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350.093 Time and distance limits on reclamation efforts -- Deferments -- Drift
or other underground mining -- Variances -- Release of bond.
(1)
(2)
(3)
As determined by administrative regulations of the cabinet, time and distance
limits shall be established requiring backfilling, grading, and planting to be kept
current, so that all reclamation efforts proceed in an environmentally sound
manner and as contemporaneously as practicable under regulations
promulgated by the cabinet. All backfilling and grading shall be completed
before necessary equipment is moved from the operation; except that the
cabinet may for good cause approve the moving of equipment before all
backfilling and grading is completed.
(a) The cabinet may allow a permittee to defer the time criteria of
contemporaneous reclamation requirements on specified areas if the
permittee can demonstrate that the deferment is necessary to address at
least one (1) of the following:
1.
Adverse condition including weather, labor, and other conditions
clearly beyond the permittee's control;
2.
Other bona fide mining operations carried out on a strip mined area,
pursuant to KRS 350.080; or
3.
Coal marketing problems.
(b) Application for a deferment pursuant to this section shall be in the form
prescribed by the cabinet. The applicant shall have the burden of
establishing the need for the deferment. The applicant for the deferment
shall demonstrate that reclamation on the site is contemporaneous as of
the date of the request for deferment and that distance requirements for
contemporaneous reclamation will be met during the period of the
deferment. Approval of the deferment request shall be made in writing.
The approval shall state that the deferment is justified and that no
environmental damage will occur during the period of deferment.
Reclamation deferments may be approved for a period reasonably related
to the specified conditions justifying the deferment, but the aggregate
deferral period shall not exceed thirty (30) months. The deferral shall not
extend beyond the expiration date of the permit. The cabinet shall
periodically reexamine and update the amount of the bond on the permit
area so that the amount of the bond is sufficient to assure completion of
reclamation if the work had to be performed by the cabinet in the event of
forfeiture.
If the permittee or operator desires to conduct drift mining or other
underground mining upon the premises or use the openings for haulageways
or other lawful purposes, the permittee or operator may designate locations to
be used for purposes at which places it will not be necessary to backfill until the
drift or other underground mining or other use is completed, during which time
the bond on file for that portion of the operation shall not be released. That
portion of the locations shall be described and designated on the map attached
thereto. If the permittee or operator wishes to combine surface operations with
underground mining operations to assure maximum practical recovery of coal
resources, the cabinet may grant a variance, pursuant to regulations
promulgated by the cabinet, for specific areas within the reclamation plan from
(4)
(5)
the requirement that reclamation efforts proceed pursuant to subsection (1) of
this section so as to permit underground mining operations prior to reclamation.
The cabinet may release in whole or in part the reclamation bond or deposit for
a particular operation if the cabinet is satisfied that the reclamation covered by
the bond or deposit or portion thereof has been accomplished as required by
this chapter. These bond releases shall be made in accordance with the
following schedule:
(a) When the permittee completes the backfilling, regrading, and drainage
control of a bonded area in accordance with his approved reclamation
plan, the release of sixty percent (60%) of the bond or collateral for the
applicable permit area.
(b) After revegetation has been established on the regraded mined lands in
accordance with the approved reclamation plan, additional bond or
collateral for the applicable permit shall be released. When determining
the amount of bond to be released after successful revegetation has been
established, the cabinet shall retain that amount of the bond for the
revegetated area which would be sufficient for a third party to cover the
cost of reestablishing revegetation; this amount shall be retained for the
period specified for permittee responsibility for reestablishing
revegetation. No part of the bond or deposit shall be released under this
subsection as long as the lands to which the release would be applicable
are contributing suspended solids to streamflow or runoff outside the
permit area in excess of requirements set by this chapter or until soil
productivity for prime farm lands has returned to levels of yield equivalent
to those of unmined land of the same soil type in the surrounding area
under equivalent management practices as determined from soil surveys
that may be required to be included in the permit application. If a
sedimentation pond is to be retained as a permanent impoundment, the
portion of bond may be released under this subsection so long as
provisions for sound future maintenance by the permittee or the
landowner have been made with the cabinet.
(c) When the permittee has completed successfully all surface coal mining
and reclamation activities, the release of the remaining portion of the
bond, or collateral, but not before the expiration of the period specified for
permittee responsibility. No bond shall be fully released until all
reclamation requirements of this chapter are fully met.
Upon satisfying the requirements of subsections (4)(a), (b), or (c) of this
section, the permittee may file, or the cabinet shall initiate, an application for
total or partial bond release.
(a) A permittee shall have the right to begin public advertisement of its
request for bond release at the time it files its request for the release. The
cabinet may undertake, at permittee expense, public advertisement of any
cabinet initiated bond release. If the cabinet initiates a bond release
pursuant to this subsection but chooses not to advertise the release
pursuant to this section, and the permittee does not advertise the request
for the release within the time schedules established by this subsection,
the bond release application shall be denied. All public advertisements of
(6)
(7)
(8)
bond release applications, whether authorized by the permittee or the
cabinet, shall begin within sixty (60) days after either the filing of a bond
release request by the permittee or the initiation of a bond release by the
cabinet. Public advertisement shall occur at least once a week for four (4)
successive weeks in a newspaper of general circulation in the locality of
the surface coal mining operation.
(b) The public advertisement required by this subsection shall include: the
permit number and permit approval date, notification of the precise
location of the land affected, the number of acres, the type and amount of
the bond filed and the portion sought to be released, the type and
appropriate dates of reclamation work performed, a description of the
results achieved as they relate to the operator's approved reclamation
plan, and the name and address of the cabinet to which written
comments, objections, or requests for public hearings and informal
conferences on the specific bond release may be submitted. Proof of
advertisement shall be placed with the bond release application within
thirty (30) days after the advertisement.
(c) Within thirty (30) days of filing of any bond release request, the permittee
shall submit copies of letters which it has sent to adjoining property
owners, local governmental bodies, planning agencies, sewage and water
treatment authorities, and water companies in the locality in which the
surface coal mining and reclamation operation took place, notifying them
of the intention to seek release from the bond. For bond releases initiated
by the cabinet, the cabinet shall undertake the notification requirements
set forth in this subsection.
(d) Upon the filing of an application for bond release by a permittee, or the
initiation of the release by the cabinet, the cabinet shall notify, within thirty
(30) days of the filing or initiation, the municipality where the surface coal
mining operation is located, pursuant to regulations promulgated by the
cabinet.
Upon the filing of any partial or total bond release request by a permittee, the
cabinet shall within thirty (30) days conduct an inspection and evaluation of the
reclamation work involved. The evaluation shall consider, among other things,
the degree of difficulty to complete any remaining reclamation, whether
pollution of surface or subsurface water is occurring, the probability of
continuance of future occurrence of the pollution, and the estimated cost of
abating the pollution.
The cabinet shall notify the permittee in writing of its decision to release or not
to release all or part of the performance bond or deposit within five (5) days
following receipt of proof of public advertisement as required in subsection
(5)(b), or the end of the thirty (30) day public comment period, whichever is
later, if no public hearing is held pursuant to subsection (10) of this section; and
if there has been a public hearing held pursuant to subsection (10) of this
section, within thirty (30) days thereafter.
If the cabinet disapproves the application for release of the bond or portion
thereof, the cabinet shall notify the permittee, in writing, stating the reasons for
disapproval and recommending corrective actions necessary to serve the
release and allowing opportunity for a public hearing. The cabinet shall not
disapprove an application for release of a surety bond or a bond secured by a
letter of credit as provided for under subsection (4)(a) or (b) of this section or
under the partial release provisions applicable to an interim permit, or take any
action to forfeit the surety bond, or bond secured by letter of credit, solely upon
the permittee's failure to pay penalties or fines, if applicable reclamation
requirements for the requested release have been fully met. The cabinet shall
not continue to hold under the interim or permanent program remaining surety
bond proceeds or the remaining bond secured by a letter of credit where a
forfeiture has occurred solely as a result of a failure to pay penalties or fines, if
the reclamation requirements of this chapter have been fully met.
(9) The bond liability of the permittee shall include only those actions which the
permittee is obliged to take under the permit, including completion of the
reclamation plan.
(10) Any person having a valid legal interest which might be adversely affected by
release of the bond, and the responsible officer or head of any governmental
agency so designated by cabinet regulations, shall have the right to file written
objections to the proposed bond release with the cabinet, and to request a
hearing in accordance with procedural regulations promulgated by the cabinet.
Effective:July 12, 2006
History: Amended 2006 Ky. Acts ch. 37, sec. 4, effective July 12, 2006. -Amended 1992 Ky. Acts ch. 429, sec. 11, effective July 14, 1992. -- Amended
1990 Ky. Acts ch. 210, sec. 4, effective July 13, 1990. -- Amended 1988 Ky.
Acts ch. 209, sec. 1, effective July 15, 1988; and ch. 294, sec. 2, effective July
15, 1988. -- Amended 1984 Ky. Acts ch. 145, sec. 3, effective March 28, 1984.
-- Amended 1982 Ky. Acts ch. 283, sec. 5, effective April 2, 1982. -- Amended
1980 Ky. Acts ch. 62, sec. 10, effective March 21, 1980. -- Amended 1978 Ky.
Acts ch. 33, sec. 18, effective May 3, 1978. -- Amended 1976 Ky. Acts ch. 341,
sec. 2, -- Amended 1974 Ky. Acts ch. 69, sec. 4; ch. 74, Art. III, sec. 13(7); and
ch. 399, sec. 1, -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 69. -Created 1966 Ky. Acts ch. 4, sec. 8.
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