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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Notice Served Of Intention To Sue Over Policy Allowing Permits Without Proof of Legal Right To Enter And Mine  Posted: November 16, 2009

NOTICE OF VIOLATION AND INTENTION TO SUE
PURSUANT TO 30 U.S.C. § 1270(a)(2) AND K.R.S. § 350.250(1)

To:

Len Peters, Secretary
Kentucky Energy and Environment Cabinet
500 Mero Street 5th Floor, CPT
Frankfort, Kentucky 40601

Carl Campbell, Commissioner
Kentucky Department for Natural Resources
#2 Hudson Hollow
Frankfort, Kentucky 40601

Jack Conway, Attorney General of Kentucky
The Capitol, Suite 118
700 Capitol Avenue
Frankfort, Kentucky 40601-3449

Pursuant to 30 U.S.C. § 1270(b), 30 C.F.R. § 700.13, KRS 350.250(1), and 405 K.A.R. § 7:100, the Kentucky Resources Council, Inc. (“KRC”), notifies each of you that in the absence of immediate action to ensure performance of certain statutory duties under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328 (“SMCRA”) and the approved Kentucky state regulatory program that implements that statute, 30 C.F.R. Part 917 (“the Kentucky program”), KRC intends to initiate a civil action or mandamus action pursuant to 30 U.S.C. § 1270, K.R.S. 350.250(1), or both of those statutes against Mr. Peters, in his capacity as Secretary of the Energy and Environment Cabinet, Mr. Campbell, in his capacity as Commissioner of the Department for Natural Resources, the Kentucky Energy and Environment Cabinet, the Kentucky Department for Natural Resources, or all or any combination of them.

KRC intends to commence such litigation sixty (60) days from the date on which they mail this notice, or as soon thereafter as counsel may prepare and file the necessary papers. However, the KRC reserves the right to file the contemplated civil action or mandamus action within the said 60-day period if any pending application for a permit to conduct surface coal mining and reclamation operations issued under the unlawful “33 1/3” policy, or any existing permit unlawfully issued under that policy, constitutes a threat to the health or safety of any member of KRC or would immediately affect the legal interest of any such member.

I. THE PROVISIONS OF SMCRA AND THE KENTUCKY PROGRAM THAT IMPOSE THE MANDATORY, NON-DISCRETIONARY ACTS OR DUTIES THAT YOU HAVE NOT PERFORMED

Pursuant to 30 U.S.C. § 1211(c)(1) and (c)(2) and 30 C.F.R. § 733.11, States that obtain approval from the Secretary of the Interior of state regulatory programs for implementing SMCRA have a continuing duty under federal law to implement, administer, enforce, and maintain the approved program in accordance with SMCRA, its implementing federal regulations, and the provisions of the approved program itself.

Accordingly, both SMCRA and the Kentucky program impose on the Kentucky Department for Natural Resources and the officials who control its actions (collectively, “Kentucky DNR”) a mandatory, non-discretionary duty to withhold approval of any application for (1) a new surface mining permit or (2) a significant revision of any previously issued surface mining permit, unless and until the application affirmatively demonstrates and Kentucky DNR finds in writing -- on the basis of the information set forth in the application or from information otherwise available which Kentucky DNR documents in its approval papers -- that, among other things:

(1) “the permit application is complete and accurate and in compliance with all requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24[,]” (405 KAR 8:010 Section 14(1)(emphasis added).

KRS 350.060(3) requires that a person “desiring a permit to engage in surface coal mining operations shall file an application which shall state:

* * *

(b) The owner or owners of the surface of the area of land to be affected by the permit and the owner or owners of all surface area adjacent to any part of the affected area;

(c) The owner or owners of the coal to be mined;

[and]

(d) The source of the applicant’s legal right to mine the coal on the land affected by the permit[.]”

KRS 350.060(12) requires that “all the areas overlying underground workings be permitted but that the areas overlying underground workings not affected by operations and facilities occurring on the surface shall not be subject to the payment of acreage fees or bond requirements[.]”

It is noteworthy that the statute contains no exemption from the obligation to demonstrate the legal right to enter and mine under such permitted lands, for where the legislature has not created exceptions to the terms of a statute, it must be presumed that none were intended. Lindall v. Kentucky Retirement Systems, Ky. App.112 S.W.3d 391, 394 (2003).

The obligations of a permit applicant with respect to the demonstration of a legal right to enter and mine by either surface or underground methods, arises under 30 U.S.C. 1257, which demands that the permit application “provide to the regulatory authority a statement of those documents upon which the applicant bases his legal right to enter and commence surface mining operations on the area affected[,]” and 30 U.S.C. 1260(b)(1) which requires that the “application affirmatively demonstrate[]” and that the “regulatory authority find[] in writing on the basis of the information set forth in the application or from information otherwise available which will be documented in the approval” that “(1) the permit application is accurate and complete and that all the requirements of this chapter and the State or Federal program have been complied with”, which would include sub nom the obligation to demonstrate the right to enter and mine.

405 KAR 8:040 Section 4(1) requires that:

“(1) Each application shall contain a description of the documents upon which the applicant bases his or her legal right to enter and begin underground mining activities in the permit area and whether that right is the subject of pending litigation. The description shall identify those documents by type and date of execution, identify the specific lands to which the document pertains, and explain the legal rights claimed by the applicant.” (Emphasis added).

Additional requirements attach to an underground mining operation where there are associated surface operations involve the surface mining of coal and the surface and mineral estates have been severed. See 405 KAR 8:040 (2).

II. KENTUCKY DNR’S PATTERN AND PRACTICE OF FAILING TO CARRY OUT EACH OF THESE MANDATORY, NON-DISCRETIONARY DUTIES

It is axiomatic that "[a]dministrative regulations properly adopted and filed have the full effect of law and are required to be enforced." Harrison's Sanitarium v. Com, Dept, of Health, Ky., 417 S.W.2d 137 138 (1967).

Yet, despite the statutory and regulatory requirements just described, Kentucky DNR has engaged in a pattern and practice of unlawfully approving applications for new or significantly revised permits for underground coal mining and reclamation operations without requiring, for all areas within the permit, a demonstration of the legal right to enter and mine.

In clear violation of 405 KAR 8:040 Section 4(1), the agency has engaged in a pattern and practice of issuance of such permits where the applicant has demonstrated the legal right to enter and mine on as little as one-third of the lands to be mined.

The agency has done so under a so-called “33 1/3% policy” that is not codified into regulation, nor statute, and is in clear conflict with the plain language of 405 KAR 8:040 Section (1).

The application of such a policy is also in direct and irreconcilable conflict with the agency’s obligations under KRS Chapter 13A, which prohibits an administrative agency from regulating by policy, and specifically prohibits the agency from modifying or limiting the effect of a statute or regulation by policy.

III. RELIEF REQUESTED

KRC intends to commence a civil action under 30 U.S.C. § 1270(a)(2) and/or KRS § 350.250(1) unless:

(a) DNR ceases immediately the application of the “33 1/3% policy” and demands that for all pending and future underground mining permit applications, the applicant demonstrate the right to enter and mine for 100% of the lands proposed to be affected by underground coal removal that are included in the permit application;

(b) DNR immediately modify and reissue all existing permits that include lands for which the legal right to enter and mine has not been demonstrated, so that those permits include only those lands for which the demonstration of the legal right to enter and mine has been made.

IV. ADDITIONAL REQUIRED INFORMATION

The address of Kentucky Resources Council, Inc., is Post Office Box 1070, Frankfort, Kentucky 40602; its telephone number is (502) 875-2428.

Counsel for the Kentucky Resources Council, Inc. are:

Thomas J. FitzGerald
Liz D. Edmondson
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, KY 40602
(502) 875-2428


cc:

Kenneth Salazar, Secretary of the Interior
United States Department of the Interior
18th and C Streets, N.W.
Washington, D.C. 20240

Joseph Pizarchik, Director
Office of Surface Mining Reclamation and Enforcement
1951 Constitution Avenue N.W.
Washington, D.C. 20240

Thomas D. Shope, Regional Director
Appalachian Region
Office of Surface Mining Reclamation and Enforcement
Three Parkway Center
Pittsburgh, PA 15220

Joe Blackburn, Director
Office of Surface Mining Reclamation and Enforcement
2675 Regency Road
Lexington, Kentucky

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