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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,
(3)
by the cabinet or the court;
(e) Plans and procedures for the reclamation and restoration of land and 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 9587. 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
(4)
(5)
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 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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