Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
October 28, 2003
Hon. Paul Patton
Frankfort, Kentucky 40601
Dear Governor Patton:
I am writing to urge you to withdraw the proposed surface coal mining regulation redefining "affected area" in a manner that eliminates any regulation of the environmental and public impacts of coal haulage on local, county and state roads.
As a former Pike County Judge Executive, you must be aware of the significant adverse effects of the use of secondary and local roads for coal haulage. Communities such as Ary, Partridge, Cumberland and others have in recent years suffered the dust, noise, and other disruptions of their peaceful use and enjoyment of their homes, and have seen their roads and adjoining lands damaged by the conversion of these local roads to industrial thoroughfares for haulage of coal.
Federal and state mining laws require that areas affected by mining be under permit, including roads used or constructed for coal haulage. The existing regulation defines uses a three-prong test to determine when the effects of coal haulage are so great as to require that the mining company permit and bond the road, control environmental impacts, and secure waivers from nearby landowners.
The new regulatory definition excludes all public roads from mine permitting, regardless of the extent of coal-related use and impacts. The "public roads" exemption is flatly illegal, having been rejected by OSM when proposed by Utah, and having been rejected in principle by a federal court as being rationally unrelated to the goal of the law to mitigate coal impacts. It will not survive judicial review, and a significant amount of litigation resources will be squandered on a non-starter of a regulation.
Beyond the legal infirmity of the regulatory proposal, however, 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 – and to undercut those positive initiatives that you undertook to protect the quality of life of coalfield residents from unnecessary mining impacts.
I urge you to withdraw the proposed regulation.
With grave concern,