405 Kar 8:020. Coal Exploration

Link to law: http://www.lrc.ky.gov/kar/405/008/020.htm
Published: 2015

      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.)
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