405 KAR 24:040.

Areas unsuitable for mining.

 

      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 for reviewing applications for

surface coal mining and reclamation operation permits to determine whether

surface coal mining and reclamation operations are limited or prohibited.

 

      Section 1.

General. The cabinet shall prohibit or limit surface coal mining and

reclamation operations on or near certain private, federal, and other public

lands designated by Congress in SMCRA, except for operations which existed on

August 3, 1977, or were subject to valid existing rights on that date. The

cabinet shall also prohibit certain surface coal mining operations on lands

designated unsuitable for all or certain types of surface coal mining and

reclamation operations under 405 KAR 24:030.

 

      Section 2.

Permit Application Review. Except for operations which existed on August 3,

1977, unless the required approvals or waivers have been obtained, upon receipt

of a complete and accurate application for a surface coal mining and

reclamation operation permit, and subject to valid existing rights, the cabinet

shall review the application and deny the permit if it determines that the

lands on which the proposed operation would be conducted include:

      (1) Lands within

the boundaries of the National Park System, the National Wildlife Refuge

System, the National System of Trails, the National Wilderness Preservation

System, the Wild and Scenic Rivers System, including study rivers designated

under Section 5(a) of the Wild and Scenic Rivers Act (16 USC 1276(a)) or study

rivers or study river corridors as established in any guidelines pursuant to

that Act, and the National Recreation Areas designated by Act of Congress;

      (2) Lands within

300 feet, measured horizontally, of any public park, public building, school,

church, community or institutional building; or

      (3) Lands within

100 feet, measured horizontally, of a cemetery; except that cemeteries may be

relocated if authorized by applicable state law or administrative regulations;

      (4) Lands where

mining will adversely affect any publicly-owned park or any places included on

the National Register of Historic Places unless jointly approved by the cabinet

and the federal, state, or local agency with jurisdiction over the park or

place as set forth in paragraphs (a) and (b) of this subsection.

      (a) The cabinet

shall transmit to the federal, state, or local government agency with

jurisdiction over the park or place a copy of applicable parts of the permit

application, together with a request for that agency's approval or disapproval

of the operation, and a notice to that agency that it has thirty (30) days from

receipt of the request within which to respond and that failure to interpose a

timely objection will constitute approval. The cabinet, upon request by the

appropriate agency, may grant an extension to the thirty (30) day period of an

additional thirty (30) days. Failure to interpose an objection within thirty

(30) days or the extended period granted shall constitute an approval of the

proposed permit by the agency.

      (b) A permit for

a surface coal mining and reclamation operation shall not be issued unless

jointly approved by all affected agencies.

      (5) Lands within

300 feet, measured horizontally, from any occupied dwelling, unless the owner

of the dwelling has provided a written waiver consenting to surface coal mining

operations closer than 300 feet.

      (a) The

applicant shall submit with the permit application a written waiver by lease,

deed, or other conveyance from the owner of the dwelling, clarifying that the

owner and signator had the legal right to deny mining and knowingly waived that

right. The waiver shall act as consent to the operation within a closer

distance of the dwelling specified in the waiver. Valid waivers obtained prior

to August 3, 1977 shall be valid for the purposes of this paragraph. Waivers

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. A subsequent owner shall be deemed to have constructive

knowledge if the waiver has been properly filed in public property records

pursuant to state law or if the mining has proceeded to within the 300-foot

limit prior to the date of purchase.

      (b) The waiver

shall be knowingly made and separate from a lease or deed unless the lease or

deed contains an explicit waiver. In this case, a copy of the lease or deed

shall be included with the permit application.

      (c) This

subsection shall not apply when the part of the mining operation which is

within 300 feet of the dwelling is a haul road or access road which connects

with an existing public road on the side of the public road opposite the

dwelling.

      (6) Lands within

100 feet, measured horizontally, of the outside right-of-way line of any public

road (except where mine access roads or haulage roads join the right-of-way).

The cabinet may allow areas within 100 feet to be affected or may allow the public

road to be closed or relocated, provided that, the cabinet shall:

      (a) Require the

applicant to obtain any necessary approval of the governmental authority with

jurisdiction over the public road;

      (b) Provide

opportunity for a public hearing in the locality of the proposed mining

operations for the purpose of determining whether the interests of the public

and affected landowners will be protected;

      (c) Publish

notice in a newspaper of largest bona fide circulation according to the

definition in KRS 424.110 to 424.120 in the county of the affected area at

least two (2) weeks before the public hearing;

      (d) Make a

written finding within thirty (30) days after the hearing or after any public

comment period ends if no hearing is held, on the basis of information received

at the public hearing as to whether the interests of the public and affected

landowners will be protected. No mining shall be allowed within 100 feet of the

outside right-of-way line of a road nor may a road be relocated or closed

unless the cabinet determines that the interests of the public and affected

landowners will be protected.

      (7) Federal

lands within the boundaries of any national forest, unless specifically

approved by the Secretary of the Interior.

 

      Section 3.

Assistance Review. (1) If the cabinet is unable to determine whether the

proposed surface coal mining operation is located within the distances or

boundaries of any of the lands identified in Section 2 of this administrative

regulation, the cabinet shall transmit a copy of the relevant portions of the

permit application to the appropriate federal, state, or local government

agency for a determination or clarification of the relevant boundaries or

distances, with a notice to the agency that it shall respond in writing within

thirty (30) days of receipt of the request.

      (2) The National

Park Service or the U.S. Fish and Wildlife Service shall be notified of any

request for a determination of valid existing rights pertaining to areas within

the boundaries of areas under their jurisdiction and shall have thirty (30)

days from receipt of notification in which to respond.

      (3) The cabinet,

upon request by the appropriate agency, shall grant an extension to the thirty

(30) day period of an additional thirty (30) days. If no response is received

within the thirty (30) day period or within the extended period granted, the

cabinet may make the necessary determination based upon the information it has

available.

 

      Section 4. Valid

Existing Rights. (1) Except for haul roads, "valid existing rights"

means property rights in existence on August 3, 1977, that were created by a

legally binding conveyance, lease, contract or other instrument which

authorizes the applicant to produce coal and the person proposing to conduct a

surface coal mining operation on the lands either:

      (a) Had been

validly issued or had made a good faith effort to obtain, on or before August

3, 1977, all state and federal permits necessary to conduct surface coal mining

operations on those lands, application for the permits being deemed to

constitute good faith efforts to obtain the permits; or

      (b) Can

demonstrate to the cabinet that the coal is both needed for, and immediately

adjacent to, an ongoing surface coal mining operation for which all permits

were obtained prior to August 3, 1977.

      (2) For haul

roads, "valid existing rights" means:

      (a) A recorded

right-of-way, recorded easement, or a permit for coal haul road recorded as of

August 3, 1977; or

      (b) Any other

road in existence as of August 3, 1977.

      (3) "Valid

existing rights" does not mean the mere expectation of a right to conduct

surface coal mining operations or the right

to conduct underground

coal mining.

      (4)

Interpretation of the terms of the documents relied upon to establish existing

rights shall be based upon the laws of Kentucky.

      (5) A

determination that coal is "needed" shall be based upon, but not be

limited to, a finding that additional production originating on adjacent land

is necessary to preclude a financial hardship on the mining operation measured by

standard accounting and financial procedures, provided that:

      (a) A fair

rate-of-return on invested capital is not achievable on existing permitted

land;

      (b) A less than

fair rate-of-return on invested capital is attributable to this chapter; and

      (c) The operator

can establish that the adjacent unpermitted land is part of the operator's

mining plan.

      (6) Where an

area comes under the protection of Section 2 of this administrative regulation

after August 3, 1977, valid existing rights shall be found if, on the date the

protection comes into existence, a validly authorized surface coal mining

operation exists on that area.

 

      Section 5.

Exploration on Land Designated as Unsuitable for Surface Coal Mining

Operations. Designation of any area as unsuitable for all or certain types of

surface coal mining operations pursuant to this chapter does not prohibit coal

exploration operations in the area, if conducted in accordance with KRS Chapter

350 and 405 KAR Chapters 7 through 20. Exploration operations on any lands

designated unsuitable for surface coal mining operations shall be approved only

when the cabinet finds that the proposed exploration does not interfere with

any value for which the area has been designated unsuitable for surface coal

mining operations.

 

      Section 6. Lands

Designated Unsuitable. (1) If the cabinet determines that the proposed surface

coal mining operation is not prohibited by Section 2 of this administrative

regulation, it may nevertheless, pursuant to appropriate petitions, designate

the lands as unsuitable for all or certain types of surface coal mining

operations pursuant to 405 KAR 24:030.

      (2) The cabinet

shall not issue permits which are inconsistent with designations made pursuant

to 405 KAR 24:030 and this administrative regulation. (8 Ky.R. 1597; eff.

1-6-83; Am. 15 Ky.R. 515; eff. 12-13-88; 1897; eff. 6-28-89.)