Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
June 1, 2004
Jim Villines By fax 502-564-5698
Department for Surface Mining
#2 Hudson Hollow
Frankfort, Kentucky 40601
Re: Proposed Non-Coal Mining Regulations
405 KAR 5:002; 5:032; 5:036; 5:042; 5:048; 5:062; 5:078 and 5:082
Dear Mr. Villines:
These comments are submitted by the Kentucky Resources Council, Inc. (KRC) on behalf of the many communities and individuals whom the Council has had the privilege to represent over these past 20 years in matters relating to proposed extraction of non-coal minerals. In the course of three administrative cases in which KRC provided representation to opponents of limestone (Olive Hill Investment Corporation, Sterling Ventures) and sand and gravel mining operations (Nugent Sand Company), KRC has become familiar with the program and those areas in which the statutory purposes of public and environmental protection have not been fully realized in the implementing regulations.
KRC urges the Fletcher Administration to reform and strengthen the non-coal regulations in several critical areas where the current regulations, as interpreted and applied by the Natural Resources and Environmental Protection Cabinet, are underprotective of public health, safety and the environment.
As a signatory state to the Interstate Mining Compact, the Commonwealth of Kentucky committed to be bound by an agreement, codified in statute, to extend protection to the public and environment from the adverse effects of non-coal mineral extraction.
KRS 350.300 provides the specific statutory backdrop against which the sufficiency of the non-coal regulations must to be measured. KRS 350.300 represents the General Assembly’s decision to join the Interstate Mining Compact (IMC), and the enactment of the Compact into state law by the General Assembly obligated Kentucky as a “party state” to the Compact. Among the commitments of the legislature in enacting the IMC are these concerning non-coal mining regulation:
ARTICLE III. STATE PROGRAMS
Each party state agrees that within a reasonable time it will
formulate and establish an effective program for the conser-
vation and use of mined land, by the establishment of standards,
enactment of laws, or the continuing of the same in force, to
l. The protection of the public and the protection of adjoining
and other landowners from damage to their lands and the
structures and other property thereon resulting from the conduct
of mining operations or the abandonment or neglect of land and
property formerly used in the conduct of such operations.
2. The conduct of mining and the handling of refuse and other
mining wastes in ways that will reduce adverse effects on the
economic, residential, recreational or aesthetic value and utility
of land and water.
3. The institution and maintenance of suitable programs for
adaptation, restoration, and rehabilitation of mined lands.
4. The prevention, abatement and control of water, air, and
soil pollution resulting from mining, present, past and future.
The law sets certain benchmarks that regulations, and the application of those regulations, must meet: (1) the program must be effective in the conservation of mined land; (2) the public and adjoining and other landowners must be protected from damage to their property; (3) the mining, and handling of mine wastes, must be done in a way that reduces adverse effects on the different values of surrounding lands, including aesthetic values; and (4) water, air and soil pollution must be prevented, abated and controlled.
The statutory mandate is clear for an effective regulatory program for non-coal mining containing permit requirements to demonstrate that the mining operation will be conducted in a manner that satisfies the statutory mandates regarding environmental and public protection.
Unfortunately, in 1995, due to intense lobbying from the non-coal mineral industries, the Cabinet’s proposed regulations were weakened and several key provisions not included. These proposed rules, by repromulgating the 1995 regulations largely intact, suffer from those same flaws. It is past time that reasonable and specific regulatory provisions are included in the following areas in order to better direct the Cabinet, in reviewing permits for and regulating these operations, to fully protect the rights of other landowners and to prevent pollution.
KRC has been involved in several controversial non-coal mining cases – including three administrative cases in which KRC provided representation to opponents of limestone mining operations (Olive Hill Investment Corporation; Sterling Ventures) and two involving sand and gravel mining operations (Nugent Sand Co.) and has become acutely aware of the areas in which the 1995 regulations, which are proposed to be readopted here with minor changes, fail to meet the statutory goal of protecting the lives and property of adjoining and nearby landowners and the environment. Non-coal mining regulation remains an area where reasonable protections of the rights of others are lacking, and it is past time that those protections are provided. The non-coal industry should be required to fully internalize the costs of doing business, rather than shifting those costs onto the backs of neighbors. As you consider the "fiscal impacts", you must consider the current impacts of non-regulation or inadequate regulation causing damage.
The regulatory reforms we propose are moderate and reasonable, but more fundamentally, they are also required by state law in order to have a program that is effective in the conservation of mined land; protective of the public and adjoining landowners and their property; and which reduces adverse effects on the different values of surrounding lands, including aesthetic values and that prevents, abates and controls water, air and soil pollution. In order to achieve these legislative goals for an effective and protective program, KRC requests that the proposed regulations be amended to:
* provide public notice when non-coal permits are amended to include new acreage;
* require replacement of water supplies that are damaged by non-coal operations;
* provide a 300-foot, rather than the proposed 100-foot buffer around people's homes unless the homeowner consents to a closer distance to a mine. KRC believes that the distance requirements for areas protected from mining should be comparable to those currently required of coal mining operations, since there is no rational basis for providing lesser protection simply because of the type of mineral proposed to be mined.
* improve the permit review process to require a level of mine planning comparable to that currently required of coal mines, including more rigorous review of impacts on the land and water resources of the proposed mining area;
* require dust control plans;
* require identification of and a plan to protect groundwater well users;
* include a requirement that the permit applicant provide information concerning surface and ground water quality and quantity, the presence of toxic or acid-producing overburden;
* require identification of groundwater resources, well-users surveys and groundwater protection plans, including information necessary to support a regulatory determination as to whether water supplies have been damaged by mining;
* include a clear requirement that all drainage from disturbed areas be passed through a sediment pond designed to meet all applicable effluent and water quality limitations; and an independent review of the adequacy of the sediment control measures prior to permit issuance;
* clarify that the spoil handling plan contain 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;
* require sufficient and complete information concerning ownership of minerals to support permit issuance and a requirement that no permit issue where the
right to enter and mine has not been demonstrated;
* include a process for designating areas as unsuitable for some or all types of non-coal mining operations.
* prevent off-site nuisances through controls on equipment noise and facility lighting and limits on hours of operation where needed to prevent nuisances to residential areas.
* require posting of performance bonds in all cases at an amount sufficient to assure reclamation in the event of operator default, at no cost to the public.
* require submittal and updating of underground mine maps. The location and extent of underground workings is a matter of legitimate interest to surface landowners, both in order to assure that the mining is not removing minerals for which the operator does not have the legal right, and also to landowners and local governments in order to allow a determination of whether subsidence or other surface impacts are related to the mining.
* require a transportation plan that informs the public and the state where the material will be hauled and the weight load on the roads;
* provide for denial of permits where the use of local roads for hauling mined material would pose a health or safety threat to the public or would damage the property of adjoining and other landowners.
There are few aspects of non-coal mining operations more controversial than those relating to transportation. As evidenced in the Nugent Sand Company case in Gallatin County, and also the Sterling Ventures case in that same area, the safety and quality of life of area residents can be compromised through a lack of attention to the transportation aspects of mining operations, including whether the product can be safely transported without adversely impacting public health and safety.
An "effective" program for regulating non-coal minerals can no more be implemented without consideration of the transportation issues related to haulage of the mineral, than could the mining regulations be effective without considering roads used for haulage and access. The primary roads used for transportation of the non-coal mineral must be considered by the Cabinet and no permit should issue absent an affirmative demonstration by the applicant that the use of the roads can occur without causing a threat to public health and safety.
There should be a clear and enforceable requirement that the applicant weigh and verify that trucks leaving the site are within the legal limit for the receiving road. The applicant is in the best position to assure that damage to public roads is minimized by refusing to load trucks above legal limits.
It is essential that the Cabinet consult with Transportation Cabinet, county and city officials, to assure that no non-coal mineral permit will be issued that would violate KRS 350.300 by posing a health or safety threat to the public or would damage the property of adjoining and other landowners.
* Finally, require a blasting plan, and impose an obligation on all permittees to conduct a pre-blasting survey of structures.
The Cabinet is responsible for assuring that the rights of adjoining landowners are fully protected. The Department for Mines and Minerals does not typically require a blasting plan, so that neither that agency or the Department of Surface Mining is able to determine at the time of permit issuance or in advance of the blasting, whether the operation is properly designed so as to assure protection of adjoining lands and structures, including residences, other buildings, and wells.
The blasting regulation should be revised to impose limits on blast size and frequency in order to assure protection of the rights of adjoining landowners. Further, in order to determine whether allegations of blasting damage are true, and to protect the legitimate operator from spurious complaints, a pre-blast survey should be required for all structures and wells within 1/2 mile of the site, and the landowners should receive notice of that right, as well as of the blasting schedule, including information on warning and clear signals.
Also, in order to prevent nuisances, night-time blasting after dusk and before sawn should be prohibited for surface and underground mines.
Finally, KRC understands that certain changes were made in the language of the proposed regulations in response to LRC suggestions, but that no substantive changes from the 1995 regulations were intended. To the extent that any changes were made, the proposed regulations depart from legislative mandate, which under HJR 98 was to repromulgate in emergency and proposed form regulations identical to the 1995 regulations (excepting the inclusion in the new regulations of tar sand and rock asphalt).
In finalizing the regulations, no provision should be made for existing operations to come into compliance with the new regulations since these regulations were in effect from 1995 forward until the ill-fated Patton Administration revisions, so that there should be no regulatory gap requiring that existing facilities be given any grace period to come into compliance.
Absent these proposed reforms, the mining of non-coal minerals will continue to impose avoidable adverse effects on the rights and quality of life of adjoining and nearby landowners and on the air, land and water resources of the Commonwealth in a manner inconsistent with the statutory direction to the Cabinet, and proposed non-coal mining operations will remain a source of contention in many communities.
KRC appreciates your consideration of our comments and urges you to adopt a meaningful set of reforms to finish the task begun in 1995 of requiring non-coal mineral operations to more fully internalize the cost of doing business, rather than imposing those costs on their neighbors and on the public's natural resources by simply repromulgating the 1995 regulations.