405 KAR 5:032. Permit requirements.
RELATES
TO: KRS 350.010(2), 350.130, 350.240, 350.300
STATUTORY
AUTHORITY: KRS 350.028, 350.029, 350.240, 350.300
NECESSITY,
FUNCTION, AND CONFORMITY: KRS 350.028 authorizes the Energy and Environment
Cabinet to promulgate administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens and the
environment of the commonwealth. KRS 350.029 authorizes the cabinet to promulgate
reasonable administrative regulations to establish effective programs for the
control of surface soil disturbance in connection with mining as defined by the
Interstate Mining Compact. KRS 350.240 authorizes the cabinet to promulgate
reasonable administrative regulations for the reclamation of land disturbed or
removed in the mining of clay. KRS 350.300 authorizes the cabinet to formulate
and establish an effective program and standards for the conservation and use
of mined land. This administrative
regulation specifies information to be submitted by the applicant relating to legal
status, financial information, general site information, map requirements,
cultural and environmental resource information, and mining and reclamation
plans. This administrative regulation also addresses the waivers and approvals
necessary to conduct noncoal mineral operations, including those of other
agencies, and establishes provisions concerning review of permits and other
permit related procedural matters.
Section
1. General. (1) This administrative regulation shall pertain to a person who
applies for a permit to conduct mineral operations.
(2)
Preliminary permit requirements.
(a)
A person or mineral operator desiring a permit shall submit a preliminary map
at a scale one (1) inch equals 400 feet or 500 feet, marked to show the
proposed permit area and adjacent areas, including location of access roads,
spoil or waste areas, and sedimentation ponds.
(b)
Personnel of the cabinet shall conduct, within fifteen (15) working days after
filing, an on-site investigation of the area with appropriate persons including
appropriate representatives of the applicant.
(3)
Permanent permit requirements. An original and two (2) complete, separately
bound and distinct copies of the application shall be submitted to the cabinet,
at the Department for Natural Resources, Division of Mine Reclamation and
Enforcement, Noncoal Review Branch, #2 Hudson Hollow, Frankfort, Kentucky
40601, or at one (1) of the following regional offices:
(a)
London Regional Office, Regional State Office Building, 85 State Police Road,
London, Kentucky 40741-9011;
(b)
Madisonville Regional Office, 625 Hospital Drive, Madisonville, Kentucky
42431-1683;
(c)
Middlesboro Regional Office, 1804 East Cumberland Avenue, Middlesboro, Kentucky
40965-1229;
(d)
Pikeville Regional Office, 121 Mays Branch Road, Pikeville, Kentucky
41501-9331; or
(e)
Prestonsburg Regional Office, 3140 South Lake Drive, Suite 6, Prestonsburg,
Kentucky 41653-1410.
Section
2. Identification of Interests. (1) Each permit application shall contain the
names and addresses of:
(a)
The applicant, including phone number;
(b)
The registered agent for service of process, if applicable, including phone
number;
(c)
Owners, partners, or if a corporation, officers or stockholders owning ten (10)
percent or more stock;
(d)
The project engineer, along with registration number and name of associated
firm;
(e)
The company and engineer to which correspondence concerning the subject permit
shall be addressed;
(f)
Surface owners of record within the area proposed for mining, including areas
overlying underground workings;
(g)
Mineral owners of record within the area proposed for mining, including areas
overlying underground workings; and
(h)
Surface owners of record within 500 feet of the proposed permit boundary and
areas overlying underground workings.
(2)
If the company has undergone a name change or changes during the previous five
(5) years, the applicant shall list the names.
(3)
The legal structure of the applicant shall be specified.
(4)
If the business is owned by an individual or is a partnership, and is performed
under an assumed name, the applicant shall specify the county and state where
the name is registered.
(5)
The applicant shall list previous Kentucky permits held by the applicant or an
individual, partnership, or corporation associated with the applicant.
(6)
The applicant shall provide the name of the contact person at the site,
including phone number.
(7)
The applicant shall specify the type of application, along with the permit
number.
Section
3. Bond Information. (1) If bond is required pursuant to 405 KAR 5:082, the
following information shall be provided in the permit application:
(a)
The bond amount per acre;
(b)
The total amount of bond; and
(c)
The bond type.
(2)
If a surety is used, the applicant shall provide the bond number and surety.
(3)
If a certificate of deposit is used, the applicant shall provide the bank name
and CD number.
(4)
If a letter of credit is used, the applicant shall provide the bank name and
letter of credit number.
Section
4. Equipment Inventory. The permit application shall contain a list of all
equipment, model numbers, and condition of the equipment proposed to be used
for removing overburden and reclaiming the affected area of the proposed
mineral operation.
Section
5. Waivers and Approvals. (1) If blasting will occur within 300 feet of an
occupied dwelling or if mineral extraction will occur within 100 feet of an
occupied dwelling, the permit application shall contain a waiver from the
owner, acknowledging approval of the activity.
(2)
Except where mine access roads or haul roads join the right-of-way, if the
proposed mineral operation will occur within 100 feet of the right-of-way of a
public road, or if relocation of a public road is proposed, the permit
application shall contain proof of notification to and required approvals from
the appropriate agency or local government with jurisdiction over the road.
(3)
If a permanent pond other than a
final pit impoundment with no embankment is proposed, approval from the
landowner for the structure and a written acknowledgment from the landowner
that the mineral permittee shall not have continuing maintenance responsibility
after permit release shall be required.
(4)
If relocation, channelization, or other significant disturbance to an
intermittent or perennial stream is proposed, or if the proposed mineral
operation will occur within, or in any way impact, a floodplain, wetland, or
other water of the commonwealth, the applicant shall obtain the appropriate
permits and approvals from the United States Army Corps of Engineers and the
Kentucky Division of Water. Approval shall also be required by the cabinet for
disturbances within 100 feet of an intermittent or perennial stream.
(5)
If a sedimentation pond or other point source discharge is proposed, a KPDES
permit from the Kentucky Division of Water shall be required.
(6)
If water withdrawal is proposed, a Water Withdrawal Permit shall be obtained
from the Kentucky Division of Water.
(7)
If there are local zoning regulations, the applicant shall state this in the
application to the Division of Mine Reclamation and Enforcement.
(8)
If applicable, approval from the owner of the utilities and facilities as
provided in 405 KAR 5:015, Section 4(6) shall be required.
Section
6. Right to Mine. The permit application shall contain a signed statement by
the applicant attesting that the applicant has the legal right to mine, along
with the appropriate date.
Section
7. Verification of Application. The permit application shall contain a
statement, signed by the applicant, acknowledging that all statements and
representations, made in the application, are true and correct.
Section
8. Map Requirements. The permit application shall include original and two (2)
copies of a section of the appropriate United States Geological Survey
Topographical Map or an equivalent format which shall:
(1)
Delineate the proposed permit area and areas, if applicable overlying proposed
underground workings;
(2)
Be of a scale of not more than one (1) inch to 400 feet;
(3)
Show all other mine operations within 500 feet of the proposed permit
boundaries and proposed underground workings, including those within the
proposed permit boundaries;
(4)
Delineate the property boundaries of all landowners within the proposed permit
area and areas overlying proposed underground workings and all landowners
within 500 feet of the proposed permit boundary and areas overlying proposed
underground workings, along with the names of all the landowners;
(5)
Delineate all proposed access roads onto the proposed mineral operation;
(6)
Show the site slope;
(7)
Show the name and location of all streams, rivers, lakes, outstanding resource
waters pursuant to 401 KAR 10:031, or other public water bodies; proposed
stream buffer zones; roads, cemeteries, houses, churches, schools and other
public buildings; oil and gas wells; public properties such as, parks, Wildlife
Management Areas, and nature preserves, and utility lines on the area to be affected,
and within 1,000 feet of the proposed permit boundary;
(8)
Locate sites listed on the National Register of Historic Places and known
archaeological sites;
(9)
Delineate wetlands that may be affected by the proposed mineral operation;
(10)
Show the drainage pattern on and away from the area to be affected, including
the direction of flow, proposed constructed drainways, natural drainways to be
used for drainage, and the streams or tributaries to receive discharges from
the proposed mineral operation;
(11)
Show proposed pit area, sediment structures, storage areas, and other
facilities and features related to the mineral operation;
(12)
Provide a north point arrow;
(13)
Contain a legend, which shall:
(a)
Provide the company name;
(b)
Provide the application number;
(c)
Provide the county and quadrangle names;
(d)
Provide the site coordinates;
(e)
Provide the site address;
(f)
Provide the map scale and contour interval;
(g)
Provide a description of the site location including:
1.
The nearest stream; and
2.
The distance and direction from the nearest road intersection or town;
(h)
Identify each insignia, symbol, number, or letter used to designate features,
facilities, or areas;
(i)
Provide acreage breakdowns of the various mineral operation features and
facilities including, pit areas, storage areas, sediment structures, access
roads, and the total number of acres of area to be affected; and
(j)
Specify the deposit to be mined; and
(14)
Provide a signed, notarized statement that the map has been prepared and
certified by a professional engineer, registered pursuant to the provisions of
KRS Chapter 322. This statement shall read, "I, the undersigned, hereby
certify that this map is correct, and shows to the best of my knowledge and
belief all the information required by the mineral operation laws and
administrative regulations of the state". This statement shall include:
(a)
The engineer's registration number; and
(b)
The date on which the map was prepared.
Section
9. General Site Information. The permit application shall contain the following
general site information:
(1)
Location of the mineral operation to include:
(a)
Latitude and longitude;
(b)
The nearest community;
(c)
The name of the nearest stream;
(d)
The nearest public road intersection; and
(e)
The name of the United States Geological Survey quadrangle or quadrangles, in
which the proposed mineral operation will occur;
(2)
A county by county list of the types of disturbances planned, accompanied by
the acreage to be involved with each disturbance;
(3)
Specification of the mineral to be extracted;
(4)
Specification of the major watershed or watersheds, which will be affected, by
the proposed mineral operation;
(5)
Specification if active discharges exist that may affect the proposed mineral
operation. If so, provide the following information:
(a)
The pH of the discharge; and
(b)
The source of the discharge;
(6)
Specification if underground workings will be encountered, and the distance, in
feet, to the nearest active deep mine; and
(7)
Specification of the types of disturbances planned for the proposed mineral
operation.
Section
10. Cultural Resource Information. The applicant shall specify if sites listed
on the National Register of Historic Places or known archaeological sites exist
within, or adjacent to, the proposed permit boundary.
Section
11. Environmental Resources Information. (1) The applicant shall indicate if
there are Wildlife Management Areas, wildlife refuges, nature preserves, state
or national parks, state or national forests, or similar public lands within
the vicinity of the proposed mineral operation. If these lands exist, the applicant
shall delineate them on the map.
(2)
The applicant shall indicate if disturbances within the channel of, or within
100 feet of, an intermittent or perennial stream are proposed.
(3)
The applicant shall indicate if there are outstanding resource waters, pursuant
to 401 KAR 10:031, within the vicinity of the proposed mineral operation. If
so, the applicant shall delineate these waters on the map.
Section
12. Surface Water Quantity and Quality Protection Plan. The permit application
shall contain a surface water quantity and quality protection plan, which shall
demonstrate to the satisfaction of the cabinet compliance with 405 KAR 5:050
and 405 KAR 5:055, and shall include the following information:
(1)
The number of sedimentation ponds proposed, accompanied by designs, drawings,
and specifications for each structure to include:
(a)
The structure number;
(b)
The number of acres to be disturbed within the drainage area;
(c)
The number of acres in the drainage area;
(d)
Sediment storage capacity;
(e)
Storage capacity at the principal spillway;
(f)
Storage capacity at the emergency spillway;
(g)
Spillway capacities;
(h)
Structure height measured from the downstream toe; and
(i)
All other engineering designs, dimensions, and calculations required to
demonstrate compliance with 405 KAR 5:050 and 5:055.
(2)
If sediment removal becomes necessary, the permit application shall contain a
description of how sediment shall be removed and disposed.
(3)
The applicant shall state if any permanent sedimentation ponds are proposed.
(4)
The permit application shall contain descriptions, designs, diagrams, figures,
and calculations as necessary to adequately explain and illustrate all other
sediment control structures.
(5)
The permit application shall contain descriptions, designs, diagrams, figures,
and calculations as necessary to adequately explain and illustrate other methods
proposed for protecting surface waters.
Section
13. Permanent and Temporary Impoundments. If an impoundment is part of the plan
of reclamation or method of mineral operation, the permit application shall
contain detailed designs and specifications for the impoundment that
demonstrates compliance with 405 KAR 5:055.
Section
14. Spoil Handling Plan. The permit application shall contain or be accompanied
by a plan for the handling and disposal of spoil, in excess of that involved
with backfilling and grading, which shall demonstrate to the satisfaction of
the cabinet, compliance with the requirements of 405 KAR 5:062.
Section
15. Toxic Materials Handling Plan. The permit application shall contain, or be
accompanied by, a plan for the handling of acid-forming or toxic-forming
materials, waste materials, or other unstable materials that shall demonstrate,
to the satisfaction of the cabinet, compliance with the requirements of 405 KAR
5:062.
Section
16. Backfilling and Grading Plan. The permit application shall contain, or be
accompanied by, a plan for backfilling and grading, which shall demonstrate to
the satisfaction of the cabinet, compliance with the requirements of 405 KAR
5:062.
Section
17. Topsoil Handling and Restoration Plan. The permit application shall
contain, or be accompanied by, a plan for the handling and restoration of
topsoil, which shall demonstrate to the satisfaction of the cabinet, compliance
with the requirements of 405 KAR 5:062.
Section
18. Land Use Plan. (1) The permit application shall contain a land use plan,
which demonstrates compliance with 405 KAR 5:065, and is consistent with 405
KAR 5:070, that:
(a)
Specifies the premining use or uses within, and adjacent to, the proposed
permit boundary;
(b)
Specifies the intended postmining land use for the proposed permit area; and
(c)
If the postmining land use is different from the premining land use, shall
provide a discussion justifying the change.
(2)
The land uses are listed at 405 KAR 5:065, and are defined in 405 KAR 5:002.
Section
19. Revegetation Plan. The permit application shall contain a revegetation plan
which shall demonstrate, to the satisfaction of the cabinet, compliance with
the requirements of 405 KAR 5:070, and is consistent with 405 KAR 5:065 and
that provides the following information:
(1)
Identification of the material that will be redistributed on the regraded area
as a plant growth medium;
(2)
Permanent grass species, permanent legume species, and quick cover species to
be seeded during revegetation, along with their application rates (pounds/acre);
(3)
Tree and shrub species to be planted during revegetation, along with their
stocking rates (number/acre); and
(4)
The type of mulch to be used, along with the mulching rate (pounds or
tons/acre), or other soil stabilization practices to be incorporated.
Section
20. Designs and Attachments. (1) The permit application shall be accompanied by
appropriate descriptions, designs, diagrams, figures, and calculations as
necessary to adequately explain and illustrate proposed sediment control
structures, as required under Sections 12 and 13 of this administrative
regulation; spoil disposal fills; access and haul roads; stream crossings; and
ditches.
(2)
Access and haul road designs shall conform to the specifications established in
405 KAR 5:040.
(3)
The designs and plans shall demonstrate, to the satisfaction of the cabinet,
compliance with all pertinent requirements of 405 KAR Chapter 5, and shall be
certified by a Kentucky-registered professional engineer.
Section
21. Newspaper Advertisement: Publication of Notice of Intention to Mine. (1) An
applicant for a new permit required pursuant to KRS Chapter 350, shall publish
at least once, a public notice of the application for that permit.
(a)
The publication shall be made by advertisement in the newspaper of largest bona
fide circulation, in the county where the proposed mining site is located.
(b)
If the proposed mining site is in more than one (1) county, publication shall
be required in the newspaper of largest bona fide circulation in each county.
(2)
The publication shall be made not less than ten (10) nor more than thirty (30)
days prior to the filing of the permit application with the department.
(3)
The public notice of the intention to file an application shall be entitled,
"Notice of Intention to Mine Noncoal Minerals", and may be in a
manner and form prescribed by the department and shall include at a minimum the
following:
(a)
Name and address of the applicant;
(b)
Permit application number;
(c)
The location of the proposed mining site; and
(d)
A brief description of the kind of mining activity proposed, together with a
statement of the amount of acreage affected by the proposed mineral operations.
(4)
The applicant for a new permit required by KRS Chapter 350 shall establish the
date and place that the "Notice of Intention to Mine Noncoal
Minerals" was published, by attaching to the application proof of the
time, place, and content of the published notice.
Section
22. Permit Revisions. A revision to a permit shall be obtained if the mineral
permittee desires to modify the mineral operations or make changes to the
original permit that does not involve increased acreage. The following
stipulations shall apply to permit revisions:
(1)
The application for revision shall be filed with the cabinet and approved prior
to the date on which the mineral permittee expects to revise the mineral
operation;
(2)
The term of a permit shall remain unchanged by a revision; and
(3)
The application for revision shall be submitted using the "Application for
Surface Disturbance Mining Permit Noncoal Mining", Form NCR-2.
Section
23. Permit Amendments. Upon application by the mineral permittee, the cabinet
may amend a valid existing permit, so as to increase the permitted area to be
affected by mineral operations under the permit. Applications for amendment may
be filed at any time during the term of the permit.
(1)
The mineral permittee shall file an application in the same form and with the
same content as required for an original permit pursuant to this administrative
regulation.
(2)
The mineral permittee may need to file a supplemental bond with the cabinet in
an amount to be determined, as provided under 405 KAR 5:082, for each
additional acre or fraction of an acre.
Section
24. Permit Renewals. A valid permit issued pursuant to 405 KAR Chapter 5 shall
carry with it, the right of successive renewal upon expiration of the term of
the permit. Successive renewal shall be allowed only for those areas specifically
within the boundaries of the existing permit.
(1)
An application for renewal of a permit shall be filed with the cabinet at least
sixty (60) days prior to the expiration date of the permit.
(2)
If an application for renewal of a valid existing permit includes a proposal to
extend the mineral operation beyond the boundaries authorized pursuant to the
existing permit, the portion of the application that addresses a new land area
shall be subject to all requirements of 405 KAR Chapter 5, and a new original
permit application shall be required for these areas.
(3)
The permit renewal shall be issued if the following requirements are met:
(a)
The application for renewal shall be submitted using the "Application for
Surface Disturbance Mining Permit Noncoal Mining", Form NCR-2;
(b)
The mineral permittee shall submit all revised or updated information required
by the cabinet, including at a minimum:
1.
An updated operational plan current to the date of request for renewal; and
2.
Specification of the status and extent of all mineral operations on the
existing permit area;
(c)
The present mineral operation is in compliance with KRS Chapter 350 and 405 KAR
Chapter 5; and
(d)
The mineral permittee shall provide additional bond required in accordance with
405 KAR 5:082.
Section
25. Permit Succession. (1) There shall not be succession on the permitted area
without the prior written approval of the cabinet.
(2)
The initial mineral permittee shall notify the cabinet, in writing, of a
proposed succession.
(3)
The cabinet may release the first mineral operator from reclamation
responsibility pursuant to 405 KAR Chapter 5 as to that particular mineral
operation, except that:
(a)
There shall not be release until the successive mineral operator has been
issued a permit and has otherwise complied with the requirements of 405 KAR
Chapter 5; and
(b)
The successor shall immediately assume, as a part of his obligation pursuant to
405 KAR Chapter 5, all liability for the reclamation of the area affected by
the former permitted mineral operation.
(4)
If the cabinet has given its prior written approval to the succession, a
successor in interest to a mineral permittee who applies for a successor permit
within thirty (30) days of succeeding to the interest, and who obtains immediate
bond coverage at least equivalent to the amount of the bond of the original
mineral permittee, may continue mineral operations according to the approved
permit plan of the original mineral permittee until the successor's application
is granted or denied.
(5)
The bond coverage provided by the successor in interest shall take effect
immediately upon the commencement of mineral operations by the successor.
Section
26. Review of Permits. (1) Within thirty (30) working days of receiving the
permit application, the cabinet shall make one (1) of three (3) decisions:
(a)
To technically withdraw the permit application;
(b)
To deny the permit application; or
(c)
To approve the permit application.
(2)
If the permit application is technically withdrawn or denied, the thirty (30)
working day period shall be stopped on the date of this decision.
(3)
The time period shall restart on the date the permit application is returned
with deficiencies corrected.
(4)
If the application is not approved, the cabinet shall state the reasons, in
writing, for which the application is not approved; and the cabinet may propose
modifications, delete areas, or reject the entire application.
(5)
If the mineral permittee disagrees with the decision of the cabinet he or she may,
by written notice, request a hearing by the cabinet, pursuant to 405 KAR 5:095.
(6)
The cabinet shall notify the applicant by registered mail within twenty (20)
days after a decision is made.
Section
27. Criteria for Permit Approval and Denial. An application for a permit and
mineral operation shall not be approved unless the application affirmatively
demonstrates and the cabinet determines on the basis of information stated in
the application, and other available pertinent information, that:
(1)
The permit application is accurate, complete, and that the applicant has
complied with all requirements of 405 KAR Chapter 5;
(2)
The mineral operation proposed can be carried out under the method of mineral
operation outlined in the permit application in a manner that will satisfy all
requirements of 405 KAR Chapter 5;
(3)
The proposed mineral operation shall not constitute a hazard to, or do physical
damage to life, to an occupied dwelling, public building, school, church,
cemetery, commercial or institutional building, public road, stream, lake,
other public property, or to members of the public or their real and personal
property.
(a)
All necessary measures shall be included in the method of mineral operation in
order to eliminate the hazard or damage.
(b)
If it is not technologically feasible to eliminate the hazard or damage by
adopting specifications in the method of mineral operation, then that part of
the mineral operation that constitutes the cause of the hazard or damage shall
be deleted from the application and mineral operation;
(4)
The proposed mineral operation shall not adversely affect natural hazard lands
or a wild river established pursuant to KRS Chapter 146;
(5)
The proposed mineral operation shall not be inconsistent with other mineral
operations anticipated in areas adjacent to the proposed permit area; and
(6)
The proposed permit area is:
(a)
Not included within the boundaries of the National Park System, the National
Wildlife Refuge System, including study rivers designated under Section 5(a) of
the Wild and Scenic Rivers Act (16 U.S.C. 1276(a)), and the National Recreation
Areas designated by Act of Congress;
(b)
Not included within 300 feet, measured horizontally, of a public park, public
building, school, church, community, or institutional building;
(c)
Not included within 100 feet, measured horizontally, of a cemetery, and access
to be provided to a cemetery at all times;
(d)
Not within 100 feet, measured horizontally, of the outside right-of-way line of
a public road, except:
1.
Where mine access roads or haul roads join the right-of-way; or
2.
Where the cabinet allows the roads to be relocated or allows disturbances
within 100 feet of the roads, once the applicant has obtained necessary
approval from the governmental authority with jurisdiction over the public
road, as required under Section 5 of this administrative regulation; and if
after public notice and opportunity for public hearing a written finding is
made, by the cabinet, that the interest of the public and the landowners
affected thereby shall be protected;
(e)
Not within the distances specified in Section 5 of this administrative
regulation, measured horizontally, of an occupied dwelling unless the applicant
submits with the permit application a written affidavit from the owner of the
dwelling specifying an allowance, as required by Section 5 of this
administrative regulation.
1.
This waiver shall be knowingly and intelligently executed, and be separate from
a lease or deed, unless the lease or deed contains an explicit waiver.
2.a.
A waiver obtained from previous owners shall remain effective for subsequent
owners who had actual or constructive knowledge of the existing waiver when the
dwelling was purchased.
b.
A subsequent owner shall be deemed to have constructive knowledge if the waiver
has been properly filed in public property records pursuant to KRS 382.110 or
if the mining has proceeded to within the distance limit prior to the date of
purchase; and
(f)
Not within 100 feet of an intermittent or perennial stream unless appropriate
permits and approvals, required pursuant to Section 5 of this administrative
regulation, have been obtained authorizing mineral operations at a closer
distance to, or through, the stream. The authorization shall not be given unless
the applicant demonstrates to the satisfaction of the cabinet that the
authorization is environmentally sound and that KRS Chapter 350 and 405 KAR
Chapter 5 have been satisfied.
Section
28. Permit Conditions; Permit Term. (1) Permits issued by the cabinet may
contain certain conditions necessary to ensure that the mineral operation shall
be conducted in compliance with KRS Chapter 350 and 405 KAR Chapter 5.
(2)
All mineral operations shall be conducted in accordance with KRS Chapter 350
and 405 KAR Chapter 5 and conditions of the permit.
(3)
Each permit shall be issued for a fixed term not to exceed five (5) years.
Section
29. Denial of a Permit for Past Violations. (1) A mineral operator or person
whose permit has been revoked or suspended shall not be eligible to receive
another permit or begin another mineral operation, or be eligible to have
suspended permits or mineral operations reinstated until he has complied with
all applicable requirements of KRS Chapter 350 and 405 KAR Chapter 5 with respect
to all permits issued him.
(2)
A mineral operator or person whose surface coal mining operation permit has
been revoked or suspended shall not be eligible to receive another permit or
begin another mineral operation, or be eligible to have suspended permits or
mineral operations reinstated until he has complied with all applicable
requirements of KRS Chapter 350, 405 KAR Chapters 1, 3, and 7 through 24 with
respect to all surface coal mining operation permits issued him.
(3)
A mineral operator or person who has forfeited any bond filed with the cabinet
for a mineral operation or a surface coal mining operation shall not be
eligible to receive another permit or begin another mineral operation unless:
(a)
The land for which the bond was forfeited has been reclaimed without cost to
the state; or
(b)
The mineral operator or person has paid a sum determined by the cabinet after
the Division of Abandoned Mine Lands has prepared an estimate of the cost to
reclaim the lands, based upon site specific conditions.
(4)
If the applicant, mineral operator, a subcontractor, or a person acting on
behalf of the applicant has either conducted activities with a demonstrated
pattern of willful violations of 405 KAR Chapter 5, or has repeatedly been in
noncompliance of this chapter, then the permit application shall be denied. A
mineral permittee shall not be relieved of responsibility with respect to a
permit issued to him.
(5)
If the cabinet determines that an activity of the applicant regulated pursuant
to 405 KAR Chapter 5 is currently in violation of KRS Chapters 149, 151, 224,
350 through 354, 400 KAR Chapters 1 through 3, 401 KAR Chapters 4 through 100,
402 KAR Chapter 3, or 405 KAR Chapters 1 through 30, then the cabinet shall
require the applicant, before the issuance of the permit, to either:
(a)
Submit proof that can be substantiated by the cabinet that the violation has
been corrected, or is in the process of being corrected in good faith; or
(b)
Establish, by proof that can be substantiated by the cabinet, that the
applicant has filed and is presently pursuing, a good faith administrative or
judicial appeal to contest the validity of the violation.
(6)
If the applicant submits the proof specified pursuant to subsection (5) of this
section, then the cabinet may issue the permit with an appropriate condition
that either the reclamation work be continued in good faith until completion or
that if the applicant loses his action contesting the violation that the
violation be corrected within a specified time. Failure to comply with a condition
shall be grounds for revocation of the permit.
(7)
If the applicant disagrees with the cabinet's determination pursuant to this
section, then he or she has the right to request an administrative hearing
pursuant to 405 KAR 5:095.
Section
30. Permit Conference and Public Comment. (1) Procedures for requests. A person
whose interests are or may be adversely affected by the issuance of the
application, including the officer or head of any federal, state or local
government agency or authority, may request that the cabinet hold an informal
conference on an application for a permit. The request shall:
(a)
Briefly summarize the issues to be raised by the requester at the conference;
and
(b)
Be filed with the cabinet within fifteen (15) days of the newspaper
advertisement.
(2)(a)
The conference shall be held at the Division of Mine Reclamation and Enforcement.
(b)
The conference shall be held within fifteen (15) days of the date of the
request. The date, time, and location of the conference shall be sent to the
applicant and parties requesting the conference.
(c)
The conference shall be conducted by a representative of the cabinet who shall
accept oral or written statements and other relevant information from a party
to the conference.
(d)
If all parties requesting the conference stipulate agreement before the
requested conference and withdraw their requests, the conference shall not be
held.
(e)
All comments and evidence shall be taken into consideration by the Division of
Mine Reclamation and Enforcement in Frankfort before a final decision is made
on the disposition of the application.
(f)
The record shall be maintained and shall be accessible to the parties during
the life of the mineral operation.
(3)
A person whose interests are or may be adversely affected by the issuance of
the application, including the officer or head of a federal, state, or local
government agency or authority, may submit written comments to the cabinet.
Section
31. Existing Mineral Operations. (1) Existing mineral operations that were not
permitted or regulated prior to February 1995 shall obtain a permit within 180
days of February 1995.
(2)
The cabinet may grant limited variances from the distance limitations of
Section 27(6) of this administrative regulation if an existing disturbance
within those limits was made prior to February 1995 by an existing mineral
operation that was not permitted or regulated prior to February 1995. These
variances shall only be granted if practical and reasonable remedial compliance
measures cannot be identified.
(3)
The distance limitations of Section 27(6) of this administrative regulation
shall not apply if lesser distance limitations have been approved in a valid
permit issued prior to February 1995. The distance limitations established in
those permits shall continue to apply.
Section
32. Incorporation by Reference. (1) "Application for Surface Disturbance
Mining Permit Noncoal Mining, NCR-2", March, 1990, is incorporated by
reference.
(2)
This material may be inspected, copied, or obtained, subject to applicable
copyright law, at the Department for Natural Resources, #2 Hudson Hollow,
Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. (30 Ky.R. 2424; eff.
8-26-2004; 39 Ky.R. 1310; 1687; eff. 3-8-2013.)
