August 8, 2003: Non-Coal Testimony

Testimony of KRC from yesterday's unsuccessful effort to secure legislative approval of the Cabinet's modest reforms in non-coal mine regulations.

Testimony of Tom FitzGerald, Director, Kentucky Resources

Council, before the Administrative Regulation Review Subcommittee

August 7, 2003

Mr. Chairman, members of the committee, my name is Tom FitzGerald. I am Director of the Kentucky Resources Council, which has for 20 years been providing legal assistance without charge to communities and individuals on air, water, waste and resource extraction issues.

As you know, where mining operations occur there is often a conflict with other landowners and their use of property for agricultural and residential uses. I represent your constituents who live downhill, downwind and downstream.

I want to correct the impression that the conflict between non-coal mines and other landowners is a matter, as stated by Secretary List, or people moving to the mines. In the five non-coal cases that I have been involved in Olive Hill, in Whitley County, twice in Gallatin County, and in West Point, the mines moved into the community. Not that being there first would be a defense against causing a nuisance, but my calls come from landowners whose communities become targeted for new mines and whose homes, quality of life, and families are placed at risk. They call not because they are having a good day, but because they are frustrated and helpless in the face of the loss of their use, enjoyment, and value of their lands.

Much of the discussion thus far today has focused on the cost of the industry and the cost of crushed stone products from these new regulations. Understand that these are not new costs – instead they are costs now being borne off budget on the backs of neighbors, and to the extent that the regulations require that those costs be internalized into the product rather than being disproportionately borne by a handful of neighbors, it is an appropriate allocation of costs. As you consider the "fiscal impacts", please consider the current impacts of non-regulation or inadequate regulation causing damage.

The regulatory reforms before you today are moderate and are important. While the Patton Administration's goal in directing reforms may have been more focused on the Pine Mountain area, the problems, Senator Pendleton, are statewide, and KRC is thankful that the moratorium opened the possibility of improving protections statewide.

Many years ago, Kentucky incorporated into our state law the principles of the Interstate Mining Compact, which set as our benchmarks for non-coal mining regulation that the program must be effective in the conservation of mined land; that the public and adjoining and other landowners must be protected from damage to their property; that 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 and that water, air and soil pollution must be prevented, abated and controlled.

These regulations are in direct furtherance of that legislative policy and mandate. There is nothing unreasonable about requiring companies to:

* provide public notice when they amend permits to include new acreage;

* replace water supplies that they damage;

* file a transportation plan merely telling the public and the state where the material will be hauled and the weight load on the roads;

* provide a 300-foot, rather than a 100-foot buffer around people's homes unless they consent to being closer to a mine.

The fate of this regulatory package appears to be preordained, but I urge you, when you consider the "costs" of regulation, to think more broadly of the substantial costs paid by those living near these mines of non-regulation and of inadequate regulation. The proposed regulations are a modest and reasonable step forward and deserve your deference and support.