Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2845 fax
August 14, 2003
Jim McKenzie By e-mail
Department for Surface Mining
Reclamation and Enforcement
#2 Hudson Hollow
Frankfort, Kentucky 40601
Re: Application for Non-Coal Permit and License
Whitley County Stone, LLC
Dear Mr. McKenzie:
On behalf of the Board and membership of the Kentucky Resources Council, Inc., 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.
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, since the agency is without authority under KRS Chapter 13A to expand or vitiate the terms of the statute.
The Cabinet's regulations, including the emergency non-coal regulations, have the force and effect of law, to the extent that they are properly promulgated. 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, that 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 will not 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 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 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.
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 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.
The authority and obligation is clear for a permit that will effectively control all impacts from the mining activity from initial disturbance through production and reclamation.
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 be manifest.
405 KAR 5:030 Section 28 requires that:
(1) Permits issued by the cabinet may contain certain conditions
necessary to ensure that the mineral operation will be conducted in compliance with all applicable statutes and administrative regulations.
(2) All mineral operations shall be conducted in accordance with
all applicable statutes and administrative regulations.
In fact, the Cabinet cannot issue a permit unless the applicant demonstrates and the Cabinet finds that, among other things:
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.
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 makes the permitting process wholly ineffective in assuring protection of the public and the environment, in contravention of the requirement of KRS 350.300 that the non-coal regulatory program be an effective program for the conservation and use of mined land . . . accomplish[ing] . . . [t]he protection of the public and the protection of adjoining and other landowners from damage to their lands[,] and that the regulation accomplish [t]he prevention, abatement and control of water, air and soil pollution resulting from mining, present, past and future; assuring that [t]he conduct of mining and the handling of refuse and other mining wastes [be accomplished] in ways that will reduce adverse effects[.] KRS 350.300 Article III 1, 2, 4.
The mining 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, 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
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
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
Consultation With US and State Fish and Wildlife Agencies Occurs
And Until An Individual KPDES Permit Is Obtained
The location of the proposed operation, and site plan which proposes to locate both processing and parking facilities and active pit excavations in relatively close proximity to Buck Creek, strongly suggest that permit review should be deferred until the Cabinet consults with the US Fish and Wildlife Service and Kentucky Department of Fish and Wildlife Resources to determine whether and under what conditions the operation can go forward without causing adverse effects on federally protected terrestrial and aquatic species.
The Cabinet has received correspondence dated June 18, 2003 from Lee Florea, former agency employee and now a PhD candidate at the Department of Geology at the University of South Florida, indicating that the location of the proposed quarry adjacent to Buck Creek in eastern Pulaski County may cause several adverse impacts:
* to caves and karst aquifers that may be physically affected by quarrying and associated blasting and by chemical or sediment contamination;
* to several federally protected and state protected species, including Grey Bats and mussels;
* to the quality of a stream whose complex hydrogeology makes it vulnerable to contamination and disruption by mining in such close proximity, and
* to the aesthetic and biological values of the stream, which is recognized by the USDA as a "biosphere reserve" watershed.
At a minimum, the agency should defer further processing of the application pending review and approval by the Division of Water of an individual KPDES permit, and until a finding of no adverse effect is issued by the US FWS and KDFWR.
There is no question that, given the presence of a federally endangered mussel, this operation will be ineligible for coverage under the non-coal general permit and will require an individual permit, after a years' collection of biological and water quality data. That same data is essential for your agency to make a reasoned determination as to whether the operation will "constitute a hazard to, or do physical damage to . . . a stream."
Yet it does not appear that the applicant is aware of this obligation, since the application at p. 9 indicates that the operation would "begin within thirty days of permit issuance."
Additionally, Section 28 of 405 KAR 5:030 protects enumerated high quality waters, and state nature preserves and "similar public lands[.]" The designation of this watershed as a biosphere watershed places it on par with other areas identified as being of public importance due to high quality, and it should be accorded the same protection and elevated review.
2. The Sediment Control Measures Are Insufficient
Rather than submit a sediment control plan that determines the anticipated sediment yield for each phase of the proposed operation, demonstrates how site run-on and run-off will be controlled and managed under varying design storm intensities, and demonstrates that the sediment control measures will be designed to meet numerical effluent and narrative water quality standards, the application proposes to install measures with the caveat that additional measures will be taken "if needed" as determined by the inspector.
The historic laissez faire approach of installing controls without demonstrating in advance the capacity of those controls based on realistic sediment yield and flow predictions, was rejected in the Olive Hill and the Cook & Cooper v. Nugent Sand cases, and is insufficient to meet the obligations of the applicant under 405 KAR 5:030.
Of particular concern is the request for a waiver of sediment control measures with respect to the haul road. No waiver should be granted for any area, given the sensitivity of the watershed and the federally protected species. The mine boundaries should be withdrawn to provide a greater buffer, and all sediment should be controlled and routed through proper conveyance channels (natural or constructed) so that no runoff from disturbed areas will run to the creek except after treatment in a sediment control structure demonstrated to be sufficient to meet appropriate standards. The haul road areas must be managed through properly designed and constructed ditches.
The use of rock fabric filters and straw dikes for sediment control cannot be primary control measures, since the runoff from disturbed areas are required to be routed through sediment ponds, and are of limited effectiveness in reliably meeting water quality limits over time. They may be used to augment, not supplant, the use of properly designed diversion ditches to minimize runon and to control runoff and divert it to sediment structure(s).
The applicant should be required to describe how sediment will be
collected and routed away from the creek for the mining areas closest to the creek and for the plant and parking areas.
3. The Application Must Consider The Potential Impacts of
Blasting On Buck Creek
As indicated by Lee Florea's comments, given the complex and fragile karst geology of the area, blasting may cause dramatic adverse impacts on the recharge and discharge characteristics of the watershed, in turn affecting the flow characteristics of the stream and the aquatic life it supports. A thorough characterization of the geology and hydrology of the watershed and the impacts of blasting in such close proximity to the stream, should be submitted in order to support an informed decision on the permit.
4. Other Specific Comments
In order to support a reasoned decision on the permit and to assure that the criteria of 5:030 Section 28 are met, the applicant should be required to submit:
a. Background surface and ground water quality, to support the review of the adequacy of the mine plans and to allow for a determination during and after mining of adverse effects. 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.
b. Background geologic data to indicate the composition of the various strata and the possibility of encountering acid or toxic-forming material. The chemistry and composition of the various materials and 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 and the existing groundwater users within the vicinity of the mining; including cross-sections of the quarry at final excavation and correlation of the quarry depth to various groundwater-bearing strata; and
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 stream. 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. The seasonal high groundwater table must be identified and correlated to the mine depth;
e. A groundwater users survey documenting in qualitative and quantitative terms the nature of the resource, in order to support a later determination of whether water replacement is required;
f. A demonstration that sediment ponds adequate to meet all applicable requirements will be put in place prior to any disturbance of the land area;
g. A dust control plan indicating how the offsite effects of dust from the crushing and stockpiling activity, plus the dust from the mining activity, will be controlled;
h. A bond in an amount that is correlated to the cost of reclamation at maximum disturbance, in the event of operator default;
i. A mining sequencing plan providing basic information concerning the amount of area to be disturbed at any one time, whether the pit area will be reclaimed as the mining progresses, and the sequencing of mining. The design of the mining and sequencing must be provided such that the applicant demonstrates how much area will be mined and to what depth, how any wastes will be handled and disposed, and how previously mined areas will be reclaimed as the mining advances. The applicant must explain how contemporaneous reclamation will be achieved.
j. 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 these additional impacts:
i. Transportation safety. The roads from the proposed operation are not designed or constructed to carry the anticipated loads. 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.
ii. 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.
k. 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. Absent a demonstration that the visibility standard can be met at the property boundary, the permit should not be issued.
l. 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.
The Cabinet has a duty to require sufficient information, analysis, and mitigation of on and off-site impacts associated with excavation, mining, processing and haulage, to fully protect Buck Creek, and the residents of this area and homes and environment, from all of the adverse effects of the proposed mining operation.
Thank you for your consideration of these comments.