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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

State Agrees With Most of KRC's Comments On Proposed State Surface Mining Regulation Changes  Posted: October 11, 2011

September 30, 2011

Michael Mullins, Regulation Coordinator
Department for Natural Resources
#2 Hudson Hollow
Frankfort, Kentucky 40601

By email Michael.Mullins@ky.gov

Dear Mr. Mullins:

These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc., a nonprofit membership organization incorporated under the laws of the Commonwealth of Kentucky and dedicated to prudent use and conservation of the natural resources of the Commonwealth. The Council provides legal, technical and policy assistance to community groups, conservation organizations, local governments, and low-income individuals on a wide range of issues, including the effects of surface and underground coal mining. KRC members include numerous individuals who live, work, and enjoy the natural resources of the coalfields of the Appalachian and Illinois Basin in the Commonwealth.

The Council has reviewed the proposed amendments to 405 KAR 5:085, 5:095, 7:091 and 12:020 and offers these comments:

405 KAR 5:085

With respect to Section 2(3)(c), KRC seeks assurance that it remains the practice within the Cabinet that no prior notice will be given to a permittee or operator of an inspection.

Section 3(1) of the regulation changes “any” inspector to “an” inspector. KRC recalls that when the Kentucky surface mining program was submitted to the federal Office of Surface Mining for approval in 1982, the Kentucky program did not require mandatory issuance by all field inspectors of appropriate enforcement orders (i.e. Notices of Non-Compliance or Cessation Orders) immediately upon discovery of a violation.

The change from “any” to “an” could be read to mean less than all field inspectors will issue such orders, and KRC suggests that “an” be replaced with “all” in order to remain consistent with the federal counterpart regulation. KRC requests also that the Cabinet reaffirm that any violation discovered by any field inspector will be subject to an enforcement order.

Section 3(4)(b), as rewritten, is no longer consistent with the federal regulation 30 CFR 722.12, since it eliminate the opportunity for extending the abatement time beyond 90 days when weather conditions do not permit. Additionally, as rewritten the regulation would allow an extension of the abatement period where it is not allowed under federal regulation.

Under 30 CFR 722.12(e)(4), the abatement period can be extended where “due to climatic conditions, abatement within 90 days clearly:

(i) Would cause more environmental harm than it would prevent; or

(ii) Requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act.”

Thus, the reference to MSHA standards arises only where climatic conditions make such actions potentially violative of safety standards. The change in the state regulation makes the safety standards reference a separate ground for extending abatement irrespective of climatic conditions, and in so doing, is less effective than the federal counterpart regulation, which limits such extensions more narrowly.

Section 4(2)(b) as amended is missing part of the sentence, and no longer requires issuance of a notice of non-compliance and remedial measures at the time of issuance of a CO.

405 KAR 5:095

In Section 1(4)(b) on p. 4 line 14, “or the permit is suspended” should read “if the permit is suspended”.

In Section 1(7), “limit of the number of witnesses” should read “limit the number of witnesses”.

In Section 1(14), the elimination of the phrase “his or her own” eliminates the ability of the Secretary to disregard the recommended order from the Hearing Officer and to adopt an order different than that recommended (in whole or in part). It should be revised to read “or issue the Secretary’s own final order.”

In Section 1(17), the elimination of “substantial” appears to allow the Secretary’s final order to be based on less-than-substantial evidence. Such an order would be in violation of the Kentucky Constitution Section 2, and would make the Secretary’s order inconsistent with KRS 350.0305, which requires that the order be based on substantial evidence as to matters of fact. “Substantial” should be reinserted where it is proposed for deletion.

In Section 3(2), the discretion of the Hearing Officer to impose conditions on the grant of temporary relief is removed, suggesting that the Hearing Officer is limited to granting or denying such relief without conditions. In order to maintain consistency with federal regulation, the deleted phrase “upon conditions as are deemed appropriate” should be reincluded, or the federal counterpart in 30 CFR 775.11(b)(2) of “under such conditions as it prescribes” should be used.

405 KAR 7:091

With the removal of Section 2, the remaining Sections should be renumbered.

In Section 1, p. 2 line 10, “establishes” should read “established”.

In Section 2(1)(b)1, KRC requests that the Cabinet clarify “which” law the Hearing Officer is obligated to give effect to, with respect to privileges. Does that mean Kentucky law and/or federal law? Is a Hearing Officer entitled to give effect to privileges recognized in other states but not in Kentucky?

In Section 2(4), the phrase “to verify allegations” makes no sense as proposed to be located. “To verify allegations” originally modified all of the preceding types of discovery. Documents are required to be produced for any number of reasons, including but not limited to for the purpose of verifying allegations. In order for the reorganized subsection to read properly, the phrase “to verify allegations” should be moved to line 5 to read “the moving party is relying on one of the following to verify allegations:”

Section 7(3) presupposes that all parties will have fax and email addresses, when for many low- and fixed-income coalfield residents, that is not the case. Those phrases should be modified with “if any” so as not to preclude filings by parties lacking either or both.

In Section 11, p. 14, line 22, the use of the word “establish” is nonsensical. If “set forth” is undesirable, use “provide”.

405 KAR 12:020

The use of “establishes” in the preamble language again is not an appropriate word. The Cabinet is obligated to issue enforcement orders as a mandatory matter, and replacement of “requires” with “establishes” could be read to weaken that mandatory obligation. Rather than use the awkward “establishes,” the Cabinet should either retain the existing language or replace it with “provides”, “demands”, or like language of command.

Page 4 Line 2 “establishes” should be “established”.

In Section 2(4)(b), the same problem is created as earlier discussed, and the revised regulation is no longer consistent with the federal regulation 30 CFR 722.12, since it eliminate the opportunity for extending the abatement time beyond 90 days when weather conditions do not permit. Additionally, as rewritten the regulation would allow an extension of the abatement period where it is not allowed under federal regulation.

Under 30 CFR 722.12(e)(4), the abatement period can be extended where “due to climatic conditions, abatement within 90 days clearly:

(i) Would cause more environmental harm than it would prevent; or

(ii) Requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act.”

Thus, the reference to MSHA standards arises only where climatic conditions make such actions potentially violative of safety standards. The change in the state regulation makes the safety standards reference a separate ground for extending abatement irrespective of climatic conditions, and in so doing, is less effective than the federal counterpart regulation, which limits such extensions more narrowly.

Page 8, line 2, “establish” should be “establish,” and “establish” should be replaced with “provided”, since at the time of issuance of the notice, the Cabinet is not required to establish the allegations, merely to make them. Proving, or “establishing” that a violation occurred is something left to administrative hearings.

Page 8 Line 9 removes “any”, thus raising the argument that all such orders must contain interim steps. The current language should be retained.

Thanks for your consideration of these comments.

Cordially,

/s/

Tom FitzGerald
Director

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