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

KRC requests hearing, and EIS on proposed barge facility in Meade County  Posted: December 1, 2009




November 30, 2009

Todd Hagman, CELRL-OP-FS
U.S. Army Corps of Engineers, Louisville District
Post Office Box 59
Louisville, Kentucky 41759


Re: Meade County Quarry, LLC
Public Notice 2008-01072-teh

Dear Mr. Hagman:

These comments have been developed after reviewing the Public Notice and the associated maps concerning the proposal by Meade County Quarry, LLC (hereinafter “MCQ”) to install a barge loading and unloading terminal to access the Ohio River for shipment of quarried limestone from a quarry located at 2595 Big Bend Road in Battletown, Meade County, Kentucky. The applicant also proposes to load and unload numerous other material for which it is not currently licensed or permitted to extract, including sands, gravel, burnt lime cement, coal, coke, flyash, iron, iron ore, and steel products.

The Kentucky Resources Council, Inc., is a nonprofit, membership-based organization dedicated to prudent use and conservation of the natural resources of the Commonwealth. KRC provides legal and technical assistance without charge to individuals, to communities and community organizations, and to local governments concerning air, waste, water, and resource extraction issues. KRC represents David Bell, who owns property on Big Bend Road that fronts the Ohio River approximately 2.5 miles downstream from the proposed quarry operation, and who is currently involved in litigation before the Kentucky Energy and Environment Cabinet challenging the issuance of a non-coal mining permit to MCQ (Bell v. EEC and Meade County Quarry LLC, File No. NCP 29894-039, Permit No. 082-9409), and also challenging the determination of the Meade County Fiscal Court to change the zoning on the subject property in a manner that will allow crushing and sizing of the mined mineral on site (Bell v. Meade County Fiscal Court, Meade Circuit Court Case No. 09-CI-00430).

The applicant has requested authorization pursuant to Section 10 of the Rivers and Harbors Act to construct a barge loading/unloading terminal for limestone, sands, gravel, burnt lime cement, coal, coke, flyash, iron, iron ore and steel products, including a 12 barge fleeting area approximately 900 feet long.

Summary of Comments

1. The proposed activity constitutes major federal action significantly affecting the human environment, within the meaning of the National Environmental Policy Act and the implementing regulations of the Corps of Engineers, and must be accompanied by the development of an Environmental Impact Statement prepared in accordance with the National Environmental Policy Act.

2. The proposed activity is, by virtue of having been incorporated into the state mining permit application, apparently a critical factor in the viability of the mining activity, and as such, the scope of the Corps’ inquiry must necessarily include both the direct impacts of the dredging, the upland placement of dredged material, and the increase in commercial barge traffic in a constrained portion of the Ohio River, and also must include the direct, indirect and cumulative impacts of the proposed quarrying operation on the existing land uses, including protection of structures from blasting, the increased noise, disruption of other land uses of lesser intensity, the potential for adverse impacts on groundwater, and other consequences of introducing an industrial-scale mining operation into a rural agricultural and residential area.

Unless and until such analyses are conducted and it is demonstrated convincingly that all impacts have been assessed, issuance of the requested authorization would be contrary to the “public interest.” KRC respectfully requests that the application be denied without prejudice to resubmit once these actions have been taken.

I. NEPA Compliance

A decision by the U.S. Army Corps of Engineers to approve the installation of a barge loading and unloading terminal to access the Ohio River for shipment of limestone, sands, gravels, burnt lime cement, coal, coke, flyash, iron, iron ore and steel products is plainly subject to the requirements of the National Environmental Policy Act as “major federal action” potentially having a significant effect on the human environment. In a situation where an applicant requests a federal permitting action, such as is the case here, the USACE has a non-delegable responsibility to assure that the requirements of the National Environmental Policy Act are satisfied.

The Council on Environmental Quality regulations, as well as those of the USACE, require that the agency determine the appropriate scope of the "proposal" under consideration, as prelude to assessing the direct, indirect and cumulative effects and determining what level of environmental analysis and documentation is appropriate.

The scope of this “proposal,” must, for NEPA purposes, includes both the direct impacts of dredging in order to support installation of the barge loading and unloading facility, but also all filling, road construction, excavation and other land-altering activity proposed in support of the loading and unloading operation, including the mining activity. Inasmuch as the applicant has incorporated the barge loading and unloading facility into the state-approved permit for non-coal operations, (which include only limestone mining), the proposed loading and unloading terminal is integral to the viability of the mining operation, and thus must be viewed as a linchpin of the proposed mine. Whether viewed as a direct impact of the requested authorization or an indirect impact of same, the scope of federal control and authority over the proposed activity plainly encompasses both the direct impacts of the proposed fleeting facility, and the impacts of the quarrying and mineral storage activity on land, air, water resources and the quality of life in the Battletown community.

While it might be argued that the direct effects of federal permitting actions should be severed from the indirect effects that might follow from the permitting action because of the federal involvement is focused on the aquatic impacts of the dredging and barge loading and unloading rather than terrestrial impacts from on-shore mining and storage facilities, the weight of authority runs contrary to this approach.

In the case of Colorado River Indian Tribes v. Marsh, 605 F.Supp. 1425 (D.C. Cal. l985), the District Court considered and rejected the proposition that the Corps could limit consideration of the environmental effects of a shoreline stabilization proposal to the direct effects of the riprap placement, and not consider for NEPA purposes the 156-acre residential and commercial development to be built on the area thus stabilized. The Court rejected the argument in this manner:

To limit the scope to only "major" federal involvement,
ignoring the potential for significant impact, seems
incongruous to the avowed intent of NEPA to maintain
environmental quality. It is not the degree of federal
involvement that influences the standard of living of our
society, but is instead, the potential and degree of impact
from development that bears upon the overall welfare and
enjoyment of our society.

* * * *

In limiting the scope of its inquiry, the Corps acted improperly
and contrary to the mandates of NEPA. The Corps' decision
to assess only those impacts physically dependent upon act-
ivities within its redefined jurisdiction, i.e., the river and its
immediate banks, was tantamount to limiting its assessment
to primary impacts. The Corps proceeded to assess the
project with tunnel vision. In City of Davis, the Ninth Circuit
strongly stressed that direct, indirect (secondary) and cumu-
lative impacts of proposed major federal action must be
assessed. 621 F.2d at 676-677.

Colorado Indian Tribes, supra at 1432, 1433.

See also: City of Davis v. Coleman, 521 F.2d 661 (9th Cir. ); Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1321-22 (8th Cir. l974) ("To separate the consideration of the magnitude of federal action from its impact on the environment does little to foster the purposes of the Act[.]").

KRC requests that the USACE begin the scoping process for an EIS for both the barge loading and unloading facility, the storage areas for the many materials proposed to be loaded and unloaded at the site, and the proposed mining complex, and that the scope of that analysis include the impact of the proposed mine and the cumulative impact on forest fragmentation, habitat loss, water quality and water resources, air quality, blasting, and nuisance impacts of the proposed mining operation and all existing and anticipated future mining by the applicant and other mining companies in the Battletown area.

The Council believes that the scale, the location, and the possible environmental consequences associated with the proposed activity, demand preparation of an Environmental Impact Statement to guide and instruct and inform your agency in the review of the proposed project. The test for whether an environmental impact statement is required is whether the proposal for action is "major federal action" that may "significantly" affect the human environment. "Major federal action" includes actions with "effects that may be major and which are potentially subject to Federal control and responsibility." 40 CFR 1508.l8. Major reinforces but, according to the Council on Environmental Quality, has no meaning independent of the term "significantly." 40 CFR 1505.18.

In order to determine the "significance" of the federal action, both the context and intensity of the action must be considered. Both short and long-term effects, and direct as well as indirect effects must be considered. Among the indirect effects that must be evaluated in determining whether an EIS is required are:

Indirect effects, which are caused by the action and are later
in time or farther removed in distance, but are still reasonably
Foreseeable. Indirect effects may include growth inducing
effects and other effects related to induced changes in the
pattern of land use, population density or growth rate, and
related effects on air and water and other natural systems,
including ecosystems.

40 CFR 1508.8(b).

Taken as a whole, the CEQ regulations define major federal actions as those with effects (direct, indirect and cumulative) that may be major and which are potentially subject to federal control and responsibility. This is not a situation where the area of secondary impacts, or the types of anticipated effects, are so remote or speculative so as to defy characterization and assessment.

The individual and cumulative impacts of this proposed operation against the backdrop of the extensive past and current mining within the Battletown area, require that a thorough cumulative impact assessment be undertaken.

II. The “public interest” requires that the proposal be denied at this time.

As you are aware, the Corps of Engineers has developed a policy which is applicable to the review of all applications for a Department of the Army permit, called the “public interest review.” 33 C.F.R. 320.4(a)(1). In addition to the obligations of your agency under the National Environmental Policy Act, the public interest review policy instructs that

the decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest. Evaluation of the probable impact which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to authorize a proposal, and if so, the conditions under which it will be allowed to occur, are therefore determined by the outcome of this general balancing process.

* * * *

All factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economic, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people.

33 C.F.R. 320.4(a)(1).

The obligation to conduct a public interest review is not satisfied merely by undertaking the required analysis under the National Environmental Policy Act, but rather is a distinct obligation from both the NEPA mandate and the requirements of Section 10 of the Rivers and Harbors Act. Even if it were determined that the environmental consequences of the proposed project were without significant environmental effect, (a proposition which is not supported by the record), the responsibility of the agency under the public interest review is distinct and separate from its obligations under NEPA, as recognized in Van Abbema v. Fornell, 807 F.2d 633, 637-8 (7th Cir. 1986):

[r]elative absence of significant environmental effects does not
translate directly into overall social benefit. The Corps must follow two distinct, if parallel, guidelines in issuing a permit after a FONS!. First, Section 102(2)(E) of NEPA, 42 D.S.C. 4332(2)(E), requires all federal agencies to 'study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.' And second, Corps regulations require that a permit shall issue only after a general 'public interest review' determines that the benefits outweigh the detriments of a proposal.

Id. at 638.

In this instance, the proposed mining activity and associate barge traffic will intrude on a heretofore residential, recreational and agricultural area, and is extremely controversial for these reasons. The potential adverse impact on the quality of life within the Battletown area, the lack of adequate protection by the Commonwealth of Kentucky in its state permitting process for non-coal mines, of structures from blasting impacts, and of groundwater resources from adverse impacts on quality and quantity of groundwater, demands that the agency (a) grant the request for a public hearing in order that the decision on the requested Section 10 permit be fully informed, (b) commence the process of an EIS in order to consider the impact of all existing and anticipated mining on jurisdictional waters under Section 10 of the Rivers and Harbors Act of 1899 and under Section 404 of the Clean Water Act, and (c) deny without prejudice the pending application until compliance is attained with the requirements of NEPA, the CWA and Rivers and Harbors Act, as well as the “public interest” review requirements of the COE regulations.

Thank you for your consideration of these comments.

Cordially,

Tom FitzGerald

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