Drakes Creek Holding Limestone Permit Challenged Posted: September 9, 2013
COMMONWEALTH OF KENTUCKY
ENERGY AND ENVIRONMENT CABINET
FILE NO. ____________
PERMIT NO. 107-9401
DAVID CARVER and
RONDA CARVER PETITIONERS
V. PETITION FOR REVIEW
ENERGY AND ENVIRONMENT CABINET
DRAKES CREEK HOLDING COMPANY LLC RESPONDENTS
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Come the Petitioners, David Carver and Ronda Carver, by counsel, and herewith file this Petition for Review of the final determination of the Energy and Environment Cabinet, Department for Natural Resources (Cabinet), to issue a permit to Drakes Creek Holding Company, LLC to engage in the mining of limestone on 106.1 acres in Simpson County, in the West Fork of Drakes Creek watershed, and approximately .86 miles from the intersection of US Highway 1008 and the Ditmore Ford Road.
1. This petition for hearing arises under the authority of KRS 350.0301, and challenges the issuance of a non-coal permit to Drakes Creek Holding Company, LLC to operate a limestone mining operation in Simpson County, Kentucky, Application No. 107-9401. KRS 350.0301 authorizes the filing of a petition for administrative review of final determinations of the Respondent Cabinet arising under KRS Chapter 350. In relevant part, the statute provides as follows:
350.0301 PETITION CHALLENGING DETERMINATION OF CABINET; CONDUCT OF HEARINGS; ADMINISTRATIVE REGULATIONS
"(1) Any person who considers himself aggrieved by any determination made by the cabinet under this chapter may file, in accordance with administrative regulations promulgated by the cabinet under the provisions of this chapter, a petition alleging that the determination is contrary to law or fact and is injurious to him, the grounds and reasons therefor, and demand a hearing. Unless the cabinet considers that the petition is frivolous, it shall serve written notice of the petition on each person named therein and shall schedule a hearing before the cabinet not less than twenty-one (21) days after the date of the notice unless the person complained against waives in writing the twenty-one (21) day period.
The right to demand a hearing pursuant to this section shall be limited to a period of thirty (30) days after the petitioner has had actual notice of the determination complained of, or could reasonably have had notice."
2. 405 KAR 5:095 Section 1 similarly reflects the right to request an administrative hearing by persons other than the Cabinet.
3. This petition for review is filed within thirty (30) days of the date on which Ms. Carver received a letter from DMRE Director Billy A. Ratliff, informing her that the permit had been issued and of his right to request a hearing. Ms. Carver received the letter on August 8, 2013, as reflected in the certified mail return receipt that is in the DMRE permit file, and this petition for review is thus timely filed within the meaning of the applicable regulation and statute.
In response to an August 6, 2013 email inquiry, Ms. Carver also received an email on August 6, 2013 from Mark Tarter of the Non-Coal Section informing her that the permit had been signed by the Division Director. Assuming, for the sake of argument, that the email rather than the actual notification from the Division Director informing Ms. Carver of the decision and her appeal rights, constituted notice, this appeal is yet timely filed.
4. The issuance of the Permit 107-9401 is a final determination subject to review under KRS 350.0301 and 405 KAR 5:095.
5. The Cabinet has promulgated regulations governing requests for administrative hearings pertaining to noncoal mineral operations, at 405 KAR 5:095. In pertinent part, that regulation provides that
[a]ny person aggrieved by an order or determination of the
cabinet may request in writing that an administrative
hearing be conducted by the cabinet. The request shall be
filed with the Office of Administrative Hearings in
Frankfort. The request shall include a short and plain
statement identifying the basis of the request and the order
or determination being contested.
This petition for review requests a hearing be conducted by the Office of Administrative Hearings of the Cabinet, and below provides a statement identifying the basis of the request. The petition for review seeks a determination by the Hearing Officer and a final Order of the Secretary that the permit was issued in violation of the applicable statutory and regulatory criteria, and that the permit determination should be reversed.
6. Paragraphs 1 - 5 are incorporated herein by reference as if set forth below.
7. Petitioners David Carver and Ronda Carver are persons “aggrieved” within the meaning of the relevant statute, and haves standing to maintain this administrative review proceeding. Petitioners are landowners who have an ownership interest in and reside on property located at 1489 Ditmore Ford Rd, Franklin, KY 42134. The Carver property abuts the property on which Drakes Creek Holding Company LLC proposes to engage in limestone mining.
8. Petitioners have property interests that are or may be adversely affected by the proposed operation.
9. Petitioners also have interests in the peaceful use and enjoyment of their land and home that may be adversely affected by the conduct of the proposed open pit limestone mining operation, including economic, aesthetic and recreational interests, and safety interests, which may be affected by the mining of the limestone on the permitted property. Among the potential impacts of the mining operation that may adversely affect the interests of the Petitioner are potential vibrational damage from blasting of the limestone material and from the operation of equipment and related truck traffic, and potential nuisance, annoyance, discomfort associated with noise and dust from the operation of excavation equipment and truck haulage of the mined limestone.
10. Petitioners have standing to maintain this administrative appeal of the issuance of the permit to Drakes Creek Holding Company, LLC. They are persons with a cognizable interest that is or may be adversely affected by the operation of the limestone quarry, and are within the zone of interests sought to be protected by the state statute authorizing the non-coal regulatory program. A decision vacating the decision of the Cabinet to issue the challenged permit will redress the injury, and the causal link between the threatened harm and the Cabinet’s action is beyond reasonable dispute.
III. GROUNDS AND REASONS FOR THE PETITION
11. The allegations in paragraphs 1-10 are incorporated herein by reference.
12. KRS 350.0301 provides that the petition for review must allege that the determination “is contrary to law or fact and is injurious to him” (sic) and assert “the grounds and reasons therefore” and “demand a hearing.” 405 KAR 5:095 Section 1 requires a “short and plain statement identifying the basis of the request and the order or determination being contested.” Petitioners respectfully demand a hearing based on the grounds and errors alleged below.
13. Petitioners allege that the issuance of the permit to Drakes Creek Holding Company, LLC is injurious to their property, aesthetic, safety and recreational interests, and is contrary to both law and fact. The specific grounds and reasons upon which Petitioners rest the allegations that the determination of the agency was contrary to law or fact (or both) are set forth below.
14. The regulations governing this permitting action were adopted pursuant to the statutory authority found at KRS Chapter 13A, KRS 350.028, 350.029, 350.240 and 350.300.
15. KRS 350.300 provides the specific authority for the adoption of non-coal mining regulations by the Cabinet; which regulations are intended to accomplish:
1. The protection of the public and the protection of adjoining
and other landowners from damage to their lands and the
structures and other property thereon resulting from the con-
duct of mining operations or the abandonment or neglect of land
and property formerly used in the conduct of such operations.
2. The conduct of mining and the handling of refuse and other
mining wastes in ways that will reduce adverse effects on the
economic, residential, recreational or aesthetic value and
utility of land and water.
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4. The prevention, abatement and control of water, air and
soil pollution resulting from mining, present, past and future.
16. KRS 350.300, in addition to 405 KAR 5:002 through 405 KAR 5:095, establish the standards by which the Respondent Cabinet is required to judge the sufficiency of the application for permit filed by Drakes Creek Holding Company, LLC.
17. In order to satisfy the requirement of KRS 350.300 that an effective program for the conservation and use of mined land, assuring the protection of the public and the protection of adjoining and other landowners from damage to their lands and the structures and other property resulting from the conduct of mining operations, the Cabinet was obligated to request sufficient information and impose conditions sufficient to satisfy the specific requirements of the regulations, and to the prevent off-site impacts to land and water resources, as well as to control noise, dust, and vibrational impacts of mining and associated processing and haulage. To do less, as was the case here, makes the permitting process wholly ineffective in assuring protection of the public and the environment, in contravention of the requirement of KRS 350.300 that the non-coal regulatory program be an “effective program for the conservation and use of mined land . . . accomplish[ing] . . . [t]he protection of the public and the protection of adjoining and other landowners from damage to their lands[,]” and that the regulation accomplish “[t]he prevention, abatement and control of water, air and soil pollution resulting from mining, present, past and future;” assuring that “[t]he conduct of mining and the handling of refuse and other mining wastes [be accomplished] in ways that will reduce adverse effects[.]” KRS 350.300 Article III 1, 2, 4.
18. The Cabinet acted arbitrarily and capriciously in failing to impose conditions under KRS 350.300 and under the regulations of 405 KAR Chapter 5, sufficient to assure protection of the public and adjoining landowners from damages to their lands and from pollution. 405 KAR 5:032 Section 28(1) and (2). The application lacked data and information necessary to affirmatively demonstrate compliance with 405 KAR Chapter 5.
19. The Cabinet is prohibited from issuing a permit under 405 KAR Chapter 5 unless the applicant affirmatively demonstrates and the Cabinet finds, among other things, that the permit application is complete and accurate, that all necessary measures have been included in the method of operation in order to eliminate hazards or physical damage to life or property, and to public property. 405 KAR 5:032 Section 27(1)-(3). The applicant failed to affirmatively demonstrate, and the Cabinet failed to require information sufficient to allow a determination of compliance with, the regulations and with the governing statutes. Among those areas in which the Cabinet has acted arbitrarily and capriciously in approving the application are:
A. The Cabinet approved a permit that identified the location of a haul road connecting the proposed mining area to Ditmore Ford Road, despite advance knowledge that Ordinance 530.60 had been passed by the Simpson County Fiscal Court that determined the road to be incapable of supporting commercial truck traffic associated with the proposed quarry, and restricting the Kenneth Utley Drive / Ditmore Ford Road in Simpson County to “residential commuter traffic, recreational traffic utilizing the community park, and other non-commercial traffic customary in the normal course of rural road travel,” with certain exceptions that would not allow limestone truck haulage. Given the impossibility of utilizing the public road to which the proposed haul road is shown to connect, for haulage, the permit application was not complete, nor accurate, and the permit applicant should have been requested to address the accuracy of the map and location of the haul road in light of Ordinance No. 530.60 (and a similar ordinance adopted by the City of Franklin for that portion of the road that is maintained as a city street), and how the proposed mining operation would remove quarried limestone from the property, given the restriction placed on the road.
B. The applicant failed to provide sufficient information concerning the geology, hydrology, and hydrogeology of the proposed property and surrounding properties, to allow an informed judgment as to whether the proposed limestone mining would adversely affect surface or groundwater quality, quantity, and use, and on fish and wildlife resources that are associated with the karstic environment in which the proposed mining would occur. The applicant suggested that there had been core and exploratory drilling on the site, but no logs and no data appear to have been provided in the permit file that would allow the Cabinet to determine the presence of voids, of groundwater, of fissures and bedding planes, and other geologic features relevant to a determination of probable hydrologic consequences. The groundwater flow characteristics were not fully defined, particular with respect to the northeast, and southeast of the site. The applicant has not provided data sufficient to allow a determination whether subsurface solution channels or conduits providing baseflow to the West Fork of Drakes Creek will be altered, polluted, or destroyed by the proposed quarry operation, not was the location and attitude of bedding planes, faults, fractures, and solution openings established. The lack of characterization of the groundwater cannot be excused by the unsupported statement that the mining will occur above the groundwater table, since the acknowledgment that mining will occur through solution channels is indicative of an awareness that these fissures, voids, cracks and channels are direct conduits to the current groundwater level and provide a pathway for contamination.
Absent a more complete, data-driven characterization of the large and complex groundwater system in which the quarry proposes to mine, including groundwater elevation data, subsurface boring data, and data establishing the recharge, flow, and discharge characteristics of the karst aquifer on the site and in the vicinity of the site, the application failed to affirmatively demonstrate that the proposed mining and associated destruction of sinkholes associated with the mining will not create conditions that could reasonably be expected to cause significant, imminent environmental harm and that could constitute a hazard to, or do physical damage to the West Fork of Drakes Creek, as required by 405 KAR 5:015 Section 4(5) and 405 KAR 5:032 Section 27.
C. The applicant failed to demonstrate, and the Cabinet failed to require sufficient information to allow an informed determination as to whether the property on which the mining is proposed to occur, is a “natural hazard land” for which a prohibition on mining is necessary in order to protect the health, safety, and welfare of people, property, and the environment.
At the time of permit issuance, the Cabinet had been made aware that the property on which the proposed activity would occur, was “located within a karst landscape characterized by numerous sinkholes, underground conduits, or caves.” Letter of November 29, 2012 from Kentucky State Nature Preserves Commission to BDY Natural Science Consultants.
“Natural hazard lands” are geographic areas in which natural conditions exist that pose or, as a result of mineral operations, may pose a threat to the health, safety, or welfare of people, property, or the environment, including, but not limited to, areas subject to landslides, cave-ins, subsidence, substantial erosion, unstable geology, or frequent flooding.”405 KAR 5:002 Section 1(43). The applicant provided insufficient geologic and hydrologic data to affirmatively demonstrate that the geographic area proposed to be mined is not a natural hazard area, making it impossible for the Cabinet to make the finding under 405 KAR 5:032 Section 27(4) and (3).
D. The applicant failed to provide, and the Cabinet could not properly conclude, without additional analysis and information, that the proposed blasting activity will not constitute a hazard to public property and members of the public.
During the comment period, several commenters indicated to the Cabinet a concern regarding the proximity of the proposed mining and blasting activity to a public park that includes a horse arena. Additionally, the Cabinet was made aware of the existence of a veterinary clinic and an animal shelter adjacent to the park, and concerns were expressed regarding the safety both of the animals, and of the children riding in the park.
Despite this information, no analysis was requested concerning the potential effects of blasting on the park users, horses and other animals.
The failure to consider the potential effects of the proposed blasting activity on nearby land uses and users, and to demonstrate that the proposed activity would not create a hazard to public property and the public utilizing the local park, is inconsistent with the agency obligations under 405 KAR 5:032 Section 27(3), and with the applicants obligation to affirmatively demonstrate that no hazard would occur.
E. Despite many comments concerning the possible negative effects of the conducting of mining and associated activity so close to a public park, the Cabinet failed to evaluate the effect of airborne particulates, VOCs, and other pollutants associated with blasting and earth and stone movement, truck traffic, and equipment operation, on the children and adults using the public park that is located near the proposed quarry. Lacking an affirmative demonstration that the cumulative effect of these disturbances and airborne pollutants will not constitute a hazard to, or do physical damage to “life,… or to members of the public,” the Cabinet could not properly make a finding under 405 KAR 5:032 Section 27(3).
F. The permit application lacked sufficient information concerning the use and storage of fuel and other associated fluids, and of the hydrogeology of the site, to determine whether the proposed storage and SPCC plan would be sufficient to prevent pollution of the groundwater and of the West Fork of Drakes Creek. Lacking that information, the findings required under 405 KAR 5:032 Section 27(1) and (3) could not be properly made. Further, the allowance of “dirt” as the medium for the SPCC dike area is plainly insufficient to prevent pollution in this karstified terraine.
G. The baseline surface and groundwater monitoring parameters and locations were insufficient to fully characterize baseline water quality so as to determine, through during-mining monitoring, whether the applicable water quality standards are the general prohibition against adding sediments to streamflow or runoff from the mining area. Without additional sampling for any of the constituents of the proposed explosives, and for VOCs, proper baseline has not been established so as to satisfy 405 KAR 5:032 Section 27.
H. The permit application fails to adequately demonstrate that runoff from the outside of the constructed berm will be controlled and managed so as to satisfy 405 KAR 5:050 Section 1 and 405 KAR 5:032 Section 27.
I. Insufficient information regarding the presence and extent of caves beneath and near the proposed mining site, was provided to allow a reasoned determination that terrestrial and aquatic creatures in those cave systems, will not be adversely affected by blasting, mining, and changes in groundwater quality, quantity, and flow characteristics. Without additional investigation, and characterization, the applicant could not make the required affirmative demonstration and the Cabinet could not find that the proposed mining would comply with the non-coal regulations or the Cave Protection Act.
J. The applicant failed to provide adequate justification for the limited radius of investigation of groundwater wells and well users in the inventory, and failed to correlate the recharge and discharge characteristics for current groundwater usage with the groundwater flow characteristics so as to allow a determination of whether the proposed quarry will impact groundwater wells in the vicinity of the site.
K. The application fails to provide sufficient sampling and analysis to determine whether the discharges from the proposed quarry will adversely impact the Kentucky creekshell or other rare aquatic organisms in the West Fork of Drakes Creek, so as to affirmatively demonstrate compliance with 405 KAR 5:048(1).
L. The application, for each and all of these reasons, was not complete nor accurate, and did not affirmatively demonstrate compliance with 405 KAR Chapter 5 and KRS 350.600, and the permit determination was thus contrary to law and fact.
PRAYER FOR RELIEF
For the reasons stated above, Petitioner respectfully requests that the determination of the Cabinet to grant Permit No. 107-9401 to Drakes Creek Holding Company, LLC, be determined to be inconsistent with the legal obligations of the Cabinet under KRS Chapters 350 and the regulations promulgated thereunder respecting such final determinations, and that this matter be remanded to the Cabinet with directions to withdraw the approval of Permit No. 107-9401, and for any and all other relief to which Petitioners may appear entitled.
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
Counsel for Petitioners
David and Ronda Carver
Date: September 5, 2013