2016 Kentucky Revised Statutes CHAPTER 350 - SURFACE COAL MINING .450 Prime farmland -- Mountaintop removal -- Variance upon written request of surface owner -- Technical assistance for small operator -- Release of portion of bond.
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350.450 Prime farmland -- Mountaintop removal -- Variance upon written request
of surface owner -- Technical assistance for small operator -- Release of
portion of bond.
(1)
(2)
If the area proposed to be mined contains prime farmland as defined in Public Law
95-87, "Surface Mining Control and Reclamation Act of 1977," then no permit shall
be issued unless it complies with Section 510(d)(1) therein. Nothing in this
subsection shall apply to any permit issued prior to August 3, 1977, or to any
revisions or renewals thereof, or to any existing surface coal mining operations for
which a permit was issued prior to August 3, 1977. Nothing herein shall be
construed as authorizing the cabinet to promulgate regulations more stringent than
those promulgated pursuant to PL 95-87 relating to prime farmland.
Where a surface coal mining operation will remove an entire coal seam or seams
running through the upper fraction of a mountain, ridge, or hill by removing all of
the overburden and creating a level plateau or a gently rolling contour with no
highwalls remaining, the operation shall comply with the requirements of
paragraphs (c) and (d) of this subsection without regard to the requirements of KRS
350.410 or 350.445(2) and (3) with respect to lands from which overburden and the
coal seam being mined have not been removed; provided, however, the cabinet shall
establish internal procedures pursuant to which it shall permit surface coal mining
operations for the purposes set forth in paragraph (b) of this subsection.
(a) Where an applicant meets the requirements of paragraphs (b) and (c) of this
subsection a permit without regard to the requirements to restore to
approximate original contour set forth in KRS 350.410 or 350.445(2) and (3)
may be granted for the surface coal mining operations where the mining
operation will remove an entire coal seam or seams running through the upper
fraction of a mountain, ridge, or hill, except as provided in paragraph (c)1. of
this subsection, by removing all of the overburden and creating a level plateau
or a gently rolling contour with no highwalls remaining and capable of
supporting postmining uses in accord with the requirements of this subsection.
(b) In cases where an industrial, commercial, agricultural, residential, or public
facility (including recreational facilities) use is proposed for the postmining
use of the affected land, the cabinet may grant a permit for a surface coal
mining operation of the nature described in paragraph (a) of this subsection
where:
1.
After consultation with the appropriate land use planning agencies, if
any, the proposed postmining land use is deemed by the cabinet to
constitute an equal or better economic or public use of the affected land
as compared with premining use;
2.
The applicant presents specific plans for the proposed postmining land
use and appropriate assurances that the land use will be:
a.
Compatible with adjacent land uses;
b.
Obtainable according to data regarding expected need and market;
c.
Assured of investment in necessary public facilities;
d.
(c)
(d)
(e)
(3)
(a)
Supported by commitments from public agencies where
appropriate;
e.
Practicable with respect to private financial capability for
completion of the proposed use;
f.
Planned pursuant to a schedule attached to the reclamation plan so
as to integrate the mining operation and reclamation with the
postmining land use; and
g.
Designed by a registered engineer in conformance with
professional standards established to assure the stability, drainage,
and configuration necessary for the intended use of the site;
3.
The proposed use would be consistent with adjacent land uses and
existing state and local land use plans;
4.
The cabinet provides the governing body of the unit of general-purpose
government in which the land is located, and any state or federal agency
which the cabinet in its discretion determines to have an interest in the
proposed use, an opportunity of not more than thirty (30) days to review
and comment on the proposed use; and
5.
All other requirements of this chapter will be met.
In granting any permit pursuant to this subsection the following requirements
apply:
1.
The toe of the lowest coal seam and the overburden associated with it
are retained in place as a barrier to slides and erosion;
2.
The reclaimed area is stable;
3.
The resulting plateau or rolling contour drains inward from the outslopes
except at specified points;
4.
No damage will be done to natural watercourses;
5.
Spoil will be placed on the mountaintop bench as is necessary to achieve
the planned postmining land use; provided, that all excess spoil material
not retained on the mountaintop shall be placed in accordance with the
provisions of KRS 350.440; and
6.
Insure stability of the spoil retained on the mountaintop and meet the
other requirements of this chapter.
The regulatory authority shall promulgate specific regulations to govern the
granting of permits in accord with the provisions of this subsection.
All permits granted under the provisions of this subsection shall be reviewed
not more than three (3) years from the date of issuance of the permit, unless
the applicant affirmatively demonstrates that the proposed development is
proceeding in accordance with the terms of the approved schedule and
reclamation plan.
The cabinet shall adopt procedures pursuant to which it may permit variances
from the requirements of KRS 350.410 for the purposes set forth in paragraph
(c) of this subsection, provided that the watershed control of the area is
(4)
improved, and further provided, complete backfilling with spoil material shall
be required to cover completely the highwall, which material will maintain
stability following mining and reclamation.
(b) Where an applicant meets the requirements of paragraphs (c) and (d) of this
subsection, a variance from the requirement to restore the approximate
original contour set forth in KRS 350.410 and 350.445(2) may be granted for
surface coal mining operations where the owner of the surface knowingly
requests in writing, as a part of the permit application, that such a variance be
granted so as to render the land, after reclamation, suitable for an industrial,
commercial, residential, or public use, including recreational facilities.
(c) After consultation with the appropriate land use planning agencies, if any, the
potential use of the affected land shall:
1.
Be deemed by the cabinet to constitute an equal or better economic or
public use;
2.
Be designed and certified by a qualified registered professional engineer
in conformance with professional standards established to assure the
stability, drainage, and configuration necessary for the intended use of
the site; and
3.
The watershed of the affected land be deemed by the cabinet to be
improved.
(d) In granting a variance pursuant to paragraph (b) of this subsection, the cabinet
shall require that only the amount of spoil will be placed off the mine bench
that is necessary to achieve the planned postmining land use, insure stability
of the spoil retained on the bench, meet all other requirements of this chapter,
and require all spoil placement off the mine bench to comply with KRS
350.440.
(e) The cabinet shall promulgate specific regulations as it deems necessary, if any,
to govern the granting of variances in accord with the provisions of this
subsection and may impose additional requirements it deems to be necessary.
(f) All exceptions granted under the provisions of this subsection shall be
reviewed not more than three (3) years from the date of issuance of the permit,
unless the permittee affirmatively demonstrates that the proposed
development is proceeding in accordance with the terms of the reclamation
plan.
The cabinet shall adopt programs, regulations, and procedures designed to provide
technical assistance to assist the small coal operator with the permitting and
environmental protection performance standards for surface coal mining operations
within the Commonwealth. The programs shall be directed towards eliminating
delays in the processing of permits by establishing a special administrative program
to review small operator's permit applications and by establishing a procedure for
providing the small operator the technical services of public and private agencies in
addition to the services provided pursuant to KRS 350.465(2)(f) necessary for
completing the permit application. Specifically, notwithstanding any other provision
of this chapter or regulations adopted pursuant thereto, for the purpose of this
program, the cabinet shall:
(a) Develop a simplified small operator permit application. The cabinet shall
notify all applicants of deficiencies in the form of the application by certified
mail within ten (10) working days after the filing in the regional office. The
applicant shall have ten (10) working days after the receipt of the notification
to repair the deficiencies. Upon failure of the applicant to repair the
deficiencies within ten (10) working days after receipt of the notification, the
cabinet may return the application as incomplete.
(b) Provide in the abandoned mine land program for small operators, having
mined coal under a state permit or license at any time within the previous
three (3) years, participation consisting at least of the following:
1.
That lands acquired or reclaimed by the state containing coal, coal refuse
or other marketable minerals which should be removed in order to
maximize the utilization, recoverability or conservation of solid fuel
resources or to protect against adverse water quality impacts and which,
once reclaimed, cannot be disturbed again by mining, shall be reclaimed
by small operators unless the cabinet determines, after advertisement
and advance opportunity to bid, that the reclamation project cannot be
performed by the small operator bidders;
2.
That the cabinet shall establish procedures for maximizing participation
by small operators in all reclamation projects including:
a.
Designing and establishing project specifications and setting forth
in the annual request for federal funding under the state
reclamation plan not less than twenty percent (20%) of the projects
on cost basis to be performed by small operators;
b.
Advance advertising, soliciting, evaluating bids, and awarding
contracts on all state reclamation projects for small operators.
3.
In the event no bids are submitted by small operators for small operator
projects, the projects will be thereafter open for public bidding and no
longer designated as small operator projects but shall satisfy that portion
of the twenty percent (20%) set aside.
(c) For the purposes of this subsection, a small coal operator is one who is
anticipated to mine less than three hundred thousand (300,000) tons per year,
and the cabinet in determining tonnage for qualification shall consider all
production from common ownership of other corporations or operations.
(d) Upon written notification by the small coal operator to the cabinet stating that
no more mining will take place under a permit, the cabinet shall release a
portion of the bond in accordance with KRS 350.070. In making its
determinations pursuant to KRS 350.070 the cabinet shall:
1.
Determine the percentage of the permitted acreage in the area of
reduction in relation to the initial acreage of the permit;
2.
Examine the land which has been disturbed and estimate the cost of
3.
4.
reclamation;
When the estimated cost of reclamation does not exceed ten thousand
dollars ($10,000) then the cabinet shall return all bond money in excess
of the ten thousand dollars ($10,000);
When the estimated cost of reclamation exceeds ten thousand dollars
($10,000), the cabinet shall retain the amount estimated and shall return
all bond money in excess of the estimated amount but in no case shall
the cabinet return more than the amount determined by multiplying the
percentage determined under subparagraph 1. of this paragraph times the
original total bond amount.
Effective: July 14, 1992
History: Amended 1992 Ky. Acts ch. 119, sec. 2, effective July 14, 1992. -- Amended
1984 Ky. Acts ch. 390, sec. 1, effective April 11, 1984. -- Amended 1982 Ky. Acts
ch. 283, sec. 7, effective April 2, 1982. -- Amended 1980 Ky. Acts ch. 62, sec. 33,
effective March 21, 1980; and ch. 209, sec. 1, effective March 21, 1980. -- Amended
1979 (1st Extra. Sess.) Ky. Acts ch. 26, sec. 1, effective February 13, 1979. -Created 1978 Ky. Acts ch. 330, sec. 11, effective May 3, 1978.
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