Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
October 27, 2003
Henry Clay List, Secretary
Natural Resources and Environmental
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
Jim Villines, Manager
Program Developmt. and Coordination Branch
Department for Surface Mining
#2 Hudson Hollow
Frankfort, Kentucky 40601
Re: Proposed Amendment to Definition of "Affected Area"
Dear Secretary List and Mr. Villines:
These comments are submitted on behalf of the Kentucky Resources Council, Inc., its Board of Directors and membership, and on behalf of the residents of the community of Ary, Cumberland, and Partridge, whom the Council has represented in litigation seeking to extend the protections of the surface mining laws to roads that are used and damaged by coal haulage.
On their behalf, and in order to help salvage what remains of the environmental record of this Administration, I respectfully urge that the proposed regulatory amendment be withdrawn. The proposed redefinition of "affected area" is irresponsible, unlawful, and in callous disregard of the legitimate interests of coalfield residents in the quiet use and enjoyment of their homes and the safety and health of their communities.
Summary of Comments
The proposed revision to the definition of "affected area" has a single goal in mind – to protect the coal industry from its responsibility to include under mining permit those public roads that are used for coal haulage and access where the extent of coal use affects public health and the environment. By redefining "affected area" to categorically exclude from mining regulation all state, county and other public roads, the state adopts an approach that has already been rejected by the federal Office of Surface Mining as inconsistent with the federal mining law, and which irrationally focuses on the public designation of the road rather than the extent and impacts of coal-related use, as required by Congress.
Beyond this, however, the proposed rule is an affront to the residents of communities who have suffered the noise, dust, health and property damage, and safety impacts of overweight coal truck traffic on roads never designed or constructed to bear such intensive industrial use.
The 1977 federal mining law includes, in the definition of "surface coal mining operations" requiring a mining permit, roads used for coal haulage or access. Since 1985, the regulation of public roads as part of the mining operation has depended on a multi-prong standard which considers whether the road is designated and maintained as public, and the degree of effects of coal haulage on the local environment and road.
The proposed Cabinet regulation jettisons this test and instead categorically eliminates from potential regulation all public roads regardless of the degree of coal haulage and damage. It is a blatantly unlawful change, in direct and irreconcilable conflict with the requirements of the federal Surface Mining Control and Reclamation Act of 1977, and violates as well the Cabinet's obligations under state law to maintain, administer and enforce a state regulatory program consistent with that federal law. By proposing to eliminate from the definition of "affected area" all existing state, county or public roads, the Department for Surface Mining Reclamation and Enforcement proposes a rule that sanctions the appropriation by coal companies of local roads for coal haulage and access and withholds regulatory protections regardless of the degree of destruction of local roads, damage to public health and disruption of the quality of life for coalfield communities. The proposed exclusion of "public roads" from permitting responsibility resurrects a discredited standard that was used by segments of the industry to support abuse of the former two-acre exemption; a standard that OSM has already rejected when proposed by another state.
What is perhaps most offensive is that the Cabinet is well aware that its proposed regulations are unlawful and cannot be approved by the federal Office of Surface Mining. The regulations are not the Cabinet's handiwork, but instead were written by the coal industry, and advanced by the Governor's office.
KRC respectfully urges the Governor to withdraw this ill-considered set of regulations, which threaten to eclipse the positive aspects of the administrations' environmental legacy and to inflict real damage on the health and quality of life of many coalfield residents.
The Legislative and Regulatory History Make Clear That
Categorical Exclusion of Roads Used for Coal Haulage or Access
Simply Because The Road Is A "Public" Road, Violates The Law
The question of when a road must be included within the permitted area of a surface coal mining operation under the 1977 Surface Mining Control and Reclamation Act has been the subject of periodic controversy since enactment of the law. In defining the scope of activities and areas that should be regulated under the federal law, Congress intended to establish a regulatory framework that was comprehensive in nature, to “protect society and the environment from the adverse effects of surface coal mining operations[.]” Section 102(a), 30 U.S.C. 1201(a).
The statutory definition of “surface coal mining operations” under federal law
means activities conducted on the surface of lands in connection
with a surface coal mine or subject to the requirements of Section
516 surface operations and surface impacts incident to an
underground coal mine, the products of which enter commerce or
the operations of which directly or indirectly affect interstate commerce.
Such activities include excavation for the purpose of obtaining coal
including such common methods as contour, strip, auger,
mountaintop removal, box cut, open pit, and area mining,
the use of explosives and blasting, and in situ distillation or retorting,
leaching, or other chemical or physical processing, and cleaning,
concentrating, or other processing or preparation, loading of coal
for interstate commerce at or near the mine site: provided however,
That such activities do not include the extraction of coal incidental
to the extraction of other minerals where coal does not exceed 16 2/3
per centum of the tonnage of minerals removed for purposes of com-
mercial use or sale or coal explorations subject to section 512 of this
(B) the areas upon which the activities occur or where the activities
disturb the natural land surface. Such areas shall also include any
adjacent land the use of which is incidental to any such activities, all
lands affected by the construction of new roads or the improvement
or use of existing roads to gain access to the site of the activities and for haulage, and excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or materials on the surface resulting from or incident to such activities;
Section 701(28); 30 U.S.C. 1291(28). (Emphasis added).
The statutory definition of “surface coal mining operations” in the Kentucky regulatory program is, in relevant part, identical to that of the federal law. KRS § 350.010.
The regulation of the use and construction of roads for coal haulage or access as part of the "affected area" of “surface coal mining operations” was intended by Congress to address problems associated with coal access and coal haulage roads. H.R. Rept. No. 95-218, 95th Cong. 1st Sess. 128 (l977)
Section 506(a) of the federal Act, 30 U.S.C. 1256(a), provides that “no person shall engage in or carry out on lands within a State any surface coal mining operations unless such person has first obtained a permit[.]”
The 1979 regulations did not specifically address the question of when a road was considered to be a part of the “affected area.” In part to address the abuse of the two-acre exemption formerly contained in the federal law, by which operators would have haul roads declared to be “public roads” by county governments and thereby escape regulation, OSM proposed in 1982 an amendment to the definition of “affected area” which defined when a public road would be exempt from regulation as part of a “surface coal mining operation.” 47 Federal Register 41-57 (January 4, 1982) The final rule was published on April 5, 1983. 48 Federal Register 14814-22, although the preamble discussion addressing the road aspects of the definition of “affected area” were published in the August 2, 1982 Federal Register (47 FR 33430-33431) and were incorporated by reference in the 1983 final rulemaking.
The 1983 rule provided that the:
affected area shall include every road used for purposes of
access to, or for hauling coal to or from, surface coal mining
and reclamation operations, unless the road (a) was designated
as a public road pursuant to the laws of the jurisdiction in which
it is located; (b) is maintained with public funds, and construc-
ted, in a manner similar to other public roads of the same
classification within the jurisdiction; and (c) there is substantial
(more than incidental) public use.
48 FR 14822 (April 5, 1983). In providing that the road, to be exempt, had to be constructed in a manner similar to other public roads of the same classification, OSM altered the proposed rule that had required that the exempted road must meet construction standards as stringent as those applicable to haul and access roads under the Act.
The rulemaking was challenged, and on July 15, 1985, the District Court for the District of Columbia remanded the definition of “affected area” in In Re: Permanent Surface Mining Regulation Litigation, CA No. 79-1144, Mem. Op. 141-143. Plaintiff citizen and environmental organizations, relying on the broad definition of “surface coal mining operations” which includes “all lands affected,” argued that the Secretary went too far in exempting roads that were used for haulage and access. Relying on a colloquy between Senators McClure and Baker during the 1973 floor debate on a predecessor to the 1977 law (S. 425), plaintiffs posited that a “primary function” approach should be used.
The Court found the McClure-Baker colloquy unpersuasive on the question of whether a primary function approach must be used, but stated:
On the other hand, the court is troubled by the rule insofar as its
statutory basis is Section 701(28), which includes in the definition of
surface coal mining operations lands affected by the use of existing roads
to gain access to the site of surface mining activities and for haulage.
The Secretary acknowledges that ‘a road is part of a surface coal mining
operation if it is built, used, or upgraded for access to the site of the mining operation or for the haulage of coal.’ Secretary’s response at 169. Nevertheless, he contends that not every road when used to some degree for coal haulage or mine access falls within the definition of surface coal
mining operation. The court accepts this premise because section 701
(28) by its own terms includes only lands affected by, among other things,
the use of existing roads. Presumably then, when hauling or access are
among the many uses made of a road, such as an interstate highway, the
effect from the mining use is de minimis or relatively minor, and thus the
road need not be included as part of the surface coal mining operation.
But the Secretary’s rule goes far beyond what is called for by Section 701(28) in exempting essentially all public roads where public use is more than incidental. This definition does not square with the statutory language and thus this aspect of the definition must be remanded as inconsistent with law.
Further, the court finds that the rule is irrational in that it does not appear
rationally related to the Secretary’s concern that interstate highways not
be required to be permitted and reclaimed under the Act or the Secretary’s conclusion that Congress ‘intended the Surface Mining Act to cover public roads used for coal haulage and access only when they are directly, rather than incidentally, part of the mining operation.’ Sec. Res. At 171. The rule the Secretary created, however, excludes far more than interstate highways where the proportion of hauling and access can be expected to be relatively small. Nor does the rule concern itself with whether the road is in some way directly, rather than incidentally, part of the mining operation. Instead, the rule focuses curiously on whether the public use is more than incidental, in which case the road is exempt. The rule does not bear a logical nexus to the Secretary’s goal in promulgating it, or to the Secretary’s own stated understanding of what the law requires. It must be remanded.
Mem. Op. At 142-3. (Emphasis original).
In response to the ruling by Judge Flannery, OSM in 1986 suspended a portion of the definition of “affected area” at 30 CFR 701.5:
to the extent that it excludes public roads which are included in
the definition of “surface coal mining operations.” The suspension
will have the effect of including in the “affected area” all lands
affected by the construction of new roads or the improvement or use
of existing roads to gain access to the site of regulated activities or
for haulage. The definition of “affected area” with regard to areas
other than public roads is not suspended. OSMRE recognized that
this suspension provides imperfect guidance in a difficult area. Thus,
OSMRE intends to develop and propose at a later date a new rule
to clarify the relationship between public roads and the “affected area.”
51 FR 41953 (November 20, 1986).
In a 1988 rule revising the performance standards and definitions for roads, OSM rejected a proposal to define “roads” to exempt public roads maintained by public funds and located on properties dedicated to public entities. 53 FR 45192. OSM recounted the history of the definition of “affected area,” noting that the genesis for the public road exemption had been to a concern with the practice of two-acre operators constructing new access roads and then deeding them to a public entity to keep the mining operations under two acres, and that the two-acre exemption had been eliminated in 1987. Id. The implication of the preamble discussion is that the impetus for revisiting the issue had passed with the elimination of the two-acre exemption.
OSM did note in the 1988 rulemaking a continued concern “that roads constructed to serve mining operations not avoid compliance with the performance standards by being deeded to public entities. However, it is not OSMRE’s intention automatically to extend jurisdiction over roads into the existing public road network. Jurisdiction under the Act and applicability of the performance standards are best determined on a case-by-case basis by the regulatory authority. For this reason, OSMRE did not accept the commenter’s suggestion that ‘public roads’ be excluded from the definition of road.” 53 FR 45193 (November 8, 1988).
The Kentucky proposal in fact is the same approach as that previously proposed by Utah and rejected by the federal Office of Surface Mining.
In 1991, OSM disapproved in part a proposed amendment to the Utah Permanent Regulatory Program based on the Secretary’s reading of a policy statement from the Utah Department of Gas and Mining (DOGM) to categorically exempt public roads from permitting. The Secretary explained the rejection in this manner:
Not only does the policy statement explicitly exempt public roads from
the requirement for a permit, but also it (sic) does not consider the extent
and effect of mining-related use as factors in determining whether a road
is subject to the requirement for a permit. This lack of consideration of
mining-related use is contrary to the Director’s previous guidance
concerning a Utah proposal to amend its definition of “affected area[.]”
* * *
Thus, to the extent Utah’s proposed definition of “road” and supplemental
policy statement fail to consider the extent and effect of mining-related
use as a factor in determining the requirement for a permit, they are not
in accordance with SMCRA and not consistent with the Federal regulations.
Utah’s proposed policy statement is not a case-by-case determination of
the applicability of permitting requirements to public roads, Rather, the
policy statement attempts to categorize certain roads as public (and exempt from regulation) including roads that may be part of a surface coal mining operation, both retrospectively and prospectively, based on several criteria that have no basis in SMCRA or the Federal regulations. While public status can be a major factor, it cannot be the absolute factor because of the potential for deeding roads to a public entity to avoid jurisdiction. Utah’s proposed policy provides a categorical exclusion from permitting requirements for all public roads, rather than a determination of the jurisdictional reach of SMCRA into the public road system as contemplated by the Federal regulations.
The clear intent of the Federal regulations is for the regulatory authority
to rely upon the plain language of SMCRA rather than the definition of
“affected area” in making case-by-case determinations on the regulation
of roads (53 FR 45190, 45193). For the Utah program to be no less
stringent than SMCRA and the Federal regulations, Utah must also rely
on its statutory definition of “surface coal mining operations” . . . in
determining jurisdiction over public roads.
56 FR 58848-9 (November 22, 1991).
Given OSM's previous rejection of the precise approach now offered by Kentucky, and given the focus of the new definition on the extent of public ownership rather than coal-related impact and use of the roads, the proposed Kentucky regulation is plainly inconsistent with the Act and will be found to be so by OSMRE on review.
KRC believes that the proposed regulation should be withdrawn, since it is inconsistent with federal law in failing to consider the extent of coal-related impact in determining whether public roads should be considered part of the "affected area", and also because it violates the Cabinet's obligation to adopt regulations allowing the state to enforce the permanent regulatory program under the federal mining law, KRS 350.028, and to assure that the regulatory program adopted will be consistent with the federal requirements so as to allow the state to administer that program in Kentucky. KRS 350.465(2).
In the event that the state proceeds to finalize this unlawful rule change, it will face certain rejection of the rule by OSMRE, and litigation from the Council to prevent implementation of the rule change pending OSMRE review. The effective date of the proposed regulatory change should be deferred by the Cabinet pending OSMRE review, since no state program regulation amendment or revision is to be implemented until after OSM approves the amendment. KRS 732.17(g).
Rather than waste public resources advancing the irresponsible and unlawful rule the Cabinet should recommend withdrawal of the regulation, and the Governor's Office should rethink the consequences of the proposed rule, in terms of damage to public health and safety, landowners and the environment, and the cloud that this rule creates over the Patton Administration's environmental record.
With grave concern,
Director & Counsel