Comment today on proposed non-coal mining regulation revisions!
The Natural Resources and Environmental Protection Cabinet has proposed revisions to strengthen existing regulations governing extraction of minerals other than coal. The existing regulations, last amended in 1995, remain weaker than their coal counterparts and underprotective of adjoining landowners and the public.
The proposed regulations, which are virtually identical to the emergency regulations that were adopted and are currently in effect, improve on the existing regulations but remain inadequate in several critical areas, and should be further strengthened to include:
* An enforceable duty on the mining company not to load trucks in excess of the road weight limits;
* Denying permits where the use of local roads for hauling mined material would pose a health or safety threat to the public or would damage the property of adjoining and other landowners.
* Improving the permit review process to require a level of mine planning comparable to that currently required of coal mines, including more rigorous review of impacts on the land and water resources of the proposed mining area; dust control plans; identification of and a plan to protect groundwater well users; a clear requirement that sediment control measures be demonstrated to be effective;
* a process for designating areas as unsuitable for some or all types of non-coal mining operations; and
* prevention of off-site nuisances through controls on equipment noise and facility lighting; and hours of operation limits.
KRC has submitted comments, which are attached for your review, and urges you to send an e-mail to email@example.com, with a copy to Secretary List at firstname.lastname@example.org asking that the proposed non-coal regulations be furthered strengthened to include these provisions. The comment period closes today, May 29, 2003.
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
May 29, 2003
Hank List, Secretary By fax 502-564-0054
Natural Resources and Environmental
5th Floor Capital Plaza Tower
Frankfort, KY 40601
Jim Villines By fax 502-564-5698
Department for Surface Mining
#2 Hudson Hollow
Frankfort, Kentucky 40601
Re: Proposed Non-Coal Mining Regulations
405 KAR 5:001, 5:030, 5:035, 5:038, 5:045, 5:053. 5:060
5:075 and 5:080
Dear Secretary List and Mr. Villines:
These comments are submitted by the Kentucky Resources Council, Inc. (KRC) on behalf of the many communities and individuals whom the Council has had the privilege to represent over these past 19 years in matters relating to proposed extraction of non-coal minerals. In the course of three administrative cases in which KRC provided representation to opponents of limestone (Olive Hill Investment Corporation, Sterling Ventures) and sand and gravel mining operations (Nugent Sand Company), KRC has become familiar with the program and those areas in which the statutory purposes of public and environmental protection have not been fully realized in the implementing regulations.
KRC appreciates the efforts of the Patton Administration to reform and strengthen the non-coal regulations in several critical areas where the current regulations, as interpreted and applied by the Natural Resources and Environmental Protection Cabinet, are underprotective of public health, safety and the environment.
After reviewing the proposed regulations, there are several areas in which the proposed regulations fail to fully protect the public, and adjoining and other landowners from avoidable damage, and in which the Cabinet must strengthen the regulations in order to accomplish the legislative goals of protecting the public and the environment from the adverse effects of non-coal mining operations. Those areas include:
* Strengthening controls on damage by non-coal mining operations to public roads by imposing an enforceable duty on the mining company not to load trucks in excess of the road weight limits;
* Denying permits where the use of local roads for hauling mined material
would pose a health or safety threat to the public or would damage the property of adjoining and other landowners.
* Improving the permit review process to require a level of mine planning
comparable to that currently required of coal mines, including
-more rigorous review of impacts on the land and water resources of the proposed mining area;
- dust control plans;
- identification of and a plan to protect groundwater well users;
- a clear requirement that sediment control measures be demonstrated to be effective;
- a process for designating areas as unsuitable for some or all types of non-coal mining operations;
- prevention of off-site nuisances through controls on equipment noise and facility lighting; and
- Hours of operation limits.
More detailed comments follow an introductory section outlining the legal basis of the Cabinet's authority and responsibility to develop, implement and enforce a comprehensive regulatory program for non-coal minerals.
As a signatory state to the Interstate Mining Compact, the Commonwealth of Kentucky committed to be bound by an agreement, codified in statute, to extend protection to the public and environment from the adverse effects of non-coal mineral extraction.
KRS 350.300 provides the specific statutory backdrop against which the sufficiency of the non-coal regulations must to be measured. KRS 350.300 represents the General Assembly?s decision to join the Interstate Mining Compact (IMC), and the enactment of the Compact into state law by the General Assembly obligated Kentucky as a party state to the Compact. Among the commitments of the legislature in enacting the IMC are these concerning non-coal mining regulation:
ARTICLE III. STATE PROGRAMS
Each party state agrees that within a reasonable time it will
formulate and establish an effective program for the conser-
vation and use of mined land, by the establishment of standards,
enactment of laws, or the continuing of the same in force, to
l. 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 conduct
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.
3. The institution and maintenance of suitable programs for
adaptation, restoration, and rehabilitation of mined lands.
4. The prevention, abatement and control of water, air, and
soil pollution resulting from mining, present, past and future.
The law sets certain benchmarks that regulations, and the application of those regulations, must meet:
- the program must be effective in the conservation of mined land;
- the public and adjoining and other landowners must be protected from damage to their property;
- the mining, and handling of mine wastes, must be done in a way that reduces adverse effects on the different values of surrounding lands, including aesthetic values;
- water, air and soil pollution must be prevented, abated and controlled.
The statutory mandate is clear for an effective regulatory program for non-coal mining containing permit requirements to demonstrate that the mining operation will be conducted in a manner that satisfies the statutory mandates regarding environmental and public protection.
Unfortunately, in 1995, due to intense lobbying from the non-coal mineral industries, the Cabinets proposed regulations were weakened and several key provisions not included. Additionally, the agency has deemphasized the need for planning during the permitting process in favor of an ad hoc approach to erosion and sediment control and other aspects of regulation of these operations.
It is past time that reasonable and specific regulatory provisions are included in the following areas in order to better direct the Cabinet, in reviewing permits for and regulating these operations, to fully protect the rights of other landowners and to prevent pollution.
KRC has reviewed the proposed regulations, and offers these comments:
405 KAR 5:001
KRC supports the inclusion of definitions for "approximate original contour" and "tar sand or rock asphalt" and the amendment to the definition of "mineral operation" to conform the regulation to the legislative intent that all non-coal mineral mining, including bitumen-bearing rocks, tar sand and rock asphalt be regulated. The existing regulatory exclusion of tar sand and rock asphalt is inappropriate, and constitutes impermissible local or special regulation since it finds no legal support in the governing statute nor has there ever been a logical basis for differentiating the removal of those non-coal minerals relative to other forms of non-coal minerals. The exclusion was, most likely, an historic accommodation to the road construction industries since the material has road-related uses; however such an accommodation is impermissible under KRC 350.300 and is without rational basis.
405 KAR 5:030
Concerning submission of ownership information, KRC does not oppose the provision making elective the submission of social security information; however sufficient information must be provided with respect to owners to allow for identification of those persons. In lieu of a social security number some identifying number should be assigned by the agency.
KRC supports the requirement that performance bonds be posted in all cases.
KRC supports the changes in Section 5 conforming the distance requirements for areas protected from mining to those currently required of coal mining operations, since there is no rational basis for providing lesser protection simply because of the type of mineral proposed to be mined.
KRC supports the change to Section 8 requiring submittal of underground mine maps. The location and extent of underground workings is a matter of
legitimate interest to surface landowners, both in order to assure that the mining is not removing minerals for which the operator does not have the legal right, and also to landowners and local governments in order to allow a determination of whether subsidence or other surface impacts are related to the mining.
KRC supports the strengthening of the post-mining land use requirements in Section 18.
Concerning the transportation plan requirement in Section 20, there are few aspects of non-coal mining operations more controversial than those relating to transportation. As evidenced in the Nugent Sand Company case in Gallatin County, and also the Sterling Ventures case in that same area, the safety and quality of life of area residents can be compromised through a lack of attention to the transportation aspects of mining operations, including whether the product can be safely transported without adversely impacting public health and safety.
An "effective" program for regulating non-coal minerals can no more be implemented without consideration of the transportation issues related to haulage of the mineral, than could the mining regulations be effective without considering roads used for haulage and access. The primary roads used for transportation of the non-coal mineral must be considered by the Cabinet and no
permit should issue absent an affirmative demonstration by the applicant that the use of the roads can occur without causing a threat to public health and safety.
The proposed regulation, unfortunately, falls short in one critical aspect of what is needed to address the impacts.
First, KRC appreciates the removal of the emergency regulation language that limited the reporting to those cases of transportation of the mineral by the applicant, since the impacts on public roads will not depend on whether the applicant is transporting the mineral. KRC appreciates the Cabinet's acknowledgment that the reporting requirement should be imposed without regard for whether the applicant is moving the mineral or selling the mineral from the property to third-parties who then transport the mineral over those same roads.
What is missing from the proposed regulation are two provisions the first, a requirement that the applicant describe how the applicable road weight limits will be met by the mining operation; and second, a clear statement of the purpose for the consultation process proposed in Section 20(6).
With respect to the first point, there should be a clear and enforceable requirement that the applicant weigh and verify that trucks leaving the site are within the legal limit for the receiving road. The applicant is in the best position to assure that damage to public roads is minimized by refusing to load trucks above legal limits.
With respect to the second point, it is essential that the Cabinet consult with Transportation Cabinet, county and city officials, but the purpose of that consultation must be made clear to assure that no non-coal mineral permit will be issued that would violate KRS 350.300 by posing a health or safety threat to the public or would damage the property of adjoining and other landowners.
In Section 22, KRC supports the clarification of the timing of the news advertisements, and the extension of public notice requirements to clearly require that permit amendments are subject to the same public notice and approval criteria as original permits.
KRC supports the revisions in Sections 24 and 28 to incorporate protections for unsuitable lands comparable to those of coal mining operations. There is no logical basis for a lesser protection due to the type of mineral extracted, since the direct and indirect ecological consequences are similar in degree and type.
405 KAR 5:035
KRC supports the proposed changes, but suggests that Section 6 be amended to clearly alert the permit applicant that the case-by-case approval of the sufficiency of the barrier will be made during the permit review process. The plans and designs for barriers should be required to be submitted during the permit process and be subject to agency and public review before issuance of the permit, rather than being designed after the fact when there is no ability of the public to test the sufficiency of the proposal against the risk posed.
405 KAR 5:038
KRC supports the proposed changes to the regulation, particularly with respect to the requirement for a pre-blasting survey. There is no rational basis not to extend the protections provided from blasting for coal removal, and blasting for other mineral removal.
405 KAR 5:045
KRC supports the revisions to this regulation that conform the protection of areas unsuitable for mining to the coal program. Given that the coal regulations represent that level of public and resource protection that the General Assembly has determined to be necessary for public protection, it would be irrational and arbitrary to fail to extend those protections with respect to non-coal minerals, absent some rational basis inherent in the distinction between minerals that would support a lesser protection.
405 KAR 5:053
KRC strongly supports the regulation requiring replacement of water supplies where those supplies are adversely impacted by non-coal mining operations. It is impossible for the Cabinet to demonstrate that the regulations comply with KRS 350.300 absent a provision requiring water supply replacement, for the statute demands that adjoining and other landowners be protected from damage to their lands and that water resources be safeguarded from pollution. The extension of this existing obligation of coal mining, oil and gas operations to include non-coal mining operations is both fully consistent with and is required by the Commonwealth's adoption of the Interstate Mining Compact into KRS Chapter 350.
405 KAR 6:060, 5:075, 5:080
KRC supports the revisions to these regulations.
KRC suggests that these provisions, already required in the coal mining regulations and representing that level of environmental protection deemed appropriate by the legislature for mining operations, should also be incorporated into non-coal regulations. If they are not adopted, the Cabinet must justify why, when the goal of protection of the rights of other landowners and the environment underscores both coal and non-coal program enabling statutes, it determines not to extend these requirements to non-coal mining when it believes them necessary in the coal mining context:
* More rigorous permit application information relating to the hydrology
and geology of the proposed mining area; including:
- a requirement that the permit applicant provide information concerning surface and ground water quality and quantity, the presence of toxic or acid-producing overburden;
- dust control plans;
- identification of groundwater resources, well-users surveys and groundwater protection plans, including information necessary to
support a regulatory determination as to whether water
supplies have been damaged by mining;
- a clear requirement that during the permit review process, the proposed sediment control measures be demonstrated to be effective in meeting the requirements of the KPDES program, and that the Cabinet make an independent review of the adequacy of the sediment control measures prior to permit issuance;
- A requirement for an analysis of the probable hydrologic impacts of the mine and the cumulative hydrologic impact, as well as a description of protective measures to protect surface water quality and groundwater quality and recharge;
- A clear requirement that all drainage from disturbed areas
be passed through a sediment pond designed and demonstrated through
modeling to meet all applicable effluent and water quality limitations;
- A calculation of the rate and amount of surface run-on and run-off, and a plan for how that drainage will be collected, routed, treated and discharged in compliance with KPDES requirements;
- A spoil handling plan containing spoil calculations, spoil handling, sediment, dust and erosion control, and permanent disposal of the spoil, to allow a reasoned determination that the manner of spoil handling, storage and redistribution is consistent with law.
- Sufficient and complete information concerning ownership of minerals to support permit issuance and a requirement that no permit issue where the
right to enter and mine has not been demonstrated;
- A process for designating areas as unsuitable for some or all types of non-coal mining operations.
Additionally, there are two critical areas of impact from sand, gravel and limestone mining operations on neighbors that do not have counterparts in the coal regulations but should nevertheless be addressed:
- Prevention of off-site nuisances through controls on equipment noise and facility lighting; and
- Hours of operation limitations;
Unless these reforms are also included, the mining of non-coal minerals will continue to impose avoidable adverse effects on the rights and quality of life of adjoining and nearby landowners and on the air, land and water resources of the Commonwealth in a manner inconsistent with the statutory direction to the Cabinet, and proposed non-coal mining operations will remain a source of contention in many communities.
KRC appreciates your consideration of these comments concerning reform in the regulation of non-coal operations, and urges you to finalize a meaningful set of reforms to finish the task begun in 1995 of requiring non-coal mineral operations to more fully internalize the cost of doing business, rather than imposing those costs on their neighbors and on the public's natural resources.