Comments on Proposed Quarry in Simpson County
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April 19, 2012
Mark Tarter, Manager
Non-Coal Branch
Department of Mine Reclamation and Enforcement
Energy and Environment Cabinet
#2 Hudson Hollow
Frankfort, Kentucky 40601
Re: Drakes Creek LLC Simpson County
Permit Application No. 107-9401
Dear Mr. Tarter:
These comments are submitted by the Kentucky Resources Council, Inc. regarding the application of Drakes Creek LLC for a permit to conduct limestone quarrying operations at a site located on Ditmore-Ford Road and near the West Fork of Drakes Creek in Simpson County, Kentucky.
The Council requests that the comment period be extended by an additional thirty (30) days following the close of the public hearing, in order to allow submittal of supplemental comments.
Introduction
On behalf of the Kentucky Resources Council, Inc., and at the request of local residents concerned with the proposed quarry, I am tendering these written comments concerning the compliance of the proposed application with applicable regulatory and statutory requirements of KRS Chapter 350 and 405 KAR Chapter 5, as well as other applicable requirements of KRS Chapter 224.
As you are aware, a non-coal mining permit application, in order to be lawfully approved by the Cabinet, must demonstrate compliance with both the specific regulations adopted by the Cabinet and the authorizing statutes. The Cabinet's regulations have the force and effect of law only to the extent that they are properly promulgated and are consistent with the enabling statutes, and a decision by the Cabinet not to promulgate regulations addressing a particular aspect of public health and safety, and environmental protection, does not relieve either the Cabinet or the applicant from the obligation to address those concerns during the permitting of a proposed quarry. KRS Chapters 224 and 350, and the regulations in 405 KAR Chapter 5, due to their remedial nature, must be construed in a manner that gives full effect to the intent of the General Assembly.
In this case, the intent of the legislature is clear - the regulation of non-coal mining operations is to be undertaken in a manner that assures that the rights of adjoining landowners and the public will be fully respected and not placed at any risk.
KRS 350.300 provides the specific statutory backdrop against which the implementation of the non-coal regulations, and any issued permit, 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 concerning non-coal mining regulation that were made by enacting the IMC are these:
"ARTICLE III. STATE PROGRAMS
Each party state agrees that within a reasonable time it will formulate and establish an effective program for the conservation and use of mined land, by the establishment of standards, enactment of laws, or the continuing of the same in force, to accomplish:
KRS 350.300.
The law sets certain benchmarks that the regulations, and the application of those regulations, must meet:
The authority and obligation is clear that a permit must effectively control all impacts from the mining activity from initial disturbance through production and reclamation.
Omnibus Authority
A permit applicant is obligated to satisfy the specific informational and analytical requirements of the Cabinets non-coal regulations at 405 KAR 5:002 through 5:095. Additionally, the Cabinet has broad regulatory authority, both under statute and through the non-coal permitting regulations, to impose conditions necessary or advisable to assure that the purposes of KRS Chapter 350 are satisfied. With that authority comes a concomitant duty to impose such conditions where the record demonstrates that, in the absence of such conditions, harm may become manifest to adjoining or nearby landowners or to air, land or water resources.
This omnibus authority, reflected in statute and codified at 405 KAR 5:032 Section 28 provides in part that (1) Permits issued by the cabinet may contain certain conditions necessary to ensure that the mineral operation will be conducted in compliance with KRS Chapter 350 and 405 KAR Chapter 5.
This authority is coupled with a prohibition against Cabinet issuance of a permit absent a demonstration by the applicant and a written finding by the Cabinet that, among other things:
"(3) The proposed mineral operation will not constitute a hazard to, or do physical damage to life, to an occupied dwelling, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, other public property or to members of the public, or their real and personal property."
405 KAR 5:032 Section 27(3).
The proper control of the adverse effects of non-coal mining operations demands that the Cabinet independently review plans for the mining and reclamation prior to permit issuance. It is legally insufficient to defer until after permit issuance the requirement that the applicant incorporate into the mine planning sufficient background sampling, during mining monitoring, sediment control, and demonstrate prior to permit issuance that the operation will satisfy statutory and regulatory requirements. In the absence of meaningful agency review of the submitted information, the Cabinet cannot exercise independent judgment in determining whether to approve or disapprove the application.
To do less would make 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.
Specific Comments Relative To Application No. 107-9401
The open pit mining (quarrying) of limestone poses a number of potential environmental concerns that must be addressed in order to achieve the statutory goal of protecting the public and environment. The uncontradicted testimony of John Morgan in the trial of the Olive Hill Investment Corporation case, accepted and quoted in the Hearing Officer's Report and adopted by the Cabinet Secretary, described the impacts of limestone mining in this manner:
"Mining has different impacts depending on where you are in the operation from the first exploration through production to reclamation. The principal areas which you are going to affect off site are the surface water regime, the groundwater regime, and, then, aspects of noise, dust, vibration. Specifically going back to the water issues, surface water can be affected by changing the characteristics of the flow off the site, that your flow rates in storm events can be different.
You can also get a difference in the physical characteristics of the water such as suspended solids. The chemical quality of the water can also be affected if you come into contact with metals or other toxic materials during the mining process. The groundwater regime can be affected a number of ways by a mining operation. And the first is if you go into a pit operation, which would intersect an aquifer, then, you could have a drawdown effect whereby the pit itself is the sink to a local groundwater.
You can also have effects to the groundwater. The flow paths can be changed, that you have the equivalent to a low-potential site where they mine so water can tend to flow to that and, therefore, could change groundwater patterns. You also have the issue that if there was any toxic material which was backfilled into the site, then, that could enter the groundwater, migrate in the downdip direction of the groundwater. So, youve got both a physical and chemical change to the groundwater regime.
The noise, dust and vibration issues, any mining operation creates noise -- its inherent with it -- by backup alarms, air blasts from blasting. And that can be controlled, but it will have an off-site effect. You also have the issue of dust.
Mining, again, by its nature is a disturbance of the rock; and, therefore, you will be creating some dust both on the roads, the crushing operation and the blasting operation. And vibration itself, through any blasting, you will create vibration which can be transmitted through the adjacent [rock] strata, therefore, will have an off-site effect."
Transcript of Hearing, at p.91-3.
Any effective program for control of non-coal mining impacts must contain conditions sufficient to address each of these concerns.
Against this backdrop, KRC has these specific comments:
1. The Permit Application Should Be Deferred Or Denied Until The Applicant Fully Characterizes The Hydrologic Regime At and Near The Mine Site
Due to the proposed location of the quarry, it is probable that mature karst subsurface features exist beneath the surface of the property. As noted by the Kentucky Geological Survey's Groundwater Resources of Kentucky,virtually all of Simpson County falls into the range of Intense Karst,with only a small section of the southeastern corner of the County identified as Karst Proneor Non-Karst.The proposed site is in an area identified as Intense Karst.
As noted above, quarrying limestone can change the physical characteristics of the water, such as suspended solids, and also the chemical quality of the water by leaching metals or other toxic materials from strata disturbed during the mining process. The groundwater regime can be affected a number of ways by a mining operation, including potential drawdown on local aquifers; migration of pit water through fractured strata or karst systems, and other changes in local hydrogeology wrought from the excavation and blasting associated with the limestone removal.
In order to assure that the proposed operation will not constitute a hazard to, or do physical damage to . . . a stream" under 405 KAR 5:032 Section 27(3), the applicant must provide sufficient data regarding the recharge, discharge, and flow characteristics of the karst system and the hydrologic relationship between the site and West Fork of Drakes Creek, to assure that the proposed quarry will not, by virtue of increasing suspended solids, by changing groundwater flow patterns through excavation or blasting, and through spills or releases of diesel or other petroleum products associated with heavy equipment, cause or contribute to the degradation of the quality and quantity of water in the groundwater system and West Fork of Drakes Creek.
Without such a hydrogeologic investigation, the Cabinet cannot make a reasoned decision on the permit and assure that the criteria of 5:032 Sections 27 and 28 are met. As the Hearing Officer in the Olive Hill Investment Corp. case, the Cabinet cannot determine whether a non-coal mining plan will minimize adverse effects to the area and to adjoining landowners without requiring background information on surface and ground water occurrence and quality and without independently reviewing the plans for mining and reclamation prior to issuance of a permit. (Emphasis added). Hearing Officers Report, Parker and Webb v. Olive Hill Investment Corp and NREPC, Conclusion #42.
The investigation should include at a minimum:
a. Mapping of aquifers and collection of background seasonal ground water quality and flow information;
b. Background geologic data to indicate the composition of the overburden and strata above and below the limestone, and the possibility of encountering acid or toxic-forming material. The chemistry and composition of the various materials and any rock strata overlying the mineral that will be mined and the acid or toxic-forming potential of the material must be assessed;
c. The anticipated impact of excavation and blasting on the groundwater flow patterns, and the potential impact on availability of groundwater for the existing groundwater users within the vicinity of the mining, and on the West Fork of Drakes Creek must be evaluated, including dye tracing in order to better map the nature and extent of any communication between the site and the Creek through subsurface pathways. Cross-sections of the quarry at final excavation and correlation of the quarry depth to various groundwater-bearing strata must be provided;
d. An analysis of both primary and secondary permeability groundwater flow in the area and the anticipated effect of mining and blasting on local aquifers and on the recharge of the Creek. It is unclear whether the operation will intercept the groundwater table, and if so, whether the pit will be pumped, and the effect of that drawdown on the Creek and other water users. It is likewise unclear the extent to which the Creek is in communication with any aquifers or karst features underlying the site. The seasonal high groundwater table must be identified, the potentiometric surface of the groundwater table mapped and correlated to the mine depth, and the subsurface drainage patterns must be mapped; and
e. A groundwater users survey documenting in qualitative and quantitative terms the nature of the groundwater resource and of the existence and quality of all groundwater aquifers that do or could serve to provide groundwater for beneficial uses, and of the quality and yield of existing wells within the larger of ½ mile radius of the site or the area of influence determined by a qualified hydrogeologist, in order to support a later determination of whether the operation has caused changes in quality or quantity of the resource such that water replacement is required.
Only after this information is developed and submitted can the Cabinet make a reasoned determination of compliance by the application with the mandate of 5:032 Section 27(3) that a hazard and physical damage to the West Fork of Drakes Creek will avoided, and that the rights of landowners with respect to the quality and quantity of groundwater will not be adversely affected.
2. The Application Should Be Required To Demonstrate That The Site Does Not Constitute A Natural Hazard Land And Consultation Should Be Sought From the Kentucky Geological Survey And Division of Water
Among the requirements of 405 KAR 5:032 Section 27 is that the applicant demonstrate that the proposed mineral operation will not adversely affect natural hazard lands. 5:032 Section 27(4). A natural hazard land is defined as a geographic area 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[.] Illustrative examples include but are not limited to areas subject to unstable geology or substantial erosion.
The Intense Karst nature of the geology of Simpson County would appear to make these lands natural hazard lands within the meaning of the applicable regulation. 405 KAR 5:002 Section 1(43). A geotechnical report, supported by adequate core samples and other forensic evidence, should be required in order that the applicant demonstrate that the site is not a natural hazard land and that mining will not pose a threat to the health, safety or welfare of people, property, or the environment. Given the close proximity of the site to Ditmore-Ford Road and a popular public park, a thorough geologic investigation is in order.
3. Additional Concerns:
In addition to the concerns identified above, KRC believes that these concerns must be addressed prior to the Cabinet being able to find that compliance with 5:032 Section 27 has been demonstrated by the applicant:
a. The Toxic Materials Handling Plan allows the applicant up to thirty days after encountering any toxic material, to treat or bury the material. Given the karstic nature of the area, the toxic materials handling plan should require immediate management of any encountered toxic-forming material.
b. The applicant has failed to supply the chemical and physical analysis of the topsoil material.
c. The application fails to provide sufficient information concerning the design of the two proposed sediment ponds, to allow the Cabinet to determine compliance. Given the presence of numerous sinkholes, which are indicative of mature karst, the proposed sediment ponds and all diversion ditches used to convey stormwater from the disturbed area, should be lined in order to minimize infiltration of stormwater containing elevated levels of suspended solids.
d. It is unclear whether the proposed sediment structures are intended to capture and treat any runoff from the haul road. Clearly, all disturbed areas, including haul roads, must have proper sediment controls.
e. The sediment control plan lacks sufficient detail to assure that the requirements of 5:032 Section 27(3), 5:032 Section 12, 5:050 and 5:055 will be met. The applicant should explain, if the structures are intended to be no-discharge structures, how any pumped discharge will be sampled in order to determine whether applicable effluent and water quality limits will be achieved. The application indicates that the ponds will be dewatered with pumps, yet there is a principal spillway on the pond design, suggesting that the ponds will discharge through a spillway.
All disturbed areas must be subject to sediment controls demonstrated during the permitting process to be sufficient to meet KPDES discharge limits and water quality requirements. The proposed sediment structures should be designed and certified by a registered professional engineer and bear the engineers stamp.
f. In order to discharge the Cabinets obligation to prevent harm to adjoining landowners and the environment, a number of additional measures should be required, including:
(i) A blasting plan. Blasting may cause dramatic adverse impacts on the recharge and discharge characteristics of the watershed, as well as causing vibrational and flyrock risks to adjoining landowners and their properties and to motorists traversing adjacent public roads.
A thorough characterization of the geology and site and the impacts of blasting on the nearby park and residential properties, and on the Ditmore-Ford Road, should be submitted in order to support an informed decision on the permit.
(ii) Evidence of liability insurance sufficient in amount and extent of coverage to assure compensation of third parties for personal or real property damage from blasting should likewise be required.
(iii) A plan for controlling fugitive dust emissions. The conduct of a mining operation releases a significant amount of dust. All sources of dust, from vehicular traffic, material storage and transfer, and windblown erosion of soil and rock storage piles, must be assessed and mitigation measures proposed to eliminate visible dust emissions at the property boundary. A dust control plan indicating how the offsite effects of dust from the crushing and stockpiling activity, haulage and mining activity, will be controlled in order to prevent violations of the fugitive dust standards of the Division of Air Quality; and absent a demonstration that the visibility standard can be met at the property boundary, the permit should not be issued.
(iv) A bond in an amount that is correlated to the cost of reclamation at maximum disturbance, in the event of operator default;
(v) The permit application must to assure that the rights of adjoining landowners and the public along the haulage route will be protected. The Council believes that the permit applicant is obligated by law to assess and fully mitigate the impacts on the road. No permit should issue absent a demonstration that the public roads serving the site are adequate and that no physical damage to the public roads will occur from the haulage and access.
Additionally, structural impacts from vibrational damage due to truck traffic, noise, dust, traffic safety from use of large trucks on the road, must all be considered, quantified and mitigated.
(vi) Noise impacts. Noise from blasting, normal operation, and vehicular traffic to and from the site, must be assessed, and measures taken to reduce off-site noise, in order to prevent nuisance conditions and to protect the use and enjoyment of the nearby public park.
g. Any equipment maintenance or refueling, and any on-site fuel storage, should occur only in an area that has been diked and underlain with an impermeable surface in order to prevent spills or leaks during maintenance and refueling from entering the karst subsurface.
Thank you for your consideration of these preliminary comments. For the reasons stated herein, the Council respectfully requests that the permit application be denied without prejudice as being technically incomplete until if and when the required information and analyses, and evidence of appropriate consultations and approvals from other agencies, are provided so that the Cabinet has available the information necessary to review the compliance of the proposed mining operation with 405 KAR 5:002- 5:095 and KRS 350.300.
Cordially,
/s/
Tom FitzGerald
Director
Monday, June 18, 2012
Mark Tarter, Manager
Non-Coal Branch
Department of Mine Reclamation and Enforcement
Energy and Environment Cabinet
#2 Hudson Hollow
Frankfort, Kentucky 40601
Re: Drakes Creek LLC Simpson County
Permit Application No. 107-9401
Dear Mr. Tarter:
These supplemental comments are submitted by the Kentucky Resources Council, Inc. regarding the application of Drakes Creek LLC for a permit to conduct limestone quarrying operations at a site located on Ditmore-Ford Road and near the West Fork of Drakes Creek in Simpson County, Kentucky.
Introduction
On behalf of the Kentucky Resources Council, Inc., and at the request of local residents concerned with the proposed quarry, I am tendering these supplemental written comments concerning the compliance of the proposed application with applicable regulatory and statutory requirements of KRS Chapter 350 and 405 KAR Chapter 5.
As you are aware, a non-coal mining permit application, in order to be lawfully approved by the Cabinet, must demonstrate compliance with both the specific regulations adopted by the Cabinet and the authorizing statutes. The Cabinet's regulations have the force and effect of law only to the extent that they are properly promulgated and are consistent with the enabling statutes, and a decision by the Cabinet not to promulgate regulations addressing a particular aspect of public health and safety, and environmental protection, does not relieve either the Cabinet or the applicant from the obligation to address those concerns during the permitting of a proposed quarry. KRS Chapters 224 and 350, and the regulations in 405 KAR Chapter 5, due to their remedial nature, must be construed in a manner that gives full effect to the intent of the General Assembly.
In this case, the intent of the legislature is clear - the regulation of non-coal mining operations is to be undertaken in a manner that assures that the rights of adjoining landowners and the public will be fully respected and not placed at any risk, and that damage to public property, including public roads, and to the safety of the public on those roads, will not occur.
KRS 350.300 provides the specific statutory backdrop against which the implementation of the non-coal regulations, and any issued permit, must to be measured. KRS 350.300 represents the General Assemblys 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 concerning non-coal mining regulation that were made by enacting the IMC are these:
"ARTICLE III. STATE PROGRAMS
Each party state agrees that within a reasonable time it will formulate and establish an effective program for the conservation and use of mined land, by the establishment of standards, enactment of laws, or the continuing of the same in force, to accomplish:
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."
KRS 350.300.
The law sets certain benchmarks that the 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 authority and obligation is clear that a permit must effectively control all impacts from the mining activity from initial disturbance through production and reclamation.
Omnibus Authority
A permit applicant is obligated to satisfy the specific informational and analytical requirements of the Cabinets non-coal regulations at 405 KAR 5:002 through 5:095. Additionally, the Cabinet has broad regulatory authority, both under statute and through the non-coal permitting regulations, to impose conditions necessary or advisable to assure that the purposes of KRS Chapter 350 are satisfied. With that authority comes a concomitant duty to impose such conditions where the record demonstrates that, in the absence of such conditions, harm may become manifest to adjoining or nearby landowners or to air, land or water resources.
This omnibus authority, reflected in statute and codified at 405 KAR 5:032 Section 28 provides in part that (1) Permits issued by the cabinet may contain certain conditions necessary to ensure that the mineral operation will be conducted in compliance with KRS Chapter 350 and 405 KAR Chapter 5.
This authority is coupled with a prohibition against Cabinet issuance of a permit absent a demonstration by the applicant and a written finding by the Cabinet that, among other things:
"(3) The proposed mineral operation will not constitute a hazard to, or do physical damage to life, to an occupied dwelling, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, other public property or to members of the public, or their real and personal property."
405 KAR 5:032 Section 27(3).
Supplemental Comments Relative To Application No. 107-9401
In previous comments, KRC argued that the permit application must to assure that the rights of adjoining landowners and the public along the haulage route will be protected. The Council believes that the permit applicant is obligated by law to assess and fully mitigate the impacts on the road. No permit should issue absent a demonstration that the public roads serving the site are adequate and that no physical damage to the public roads will occur from the haulage and access. Additionally, structural impacts from vibrational damage due to truck traffic, noise, dust, traffic safety from use of large trucks on the road, must all be considered, quantified and mitigated.
The Council has subsequently become aware that the public road over which the proposed quarry intended to haul the quarried stone, the Ditmore Ford Road, is not of a class or condition that would enable safe transportation of the quarried stone in a manner that would protect the public from danger, and would prevent damage to the public road.
In testimony before the Franklin Simpson Board of Adjustment, a Mr. Tim Smith, appearing as a witness on behalf of the applicant Charles Deweese Construction, noted in response to questioning that the gross vehicle weight of the Ditmore Ford Road, which is the public road that the proposed quarry traffic would enter and exit to, is 36,000 pounds, and that the weight of the loaded vehicles would be from 75 to 80,000 pounds. See Transcript at pp. 59-60 (attached).
In later testimony, Jason Cook, another witness for the applicant, also acknowledged that the road could not be used for haulage under the current weight restriction (Id., at pp. 111-112), but in response to questioning disputed that the inability to use the road in its current condition was the subject of the hearing, asserting that were here for the use of the land, to mine the land, not haul the land, haul the rock today. When asked You cannot operate, you cannot permit your drivers to operate their vehicles loaded with rock on Ditmore Ford Road. Is that right?, the witness again responded Not the way it is today, but that's not what we're here for today. Id.
While the Council disagrees with that witness concerning the proper scope of matters to be considered in granting or withholding a conditional use permit, this Cabinet clearly must consider the impacts of haulage and truck traffic into and out of the proposed site in light of current road conditions and capacity, and in light of potential safety issues for the public using that road.
Assuming, for the moment, that the trucks hauling from the property were loaded light in order to meet the 36,000 pound gross capacity limit, there are other safety issues associated with the introduction of new trucks onto a road that is not wide enough to support such traffic safely.
The applicant had proposed, as part of the effort to secure a conditional use permit, to fund the widening of the road and improvements on the safety of a bridge crossing.
According to press reports, the Franklin City Commission unanimously approved a motion in mid-May that limits the weight on the city portion of Ditmore Ford Road (called Kenneth Utley Drive in the city) based on a report from an engineering firm representing the city that concluded that the road would have to be widened from the current 16-feet to 22-24 feet, and that blind hills and sharp curves would need to be corrected and the low-water crossing would have to be rebuilt in order to make it safe for the traveling public. City places weight limit on road to proposed quarry, Franklin Favorite, May 17, 2012.
American Engineers, Inc. of Louisville is reported to have told the Simpson County Fiscal Court on March 9 about the road conditions. According to press reports, the company determined that the road conditions fall short of what was required for heavy trucks and other vehicles to share the road safely. Four days later, AEI, which also has an office in Glasgow, submitted a report that recommended a widening of the 16-foot road to at least 22 feet and the replacement of the low water ford with a two-lane bridge with safety barriers and guardrails. The Fiscal Court apparently has also limited traffic to no more than 36,000 pounds unless the road is brought up to specifications as recommended by AEI. The Quarry Question, Bowling Green Daily News, April 22, 2012.
In light of the current road conditions, which would not allow for truck traffic associated with the proposed quarry to traverse the road without placing the road and the public using it at risk, KRC respectfully requests that the Cabinet deny the non-coal mining permit application. Permit denial at this time is the only action consistent with 405 KAR 5:032 Section 27(3), since the engineering report referenced above reflect that under current conditions, the proposed mineral operation would constitute a hazard to, or do physical damage to . . . . [a] public road [and] to members of the public[.] Issuing a permit under the current road conditions would violate this plain prohibition. The report is incorporated herein by reference as if set out below.
KRC requests that the Cabinet contact the Fiscal Court and City of Franklin, and obtain a copy of the engineering report, and that the permit be denied until such time as all improvements deemed necessary by the governmental entities with primary jurisdiction over the public road are completed and found by reviewing engineers for those entities to be safe for use by the proposed quarry traffic and the public.
Thank you for your consideration of these supplemental comments.
Cordially,
Tom FitzGerald
Director
Supporting KRC
Thank you for your interest in Kentucky's environmental and public health. Individual contributions from donors across the Commonwealth make it possible for KRC to do its work every day, including advancing environmental, energy, and public health policies in Kentucky.
Mark Tarter, Manager
Non-Coal Branch
Department of Mine Reclamation and Enforcement
Energy and Environment Cabinet
#2 Hudson Hollow
Frankfort, Kentucky 40601
Re: Drakes Creek LLC Simpson County
Permit Application No. 107-9401
Dear Mr. Tarter:
These comments are submitted by the Kentucky Resources Council, Inc. regarding the application of Drakes Creek LLC for a permit to conduct limestone quarrying operations at a site located on Ditmore-Ford Road and near the West Fork of Drakes Creek in Simpson County, Kentucky.
The Council requests that the comment period be extended by an additional thirty (30) days following the close of the public hearing, in order to allow submittal of supplemental comments.
Introduction
On behalf of the Kentucky Resources Council, Inc., and at the request of local residents concerned with the proposed quarry, I am tendering these written comments concerning the compliance of the proposed application with applicable regulatory and statutory requirements of KRS Chapter 350 and 405 KAR Chapter 5, as well as other applicable requirements of KRS Chapter 224.
As you are aware, a non-coal mining permit application, in order to be lawfully approved by the Cabinet, must demonstrate compliance with both the specific regulations adopted by the Cabinet and the authorizing statutes. The Cabinet's regulations have the force and effect of law only to the extent that they are properly promulgated and are consistent with the enabling statutes, and a decision by the Cabinet not to promulgate regulations addressing a particular aspect of public health and safety, and environmental protection, does not relieve either the Cabinet or the applicant from the obligation to address those concerns during the permitting of a proposed quarry. KRS Chapters 224 and 350, and the regulations in 405 KAR Chapter 5, due to their remedial nature, must be construed in a manner that gives full effect to the intent of the General Assembly.
In this case, the intent of the legislature is clear - the regulation of non-coal mining operations is to be undertaken in a manner that assures that the rights of adjoining landowners and the public will be fully respected and not placed at any risk.
KRS 350.300 provides the specific statutory backdrop against which the implementation of the non-coal regulations, and any issued permit, 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 concerning non-coal mining regulation that were made by enacting the IMC are these:
"ARTICLE III. STATE PROGRAMS
Each party state agrees that within a reasonable time it will formulate and establish an effective program for the conservation and use of mined land, by the establishment of standards, enactment of laws, or the continuing of the same in force, to accomplish:
- 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.
- 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.
- The institution and maintenance of suitable programs for adaptation, restoration, and rehabilitation of mined lands.
- The prevention, abatement and control of water, air, and soil pollution resulting from mining, present, past and future."
KRS 350.300.
The law sets certain benchmarks that the 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 authority and obligation is clear that a permit must effectively control all impacts from the mining activity from initial disturbance through production and reclamation.
Omnibus Authority
A permit applicant is obligated to satisfy the specific informational and analytical requirements of the Cabinets non-coal regulations at 405 KAR 5:002 through 5:095. Additionally, the Cabinet has broad regulatory authority, both under statute and through the non-coal permitting regulations, to impose conditions necessary or advisable to assure that the purposes of KRS Chapter 350 are satisfied. With that authority comes a concomitant duty to impose such conditions where the record demonstrates that, in the absence of such conditions, harm may become manifest to adjoining or nearby landowners or to air, land or water resources.
This omnibus authority, reflected in statute and codified at 405 KAR 5:032 Section 28 provides in part that (1) Permits issued by the cabinet may contain certain conditions necessary to ensure that the mineral operation will be conducted in compliance with KRS Chapter 350 and 405 KAR Chapter 5.
This authority is coupled with a prohibition against Cabinet issuance of a permit absent a demonstration by the applicant and a written finding by the Cabinet that, among other things:
"(3) The proposed mineral operation will not constitute a hazard to, or do physical damage to life, to an occupied dwelling, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, other public property or to members of the public, or their real and personal property."
405 KAR 5:032 Section 27(3).
The proper control of the adverse effects of non-coal mining operations demands that the Cabinet independently review plans for the mining and reclamation prior to permit issuance. It is legally insufficient to defer until after permit issuance the requirement that the applicant incorporate into the mine planning sufficient background sampling, during mining monitoring, sediment control, and demonstrate prior to permit issuance that the operation will satisfy statutory and regulatory requirements. In the absence of meaningful agency review of the submitted information, the Cabinet cannot exercise independent judgment in determining whether to approve or disapprove the application.
To do less would make 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.
Specific Comments Relative To Application No. 107-9401
The open pit mining (quarrying) of limestone poses a number of potential environmental concerns that must be addressed in order to achieve the statutory goal of protecting the public and environment. The uncontradicted testimony of John Morgan in the trial of the Olive Hill Investment Corporation case, accepted and quoted in the Hearing Officer's Report and adopted by the Cabinet Secretary, described the impacts of limestone mining in this manner:
"Mining has different impacts depending on where you are in the operation from the first exploration through production to reclamation. The principal areas which you are going to affect off site are the surface water regime, the groundwater regime, and, then, aspects of noise, dust, vibration. Specifically going back to the water issues, surface water can be affected by changing the characteristics of the flow off the site, that your flow rates in storm events can be different.
You can also get a difference in the physical characteristics of the water such as suspended solids. The chemical quality of the water can also be affected if you come into contact with metals or other toxic materials during the mining process. The groundwater regime can be affected a number of ways by a mining operation. And the first is if you go into a pit operation, which would intersect an aquifer, then, you could have a drawdown effect whereby the pit itself is the sink to a local groundwater.
You can also have effects to the groundwater. The flow paths can be changed, that you have the equivalent to a low-potential site where they mine so water can tend to flow to that and, therefore, could change groundwater patterns. You also have the issue that if there was any toxic material which was backfilled into the site, then, that could enter the groundwater, migrate in the downdip direction of the groundwater. So, youve got both a physical and chemical change to the groundwater regime.
The noise, dust and vibration issues, any mining operation creates noise -- its inherent with it -- by backup alarms, air blasts from blasting. And that can be controlled, but it will have an off-site effect. You also have the issue of dust.
Mining, again, by its nature is a disturbance of the rock; and, therefore, you will be creating some dust both on the roads, the crushing operation and the blasting operation. And vibration itself, through any blasting, you will create vibration which can be transmitted through the adjacent [rock] strata, therefore, will have an off-site effect."
Transcript of Hearing, at p.91-3.
Any effective program for control of non-coal mining impacts must contain conditions sufficient to address each of these concerns.
Against this backdrop, KRC has these specific comments:
1. The Permit Application Should Be Deferred Or Denied Until The Applicant Fully Characterizes The Hydrologic Regime At and Near The Mine Site
Due to the proposed location of the quarry, it is probable that mature karst subsurface features exist beneath the surface of the property. As noted by the Kentucky Geological Survey's Groundwater Resources of Kentucky,virtually all of Simpson County falls into the range of Intense Karst,with only a small section of the southeastern corner of the County identified as Karst Proneor Non-Karst.The proposed site is in an area identified as Intense Karst.
As noted above, quarrying limestone can change the physical characteristics of the water, such as suspended solids, and also the chemical quality of the water by leaching metals or other toxic materials from strata disturbed during the mining process. The groundwater regime can be affected a number of ways by a mining operation, including potential drawdown on local aquifers; migration of pit water through fractured strata or karst systems, and other changes in local hydrogeology wrought from the excavation and blasting associated with the limestone removal.
In order to assure that the proposed operation will not constitute a hazard to, or do physical damage to . . . a stream" under 405 KAR 5:032 Section 27(3), the applicant must provide sufficient data regarding the recharge, discharge, and flow characteristics of the karst system and the hydrologic relationship between the site and West Fork of Drakes Creek, to assure that the proposed quarry will not, by virtue of increasing suspended solids, by changing groundwater flow patterns through excavation or blasting, and through spills or releases of diesel or other petroleum products associated with heavy equipment, cause or contribute to the degradation of the quality and quantity of water in the groundwater system and West Fork of Drakes Creek.
Without such a hydrogeologic investigation, the Cabinet cannot make a reasoned decision on the permit and assure that the criteria of 5:032 Sections 27 and 28 are met. As the Hearing Officer in the Olive Hill Investment Corp. case, the Cabinet cannot determine whether a non-coal mining plan will minimize adverse effects to the area and to adjoining landowners without requiring background information on surface and ground water occurrence and quality and without independently reviewing the plans for mining and reclamation prior to issuance of a permit. (Emphasis added). Hearing Officers Report, Parker and Webb v. Olive Hill Investment Corp and NREPC, Conclusion #42.
The investigation should include at a minimum:
a. Mapping of aquifers and collection of background seasonal ground water quality and flow information;
b. Background geologic data to indicate the composition of the overburden and strata above and below the limestone, and the possibility of encountering acid or toxic-forming material. The chemistry and composition of the various materials and any rock strata overlying the mineral that will be mined and the acid or toxic-forming potential of the material must be assessed;
c. The anticipated impact of excavation and blasting on the groundwater flow patterns, and the potential impact on availability of groundwater for the existing groundwater users within the vicinity of the mining, and on the West Fork of Drakes Creek must be evaluated, including dye tracing in order to better map the nature and extent of any communication between the site and the Creek through subsurface pathways. Cross-sections of the quarry at final excavation and correlation of the quarry depth to various groundwater-bearing strata must be provided;
d. An analysis of both primary and secondary permeability groundwater flow in the area and the anticipated effect of mining and blasting on local aquifers and on the recharge of the Creek. It is unclear whether the operation will intercept the groundwater table, and if so, whether the pit will be pumped, and the effect of that drawdown on the Creek and other water users. It is likewise unclear the extent to which the Creek is in communication with any aquifers or karst features underlying the site. The seasonal high groundwater table must be identified, the potentiometric surface of the groundwater table mapped and correlated to the mine depth, and the subsurface drainage patterns must be mapped; and
e. A groundwater users survey documenting in qualitative and quantitative terms the nature of the groundwater resource and of the existence and quality of all groundwater aquifers that do or could serve to provide groundwater for beneficial uses, and of the quality and yield of existing wells within the larger of ½ mile radius of the site or the area of influence determined by a qualified hydrogeologist, in order to support a later determination of whether the operation has caused changes in quality or quantity of the resource such that water replacement is required.
Only after this information is developed and submitted can the Cabinet make a reasoned determination of compliance by the application with the mandate of 5:032 Section 27(3) that a hazard and physical damage to the West Fork of Drakes Creek will avoided, and that the rights of landowners with respect to the quality and quantity of groundwater will not be adversely affected.
2. The Application Should Be Required To Demonstrate That The Site Does Not Constitute A Natural Hazard Land And Consultation Should Be Sought From the Kentucky Geological Survey And Division of Water
Among the requirements of 405 KAR 5:032 Section 27 is that the applicant demonstrate that the proposed mineral operation will not adversely affect natural hazard lands. 5:032 Section 27(4). A natural hazard land is defined as a geographic area 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[.] Illustrative examples include but are not limited to areas subject to unstable geology or substantial erosion.
The Intense Karst nature of the geology of Simpson County would appear to make these lands natural hazard lands within the meaning of the applicable regulation. 405 KAR 5:002 Section 1(43). A geotechnical report, supported by adequate core samples and other forensic evidence, should be required in order that the applicant demonstrate that the site is not a natural hazard land and that mining will not pose a threat to the health, safety or welfare of people, property, or the environment. Given the close proximity of the site to Ditmore-Ford Road and a popular public park, a thorough geologic investigation is in order.
3. Additional Concerns:
In addition to the concerns identified above, KRC believes that these concerns must be addressed prior to the Cabinet being able to find that compliance with 5:032 Section 27 has been demonstrated by the applicant:
a. The Toxic Materials Handling Plan allows the applicant up to thirty days after encountering any toxic material, to treat or bury the material. Given the karstic nature of the area, the toxic materials handling plan should require immediate management of any encountered toxic-forming material.
b. The applicant has failed to supply the chemical and physical analysis of the topsoil material.
c. The application fails to provide sufficient information concerning the design of the two proposed sediment ponds, to allow the Cabinet to determine compliance. Given the presence of numerous sinkholes, which are indicative of mature karst, the proposed sediment ponds and all diversion ditches used to convey stormwater from the disturbed area, should be lined in order to minimize infiltration of stormwater containing elevated levels of suspended solids.
d. It is unclear whether the proposed sediment structures are intended to capture and treat any runoff from the haul road. Clearly, all disturbed areas, including haul roads, must have proper sediment controls.
e. The sediment control plan lacks sufficient detail to assure that the requirements of 5:032 Section 27(3), 5:032 Section 12, 5:050 and 5:055 will be met. The applicant should explain, if the structures are intended to be no-discharge structures, how any pumped discharge will be sampled in order to determine whether applicable effluent and water quality limits will be achieved. The application indicates that the ponds will be dewatered with pumps, yet there is a principal spillway on the pond design, suggesting that the ponds will discharge through a spillway.
All disturbed areas must be subject to sediment controls demonstrated during the permitting process to be sufficient to meet KPDES discharge limits and water quality requirements. The proposed sediment structures should be designed and certified by a registered professional engineer and bear the engineers stamp.
f. In order to discharge the Cabinets obligation to prevent harm to adjoining landowners and the environment, a number of additional measures should be required, including:
(i) A blasting plan. Blasting may cause dramatic adverse impacts on the recharge and discharge characteristics of the watershed, as well as causing vibrational and flyrock risks to adjoining landowners and their properties and to motorists traversing adjacent public roads.
A thorough characterization of the geology and site and the impacts of blasting on the nearby park and residential properties, and on the Ditmore-Ford Road, should be submitted in order to support an informed decision on the permit.
(ii) Evidence of liability insurance sufficient in amount and extent of coverage to assure compensation of third parties for personal or real property damage from blasting should likewise be required.
(iii) A plan for controlling fugitive dust emissions. The conduct of a mining operation releases a significant amount of dust. All sources of dust, from vehicular traffic, material storage and transfer, and windblown erosion of soil and rock storage piles, must be assessed and mitigation measures proposed to eliminate visible dust emissions at the property boundary. A dust control plan indicating how the offsite effects of dust from the crushing and stockpiling activity, haulage and mining activity, will be controlled in order to prevent violations of the fugitive dust standards of the Division of Air Quality; and absent a demonstration that the visibility standard can be met at the property boundary, the permit should not be issued.
(iv) A bond in an amount that is correlated to the cost of reclamation at maximum disturbance, in the event of operator default;
(v) The permit application must to assure that the rights of adjoining landowners and the public along the haulage route will be protected. The Council believes that the permit applicant is obligated by law to assess and fully mitigate the impacts on the road. No permit should issue absent a demonstration that the public roads serving the site are adequate and that no physical damage to the public roads will occur from the haulage and access.
Additionally, structural impacts from vibrational damage due to truck traffic, noise, dust, traffic safety from use of large trucks on the road, must all be considered, quantified and mitigated.
(vi) Noise impacts. Noise from blasting, normal operation, and vehicular traffic to and from the site, must be assessed, and measures taken to reduce off-site noise, in order to prevent nuisance conditions and to protect the use and enjoyment of the nearby public park.
g. Any equipment maintenance or refueling, and any on-site fuel storage, should occur only in an area that has been diked and underlain with an impermeable surface in order to prevent spills or leaks during maintenance and refueling from entering the karst subsurface.
Thank you for your consideration of these preliminary comments. For the reasons stated herein, the Council respectfully requests that the permit application be denied without prejudice as being technically incomplete until if and when the required information and analyses, and evidence of appropriate consultations and approvals from other agencies, are provided so that the Cabinet has available the information necessary to review the compliance of the proposed mining operation with 405 KAR 5:002- 5:095 and KRS 350.300.
Cordially,
/s/
Tom FitzGerald
Director
Monday, June 18, 2012
Mark Tarter, Manager
Non-Coal Branch
Department of Mine Reclamation and Enforcement
Energy and Environment Cabinet
#2 Hudson Hollow
Frankfort, Kentucky 40601
Re: Drakes Creek LLC Simpson County
Permit Application No. 107-9401
Dear Mr. Tarter:
These supplemental comments are submitted by the Kentucky Resources Council, Inc. regarding the application of Drakes Creek LLC for a permit to conduct limestone quarrying operations at a site located on Ditmore-Ford Road and near the West Fork of Drakes Creek in Simpson County, Kentucky.
Introduction
On behalf of the Kentucky Resources Council, Inc., and at the request of local residents concerned with the proposed quarry, I am tendering these supplemental written comments concerning the compliance of the proposed application with applicable regulatory and statutory requirements of KRS Chapter 350 and 405 KAR Chapter 5.
As you are aware, a non-coal mining permit application, in order to be lawfully approved by the Cabinet, must demonstrate compliance with both the specific regulations adopted by the Cabinet and the authorizing statutes. The Cabinet's regulations have the force and effect of law only to the extent that they are properly promulgated and are consistent with the enabling statutes, and a decision by the Cabinet not to promulgate regulations addressing a particular aspect of public health and safety, and environmental protection, does not relieve either the Cabinet or the applicant from the obligation to address those concerns during the permitting of a proposed quarry. KRS Chapters 224 and 350, and the regulations in 405 KAR Chapter 5, due to their remedial nature, must be construed in a manner that gives full effect to the intent of the General Assembly.
In this case, the intent of the legislature is clear - the regulation of non-coal mining operations is to be undertaken in a manner that assures that the rights of adjoining landowners and the public will be fully respected and not placed at any risk, and that damage to public property, including public roads, and to the safety of the public on those roads, will not occur.
KRS 350.300 provides the specific statutory backdrop against which the implementation of the non-coal regulations, and any issued permit, must to be measured. KRS 350.300 represents the General Assemblys 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 concerning non-coal mining regulation that were made by enacting the IMC are these:
"ARTICLE III. STATE PROGRAMS
Each party state agrees that within a reasonable time it will formulate and establish an effective program for the conservation and use of mined land, by the establishment of standards, enactment of laws, or the continuing of the same in force, to accomplish:
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."
KRS 350.300.
The law sets certain benchmarks that the 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 authority and obligation is clear that a permit must effectively control all impacts from the mining activity from initial disturbance through production and reclamation.
Omnibus Authority
A permit applicant is obligated to satisfy the specific informational and analytical requirements of the Cabinets non-coal regulations at 405 KAR 5:002 through 5:095. Additionally, the Cabinet has broad regulatory authority, both under statute and through the non-coal permitting regulations, to impose conditions necessary or advisable to assure that the purposes of KRS Chapter 350 are satisfied. With that authority comes a concomitant duty to impose such conditions where the record demonstrates that, in the absence of such conditions, harm may become manifest to adjoining or nearby landowners or to air, land or water resources.
This omnibus authority, reflected in statute and codified at 405 KAR 5:032 Section 28 provides in part that (1) Permits issued by the cabinet may contain certain conditions necessary to ensure that the mineral operation will be conducted in compliance with KRS Chapter 350 and 405 KAR Chapter 5.
This authority is coupled with a prohibition against Cabinet issuance of a permit absent a demonstration by the applicant and a written finding by the Cabinet that, among other things:
"(3) The proposed mineral operation will not constitute a hazard to, or do physical damage to life, to an occupied dwelling, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, other public property or to members of the public, or their real and personal property."
405 KAR 5:032 Section 27(3).
Supplemental Comments Relative To Application No. 107-9401
In previous comments, KRC argued that the permit application must to assure that the rights of adjoining landowners and the public along the haulage route will be protected. The Council believes that the permit applicant is obligated by law to assess and fully mitigate the impacts on the road. No permit should issue absent a demonstration that the public roads serving the site are adequate and that no physical damage to the public roads will occur from the haulage and access. Additionally, structural impacts from vibrational damage due to truck traffic, noise, dust, traffic safety from use of large trucks on the road, must all be considered, quantified and mitigated.
The Council has subsequently become aware that the public road over which the proposed quarry intended to haul the quarried stone, the Ditmore Ford Road, is not of a class or condition that would enable safe transportation of the quarried stone in a manner that would protect the public from danger, and would prevent damage to the public road.
In testimony before the Franklin Simpson Board of Adjustment, a Mr. Tim Smith, appearing as a witness on behalf of the applicant Charles Deweese Construction, noted in response to questioning that the gross vehicle weight of the Ditmore Ford Road, which is the public road that the proposed quarry traffic would enter and exit to, is 36,000 pounds, and that the weight of the loaded vehicles would be from 75 to 80,000 pounds. See Transcript at pp. 59-60 (attached).
In later testimony, Jason Cook, another witness for the applicant, also acknowledged that the road could not be used for haulage under the current weight restriction (Id., at pp. 111-112), but in response to questioning disputed that the inability to use the road in its current condition was the subject of the hearing, asserting that were here for the use of the land, to mine the land, not haul the land, haul the rock today. When asked You cannot operate, you cannot permit your drivers to operate their vehicles loaded with rock on Ditmore Ford Road. Is that right?, the witness again responded Not the way it is today, but that's not what we're here for today. Id.
While the Council disagrees with that witness concerning the proper scope of matters to be considered in granting or withholding a conditional use permit, this Cabinet clearly must consider the impacts of haulage and truck traffic into and out of the proposed site in light of current road conditions and capacity, and in light of potential safety issues for the public using that road.
Assuming, for the moment, that the trucks hauling from the property were loaded light in order to meet the 36,000 pound gross capacity limit, there are other safety issues associated with the introduction of new trucks onto a road that is not wide enough to support such traffic safely.
The applicant had proposed, as part of the effort to secure a conditional use permit, to fund the widening of the road and improvements on the safety of a bridge crossing.
According to press reports, the Franklin City Commission unanimously approved a motion in mid-May that limits the weight on the city portion of Ditmore Ford Road (called Kenneth Utley Drive in the city) based on a report from an engineering firm representing the city that concluded that the road would have to be widened from the current 16-feet to 22-24 feet, and that blind hills and sharp curves would need to be corrected and the low-water crossing would have to be rebuilt in order to make it safe for the traveling public. City places weight limit on road to proposed quarry, Franklin Favorite, May 17, 2012.
American Engineers, Inc. of Louisville is reported to have told the Simpson County Fiscal Court on March 9 about the road conditions. According to press reports, the company determined that the road conditions fall short of what was required for heavy trucks and other vehicles to share the road safely. Four days later, AEI, which also has an office in Glasgow, submitted a report that recommended a widening of the 16-foot road to at least 22 feet and the replacement of the low water ford with a two-lane bridge with safety barriers and guardrails. The Fiscal Court apparently has also limited traffic to no more than 36,000 pounds unless the road is brought up to specifications as recommended by AEI. The Quarry Question, Bowling Green Daily News, April 22, 2012.
In light of the current road conditions, which would not allow for truck traffic associated with the proposed quarry to traverse the road without placing the road and the public using it at risk, KRC respectfully requests that the Cabinet deny the non-coal mining permit application. Permit denial at this time is the only action consistent with 405 KAR 5:032 Section 27(3), since the engineering report referenced above reflect that under current conditions, the proposed mineral operation would constitute a hazard to, or do physical damage to . . . . [a] public road [and] to members of the public[.] Issuing a permit under the current road conditions would violate this plain prohibition. The report is incorporated herein by reference as if set out below.
KRC requests that the Cabinet contact the Fiscal Court and City of Franklin, and obtain a copy of the engineering report, and that the permit be denied until such time as all improvements deemed necessary by the governmental entities with primary jurisdiction over the public road are completed and found by reviewing engineers for those entities to be safe for use by the proposed quarry traffic and the public.
Thank you for your consideration of these supplemental comments.
Cordially,
Tom FitzGerald
Director
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By Kentucky Resources Council
on 04/19/2012 5:32 PM
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The Kentucky Resources Council is a non-profit, 501(c)(3) organization dedicated to the conservation and prudent use of Kentucky’s natural resources. Since 1984, we have dedicated ourselves to protecting Kentucky’s land, air, water, and communities.