Mountains near Cumberland in Harlan County bear the scars of mining after the coal was stripped, August 24, 2019. (Photo by Scott Olson/Getty Images)
Kentucky’s Republican attorney general citing concerns from Democratic Gov. Andy Beshear’s administration is trying to block a revamped federal complaint system that citizens have used for decades to report suspected dangers and hazards from the strip mining of coal.
The Surface Mining Control and Reclamation Act of 1977, signed into law by President Jimmy Carter, delegated authority to two dozen states including Kentucky to regulate the environmental impacts of mining and mine reclamation.
The law gave citizens the right to report suspected violations not addressed by state authorities directly to the federal Office of Surface Mining and Reclamation Enforcement (OSMRE) to investigate.
Federal regulators can then issue a notice with a 10-day deadline to state regulators to either fix the issue or explain why it hasn’t been fixed. After the 10-day deadline, federal regulators can order an inspection of the mine site if they’re not satisfied with the state’s response.
But a Trump administration rule change in 2020 required federal regulators to gather additional evidence from state agencies before issuing a 10-day notice, something environmental advocates say has bogged down the process and significantly reduced the effectiveness of the oversight mechanism.
The Biden administration is now seeking to largely restore the original system that allows OSMRE to issue notices without having to gather state input beforehand, a requirement that OSMRE said creates “undue delays.” Under the Biden rule, state feedback would be incorporated into the federal investigation after the 10-day notice has been issued.
Kentucky Attorney General Russell Coleman and other Republican attorneys general have sued to block the revamped system, and a federal judge recently allowed advocacy groups that have utilized the complaint system to intervene in the case.
The Republican attorneys general cited in part concerns from Kentucky Department for Natural Resources Commissioner Gordon Slone, who wrote in a June 2023 public comment that records from federal regulators in determining whether to issue a 10-day notice were “insufficient” compared to records from state authorities.
“[The department] believes that the OSMRE’s goal should be to ensure that [10-day notices] are only issued when available information — including information that the State regulator can easily provide upon request — supports the existence of a violation,” Slone wrote.
Slone also said his department received an average of nearly nine 10-day notices each year between 2010 and 2019. Under the Trump administration system, the number of annually issued notices “plummeted” to 0.6 notices a year.
Slone argued increased collaboration and communication between federal and state regulators led to fewer notices issued, compared to the increased “administrative burden” he said states would face by having to deal with more 10-day notices under the Biden administration’s action.
Willie Dodson, the coal impacts program coordinator for Appalachian Voices, one of the advocacy groups intervening in the case, isn’t convinced by those arguments.
Dodson said he’s used the complaint system in recent years to get Kentucky regulators to address pollution by an Eastern Kentucky surface mine of a waterway that’s home to endangered or threatened aquatic life.
He said federal regulators can choose not to issue a notice in response to a complaint. He asserted arguments opposing the Biden administration’s revamped system are “just a thinly veiled way of saying that the feds should let us do whatever we want.”
“It doesn’t in any way take away the fact that Kentucky is the primary organization issuing permits, issuing enforcement actions,” Dodson said. “If Kentucky fails to issue enforcement actions that they should be issuing and the community member catches that, the community member can bring the information to OSMRE who then has an oversight role.”
Tom FitzGerald, counsel for the environmental legal group Kentucky Resources Council that’s representing the intervening advocacy groups in the court case, pointed to another example decades ago for why a robust complaint system is needed.
In the 1980s, FitzGerald represented a retired Perry County educator who, the way he described it, worried about a hazardous sediment pond built above her home.
Before Muriel Smith finalized a divorce in 1981 and took sole ownership of her property, her husband waived the law’s 300-foot buffer requirement and gave written permission to a coal company to conduct “surface mining operations” nearby. But she personally didn’t consent to it, and state coal mine regulators gave the coal company a permit for the pond. The company built it the following year less than a football field from her home.
When she appealed to Kentucky regulators saying state law had been violated because the pond was built too near to her home and without her permission as the now-sole homeowner, they dismissed it as a “property rights” dispute. So, she turned to the federal complaint system established through SMCRA and appealed to OSMRE.
FitzGerald wrote in a Sept. 13 filing that without the federal action in response to the complaint system, Smith would have endured years of “living directly below a high-hazard embankment sediment structure illegally located immediately uphill from her home, with the attendant risk of wash out or catastrophic failure of the structure, and the impairment of value and use of her land.”
The Kentucky Court of Appeals ruled in 1986 that the state’s “hands off” approach toward Smith’s request for help was “seriously flawed” and ruled in her favor.