405 KAR 24:040.
Areas unsuitable for mining.
RELATES TO: KRS
AUTHORITY: KRS Chapter 13A, 350.465(2), 350.610
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.
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.
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.
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.
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
(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;
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;
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.
lands within the boundaries of any national forest, unless specifically
approved by the Secretary of the Interior.
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
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
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.
existing rights" does not mean the mere expectation of a right to conduct
surface coal mining operations or the right
to conduct underground
Interpretation of the terms of the documents relied upon to establish existing
rights shall be based upon the laws of Kentucky.
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
(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
(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.
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
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.)