SMCRA anniversary ‘not a time of celebration’

August 3, 2012 by Ken Ward Jr.

So yesterday was the 35th anniversary of the day then-President Jimmy Carter signed into law the Surface Mining Control and Reclamation Act. It looks like Interior Secretary Ken Salazar and OSM Director Joe Pizarchik marked the event with some sort of ceremony.

Not mentioned on the OSM website’s promotion of the event, though, is this letter in which Kentucky Resources Council Director Tom FitzGerald turns down on behalf of that group the agency’s award called ECHO — “an acronym of the principles underlying OSM’s mission; Environment, Community, Humanity, and Ownership”. Here’s the text of the letter:

I’m writing to respectfully decline acceptance of the first ECHO Award. While I appreciate the recognition of the coal-related work of the Kentucky Resources Council, the 35th Anniversary of the enactment of the Surface Mining Control and Reclamation Act is not a time of celebration of achievement, but rather, a somber reminder that after 35 years of implementation, and fifty-five years after grassroots efforts to see enacted a national program for controlling surface coal mining operations, the promises made to the people of the coalfields remain largely unkept.

The enactment of SMCRA represented the culmination of heroic efforts by coalfield citizens, grassroots organizations and national environmental groups to bring to heel the abusive mining practices of the coal industry, and the bipartisan efforts of moderate legislators. The law promised to curb abusive mining practices with the goal of protecting landowners, the public, and the environment from the adverse effects of surface coal mining operations.

In substantial measure, these promises have been betrayed, and across the nation’s coalfields, communities have borne the burden of the breach of these commitments. The citizens of the coalfields of the eastern and western United States have waited through successive administrations since 1981 to see the promises that Congress made in 1977 fulfilled. In a number of key areas, the failure of the Office of Surface Mining Reclamation and Enforcement to assure full and fair implementation of the law has betrayed the promise Congress made to those who live in coalfield communities– that they would be protected from harm, that mining would be a temporary use of land, that reclamation would contemporaneously follow excavation of coal, and that the amount of time between disturbance of the earth and completion of reclamation would be minimized. Though Congress intended that the choice of technology would follow, rather than dictate, environmental protection, the coal industry has over the decades systematically

replaced the workforce with larger machines more indiscriminate to the terrain, and key concepts in the law have been weakened by regulatory interpretations in order to accommodate this shift.

The tools needed to restore this agency to its potential, to minimize the heavy footprint of coal on the land, water, people and communities of the coal-producing regions, and to fulfill Congress’ promise to the citizens of the coalfields, awaited an Administration that it was hoped would help a troubled agency recover a potential that existed for a brief period of time between 1978 and 1981. It appears that the waiting has been in vain, since the current Administration has had fully three years and more to undo the damage done to this law and regulatory program by 30 years of management that ranged from hostile to indifferent to Congressional intent, yet has done precious little of substance.

OSMRE remains compromised by inadequate funding to support its mandate, and a DOI proposed merger of functions that will further weaken the capacity and dilute the mission of an agency intended by Congress to be independent.

Four OSM Directors (L-R): Walter Heine, OSM’s first Director 35 years ago (1978-1981), Bob Gentile (1988-1989), Jeff Jarrett (2002-2006), and current OSM Director Joe Pizarchik.

Despite the earnest efforts by line workers for the agency over these decades, (and I am second to none in my respect for many of the field office workers and inspectors) OSMRE has failed to take effective action to address some of the most glaring deficiencies in the state implementation of the Act’s requirements. Where Congress intended that reclamation occur contemporaneously with surface disturbance and coal extraction, open-ended grants of “temporary cessation” or “inactive status” have left areas disturbed and unreclaimed for years, and in some cases, decades. Where Congress intended variances from the general restoration of original contour requirement to allow alternative post mining land uses be strictly controlled, “mountaintop removal” operations in steep sloped areas have been allowed to be misclassified by regulators as “area mines”; and by ignoring the requirement that mined land be restored to the original elevation and landform, coal operators have been allowed to dump mine waste into valleys rather than using the spoil to restore the premining elevation and landform.

Rather than preventing the dumping of coal combustion wastes into disturbed mining areas, where metals and other pollutants of concern can readily migrate through fractured strata into area groundwater, OSMRE has allowed the practice of dumping of coal combustion wastes at minesites, and proposes to encourage such practices through new regulations. States have been allowed to issue permits without proper consideration and mitigation of impacts on the hydrologic balance, and the quality of headwater streams has suffered. Downstream communities have been plagued by flash flooding exacerbated by failures to manage and promptly reclaim disturbed areas.

The SMCRA would not have become law without the courageous, outspoken, and unflinching advocacy of thousands of valiant coalfield citizens and landowners who dared to speak “truth to power” during the two decades-long struggle leading to enactment of the law. The passage of SMCRA held out the hope that coalfield citizens would no longer have to sacrifice the fundamental right to a safe and healthy environment in order to feed a nation’s desire for “cheap” energy. If the current Administration wishes, on this 35th anniversary, to recognize and honor individuals, then let us honor the sacrifices of people like Joe Begley, Ollie Combs, Jane Johnson, Dan Gibson, Harry Caudill, Everett Akers, Eula Hall, and those others who risked all to protect their families and neighbors, their homeplaces and their children’s futures, by adequately funding and demanding compliance with the requirements of the 1977 law in each state and each tribal nation.

3 Responses to “SMCRA anniversary ‘not a time of celebration’”

  1. Bo Webb says:

    Hats off and a big thank you to Kentucky Resources Council Director Tom FitzGerald. A memorial would have been more fitting than a ceremony.

  2. Cindy Rank says:

    Amen.

    And thank you Tom.

  3. I was there in the Rose Garden August 3, 1977, with my dear friend, Wyona Coleman (now deceased). Even though SMCRA was weaker than many of us hoped for, it was–we thought–the validation of years of frustration and hard work, which brought national attention to the severe environmental and community impacts from the surface mining of coal. Some cried, some cheered. We looked to the new OSMRE to take a strong enforcement stance. The first director, Walter Heine, was head of the mining program in Pennsylvania, which at that time was the lead state in regulation of the industry–IT WAS’NT very good, but it was better than most other states. In Southwestern PA, “strip mining” was occurring at a rapid pace, in the wrong places, and often with utter disregard for compliance. Concerned and affected citizens had to be ever vigilant and in the faces of regulators and legislators to get the state law enforced. In the ensuing years, mining states had to beef up their programs (to meet the new federal “level playing field” standards), thus gaining primacy to regulate at the state level. The coal industry fought every step of the way and continues to do so even today. Mr. Pizarchik, previously the Director of the Bureau of Mining and Reclamation in Pennsylvania’s Department of Environmental Protection (DEP), was notably industry-friendly, particularly with regard to the “beneficial” uses of coal wastes. Mr. Heine, an engineer and mining consultant, has served on DEP’s Citizens Advisory Council since 1981 and always leaned toward industry perspectives (I served on that Council from 1976-2001). Within the past two weeks, the coal industry in Pennsylvania is rattling its sabers and has formed the PA Coal Alliance, joining the PA Coal Association and a pro-coal group of citizens/miners headed by Executive Director John Pippy, a former PA State Representative. The Alliance’s thrust appears to coincide with those politicians and mining proponents who scream that President Obama (and his EPA) is waging war on coal. Congratulations to Mr. FitzGerald of the Kentucky Resources Council who gracefully declined—and explained why–to accept an ECHO award from OSMRE. OSMRE has been increasingly emasculated by funding limitations and choices of leadership. Under DOI’s planned merger of OSMRE with BLM, the swallowed up agency will be left weaker than ever. It doesn’t seem to me that the President’s Interior Secretary Salazar is part of the war on coal. King Coal has become a regular whiner since he can’t exert total control over the lives and fortunes of workers and affected citizens. Right now he’s up against competition from Fracking Freddie of shale gas fame and a host of forces that want to reduce coal’s contribution to air pollution, public health, and climate change. The “clean coal” myth remains just that.

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