When Nally and Hamilton Coal Company began hauling coal on the Colliers Creek Road, a narrow residential road serving the Partridge community, the community endured the noise, the fumes, the dust, the disruption of their lives on a daily basis. While the company has since developed another dedicated haul road that bypasses the community, other coal companies continue to treat the Colliers Creek Road as their own haul road and to damage the road, the bridge, and the peaceful enjoyment of their homes and land by the residents of Partridge, despite the availability of the dedicated haul road.
Rebecca Boggs, a resident of Partridge living on the Colliers Creek Road, had the courage to stand up for her neighbors, demanding that the use of the road be stopped unless it was brought under a mining permit. The state Cabinet refused to take action based on a "public road" exemption that was struck down by a federal judge in 1985 as being inconsistent with the mining law because it focused on the amount of public use instead of coal use in deciding whether a road had to be permitted. The federal Office of Surface Mining, which has failed to make Kentucky change their regulation, took no action.
Rebecca was not deterred, and appealed the state's decision. On August 9, 2002, a hearing officer for the state Office of Administrative Hearings issued a Report and Recommendation in her favor, requiring that the state use a test that focused on the extent of and damage from coal-related use of the road as well as public use. The Hearing Officer recommendation goes to the Cabinet Secretary for a decision. In a related case, Rebecca has recently filed an appeal seeking to end another coal company's use of the Collier's Creek Road as a haul road unless it is permitted.
The decision, if affirmed by the Secretary, will clarify that for any future decision on whether to require a road to be permitted (and which in turn would require waivers from each resident within 300-feet of the road), the agency must consider the coal-related use and impacts on the road rather then focusing on the amount of public use.
The federal Office of Surface Mining, which just ended a self-congratulatory celebration in West Virginia of the 25th year of the mining law, might do better staying home and taking care of 17-year old regulatory business by setting aside Kentucky's illegal regulation and publishing a national rule clarifying the proper standards for evaluating when coal use of a public road demands that it be permitted.
A copy of the 32-page Report and Recommendation is available from KRC by sending a return email with a mailing address.