Nugent Case Underscores Weakness In State Regulation of Non-Coal Mining
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COMMONWEALTH OF KENTUCKY
NATURAL RESOURCES AND
ENVIRONMENTAL PROTECTION CABINET
FILE NOS. NCP-25254-037, 25263-037, NCP25264-037
PERMIT APPLICATION NO. 039-9602
KATHY COOK AND
ROSALIE COOPER, PETITIONERS
V.
NATURAL RESOURCES AND
ENVIRONMENTAL PROTECTION CABINET
And
NUGENT SAND COMPANY, RESPONDENTS
* * * *
PETITIONERS' POST HEARING BRIEF
* * * *
Come the Petitioners, Kathy Cook, and Rosalie Cooper by counsel, in accordance with the Scheduling Order For Filing of Post Hearing Briefs entered on August 6, 2002 and file this Post-Hearing Brief.
Background
This administrative action arises under KRS 350.300 and KRS 350.0301 and challenges the issuance of a non-coal permit and permit amendment 039-9602 to Nugent Sand Company to conduct a surface open pit sand and gravel mining operation in the Steeles Bottom community in Gallatin County, Kentucky. The petition for review was filed by Kathy Cook seeking a determination by the Hearing Officer that the permit was issued in violation of the applicable statutory and regulatory criteria, and that the permit determination should be reversed. Rosalie and Elijah (Bud) Cooper were also Petitioners in this action, and Rosalie remains a Petitioner. Bud passed away during the pendency of this action.
Statement of Applicable Law
The issuance of the non-coal mining permit is governed by the regulations contained in 405 KAR 5:001 through 405 KAR 5:096, (eff. February 22, 1995) and by KRS Chapter 13A, KRS 350.028, 350.029, 350.240 and 350.300.
KRS 350.300 provides the specific enabling authority for the adoption of non-coal mining regulations by the Cabinet; which regulations are intended to accomplish:
1. 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 con-
duct 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.
* * * * *
4. The prevention, abatement and control of water, air and
soil pollution resulting from mining, present, past and future.
KRS 350.300.
The criteria for permit issuance or denial are found at 405 KAR 5:030 Section 27, and require in relevant part that:
No application for a permit and no mineral operation
shall be approved, unless the application affirmatively
demonstrates and the cabinet determines on the basis of
information set forth in the application, and other available
pertinent information, that:
(1) The permit application is accurate, complete, and that all requirements of 405 KAR Chapter 5 have been complied with.
(2) The mineral operation proposed can be carried out under
the method of mineral operation outlined in the permit
application in a manner that will satisfy all requirements of 405 KAR Chapter 5.
(3) The proposed mineral operation will not constitute a
hazard to, or do physical damage to life, 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.
(a) All necessary measures shall be included in the method of
mineral operation in order to eliminate the hazard or damage.
(b) If it is not technologically feasible to eliminate the
hazard or damage by adopting specifications in the method
of mineral operation, then that part of the mineral operation
which constitutes the cause of the hazard or damage shall be
deleted from the application and mineral operation.
405 KAR 5:030 Section 27 further prohibits non-coal mineral operations within certain areas and within specified distances from protected structures and facilities; and includes a limited prohibition against a permit area being within one hundred (100) feet of the outside right-of-way of any public road absent compliance with the public notice, hearing and written finding requirements of 405 KAR 5:030 Section 27(6)(d)2.
405 KAR 5:015 Section 4(6) imposes a general obligation on persons engaged in mineral operations to conduct such operations in a manner which "minimizes damage, destruction, or disruption of services provided by . . . water wells[.]"
405 KAR 5:030 Section 28 authorizes and obligates the Cabinet to impose "conditions necessary to ensure that the mineral operation will be conducted in compliance with all applicable statutes and administrative regulations."
Burden of Proof And Scope of Review
The Petitioners have the burden of demonstrating by a preponderance of the evidence in the record considered as a whole that the Cabinet's determination was "contrary to law." KRS 350.0301(1), 405 KAR 5:095 Section 1(11). Petitioners bear the burden of going forward to establish a prima facie case, and the ultimate burden of persuasion as to the requested relief. 405 KAR 5:095 Section 1(1)(b).
The question presented for review is whether the Cabinet erred in issuing the challenged permit and amendment, based on the requirements of KRS 350.300 and the criteria of 405 KAR Chapter 5, including in particular 405 KAR 5:030 Section 27. The permit decision stands or falls on the record before the agency at the time of the permitting decision, and can not be rehabilitated by post hoc evidence or rationalizations, as was succinctly captured by Nugent's counsel:
We are focused ? or we should be - focused and limited in
time to those items which they had before them at the date
their decision was made. . . . The issue here is what was
contained in the application, was it sufficient under the
regulations and the statute, and did the Cabinet consider
those things that it's required to consider pursuant to
the statute and regulation. We have a limitation of time
for this hearing.
Transcript, Day 1, Vol. I, p. 27.1
Summary of Argument
The Respondent Cabinet acted in a manner contrary to law and fact in approving a permit application that was neither complete nor accurate and which did not satisfy the applicable regulatory and statutory requirements of KRS Chapter 350 and 405 KAR Chapter 5.
There are two broad areas in which the Cabinet failed to comply with 405 KAR Chapter 5 and KRS Chapter 350 in issuing the permit and amendment to Nugent. The first area includes those failures of the applicant and the Cabinet to address specific regulatory standards and requirements under 405 KAR Chapter 5 with respect to activities within the permit area or those arising from within the permit area and affecting off-site lands and people including:
* the failure of the permit application to comply with the requirement of 405 KAR 5:030 Section 4 that a complete list of all equipment including model number and condition be included in the permit application;
* the failure of the permit application to provide detailed designs and specifications for the proposed permanent impoundment as required by 405 KAR 5:030 Section 13;
* the failure of the permit application to demonstrate compliance with the requirements of 405 KAR 5:030 Section 27(6)(d)2, and the Cabinet failed to provide adequate notice, to conduct a hearing and to make required findings relative to allowing a permit area to be within one-hundred (100) feet of the outside right-of-way of a public road;
* the failure of the permit applications to fully identify the surface landowners of the surface area to be disturbed under the amended permit and of landowners within 500' of the initial permit area;
* the failure of the permit application to provide information demonstrating compliance with cultural resource assessment obligations for areas adjacent to the permit boundary, including the possible presence of National Register-eligible properties adjacent to the proposed permit boundary.
* the failure of the permit application to include, and of the Cabinet to require, sufficient information concerning the hydrology of the site and surrounding area, the method of operation, mine plan, and sediment yield and control, to allow intelligent assessment of the potential impacts of the land disturbance and mining on the quality and quantity of surface waters;
* failure to of the permit application map to show the drainage pattern on and away from the area to be affected; and
* the failure to require sufficient information to demonstrate compliance with the requirements of 405 KAR 5:030 Sections 14 and 17 concerning topsoil and spoil handling.
There is a second conceptual area of objections, involving impacts associated with the proposed mining activity for which the Cabinet has not promulgated a specific performance standard but which are necessarily associated with the mining activity, including transport of mineral from the site. These impacts are subject to the general prohibitions and restrictions of 405 KAR Chapter 5 and are subject to 405 KAR 5:030 Section 27 and the imposition of appropriate mitigation measures under 405 KAR 5:050 Section 28. The Cabinet failed to properly assess the severity of impacts or to impose conditions necessary to mitigate the effects of noise, dust, and hours of operation so as to prevent a hazard to or physical damage to resources protected by 405 KAR 5:030 Section 27(3); and to assess fully the impacts of the operation on groundwater use and on public road safety and integrity. While contested by Respondents, Petitioners believe that the transportation-related impacts to the public safety, environment and to the roads themselves are an inseparable component of the mining operation, and that those adverse consequences should have been assessed by the Cabinet. It is not necessary to reach the latter set of concerns in order to find that the permit was approved in a manner inconsistent with law, however, since the permit application and issued permit and amendment have so many independent fatal infirmities in areas that involve specific performance and permitting obligations and which are indisputably within the purview of the agency. Should the Hearing Officer reach the question, however, Petitioners' believe that the regulations do support exercising jurisdiction over those hazards to public health associated with noise, dust and hours of operation, and to danger to the public and damage to roads outside of the permit area, and that the Cabinet determination to issue the permit without appropriate evaluation of transportation impacts was arbitrary and capricious.
Any of the many failures identified in the pages that follow, compel the conclusion that the permit issuance determination was arbitrary, capricious, and inconsistent with the requirements of KRS 350.300 and 405 KAR 5:030 Section 27 and demand that the permit be voided and the determination to issue the permit be reversed.
ARGUMENT
I. The Cabinet erred in approving a permit application that failed to comply with the requirement of 405 KAR 5:030 Section 4 that a complete list of all equipment including model number and condition be included in the permit application.
405 KAR 5:030 Section 4 demands, unambiguous and categorically, that:
The permit application shall contain a list of all equipment,
model numbers, and condition of the equipment proposed
to be used for removing overburden and reclaiming the
affected areas of the proposed mineral operation.
405 KAR 5:030 Section 4 (eff. 2-22-95).
The original permit application did not contain that information; instead in answer to Question 25 on Form NCR-2 (3/90) the applicant stated that:
All stripping will be done on a contract basis, as well
as all reclamation activities. Normally, graders, dozers,
and scrapers are utilized.
(Joint Exhibit 1, P.3)
Roy McQueary confirmed at hearing that the application did not contain a list of equipment, model numbers or the condition of the equipment. (T1:1, p. 68 (McQueary).
Nor did the permit revision to add additional acreage to the permit area comply with the requirement, for it included listed only "(1) Front End Loader, Caterpillar 988F, New." (J.E. 2)
Looked at in the light most favorable to Nugent, it is clear that the regulation was not complied with and the Cabinet erred in issuing the permit because it was not complete, nor accurate, nor in compliance with 5:030 Section 4. For even assuming for the moment that the text of the amended application superseded the initial application text, the listing of a single piece of equipment in the amended application would not comply, since Section 4 requires that all overburden removal and reclamation equipment, including model number and condition, be listed.
The testimony indicates that more than one piece of equipment will be used, and in fact the original application noted that in addition to the listed front-end loader "graders, dozers and scrapers" are normally utilized. The Cabinet's assumption was that other equipment would be used, yet they failed to require the listing of the equipment as mandated by regulation:
Q. So then, you assume that they may still use other equipment
for the overburden removal and reclamation other than a front-
end loader?
A. Yes, sir. I don't think one loader would remove the
overburden and reclaim the site. No, sir. T.2:2, p. 216-7
(McQueary).
Whether it is "normal" for the applicants for non-coal permits to fail to provide this information, as was the testimony of Mr. McQueary, T.2:2, p. 217, it was improper for the Cabinet to issue a non-coal permit to Nugent Sand and Gravel and to later amend that permit to include new acreage, absent full compliance with the unambiguous requirement of 405 KAR 5:030 Section 4, for 405 KAR 5:030 Section 27 forbids permit issuance unless "the permit application affirmatively demonstrates and the cabinet determines . . . that "[t]he permit application is accurate, complete, and that all requirements of 405 KAR Chapter 5 have been complied with." 405 KAR 5:030 Section 27(1).
On this basis, the permit issuance determination with respect to the initial and amended permit areas must be reversed and the permit voided.
II. The Cabinet erred in approving a permit application that failed to comply with the requirement of 405 KAR 5:030 Section 13 that detailed designs and specifications
for an impoundment demonstrating compliance with
405 KAR 5:055 be included in the permit application.
405 KAR 5:030 Section 13 requires in full that:
Section 13. Permanent and Temporary Impoundments. If an
impoundment is part of the plan of reclamation or method
of mineral operation, the permit application shall contain
detailed designs and specifications for the impoundment
which demonstrates compliance with 405 KAR 5:055.
405 KAR 5:055 requires, among other things, that impoundment designs be certified by a qualified registered engineer (Section 1(1)); that the impoundment have "adequate means of access, such as roads or ramps" (Section 2(2)(a)); and that "a terrace be provided above, but in near proximity to, the high water level of the permanent impoundment" (Section 2(2)(b)).
Despite the mandatory and unambiguous requirement in 5:030 Section 13 that detailed designs and specifications demonstrating compliance with these and other requirements of 405 KAR 5:055 be included in the application, the permit application failed to provide any designs or specifications, let alone detailed ones. Instead, the initial permit application provided that:
Impoundment design attachment
Due to the ongoing nature of the mining operation, a design for
a future impoundment would not be practical at this time. However, prior to the termination of mining activities, a design
for impoundments will be presented which meets 405 KAR 5:055
requirements.
Joint Exhibit 1, "Impoundment design attachment."
The permit amendment contained the same language. Joint Exhibit 2, "Impoundment design attachment."
There is no language in the regulation that allows a permit applicant to fail to provide, or the Cabinet to fail to require, the detailed designs and specifications because it is "not practical at this time."
The applicant admitted in the application that the designs and specifications were not included. Additionally, testimony during the hearing reflected that no impoundment design information was provided. In testimony, Roy McQueary acknowledged that the application contained no designs or specifications for the impoundment:
Q. Are they proposing to leave an impoundment after the
mining is completed?
A. Yes.
Q. Can you identify for me in the application where the
detailed designs and specifications are for that impoundment?
Let me direct you. I mean, if you can find it anywhere that
would be helpful. There is a page, an unnumbered page, after
the application form captioned Impoundment Design Attachment.
A. I'm sorry. I didn't quite understand that.
Q. Didn't understand what, that there is a page that says
Impoundment Design Attachment? Its after the application
proper. It is a blank page with just a typed page. But either
on that page or elsewhere in the application, if you could
direct me to the design of the impoundment.
A. Impoundment Design Attachment?
Q. Yes. Did they provide designs and specifications for the
impoundment.
A. They proposed that a future impoundment design for the
future impoundment would not be practical at this time.
Q. So, they didn't. Is the answer that they did not provide
the specifications and designs?
A. Right.
T1:1, pp. 69-71 (McQueary).
On this basis alone, under the criteria of 405 KAR 5:030 Section 27, the initial and amended permit must be vacated and remanded.
III. The Cabinet erred in approving a permit application that failed to comply with the requirement of 405 KAR 5:030 Section 27 that no permit area be within 100 feet of the right-of-way of a public road unless, after public notice and an opportunity for public hearing, the cabinet makes a written finding that the interest of the public and landowners will be protected.
No permit application proposing to include within the permit area lands that are within one-hundred (100) feet, (measured horizontally) from the outside right-of-way of a public road, can be approved absent demonstrate compliance with the requirements of 405 KAR 5:030 Section 27(6)(d)2, which provides in relevant part that:
No application for a permit and no mineral operation shall
be approved, unless the application affirmatively demonstrates
and the cabinet determines on the basis of information set
forth in the application, and other available pertinent information, that:
* * *
(6) The proposed permit area is:
* * *
(d) Not within 100 feet, measured horizontally, of the outside
right-of-way line of any public road, except:
* * *
2. Where the cabinet allows the roads to be relocated or
allows disturbances within 100 feet of the roads, once the
applicant has obtained necessary approval from the goven-
mental authority with jurisdiction over the public road,
as required under Section 5 of this administrative
regulation; and if after public notice and opportunity for
public hearing a written finding is made, by the cabinet,
that the interest of the public and the landowners affected
thereby will be protected.
405 KAR 5:030 Section 27.
In this instance, the approval of the permit application violated three separate requirements of the regulation. The Cabinet failed to provide adequate notice that the application proposed to include within the permit land within 100 feet of a public road; the Cabinet failed to provide meaningful notice so as to inform the public that a hearing would be held on the issue; and the Cabinet failed to make required findings relative to allowing a permit area to be within one-hundred (100) feet of the outside right-of-way of a public road. For any and all of these reasons, the permit decision must be remanded and the permit voided.
Mr. McQueary, after reviewing the permit map for the initial permit. indicated that the permit boundary was within 25 feet of the public road.
Q. So, [the permit area] is within 25 feet of the public road?
A. Yes.
T1:1, p. 93 (McQueary).
When asked whether any notice or hearing was provided, Mr. McQueary acknowledged that there had not been:
Q. If you would look at both Exhibit 1 and Exhibit 2 and tell
me whether there is any evidence in those applications that
a public notice was given by the agency of the applicant's
proposal to be within 100 feet of a public road. While you
look, Roy, if you would look at there's a copy of the public
notice that is contained after the idealized silt fence illus-
tration that bears the date December 6th, 2000 and is a
notice of intent to mine.
A. Okay.
Q. Is there anywhere stated in that public notice that the
applicant is seeking permission to have the permit area within
100 feet of a public road?
A. No, sir.
Q. Are you aware of any other public notice that was given
regarding that request to be within 100 feet of a public
road in the permit area?
A. I don't recall one right off.
Q. Do you recall whether a hearing was held on the request
to be within 100 feet of a public road?
A. A hearing for that purpose?
Q. A hearing, right.
A. No, sir.
Q. Do you recall whether the hearing that was held, the
permit conference, notified the public that they were requesting
to be within 100 feet of a public road?
A. Not that no, not that I recall.
T1:I, pp. 93-4 (McQueary).
The permit decision must be reversed, and the permit approval voided for the failure to comply with the specific notice and hearing requirements of 405 KAR 5:030 Section 27 with respect to the proposed disturbance within 100 feet of the public road.
Additionally, the permit decision is contrary to law in that the Cabinet failed to make the written finding required by Section 27(6)(d)2 that "the interest of the public and the landowners affected thereby will be protected," and for this failure as well, the permit decision must be reversed and the permit voided.
IV. The Cabinet erred in approving a permit application that failed to comply with the requirements of 405 KAR 5:030 Section 2
405 KAR 5:030 Section 2(1)(f) requires disclosure of the surface owners of record within the area proposed for mining" and 405 KAR 5:030 Section 2(1)(g) requires the same information for mineral owners of record.
Despite this requirement, the applicant failed to disclose the names of the surface owners of record for that part of the area to be mined under the amended application referred to as the "Sproul" property. When asked in the application for the "Surface owners of the area proposed for disturbance under this application" the company stated:
Nugent currently owns the forme Dravo property and the
Parker property. Nugent has a lease to mine the Sproul
property.
This failure to identify the surface owners requires that the permit decision be voided and the matter remanded, for the permit application fails to conform to a clear regulatory requirement and is not "complete and accurate" nor in compliance with the regulation. 405 KAR 5:030 Section 27.
In testimony, Robert Holt, identified as the Director of Permitting for Nugent Sand Company and the individual who submitted the amendment application, acknowledged that Nugent has a lease for the Sproul property from two individuals, Jeff and Lynn Sproul, but that there are other surface owners of that property:
Q. Who is the lease on the Sproul property with?
A. It is actually with the Sprouls themselves.
Q. And you don't remember which Sprouls signed that lease?
A. I believe I wasn't there when the lease was executed, but
I believe there was I believe it was Jeff and Lynn, but I don't
have a copy of the lease in front of me.
Q. Jeff Sproul and Lynn. Is that Lynn Sproul?
A. I believe that's his wife.
Q. To your knowledge, are there other owners of the surface
of the Sproul property?
A. I believe that there is.
Q. And who is or are those other owners?
A. I believe it's Mr. Sproul's sister, I think.
Q. Do you know her name?
A. According to the plat, I believe it's Ms. Blankenship.
Q. According to which plat?
A. Just going off I'm sorry going off the amended
mine map.
T2:1, pp. 89-90 (Holt).
Nugent failed to identify Ms. Blankenship as a joint owner of the Sproul property in the initial permit, when it listed Jeffery, Lynn, Warren and Sheila Sproul as owners of a tract within 500' of the borders of the proposed disturbance area, yet omitted Ms. Blankenship. Joint Exhibit 1, NCR-2 Form, p. 5, Q. 32.
The initial and amendment permit applications were thus not complete and accurate, and the regulatory requirements with respect to listing surface owners for the disturbance area and within 500' were not met.
For these reasons, the permit approval was inconsistent with law.
V. The Cabinet erred in approving a permit application that failed to comply with the requirement of 405 KAR 5:030 in that the applicant failed to collect and provide information concerning cultural resources for areas within and adjacent to the permit boundary.
405 KAR 5:030 Section 10 is captioned "Cultural resource information" and provides in full that:
The applicant shall specify whether any sites listed on the National Register of Historic Places or any known archaeological
sites exist within, or adjacent to, the proposed permit boundary.
The permitting actions by the Cabinet failed to properly conform to this regulation in two respects. First, the archaeological survey conducted on behalf of the applicant was limited to the area proposed to be permitted and did not consider the possibility of National Register-quality structures or archaeological sites on areas "adjacent" to the proposed permit boundary.
This much is clear by contrasting the acreage of the initial permit area, listed in Joint Exhibit 1, NCR-2 p. 2 as "79.21" acres, with the scope of the "Phase I Archaeological Field Reconnaissance of Approximately 80 Acres in the Steele Bottom Area Near Ohio River Mile 520 in Gallatin County, Kentucky".
Had the applicant conducted a field reconnaissance sufficiently broad to satisfy the requirement for consideration of the permit and adjacent areas, it is possible that a log structure pre-dating two other local structures listed on the National Register, would have been identified and evaluated prior to the burning of the structure.
Uncontradicted testimony reflects that on property immediately adjacent to the original permit area, there stood a log house older than two houses that are on the National Register.
[T]here was a log house on [the O'Connor] property, a
house that had been framed over. The front two rooms
of it were log and the back portion there had been a
back portion added on that was not log that was frame.
The log portion was 57 feet wide and 17 feet deep.
Q. Do you know what year that was constructed roughly?
A. I really don't. I've talked to a lot of older people in the
community and in the area. I can tell you a lot of people who
lived in that house or started housekeeping in that house.
It was prior to 1900. It could have been anywhere from
1875 to 1900.
* * *
Q. Is the O'Connor property - - - where is it in relation
- - the property that you're talking about that had this
structure, where is it in relation to the Nugent property that
is - - -
A. It adjoins the original permit area. If you look at that
picture behind you, that log house was behind that black
barn. You see the chimney sticking up. That was - - -
Q. You say the house was behind it?
A. It was behind it.
Q. Has it been moved?
A. It was burned.
Q. Was it burned prior to the time that the permits were
issued to Nugent?
A. No, it was not. No, it was not. It was burned on Monday
night.
Q. You're talking about this past Monday night.
A. This past Monday. There is also another logthere is
a log barn on the other piece of O'Connor property.
Q. Does that property also adjoin or abut the Nugent permit
area, to the best of your knowledge?
A. Well, they have purchased it, but the Sproul property lays
between.
T1:2 pp.188-90 (Ewbank).
The regulation plainly requires consideration of cultural and archaeological resources for areas adjacent to the permit area, yet that was not done in this case. There is no evidence that the structures around the permit area were evaluated, despite the acknowledgement by the Cabinet's staff archaeologist that standard procedure would have been to do so:
In an area like this, Steele Bottom, the community, and
you find an historic cemetery within proximity of a permit
area, would that key you, as a professional archaeologist,
to look at structures around that area?
A. You mean outside the permit area?
Q. Yes.
A. You would take note of them. The standard procedure
now is to do an initial photograph with description and
then evaluate it further primarily for impacts.
Q. So that even though there's not a direct disturbance, there
might be an impact?
A. That could be possible.
T3, p. 20 (Carter).
The permit application for the amendment area was flawed also in failing to include a Phase I archaeological investigation as part of the application. Instead, the permit amendment was approved with a condition of no disturbance until after the archaeological investigation was completed this allowing an incomplete application to be processed and approved, and denying both the agency and the public any review of the study prior to a decision to issue the permit.
For either and both of these reasons, the permit determination was inconsistent with 405 KAR 5:030 Section 27 and must be reversed.
VI. The Cabinet erred in approving a permit application that failed to comply with the requirement of 405 KAR 5:030 that the map show the drainage pattern on and away from the area to be affected.
405 KAR 5:030 Section 8 requires, among other information items to be depicted on the mine map, that the map:
(10) Show the drainage pattern on and away from the area
to be affected, including the direction of flow, proposed con-
structed drainways, natural drainways to be used for drainage,
and the streams or tributaries to receive discharges from the
proposed mineral operation.
Despite this requirement, the mine map for the initial and amended permit areas fail to identify the flow direction and receiving tributary or stream for drainage from the berm towards the outside of the disturbed area.
The mine maps contain arrows supposedly showing drainage flowing towards the center of the disturbed areas on the original and amended permit area. Yet there is no indication of where the drainage flow for that rainfall falling on and running off the berm to the outside of the permit.
In response to questioning, Cabinet personnel acknowledged that the water falling onto the berm and flowing outside the bermed area would not be controlled and brought into the pit. T1:1 p. 78 (McQueary).
When asked whether the map showed the drainage pattern for water flowing outside the berm, Mr. McQueary acknowledged that the map "does not show the drainage on the outside of the berm." T1:1, p. 80 (McQueary). Mr. McQueary surmised that the water draining to the outside of the berm would drain to "the road ditch", T1:1 p. 79 (McQueary), but acknowledged he did not know whether there was a ditch or not, T1:1 p. 81 (McQueary); nor whether the grade of the road was higher or lower than the land where the berm is located. T1:1 p. 81 (McQueary).
In fact, as testified to by Magistrate Elsie Ewbank, there is no road ditch anywhere along where the mine permit boundary meets Kentucky 1992. T1:2 p. 190 (Ewbank).
Additionally, the map is required to document the "proposed constructed drainways [and]natural drainways to be used for drainage" yet the drawing but crudely identifies the direction of the flow without identifying how the flow will be directed towards the center of two separate mining areas despite a drop in elevation of twenty-five feet from one end of the permit to the other.
The numerous problems with the sediment control "plan" will be argued below, but it is clear that no indication is provided on the mine map (or elsewhere) of how the water is to be conveyed from the lower elevations of the mine area to the pit, despite the requirement that the constructed or natural drainways to be use be identified.
When asked about the management of stormwater within the permit area, it became clear that Mr. McQueary did not know how the water would get to the center of the permit, particularly before the pit was excavated:
A. The drainage area shows it draining to the center of
the permit.
Q. Is that a natural grade or is that one that would be
constructed?
A. It just shows it draining to the center of the permit. It
doesn't say whether it's natural or constructed.
Q. Well, before the pit is created - - is the pit going to be
in the center of the permit?
A. Well, the pit is eventually going to be over most of the
permit itself.
Q. Before that pit is excavated, do you know where the
drainage from the processing and other disturbed areas will
go?
A. It's showing it draining into the center of the permit.
Q. Do we know whether that is going to be through drainage
ditches or just they're assuming natural drainage in that
direction?
A. I'm assuming that they're assuming it's natural drainage.
T1:1 pp. 86-7 (McQueary).
The assumption that natural drainage would cause the water to collect in the center of the permit is one grounded in hope rather than in fact, for the map demonstrates an uneven terrain with a twenty-five foot drop across the permit area; T3 p. 87 (Gilpin); in which some areas are higher than others, T3, p. 104 (Gilpin); and that map is as much as 30% off in accurately depicting the terrain, according to Mr. Gilpin. T3 p. 106. Additionally, with respect to potential run-on stormwater, a "drainage plan" map indicates that drainage from higher elevations at the north side of the processing plant would be directed to the west by "a small ditch" and that run-on from the east and south would be managed in the pit, yet there is no indication of where that water will be routed to in the west, how large the ditch is and whether it is sized to adequately contain and divert the runoff from the higher elevations, and how the run-on from the east and south will be managed to get it to the pit (and how it will be managed before there is a pit). Joint Exhibit 1.
When asked whether the berm was important to the control of stormwater in the permit area, Mr. Gilpin noted that the sediment control plan would work without the berm so long as the drainage was going back into the pit." T2:2 p. 196 (Gilpin). When asked how that would occur, Mr. Gilpin answered, "[b]y diverting it back into the pit."
Q. How do you divert it, particularly when you have a 25-foot
drop in elevation from one end of the permit to the other?
A. I don't know.
Q. Would they use diversion ditches, do you think?
A. Where the diversion ditches will work, yes, but they might
be mining here at this area here and keeping the drainage
coming back in as they work out toward the berm.
Q. They might be
A. They could be.
Q. But you don't know where they're going to be.
A. They could be.
T2:2 p. 197 (Gilpin).
The routing of stormwater to the "center of the permit" is the apparent key to the stormwater management plan, yet the Cabinet has not a clue how that water will get to the permit center, because the applicant failed to document on the mine map the drainways, natural or constructed, that will be used to convey the stormwater.
For this reason, the permit decision must be reversed and the permit voided.
VII. The Cabinet erred in approving a permit application that failed to comply with the requirements of 405 KAR 5:030, 405 KAR 5:050 and 5:055 with respect to surface water quantity and quality protection.
405 KAR 5:030 Section 12 requires the permit application to contain "a surface water quantity and quality protection plan which shall demonstrate to the satisfaction of the cabinet compliance with 405 KAR 5:050 and 5:055, and "shall include" "[a]ll other engineering designs, dimensions and calculations required to demonstrated compliance with 405 KAR 5:050 and 5:055 or otherwise required by the cabinet." 405 KAR 5:030 Section 12(2).
Additionally, 405 KAR 5:030 Sections 12(4) and (5) require that the permit application contain "descriptions, designs, diagrams, figures, and calculations as necessary to adequately explain and illustrate" all other sediment control measures and other methods for protecting surface waters.
What does 405 KAR 5:050 require?
Among other things, 405 KAR 5:050 demands that the protection measures be "designed, constructed and maintained to minimize disturbance of surface water quantity and quality within the permit area, to prevent material damage to surface water quantity and quality outside the permit area, and to prevent additional contributions of sediment to streamflow or run-off outside the permit area." 5:050 Section 1(1). No mineral operation may violate any state or federal water quality standard or effluent limitations as established by the Division of Water.
Additionally, the regulation clarifies that those protection measures include practices carried out within and adjacent to the disturbed area,
405 KAR 5:050 Section 1(2), and that the scale of downstream practices must reflect the degree to which successful techniques are applied to the sources of the disturbance. Id., Section 1(3).
What then is the obligation of the permit applicant with respect to these requirements of 405 KAR 5:050? Combining those regulatory mandates with the permitting requirements of 5:030, the obligation of the permit applicant is to provide those "engineering designs, dimensions and calculations required to demonstrated compliance" with the requirements to minimize disturbance of surface water quantity and quality within the permit area; prevent material damage to surface water quantity and quality outside the permit area, prevent additional contributions of sediment to streamflow or run-off outside the permit area; and to demonstrate that the mineral operation will not violate water quality standards or effluent limitations.
It is apparent that many of the critical pieces of information and data needed to rationally judge whether the proposed mining operation would meet these goals, were missing. Despite the clear requirements of the regulation, the Cabinet remains in a posture of approving sketchy, incomplete, insufficient information at the permitting phase and instead relying on the gut judgment of the field inspector after-the-fact. Unfortunately, this laissez faire, cavalier approach to permitting in the area of stormwater management and sediment control cannot be squared with the regulation or the language of the statute.
405 KAR 5:050 Section 1(4) outlines a number of measures that can be employed singly or in combination to achieve the goals of minimization, prevention of material damage, and prevention of additional contributions of sediment.
(4) Surface water quantity and quality protection measures
consist of the utilization of proper mining, reclamation
methods, and incorporated practices, singly or in combination,
including but not limited to:
(a) Disturbing the smallest practicable area at any one time
during the mineral operation through progressive backfilling
and grading, and timely revegetation;
(b) Shaping the backfill material to encourage a reduction in the
velocity of run-off, to an extent which is consistent with the
requirements of this chapter;
(c) Retention of sediment within the pit and disturbed area;
(d) Utilization of straw dikes, riprap, check dams, mulches, vegetative buffer zones, dugout ponds, silt fence, and other
measures that reduce overland flow velocity, reduce run-off
volume, and entrap sediment;
(e) utilization of other appropriate treatment facilities such as chemical treatment for acid and metals; and
(f) sedimentation ponds.
405 KAR 5:050 Section 1(4).
Certain requirements adhere to all proposed protection measures. First, "all surface drainage from the disturbed area, including disturbed areas which have been graded, seeded, or planted, shall pass through sediment control structures and, where necessary, other treatment facilities that have been approved by the cabinet, before leaving the permit area." Section 1(6). Next, no operation can violate water quality or effluent limits, as has been stated above. Section 1(7). Finally, the Cabinet is authorized to require other actions above and beyond the administrative regulation requirements to ensure that surface waters are protected. Section 1(8).
Nugent's proposed "surface water quality protection attachment" is a largely unenforceable, all-but-voluntary promise rather than a demonstration that compliance will be maintained at all times.
Does the application contain "engineering designs, dimensions and calculations" sufficient to "demonstrate[] compliance" with the minimization and prevention requirements? No, instead it is a vague promise:
This site will use appropriate protection measures as laid out
in 405 KAR 5:050. These measures include but are not
limited to retention of sediment from runoff being retained
in the pit area, timely revegetation of the backfill area, and
the use of berms to reduce overland flow velocities. We will
disturb only the smallest practicable area at any one time.
Any sediment from the plant will be retained in the pit and the
use of straw dikes, riprap, check dams and other measures
will be used (sic) to reduce overland flow velocities and entrap
sediment before it escapes the mining area. The sediment control structures shall remain until water quality and revegetation requirements have been met as laid out by the Division of Water and 405 KAR 5:070 respectively. These details are shown on the attached drawings. Hay bales will be used
whenever possible to control erosion. (emphasis added)
With the exception of two illustrations, one of hay bales and one of a silt fence, that is the entirety of the surface water quantity and quality protection plan. The portion that has been italicized above was eliminated from the permit amendment application, removing any commitment to the use of hay bales "whenever possible."
What is wrong with the plan?
To start, neither the applicant nor the Cabinet have any knowledge of the amount of sediment expected to be generated from the disturbed areas or the velocity or volume of runoff that would have to be managed to meet the requirements of 405 KAR 5:050. Mr. Gilpin acknowledged that no calculations or modeling was done for the flow or sediment yield for the area draining through the permit. T3 p. 100. The only information that was used to determine the adequacy of the plan at meeting 405 KAR 5:050 requirements was the one-paragraph narrative and the two maps. T3, p. 101. Without that basic information (and information on the effectiveness of various specific control measures at trapping sediment and reducing velocity of overland flow)2, it is impossible to make a finding that the proposed measures will be effective in achieving the requirements or 405 KAR 5:050. Further, since the application does not identify which specific measures will be employed nor the location of those measures relative to the watershed area and runoff volume and rate being managed,3 no prediction can be made of whether the proposed measures will be effective.
With respect to runoff falling from the bermed topsoil or spoil to the outside of the permit area, as mentioned earlier, nothing obligates applicant to use hay bales or silt fences to control that runoff outside the berm. T1:1 p 76 (McQueary). There is no obligation on the permittee to place the hay bales or silt fences at a particular location; T1:1 p. 77 (McQueary); instead it is at the inspectors' discretion. T1:1 p. 77. The drainage from outside the bermed area does not go to the pit. T1:1 78 (McQueary); but instead is proposed to flow into the road ditch, T1:1 79 (McQueary), despite the absence of such a ditch. The Cabinet does not know to where the drainage from outside the berm drains. T1:1 79 (McQueary). Since the Cabinet intends to rely on the inspectors' judgment as to where sediment controls should be placed concerning the outside of the berm, and there is no requirement that the inspector review the site for sediment controls before construction begins, it is quite possible that berm construction could occur without prior imposition of effective sediment control measures T1:1 83 (McQueary).
The Cabinet's witness testified that the silt fence and hay bales would be placed at the "toe of the berm, to control the silt" "at the time of construction of the berm or shortly after". T2:2 p. 156 (Gilpin). There is nothing in the permit that imposes that requirement, and the permit application contains no such commitment. Certainly, placement of the erosion controls "shortly after" construction would do little to control sediment transport from the time of disturbance until imposition of control measures, but the permit and application neither require such measures before, during or "shortly after" such disturbance.
According to the Cabinet personnel, the adequacy of the surface water quality plan rests on "keep[ing the sediment] in the pit[.]" T3 p. 86 (Gilpin). Yet as discussed earlier, there is no indication of how the drainage is to get to the pit. "I'm assuming that they're assuming it's natural drainage" that will get the runoff into the center of the permit area, according to Mr. McQueary, T1:1 p. 87, despite the existence of an uneven terrain with 25-foot difference between one end of the permit area to the other.
The ability to route the water from the disturbed area to the pit depends on the relative elevation of the areas, the sizing and elevation of the natural or constructed conveyance channels (diversion ditches) and the existence of a pit. No plans, drawings, or even a discussion were included concerning how the runoff was to get to the center of the permit, given the uneven terrain and the drop of 25 feet across the face of the permit.
This difference in elevation did not appear to trouble the Cabinet who considers the area "flat" despite the acknowledgment that "some areas are higher than others", T3 p. 104, but the law of gravity dictates that water will run from areas of higher to lower elevation, and there is no indication in a realistic sense of how much runoff will need to be handled and how it will be managed to meet the 5:050 requirements.
Additionally, despite the requirement that all drainage pass through sediment control structures, there is nothing in the permit requiring drainage that is assumed to be traveling to the permit center to pass through such structures before the pit is excavated.4 How drainage will be managed within the permit area prior to excavation of the pit is unclear, and is of significance, since it is acknowledged that there is a natural drainage channel that is not bermed, T1:1 p. 85 (McQueary). This drainage area is the headwater of Steele's Creek, which starts at Nugent's property and flows down into the Ohio River. T1:2 p. 197 (Ewbank). How runoff that would normally drain into that area is to be managed is nowhere made clear.
Further, the ostensible commitment to disturb only the smallest practicable area is as meaningless as it is completely unenforceable, since the Cabinet failed to prescribe or define a maximum pit area or to place any other limit on the amount of disturbed area allowed at any one time. The applicant is left to define what is the "smallest practicable area" so that the commitment becomes a hollow and meaningless statement. The Cabinet didn't ask and has no idea what is the proposed sequence of mining, T1:1 p. 72 (McQueary). The permit imposes no limit on the amount of disturbance at any one time, T1:1 p. 73 (McQueary) and the applicant could disturb the entire mining area without commencing reclamation of any of it. T1:1 p.73 (McQueary). The Cabinet has no idea how big the pit will be, T1:1 127 (McQueary) nor does the permit contain any maximum limit on pit area or size T1:1 p.127. The Cabinet admitted that there is no standard in the permit that would allow the Cabinet to determine how much disturbance is too much. Id. There is nothing in the permit that prevents Nugent from using a mining method that results in disturbance of the entire permit area before any reclamation begins. T1:1 p.133 (McQueary). Against this backdrop, the undefined commitment to limit the pit size as is "practicable" is no guarantor of surface water quality protection.
In sum, we are left with a surface water quality protection plan that is premised on water being contained in a pit, with no knowledge of how it will get there or be managed before there is a pit, which is premised on minimizing the amount of disturbed area with no standard for measuring when minimization is achieved, and which promises to deploy as-yet unselected sediment control measures in as-yet unidentified location(s) to control an unquantified volume of stormwater runon and runoff.5 This hardly satisfies the requirements of 405 KAR 5:030 and 5:050.
Additionally, 405 KAR 5:050 requires that protective measures be employed to address surface water quality and quantity. There is no indication of how the changes in the drainage patterns will affect the quantity of water reaching Steele's Creek or other receiving streams, making the application incomplete in this regard.
VIII. The Cabinet erred in approving a permit application that failed to comply with the requirement of 405 KAR 5:030 Sections 14 and 17 concerning topsoil and spoil handling.
The permit application contained no calculations concerning the amount of topsoil or spoil that would be generated by the mining operations. T1:1 p. 68-9 (McQueary). Lacking the most basic information about how much spoil or topsoil would be removed at any one time, the Cabinet had no idea if spoil area proposed in the permit application (which is the constructed berm) is large enough to handle material. T1:1 p. 127 (McQueary). Testimony at the hearing reflected that the amount of spoil, assuming mining of 176 acres times the average thickness of overburden (7 feet) would yield some 1.99 million cubic yards of material to be managed, yet there was no indication that either the Cabinet nor applicant had calculated the amount of topsoil or spoil or addressed how that material would be managed, since the idealized berm design had a fixed height and width, accounting for but a small fraction of that volume of material. T2:2 p. 113 (Gilpin).
IX. The permit application failed to assess
the potential for negative impacts on groundwater
resources sufficiently to satisfy the requirements
of 405 KAR 5:030 Section 27 and 28.
In response to concerns raised during the comment period on the initial application, David Johnson and the Division of Water were both asked to review the potential for impacts on groundwater. Unfortunately, that review was inadequate in scope to assess whether the criteria of 405 KAR 5:030 Section 27 will be met.
Initially, the working assumption of Mr. Johnson in his limited review of the potential for impacts of the operation on groundwater was that the operation will be a "dry" operation that will not excavate sand and gravel below the water table. He assumed they wouldn't be working below water table, T2:1, p. 59; T3 p.72, but acknowledged that there is no basis in the permit for that assumption. T3, P. 72.
This assumption is inaccurate, since the application indicates an intent to excavate below a depth where evidence suggests the aquifer is located, and also because there is neither any requirement that the applicant disclose whether the depth of the excavation or the method of mineral removal, processing, nor is there any restriction preventing the applicant from excavating below the water table and mining the product "wet."
Evidence suggests that mining will occur at a depth below where the groundwater will be encountered. The Cabinet noted that the mining depth was about 75 feet. T1:1 p.116-7 (McQueary), and the applicant in the amended application indicated an intention to excavate mineral ..... Nothing in the permit talks about the method of mining the mineral, T2:2 p.228 (McQueary), and there is nothing requiring that they stop at a particular depth of extraction. T2:2 p.229 (McQueary). The company could mine the material wet and excavate below water table, T2:2 p.229, and there is nothing requiring the company to report if they go deeper. If a dredge were contemplated by the permittee for use to remove the material wet, nothing would have required the company to report that a dredge will be used. T2:2 p.229 (McQueary).
Mr. Gilpin opined that dredging would be inconsistent with method of operation, T3 p.95, yet his supervisor Mr. McQueary acknowledged that the company doesn't have to tell the state if they're using a dredge; T2:2 p.214 (McQueary); that the Cabinet couldn't stop them from using one if they determined to, T2:2 p.215 (McQueary) and that the Cabinet would merely ask them to revise their permit informationally. T2:2 p.221 (McQueary).
The assumption that the operation would excavate "dry" and would not directly encounter the aquifer is thus not founded in fact. The assumptions made concerning vulnerability of the aquifer to disruption assumed a lesser potential for impact than may be the case. On remand, the potential for disruption of the aquifer and rights of nearby landowners concerning groundwater use should be reevaluated against a record that includes development of more accurate site-specific information and a more realistic assessment of impacts against an actual mine plan.
The groundwater assessment undertaken by the Cabinet was insufficient in several other critical respects. The drainage plan, such as it is, contemplates drainage of all disturbed areas to the pit as treatment, thus draining areas in which there is a potential for a diesel or gasoline leak or spill from trucks or cars. Yet the assessment of groundwater impacts assumed only the potential for increasing turbidity of two groundwater wells and the proposed wellfield for the Gallatin County Water District. T3 p. 64 (Johnson). Johnson acknowledged that he didn't consider the contamination possibility from pit water into the pit. T2:1, p. 59-60, and that he was only looking at sediment. p. 61, and didn't consider the impact of petroleum contamination. T3 p. 79.
The assessment was undertaken based on extremely limited information. Johnson acknowledged that there was no water well users survey; T2:1, p. 23; that he had no information on seasonal high water table. T2:1, p. 50, that the application said nothing about the depth and characteristics of the groundwater resource, T2:1, p. 18, and that his assessment was based on generalized geologic quadrangle map information T2:1 p. 16, and considered the impacts on the two wells for which the state had file information. Id.
The concerns of area residents spring from the use of groundwater for domestic and other legitimate uses by private landowners in the vicinity. According to Mr. French, of the Gallatin County Water District, the test wells dug for the water district in Steele's Bottom encountered water at a depth of 60 feet T1:2 p. 268 (French). Several area residents have private wells, including John Roberts, Elsie Ewbank, the Doily household, and the Sproul property. T1:2 pp. 268-9 (French). Magistrate Ewbank confirmed that many residents have water wells. T1:2 p. 187 (Ewbank). She indicated that water was encountered in her well at 50 feet. Id.
When asked whether Johnson knew some of the homes had wells, he acknowledged that he did but had assumed without evidence that some would be hooked up to a water line in the community. Id. p. 27.
The concern with mining below the water table is twofold. First, by "daylighting" the aquifer through pit excavation below the water table,
contamination is more likely since the overlying layers of sand; gravel and other material that might have attenuated the contamination are absent. T1:2 p. 270 (French). Any contamination of the aquifer might interfere with the potential use of the aquifer as a well field for the water district, T1:2 p. 265 (French), necessitating higher costs for treatment of the water or replacement of the supply. T1:2 p. 274 (French). The second concern is the impact of pumpage of water from the pit or for processing the mineral on the aquifer and the use of water by other groundwater users. Despite the fact that the application indicated groundwater withdrawal would occur, Johnson did not inquire about water withdrawal. T3, p. 71.
Johnson's written assessment is thus based on generalized knowledge rather than site-specific information. His written report assumed that the groundwater would flow to the Ohio River, yet he acknowledged that there may be local differences in flow directions, T3 p.69, and that the flow direction could be reversed depending on the height of the river relative to the groundwater table. T3 p.69-70; T2:1 pp. 39, 40, 43.
Perhaps most telling was his response to the question of whether the Ohio River might influence and contaminate the Gallatin County Water District test wells. Mr. Johnson responded that it is conceivable Ohio might contaminate test wells, T3 p. 73-4, but that you'd have to "determine aquifer characteristics" to answer that question. T3, p. 74. Petitioners submit that in order to properly answer the question of the impact of the mineral operation on the groundwater resource and use of the aquifer by other landowners, that same assessment of aquifer characteristics must be undertaken.
405 KAR 5:030 Section 27 demands that no permit issue unless the applicant demonstrates and the agency finds that, in addition to the permit application being complete and accurate, that "[t]he proposed mineral operation will not constitute a hazard to, or do physical damage to . . . stream, lake, other public property or to members of the public or their real and personal property." This broad prohibition is consistent with the mandate of KRS 350.300, which demands 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" and which requires that the regulations be interpreted in a manner to assure "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 values and utility of land and water;" and the "prevention, abatement and control of water, air and soil pollution resulting from mining[.]"
The statute does not admit to an interpretation that extends protection to surface waters to the exclusion of groundwater, and the agency is without power to expand or detract from the statutory mandate. The absence of categorical standards for groundwater protection comparable to those for surface water quantity and quality does not empower the agency to avoid the responsibility for extending protections to those interests required by statute; since the language of 405 KAR 5:030 Section 27 is broad enough to address and require minimization of harm to groundwater resources, and 405 KAR 5:030 Section 28 provides ample authority and a concurrent responsibility to impose such conditions as are necessary to minimize such harm on a case-by-case basis.
The Cabinet's actions in this case reflect an acknowledgment of that authority. While acknowledging that the non-coal regulations don't specifically require a demonstration of groundwater protection as part of the application, T2:2 p.165 (McQueary), the Cabinet requested review by Mssrs. Johnson and Elliston (of the Division of Water) because "groundwater was mentioned in the public permit conference." T2:2 p.166, 199 (McQueary).
Having acknowledged that groundwater issues were of legitimate concern so as to warrant additional investigation, the Cabinet unfortunately engaged in only a superficial and limited review without sufficient information to properly characterize the aquifer and the vulnerability to contamination.
X. The Cabinet failed to impose conditions necessary to
insure that the mineral operation will be conducted in
accordance with all applicable statutes and administrative
regulations.
As discussed immediately above, KRS 350.300 demands that the Cabinet's regulatory program be administered so as to assure "protection of the public and protection of adjoining and other landowners from damage to their lands" and that mineral operations are conducted in a manner so as to "reduce adverse effects on the economic, residential, recreational or aesthetic value and utility of land and water." Protection both of property and of the use of property is the statutory directive, and the Cabinet's regulations must be read to be consistent with that goal and mandate. Thus, the obligation of the Cabinet to prevent hazards and physical damage to life, to public roads, and to members of the public and their real and personal property, (405 KAR 5:030 Section 27) and the authority to impose case-specific conditions to assure statutory compliance, must be read to encompass the intended protections of the statute.
Against this backdrop, the failure of the Cabinet to impose conditions addressing noise, public road traffic and haulage impacts, dust, hours of operation, and lighting require reversal of the permit approval and a remand to the agency.
A. Impacts of Public Road Haulage And Access Should Have Been Addressed
The record reflects that Kentucky 1992 from the Nugent site to the intersection with U.S. 42, is a narrow, constrained road that was not designed nor constructed to withstand heavy industrial use. The road is too narrow to allow two trucks to pass without the tires coming off the road blacktop. T1:2 p. 185 (Ewbank); see also T1:2 p. 235 (Martin). Uncontroverted testimony from a local road official familiar with the road construction indicated that the road can't handle the projected 50 trucks per day without physical damage. T1:2 p. 218 (Martin). Based on his direct observation as a resident, Mr. Birch concurred with Mr. Martin that physical damage would occur from hauling within the current limit. T1:2 p. 239 (Birch). The road, in addition to being narrow, has too many winding turns and blind spots to be appropriate for heavy industrial use. T1:2 pp. 241-2 (Birch). Safety concerns with the introduction of heavy truck traffic to the US 42 - Ky. 1992 intersection concerned also Mr. Barnes, who resides at that intersection, T1:2, p. 252 (Barnes); and a blind rise in the road near that intersection on KY 1992 concerns Denny French, who is pastor of the church located near the intersection and who is responsible for the safety of churchgoers entering and exiting onto KY 1992. T1:2, pp. 262-3.
The Cabinet testified that they don't have "any regulations that regulate the public highways" T2:2 185, yet 405 KAR 5:030 Section 27 specifically demands that the Cabinet refrain from issuing a permit whose operation will constitute a hazard to or do physical damage to [a] . . . public road[.]" The absence of a specific regulatory requirement addressing groundwater did not prevent the Cabinet from investigating the issue, and presumably (since one would expect that investigation was done out of more than idle curiosity) would not prevent imposition of case-by-case requirements under 5:030 Section 28. The refusal to consider the potential for physical damage to the public road and the potential hazard to life and limb from the use of that road is arbitrary and capricious.
The Cabinet acknowledged at hearing that public road safety concerns came up at the hearing; T2:2, p.199 (McQueary), T3, p. 117 (Thompson). The Cabinet defended the decision to do nothing concerning public road safety issues on the interpretation of 405 KAR 5:030 Section 27(3) as applying to operations conducted within the confines of the permit and causing material damage to the public road; such as undermining it. T3 p. 117 (Thompson). Yet the Cabinet acknowledged that it did address impacts of mud originating in the permit area and tracked and deposited on public roads. T3 p. 134 (Thompson). Curiously, while mud deposited from the truck wheels was considered within the Cabinet's jurisdiction despite the fact that the problem did not becomes manifest until it is off the permit area and on a public road, the spillage of gravel from the bed of the truck onto the road causing dangerous conditions was not considered to be within the scope of the Cabinet's duty and power to prevent hazards to public roads or life. T3, p. 137.
B. The curious case of noise pollution
The amended permit application contained a noise plan, T2:2 183, which proposed no blasting and which proposed that the MSHA-required back-up alarms would be operated only at required limits.
Despite this, the Cabinet noted that the company could engage in blasting and there would be no violation issued against the company because the Cabinet does not regulate it. T2:2 p. 204 (McQueary). Likewise, if the company operated backup alarms at levels higher than required the Cabinet indicated that the company would not be cited, T2:2 p. 205 notwithstanding the noise plan.
With respect to other potential sources of noise, including truck traffic, excavation, conveying, processing and storage of the product and disposal of spoil, nothing is stated in the permit application. T1:1 p. 91.
The Cabinet noted that there is no specific regulation addressing noise. T3, p. 140. Yet the Cabinet acknowledged that it had the authority to condition permits "if there were a hazard"; presumably under the authority of Sections 27 and 28. T3 p. 141. Using the example of an orchestral auditorium 301 feet from the mine, the Cabinet acknowledged what Petitioners have believed to be true - that the broad language of 405 KAR 5:030 Sections 27 and 28 require evaluation of all hazards and risks to life and property and allow case-by-case imposition of controls to prevent hazard and physical damage.
C. Access Control
Similarly, the Cabinet acknowledged the authority to control site access if a potential hazard is present, despite the absence of a specific regulatory requirement for site access control. When asked whether the Cabinet had authority to require fencing or other measures to limit public access, the agency acknowledged it could if it were a safety hazard "that could be seen." T2:2 188, and that a fence is more effective than a berm. T2:2 p. 189. Yet the Cabinet failed to properly evaluate the need for fencing or other measures to prevent access to the site, nor the hazard associated with the site in light of the lack of rudimentary information on the size, depth, and location of the pit.
D. Lighting, Limits On Hours, Dust Control And Wastes
Among the issues acknowledged to have been raised by the public yet not addressed by the Cabinet were impacts from site lighting on the use and enjoyment of other properties; T1:1 p.91, limits on hours of operation to protect the use and enjoyment of nearby residential properties; T1:1 p.91; the need to effectively control site access to protect against injury from youth; T1:1 pp.91-2; the need for dust control of areas not proposed to be controlled in the permit application, including berm construction. T2:2 164.
Finally, the Cabinet failed to address in any manner the management of production waste; T1:1 p.87, the so-called "slimes" representing that fraction of material that is too clayey for use and must be disposed of by the operation. T1:1 88
In order to satisfy the requirement of KRS 350.300 that an "effective" program for the conservation and use of mined land, assuring the protection of the public and the protection of adjoining and other landowners from damage to their lands and the structures and other property resulting from the conduct of mining operations, the Cabinet was obligated to request information and impose conditions sufficient to prevent off-site impacts to land, surface and groundwater resources; and to control noise, dust, and other impacts of mining and associated processing and haulage. The Cabinet has violated the law by instead making the permitting process in this case largely 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 Cabinet failed to require information needed to determine what measures are required to assure that no hazard or damage will occur, including: failing to require background surface and ground water quality, failing to require the applicant to address the anticipated impact of mining and any dewatering or contamination of the sand and gravel pit on the groundwater resource and the existing groundwater users within the vicinity of the mining; to provide cross-sections of the mine and correlation of the mine depth to various groundwater-bearing strata, and by failing to require a groundwater users survey documenting in qualitative and quantitative terms the nature and local use of the resource; failing to require rudimentary information concerning the mining operation and the area proposed to be mined, including the depth to groundwater at the mine site, the chemistry and composition of the various materials and rock strata overlying the limestone that will be mined; and whether any of that material is acid or toxic-forming; failing to require sufficient hydrologic data needed to determine whether sediment controls will be effective in meeting the requirements of the KPDES program, and in preventing water pollution; failing to require an effective dust control plan, and to require control and monitoring of noise and dust from the operation; and in failing to require that the applicant provide a means of haulage and access to and from the proposed mine site that would assure safety of adjoining landowners and the public.
The Cabinet acted in a manner inconsistent with law in failing to assure that the rights of adjoining landowners to be free of fugitive dust emissions, diesel fumes, unsafe truck traffic, and excessive noise, will be fully protected during all phases of the mining and associated processing activity; in failing to require a demonstration that the mined material will be safely transported, and in failing to assess the environmental and public safety impacts of such vehicular traffic, a failure that is particularly egregious in light of the record evidence that KY 1992 is incapable in width and weight-bearing capacity, of safely handling existing residential, school and church traffic and the proposed haulage traffic from the sand and gravel operation; that fails to contain appropriate mining, and sequencing plans to assure minimization of disturbed areas; and in approving a permit application that fails to assure proper dust control for spoil excavation and berm construction to assure protection and air resources and the rights of adjoining landowners; and which contained sufficient measures to prevent public access (particularly by children) to the sand and gravel mining operation.
Because of any and all of these deficiencies, the Cabinet erred as a matter of law in approving the permit to Nugent because the permit application was not complete, accurate, and did not comply with all of the requirements of Title 405, Chapter 5.
CONCLUSION
The residents of the Steele Bottom community can be excused if they feel somewhat like Alice having fallen down the rabbit hole to a topsy-turvy world in which the things that are important are considered "beyond the jurisdiction" of the Cabinet, and where even those requirements that the Cabinet agrees are applicable are largely ignored at the permitting phase.
The real-world impact of this operation on the community does not stop at the permit boundary, but rather extends to the roads and the homes and families, church congregations and others that use those roads. The Cabinet and Nugent have argued that despite the clearly expressed intent of the statute, that they needn't address transportation safety and road damage; impacts from extraction activities and spills or releases of hazardous substances and fuels on groundwater; noise from on-site activities, transportation and haulage; lighting; hours of operation; and other off-site impacts of excavation, processing and haulage.
Assuming for the moment that they are correct, Petitioners have demonstrated that for a number of independent and sufficient reasons, the permit as approved and later amended, must be voided and the decision to issue set aside for want of compliance with the regulations.
We have demonstrated that the permit originally and as amended was not accurate, complete or in compliance with the regulations in a number of areas, any of which is sufficient to justify a reversal of the Cabinet's decision without reaching the questions of public road impacts.
In response to questioning whether the challenged permit was subjected to a "heightened review" because of public concerns, Roy McQueary noted "[w]e did review it more intense than we would maybe other permits."
Petitioners find cold comfort in the characterization as "intense" a review process that, despite clear mandates in the law, resulted in a permit with no impoundment designs, no public notice and hearing on the road disturbance and no finding concerning the waiver, no equipment list meeting the regulatory requirements, nothing approaching adequate consideration of spoil generation and management; no minimally adequate sediment control plan; no enforceable mine plan or contemporaneous reclamation requirement; and no consideration given to impacts on cultural and archaeological resources adjacent to the permit area.
WHEREFORE, Petitioners respectfully request that the permit decisions be reversed, that the permit as initially issued and amended be voided, and for any and all other relief to which Petitioners may appear entitled.
Respectfully submitted,
September 25, 2002 __________________
Tom FitzGerald
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428
Counsel for Petitioners
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing PETITIONERS POST-HEARING BRIEF was mailed, postage prepaid, to the following this 25th day of September, 2002:
George Seay, Jr. Esq.
311 West Main Street
P.O. Box 495
Frankfort, KY 40602
Karen J. Greenwell, Esq.
Wyatt Law Firm
250 West Main Street Suite 1700
Lexington KY 40507
Bradford Smock, Esq.
Office of Legal Services
Fifth Floor, Capital Plaza Tower
Frankfort Kentucky 40601
that a courtesy copy was mailed to each of the "interested persons" listed in the file, and that the original was lodged by mail with the Docket Coordinator for the Office of Administrative Hearings, 35-36 Fountain Place, Frankfort, Kentucky 40601 this 25th of September, 2002.
____________________
Tom FitzGerald
1 The transcript spans three days, with two volumes each for the first two days. Hereafter the reference will be to T(Day)(Volume)(Page) (Witness), for example T.1:1 p.27(Seay).
2 Mr. Gilpin acknowledged that neither the hay bale or silt fence sketch indicated the sediment-trapping efficiency of the structures nor the flow conditions at which they are capable of trapping sediment. T3 p. 103.
3 Mr. Gilpin acknowledged that the applicant wasn't required to identify specific measures to be taken. T3 pp. 102.
4 The use of a berm does not assure that all water will be controlled on site, since the berm is not continuous, T1:1, p. 85. The berm needn't be constructed entirely before mining begins T2:2 p.192, and nothing requires building the berm in an area of disturbance prior to disturbance. T2:2 p.193
5 Since the "drainage map" proposes to manage all overland flow from the east and south onto the permit by diversion to the pit, that volume and rate of run-on must be calculated as well and the manner of diversion demonstrated. For the "small ditch" that is to intercept the run-on from the north, there is no indication of whether that design will be sufficient to intercept all upland flow, and if not, how the run-on that comes onto the plant site will be managed.
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