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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Public hearing on request to terminate protections  Posted: August 29, 2002
At 6:30 this evening, a public hearing will be held on the request by Clintwood Elkhorn Mining Company to terminate protections granted by the state Natural Resources Cabinet to the residents of Lick Creek, Kentucky against underground mining of a coal seam whose removal would damage the local water resource.

In 2000, Roy Mullins, a resident of Lick Creek, drafted and filed a petition to declare their area unsuitable for mining because of the damage mining would cause their groundwater resource. The Cabinet on August 25, 2000 declared their area unsuitable for underground mining of the Hagy coal seam because of the damage it would do to the productivity of the local aquifer.

Since then, Clintwood Elkhorn claims, a water line is available and some residents use it. On that basis it seeks to overturn the protections and mine the Hagy coal seam, despite the Cabinet's finding that underground mining of that seam will damage the water resource.

Below are Mr. Mullins and KRC's comments opposing the termination of protections for the area. We believe that the existence of an imported source of piped water does not give the company the right to damage the long-term capability of the aquifer to meet water needs in the future.

National Citizens Coal Law Project

A Project of the Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail fitzKRC@aol.com

August 29, 2002

Richard J. Wahrer, Environmental Scientist

Division of Permits, Department for Surface

Mining Reclamation and Enforcement

#2 Hudson Hollow

Frankfort, Kentucky 40601

Re: Comments In Opposition To LUM TD/00-1

Dear Mr. Wahrer:

On behalf of the Kentucky Resources Council, Inc. and my client Roy Mullins, I am writing in opposition to the Petition of Clintwood Elkhorn Company to terminate the unsuitability status of a petition area located in Pike County, consisting of 212 acres around the intersection of US Highway 460 and State Route 1373 near the community of Lick Creek. For the reasons stated below, Mr. Mullins and the Kentucky Resources Council, Inc. believe that the Termination Petitioner Clintwood Elkhorn Mining Company has failed to satisfy the regulatory and statutory criteria for terminating an unsuitability declaration with respect to the petitioned area, and that termination of the unsuitability declaration for the subject area would be contrary to state and federal law and injurious to the rights of Mr. Mullins, the other surface landowners within the petitioned area, and to a renewable resource entitled to continued protection under state and federal mining law because of the productive capability of the resource.

To the extent that it has not been previously granted by virtue of his role in the initial petition to designate the subject area as unsuitable for mining, Mr. Mullins also requests that he be accorded the status of Intervenor in opposition to this request for Termination of LUM 00-1. As the Petitioner in the underlying LUM Petition 00-1 the termination of which is sought in this petition, his entitlement to intervention as a matter of right or discretion is apparent and beyond reasonable dispute.

INTRODUCTION & BACKGROUND

The termination petition filed by Clintwood Elkhorn Mining Company on May 2, 2002, and assigned the identifying number of LUM TD/00-1, seeks to terminate the prior designation of a 212-acre area as unsuitable for certain types of mining. Specifically, the Petitioner Clintwood Elkhorn Mining Company (Clintwood) claims to be owner or lessee of coal reserves in the Hagy coal seam within the area previously accorded the status of unsuitable for mining under Secretary's Order 00-1 and seeks termination of that petition.

The initial petition to designate the subject area as unsuitable for mining was filed by Roy Mullins on March 10, 2000, seeking to have:

an area of land located in the Lick Creek community of Pike

County near the intersection of State Route 1373 and Highway

460 designated as unsuitable for all types of coal mining

operations, pursuant to KRS 350.610 and 405 KAR 24:020

and 24:030.

The petitioned area was described as an area 1,500 feet in radius from the proposed face-up and box cut of the Clintwood Elkhorn mining operation as described in Permit Application 898-4073, under which application Clintwood proposed an underground mine in the Hagy coal seam of 1866.75 acres with additional surface disturbance of 27.5 acres associated with a box cut, spoil storage area, and mine management area.

In the process of collecting and analyzing information to determine the merit of the allegations contained in that petition, the Cabinet collected extensive water supply ownership, construction, usage and water quality information, and conducted water level, water chemistry, and down-hole video and aquifer yield tests. All of the analytical data and assessment information contained in the Cabinets files that were developed and used in analyzing LUM Petition 00-1 are incorporated herein by reference as evidence of the validity of the Secretary's conclusions with respect to LUM 00-1. The factual findings and conclusions are incorporated herein by reference as well.

Among the findings of the Cabinet Secretary in support of LUM 00-1 that are pertinent to this termination petition are these:

* Prior mining activities have impacted the quality of some water

supplies in the area; (Finding 14, LUM 00-1 Secretary's Order)

* The Hagy coal is moderately high in sulfur . . . and mining this

coal bed by the underground method has the potential to produce

acid drainage . . . . (Finding 15, Id.)

* A number of groundwater supplies are recharged by the Hagy and

Hagy Rider coal seams, and are vulnerable to disturbances in these coals.

Because of the concerns with dewatering of the Hagy seam associated with mining on groundwater supplies recharged by those seams, the Secretary concluded that:

1. It is very likely that construction of a box cut in the petition area

for access to the Hagy coal reserves would result in substantial loss

or reduction of the long-range availability of water supplies to those

residences most proximal to the disturbance. Some groundwater

users in the vicinity of the box cut area will experience a loss of

water table in groundwater wells during the life of a mining operation

due to the construction and necessity to dewater the box cut and associated underground works.

2. Due to the geochemical nature of the Hagy coal and overlying

roof strata, underground mining operations are likely to produce

acidic mine water, and as a result, affect the quality of water in

those wells which are completed through the Hagy coal seams.

3. If access to the Hagy coal is not made through a box cut in the

Petition area, but relocated, underground mining has the potential

to affect some underground wells in the petition area. These impacts

may be minimized or prevented by establishing "no mining" zones

in areas with less than 200 feet of cover.

4. If a box cut in the petition area were extended through further

surface mining activities in the Hagy coal bed, disturbance associated with the creation of highwalls will have a dewatering effect similar to that of a box cut, albeit on a larger scale. Due to the greater disturbance of overburden materials, the potential for quality impacts (increased sulfate or total dissolved solids) are much greater under these conditions.

5. Mining activities have been conducted in the Glamorgan, Clintwood, and Elkhorn coal beds near the petition area. These prior activities have impacted the quality in some water supplies in the area. If additional mining occurs in these coals, the potential to adversely affect groundwater supplies in and adjacent to the petition area exists.

6. The actual wells affected will be controlled by the location, orientation, and continuity of water-bearing fractures. These fractures can provide a direct hydrologic connection between the well and the mine floor. If these fractures are interrupted or removed during the mining activities, water tables could be temporarily disrupted/lowered in wells that are recharged by fractures penetrating the mine area. After reclamation water tables should reestablish, but quality may be affected by elevated sulfates or total dissolved solids.

7. A determination that the petition area is unsuitable for a box cut method of mining would have a negligible effect on the demand for and supply of Kentucky coal.

8. The petition area is unsuitable for a box cut mining methods of the Hagy coal bed.

Based on these findings and conclusions, the Secretary's Order directed that the LUP 00-1 be granted only to the extent that the petition area is unsuitable for a box cut mining method of the Hagy coal bed.

Additionally, the Secretary ordered that with respect to future permits issued with the petition area, underground mining shall leave at least 200-feet of cover in the petition area, extraction ratios cannot exceed 50% within the petition area, and that all mining in the other seams the Glam organ, Clintwood, Eagle and Elkhorn, shall address any potential for affecting the groundwater supplies in the petition area, and the permit applicant "shall identify an alternative water supply for ground water users in the petition area." Order, LUP 00-1 at p. 9.

Clintwood Elkhorn appealed that final determination to Franklin Circuit Court, where the appeal remains dormant.

By Petition dated May 2, 2002, Clintwood Elkhorn invoked 405 KAR 24:020 Section 4 and petitioned for termination of the prior designation. In support of that request, Clintwood alleged that:

[ ] It is obvious that the Secretary's Order, designating the

petition area as unsuitable for mining, was based upon findings

made by the Secretary that the mining of the Hagy coal seam by the

box cut method would result in substantial loss or reduction of the long-range availability of water supplies to those residences most proximal to the disturbance. The Secretary's Order also made a finding that mining in the Hagy coal seam, other than by the box cut method, could affect the quality of the water wells which were completed through the Hagy coal seam.

[ ] Since August 25, 2000, a municipal water system has been

installed in the petition area, and many, if not all of the prior

groundwater users who requested that the area be designated

as unsuitable for mining are now using municipal water. Any

ground water users who are not currently hooked to municipal water would have that opportunity in the instance of a disruption of their

current water supply.

[ ] as a result of the foregoing, the mining of the Hagy coal bed by box cut method and/or by underground mining methods will not now result in substantial loss or reduction of long-range availability of water supplies in the area.

In sum, Clintwood offers no evidence to rebut any of the factual Findings, Conclusions or the Order of the Secretary, but instead suggests that since a public water supply is available, it should be allowed to mine the Hagy coal seam by box cut or underground method, and in so doing damage the supply and quality of the residents water by disrupting the Hagy seam aquifers.

The petition is as misplaced as it is arrogant in positing that the availability of an alternative water supply, which would be available only at additional cost to landowners, justifies elimination of the protection afforded under the petition for the current source of their groundwater supply and the productive capacity of the aquifers. The termination petition fails to meet the regulatory criteria for terminating a previously petitioned-area, and approving the termination petition on the basis stated would be inconsistent with the policy and purposes of both federal and state mining laws.

For the reasons stated below, the termination petition should be rejected.

THE FACTUAL PREDICATE OF THE TERMINATION PETITION,

THAT LUM 00-1 WAS APPROVED SOLELY ON THE BASIS OF

SUBSTANTIAL LOSS OR REDUCTION OF THE LONG-RANGE AVAILABLITY OF WATER SUPPLIES TO SPECIFIC RESIDENCES

MOST PROXIMAL TO THE DISTURBANCE, IS FLAWED; AVAILABILITY AND USE OF A PUBLIC WATER SUPPLY IS NOT A BASIS FOR REVERSING LUM 00-1

The termination petition sets up a "straw man" basis on which it believes the Secretary's LUM Order rests, and then seeks to overturn LUM 00-1by knocking down the strawman.

It is, according to Clintwood, "obvious" that the Secretary's LUM Order 00-1 rested on the possible impact of mining the Hagy seam on the availability of water to specific residences, so that, according to Clintwood, if those residences aren't currently using the groundwater or have available another water supply then the Secretary's Order should no longer prevent the damage it found would likely follow the mining.

Clintwood does not dispute the factual findings of the Secretary with respect to the potential for damage; but appears to tacitly acknowledge that mining the Hagy seam will cause the damage to the resource that the Secretary's Order sought to avoid. Instead Clintwood seeks termination of the protection of the Hagy seam aquifer even though mining will likely damage the resource and impact the potential and actual use of that resource, because the landowners have an alternative water supply available.

Unfortunately, Clintwood misstates the law and misreads the Secretary's Order, and as such, the termination petition falls of its own weight. The actual criteria that the Secretary applied in approving LUM 00-1 provides that:

The cabinet may designate an area as unsuitable for all or

certain types of surface coal mining operations if, upon petition,

it is determined that the surface coal mining operations will:

* * *

(c) Affect renewable resource lands in which the surface coal mining

operations could result in substantial loss or reduction of the

long-range availability of water supplies[.]

There is nothing in the regulation, or for that matter in KRS Chapter 350, suggesting that the finding of unsuitability and protection of renewable resource land is in any manner dependent on a demonstration of actual or current use of the water supply by specific users in order to support a finding.

Instead, all textual support in the law and legislative history is to the contrary. KRS 350.610(3)(c) itself indicates (as it must in order to be consistent with federal law if the state is to receive and maintain primary regulatory authority under 30 U.S.C. 1253(a)(1)-(7)) that the criteria is intended to protect the potential of that renewable resource land to provide water supply over the long-term. The term "availability " in the state regulation should be read as "productivity" in order to conform to the statutes under which it was adopted.

The full text of the state statutory provision at issue provides that an area may be designated as unsuitable if such operations will "affect renewable resource lands in which such operations could result in a substantial loss or reduction in long-range productivity of water supply . . . and such land to include aquifers and aquifer recharge areas[.] (Emphasis added).

It is the potential of the resource land to be and remain productive that entitled it to protection, and the designation does not depend on the demographics of current usage or the number of current users, which might vary depending on the quality and cost of alternative supplies that are available and that may or may not be of adequate quality and yield in the future.

THE STATUTE AND LEGISLATIVE HISTORY MAKE CLEAR THAT THE DESIGNATION CRITERIA PROTECTS THE PRODUCTIVE CAPABILITY OF THE AQUIFER OVER THE LONG-TERM REGARDLESS OF WHETHER CURRENT USE OCCURS OR OTHER WATER SUPPLY CAN BE IMPORTED

The regulatory and legislative history of this prong of the unsuitability criteria of Section 522(e) of the federal mining law, 30 U.S.C. 1272(e), and the counterpart state law and regulation which must be interpreted and applied consistently with that federal law and federal regulation, KRS 350.465(1); KRS 350.028(5); 30 U.S.C. 1255(a); 30 C.F.R. 733.11, further underscore that the criteria and determination of unsuitability do not hinge on current usage of the resource, and that therefore a decline in usage or availability of an imported water source through a piped distribution system, do not provide a basis for termination of protection once granted.

KRS 350.610(3)(c) is identical in text to 30 U.S.C. 1272(a)(3)(C). In enacting that provision, Congress could have but did not require that the designation of unsuitability for a renewable resource land hinge on actual and current use of the land for production of water supplies or food. Instead, the criteria focuses on the long-range productivity of the aquifer, which has been found to be at risk from the mining whether or not it is in current use.

The fact that another water source can be imported into the watershed by pipe in no manner justifies termination of the designation of the aquifer as a renewable resource at risk from mining with a potential substantial loss of productivity of the aquifer, since the designation does not hinge on actual current use but rather on long-range productivity.

The unsuitability process was intended by Congress to fulfill a core goal of the Act that "with few exceptions, surface coal mining operations should constitute a temporary use of the land." H.R. Rept. No., 95-218, 9th Cong., 1st Sess 93 (1977). Though Congress believed that implementation of environmental performance standards through the permit process would minimize the undesirable consequences of surface mining, Congress coupled the development of environmental performance standards with a process for designating certain areas as unsuitable for mining to protect other competing values:

While coal surface mining may be an important and productive

use of land, it also involves certain hazards and is but one of many alternative land uses. In some circumstances, therefore, coal

surface mining should give away to competing uses of higher

benefit. Section 522 establishes a program by which such decisions

can be made. . . .

The other criteria for designation [including that for renewable resource lands], which relate to general planning and environmental concerns, are discretionary and this the State could determine that no lands should be designated thereunder, or, on the other hand, could prohibit all or some types of surface mining entirely. . . . The designation can merely limit specific types of mining and thus the coal resource may still be extracted by a mining technology which would protect the values upon which the designation is premised. Id. at 94 (Emphasis added).

The designation criteria and process are focused on protection of the resource itself and the long-term effect on the ability of the renewable resource to be productive. It is of no consequence whether the aquifer is currently used, or whether the use has declined due to availability of imported water. A demonstration of current water use is neither a criteria for petitioning a land as a renewable resource land any more than eating the crops or using wood cut from a renewable resource land producing food or fiber is a prerequisite for petitioning an area unsuitable on that basis. With 1% of the world's water available for human consumption without significant treatment costs, the proposition that a productive aquifer can be damaged or destroyed without concern simply because another water supply exists, is as short-sighted as it is inadequate to justify termination of the protection extended to the resource to protect its long-range productive capability. Terminating protection of a renewable resource land based on availability of other food, fiber or water supplies, undercuts the express goal of Congress to allow designation of lands where "the area is in 'renewable resource lands' those lands where uncontrolled or incompatible development could result in loss or reduction of long-range productivity, and could include watershed lands, aquifer recharge areas, significant agricultural or grazing areas[.]" S. Rep. No. 95-128, 95th Cong., 1st Sess. 93 (1977).

Since neither current and continuous use, nor unavailability of other water supplies, is relevant to the designation of a land as unsuitable for mining based on the renewable resource productivity of the land, the termination petition must be rejected. For no petition for termination can be approved unless the applicant demonstrates the absence of the criteria, in this case, that

surface coal mining operations [ ] will not now result in substantial

loss or reduction of long-range availability of water supplies if the

designation was so based[.]

405 KAR 24:020 Section 4(2)(d)2.c.

In this effort, Clintwood bears the burden of demonstrating that the Secretary's Findings, Conclusions of Law and Order concerning the renewable resource status of the land and of the adverse impact of mining on the long-term productive capability of that water resource, are in error and that substantial loss or reduction of availability (that is, according to the statute, productivity, will not occur if the area is mined.

Clintwood, having failed to petition for termination on these bases, but instead on the basis of changes in water use and alternative water source availability that have no bearing in the designation or termination, has failed to meet the criteria and LUM 00-1 should not be terminated.

Respectfully submitted,

Tom FitzGerald

on behalf of Roy Mullins and

the Kentucky Resources Council, Inc.

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