Preliminary to discussing the technical inadequacies of the current permit amendment submittal, KRC believes it is appropriate to summarize the obligations of the permit applicant concerning subsidence prevention.
COMMON LAW IMPOSES DUTY OF ABSOLUTE SUPPORT FOR SURFACE LANDS, INCLUDING IMPROVEMENTS EXISTING AT TIME MINERAL IS SEVERED FROM LAND
Initially, under Kentucky common law, an underground mine operator is obligated to support the surface and leave it in its "natural state free from subsidence or partings of the soil, and this right of support is absolute[.]" West Kentucky Coal Company v. Dilback, 219 Ky. 783, 294 S.W. 478, 479 (1927). The obligation of the mining company to provide support for the land surface in its “natural state” extends to all “reasonable and foreseeable improvements thereon, at the time the coal is severed, not from the fee, but from the earth.” Island Creek v. Rodgers, 644 S.W.2d 339 (1982).
Thus, in reviewing a proposed mine plan for underground mining, particularly where the mining company may own mineral but not surface rights to lands proposed to be undermined, there is an absolute duty to maintain the land surface free from subsidence.
STATE AND FEDERAL MINING LAWS IMPOSE ADDITIONAL OBLIGATIONS TO PREVENT SUBSIDENCE CAUSING MATERIAL DAMAGE AND TO PROTECT WATER RESOURCES FROM DAMAGE
The Surface Mining Control and Reclamation Act of 1977, and the Kentucky state program laws, at Kentucky Revised Statutes (KRS) Chapter 350 and regulations, at 405 Kentucky Administrative Regulation (KAR) Chapters 7 through 24, impose significant obligations on any proposed underground mining operation with respect to mine planning generally, and specifically with respect to protection of water resources and avoidance of subsidence. Among these duties are:
* An obligation imposed under KRS 350.420 to “minimize disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quality and quantity of water in surface and underground water systems[.]”
* An obligation to “replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution, or interruption proximately resulting from the surface or underground coal mine.” KRS 350.421.
* With respect to subsidence, a requirement in 405 KAR 18:210 Section 1 that the permittee to adopt measures consistent with known technology to prevent subsidence from causing material damage to the extent technologically and economically feasible, maximize mine stability, and maintain the value and reasonably forseseeable use of surface land. This obligation, unlike the common law duty of subjacent support, cannot be avoided through waiver.
* A requirement in 18:210 also requires the permittee to comply with all provisions of the subsidence control plan that is required under 405 KAR 8:040 Section 26.
* A duty to maintain certain buffer zones, prohibiting underground mining activities beneath or adjacent to public buildings and facilities; churches, schools, and hospitals; or impoundments with a storage capacity of twenty (20) acre-feet or more or bodies of water with a volume of twenty (20) acre-feet or more, unless the subsidence control plan demonstrates that subsidence will not cause material damage to, or reduce the reasonably foreseeable use of, the features or facilities. 405 KAR 18:210 Section 4.
That same regulation provides that if the cabinet determines that it is necessary in order to minimize the potential for material damage to the features or facilities previously described in this subsection or to any aquifer or body of water that serves as a significant water source for any public water supply system, it may limit the percentage of coal extracted under or adjacent to the feature, facility, aquifer, or body of water.
* 405 KAR 18:060 imposes additional buffer zones on underground mining activities, providing that
(1) No land within 100 feet of an intermittent or perennial stream shall be disturbed by underground mining activities unless the cabinet specifically authorizes underground mining activities closer to, or through the stream. The cabinet may authorize this activity only upon finding, as a result of evaluating a permit application, that:
(a) Underground mining activities will not cause or contribute to the violation of applicable state or federal water quality standards;
(b) Underground mining activities will not cause significant detrimental effects on the water quantity or quality of the intermittent or perennial stream; however, this paragraph shall not apply to any reach of that stream that is upstream of an impounding structure located within the permit area and within the stream channel;
(c) Underground mining activities will not cause significant detrimental effects on other valuable environmental resources, as determined by the cabinet, of the stream; and
(d) If there will be a temporary or permanent stream-channel diversion, it shall comply with 405 KAR 18:080. * 405 KAR 8:040 contains the permitting and mine planning requirements for underground mining operations, and in relevant part, demands that the permittee:
- provide sufficient information concerning probable hydrologic consequences and protective measures to enable the Cabinet to assess the cumulative impacts of all anticipated mining on the hydrologic balance, and to assure that the hydrologic balance on and off the mine site will protected;
- identify and describe the adequacy and suitability of the alternative sources of water supply that could be developed for existing premining uses and approved postmining land uses;
- include as part of the mining and reclamation plan a subsidence control plan that:
includes a survey of quality and quantity of each water supply that could be contaminated, diminished or interrupted by subsidence;
describes the physical conditions, such as depth to cover, seam thickness and lithology of overlying strata that affect the likelihood and extent of subsidence and subsidence related damage;
describes in detail those measures to be taken to prevent or minimize subsidence and subsidence related damage.
It is against this backdrop that the adequacy of the permit submittal is to be measured with respect to protection against subsidence and subsidence related damage to the individual and community water supplies in the Lynch area.
PRELIMINARY ASSESSMENT OF PERMIT AMENDMENT APPLICATION BY MORGAN WORDWIDE CONSULANTS, INC.
KRC requested that Morgan Worldwide Consultants conduct a review of the permit application and most recent formal revision to the amendment, including the mine maps provided most recently by the Department. The preliminary review is reprinted below in its entirety:
At your request Morgan Worldwide has conducted a preliminary review of the Amendment #1 application for Permit #848-5411. Our primary focus has been on the Subsidence Control Plan and the effect of the proposed mining on the Darby Mine Reservoir.
The primary concern of our review relates to the inability to determine the areas where the "50% Recovery Zone" is applicable. The application proposes protection of potentially impacted items based on the depth of cover. For instance protection of perennial streams will be provided where there is less than 50 times seam height plus 100 feet.
Yet nowhere in the application is there an overburden isopach. An overburden isopach is created by modeling the elevation of the top of coal and subtracting those elevations from the surface elevations. The overburden isopach clearly indicates zones where protection is required.
It is also confusing to use a multiple of seam height. Either the applicant knows the seam thickness or they don't. If they do then a simple overburden thickness should be used to aid clarity. If the applicant does not know the seam thickness then how can they correctly identify the protection zone?
The other advantage of a coal seam elevation isopach is that it allows the configuration of the coal seam to be reviewed and any gaps in geologic data clearly identified.
There is no explanation of why the protection zone applicability is different for the protection of perennial streams when compared to power lines. For instance perennial stream protection is provided if the overburden thickness is less than 50 times the seam height plus 100 feet. For power lines protection is provided if the overburden thickness is less than 50 times the seam height plus 150 feet with an additional 150 feet safety factor.
The protection of the Darby Seam reservoir is proposed by limiting mining recovery to 50%. The interburden between the proposed mining in the Harlan seam and the Darby workings is approximately 150 feet. This thickness is based on one hole (BMR-05-05). There is no discussion to indicate if this thickness is representative. The potential subsidence mechanisms that could affect the abandoned Darby workings have not been fully analyzed. The only discussion is in the PHC which states that the interval is adequate to protect against chimney subsidence as the pressure arch ".... is anticipated to not exceed 40 feet." There is no discussion of the proposed bolting plan or the competency of the mine roof. It is difficult to reconcile the applicant’s own representation that greater than 550 feet is required to protect a power line but only 150 feet is adequate to provide protection for a reservoir that is the water supply for Lynch.
In addition to the inadequate discussion of the interburden thickness between the Darby seam and the Harlan seam there is no discussion of potential jointing or fractures that could provide interconnection between the two horizons.
The application does not provide any mechanism to verify the configuration of any particular mining area. As the "50% Recovery Zone" is such a critical component of the subsidence control plan there must be some method for the effected parties, be it the customers of the Lynch water system or KU, to ensure the protection proposed is actually provided.
Our review of the permit over the last months has indicated that the amendment is a moving target and therefore we request the opportunity to provide additional comments as additional submissions are made by the applicant.
Please contact us if you have any questions.
The MWC review raises these questions, which KRC believes must be answered by the permit applicant before further technical review can be conducted by the Division of Permits, and which issues must be resolved prior to issuance of any permit amendment:
1. The areas that will be limited to 50% recovery must be clearly delineated on the map, and based on adequate geologic information concerning the strike, dip and location of the seam and depth of cover.
2. Subsidence protection must be provided for all intermittent streams in addition to perennial streams. There is no categorical exemption from stream buffer protection for intermittent streams, and protection of the quality and quantity of surface water resources and the biological integrity of existing benthic communities extends to intermittent stream reaches as well as perennial. 18:060 requires that underground mining activities not cause or contribute to the violation of applicable state or federal water quality standards and not cause significant detrimental effects on the water quantity or quality of the intermittent or perennial streams. The buffer zone protections must be extended to all intermittent streams in order to satisfy these obligations, and that extension of buffer zone must be marked clearly on the MRP map.
3. Additional geologic information is needed concerning the depth and competency of the strata between the land surface and the seam proposed to be mined. The use of data from a single hole (BMR-05-05) to estimate the extent of interburden between the proposed Harlan seam and the Darby workings is clearly insufficient.
4. Significantly more information must be provided regarding the justification for undermining the Darby reservoir, and on the ability of the company to replace the water supplies in quality and quantity to all existing users and for the community, without cost to the community. The evaluation procedures and criteria developed in the 2001 Report Criteria for Evaluating The Potential For Impoundment Leaks Into Underground Mines (Existing and Proposed Impoundments), which can be found on-line at http://www.osmre.gov/martincounty030402.htm, a copy of which is attached, should be utilized to assure protection of the community water supply and adequacy of the evaluation for subsidence impacts.
5. The Division of Permits should review existing technical literature, including, among other reports, Bureau of Mines Circular 8741 (Babcock and Hooker, Results of Research To Develop Guidelines for Mining Near Surface And Underground Bodies of Water, 1977) and the other technical studies identified in response to the Martin County Slurry Impoundment pool failure, which can be found on-line at http://www.osmre.gov/martincounty030402.htm and which are incorporated herein by reference. Consistent with the evaluative suggestions of BOM Circular 8741, a safety zone should be established in which no underground mining is permitted for a depth of 350 feet below the reservoir and extending laterally beyond the angle of draw and the zone in which deformation of overlying strata might cause fractures to propagate and intersect the Darby Seam Reservoir. The ability of the Cabinet to limit the percent of extraction presupposes an ability to preclude such extraction where necessary to assure that the water resources will be protected.
After such time as the company has revised the permit application to include information responsive to these concerns, KRC requests that a second permit conference be scheduled after a period of thirty (30) days in which to review and provide supplemental comment.
KRC is concerned as to how, as a practical matter, the Department will assure the government and people of Lynch that the underground mining activities are in compliance with the approved mining and subsidence control plans if and when the permit amendment is issued. The issuance of a Notice of Non-Compliance to Stillhouse Mining, who is the operator of Harlan Reclamation Permit 848-0198, for conducting mining operations off-permit, raises a legitimate question as to whether Lynch can expect similar potential noncompliance issues here, since Stillhouse Mining is currently identified as the operator of the permit under review, 848-5411.
Whatever plan is approved should contain a requirement to provide updated mapping to the City and filing a public review copy on a monthly rather than annual basis, including all of the detailed information required under 401 KAR 18:210 Section 5(1). The Cabinet has clear authority to require such mapping to be done at more frequent intervals, and this circumstance clearly justifies such a requirement. The mine mapping should be prepared and certified by a registered professional engineer based on closed loop survey and use of GPS technology to assure accuracy, consistent with the recommendations by the National Academy of Sciences.
Extension of Comment Period
Finally, KRC requests that an additional seven business days be provided for public comment after today’s permit conference. The serial revisions to the mine map (including the as-yet informal revision recently provided to the City) has made difficult the timely review of the application and has caused some waste of both time and money. An additional seven business days in which to finalize review and these comments is reasonable under the circumstances.
Thank you for your consideration of these concerns,