Edmonson Stone Quarry Appeal Resolved Posted: April 13, 2009
COMMONWEALTH OF KENTUCKY
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET
FILES NO. DOW-29314-039 and DOW-29333-039
KENTUCKY WATERWAYS ALLIANCE
and KARST ENVIRONMENTAL EDUCATION
AND PROTECTION, INC. PETITIONERS
ENVIRONMENTAL AND PUBLIC
EDMONSON COUNTY STONE RESPONDENTS
IN RE: KPDES PERMIT NO. KY0106747
AGREED ORDER OF DISMISSAL
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WHEREAS, the Environmental and Public Protection Cabinet (hereinafter "the Cabinet") is an executive agency of the Commonwealth charged with the statutory duty to issue Kentucky Pollutant Discharge Elimination System (“KPDES”) permits pursuant to KRS 224.16-050 and regulations promulgated pursuant to that statute;
WHEREAS, Respondent, Harlan Stice d/b/a Edmonson County Stone is the Permittee under KPDES Permit No. KY0106747 (hereinafter “the Permit”) issued by the Cabinet for the treatment and discharge of precipitation-based drainage from a limestone quarry (“facility”) in Rocky Hill, Edmonson County, Kentucky, effective June 13, 2007, which is an initial permit action for a new discharger limestone quarry;
WHEREAS, the Permit authorizes a discharge of precipitation-based drainage from the facility to Turnhole Spring in accordance with conditions imposed by the Permit;
WHEREAS, due to the presence of an endangered species of Kentucky Cave Shrimp, Palaemonias ganteri, Turnhole Spring is classified as an Outstanding State Resource Water pursuant to 401 KAR 5:026, Section 5;
WHEREAS, Petitioner, Kentucky Waterways Alliance, Inc., (“KWA”) and Karst Environmental Education and Protection, Inc. (“KEEP”) are both non-profit environmental advocacy organizations incorporated under the laws of the Commonwealth of Kentucky;
WHEREAS, Petitioners have each filed a petition for administrative hearing to challenge certain provisions of the Permit;
WHEREAS, the parties have engaged in mediation, and all parties wish to resolve the petitions for administrative hearing through satisfaction of all conditions set forth herein; and
WHEREAS, the parties wish to conserve resources and promote judicial economy;
NOW THEREFORE, in the interest of resolving the claims and controversies raised in Petitioners’ petitions for administrative hearing, Petitioners, the Cabinet and Harlan Stice d/b/a Edmonson County Stone hereby consent to entry of this Agreed Order and agree as follows:
1. Within a reasonable time following entry of this Agreed Order, the Cabinet will convene a meeting to be held in the vicinity of the facility, inviting the Permittee, Petitioners, representatives of the National Park Service, U.S. Fish and Wildlife Service, Kentucky Geological Survey, Western Kentucky University, the University of Kentucky, and other entities with technical knowledge or expertise in karst hydrology and/or protection of fish and wildlife resources including the federally-protected Kentucky Cave Shrimp, for the purposes of providing available data, making recommendations to the cabinet on additional site-specific data collection, and providing recommendations regarding the design of the Plan of Study of the water resources of the Turnhole Springs Basin that the Permittee is obligated to develop and submit to the Division of Water under Part III-2 C of the Permit. The Plan of Study shall be designed to collect such baseline information as is necessary to enable a prediction of the probable hydrologic consequences of the quarry activity on the Turnhole Springs Basin.
Among the issues for which the cabinet will solicit input from the entities identified in this paragraph, are:
a. Identification of existing reliable biological, chemical, hydrologic and geologic data that could be used to predict the probable consequences of the proposed quarrying activity on the hydrologic balance, including the quality and quantity, recharge and flow characteristics of surface and groundwater in the vicinity of the proposed quarry;
b. Recommendations concerning any additional site-specific hydrologic, geologic, or chemical data that should be collected in order to allow the agency to make a finding that the proposed quarrying activity will not cause an adverse impact to any threatened or endangered species and will not violate narrative or numerical water quality standards for any receiving surface or subsurface streams;
c. Recommendations concerning the location(s), frequency, parameters and method(s) for sampling background conditions and recommendations for location(s), frequency, parameters and method(s) for detecting whether precipitation based drainage during mining activities is causing an adverse impact to any threatened or endangered species or is violating narrative or numerical water quality standards for any receiving surface or subsurface streams;
d. Recommendations concerning what would constitute an “adverse impact” on the Kentucky Cave Shrimp;
e. Identification of any adverse impacts to the Kentucky Cave Shrimp or possible violations of narrative or numerical water quality standards for any receiving surface or subsurface streams likely to result from the proposed quarrying operation, and recommendations of mitigation measures that should be employed to avoid such impacts; and
f. Identification of those areas of recharge or hydrologic connection with the subsurface ground water system for which buffer zones should be employed in order to prevent instream disturbances, as required by Part III-2 C of the Permit.
2. Upon receipt of the recommendations from all contributing entities, the cabinet shall provide the Permittee the design requirements for an acceptable Plan of Study.
3. Upon completion of the data collection and analytical requirements of the Plan of Study, the Permittee shall submit a Pre-Mining Report to the cabinet for review, and provide a copy to those entities identified in Numerical Paragraph 2 who have so requested. The cabinet shall accept comments from those entities for a period of thirty (30) days after the entities receive the Report, and the cabinet shall within a reasonable time thereafter determine whether to reopen the Permit in order to include any additional mitigation measures, permit conditions, changes in frequency, manner and location of sampling, as the cabinet deems is necessary to assure compliance with applicable state and federal law.
4. The determination not to reopen the Permit, or the issuance of the Permit after reopening and modification to the terms of the Permit, shall be subject to administrative and judicial review by all parties as provided under K.R.S. Chapter 224 for all final agency action.
5. This Agreed Order shall be a final order of the Cabinet and Petitioners’ petitions for administrative hearing shall be dismissed upon entry of the Agreed Order of Dismissal by the Secretary. Entry of this Agreed Order of Dismissal does not preclude the Cabinet from issuing, modifying, revoking and reissuing, denying, revoking or terminating the KPDES permit in accordance with 401 KAR 5:050 through 5:085, inclusive. If the Cabinet undertakes to issue, modify, revoke and reissue, deny, revoke or terminate the KPDES permit, Edmonson County Stone, KWA and KEEP retain all of their defenses and rights to contest such actions, except that neither Edmonson County Stone nor KWA or KEEP shall use this Agreed Order of Dismissal as a defense.
6. This Agreed Order of Dismissal may not be amended except by a
written order of the Cabinet's Secretary.
7. The Cabinet does not, by its consent to the entry of this Agreed Order of Dismissal, warrant or aver in any manner that Edmonson County Stone’s complete compliance with this Agreed Order of Dismissal will result in compliance with the provisions of KRS Chapter 224 and the regulations promulgated pursuant thereto. Notwithstanding the Cabinet's review and approval of any plans formulated pursuant to this Agreed Order, Edmonson County Stone shall remain solely responsible for compliance with the terms of KRS Chapter 224 and the regulations promulgated pursuant thereto, this Agreed Order and any permit requirements.
8. The parties agree that the terms of this Agreed Order are unique and apply specifically and exclusively to the unique facility referenced herein and are inapplicable to any other site or facility.
9. This Agreed Order of Dismissal shall be of no force and effect unless and until it is entered by the Secretary or his designee as evidenced by his signature thereon.