As you know, a non-coal mining permit application, in order to be lawfully approved by the Cabinet, must demonstrate compliance with both the specific regulations adopted by the Cabinet and the authorizing statutes. The Cabinet's regulations have the force and effect of law only to the extent that they are properly promulgated and are consistent with the enabling statutes. KRS Chapters 224 and 350, and the regulations in 405 KAR Chapter 5, due to their remedial nature, must be construed in a manner that gives full effect to the intent of the General Assembly. In this case, the intent of the legislature is clear - the regulation of non-coal mining operations is to be undertaken in a manner that assures that the rights of adjoining landowners will not be fully respected and not placed at any risk.
KRS 350.300 provides the specific statutory backdrop against which the implementation 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 concerning non-coal mining regulation that were made by enacting the IMC are these:
ARTICLE III. STATE PROGRAMS
Each party state agrees that within a reasonable time it will formulate and establish an effective program for the conservation and use of mined land,by the establishment of standards, enactment of laws, or the continuing of the same in force, to accomplish:
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 the regulations, and the application of those regulations, must meet:
- the program must be effective in the conservation of mined land;
- the public and adjoining and other landowners must be protected from damage to their property;
- 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;
- 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.
The authority and obligation is clear for a permit that will effectively control all impacts from the mining activity from initial disturbance through production and reclamation.
A permit applicant is obligated to satisfy the specific informational and analytical requirements of the Cabinet’s non-coal regulations at 405 KAR 5:002 through 5:095. Additionally, the Cabinet has broad regulatory authority, both under statute and through the non-coal permitting regulations, to impose conditions necessary or advisable to assure that the purposes of KRS Chapter 350 are satisfied. With that authority comes a concomitant duty to impose such conditions where the record demonstrates that, in the absence of such conditions, harm may become manifest to adjoining or nearby landowners or to air, land or water resources.
This omnibus authority, reflected in statute and codified at 405 KAR 5:032 Section 28 provides that:
(1) Permits issued by the cabinet may contain certain conditions necessary to ensure that the mineral operation will be conducted in compliance with all applicable statutes and administrative regulations.
(2) All mineral operations shall be conducted in accordance with all applicable statutes and administrative regulations.
This authority is coupled with a prohibition against Cabinet issuance of a permit absent a demonstration by the applicant and a written finding by the Cabinet that, among other things:
The proposed mineral operation will not constitute a hazard to, or do physical damage to life, to an occupied dwelling, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, other public property or to members of the public, or their real and personal property.
405 KAR 5:032 Section 27(3).
The proper control of the adverse effects of non-coal mining operations demands that the Cabinet independently review plans for the mining and reclamation prior to permit issuance. It is legally insufficient to defer until after permit issuance the requirement that the applicant incorporate into the mine planning sufficient background sampling, during mining monitoring, sediment control, and demonstrate prior to permit issuance that the operation will satisfy statutory and regulatory requirements. In the absence of meaningful agency review of the submitted information, the Cabinet cannot exercise independent judgment in determining whether to approve or disapprove the application.
To do less would make the permitting process wholly ineffective in assuring protection of the public and the environment, in contravention of the requirement of KRS 350.300 that the non-coal regulatory program be an “effective program for the conservation and use of mined land . . . accomplish[ing] . . . [t]he protection of the public and the protection of adjoining and other landowners from damage to their lands[,]” and that the regulation accomplish “[t]he prevention, abatement and control of water, air and soil pollution resulting from mining, present, past and future;” assuring that “[t]he conduct of mining and the handling of refuse and other mining wastes [be accomplished] in ways that will reduce adverse effects[.]” KRS 350.300 Article III 1, 2, 4.
Specific Comments Relative To Application No. 050-9402
The mining of limestone poses a number of potential environmental concerns that must be addressed in order to achieve the statutory goal of protecting the public and environment. The uncontradicted testimony of John Morgan in the trial of the Olive Hill Investment Corporation case, accepted and quoted in the Hearing Officer’s Report and adopted by the Cabinet Secretary, described the impacts of limestone mining in this manner:
Mining has different impacts depending on where you are in the operation from the first exploration through production to reclamation. The principal areas which you are going to affect off site are the surface water regime, the groundwater regime, and, then, aspects of noise, dust, vibration. Specifically going back to the water issues, surface water can be affected by changing the characteristics of the flow off the site, that your flow rates in storm events can be different.
You can also get a difference in the physical characteristics of the water such as suspended solids. The chemical quality of the water can also be affected if you come into contact with metals or other toxic materials during the mining process. The groundwater regime can be affected a number of ways by a mining operation. And the first is if you go into a pit operation, which would intersect an aquifer, then, you could have a drawdown effect whereby the pit itself is the sink to a local groundwater. You can also have effects to the groundwater. The flow paths can be changed, that you have the equivalent to a low-potential site where they mine so water can tend to flow to that and, therefore, could change groundwater patterns. You also have the issue that if there was any toxic material which was backfilled into the site, then, that could enter the groundwater, migrate in the downdip direction of the groundwater. So, you’ve got both a physical and chemical change to the groundwater regime.
The noise, dust and vibration issues, any mining operation creates noise -- it’s inherent with it -- by backup alarms, air blasts from blasting. And that can be controlled, but it will have an off-site effect. You also have the issue of dust.
Mining, again, by its nature is a disturbance of the rock; and, therefore,you will be creating some dust both on the roads, the crushing operation and the blasting operation. And vibration itself, through any blasting, you will create vibration which can be transmitted through the adjacent [rock] strata, therefore, will have an off-site effect.
Transcript of Hearing, at p.91-3.
Any “effective program” for control of non-coal mining impacts must contain conditions sufficient to address each of these concerns.
Against this backdrop, KRC has these specific comments:
1. The Permit Application Should Be Deferred Or Denied Until consultation With U.S. and Kentucky Fish and Wildlife Agencies Occurs And Until After Collection of A Year’s Worth of Background Data and Issuance Of An Individual KPDES Permit
The status of the Green River as a State Outstanding Resource Water and the location of the proposed operation, which appears from the limited mapping provided to be approximately ¼ mile relative to that designated stream segment, and a site plan which proposes to drain surface waters towards river, require that the application be rejected as incomplete until after the applicant obtains an individual KPDES permit and the Cabinet consults with the US Fish and Wildlife Service and Kentucky Department of Fish and Wildlife Resources to determine whether and under what conditions the operation can go forward without causing adverse effects on any federally protected mussel species and their habitat in the Green River.
There is no question that, given the designation of this section of the Green River as Outstanding State Resource Water under 401 KAR 5:026 due to the presence of seven federally endangered species (including several mussel beds, fish and crayfish species), this operation is ineligible for coverage under the non-coal general KPDES permit and will require an individual permit for both process discharge waters from disturbed areas and stormwater discharges, and that due to the presence of a federally-protected species, a years' worth of background biological and chemical water quality data is required by the Division of Water.
That same background surface water quality, biological and flow data is essential for your agency to make a reasoned determination as to whether the operation will "constitute a hazard to, or do physical damage to . . . a stream" under 405 KAR 5:032 Section 27(3). It is legally insufficient for DSMRE to process the application and make a permit determination without making a finding independent of the Division of Water as to compliance with Section 27(3), and since the Cabinet, through the Division of Water, has determined that collection of a year’s worth of background water quality and flow data is essential to a reasoned determination of compliance with the KPDES and water quality standards programs, your agency should likewise await collection and reporting of that data in order to support a reasoned determination of compliance with Section 27(3).
2. A Hydrogeologic Investigation Is Required To Support Permit Review And To Demonstrate Compliance With 405 KAR 5:032 Sections 27 and 28
Obtaining a KPDES permit does not end the question of adverse effect on the Green River, however, since the applicant’s obligation to demonstrate and the Cabinet to find that the proposed operation will not constitute a “hazard to or do physical damage to. . . [a] stream” is not limited to avoiding such damage through surface flows, but is instead sufficiently broad to require consideration of and a demonstration of no adverse effect on groundwater resources that may be in communication with the Green River, in addition to the surficial drainage that may affect the river.
As noted above, quarrying limestone can change the physical characteristics of the water such as suspended solids and also the chemical quality of the water by leaching metals or other toxic materials from strata disturbed during the mining process. The groundwater regime can be affected a number of ways by a mining operation, including potential drawdown on local aquifers; migration of pit water through fractured strata, and other changes in local hydrogeology wrought from the excavation and blasting associated with the limestone removal.
Given the close proximity of the proposed quarry operation to the Green River, and published Kentucky Geological Survey mapping suggesting the presence of potential secondary permeability karst and fracture flows in the area, a hydrogeologic investigation of the site should be required to support the permit application. Without such a hydrogeologic investigation, the Cabinet cannot make a reasoned decision on the permit and assure that the criteria of 5:032 Sections 27 and 28 are met. As the Hearing Officer in the Olive Hill Investment Corp. case, the Cabinet cannot “determine whether a non-coal mining plan will minimize adverse effects to the area and to adjoining landowners without requiring background information on surface and ground water occurrence and quality and without independently reviewing the plans for mining and reclamation prior to issuance of a permit.” (Emphasis added) Hearing Officer’s Report, Parker and Webb v. Olive Hill Investment Corp and NREPC, Conclusion #42.
The investigation should include at a minimum:
a. Mapping of aquifers and collection of background seasonal ground water quality and flow information;
b. Background geologic data to indicate the composition of the various strata and the possibility of encountering acid or toxic-forming material. The chemistry and composition of the various materials and rock strata overlying the mineral that will be mined and the acid or toxic-forming potential of the material must be assessed;
c. The anticipated impact of excavation and blasting on the groundwater, on the existing groundwater users within the vicinity of the mining, and on the Green River must be evaluated, including dye tracing in order to better map the communication between the site and the River through subsurface pathways. Cross-sections of the quarry at final excavation and correlation of the quarry depth to various groundwater-bearing strata must be provided;
d. An analysis of both primary and secondary permeability groundwater flow in the area and the anticipated effect of mining and blasting on local aquifers and on the recharge of the River. It is unclear whether the operation will intercept the groundwater table, and if so, whether the pit will be pumped, and the effect of that drawdown on the River and other water users. It is likewise unclear the extent to which the Green River is in communication with any aquifers underlying the site. The seasonal high groundwater table must be identified, the potentiometric surface of the groundwater table mapped and correlated to the mine depth, and the subsurface drainage patterns must be mapped; and
e. A groundwater users survey documenting in qualitative and quantitative terms the nature of the groundwater resource and of the existence and quality of all groundwater aquifers that do or could serve to provide groundwater for beneficial uses, and of the quality and yield of existing wells within the larger of ½ mile radius of the site or the area of influence determined by a qualified hydrogeologist, in order to support a later determination of whether the operation has caused changes in quality or quantity of the resource such that water replacement is required.
Only after this information is developed and submitted can the Cabinet make a reasoned determination of compliance by the application with the mandate of 5:032 Section 27(3) that a hazard and physical damage to the Green River be avoided.
3. The Application Should Be Required To Demonstrate That The Site Does Not Constitute A Natural Hazard Land And Consultation Should Be Sought From USDA And The Kentucky Division of Conservation.
Among the requirements of 405 KAR 5:032 Section 27 is that the applicant demonstrate that the proposed mineral operation will not adversely affect natural hazard lands. 5:032 Section 27(4). A natural hazard land is defined as a geographic area in which natural conditions exist that pose or as a result of mineral operations, may pose a threat to the health, safety, or welfare of people, property, or the environment[.]” Illustrative examples include but are not limited to areas subject to unstable geology or substantial erosion. The geographic area in which this site is located was included in a larger area for which the Department of Agriculture and Commonwealth of Kentucky agreed in August, 2001 to implement a Conservation Reserve Enhancement Program (CREP). CREP uses federal and state resources to safeguard environmentally sensitive land through the Conservation Reserve Program (CRP), providing financial incentives to encourage producers to voluntarily enroll in 10- to 15-year CRP contracts. Producers enrolled in CRP remove lands from agricultural production and plant grasses, trees, and other vegetation around riparian zones and sinkholes in order to improve water quality, soil, and wildlife habitat.
The goal of the Green River CREP is to restore up to 100,000 acres in south central Kentucky’s Green River Watershed. The area was determined to be eligible because of the ecological sensitivity of the Green River and the recognition that it is one of North America’s most diverse ecosystems and the most biologically abundant branch of the Ohio River System, flowing unhindered for more than 100 miles through counties and through Mammoth Cave National Park, the world’s largest and most diverse cave system.
The Kentucky CREP is intended, according to the USDA, to ensure the long-term protection of water quality and habitat for a wide array of wildlife, including threatened and endangered species.
The specific goals of the voluntary Kentucky CREP are to reduce by 10 percent the amount of sediment, pesticides, and nutrients entering the Green River and Mammoth Cave system; to protect wildlife habitat and populations, including threatened and endangered species; to restore riparian habitat along the Green River; and to restore the subterranean ecosystem by targeting 1,000 high priority sinkholes. The designation of this reach of the Green River and associated terrestrial habitat is grounded in a recognition of the ecologically sensitive nature of the river and riparian ecosystem. As such, it is a natural hazard land the disturbance of which may pose a threat to the environment through disruption of groundwater quality and flow patterns, and through contamination of surface drainage.
Consultation with the USDA and Commonwealth of Kentucky Department of Conservation, after applicant submittal of the surface and groundwater studies should be undertaken to assure non-interference of this operation with the goals of the CREP.
4. The Application Fails To Provide Documentation Evidencing Proof of Notification And Necessary Approvals From the State Transportation Cabinet
According to the notice of intention to mine published in the Hart County News-Herald on February 23, 2006, the operation will be located within 100 feet of Boyds Knob Road, SR 1854. In such a case, 405 KAR 5:032 Section 5 demands that “the permit application contain proof of notification and any required approvals from the appropriate agency . . . with jurisdiction over the road.” The permit application appears to lack both evidence of notification of the Transportation Cabinet and either a letter indicating that an encroachment permit is not needed or that one has been granted.
Additionally, the applicant has failed to provide details concerning whether blasting will occur and how that blasting will be managed in order to prevent flyrock. In the absence of details concerning the manner of mineral removal and the configuration, depth and specific location of the pit, it is impossible for the agency to make the required finding in 405 KAR 5:032 Section 27(6)(d)2 that the interests of the public and landowners affected thereby will be protected if the applicant is allowed conducting operations within 100 feet of SR 1854.
Finally, the public notice of intention to mine does not sufficiently alert the public that the operator is requesting a waiver to operate within 100 feet of SR 1854 and that they have a specific right to request a public hearing on whether the Cabinet will grant that waiver. It mentioned the location as being within 100 feet of the road as a matter of fact rather than a request for waiver. The application should be renoticed at the time that the other deficiencies noted in these comments are satisfied, in order that the public be informed that the applicant is seeking a waiver to conduct operations within 100 feet of a state road and that the public has a right to comment on and object to that waiver.
5. Additional Concerns:
In addition to the concerns identified above, KRC believes that these concerns must be addressed prior to the Cabinet being able to find that compliance with 5:032 Section 27 has been demonstrated by the applicant:
a. The “walk map” provided by the applicant does not identify the features required in 5:032 Section 1(2) in such a manner that a reader can determine the location of several key features of the operation. Among the concerns are that the map legend for 1-acre “existing pit area” and “sediment pond” are nearly identical making it impossible to tell with certainty where the existing pit area is located and whether the drainage plan is calling for the use of the existing pit area as a sediment structure. Additionally, the haul road is not discernible, nor is it clear what the area with hatch marks from upper left to lower right are intended to represent, since there is a hatch marked area going from upper right to lower left that the legend indicates is the “future pit area.”
b. Item #16 in the application does not indicate that any haul roads exist within the proposed operation. The applicant should be required to explain how the material will be hauled from the excavation area to the State Highway, as well as the internal haulage routes for material from the pit to the processing areas.
c. The topsoil handling plan fails to meet the requirements of 5:032 Section 17 and 5:062 in that neither the map nor the topsoil handling plan identify how the topsoil material will be segregated from other spoil materials.
d. The spoil handling plan lacks information needed to determine compliance with the requirements of 405 KAR 5:032 Section 14 and 5:062. First, it is unclear what is the basis for the assertion that the spoil material is approximately 5 feet in thickness across the 12 acres, and whether that thickness includes the topsoil or excludes the topsoil / top six inches of soil. Additionally, no mine sequencing plan is provided, so it is impossible to determine whether and how much excess spoil will be generated and be required to be stored.
e. The backfilling and grading plan likewise lacks sufficient information to allow the agency to determine compliance with 5:062 and 5:032. It is unclear what is meant by “[I]n general” all overburden will be placed back in existing pits and graded. If any overburden is not so managed, the application must explain how it will be managed. Likewise the last sentence of the plan suggests that “[I]n general” all overburden removed will be placed in designated spoil storage areas and graded. If any overburden is not to be managed in that manner, the applicant must explain in the application what the disposition will be of that material.
The application indicates that “if necessary to cross a natural drainway, proper drainage structures will be provided.” A proper mine sequencing plan will know at this point whether such crossing will occur, and this application must either identify such crossings and provide the drainage structure details sufficient to allow the Cabinet to determine compliance with 5:032 Section 27(3), or this language must be removed.
It is indicated that “all highwalls” will be removed. It is unclear whether that means the quarry walls. If so, without any indication of the size and depth of the pit relative to the generated spoil, it is impossible to determine whether the spoil generated will be sufficient to eliminate pit highwalls.
The backfilling and grading plan commits that the backfilling and grading will be kept” current as mining operations progress” yet without a mine sequencing plan it is impossible for the agency to determine what is current.
The applicant indicates that “a diversion berm, as shown on the map” will be used to prevent runoff from entering or exiting the “portholes.” It is unclear why there will be portholes, since this is proposed as a limestone quarry. To the extent that underground mining is proposed, subsidence plans, maps of the underground area and other requirements associated with underground mining should be provided.
f. The sediment control plan lacks sufficient detail to assure that the requirements of 5:032 Section 27(3), 5:032 Section 12, 5:050 and 5:055 will be met.
The application provides for five structures, two of which are “silt check” structures and the others, embankment structures, yet fails to provide the methodology and documentation upon which is bases the conclusion that the structures are designed and sized appropriately in order to achieve the applicable effluent standards for the design storm events for the disturbed areas that drain through those structures. Additionally, it appears from the drawing that diversion ditches will be excavated to route runoff to the sediment structures, yet there is no indication of how the size of the ditches was determined to be adequate, nor of how drainage will be managed in order to avoid additional sedimentation from the runoff that will flow off the outside half of the berm and away from the mining and processing areas.
The application must demonstrate that the sediment control measures will be designed to meet numerical effluent limitations and water quality standards, considering process wastewaters as well as rainfall-induced discharges. Approving applications that do not demonstrate in advance the capacity of those controls based on realistic sediment yield and flow predictions, was rejected in the Olive Hill and the Cook & Cooper v. Nugent Sand cases, and is insufficient to meet the obligations of the applicant under 405 KAR 5:030 (now 5:032). All disturbed areas must be subject to sediment controls demonstrated during the permitting process to be sufficient to meet KPDES discharge limits and water quality requirements. The proposed sediment structures should be designed and certified by a registered professional engineer and bear the engineer’s stamp.
g. In order to discharge the Cabinet’s obligation to prevent harm to adjoining landowners and the environment, a number of additional measures should be required, including:
(i) A blasting plan. It is not indicated in the application whether explosives will be used to quarry the limestone, or whether some other means such as pneumatic or hydraulic fracturing) will be used to fracture and dislodge the limestone material. The equipment notes 2 dozers, 2 haulers, 2 loaders and 1 excavator, but no drill. Blasting may cause dramatic adverse impacts on the recharge and discharge characteristics of the watershed, as well as causing vibrational and flyrock risks to adjoining landowners and their properties and to motorists traversing adjacent public roads.
Whether explosives or other mechanical means are used to induce fracturing in order to allow for recovery of the rock, a thorough characterization of the geology and site and the impacts of blasting or other mechanical fracturing of the strata in such close proximity to residential properties and to the Green River, should be submitted in order to support an informed decision on the permit. The possibility of induced subsurface interconnections between runoff or seepage through disturbed areas and streams or cave resources must be explored and eliminated. Pre-mining surveys should be conducted of all structures and residences within ½ mile of the proposed permit boundaries and a blasting plan should be submitted, with a blasting schedule published prior to commencement of any site disturbance. Evidence of liability insurance sufficient in amount and extent of coverage to assure compensation of third parties for personal or real property damage from blasting should likewise be required.
(ii) A plan for controlling fugitive dust emissions. The conduct of a mining operation releases a significant amount of dust. All sources of dust, from vehicular traffic, material storage and transfer, and windblown erosion of soil and rock storage piles, must be assessed and mitigation measures proposed to eliminate visible dust emissions at the property boundary. A dust control plan indicating how the offsite effects of dust from the crushing and stockpiling activity, haulage and mining activity, will be controlled in order to prevent violations of the fugitive dust standards of the Division of Air Quality; and absent a demonstration that the visibility standard can be met at the property boundary, the permit should not be issued.
(iii) A bond in an amount that is correlated to the cost of reclamation at maximum disturbance, in the event of operator default;
(iv) The permit application must to assure that the rights of adjoining landowners and the public along the haulage route will be protected. The Council believes that the permit applicant is obligated by law to assess and fully mitigate the impacts on the road. No permit should issue absent a demonstration that the public roads serving the site are adequate and that no physical damage to the public roads will occur from the haulage and access. Additionally, structural impacts from vibrational damage due to truck traffic, noise, dust, traffic safety from use of large trucks on the road, must all be considered, quantified and mitigated.
(v) Noise impacts. Noise from blasting, normal operation, and vehicular traffic to and from the site, must be assessed, and measures taken to reduce off-site noise.
Thank you for your consideration of these comments. For the reasons stated herein, the Council respectfully requests that the permit application be summarily denied without prejudice as being technically incomplete until if and when the required information and analyses, and evidence of appropriate consultations and approvals from other agencies, are provided so that the Cabinet has available the information necessary to review the compliance of the proposed mining operation with 405 KAR 5:002- 5:095 and KRS 350.300.