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350.465 Permanent regulatory program.
(1)
(2)
The provisions of this section and regulations promulgated pursuant thereto,
except with regard to the mining of clay, limestone, sand, gravel, fluorspar,
stone, and rock asphalt, shall apply to the regulation of all surface coal mining
and reclamation operations in the Commonwealth in the event that the
Commonwealth receives from the United States Department of Interior and
pursuant to the Surface Mining Control and Reclamation Act of 1977, PL
95-87, approval of a permanent state regulatory program, and the
Commonwealth has promulgated regulations pursuant to this section.
The Energy and Environment Cabinet is hereby authorized and directed to
prepare, develop and promulgate a comprehensive permanent regulatory
program for the implementation of the Surface Mining Control and Reclamation
Act of 1977, PL 95-87, for the purpose of accepting and administering primary
enforcement responsibilities pursuant to that act. The implementation of this
section shall contain procedures similar to the Surface Mining Control and
Reclamation Act of 1977, PL 95-87, and shall require surface coal mining
operation performance standards no more stringent than provided for in that
act. Nothing in this section shall be construed to empower the cabinet to adopt
a regulatory program in conflict with the policy and purposes of the Surface
Mining Control and Reclamation Act of 1977, PL 95-87. To that end, the
Energy and Environment Cabinet shall include in its permanent regulatory
program:
(a) Environmental protection performance standards to prevent or minimize
the adverse environmental effects of surface coal mining and reclamation
operations on the land and water resources of the Commonwealth;
(b) A procedure for designating as being unsuitable for mining certain lands
because of their topographical, geological, hydrological, climatological,
biological, or chemical characteristics or historical, cultural, scientific, or
aesthetic values;
(c) Procedures and regulations for the allowance of those persons having an
interest which is or may be adversely affected to have the opportunity to
be heard at every significant or critical part of the administrative and
judicial process, including, but not limited to, the permit review and
issuance process, the general enforcement process and hearings incident
thereto, and the rulemaking procedures conducted by the cabinet; and
procedures and regulations for persons having a valid legal interest which
is or may be adversely affected by the setting, release, and inspection of
bonds to have an opportunity to be heard at every significant or critical
part of the administrative and judicial process relating to bonds. The
regulations shall provide reasonable procedures for notice and an
opportunity to be heard, access to minesites, access to records, and other
reasonable procedures to accomplish the purposes of this chapter;
(d) Procedures for the administrative and judicial review of all actions of the
cabinet to administer and enforce the provisions of this chapter, including
the award of costs and expenses, including attorney's fees and expert
witness fees, by the cabinet or the court;
(e) Plans and procedures for the reclamation and restoration of land and
(3)
water resources affected by mining which have been abandoned or
inadequately reclaimed to the standards imposed by this section and for
which no bond is held or legal obligation to reclaim continues. The plan
shall include provisions for the imposition of liens for necessary
reclamation expenditures made on private property; and
(f) Procedures for the assumption of the small operator assistance program
pursuant to the Surface Mining Control and Reclamation Act of 1977, PL
95-87. The cabinet shall assume and implement that program and apply
for and administer funds as may be provided pursuant to that act and
such state funds as may be provided for the program.
In addition to any other authority, power, and duty vested in it by law, the
cabinet shall have and exercise broad authority, power, and duty to:
(a) Require those persons who wish to engage in surface coal mining and
reclamation operations to submit application for a permit from the cabinet
to conduct the operations, and to include in that application all information
required by the cabinet pertaining to that operation;
(b) Issue, deny, or modify under such conditions as the cabinet may
prescribe, permits to conduct surface coal mining and reclamation
operations within the Commonwealth;
(c) Enter and inspect any permitted surface coal mining and reclamation
operation or any known or suspected unpermitted mining operation for the
purpose of ascertaining compliance with any provision of this chapter or
of the permit;
(d) Order the cessation of mining activities, and if necessary impose
affirmative abatement obligations, upon the permittee, operator, or person
when, upon inspection, the cabinet determines that this section or any
permit condition is being or has been violated so as to constitute an
imminent and inordinate peril to the welfare of the Commonwealth;
(e) Order a person, permittee, or an operator to comply with the
requirements of this section or his permit if inspection reveals a violation
of the conditions of his permit or of any provision of this section;
(f) Order a permittee to appear and show cause why his permit should not
be suspended or revoked and his bond forfeited if the cabinet determines
that the permittee or operator or the permitted operation has a pattern of
violations of this section or permit conditions, and has willfully violated this
section or permit conditions or a pattern of violations exists and that the
violations are caused by the operator's or permittee's unwarranted failure
to comply with this section or permit conditions;
(g) Require, increase, release, or decrease, under such conditions as the
cabinet may prescribe, reclamation performance bonds and cause the
forfeiture and collection of those bonds where the permittee has
abandoned the operation or for which the permit under which the bond
was given has been revoked or has expired without the required
reclamation;
(h) To administratively impose, in lieu of those civil penalties provided for in
KRS 350.990, civil penalties of up to five thousand dollars ($5,000) per
(4)
(5)
day for violations of permit conditions, this section, or any orders of the
cabinet and enforce the administrative assessment of the penalties by
initiating civil action in the Franklin Circuit Court or in any court having
jurisdiction of the defendant;
(i) Conduct hearings and make investigations of any matter relating to the
regulation of surface coal mining and reclamation operations, and provide
for the assessment and payment of civil penalties including the placement
of proposed civil penalty assessments into an escrow account prior to a
contest on the amount of the assessment, consistent with the process of
law;
(j) Provide for variances or exceptions consistent with KRS 350.450 from or
in addition to mining performance standards, recognizing the specific
characteristics inherent in:
1.
Steep slope mining;
2.
Mountaintop removal;
3.
Relatively low acreage disturbance or annual coal production;
4.
Prime farmland mining as defined by the United States Department
of Agriculture, and to provide for other variances where land uses
and watersheds will be improved; and
5.
Postmining uses different from and as beneficial as the premining
uses;
(k) Receive and expend funds or aid from whatever source to accomplish the
purposes of this chapter; and
(l) Propose and promulgate regulations to accomplish the purposes of this
section.
The cabinet shall not promulgate regulations which are inconsistent with the
Surface Mining Control and Reclamation Act of 1977, PL 95-87.
Any person who violates a provision of this section or the regulations
promulgated pursuant thereto shall be subject to those penalties and remedies
set forth in KRS 350.990 except as provided for in subsection (3)(h) of this
section.
Effective:July 15, 2010
History: Amended 2010 Ky. Acts ch. 24, sec. 1889, effective July 15, 2010. -Amended 1992 Ky. Acts ch. 429, sec. 34, effective July 14, 1992. -- Amended
1980 Ky. Acts ch. 62, sec. 34. -- Created 1978 Ky. Acts ch. 330, sec. 28,
effective June 1, 1979.
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