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350.105 Easement of necessity to conduct reclamation operations.
(1)
(2)
(3)
An easement of necessity for the completion of reclamation activities, created
by this subsection, requires satisfaction of these circumstances:
(a) An entity has, by court order or approved plan of reorganization, become
responsible for performance of reclamation under a surface coal mining
and reclamation permit issued by the cabinet pursuant to KRS Chapter
350 prior to July 12, 2006;
(b) The entity obtained those permit rights and obligations in connection with
a bankruptcy proceeding;
(c) The permit holder's right to enter upon some portion or all of the property
covered by such permit is derived from a leasehold interest in the
property; and
(d) The lease authorizing the conducting of surface coal mining and
reclamation operations was held by an entity other than the entity
responsible for reclamation and has expired or was terminated prior to
completion of reclamation operations for that leased property.
Upon satisfaction of paragraphs (a) to (d) of subsection (1) of this section and
all other obligations provided for in this section, the entity responsible for the
performance of reclamation shall be deemed by operation of law to have an
"easement of necessity to conduct reclamation operations" for such property as
was under the expired or terminated lease. The easement of necessity to
conduct reclamation operations shall exist for a period of time that is
reasonably necessary for the entity responsible for the reclamation to complete
any reclamation operations required by the permit and by KRS Chapter 350,
but in no case shall the easement of necessity to conduct reclamation
operations exist longer than eight (8) years from the date the easement is
created pursuant to this section.
In order to create the easement of necessity to conduct reclamation
operations, the entity responsible for the performance of reclamation shall:
(a) Provide to the permitting agency, with a certified copy to the current
surface owner, documentation to establish the satisfaction of the
conditions imposed by this section and receive from the permitting agency
a written determination that the permitted area for which the easement of
necessity is requested falls within the conditions of this section; and
(b) Compensate the current surface owner with the fair rental value of the
property for the reclamation period, including the extended liability period
prior to the final bond release on the formerly leased property, as follows:
1.
The entity responsible for the reclamation shall provide a written
opinion by a qualified appraiser as to the fair rental value and the
basis for the determination;
2.
The surface owner and the entity responsible for the reclamation
shall attempt to reach agreement as to the amount of the
appropriate compensation; and
3.
If no agreement is reached as to the amount of appropriate
compensation within fifteen (15) days following receipt by the
surface owner of the written offer of compensation from the entity
(4)
(5)
(6)
(7)
responsible for reclamation and the appraisal report, the entity
responsible for reclamation shall pay into an escrow account for the
benefit of the current surface owner in a bank authorized to do
business in the Commonwealth an amount equal to the written offer
by the entity responsible for reclamation, which shall be not less
than fifteen thousand dollars ($15,000) for the first three (3) years of
the reclamation and liability period. The entity responsible for the
reclamation shall provide the current owner with the location of the
escrow account.
After subsection (3)(b)3. of this section is satisfied, the entity responsible for
reclamation shall have the immediate right of entry solely to perform
reclamation as required by the permit and state law.
If the surface owner believes the amount placed in escrow is insufficient
compensation, the owner may bring an action in the Circuit Court in the county
in which the property in question is located for a determination of the fair rental
value of the property.
Following the first payment, five thousand dollars ($5,000) or the appraised fair
rental value, whichever is greater, shall be paid to the current surface owner for
each year of reclamation and extended liability period until the final bond
release and shall be paid on the first day of each subsequent year beginning
with the fourth year.
After July 15, 2008, no new easement of necessity to conduct reclamation
operations created by this section shall be deemed to exist by operation of law,
except for continuation of such easements that were created prior to July 15,
2008.
Effective:July 12, 2006
History: Created 2006 Ky. Acts ch. 58, sec. 1, effective July 12, 2006.
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