GOVERNOR ISSUES MORATORIUM ON PERMITS FOR NON-COAL MINING AND A REVIEW OF OIL AND GAS PERMITS NEAR PINE MOUNTAIN1
In a surprise move, Governor Patton issued on September 21, 2001 Executive Order 2001-1194, which:
1. Directs the Natural Resources and Environmental Protection Cabinet and Department for Mines and Minerals to review the reclamation requirements for oil and natural gas production;
2. Directs that the Cabinet and Department review any application for a new permit to drill an oil or gas well in the vicinity of Breaks Interstate Park, Cumberland Gap National Park, Pine Mountain Trail and other areas in the vicinity of Pine Mountain to determine whether such drilling will affect the environment in such a way as to impede the continuation and growth of the eco-tourism industry in the region.
If those agencies make such a finding then the Cabinet and the Department shall delay the issuance of a permit until July 15, 2002 in order to allow the 2002 General Assembly to review the laws relative to the protection of the environment from any adverse effects of exploration for oil and natural gas.
3. Immediately suspended issuance of new permits for non-coal mineral mining and excavation effective until July 15, 2002. This moratorium suspended processing of pending permit applications and precludes Cabinet acceptance of applications for new permits after September 21, 2001.
4. During this suspension, the Cabinet is directed to review current laws and regulations related to reclamation of non-coal mineral mining and excavation activity, as well as study the cumulative negative impact of continuing the current status quo and the cumulative positive environmental impact which may result from the imposition of additional environmental enhancement and reclamation standards and requirements. The Cabinet shall consider among other issues, whether additional requirements related to bonding, fencing, reduction of highwalls,. Access roads and open pits should be imposed with regard to non-coal mineral mining. The study is to be completed by January 1, 2002.
5. Finally, the executive order directs the Transportation Cabinet to study any increase in highway construction material costs that might occur as a result of proposed reclamation requirements and to issue a report concerning any expected cost increases that may be incurred by the road fund and by limestone mining companies as a result of the imposition of additional environmental enhancement reclamation standards and requirements.
ANALYSIS OF THE EXECUTIVE ORDER
Regarding oil and gas drilling, there is no moratorium currently. All that has been directed concerning oil and gas drilling permits is that a review of the reclamation regulations be undertaken, and that for those permits in the vicinity of Pine Mountain, Breaks Interstate Park and Cumberland Gap National Historical Park, that if after review the Department for Mines and Minerals (DMM) and Natural Resources and Environmental Protection Cabinet (NREPC) determine that such drilling would hurt the eco-tourism industry, then no permits shall be issued for such drilling until after July 15, 2002.
The review that has been called for addresses only the reclamation requirements for oil and natural gas production and does not address the often-controversial siting of transmission and gathering lines for oil and gas operations. Any comprehensive review must address all environmental and landowner impacts from production, distribution and transmission.
It is assumed that DMM and NREPC will be accepting public input on areas in which current reclamation standards and permitting procedures are underprotective of the environment. The Council will be developing recommendations, and encourages you to take advantage of opportunities to express your concerns to both agencies. Further information will follow as it becomes available.
Regarding non-coal mining operations (i.e. limestone, sand and gravel and other mineral quarries and underground operations) there IS an immediate moratorium stopping further processing of three pending permits and preventing the Natural Resources and Environmental Protection Cabinet from accepting any applications for new permits, effective until July 15, 2002. The Cabinet will be undertaking a review of existing regulations and making recommendations by January 1, 2002.
KRS 350.300 provides the specific authority for the adoption of non-coal mining regulations by the Cabinet. The legislature directed the cabinet to adopt regulations in order to
* protect the public and adjoining and other landowners from damage to their lands and the structures and other property;
* reduce adverse effects on the economic, residential, recreational or aesthetic value and utility of land and water, and
* Prevent, abate and control water, air and soil pollution resulting from mining, present, past and future.
After the permit challenge by Oris Parker and Nevada Webb against
Olive Hill Investment Corporation, the Cabinet revised its non-coal regulations in 1995, incorporating many provisions comparable to the mining regulations. Due to pressure from the limestone mining industry and their allies the Cabinet s proposed regulations were weakened and several key provisions not included. Among the components contained in the coal mining regulations but missing from or not expressly contained in the noncoal regulations2 are these:
* No process for designating areas as unsuitable for some or all types of non-coal mining operations;
* Inadequate permit application information on the hydrology
and geology of the proposed mining area; including a lack of requirement to produce detailed information concerning surface water chemistry, quality and flow, groundwater quality and quantity, the chemistry and composition of the overburden overlying the sand and gravel that will be mined, the horizon to be mined and any interburden that will be encountered, and the acid or toxic-forming potential of that material;
* A lack of dust control and groundwater protection plans;
* No express protection for surface and groundwater users, including a lack of requirement for baseline groundwater users survey;
* No requirement for replacement of damaged water supplies;
* A lack of clear requirement that sediment control measures be demonstrated to be effective in meeting the requirements of the KPDES program, and that the Cabinet make an independent review of the adequacy of the sediment control measures;
* A lack of requirement for an analysis of the probable hydrologic impacts of the mine and the cumulative hydrologic impact, as well as a description of protective measures to protect surface water quality and groundwater quality and recharge;
* A lack of clear requirement that all drainage from disturbed areas
be passed through a sediment structure designed to meet all
applicable effluent and water quality limitations;
* A lack of requirement for an effective dust control plan,
* A spoil handling plan containing spoil calculations, spoil handling, sediment, dust and erosion control, and permanent disposal of the spoil, to allow a reasoned determination that the manner of spoil handling, storage and redistribution is consistent with law.
* A lack of sufficient and complete information concerning ownership of minerals to support permit issuance;
* A lack of sufficient measures to prevent public access (particularly by children) to the sand and gravel mining operation.
* A blasting plan and requirement for pre-blast surveys to document the status of homes and other structures in order to assist landowners in seeking damages in the event of blasting impacts;
* A lack of clear requirement to bond the area at an amount
sufficient to assure reclamation;
* A lack of requirement to eliminate highwalls and to restore the
mined area to a higher or better land use or the premining land use;
Additionally, areas of significant problems and conflict between sand and gravel and limestone operations and their neighbors that contain no coal regulation counterparts but must be addressed are:
* noise and light pollution;
* hours of operation limitations;
* haulage and access to and from the proposed mine site on public and private roads. Standards are needed to limit such operations where roads with appropriate weight limits are not available and where such access threatens public health or safety. A demonstration should be required that the mined material will be safely transported, and the environmental and public safety impacts of such vehicular traffic must be assessed.
Between now and January 1, 2002 the Natural Resources and Environmental Protection Cabinet will be developing a report on the effects of mining or non-coal minerals and on recommended improvements.
What Can You Do?
Comments on the need for reform of these regulations and recommendations for reform should be sent to Secretary James Bickford, Natural Resources and Environmental Protection Cabinet, 5th Floor Capital Plaza Tower, Frankfort Kentucky 40601, fax 502-564-3354, email: James.Bickford@mail.state.ky.us
Additionally, any experiences that you have had with non-coal operations in your community should be documented and sent to Secretary Bickford, with a request that they be included as appendices to the report to the legislature.
Please send a copy of any documents or comments to the Kentucky Resources Council, Inc. at fitzKRC@aol.com or P.O. Box 1070, Frankfort Kentucky 40602.
1 This analysis was developed by Tom FitzGerald, Director, Kentucky Resources Council, Inc.
2 The Council believes that there is general language in the statute and Cabinet s regulations that require these additional permitting and performance obligations but the Cabinet has refused to exercise their power to do so.