405 KAR 8:020. Coal
exploration.
RELATES TO: KRS
350.057, 350.610, 30 C.F.R. Parts 730-733, 735, 772, 917, 30 U.S.C. 1253, 1255,
1262
STATUTORY AUTHORITY:
KRS Chapter 13A, 350.020, 350.028, 350.057, 350.060, 350.465, 30 C.F.R. Parts
730-733, 735, 772, 917, 30 U.S.C. 1253, 1255, 1262
NECESSITY, FUNCTION,
AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to
promulgate rules and administrative regulations pertaining to coal exploration
operations. This administrative regulation specifies when notice to the cabinet
is required and when prior written approval is needed from the cabinet for coal
exploration operations. This administrative regulation further specifies the
application process, information requirements, and hearing and compliance requirements.
Section 1.
Exploration in an Area Not Designated Unsuitable for Mining and Removing
Twenty-five (25) Tons or Less of Coal. (1) Any person who intends to conduct
coal exploration during which twenty-five (25) tons or less of coal will be
removed and which will not take place in an area designated unsuitable for
mining pursuant to 405 KAR Chapter 24 shall, at least twenty-one (21) days
prior to conducting the exploration, file with the cabinet a written notice of
intention to explore.
(2) The notice shall
include:
(a) The name,
address, and telephone number of the person seeking to explore;
(b) The name,
address, and telephone number of the representative who will be present at and
responsible for conducting the exploration activities;
(c) A precise
narrative description of the exploration area, or a map at a scale of 1:24,000
or greater, describing or showing the proposed area of exploration (including
latitude, longitude, nearest community, and USGS quadrangle), existing and
proposed roads, occupied dwellings, topographic features, bodies of surface
water, pipelines, and the general location of drill holes and trenches;
(d) A statement of
the period of intended exploration;
(e) The names and
addresses of the owner of record of the surface land and of the subsurface
mineral estate of the area to be explored; and
(f) A description of
the method of exploration to be used and the practices that will be followed to
protect the environment and to reclaim the area from adverse impacts of the
exploration activities in accordance with the applicable requirements of 405
KAR 20:010.
(3) The cabinet
shall, in accordance with Section 3 of this administrative regulation, place
the notices on public file and make them available for public inspection and
copying at the appropriate regional office of the cabinet.
(4) Any person who
conducts coal exploration activities pursuant to this section which
substantially disturb the natural land surface shall comply with 405 KAR
20:010.
Section 2. Exploration
Removing More than Twenty-five (25) Tons of Coal and Exploration in an Area
Designated Unsuitable for Mining, Regardless of Tonnage. (1) General. Any
person who intends to conduct coal exploration in which more than twenty-five
(25) tons of coal will be removed, or which will take place in a area
designated unsuitable for mining pursuant to 405 KAR Chapter 24, shall, prior
to conducting the exploration, submit an application and obtain the written
approval of the cabinet in accordance with this section.
(2) Contents of
application for approval. Each application for approval, in the number and form
required by the cabinet, shall contain, at a minimum:
(a) The name,
address, and telephone number of the applicant;
(b) The name,
address, and telephone number of the representative of the applicant who will
be present at and be responsible for conducting the exploration;
(c) An exploration
and reclamation operations plan, including:
1. A narrative
description of the proposed exploration area, cross-referenced to the map
required under paragraph (e) of this subsection, including latitude, longitude,
and nearest community; surface topography; geological, surface water, and other
physical features; vegetative cover, the distribution and important habitats of
fish, wildlife, and plants, including, but not limited to, any endangered or
threatened species listed pursuant to the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.); cultural or historic resources listed or known to be eligible
for listing on the National Register of Historic Places; known archaeological resources
located within the proposed exploration area; and any other information which
the cabinet may require regarding known or unknown historic or archaeological
resources;
2. A narrative description
of the methods to be used to conduct coal exploration and reclamation,
including, but not limited to, the types and uses of equipment, drilling,
blasting, road or other access route construction, and excavated earth and
other debris disposal activities;
3. An estimated
timetable for conducting and completing each phase of the exploration and
reclamation;
4. The estimated
amounts of coal to be removed and a description of the methods to be used to
determine those amounts;
5. A description of
the measures to be used to comply with the applicable requirements of 405 KAR
20:010; and
6. A statement as to
whether the proposed coal exploration will be conducted within an area which
has been designated unsuitable for mining pursuant to 405 KAR Chapter 24. If
so, the application shall include a description of the measures to be taken so
as not to interfere with the values for which the area was designated
unsuitable;
(d) The name and
address of the owner of record of the surface land and of the subsurface
mineral estate of the area to be explored;
(e)1. A USGS seven
and one-half (7 1/2) minute topographic map marked showing the area of land to
be affected and the location of drill holes or excavations; and
2. A map at a scale
of 1:6000 (one (1) inch equals 500 feet) or larger, showing the areas of land
which may be affected by the proposed exploration and reclamation. The map
shall also specifically show existing roads, occupied dwellings, and pipelines;
proposed location of trenches, roads, and other access routes and structures to
be constructed; the location of land excavations to be conducted; water or coal
exploratory holes and wells to be drilled or altered; earth or debris disposal
areas; existing bodies of surface water; historic, cultural, topographic, and
drainage features; and habitats of any endangered or threatened species listed
pursuant to the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);
(f) If the surface
is owned by a person other than the applicant, a description of the basis upon
which the applicant claims the right to enter that land for the purpose of
conducting exploration and reclamation;
(g) A justification
of the necessity to remove more than twenty-five (25) tons of coal from the
area during exploration; and
(h) A fee of $375.
(3) Public notice
and opportunity to comment. Public notice of the application and opportunity to
comment shall be provided as follows:
(a) As
contemporaneously as possible with receipt of written notification from the
cabinet under subsection (4)(a) of this section that the application has been
determined to be administratively complete, public notice of the filing of the
administratively complete application with the cabinet shall be published by
the applicant in the newspaper of largest bona fide circulation, according to
the definition in KRS 424.110 to 424.120, in the county where the proposed
exploration area is to be located.
(b) The public
notice shall state the name and business address of the person seeking
approval, the date of the filing of the administratively complete application,
the address of the cabinet at which written comments on the application may be
submitted, the closing date of the public comment period under paragraph (c) of
this subsection, and a description of the general area of exploration.
(c) Any person with
an interest which is or may be adversely affected shall have the right to file
with the cabinet written comments on the application within thirty (30) days of
the publication of the public notice under paragraph (a) of this subsection.
(4) Processing of
applications.
(a) Within ten (10)
working days of receipt of an application for approval of coal exploration
operations, the cabinet shall provide written notification to the applicant as
to the administrative completeness of the application. The date of written
notification shall be deemed the date of filing of the administratively
complete application. A determination by the cabinet that the application is
administratively complete shall not mean that the application is technically
sufficient.
(b) The cabinet
shall act upon an application within sixty (60) days after the filing of the
administratively complete application.
(c) The cabinet
shall approve a complete and accurate application filed in accordance with this
administrative regulation, if it finds, in writing, that the applicant has
demonstrated that the exploration and reclamation described in the application:
1. Will be conducted
in accordance with KRS Chapter 350, 405 KAR 20:010, and this administrative
regulation;
2. Will not
jeopardize the continued existence of an endangered or threatened species
listed pursuant to Section 4 of the Endangered Species Act of 1973 (16 U.S.C.
1533) or result in the destruction or adverse modification of critical habitat
of those species;
3. Will not
adversely affect any cultural or historic resources listed on the National
Register of Historic Places, unless the proposed exploration has been approved
by both the cabinet and the agency with jurisdiction over the areas;
4. If located within
an area designated unsuitable for mining, will not be incompatible with the
values for which the area was designated unsuitable for mining; and
5. If removal of
more than twenty-five (25) tons of coal has been proposed, that the removal is
justified.
(5) Terms of
approval. Each approval issued by the cabinet shall contain conditions
necessary to ensure that the exploration and reclamation will be conducted in
compliance with KRS Chapter 350, this administrative regulation, and 405 KAR
20:010.
(6) Notice and
hearing:
(a) The cabinet
shall notify the applicant, the appropriate local government officials, and all
commenters on the application, in writing, of its decision on the application.
If the application has been disapproved, the notice to the applicant shall
include a statement of the reason for disapproval. The cabinet shall provide
public notice of approval or disapproval of each application by publication of
notice in the newspaper of largest bona fide circulation, according to the
definition in KRS 424.110 to 424.120, in the county where the proposed
exploration operations are to be located.
(b) Any person
having an interest which is or may be adversely affected by a decision of the
cabinet pursuant to paragraph (a) of this subsection shall have the opportunity
for administrative and judicial review as set forth in 405 KAR 8:010, Section
24.
Section 3. Public
Availability of Information. (1) Except as provided in subsection (2) of this
section, all information submitted to the cabinet under this administrative
regulation shall be made readily available for public inspection and copying
pursuant to Kentucky open record statutes KRS 61.870 to 61.884, at the
appropriate Regional Office of the Department for Natural Resources.
(2)(a) The cabinet
shall not make information available for public inspection, if the person
submitting it requests in writing, when it is submitted, that it not be
disclosed and the cabinet determines that the information is confidential.
(b) The cabinet
shall determine that information is confidential only if it concerns trade
secrets or is privileged commercial or financial information which relates to
the competitive rights of the person intending to conduct coal exploration.
(c) Information
requested to be held as confidential under this subsection shall not be made
publicly available until notice and opportunity to be heard has been afforded
persons seeking or opposing disclosure of the information.
Section 4.
Commercial Use or Sale. (1) Except as provided under subsection (2) of this
section, any person who intends to commercially use or sell coal extracted
during coal exploration operations that are subject to Section 2 of this
administrative regulation shall first obtain a permit to conduct surface coal
mining and reclamation operations under 405 KAR 8:010.
(2) With the prior
written approval of the cabinet, no permit to conduct surface coal mining and
reclamation operations shall be required for the sale or commercial use of coal
extracted during coal exploration operations if the sale or commercial use is
for coal testing purposes only. The person conducting the exploration shall
file an application for the approval with the cabinet. The application shall
demonstrate that the coal testing is necessary for the development of a surface
coal mining and reclamation operation for which a surface coal mining and
reclamation operations permit application is to be submitted in the near
future, and that the proposed commercial use or sale of coal extracted during
exploration operations is solely for the purpose of testing the coal. The
application shall contain the following:
(a) The name of the
testing firm and the locations at which the coal will be tested;
(b) If the coal will
be sold directly to, or commercially used directly by, the intended end user, a
statement from the intended user, or if the coal is sold indirectly to the
intended end user through an agent or broker, a statement from the agent or
broker. The statement shall include:
1. The specific
reason for the test, including why the coal may be so different from the
intended user's other coal supplies as to require testing;
2. The amount of
coal necessary for the test and why a lesser amount is not sufficient; and
3. A description of
the specific tests that will be conducted;
(c) Evidence that
sufficient reserves of coal are available to the person conducting exploration
or his principals for future commercial use or sale to the intended end user,
or agent or broker of the user identified above, to demonstrate that the amount
of coal to be removed is not the total reserve, but is a sampling of a larger
reserve; and
(d) An explanation
as to why other means of exploration, such as core drilling, are not adequate
to determine the quality of the coal and the feasibility of developing a
surface coal mining operation.
Section 5.
Compliance. All coal exploration and reclamation operations which substantially
disturb the natural land surface shall be conducted in accordance with the coal
exploration requirements of KRS Chapter 350, this administrative regulation,
and 405 KAR 20:010, and any conditions on approval for exploration and
reclamation imposed by the cabinet. (8 Ky.R. 1492; eff. 1-6-83; Am. 15 Ky.R.
428; eff. 12-13-88; 1867; eff. 6-28-89; 18 Ky.R. 375; eff. 11-26-91; TAm eff.
8-9-2007.)
