KRC Comments on proposed state surface mining regulation changes
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KRC Comments on proposed state surface mining regulation changes Posted: October 12, 2011
September 30, 2011
Michael Mullins, Regulation Coordinator
Department for Natural Resources
#2 Hudson Hollow
Frankfort, Kentucky 40601
By email Michael.Mullins@ky.gov
Dear Mr. Mullins:
These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc., a nonprofit membership organization incorporated under the laws of the Commonwealth of Kentucky and dedicated to prudent use and conservation of the natural resources of the Commonwealth. The Council provides legal, technical and policy assistance to community groups, conservation organizations, local governments, and low-income individuals on a wide range of issues, including the effects of surface and underground coal mining. KRC members include numerous individuals who live, work, and enjoy the natural resources of the coalfields of the Appalachian and Illinois Basin in the Commonwealth.
The Council has reviewed the proposed amendments to 405 KAR 5:085, 5:095, 7:091 and 12:020 and offers these comments:
405 KAR 5:085
With respect to Section 2(3)(c), KRC seeks assurance that it remains the practice within the Cabinet that no prior notice will be given to a permittee or operator of an inspection.
Section 3(1) of the regulation changes ?any inspector to an inspector. KRC recalls that when the Kentucky surface mining program was submitted to the federal Office of Surface Mining for approval in 1982, the Kentucky program did not require mandatory issuance by all field inspectors of appropriate enforcement orders (i.e. Notices of Non-Compliance or Cessation Orders) immediately upon discovery of a violation.
The change from any to an could be read to mean less than all field inspectors will issue such orders, and KRC suggests that an be replaced with all in order to remain consistent with the federal counterpart regulation. KRC requests also that the Cabinet reaffirm that any violation discovered by any field inspector will be subject to an enforcement order.
Section 3(4)(b), as rewritten, is no longer consistent with the federal regulation 30 CFR 722.12, since it eliminate the opportunity for extending the abatement time beyond 90 days when weather conditions do not permit. Additionally, as rewritten the regulation would allow an extension of the abatement period where it is not allowed under federal regulation.
Under 30 CFR 722.12(e)(4), the abatement period can be extended where due to climatic conditions, abatement within 90 days clearly:
(i) Would cause more environmental harm than it would prevent; or
(ii) Requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act.
Thus, the reference to MSHA standards arises only where climatic conditions make such actions potentially violative of safety standards. The change in the state regulation makes the safety standards reference a separate ground for extending abatement irrespective of climatic conditions, and in so doing, is less effective than the federal counterpart regulation, which limits such extensions more narrowly.
Section 4(2)(b) as amended is missing part of the sentence, and no longer requires issuance of a notice of non-compliance and remedial measures at the time of issuance of a CO.
405 KAR 5:095
In Section 1(4)(b) on p. 4 line 14, or the permit is suspended should read if the permit is suspended.
In Section 1(7), limit of the number of witnesses should read limit the number of witnesses.
In Section 1(14), the elimination of the phrase his or her own eliminates the ability of the Secretary to disregard the recommended order from the Hearing Officer and to adopt an order different than that recommended (in whole or in part). It should be revised to read or issue the Secretarys own final order.
In Section 1(17), the elimination of substantial appears to allow the Secretarys final order to be based on less-than-substantial evidence. Such an order would be in violation of the Kentucky Constitution Section 2, and would make the Secretarys order inconsistent with KRS 350.0305, which requires that the order be based on substantial evidence as to matters of fact. Substantial should be reinserted where it is proposed for deletion.
In Section 3(2), the discretion of the Hearing Officer to impose conditions on the grant of temporary relief is removed, suggesting that the Hearing Officer is limited to granting or denying such relief without conditions. In order to maintain consistency with federal regulation, the deleted phrase upon conditions as are deemed appropriate should be reincluded, or the federal counterpart in 30 CFR 775.11(b)(2) of under such conditions as it prescribes should be used.
405 KAR 7:091
With the removal of Section 2, the remaining Sections should be renumbered.
In Section 1, p. 2 line 10, establishes should read established.
In Section 2(1)(b)1, KRC requests that the Cabinet clarify which law the Hearing Officer is obligated to give effect to, with respect to privileges. Does that mean Kentucky law and/or federal law? Is a Hearing Officer entitled to give effect to privileges recognized in other states but not in Kentucky?
In Section 2(4), the phrase to verify allegations makes no sense as proposed to be located. To verify allegations originally modified all of the preceding types of discovery. Documents are required to be produced for any number of reasons, including but not limited to for the purpose of verifying allegations. In order for the reorganized subsection to read properly, the phrase to verify allegations should be moved to line 5 to read the moving party is relying on one of the following to verify allegations:
Section 7(3) presupposes that all parties will have fax and email addresses, when for many low- and fixed-income coalfield residents, that is not the case. Those phrases should be modified with if any so as not to preclude filings by parties lacking either or both.
In Section 11, p. 14, line 22, the use of the word establish is nonsensical. If set forth is undesirable, use provide.
405 KAR 12:020
The use of establishes in the preamble language again is not an appropriate word. The Cabinet is obligated to issue enforcement orders as a mandatory matter, and replacement of requires with establishes could be read to weaken that mandatory obligation. Rather than use the awkward establishes, the Cabinet should either retain the existing language or replace it with provides, demands, or like language of command.
Page 4 Line 2 establishes should be established.
In Section 2(4)(b), the same problem is created as earlier discussed, and the revised regulation is no longer consistent with the federal regulation 30 CFR 722.12, since it eliminate the opportunity for extending the abatement time beyond 90 days when weather conditions do not permit. Additionally, as rewritten the regulation would allow an extension of the abatement period where it is not allowed under federal regulation.
Under 30 CFR 722.12(e)(4), the abatement period can be extended where due to climatic conditions, abatement within 90 days clearly:
(i) Would cause more environmental harm than it would prevent; or
(ii) Requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act.
Thus, the reference to MSHA standards arises only where climatic conditions make such actions potentially violative of safety standards. The change in the state regulation makes the safety standards reference a separate ground for extending abatement irrespective of climatic conditions, and in so doing, is less effective than the federal counterpart regulation, which limits such extensions more narrowly.
Page 8, line 2, establish should be establish, and establish should be replaced with provided, since at the time of issuance of the notice, the Cabinet is not required to establish the allegations, merely to make them. Proving, or establishing that a violation occurred is something left to administrative hearings.
Page 8 Line 9 removes any, thus raising the argument that all such orders must contain interim steps. The current language should be retained.
Thanks for your consideration of these comments.
Cordially,
/s/
Tom FitzGerald
Director
September 30, 2011
Michael Mullins, Regulation Coordinator
Department for Natural Resources
#2 Hudson Hollow
Frankfort, Kentucky 40601
By email Michael.Mullins@ky.gov
Dear Mr. Mullins:
These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc., a nonprofit membership organization incorporated under the laws of the Commonwealth of Kentucky and dedicated to prudent use and conservation of the natural resources of the Commonwealth. The Council provides legal, technical and policy assistance to community groups, conservation organizations, local governments, and low-income individuals on a wide range of issues, including the effects of surface and underground coal mining. KRC members include numerous individuals who live, work, and enjoy the natural resources of the coalfields of the Appalachian and Illinois Basin in the Commonwealth.
The Council has reviewed the proposed amendments to 405 KAR 5:085, 5:095, 7:091 and 12:020 and offers these comments:
405 KAR 5:085
With respect to Section 2(3)(c), KRC seeks assurance that it remains the practice within the Cabinet that no prior notice will be given to a permittee or operator of an inspection.
Section 3(1) of the regulation changes ?any inspector to an inspector. KRC recalls that when the Kentucky surface mining program was submitted to the federal Office of Surface Mining for approval in 1982, the Kentucky program did not require mandatory issuance by all field inspectors of appropriate enforcement orders (i.e. Notices of Non-Compliance or Cessation Orders) immediately upon discovery of a violation.
The change from any to an could be read to mean less than all field inspectors will issue such orders, and KRC suggests that an be replaced with all in order to remain consistent with the federal counterpart regulation. KRC requests also that the Cabinet reaffirm that any violation discovered by any field inspector will be subject to an enforcement order.
Section 3(4)(b), as rewritten, is no longer consistent with the federal regulation 30 CFR 722.12, since it eliminate the opportunity for extending the abatement time beyond 90 days when weather conditions do not permit. Additionally, as rewritten the regulation would allow an extension of the abatement period where it is not allowed under federal regulation.
Under 30 CFR 722.12(e)(4), the abatement period can be extended where due to climatic conditions, abatement within 90 days clearly:
(i) Would cause more environmental harm than it would prevent; or
(ii) Requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act.
Thus, the reference to MSHA standards arises only where climatic conditions make such actions potentially violative of safety standards. The change in the state regulation makes the safety standards reference a separate ground for extending abatement irrespective of climatic conditions, and in so doing, is less effective than the federal counterpart regulation, which limits such extensions more narrowly.
Section 4(2)(b) as amended is missing part of the sentence, and no longer requires issuance of a notice of non-compliance and remedial measures at the time of issuance of a CO.
405 KAR 5:095
In Section 1(4)(b) on p. 4 line 14, or the permit is suspended should read if the permit is suspended.
In Section 1(7), limit of the number of witnesses should read limit the number of witnesses.
In Section 1(14), the elimination of the phrase his or her own eliminates the ability of the Secretary to disregard the recommended order from the Hearing Officer and to adopt an order different than that recommended (in whole or in part). It should be revised to read or issue the Secretarys own final order.
In Section 1(17), the elimination of substantial appears to allow the Secretarys final order to be based on less-than-substantial evidence. Such an order would be in violation of the Kentucky Constitution Section 2, and would make the Secretarys order inconsistent with KRS 350.0305, which requires that the order be based on substantial evidence as to matters of fact. Substantial should be reinserted where it is proposed for deletion.
In Section 3(2), the discretion of the Hearing Officer to impose conditions on the grant of temporary relief is removed, suggesting that the Hearing Officer is limited to granting or denying such relief without conditions. In order to maintain consistency with federal regulation, the deleted phrase upon conditions as are deemed appropriate should be reincluded, or the federal counterpart in 30 CFR 775.11(b)(2) of under such conditions as it prescribes should be used.
405 KAR 7:091
With the removal of Section 2, the remaining Sections should be renumbered.
In Section 1, p. 2 line 10, establishes should read established.
In Section 2(1)(b)1, KRC requests that the Cabinet clarify which law the Hearing Officer is obligated to give effect to, with respect to privileges. Does that mean Kentucky law and/or federal law? Is a Hearing Officer entitled to give effect to privileges recognized in other states but not in Kentucky?
In Section 2(4), the phrase to verify allegations makes no sense as proposed to be located. To verify allegations originally modified all of the preceding types of discovery. Documents are required to be produced for any number of reasons, including but not limited to for the purpose of verifying allegations. In order for the reorganized subsection to read properly, the phrase to verify allegations should be moved to line 5 to read the moving party is relying on one of the following to verify allegations:
Section 7(3) presupposes that all parties will have fax and email addresses, when for many low- and fixed-income coalfield residents, that is not the case. Those phrases should be modified with if any so as not to preclude filings by parties lacking either or both.
In Section 11, p. 14, line 22, the use of the word establish is nonsensical. If set forth is undesirable, use provide.
405 KAR 12:020
The use of establishes in the preamble language again is not an appropriate word. The Cabinet is obligated to issue enforcement orders as a mandatory matter, and replacement of requires with establishes could be read to weaken that mandatory obligation. Rather than use the awkward establishes, the Cabinet should either retain the existing language or replace it with provides, demands, or like language of command.
Page 4 Line 2 establishes should be established.
In Section 2(4)(b), the same problem is created as earlier discussed, and the revised regulation is no longer consistent with the federal regulation 30 CFR 722.12, since it eliminate the opportunity for extending the abatement time beyond 90 days when weather conditions do not permit. Additionally, as rewritten the regulation would allow an extension of the abatement period where it is not allowed under federal regulation.
Under 30 CFR 722.12(e)(4), the abatement period can be extended where due to climatic conditions, abatement within 90 days clearly:
(i) Would cause more environmental harm than it would prevent; or
(ii) Requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act.
Thus, the reference to MSHA standards arises only where climatic conditions make such actions potentially violative of safety standards. The change in the state regulation makes the safety standards reference a separate ground for extending abatement irrespective of climatic conditions, and in so doing, is less effective than the federal counterpart regulation, which limits such extensions more narrowly.
Page 8, line 2, establish should be establish, and establish should be replaced with provided, since at the time of issuance of the notice, the Cabinet is not required to establish the allegations, merely to make them. Proving, or establishing that a violation occurred is something left to administrative hearings.
Page 8 Line 9 removes any, thus raising the argument that all such orders must contain interim steps. The current language should be retained.
Thanks for your consideration of these comments.
Cordially,
/s/
Tom FitzGerald
Director
By Kentucky Resources Council
on 10/12/2011 5:32 PM
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The Kentucky Resources Council is a non-profit, 501(c)(3) organization dedicated to the conservation and prudent use of Kentucky’s natural resources. Since 1984, we have dedicated ourselves to protecting Kentucky’s land, air, water, and communities.