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![Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428](http://www.kyrc.org/krc_map.gif)
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| --The National Citizen's Coal Law Project-- |
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HEADLINES-
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Oral Arguments Heard In Remining / Western Mine Case *
OSM Urged To Reject Haul Road Exemption From Coal Mining Laws *
KRC Requests That Governor Withdraw Mining Road Exemption *
KRC DISCUSSES ABANDONED MINE LAND PROGRAM REAUTHORIZATION *
KRC comments on Thoroughbred Coal Ash Landfill *
07/28/03: KRC Requests OSM To Set Aside State Law Provisions Stripping Protections From New Pine Mountain Trail State Park *
Quecreek Mine Report Calls For Mine Mapping Reforms *
MSHA INTERNAL INVESTIGATION SHORT ON ACTION *
Chao-Norton Letter *
Ask the Governor to Veto HB 524 *
Citizens Coal Council and KRC Challenge EPA Rule Relaxing Sediment Controls On Mining *
KFTC/ KRC CITIZEN COMPLAINT SPURS FEDERAL ENFORCEMENT ACTION *
REDEFINITION OF "FILL" MATERIAL *
Re: Proposed Revisions to the Clean Water Act Regulatory Definitions of "Fill Material" and "Discharge of Fill Material" *
PRELIMINARY ANALYSIS OF THE MARTIN COUNTY COAL WASTE SPILL *
KRC Inquires About Frontier's Mining Bond Coverage *
The Coal Industry: Talking The High Road, Taking The Low Road *
Remining- Part 1 *
Remining -Part 2 *
Re: Reopened Comment Period for Ky. Regulatory Program *
KRC serves notice opposing coal slurry pond near Kentucky River *
Coal Law Pjct Annual Report *
Oral argument was heard before a panel of the 6th Circuit Court of Appeals in Cincinnati in the case of Citizens Coal Council & Kentucky Resources Council v. EPA, in which we have challenged a 2002 EPA rulemaking that created two new categories of coal mining water pollution limits - one for remining operations and the other for western coal mines. CCC and KRC are seeking to have the rules, which eliminate enforceable pollution limits in favor of unenforceable and unpredictable "best management practices", vacated and remanded to the agency. Oral argument was heard before a panel of the 6th Circuit Court of Appeals in Cincinnati in the case of Citizens Coal Council & Kentucky Resources Council v. EPA, in which we have challenged a 2002 EPA rulemaking that created two new categories of coal mining water pollution limits - one for remining operations and the other for western coal mines. CCC and KRC are seeking to have the rules, which eliminate enforceable pollution limits in favor of unenforceable and unpredictable "best management practices", vacated and remanded to the agency. On November 20, 2003 the federal Office of Surface Mining opened a public comment period on Kentucky's proposal to redefine "affected areas" under the state coal mining program to exempt all public roads used for coal haulage from possible regulation. KRC, on behalf of its membership and KRC clients in the communities of Ary, Partridge and Cumberland, has filed comments opposing the state amendment and demanding that OSM act immediately to set aside the state regulation due to its inconsistency with the federal mining law. In 1991, OSM rejected Utah's effort to categorically exempt public roads from mine regulation, and Kentucky's approach is likewise unlawful. To comment on the proposed Kentucky amendment, write OSM's Lexington Field Office Director William Kovacic at bkovacic@OSMRE.GOV. To read KRC's comments, click here. Council Director Tom FitzGerald has today asked Governor Patton to withdraw the proposed Natural Resources Cabinet regulation exempting from mining controls all public roads used for coal haulage. In the letter, KRC underscored the impact that this extreme regulatory proposal would have on the Patton Administration's environmental record. "Beyond the legal infirmity of the regulatory proposal . . . this 11th-hour regulatory change is a slap in the face of residents of coalfield communities who look to the Cabinet and to you to protect their health, safety and property. Written by coal interests, the regulation threatens to cast a cloud over your environmental legacy - to undercut those positive initiatives that you undertook to protect the quality of life of coalfield residents from unnecessary mining impacts." To read the KRC Letter to the Governor, click here. To fax a letter, send it to 502-564-2735. To e-mail the Governor, send it to Gov@mail.state.ky.us On September 30, 2003, KRC Director Tom FitzGerald participated in a panel discussion on the topic of reauthorization of the Abandoned Mine Land (AML) program, before the annual conference of National Association of Abandoned Mine Land Programs in Louisville, Kentucky. The AML program is a component of the 1977 federal surface mining law through which a fee is assessed on current coal production to provide for reclamation of abandoned mines. Absent Congressional action reauthorizing the AML program within the next year, the collection of fees from coal production for AML site cleanup will end September 30, 2004. To read KRC's remarks to the National Association of Abandoned Mine Land Programs, click here. For more information on the proposed reforms to the AML program proposed by the Citizens Coal Council as part of their "Campaign for Jobs and Justice in the Coalfields", visit here. On September 23, 2003, KRC submitted comments to the Division of Waste Management on the draft coal combustion ash landfill permit for Thoroughbred Generating Company's proposed coal-fired power plant in Muhlenberg County. KRC expressed concerns regarding the surface water monitoring plan, site compaction and the characterization of the coal waste, while supporting the use of a synthetic liner to control leachate generated by the ash landfill. To read KRC's comments, click here. When Congress passed the 1977 surface mining control law, it included protections for public parks, including a 300-foot buffer zone from mining, and the ability to declare areas outside the park off-limits to mining in order to protect the scenic values within the park. When Kentucky agreed to manage the federal law through a counterpart state program, it agreed to provide that protection to our public parks. But when Governor Patton proposed the Pine Mountain Trail State Park in 2002, the coal industry succeeded in creating special exemptions from those protections -- eliminating the buffer zone protections around the new trail and declaring that as a matter of law the scenic vistas ended at the trail edge, in order to prevent any interference with mining outside the trail boundary. OSM is supposed to oversee state programs to assure that their law changes don't undercut the federal law protections, yet initially the agency decided that a state program amendment wasn't necessary. After KRC objected, OSM reversed its decision and opened a rulemaking, asking whether the state law was a change in Kentucky's commitments, and if so, whether the state law was consistent with the federal requirements. KRC has responded to the rulemaking, demanding that OSM set aside those parts of the Pine Mountain Trail legislation that seek to weaken protections that are afforded all other public parks in the state. To read those comments, click on the headline above. 07/29/03: On July 25, the Pennsylvania Department for Environmental Protection released the final accident investigation report on the near-catastrophe and successful rescue at the Quecreek Mine, where inaccurate mine maps resulted in a breakthrough into abandoned workings, inundating the active mine area and placing 9 miners at extreme risk for over 78 hours. As has been the case with many of the Kentucky underground mine breakthroughs described in KRC's July 4, 2003 letter to Secretaries Norton and Chao calling for reforms in mapping and identifying abandoned underground mine workings, the Quecreek No. 1 Mine was not required to drill in advance of the active mine workings at the time of the inadvertent breakthrough because, based on faulty maps, the old works were assumed to be a safe distance away. To read the full Quecreek Mine report and 26 recommendations for reform, go to www.state.pa.us and enter keyword "DEP Quecreek." To read the text of KRC's July 4 letter to Secretaries Norton and Chao. The "Internal Review of MSHA's Actions At the Big Branch Refuse Impoundment, Martin County Coal Corporation, Inez, Martin County, Kentucky," released on January 21, 2003, reviewed MSHA's actions concerning the coal waste impoundment release of October, 2000. The report offers some insight into the systemic problems with the manner in which the agency assesses and communicates the potential for impoundment pool failure from disposal of coal wastes in slurry impoundments near underground workings. Yet the report fell far short of committing MSHA to undertake actions needed to fully address the agency's failures both before and after the 2001 release. Click on the headline to read the rest of the KRC comments. July 4, 2003 Today, KRC wrote to Secretary of Labor Elaine Chao and Secretary of the Interior Gale Norton, recommending a series of reforms to reduce the risks of inadvertent breakthroughs into abandoned underground mine works by active underground mining operations and coal waste impoundments. Click on the headline to read the rest of the KRC letter. House Bill 524, passed by the House on March 11, contains the oil and gas industry's bill preempting local governments from acting to protect the public from abusive oil and gas industry practices. The bill is on the Governor's desk. PLEASE CONTACT THE GOVERNOR BY EMAIL, Click Here OR BY FAX 502-564-2517 AND ASK THAT HE VETO HOUSE BILL 524. Click on the headline for more. On Friday, November 15, KRC filed the opening brief in the case of Citizens Coal Council & Kentucky Resources Council v. EPA. CCC and KRC are challenging the final EPA rule relaxing sediment controls for western coal mines, and the EPA rules implementing the 1987 "Rahall" amendment. The EPA rules undercut effective regulation of sediment loading from coal mines, replacing enforceable permit limits with "best management practices" that the agency itself admits are unenforceable and unpredictable. To read the brief, click on the headline. At 11 a.m. this morning, in response to a citizen complaint filed on May 23 by the Harlan County Chapter of the Kentuckians for the Commonwealth and the Kentucky Resources Council, the federal Office of Surface Mining inspected the Harlan-Cumberland Coal Company Turkeypen Impoundment and issued a federal Notice of Violation requiring that by 1 p.m. tomorrow the company cease pumping water and slurry into the coal waste impoundment. The Clean Water Act provides that except where it is in compliance with the Clean Water Act, "the discharge of any pollutant by any person shall be unlawful."A "discharge of a pollutant" includes any addition of any pollutant to navigable waters "from any point source." "Pollutant" includes, among other things, dredged spoil, solid waste, garbage, sewage,rock, sand, and industrial waste.Section 402 of the Clean Water Act authorizes EPA or delegated states to issue pollutant discharge permits for discharges into navigable waters, provided that they meet applicable effluent and waterquality standards. Section 402 recognizes an exception from this authority in Section 404 of the Act.Section 404 authorizes the Corps of Engineers to issue permits "for the discharge of dredged or fill material into the navigable waters "at specified disposal sites." The Secretary of the Army isauthorized to deny or restrict the use of areas for disposal if it is determined that the discharge of such materials into such area "will have an unacceptable adverse effect on municipal water supplies,shellfish beds and fishery areas[,] wildlife, or recreational areas."Section 404 contains several exemptions from the restrictions on placing dredged or fill material without a permit, none of which affect or authorize placement of mine-related overburden or mine wastematerial in waters of the United States.The issue of concern to coalfield residents that is presented by these two sections of the Clean Water Act and their interaction is whether the discharge of mine overburden (so-called "excess spoil")and coal mine-related wastes, into navigable waters through the dumping of these materials into "head-of-hollow" or "valley fills" is an activity authorized under the Corps of Engineers Section 404program, in which case a permit to conduct that activity can be approved provided that the regulations for such discharge (called the Section 404(b)(1) guidelines) are met, or whether the activity is notauthorized by Section 404, in which case the discharge would fall under EPA's authority over discharges under Section 402 of the Act and would be prohibited, since the placement of such materialwould necessarily violate water quality standards' prohibition against degradation of the water quality. In summary, the Council opposes the adoption of revised definitions for "fill material" and "discharge of fill material" and believes:(1) that the EPA and U.S. Army Corps of Engineers (USACE or Corps) must defer further action on this rulemaking pending development of an Environmental Impact Statement(EIS) analyzing the proposed action and all reasonable alternatives to the action, and the environmental effects of each alternative;(2) that the proposed rule is irrational, since it makes an arbitrary distinction between coal mining overburden and coal mine wastes, which it would allow to be dumped instreams, and placer, titanium, phosphate, sand and gravel mining wastes, which would not be allowed to be dumped into streams;(3) that the proposal, which would legalize the burial of streams under tons of coal mining overburden and coal mine processing wastes is contrary to the goals of the Clean WaterAct; and(4) that allowing streams to be converted into sites for waste disposal and allowing placement of spoil material for construction of sediment ponds instream is an improper privateappropriation of public waters. This information is derived from a review of the files of the state Department for Surface Mining Reclamation and Enforcement, and is therefore an incomplete record of the history surrounding the structure. This will be revised as other information requested of the US Office of Surface Mining, US Army Corps of Engineers, MSHA and the state Division of Water become available. I am writing to inquire as to the status of any pending administrative or enforcement actions relating to the performance bonds for existing Addington Enterprises/AEI mining permits, as well as any others in the Commonwealth for which Frontier (or its subsidiaries) is the surety on the performance bonds.
It is my understanding that those companies who hold mining permits for which Frontier is surety, have been given notice of the obligation to replace those bonds. The Bush Energy Plan was, given the ties of the President and Vice President to the energy industries, predictably lop-sided in emphasis on fossil fuel production rather than efficiency in energy use and environmental protection. The plan brushed aside evidence that investment in efficiency helps the economy grow with less pollution and that further investment could greatly reduce energy demand and lower pollution impacts and costs while save consumers money, in favor of an energy plan which promised to lower environmental protection and increase supply-side subsidies to the industries whose contributions propelled the Administration into office. These comments are submitted in the hope that, prior to finalization of the rule implementing the Rahall Amendment to the Clean Water Act, your agency will correct the misdirection of the proposed rule, which is now proposed to be worsened under the reopened proposal. (The prior comments and correspondence of the Project and the Council are herein incorporated by reference as if fully set out below.) The Council has reviewed the proposed rule with respect to the proposed effluent guidelines for coal remining operations, and requests that the rule be withdrawn pending compliance with various laws, including the Surface Mining Control and Reclamation Act of 1977, the Clean Water Act, the Federal Advisory Commission Act, and the National Environmental Policy Act These comments are submitted regarding the reopened comment period on the proposed revision to the Kentucky permanent regulatory program for surface coal mining operations.
The reopened comment period solicits comments on a change to the previously submitted program amendment revising 405 KAR 18:210-Subsidence Control. |
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