Inmates Contest Plan for Prison Above Kentucky Mine

WASHINGTON (CN) – A $444 million plan to build a new federal prison in a sensitive region of Appalachia ravaged by coal-mining operations drew a lawsuit Monday from 21 inmates.

A federal complaint filed Monday against the U.S. Bureau of Prisons includes this photograph of the proposed site for USP Letcher. A coal company lopped off the peak of a mountaintop years earlier to mine the area for coal.

Expected to house a population of 1,216, the new U.S. penitentiary would sit in a hamlet of Letcher County, Kentucky, that is otherwise home to fewer than 100 people. The 56-page complaint from attorneys at the Abolitionist Law Center labels this site a public health risk, however, because a mountain peak was literally lopped off the land years earlier so that it could be mined for coal.

Mountain-top removal, or MTR as this type of mining is colloquially known, was used throughout Appalachia, according to the complaint, “not because it was necessary but because it was the cheapest way to access coal in the area.”

“Development of the project would permanently degrade the already vulnerable environment,” the complaint states. “It requires clear-cutting over 120 acres of forest habitat for endangered bat species, excavating and grading an additional 59 acres, destroying three acres of wetlands, building an entirely new wastewater utility in the region, and emitting thousands of pounds of additional greenhouse gas emissions.”

Joined by 20 fellow inmates, lead plaintiff Robert Barroca brought the suit in Washington, D.C. They say the construction plans demand court intervention because the Bureau of Prisons shirked its responsibilities under the National Environmental Protection Act and the Administrative Procedure Act.

“Despite the clear and uncontroverted public health risks that communities in close proximity to MTR sites face, the BOP without a reasonable and legal justification continues to move forward with its plan to build USP Letcher and unnecessarily risk the health of its employees and inmates in its custody and control,” the complaint states.

Though a spokesman for the Bureau of Prisons declined to comment on the lawsuit, citing a policy regarding pending litigation, the agency noted in April that it was moving ahead with plans to purchase land in the hamlet of Roxana for the high-security facility.

Some county residents, haunted by the economic downturn of a failing Appalachian coal industry, are eager to see the prison built. In an editorial for the Herald Ledger, Letcher County Planning Commission Elwood Cornett asked critics “what solutions they have to offer that will create over 300 sustainable, well-paying jobs in a region that is struggling to rebound?”

U.S. Rep. Hal Rogers has touted the jobs that a prison will create as well, but Monday’s complaint says several Department of Justice officials have testified before Congress “that it does not need to build USP Letcher to address overcrowding issues in the Mid-Atlantic Region.”

“Consequently, the only sensible reason that seems to support the BOP’s decision is to satisfy Representative Hal Rogers’ pork barrel politics so that federal tax dollars can be spent on construction and development contracts with his constituents,” the complaint continues.

Kentucky, with a median income of $29,000 and 31 percent of its population living in poverty, lags behind other states when it comes to jobs: the state’s unemployment rate is 4.5 percent compared with the 3.7 percent national average.

Many groups have been critical, however, of the environmental effects that Roxana residents can expect. In a phone interview, Tom Sexton with the Sierra Club of eastern Kentucky called it “a travesty” to build a “half-million dollar monument to human misery” next to the Lilley Cornett Woods.

This map is included in a federal complaint filed on Nov. 26, 2018. The challengers call it undisputed “that there are five active coal mines in proximity to the Roxana site, all of which are within the North Fork River Watershed.” As demonstrated by this graphic, “at least one active coal mine operates just down the road from the Roxana site where BOP wishes to build its prison.”

In nearby Martin County, the 15-year-old Big Sandy federal prison sits on a former mountaintop mine site as well. Sexton noted that Big Sandy’s tilting guard towers and partially sunken buildings have earned it the nickname “Sink-Sink” among locals.

“If people are forced to live on these sites and we don’t know anything about the legacy costs about living there,” Sexton asked, “is it really humane to subject people to that?”

MTR mining may have required fewer workers, but the complaint notes that its impacts to surrounding communities are serious and long-lasting.

“For instance, coal companies fill the surrounding valleys adjacent to the mine with the rocks, minerals and dirt removed from the tops of the mountains,” the complaint states. “These valley fills destroy headwaters and wetlands, and pollute the watershed with runoff of carcinogens and heavy metals such as selenium and manganese. Such pollution can persist for decades after mining ceases. Soil is also impacted from the diesel fuel used in blasting.

“This pollution impacts those living near MTR sites, even if mining has stopped. Several peer review articles have indicated that 1) people living near mountaintop mining have cancer rates of 14.4% compared to 9.4% for people elsewhere in Appalachia; 2) the rate of children born with birth defects was 42% higher in areas near mountaintop removal mining; and 3) the public health costs of pollution from coal operations in Appalachia amount to a staggering $75 billion a year.”

While the National Toxicology Program and the National Institute of Environmental Health Science have both found measurable toxic risks associated with mountaintop removal that adversely affects water and air quality of surrounding areas, comprehensive studies on the human effects of the toxins remain elusive.

Abee Boyles from the National Institute of Environmental Health Sciences said a comprehensive search of the studies published on mountaintop removal sites shows that there aren’t many at all. Animal studies did find evidence of adverse effects in rodents when exposed to mining particles in the area, but the few human studies lack consistency and quality measurements.

In a phone interview, Boyles said there isn’t enough human research to make any firm conclusions on health risks in mountaintop removal sites. “The conclusion is not that there are no adverse effects,” Boyles said. “It’s just that we don’t have a sufficient body of evidence to make a conclusion at all.”

At the Center for Rural Strategies, an organization in support of rural development, Dee Davis said in an interview that, rather than a prison, what Letcher County needs is better access to broadband internet, education, drug rehabilitation and health care reform.

“If prisons were good economic development for rural America,” Davis said, “rural America would be doing better.”

For Letcher’s challengers, socialization is another factor that warrants consideration.

“Should BOP build USP Letcher, inmates housed in the facility will 1) face health risks from the surrounding environment; and 2) receive less visits from attorneys, family and friends due to the isolated nature of the selected site,” the complaint states.

Along with Dustin McDaniel of the Abolitionist Law Center in Pittsburgh, the complaint was filed by New Orleans attorney Emily Posner.

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