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BEFORE THE OKLAHOMA DEPARTMENT OF MINES

IN RE: Permit Application of Arbuckle ) Permit No. 2314

Aggregates to mine limestone, dolomite, ) Initials of Case # _____

shale, sand, gravel, clay and soil. ) year

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) (to be completed by

) staff if not known or not

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Protest, Objection and Comment to Permit Application

Pursuant to Oklahoma Constitution Art. II, § 7, The United States Constitution, Amendments 5 and 14, 45 O.S. § 724, and relevant rules of the Oklahoma Mining Commission, including but not limited to 460:10-17-2 and 460:10-17-16, the Citizens for the Protection of the Arbuckle Simpson Aquifer (hereinafter “CPASA”) and its members hereby formally submit this protest, objection and comment to Permit Application No. 2314 filed by Arbuckle Aggregates as captioned above. This protest, objection and comment is filed timely. The last published notice in the Tishomingo Capital Democrat appeared on April 21, 2009. 460:10-1-9. CPASA and its members request a Public Hearing.

I. IMPACTS ON NATURAL RESOURCES INCLUDING HIGH QUALITY WATERS

CPASA is a public entity, and a citizens’ group with members owning land and residing both within one mile, and at greater distances. The proposed mining application is likely to have real and detrimental effects to CPASA and its members, including those members who own land and reside more than one mile from the proposed mine as well ask those members who own land and reside at further distances. The effects that are likely to occur include, inter alia,

1. Causing irreparable damage to the environment;

2. Depleting and contaminating High Quality Water of the State of Oklahoma including Pennington Creek, nearby tributary springs and streams, Mill Creek, and Arbuckle Simpson Aquifer;

3. Causing the deposit of dust and other materials including the overburden of rock and soil being mined on properties not owned or controlled by the Applicant; and

4. Interfering with the natural flow of springs and streams emanating from a sole source aquifer in violation of Oklahoma law.

For example, Pennington Creek is listed as a High Quality Water of the State of Oklahoma. The proposed mine is likely to affect Pennington Creek. 460:10-13-3 sets out specific requirements a permit applicant must meet to obtain a permit to operate a mine that may affect a High Quality Water. Pursuant to 460:10-11-3 it is the responsibility of a non-coal surface mining permit applicant to provide to the Department all of the information required by this Subchapter. Arbuckle Aggregates has wholly failed in its Application to meet the requirements of the Mining Commission’s rules relating to Natural Resources, High Quality Waters, and environmental protection. Accordingly, Arbuckle Aggregate’s permit is invalid and must be denied.

II. NECESSARY PERMITS NOT IDENTIFIED IN APPLICATION

Pursuant to 460:10-13-4 applicants for non-coal mining permits, applied for on or after August 1, 2001, that may affect High quality waters, must submit approved copies of other state, federal, and local government permits or licenses that pertain to the site. These permits shall include but are not limited to, storm water permits, an approved pollution prevention plan, permits issued in compliance with Section 404 and 401 of the Clean Water Act as well as the National Pollutant Discharge Elimination System, stream water use permits, flood plain permits, and copies of notifications sent to the state and federal fish and wildlife agencies.

Arbuckle Aggregates has wholly failed to comply with this requirement. It has attached some permit applications. However, certain permits and notifications are obviously missing from the application. For instance, the application does not contain copies of notifications sent to the state and federal fish and wildlife agencies.

Additionally, the application does not contain any application to the Oklahoma Water Resources Board for a stream water permit. Arbuckle Aggregates states plainly in its non-coal mining application that it intends to use stream water. However, no such application is appended to the mining application.

Pursuant to 460:10-11-3 it is the responsibility of a non-coal surface mining permit applicant to provide to the Department all of the information required by this Subchapter to be an approvable permit application. Arbuckle Aggregates has wholly failed in its Application to meet the requirements of the Mining Commission’s rules. Accordingly, Arbuckle Aggregate’s permit is invalid and must be denied.

III. NECESSARY RECLAIMATION PLAN NOT IDENTIFIED IN APPLICATION

Arbuckle Aggregates is obligated to identify and describe a reclamation plan in its permit application. 460:10-15-3. Arbuckle Aggregates has failed to identify and describe a reclamation plan that meets the requirements of the law, including inter alia:

1. The methods to prevent or eliminate conditions that will be hazardous to animal or fish life in or adjacent to the affected land;

2. The outline of the proposed final limits of the excavation, during the number of years for which the permit is requested;

3. The outline of the tailing disposal area;

4. The outline of the disposal area for the spoil and refuse area;

5. The approximate location of any impoundment or water body which will remain upon final reclamation;

6. The proposed location of ditches to provide for drainage. The location of diversions, terraces, or other Best Management Practices to be used for preventing or controlling erosion and off-site siltation;

7. The boundaries of the affected area for the anticipated life of the mine; and

8. The boundaries of the 100-year floodplain.

Additionally, the application does not indicate that the reclamation will occur simultaneously as required by 460:10-15-2.

Finally, the operational and reclamation plan is completely silent on how the mining will comport with 82 O.S. § 1020.9.  82 O.S. § 1020.9 provides that “each groundwater protection agency shall be responsible for developing and enforcing groundwater protection practices to prevent groundwater contamination.”  There is nothing in the proposed mining plan or the permit application that will ensure that the springs and streams are not wasted by depletion or contamination.  There are some minor provisions in the plan relating to oil storage tanks, but given the specific requirements applicable to the Arbuckle Simpson Aquifer, and the requirements of 82 O.S. § 1020.9 and 27A O.S. § 2-14-101, et seq., there is nothing addressing the operation and reclamation of the mine to prevent depleting the aquifer. 

In this case, Arbuckle Aggregates plans to build a mine essentially at the location of the “Holder Spring”.  The mine would reasonably be expected to eliminate the spring, frustrating the purposes of 82 O.S. § 1020.9 nd 27A O.S. § 2-14-101, et seq. There is no plan for the maintenance of the spring flow during mining, or its reclamation after mining is completed.

Accordingly, Arbuckle Aggregate’s permit application is invalid and must be denied.

IV. ARBUCKLE AGGREGATES HAS ALREADY WILFULLY VIOLATED STATE LAW

Arbuckle Aggregates has already caused the realistic threat of waste by contamination by drilling bore holes using the services unlicensed well drillers, and by not properly certifying that the bore holes were properly plugged.  Bore holes are a known conduit for the pollution of an aquifer, including by the direct runoff of oils and pesticides, as well as fecal coliforms and other biological contaminants.

“Willful violation” means an act or omission which violates 45 O.S. (1981) Section 721 et seq., or this Chapter, or individual permit conditions, committed by a person who intends the result which actually occurs.

The act of drilling bore holes using unlicensed well drillers and failing to plug them is a violation of Oklahoma law. Certain directors and officers of Arbuckle Aggregates have engaged in this violation of Oklahoma law in the past, and knew better on this occasion. Pursuant to 460:10-17-9 (c), because Arbuckle Aggregates is a repeat, willful violator, the Application must be denied.

PRAYER FOR RELIEF

CPASA requests a formal hearing concerning this protest, objection and comment, and regarding any issues or claims that may be addressed by other parties or learned in discovery of this matter. CPASA reserves the right to protest, comment or object based upon information that may be learned in the future, or upon legal bases that are not apparent at this time.

For the foregoing reasons, CPASA respectfully requests that Arbuckle Aggregate’s permit application No. 2314 be denied.

Respectfully submitted Thursday, July 02, 2009

Jason B. Aamodt

The Aamodt Law Firm

1723 South Boston Avenue

Tulsa, Oklahoma 74119

(918) 347-6169

(918) 398-0514 (FAX)

jason@aamodt.biz

1723 S. Boston Avenue ● Tulsa, Oklahoma 74119

918.347.6169