2013 Kentucky Revised Statutes CHAPTER 350 - SURFACE COAL MINING 350.450 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.
d.
(c)
(d)
(e)
(3)
(a)
Assured of investment in necessary public facilities;
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
(4)
control of the area is 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)
(b)
(c)
(d)
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.
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.
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.
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
reclamation;
3.
When the estimated cost of reclamation does not exceed ten
thousand dollars ($10,000) then the cabinet shall return all bond
4.
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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