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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

Bill Exempting Strip Mining In Streams From Mine Permitting If Done For "Farm Purposes" Could Be Bad For The Environment And Farmers  Posted: March 1, 2013

HOUSE BILL 165 BAD FOR ENVIRONMENT AND FARMERS

HB 165, which is pending in the Senate, would create a new exemption from mining regulations for strip mining or excavation of “vein minerals” such as limestone, dolomite, clay, and fluorspar, in waterways.

Under current law, activity defined in this bill as a “rock quarry,” is subject to state mining regulation in order to protect public safety, property, and the environment, and is regulated irrespective of the disposition of the excavated material, except for excavation or grading in aid of on-site farming.

KRS 350.300, the Interstate Mining Compact, is interpreted by the Department for Natural Resources as already exempting sand and gravel removal by for on-farm use. This bill goes much further than exempting sand and gravel removal by farmers for on-farm use.

What are the problems with the bill?

1. The bill would allow mining in streams, wetlands, stream channels, and other “waterways” with no sediment controls, with no blasting plan, and without maintaining a minimum buffer zone distance from property lines and occupied homes on neighboring properties.

2. There are no limits, either in size or depth of disturbance, or in amount of tonnage that could be “excavated” or “strip mined.”

3. By expanding the existing agricultural exemption to allow “strip mining” of vein minerals, the exemption allows not only excavation of minerals, but also the crushing, screening and sizing of mined minerals without a mining permit.

4. The bill would likely be held to violate the state constitution as special legislation, since it creates a broad exemption allowing a class of landowners to engage in mining that would otherwise be regulated but for the classification of the land as “farm” land and the end use as “farm use;” when the adverse impacts of mining vein minerals in streams and other waterways is not rationally related to the classification created, nor are the severity of those impacts affected by the end use of the quarried minerals.

5. The exemption created by the bill is subject to abuse because of the lack of definitions and lack of appropriate limits on the scope of the exemption. The bill allows strip mining and excavation in “waterways” but does not define the term. Lacking a definition, a reviewing court might default to the definition of “waters” or “waters of the commonwealth” as defined in KRC Chapter 224, which would include in addition to rivers, streams, lakes, impounding reservoirs, springs, and marshes.

6. The exemption for quarrying and transporting the minerals from “private farm lands” for “farm purposes” does not define either key term. Additionally, the “farm purposes” are not limited to on-farm” use on the property where the mineral was excavated.

7. Allowing transported mineral to cross public roads to a person’s other “private farm lands” opens the door to abuse that would be very difficult to police. The ill-defined exemption would invite the unscrupulous quarry operator to skirt the regulatory requirements by claiming to be quarrying from a “farm” for “farm purposes” at another location, while selling the quarried material off-site and undercutting competitors who play by the rules, is clear. The lack of any recordkeeping or reporting requirements, and the lack of obligation to notify the Cabinet of the proposed quarrying, would prevent the Cabinet from being able to assure that the limits of such an exemption were not transgressed.

8. Policing the exemption would be almost impossible. There are some 129 noncoal operators holding 229 noncoal permits in the Commonwealth, and only five (5) inspectors assigned to these operations, making it very difficult for the state to police such an exemption. The inspector would have to observe the excavation of the material and track the disposition of each load of material in order to determine whether it is used for “farm purposes” and is used on property owned by the same individual, or whether it is being improperly sold or used for other purposes. The potential for abuse of the exemption is significant, though I am certain it is not what the sponsor intended.

9. The exemption would not benefit farmers, since having a noncoal mine permit assures protection of adjoining lands and the environment, and provides a degree of protection for the permit holder if there are problems, provided that the permit is being followed. Remove the permit, and the farmer has no defense against potentially significant penalties if his or her actions result in damage to surface or groundwater, adjoining properties or structures.

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