Mine permitting official overruled to ‘accommodate the coal interests’
By John Cheves – jcheves@herald-leader.com
FRANKFORT — Gov. Steve Beshear’s administration overruled its top mine permitting official last year to “accommodate the coal interests” and reinstate a policy the official said was illegal, according to state documents.
At issue: The Beshear administration’s use of the so-called “33 1/3 rule,” which allows coal companies to mine underground when they have shown the legal right to enter only two-thirds of the acreage included in their plans.
Some critics say the policy is illegal because federal and state law requires coal companies to show they have the right to enter all land included in their plans.
One of the critics was Ron Mills, director of the state Division of Mine Permits until he was fired last month. State documents show that Mills fought and briefly rescinded the 33 1/3 rule until he was overturned by his superiors at the Energy and Environment Cabinet following a debate in October 2008.
“I have recommended to the secretary that we can accommodate the coal interests with reinstating the 2/3’s rule,” the cabinet’s deputy secretary, Hank List, wrote Oct. 8, 2008, to Natural Resources Commissioner Carl Campbell, who was Mills’ boss.
Three months later, on Jan. 9, List wrote to Campbell: “Carl, let all the permit applications that include the 33 1/3 provision out the door.”
Five mining permits — all for subsidiaries of Oklahoma-based Alliance Coal, covering about 55,000 acres of land in Hopkins and Webster counties — were signed this year by Campbell over Mills’ objections, according to Mills and to copies of the permits.
Campbell declined to comment this week.
Mills said that before he was fired, Campbell told him Alliance Coal — specifically, a company executive named Raymond Ashcraft — and the governor’s office were pushing for his ouster because of his opposition to the 33 1/3 rule. One of Beshear’s staff assistants, Jeff Belcher, often called the Division of Mine Permits on behalf of coal companies to ask about their permit applications, Mills said.
Alliance Coal is a big political donor, having given several hundred thousand dollars to Kentucky politicians and parties on the state and federal level, including to Beshear and the Kentucky Democratic Party.
“I didn’t want to do anything that was illegal,” Mills said.
Belcher did not return a call seeking comment. The governor’s office has denied playing a role in Mills’ firing.
Energy and Environment Secretary Len Peters told the Herald-Leader Tuesday that he and he alone made the decision to fire Mills, with no input from the governor’s office or any coal company. Although the debate over the 33 1/3 rule did take place, it happened a year ago, and that wasn’t the reason for Mills’ termination, Peters said.
“He just did not meet my expectations as a manager,” Peters said.
Mills said he never heard a single complaint about his management from Peters or any other supervisor prior to his firing. In fact, Campbell had praised his work at the division, which was considered so understaffed that Beshear recently infused funding and employees, Mills said.
“If Len Peters says there was a problem with my management, he’s being disingenuous,” Mills said.
Ashcraft, who is Alliance Coal’s manager of environmental affairs and permitting at the company’s Lexington office, this week said he did not want to discuss the Mills firing. Ashcraft referred questions to the company’s lawyers at the company’s Tulsa, Okla., headquarters, who did not return calls.
Correspondence between Alliance Coal subsidiaries and the Division of Mine Permits since Beshear took office in December 2007 shows that the administration endorsed the 33 1/3 rule.
In some instances, the division rejected mining applications from Alliance Coal when 42 percent of the land, or more, was “uncontrolled properties,” meaning the company had not shown a legal right to enter the property. The division instructed Alliance Coal to reduce that percentage to 33 1/3.
C. Michael Haines, general counsel for the Energy and Environment Cabinet, said he could not identify any specific federal or state statutes that permit the 33 1/3 rule.
“That’s just the way we’ve chosen to interpret it,” Haines said.
The Kentucky Resources Council plans to sue the Beshear administration in coming weeks to block the 33 1/3 rule because it puts the profits of coal companies over the rights of property owners, said Thomas FitzGerald, the council’s director.
“This is an illegal policy. The law and the regulations are crystal clear about coal companies needing the right to enter property before they can mine,” FitzGerald said.
“You have landowners out there who have not consented to have their properties mined, and now there’s a cloud on their title with the arrival of a mine,” FitzGerald added. “It may complicate their ability to mortgage or sell their land now that they’re under the shadow of a mining permit.”
About the Author: John Stamper is the accountability editor for the Lexington Herald-Leader. A native of Monticello, Ky., he has been with the Herald-Leader in a variety of roles since graduating from Western Kentucky University in 2000. Reach him at jstamper@herald-leader.com
room110 | Dec 3, 2009 | Reply
if this had happened under a republican administration, the media and others would be having a cow. 2nd-seems none these politicos from either side seem to understand that their emails are public.
jerry | Dec 3, 2009 | Reply
Is there fines and penalities for this coal theft (that is what it clearly is) if so will anything be done to these people? I am going to say that nothing will be done to ANY of them. People whose coal is mined in this way should be able to price it at whatever they please, that would make these thieves stop and think next time. I think maybe $20 million a ton would be fair or more if they aren`t satisified.
Ukcats | Dec 3, 2009 | Reply
Why is Joe Craft behind every single shady goings on here lately? Having had the pleasure to see him in all his grandeur at the recent UK “Coal symposium” nothing shocks me. This man has the most self serving attitude I have ever seen. Some of his more notable quotes from that day: “Everyone in EKY who wants a job has one, if not they are just lazy” oh and then there was “Why does nobody ever talk about global cooling?” Keep your mits off my alma mater and my commonwealth Joe.
Richard | Dec 3, 2009 | Reply
Good Reporting
Now how about some reporting on this Global Warming SCANDAL. I hear we have scientists that falsified data for research money to enhance the Liberals position on this issue. The leading scientist has resigned his position I hear and several others are now under investigation. SUPPOSED TO BE THE BIGGEST THING SINCE A.C.O.R.N. WAS EXPOSED!
Come on Herald Leader/McClatchey/AP the public needs the FACTS REPORTED. Please do an inquiry on this issue. It is all over the internet.
PLEASE HERALD LEADER Investigative reporting is needed to get to the BOTTOM of this………UNLESS you are NOT a TRUELY UNBIASED Media Agency which reports fact and NOT Propaganda!
nofirstam | Dec 3, 2009 | Reply
Hey, Tom Fitzgerald. I have the greatest admiration for your work, and the work of the Kentucky Resources Council. What’s the holdup on filing the suit? Yeah, these things take time, but then, you gotta strike while the iron’s hot. Go ahead and file it, and correct flaws in an amended pleading. Get on with an evidentiary hearing for a temporary injunction, and stop this illegality. Issuing a subpoena for the records of these “regulators”, calling them to testify in a public hearing, namely, litigating, would serve a useful public purpose. Come on, do it now.
James Caudill | Dec 3, 2009 | Reply
Governor Beshear does not deserve reelection if he cannot run a government that follows the law.
It is easy to see why people give up on voting. When elected officials do not follow the law, why have laws.
What is the recourse of these people in Eastern Ky who have had their land used by the coal companies when they should not have? Sue the coal company? That is real effective I bet. Sue big pockets…right?
Beshear will not again get my vote next year. He has proven he only cares about the big monied interests. I will vote for Gatewood.
onepersonsopinion | Dec 3, 2009 | Reply
It seems there is little consideration to the fact that the policy was put in place under the previous administration and the Energy and Environment Cabinet has continued this in-place policy. Where has Tom Fitzgerald been on this issue since 2005? He has seen an opportunity to cash in on publicity, as usual, so now he gets involved. In regard to Ron Mills, there is a 2 year backlog for mine permits–he obviously was incapable of managing his workforce. All areas of government are understaffed, yet this backlog does not exist elsewhere.
Mills is no hero, he is a hypocrite if he believed there was a problem yet continued to work and benefit from his job.
Bill Roberts | Dec 4, 2009 | Reply
Jerry, Usually the mineral is owned by someone other than the landowner. A sixteenth is more than enough ownership to gain entry to a piece of property.
please think | Dec 4, 2009 | Reply
LMAO!!! What property owner wouldnt want the coal removed???? what a stupid rule!! lets see do I want to be rich or not??? LMAO!!!! I’m sure that when those owners of the property in question were told we can now make you rich that they didnt say please stop that awefull mining!! Scare, HOW DUMB!!
Yes, please think | Dec 4, 2009 | Reply
Please think,
I would not want the coal removed from my property. I would not want drilling and blasting under my house. It’s blood money.
James Caudill | Dec 4, 2009 | Reply
Please think………..let me guess, you are from Lexington. Because after reading your comments, I know you are not from the coalfields. Talk about not knowing what you are talking about…..
don't think so | Dec 4, 2009 | Reply
Please think,
It’s not all about money.. not everything has a dollar amount attached to it.
And it’s not like the coal company is going to be honest with you and look out for your best interest either.
Jim | Dec 4, 2009 | Reply
I also love how the Governor of KENTUCKY is facilitating the theft of coal from Kentucky landowners by an OKLAHOMA coal company. Maybe Beshear should follow those Kentucky taxpayer dollars that subsidize the industry and move to Oklahoma.
I’ve never voted for a Republican, but I sure as heck aren’t going to vote Democrat if he ever runs again.
Gudol Buoys | Dec 4, 2009 | Reply
Great work, Cheves. You guys are really making the Courier-Journal look like the Loserville Snoozer. Hey, coal’s black, maybe Betty Winston Buh Bye will follow up on your work.
Cheap Jordans | May 5, 2011 | Reply
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