Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
October 23, 2002
Hon. Paul Patton By fax only
Frankfort, Kentucky 40601
Re: Reform Of Non-Coal Mining Regulations
Dear Governor Patton:
I am writing, as one who has represented communities for many years in matters relating to proposed extraction of non-coal minerals, to urge your consideration of reforms of 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.
KRC was pleased when you issued the September 21, 2001 Executive Order 2001-1194 directing the Natural Resources and Environmental Protection Cabinet to review current laws and regulations related to ?reclamation of non-coal mineral mining and excavation activity, as well as study the cumulative negative impact of continuing the current status quo and the cumulative positive environmental impact which may result from the imposition of additional environmental enhancement and reclamation standards and requirements."
Among the specific areas that your order directed the Cabinet to consider were additional requirements related to bonding, fencing, reduction of highwalls, access roads and controls on open pits should be imposed.
I understand that there have been several drafts of proposed regulatory revisions, and that you are considering those proposals at this time. I am writing to urge that you direct these enhancements to existing regulations in order to better achieve the statutory goal of KRS 350.300, which directs the cabinet to adopt regulations in order to "protect the public and adjoining and other landowners from damage to their lands and the structures and other property;" reduce adverse effects on the economic, residential, recreational or aesthetic value and utility of land and water, and prevent, abate and control water, air and soil pollution resulting from mining, present, past and future.
In the 1995 non-coal regulation revisions, due to lobbying from the non-coal mineral industries, the Cabinets proposed regulations were weakened and several key provisions not included. 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 suggests that these provisions, already available in the coal mining regulations, should be incorporated into non-coal regulations:
* 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;
- a specific mining and reclamation plan including contemporaneous
reclamation requirements designed to maintain reclamation current with
- identification of groundwater resources, well-users surveys and groundwater protection plans, including a requirement to replace water
supplies damaged by mining;
- a clear requirement that 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 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 clear mandate to provide sufficient measures to prevent public access (particularly by children) to the mining operation.
* A blasting plan and requirement for pre-blast surveys to document the status of homes and other structures in order to assist landowners in seeking damages in the event of blasting impacts;
* A requirement to bond all operations at an amount sufficient to assure reclamation;
* A requirement to eliminate highwalls and to restore the mined area to a higher or better land use or the premining land use;
* Prohibition against any mineral operations within 300 feet of occupied dwellings;
* Updated annual mapping of underground workings;
* Applying same public notice and advertisement requirements to amendments or revisions adding new acreage to existing permits or
materially changing the nature of the operation;
* Time and distance requirements for mining operations to assure
prompt reclamation; and
* A process for designating areas as unsuitable for some or all types of non-coal mining operations.
Additionally, there are several 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;
* Hours of operation limitations;
* A requirement that the applicant demonstrate that the proposed routes of haulage and access to and from the proposed mine site on public and private roads are suitable and will not present a hazard to the public or do
damage to the roads. Standards are needed to limit such operations where roads with appropriate weight limits are not available and where such access threatens public health or safety. A demonstration should be required that the mined material will be safely transported, and the environmental and public safety impacts of such vehicular traffic must be assessed.
Unless these reforms are 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.
I appreciate again your issuance of the Executive Order directing consideration of reforms in the regulation of non-coal operations. I urge you to follow-through by proposing 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.
cc: Hank List, Deputy Secretary, NREPC