plan for a future in which coal is no longer king.

Screenshot from Downstream Strategies "All Of Our Eggs In One Basket?"

Screenshot from Downstream Strategies “All Of Our Eggs In One Basket?”

The group’s new white paper, creatively titled “All Of Our Eggs In One Basket?,” tells the story of Appalachian coal over the past few decades in five simple charts like the one above. It also considers how coal’s decline contributes to the budget deficits wracking West Virginia. In summary:

Future demand for Central Appalachian coal will likely continue to decline—primarily due to the increasing cost of mining thinner, harder-to-access coal seams and competition from cheaper natural gas, renewable energy, and energy efficiency improvements at homes and businesses. Future environmental regulations on coal mines and power plants, such as the federal Clean Power Plan, may further reduce demand for West Virginia coal.

For data related to regional coal production and projections, Downstream Strategies looked to the U.S. Energy Information Administration. Just today, that agency shared its own update on coal prices and production in 2015. While the main lesson from the chart above is probably that it’s best to be skeptical when it comes to EIA projections, the severity of the situation in Appalachia becomes even clearer when the region is viewed relative to other domestic coal reserves.

Screen shot from EIA's Today in Energy "Coal production and prices decline in 2015."

Screen shot from EIA’s Today in Energy “Coal production and prices decline in 2015.”

According to the EIA, the amount of coal produced in the Central Appalachian basin in 2015 was 40 percent below its annual average during the period from 2010 to 2014. Wherever coal is still competitive, less and less of it is coming from Central Appalachia.

Anyway, back to the Downstream Strategies report, which wraps up with yet another firm reminder that coal’s steep decline and its consequences are anything but unexpected. As the authors conclude:

For years, we have known that coal production was likely to drop significantly in southern West Virginia, and that coal production will likely continue to decline in the future. Now that these projections are coming true, the state is grappling with fewer jobs, bankrupt companies, and declining severance tax revenues.

Together, these present unprecedented challenges not just for southern West Virginia counties, but also for the state as a whole.

New approaches are needed.

When it comes to coal, the question for regional policymakers now is not so much how to make it better, but what to do when it gets even worse. If we may suggest a resolution for the new year: Don’t wait any longer. Recognize and respond to the realities of today’s energy market and the economic challenges facing the region.

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Coal’s death knell in Kentucky

Monday, January 4th, 2016 - posted by tarence

Industry’s decline produces a political shakeup in the Bluegrass State

With the challenges facing coal in eastern Kentucky, it remains to be seen how the industry will maintain its political power in the state. Photo of Kentucky State Capitol via Wikimedia Commons.

With the challenges facing coal in eastern Kentucky, it remains to be seen how the industry will maintain its political power in the state. Photo of Kentucky State Capitol via Wikimedia Commons.

The final months of 2015 may prove to be a historic moment for Kentucky’s politics and the state’s struggling coal industry.

When Governor Matt Bevin took office at the beginning of December after a surprise victory over Democratic challenger Jack Conway, he took a brazen shot at environmentalists by appointing former coal executive Charles Snavely to oversee the state’s environmental protection cabinet. Snavely was an executive with International Coal Group (ICG), a company that Appalachian Voices, along with allied groups, sued for covering up thousands of water pollution violations in the state.

To make matters worse, state Representative Fitz Steele was appointed this week to chair the House Natural Resources and Environment Committee, after Representative Jim Gooch switched to the Republican party earlier in the week. House Speaker Greg Stumbo greeted the move with this statement: “Rep. Steele has built a strong reputation as a defender of sensible environmental laws and is an excellent choice to lead this committee as we ready for the legislative session.”

Stumbo’s statement is perplexing; back in 2012 Fitz boasted that he “can take [a mountain] down and put it back better than what it is.” If that view of mountaintop removal coal mining is what Stumbo thinks is a “sensible environmental law,” then we really are in trouble.

But it’s not as if Steele is all that different from Jim Gooch, the man he is replacing. For example, here’s Gooch’s statement from Monday on why he left the Democratic Party: “Let my departure from the Democrat Party send a message loud and clear. I stand behind the thousands of Kentuckians who have lost their jobs all across the coalfields.” This is coming from a man who blames impoverished eastern Kentuckians for their water problems, rather than mining companies and coal executives like Charles Snavely.

Gooch’s departure — as well as Bevin’s election win — are hardly surprising if we are to look at West Virginia. In that state, large numbers of Democrats have either left the party or have been voted out, due in part to the industry’s “war on coal” campaign. It has become increasingly clear that this campaign was an incredibly cynical crusade to consolidate political power in an uncertain market environment. The political realignment of West Virginia — and now Kentucky — is proof of that.

As the Bevin administration moves into its first year, and as Central Appalachian coal prices continue to fall, it remains to be seen how the coal industry will maintain political power in the state. However, if recent developments serve any indication, we can almost guarantee that elected leaders in Kentucky will continue using “war on coal” rhetoric to exploit the fears of many, while ignoring the very real issues of clean energy, healthcare access, low wages and environmental catastrophe.

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Budget holds promise for Central Appalachia

Friday, December 18th, 2015 - posted by thom
The federal budget is settled. It’s not perfect. But it’s pretty darn good.

In the spending bill, Congress steered clear of the Stream Protection Rule and increased the budgets of agencies focused on economic development in areas including Central Appalachia.

Look for a deeper analysis on the budget deal from us next week.

Today the U.S. Congress passed a spending bill that covers all federal government expenditures and sets the budgets of agencies such as the U.S. Environmental Protection Agency, Department of the Interior, Department of Labor, and the Appalachian Regional Commission.

The spending bill is a big deal for Appalachian Voices. And honestly, it looks pretty darn good.

Until President Obama signs the bill, which he said he will do, the details aren’t final. But negotiations between the White House and congressional leaders from both parties have been going on for months, including several straight all-nighters this past week. The horse trading has already happened. So while we can’t be certain that everything in the current draft bill will remain, I’d be shocked to see changes.

Spending bills offer a chance to do a lot of good and a lot of bad. Congress can fund projects to improve and diversify the economy of Appalachia (which it did, more on that later), and Congress can prevent federal agencies from completing much-needed environmental rules (which it did NOT(!), more on that now).

Appalachian Voices has been working for years to get a strong Stream Protection Rule. The Office of Surface Mining Reclamation and Enforcement (OSMRE) released a draft version of the Stream Protection Rule earlier this year, and while it’s in need of improvements, the rule is still expected to improve safeguards for streams near mountaintop removal mines in Appalachia.

Naturally, the coal industry and its backers in Congress have fought against the rule. They argue that protecting our streams from coal’s toxic waste will cost more than 100,000 jobs. While that’s absurd, it is true that forcing mining companies to stop haphazardly dumping all of their junk into streams, and instead coming up with plans to repair damage, will cost them money. So the industry has been begging its congressional advocates to block the rule from being finalized.

But the bill does not include a rider preventing OSMRE from completing the Stream Protection Rule, despite a large group of representatives pushing for one. We are relieved, to say the least.

On the positive side, there are elements of the POWER+ Plan in the budget. The Department of Labor will receive an additional $19 million in 2016 to aid displaced coal mine workers, which is a bigger problem in Central Appalachia than anywhere else. The Appalachian Regional Commission got a huge boost to its budget, from less than $90 million all the way up to $146 million. The agency has recently been concentrating its funding more towards economic development in the coalfield areas of Appalachia. We expect that trend to continue considering its exciting and unexpected 62 percent boost in funds.

Most surprisingly, the bill includes $90 million for abandoned mine cleanup in Kentucky, West Virginia and Pennsylvania. The money is designed to be a pilot program that can later be applied to other states, and we can’t wait to see it expand to Virginia and Tennessee. The interesting part about the funding is that it’s not just about patching up abandoned mine sites, but also focuses on our region’s transition away from a coal-based economy. The purpose of the money is to create jobs and support projects that will aid business development in areas hit hardest by coal’s decline. We have been working hard to see these sorts of projects happen, and while this short-term funding is definitely not enough, we’re excited about the new direction.

So the federal budget is settled. The government won’t close down. Our federal agencies can continue their work to protect Appalachia from mining waste. And our region just got tens of millions of dollars tossed its way for economic development.

It’s not perfect. But it’s pretty darn good.

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