Published: June 13, 2008 10:30 am      

Organizations feel TECO coal in violation

Kentuckians for the Commonwealth, the Sierra Club notify coal corporation of their intent to file suit

By Brad Hicks / Staff Writer

Two organizations have notified Corbin-based TECO Coal Corporation of their intent to file suit for what they feel is a breach of law from one of the corporation’s subsidiaries.

In a letter sent to TECO Coal Tuesday, and provided to The Times-Tribune, Kentuckians for the Commonwealth and the Sierra Club accuse the Clintwood Elkhorn Mining Company, located in Pike County, of filling streams in the Fishtrap Lake area of Pike County with excess mining materials before being legally permitted to do so.

According to KFTC member and Fishtrap Lake area resident Raul Urias, Clintwood Elkhorn Mining violated the Clean Water Act when it left excess mining materials in streams prior to having its mining permit approved by the United States Army Corps of Engineers.

Urias and Sierra Club Kentucky Conservation organizer John Cleveland visited the site on May 22. According to the letter, the men saw two sediment ponds and two valley fills, which were proposed in Clintwood Elkhorn’s permit request. Sediment ponds and valley fills are areas where excess natural materials from strip mining are stored.

The men also claim to have seen other evidence the area had been mined and partly reclaimed, all before the permit had actually been approved.

Before the suit can be officially filed in federal court, notice of the suit must be sent to the defendants. Aaron Isherwood, Staff Attorney for the Sierra Club, said notice has been sent to both TECO Coal and Clintwood Elkhorn Mining.

Isherwood said a suit against the companies may be avoided altogether. TECO Coal has a 60-day timeframe in which they can discuss ways to remedy the situation. If the KFTC and Sierra Club are not satisfied with the negotiations or talks are continuing at the end of this period, they will proceed with filing a complaint against the coal company in federal court.

“It is our preference to work something out without resorting to litigation,” Isherwood said.

Representatives with TECO Coal did not return phone calls seeking comment Thursday, but Kentucky Coal Association president Bill Caylor said he doubts there is any validity to the KFTC and Sierra Club’s allegations.

“The allegation is that the mining was completed prior to receiving approval, I find that hard to believe,” he said. “It’s very frustrating.”

Caylor said similar suits against coal companies are nothing new, and he believes these groups are less concerned with the environmental impacts of mining, but rather want to see the end of coal mining in the Appalachian region. He also said a resolution outside of the courtroom is unlikely.

“These groups want to stop coal mining and not improve mining,” he said. “These groups are intent on stopping mining in the state. I don’t think they have concern for the environment. They just want to keep the environment untouched. I would be shocked if they agree to the remedy.”

According to Caylor, miners have been following the same laws and regulations for more than 30 years and the industry abides by these rules.

“This is a heavily regulated industry and has been heavily regulated for years,” he said. “Our intent is, tell us what to do and we’ll do it. This industry works to ensure we comply with the law.”

But the letter of notice sent to TECO Coal Corporation and the Clintwood Elkhorn Mining Company states Clintwood Elkhorn was aware that permit approval was necessary before filling any body of water and that this approval is “by no means guaranteed.”

The letter also states that on May 30, a representative with the Corps of Engineers notified a representative with the Sierra Club that on March 20, Clintwood Elkhorn reported to the Corps it had completed some of the mining work without receiving a permit. This was the first date the KFTC and Sierra Club were aware of unpermitted fills.

“It’s the kind of logic any 3-year-old would understand — act up now and fess up later,” Isherwood said.

Urias is upset with what he feels is a lack of action on the part of state regulatory agencies, in particular the Corps of Engineers, for doing nothing to remedy the issue or enforcing permit laws.

“With the coal boom, I think it’s been kind of lax in Kentucky,” he said. The KFTC and Sierra Club are seeking three areas of relief from the citizen suit they intend to file — they want TECO Coal to be fined for the alleged violation, they want the valley fills removed and the land reconstructed as much as possible, and they want a pending permit application to be denied.

The threat of the suit is the latest action taken by KFTC against mountaintop removal or surface mining practices. In surface mining, the top portion of a mountain is removed to reach coal seams underneath. The excess rock and rubble is pushed into valleys, but mining companies are sanctioned by the Corps of Engineers in how they recontour the landscape and redirect stream flow.

Caylor says mountaintop removal has been sensationalized and that not enough focus is placed on how land is utilized after mining has occurred.

“What people don’t see is the reclamation,” he said. “What they see is the active mining, which looks horrible, I’ll agree with that. What they don’t see is the end result.”

Caylor estimated 6,000 miners harvested 4.5 million tons of coal in eastern Kentucky counties in 2007, and these miners have a “multiplying” effect on the communities and lead to creation of other businesses, such as restaurants, that are not directly tied to mining. Mining’s elimination, he said, would have a dramatic effect on the Tri-County, where companies — such as Whayne Supply, which hosted this month’s chamber of commerce meeting — benefit indirectly from coal mining.

“The coal industry is very important to Corbin,” he said.

But Urias says the issue is a matter of law.

“It just doesn’t seem fair to the citizens of the state or the citizens of this community,” Urias said. “We believe they broke the law and we believe they ought to be punished for it. This is a blatant disregard for the law and the enforcement people out there.”