405 KAR 24:030.
Process and criteria for designating lands unsuitable for surface mining
operations.
RELATES TO: KRS
350.465(2)(b), 350.610
STATUTORY
AUTHORITY: KRS Chapter 13A, 350.465(2), 350.610
NECESSITY,
FUNCTION, AND CONFORMITY: KRS 350.465(2) and 350.610 require the cabinet to
prepare, develop, and promulgate a permanent regulatory program for the
implementation of SMCRA containing procedures similar to that Act. This
administrative regulation sets forth procedures and criteria for reviewing petitions
seeking designation of lands as unsuitable for all or certain types of coal
mining operations and for the termination of designations.
Section 1.
General. The following procedures and criteria establish a process enabling
objective decisions to be made on land areas, if any, which are unsuitable for
all or certain types of surface coal mining operations. These decisions shall
be based on the best available, scientifically sound data and other relevant
information.
Section 2. Lands
Exempt From Designation. (1) Petitions for designating lands as unsuitable for
all or certain surface coal mining operations will not be considered for:
(a) Lands on
which surface coal mining operations were being conducted on August 3, 1977;
(b) Lands
covered by a permit issued under KRS Chapter 350 or a permit application for
which the public comment period has closed according to Section 3(6) of this
administrative regulation;
(c) Lands where
substantial legal and financial commitments were in existence prior to January
4, 1977 in such surface coal mining operations.
(2)(a)
"Substantial legal and financial commitments" means significant
investments, that have been made on the basis of a long-term coal contract,
consisting of actual expenditures of substantial monies or execution of valid
and binding contracts involving substantial monies for such things as power
plants; railroads; coal handling, preparation, extraction, and storage
facilities; and other capital-intensive activities such as:
1. Improvement
or modification of coal lands within, for access to, or in support of surface
coal mining and reclamation operations in the petitioned area;
2. Acquisition
of capital equipment for use in, for access to, or for use in support of
surface coal mining and reclamation operations in the petitioned area; and
3. Exploration,
mapping, surveying, and geological work, as well as expenditures of engineering
and legal fees, associated with the acquisition of the property or preparation
of an application to conduct surface coal mining and reclamation operations in
the petitioned area.
(b) The costs of
acquiring the coal in place or the right to mine such coal are not sufficient
to constitute a substantial legal and financial commitment in the absence of
other investments as described in paragraph (a) of this subsection.
Section 3.
Initial Processing of Petitions. (1) Within thirty (30) days of the receipt of
a petition to designate or terminate, the cabinet shall notify the petitioner
by certified mail whether or not the petition is complete. A petition shall be
deemed incomplete if the cabinet finds that the petition does not contain all
information required by 405 KAR 24:020, Sections 3 and 4.
(2) If the
cabinet determines that the petition is incomplete, it shall be returned to the
petitioner with a written statement of the reasons for the determination and
the categories of information needed to make the petition complete.
(3) The cabinet
shall determine whether any identified coal resources exist in the area
described in the petition. Should the cabinet find that there are no identified
coal resources in that area, the petition shall be returned to the petitioner
with a statement of findings.
(4) If the
cabinet determines the petition to be frivolous or that the petition does not
meet the requirements of 405 KAR 24:020, Section 2, it shall be returned to the
petitioner with a written statement of the reasons for the determination and
the categories of information needed to make the petition complete. A frivolous
petition is one in which the allegations of harm lack serious merit.
(5) When
considering a petition for an area which was previously and unsuccessfully
proposed for designation, the cabinet shall determine if the new petition
presents substantial new allegations of facts and objective evidence. If the
petition does not contain new and substantial allegations of facts, the cabinet
shall return the petition with a statement of its findings and a reference to
the record of the previous designation proceedings.
(6) Petitions
received after the close of the public comment period on a permit application
relating to the same area shall not prevent the cabinet from issuing a decision
on that permit application. The cabinet may return such a petition to the
petitioner with a statement of why the cabinet will not consider the petition.
For the purposes of this administrative regulation, the close of the public
comment period shall mean at the close of the period for filing written
comments and objections under 405 KAR 8:010, Sections 9 and 10.
Section 4.
Notification and Request for Information. (1) The cabinet shall periodically
notify the petitioner of applications for a permit received which propose to
include any area covered by the petition. The cabinet shall begin this
notification procedure only after it has determined that the petition is
complete and has so notified the petitioner.
(2) Within
twenty-one (21) days after the determination that a petition is complete, the
cabinet shall circulate copies of the petition form to, and request submission
of relevant information from:
(a) Other
interested government agencies;
(b) Area-wide
development district agencies;
(c) The
petitioner;
(d) Intervenors;
and
(e) Other
persons known to the cabinet to have an interest in the property.
(3) Within
twenty-one (21) days of the final determination that the petition is incomplete
or frivolous, the cabinet shall notify the general public of the receipt of the
petition and the cabinet's determination that the petition is incomplete or
frivolous by one (1) newspaper advertisement in the newspapers specified in
subsection (4)(a) and (b) of this section.
(4) Within
twenty-one (21) days after the determination that a petition is complete, the
cabinet shall notify the general public by newspaper advertisement. The notice
shall identify the petitioner and provide the mailing address of the
petitioner. The notice shall request submissions of relevant information; and
shall request that persons with an ownership or other interest of record in the
property covered by the petition, who wish to be notified of any hearing,
identify themselves to the cabinet. The advertisement shall be placed once a
week for two (2) consecutive weeks:
(a) In the
newspaper of largest bona fide circulation, according to the definition in KRS
424.110 to 424.120, in the county of the area covered by the petition; and
(b) In the
newspaper of largest circulation in the state.
(5) Until three
(3) days before the cabinet holds a public hearing on the petition pursuant to
Section 7 of this administrative regulation, any person may intervene in the
preceding, by filing:
(a) The
intervenor's name, address, telephone number, and notarized signature;
(b)
Identification of the intervenor's interest which is or may be adversely
affected;
(c) A short
statement identifying the petition;
(d) Allegations
of fact and objective evidence which would tend to establish or dispute the
allegations found in the petition.
Section 5. Data
Base and Inventory System. (1) The cabinet will develop and maintain a data
base and inventory system which will permit evaluation of reclamation
feasibility in areas covered by petitions.
(2) The cabinet
will include in the data base and inventory system, information relevant to the
criteria in Section 8 of this administrative regulation.
(3) The cabinet
will include in the data base and inventory system sufficient information to
prepare the statements required in Section 8(4) of this administrative
regulation, including information on:
(a) The coal
sources of Kentucky;
(b) The demand
for Kentucky coal;
(c) The supply
of Kentucky coal;
(d) The economy
of Kentucky and its coal mining regions; and
(e) The
environment and natural resources of Kentucky.
(4) The cabinet
will include in the data base and inventory system relevant information that
comes available from petitions, publications, studies, experiments, permit
applications, surface coal mining operations, and other sources. The cabinet
will also include relevant information received from the U.S. Fish and Wildlife
Service, the Kentucky Heritage Commission, and the cabinet's Division of Air
Pollution Control.
Section 6.
Public Information. (1) Beginning immediately after the cabinet receives a
petition, it shall compile and maintain a record consisting of the petition and
all documents relating to the petition filed with or prepared by the cabinet.
This record shall be maintained at the central office of the department in
Frankfort and the regional office within whose district the petition site is
located.
(2) The cabinet
shall make the record, data base and information system available for public
inspection, pursuant to KRS 61.870 et seq.
(3) The cabinet
shall provide information on the petition procedures necessary to designate (or
terminate a designation of) an area as unsuitable for surface coal mining
operations.
(4) The cabinet
shall describe how the inventory and data base can be used.
(5)
Notwithstanding the requirements in subsections (1) through (4) of this
section, if the cabinet determines that the disclosure of information relating
to the location of properties proposed to be nominated to, or listed in the
National Register of Historic Places would create a risk of destruction or harm
to such properties, such disclosure will not be made.
(6) The cabinet
shall make available to any person any information within its control regarding
designations, including mineral or elemental content which is potentially toxic
in the environment. The cabinet will not, however, provide proprietary
information on the chemical and physical properties of coal.
Section 7.
Hearing Requirements. (1) Within ten (10) months after receipt of a complete
petition, the cabinet shall hold a public hearing in the locality of the area
covered by the petition. However, when a permit application is pending before
the cabinet and such application involves an area in a petition, the cabinet
shall hold the hearing on the petition within ninety (90) days of its receipt.
If all petitioners and intervenors agree, the hearing need not be held. The
hearing shall be legislative in nature, without cross-examination of witnesses.
No person shall bear the burden of proof or persuasion. The cabinet shall make
a verbatim record of the hearing.
(2) The cabinet
shall give notice of the date, time, and location of the hearing to:
(a) Local,
area-wide, state, and federal agencies which may have an interest in the
decision on the petition;
(b) The
petitioner and the intervenors; and
(c) Any person
with an ownership or other interest in the area covered by the petition who has
identified himself or herself to the cabinet as set forth in Section 4(3) of
this administrative regulation or who is otherwise actually known to the
cabinet.
(3) Notice of
the hearing shall be sent by certified mail to the petitioner and any
intervenors and by regular mail to the persons designated in subsection (2)(a)
and (c) of this section, and be postmarked not less than thirty (30) days
before the scheduled date of the hearing.
(4) The cabinet
shall notify the general public of the date, time, and location of the hearing
by placing an advertisement in the newspaper of largest circulation according
to the definition in KRS 424.110 to 424.120, in the county of the are covered
by the petition once a week for two (2) consecutive weeks and once during the
week prior to the scheduled date of the public hearing. The consecutive weekly
advertisement must be published four (4) and five (5) weeks before the
scheduled date of the public hearing.
(5) The cabinet may
consolidate in a single hearing, the hearings required for each of several
petitions which relate to areas in the same locale.
(6) In the event
that all petitioners and intervenors stipulate agreement prior to the hearing,
the petition may be withdrawn from consideration.
Section 8.
Criteria and Decision. (1) The cabinet shall designate an area as unsuitable
for all or certain types of surface coal mining operations if, upon petition,
it determines that reclamation is not technologically and economically feasible
under the performance standards of 405 KAR Chapters 7 through 24 at the time of
designation.
(2) The cabinet
may designate an area as unsuitable for all or certain types of surface coal
mining operations if, upon petition, it is determined that the surface coal
mining operations will:
(a) Be
incompatible with existing land use policies, plans, or programs adopted by
state, area-wide, or local agencies with management responsibilities for the
areas which would be affected by such surface coal mining operations;
(b) Affect
fragile or historic lands in which the surface coal mining and reclamation
operations could result in significant damage to important historic, cultural,
scientific, and aesthetic values and natural systems;
(c) Affect renewable
resource lands in which the surface coal mining operations could result in
substantial loss or reduction of the long-range availability of water supplies;
(d) Affect
renewable resource lands in which the surface coal mining operations could
result in substantial loss or reduction of the long-range productivity of food
and fiber products; or
(e) Affect
natural hazard lands in which the surface coal mining operations could
substantially endanger life and property.
(3) If the
cabinet does not designate a petitioned area under subsection (2) of this
section, the secretary may direct that any future permits issued for the area
contain specific requirements for minimizing the impact of surface coal mining
operations on the feature that was the subject of the petition.
(4) Prior to
designating any land areas as unsuitable for surface coal mining operations,
the cabinet shall prepare a detailed statement, using existing and available
information, on the potential coal resources of the area, the effect of the
action on demand for, and supply of, Kentucky coal, and the environmental and
economic impacts of designation.
(5) In reaching
a decision, the secretary shall use:
(a) The relevant
information contained in the data base and inventory system;
(b) Relevant
information provided by other governmental agencies;
(c) The detailed
statement prepared in response to subsection (4) of this section; and
(d) Any other
relevant information or analysis submitted during the comment period and public
hearing.
(6) A final
written decision shall be issued by the secretary including a statement of
reasons, within sixty (60) days of completion of the public hearing, or, if no
public hearing is held, then within twelve (12) months after receipt of the
complete petition. The cabinet shall simultaneously send the decision by
certified mail to the petitioner, all intervenors, and to the Regional Director
of the Office of Surface Mining, U.S. Department of the Interior; and by
regular mail to all other persons involved in the proceedings.
Section 9.
Administrative and Judicial Review. (1) Following any order or determination of
the cabinet concerning completeness or frivolousness of a petition, any person
with an interest which is or may be adversely affected may request a hearing on
the reasons for the order or determination, in accordance with 405 KAR 7:092,
Section 9. Any person with an interest which is or may be adversely affected
and who has participated in an administrative hearing under this subsection
shall have the right to judicial review as provided in KRS 350.610(6).
(2) Any person
with an interest which is or may be adversely affected by a final decision of
the secretary under Section 8(6) of this administrative regulation shall have
the right to judicial review as provided in KRS 350.610(6).
Section 10. Map.
The cabinet shall maintain a current map of areas designated as unsuitable for
all or certain types of surface coal mining operations at each regional office
and at the central office in Frankfort. Copies of such maps will be available
for inspection and copying as prescribed in the Open Records Act, KRS 61.872 to
61.884. Such maps will periodically be distributed to appropriate federal,
state, area-wide, and local government agencies. (8 Ky.R. 1595; Am. 9 Ky.R.
721; eff. 1-6-83; 12 Ky.R. 582; eff. 12-10-85; 15 Ky.R. 515; eff. 12-13-88.)
