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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

Re: Reopened Comment Period for Ky. Regulatory Program  Posted: August 30, 2001

National Citizens Coal Law Project

A Project of the Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428

(502) 875-2845 fax

e-mail: FitzKRC@aol.com

August 30, 2001

William Kovacic, Director

Lexington Field Office By electronic format

OSMRE Attn: SPATS NO. KY-229-FOR

2675 Regency Road

Lexington, KY 40504

Re: Reopened Comment Period

Ky. Regulatory Program

66 Federal Register 42815

Dear Director:

These comments are submitted regarding the reopened comment period on the proposed revision to the Kentucky permanent regulatory program for surface coal mining operations.

The reopened comment period solicits comments on a change to the previously submitted program amendment revising 405 KAR 18:210-Subsidence Control. Kentucky seeks approval of a change that would modify Section 2(2) of that regulation in order to allow an operator to avoid the 30-day waiting period prior to undermining a structure, in the case where the owner has expressly waived the thirty-day period in writing.

The proposal is inconsistent with and less effective than the corresponding federal counterpart requirement, which mandates a 6-month notice be given prior to undermining property.

In specific part, 30 CFR 817.122, Subsidence Control: Public Notice, requires that:

At least 6 months prior to mining, or within that period if approved by the regulatory authority, the underground mine operator shall mail a notification to all owners and occupants of surface property and structures above the underground workings. The notification shall include, at a minimum, identification of specific areas in which mining will take place, dates that specific areas will be undermined, and the location or locations where the operator's subsidence control plan may be examined.

[48 FR 24652, June 1, 1983]

Kentucky s regulatory approach has been eroding the timeframe set by Congress from 6 months to three months, to one month, and now proposes to eliminate entirely the waiting period.

The proposal is plainly inconsistent with the requirement of 6-months prior notice. OSM, during the 1983 revision to the federal rules, contemplated and rejected any exceptions to the prior-notice requirement.

There is a very practical consideration that militates against approval as well. Kentucky has and continues to issue permits for surface and underground mining where the mining company owns or has leased only a fractional interest of the land or mineral resources and other co-tenants oppose mining. Where the landowner who resides in the dwelling refuses to sign a waiver or lease but a non-resident co-tenant signs such a lease and a waiver of the 30-day notice, this regulation could allow immediate undermining despite the objection of the surface owner.

The 6-month timeframe allows sufficient time for all owners of the surface lands to take steps to protect their interests, whether it be physical steps in shoring up buildings or taking other precautions, or bringing appropriate legal actions to prevent the undermining or to partition the land and otherwise sort through their legal claims. The existence of past fraud in submission of waivers also demands that a time-period be allowed to assure that undermining does not occur based on a fraudulent waiver of the 30-day period.

Once undermined, the aggrieved party who opposed mining cannot be made whole. Their property and interests are irreparably altered. Allowing the waiver of any time frame based on an owner waiver, invites more mischief and more hardship for co-tenants who are often subject to coal companies purchasing or leasing a minor fractional interest and then mining the property.

For the reasons stated above, the proposed Kentucky program amendment is less stringent than, inconsistent with and less effective than the federal counterpart performance standards at 30 CFR 817.122 and must be disapproved, as must the entirety of that subsection of the state regulation insofar as it purports to allow less than 180-days of notice.

Thank you for your consideration of these comments.

Cordially,

Tom FitzGerald

Director



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