Here are two articles about the recent adoption of “non-mandatory” mandatory changes to Kentucky surface mine regulations.

We’ll believe this changes surface mining practices when we see it!

http://www.courier-journal.com/article/20100107/GREEN/1070356/1008/NEWS01/Kentucky+adopts+tougher+surface-mining+guidelines
Kentucky has issued tougher guidelines for surface coal mines that officials say will protect streams and lead to faster and better reclamation of hillsides and mountains.
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The guidelines, hammered out over the past year by federal and state regulatory officials, environmentalists and coal-industry representatives, call on coal operators to place more “spoil” material disrupted by mining — such as dirt and rock — back on the mine sites, instead of dumping it into valleys and stream beds. They are already in effect.

Though the guidelines aren’t mandatory, mine operators are expected to follow them because the state and federal agencies that issue permits for surface mining are part of the agreement and will base their permit decisions on it, said Linda Potter a spokeswoman for the state Department of Natural Resources.

….

http://www.kentucky.com/latest_news/story/1086985.html

The state is encouraging coal companies to use the new guidelines, but it’s not mandatory. However, federal agencies that have authority over some aspects of permit applications are requiring the use of the new practices, so as a practical matter, coal companies will use them, FitzGerald said.

And here is the response from Kentuckians for the Commonwealth:

http://www.kftc.org/blog/archive/2010/01/08/fill-minimization-will-it-happen

There is an important new protocol now in place for lessening the amount of toxic mining wastes dumped into streams. If enforced, it could help reduce significantly the destruction of our waterways. That is a good thing,

Titled the “fill placement optimization process” the document establishes a protocol (it reads largely like an engineering paper) for determining the amount of mining waste and where it should end up — first on the site being mined, then on adjacent abandoned mines and possibly in upper valley elevations (above stream level). It potentially diverts mining wastes from streams but does not ban dumping into streams. Basically, it establishes a possible protocol for enforcing existing law.

Download the Fill Placement Minimization Process document.

Download the state’s Reclamation Advisory Memorandum.

That’s the rub: state officials could (and should!) have been enforcing these laws all along had they chosen to do so. And the industry could have been obeying these laws. Instead, state officials have routinely granted waivers of the stream buffer zone (165 waivers out of a total of 251 new permits issued in 2005 and 2006) and reclamation laws. There is no evidence that they will not continue to do so, and this “new” policy — which the state is “encouraging” coal companies to follow — means nothing if the state and federal agencies are not going to require it. There are still plenty of loopholes.

That’s why the Stream Saver Bill and the Clean Water Protection Act are still needed. Coal companies should be prevented by law from filling our streams with their toxic wastes, not just “encouraged” to do so.

And given the Science journal study cited in our January 7 blog post, an outright prohibition of mountaintop removal and valley fills is the only real guarantee that our streams (and land and forests and people) will be protected and preserved.

We applaud the efforts of Tom FitzGerald and the Kentucky Resources Council to move the enforcement agencies a step closer to real enforcement of the law. Now it is up to enforcement officials to prove there will be action behind these words. Kentucky Resources Council to move the enforcement agencies a step closer to real enforcement of the law. Now it is up to enforcement officials to prove there will be action behind these words.

Mountaintop removal coal mine in Floyd or Magoffin County Kentucky by Kentuckians For The Commonwealth, on Flickr