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Presented by the University of Kentucky’s Center for Applied Energy Research


Getting Your Coal Mine Permit(s) in Kentucky


First, let’s have a brief history of how we got here. Difficult as it may be for some to believe, Kentucky has issued coal mine permits since the mid 1960s, though obviously changing much over the intervening years. There had been several attempts toward regulating surface coal mining, beginning in the late 1940s, but most laws had little impact or importance. The first significant statute came in 1964, followed by regulations adopted in 1965. These regu-

lations required cast overburden to be regraded and limited bench widths on eastern Kentucky contour mining. In 1966 Kentucky began requiring permits for mining. These permits involved completing a triplicate application form that addressed specifications about land regrading, revegetation, drainage details, and other now familiar items. The application required an enlarged topographic map, certified by a professional engineer and had to be accompanied by a reclamation bond, as well as permit and acreage fees. Around this same time, many other states were taking similar steps. One of the most

One may ask, “What has changed?” Although performance standards have changed over the intervening years, typically getting tougher, the biggest changes in SMCRA permitting have been in the permit application process, i.e., the “paperwork.”


In 1820 the first commercial coal mine in Kentucky opened.

Michael Munday, Patriot Coal

In the Kentucky coal business we often talk about “getting a permit.” However, there are several “permits” and other approvals necessary before commencing coal mining operations. While there are many steps involved in the permitting process, I hope this brief overview is helpful.

Vol. 23 No. 2/2012

significant was the 1972 Ohio Strip Mine Law. Some of its striking requirements included topsoil removal, storage, and replacement; backfilling and regrading to approximate original contour; drainage and sediment control plans; successful revegetation; more detailed mapping and P.E. (professional engineering) oversight, topped off with increased paperwork and subsequent inspection/enforcement. Many believe—and perhaps rightly so— that Ohio’s 1972 law became the outline for the U.S. Surface Mining Control and Reclamation Act of 1977 (SMCRA). (An interesting sidelight is that the original 1972 law specified that maps had to be certified by a professional civil engineer, not a professional mining engineer. That strange error was corrected in a 1975 amendment.) continued on page 3

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The Trials, Frustrations, and Issues Related to Getting a Permit for Mining

see page 2

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The Trials, Frustrations, and Issues Related to Getting a Permit for Mining Steve Gardner, President and CEO, ECSI, LLC As an engineer and scientist I have been involved in the mining industry since 1975. I saw the passage of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) and worked through the implementation and industry transitions that ensued. One point that I don’t believe everyone remembers is that SMCRA was intended to include the provisions of the Clean Water Act (CWA) and provide an efficient permitting process for government, industry and the public by allowing state regulatory agencies primacy, with federal agencies in oversight roles. Nationwide Coal permits from the U.S. Army Corps of Engineers under CWA provisions were essentially in place to codify stateissued SMCRA. Many in the mining industry felt that SMCRA would be the end of surface mining in Appalachia, and it did have a tremendous impact. However, with the six-year transition time granted by the law, mining companies found ways to adapt through engineering and technological innovations. Mountaintop removal mining (MTR) was specifically provided for in the law and strongly encouraged by government research and development as it was viewed as an innovative mining method that could improve production while minimizing environmental impacts. One result of SMCRA was to greatly expand MTR mining in the region. The Clean Air Act requirements already affected Illinois Basin coal production since the higher sulfur coals there made it difficult for power plants to comply without installation of costly equipment. Low sulfur coals produced in the Powder River Basin and the Appalachian region rapidly replaced much of that production.


In the last few years, the Corps, responding to EPA pressure, changed longstanding mining permitting practices relating to the CWA, almost retroactively and with little notice for transition at best. Since this controversy has evolved, EPA has redefined all surface mining in Appalachia to be Mountaintop Mining (MTM) (2005 EPA Mountaintop Mining EIS). Perhaps an unintended consequence of this reinterpretation of laws will be a restriction on underground mining activities, as well, if EPA decides to apply water quality standards consistently. Not all surface coal mining requires coal preparation, that is the separation of rock and waste from the coal, but almost 100% of underground mined coal does. What does that mean? That means you need slurry impoundments. Many erroneously connect slurry impoundments solely with MTR. To the contrary, it is underground mining that requires slurry impoundments and therefore EPA actions are also going to dramatically impact the ability to underground mine in the Appalachia region. These new retroactive standards are only being applied in Appalachia and have contributed to reduced mining there. Interestingly at the same time Illinois coal mining is now booming. Many are also questioning EPA’s authority from a legal standpoint, including the Commonwealth of Kentucky. Many have also questioned EPA’s willingness to understand the many complex technical and ecological issues of mining and reclamation operations. The Corps of Engineers has spent several years assessing potential impacts and understanding appropriate mining techniques and restoration of mined areas. Now, EPA has started objecting to the established Corps review process, thereby delaying, and in some cases halting permits. Engineers and scientists who work in the industry agree that the EPA objections to permits have shown a fundamental lack

of understanding of basic engineering and science and are based on incomplete science at best. University scientists who actually know something about mining at UK, Virginia Tech and West Virginia, are rapidly showing the limited studies that EPA has based its decisions on to be flawed at best. Further exacerbating the permitting uncertainty, the US Department of Interior, Office of Surface Mining (OSM), is in the process of rewriting SMCRA regulations which in effect will codify and put in place the reinterpretations of the CWA under SMCRA. This new Stream Protection Rule (SPR) is the first rewrite of SMCRA since it was implemented and is aimed primarily at the Appalachian Region, although it will impact coal mining nationwide. The Environmental Impact Statement is due to be released very soon. The contracting process utilized by OSM has been very controversial in that the first group of contractors chosen to prepare the EIS was replaced after preliminary job loss numbers due to the SPR were leaked and OSM attempted to change the assumptions to reduce the projected impact. These new regulations will greatly add to the complexity of permitting, adding time and expense, and perhaps making large areas of US coal fields unmineable, particularly in Appalachia. The people of Appalachia who actually own the land that is being mined want it mined and realize it can be done responsibly. Reclaimed mine land is some of the most valuable land in Eastern Kentucky and will provide a key for economic development for the region in the future. I am the first to admit that there have been problems with mining, but we have learned from the mistakes of the past. These problems can be solved with good engineering and COMPLETE science, given adequate transition time.

continued...CAER/Minova/DHS Press Conference Shows Off New Product specific application for mining safety), have been licensed by Minova, and can be used by engineers to immediately stabilize damaged structures. It is a high-strength, quick-setting concrete that achieves set and structural strength in minutes. Minova has licensed the technology for application in the underground mining, civil and tunneling industries as well. Minova North America is a part of Minova International, a company that provides mechanical, structural and chemical-based solutions for underground mining, infrastructure, tunneling and civil engineering applications. The research and joint patent leading to the Minova license began in 2009 when CAER partnered with Minova on a project for the U. S. Department of Homeland Security, Science & Technology Directorate (DHS). This ongoing development and deployment project for the structural stabilization of shock-damaged structures is managed by the National Institute for Hometown Security (NIHS) in Somerset, Ky. “It’s vitally important that the discoveries made in the lab find their way out of the test tube environment and into the everyday environment in which we live,” said Congressman Hal Rogers, at a recent press conference at CAER heralding the product. “When this type of research is

applied, we can strengthen our homeland security, improve our protection from terrorist threats and add to our nation’s resiliency when natural disasters strike.” Why would CAER, a center that principally performs energy research, develop a national security project? According to associate director and principal investigator Tom Robl, “This project takes advantage of expertise developed in nontraditional (i.e. non-Portland) cement systems at the UK CAER stemming from work with coal combustion byproducts. Also

critical has been a long-standing collaboration between researchers at Minova and CAER. These two factors allowed us to work together to develop solutions for these problems that are unique.” CAER has the largest program in the United States looking at the use of coal combustion byproducts.

Anne Oberlink manipulates the hose, as John Wiseman sprays the TekcreteTM product onto the joint between a damaged beam and supporting column. The reinforced joint will support the damaged structure, within minutes of application of Tekcrete FastTM. To demonstrate the strength of the applied material the wood beam (seen at right) was knocked free; leaving behind a sound structure that would otherwise have collapsed without the application of Tekcrete FastTM. (photos cont. on page 5)

continued...Getting Your Coal Mine Permit(s) in Kentucky Although Congress approved SMCRA on August 3rd, 1977, most of its provisions did not become fully effective or require implementation until May 3rd, 1978. Subsequently, coal operators began the fast and furious pursuit of the newer, more stringent permitting and performance requirements. Skipping over what was known as the “Interim Program,” on January 18th, 1983, Kentucky entered and still endures SMCRA’s “Permanent Program.” The Kentucky Department for Natural Resources (KDNR) manages the SMCRA Permanent Program primarily through

two departments. The Division of Mine Permits (DMP) reviews permit applications for either issuance or denial. The Division of Mine Reclamation and Enforcement (DMRE) is responsible for inspection and enforcement. In many respects, today’s SMCRArelated coal mine permits in the Commonwealth are not appreciably different from those obtained in 1983 and following years. A prospective permittee must provide copious data, narratives, maps, and drawings to address wide-ranging questions covering all aspects of the operation. All that information is used not

only to describe existing conditions, but also to describe how the mining and reclamation operations will be accomplished in ways that comply with SMCRA. Those wide-ranging questions cover legal and financial issues such as the company’s ownership and control structure, property rights, and liability insurance. As expected, the technical information requirements are far larger than those for the legal and financial areas and call for input and support from disciplines other than engineering. Those non-engineering areas include the following:


• Archaeology • Geology • Hydrology quality and quantity (groundwater and surface water) • Fish and wildlife resources • Land uses and capabilities • Soil resources • Vegetation characteristics

As is probably expected, a permit application with all this information will include many maps and drawings necessary for providing the needed graphic depictions. These are among the many requirements that we have been addressing and complying with since 1983.

These data then are incorporated with the engineered mining layout to develop the “mining and reclamation plan” (MRP) for the permit, which will in turn

One may ask, “What has changed?” Although performance standards have changed over the intervening years, typically getting tougher, the biggest changes

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100 Permits with Amendments

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show how the operations will achieve the desired outcome. That MRP covers the following topics: • • • • • •


in SMCRA permitting have been in the permit application process, i.e., the “paperwork.” The permit application forms continued to grow and mutate, as it were, Mining and reclamation schedule over the years. They had to be updated Backfilling and grading to ap- periodically in order to address newer deproximate original contour velopments and mandates. Permit appliTopsoil redistribution, land resto- cations generally increased in size to the ration, and revegetation point where a typical permit application Drainage, erosion, and sediment for a surface mine entailed three or four control large three-ring binders, per copy. Roads and transportation facilities Subsidence control (underground Fortunately, the SMCRA permitting mines) process in Kentucky is now almost com-

pletely electronic; there are only a few items that can or must be provided as paper documents. That development has in itself made dramatic improvements in permit application preparation, submission, and review timing. Back to our question, “what has changed?” The most significant changes during the past 20 years or so have not been any increased requirements involving SMCRA-related permits, but additional environmental permits from several other state or federal agencies overseeing various aspects. Throughout the years since SMCRA became effective, those other environmental permits were much simpler and quicker to obtain, often almost as “afterthoughts.” That’s no longer true. They now take as much time—if not more—to acquire as the SMCRA permit. In the following, I’ll mention some of the more notable ones. Please understand that these will not include detailed explanations, but mere highlights. Kentucky Division of Water (KDOW) —Kentucky coal mines are required to have permits from KDOW known as “Kentucky Pollutant Discharge Elimination System” (KPDES) permits. The KPDES permits for many years were obtained almost automatically with KDNR permits. Even when circumstances called for KPDES permits that were more involved than normal, they still had relatively simple procedures and requirements. Since the early 2000s, however, the KPDES permitting process has become a much more onerous endeavor, with much pre-permit data collection and accompanying paperwork. Kentucky Division for Air Quality (KDAQ) — This agency doesn’t directly affect coal mining quite as much as its sister KDOW, but coal mine opera-

tions that include various processes handling the coal after mining will require a KDAQ permit. Some examples are coal crushing activities, overland conveyors with transfer points, preparation plants, and similar support facilities. U.S. Army Corps of Engineers (USACE) — The USACE manages a permitting program known as Section 404 (from the federal Clean Water Act). The 404 permits cover impacts on streams and wetlands, such as dredging and filling activities. Although the 404 permits have

been necessary for applicable operations since the early 1970s, usually for dramatic impacts to significant water resources, their purview has grown to cover land disturbance effects on almost any streams that may be encountered, even the most minuscule or ephemeral. Nowadays it is nearly a foregone conclusion that a coal mine operation will require a USACE 404 permit before work can commence. The process is long and arduous and seems to become more so with each successive permit application.

Naturally, like any other commercial or industrial business, there are also many other local, state, or federal agencies and offices with which a coal operator must deal in order to obtain various approvals, licenses, and other such documents. I won’t further belabor the discussion by trying to list or describe them. Suffice it to say, “getting your coal mine permits” in Kentucky – or anywhere in the U.S. - is a busy and time-consuming task for an engineering firm.

* Michael L. Munday, PE is a mining engineer and is Environmental Permitting Manager for Patriot Coal Corporation, with over 38 years of experience in mining and reclamation.

CAER/Minova/DHS Press Conference Photos

Jeanne Lin (Acting Director of the Infrastructure Protection and Disaster Management Division of the DHS Science) unidentified man, and UKCAER Director Rodney Andrews listen to the day’s speakers.

Paul Benda of the Dept. of Homeland Security emphasizes the need of getting the science out of the lab and into industry. (above) Before the press conference Bob Wilson of NIHS’s Commercialization Team explains the process to U.S. Representative Hal Rogers, 5th district. (right)


CAER/Minova/DHS Press Conference Photos cont.

Researcher Jack Groppo (foreground) pours Tekcrete FastTM into a hopper, which pneumatically feeds it to the nozzle where pressurized water is mixed with the material before it’s sprayed onto the damaged structure. (left)

Waverly McFarland, Vice President, Minova, North America explains his company’s involvement to the crowd.

Close up of the repaired structure where the intersection between the vertical column and intersecting beam has been encased with the rapid-hardening material. The concreteencased section will now support any additional loads that the damaged structure may encounter. (right)

Project investigator Tom Robl explains the process as researchers demonstrate.

Hal Rogers speaks to the group.


In the

CAER Director Joins UK President and Top UK Administrators in China Fostering Potential Joint Clean Coal Technologies

CAER Director Rodney Andrews joined University of Kentucky President Eli Capilouto and six high-level administrators on a trip to China recently to develop new student programs, and explore joint coal research endeavors. “China is really making the most investments right now, with respect to coal use and also in the scale in which they’re doing it,” Andrews said. “They’re willing to do large scale tests that aren’t going on anywhere else.” Andrews and Liu, visited the Shenhua chemical company in Beijing to discuss its coal-to-liquid technology. They also went to the joint U.S.-Chinese Clean Energy Research Center at Tsinghua University, where President Capilouto signed a memorandum-of-understanding regarding a project on carbon capture. In Shanghai, the group met with East China University of Science and Technology.

Associate Director Don Challman Makes Two Trips to China Last spring CAER Associate Director Don Challman participated in the US-China Intellectual Property Workshop in Hainan, China this spring. The workshop was organized by the US-China Clean Energy Research Center of which the United States and the People’s Republic of China are participants. UK-CAER is a charter member of the US-China CERC and a performing research organization in the Advanced Coal Technology thrust area. The IP workshop celebrated the achievement of landmark intellectual property agreements signed between the nations. This was followed by a June trip in which he was an invited speaker at the 2012 International Advanced Coal Technologies Conference in Xi’an, China. The conference focused on carbon capture and utilization technologies, geological storage and enhanced oil recovery, economics of low carbon technology, and coal conversion alternatives for fuels, products and chemicals.

Energeia is published online four times a year by the University of Kentucky Center for Applied Energy Research (CAER). The newsletter features aspects of energy resource development and environmental topics. Online subscriptions are free and may be requested by sending your email address to: Marybeth McAlister, Editor of Energeia, The mailing address is: CAER, 2540 Research Park Drive, Lexington, Kentucky 40511. Past issues of Energeia may be viewed on the CAER web site at Copyright 2012, University of Kentucky


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