405 KAR 16:210. Postmining land use capability

Link to law: http://www.lrc.ky.gov/kar/405/016/210.htm
Published: 2015

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      405 KAR 16:210.

Postmining land use capability.

 

      RELATES TO: KRS

350.093, 350.095, 350.100, 350.405, 350.410, 350.450, 350.465, 30 C.F.R. Parts

730-733, 735, 816.133, 917, 30 U.S.C. 1253, 1255, 1265

      STATUTORY

AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.465, 30 C.F.R. Parts 730-733,

735, 816.133, 917, 30 U.S.C. 1253, 1255, 1265

      NECESSITY,

FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the

cabinet to promulgate rules and administrative regulations establishing

performance standards for protection of people and property, land, water and

other natural resources, and aesthetic values, during surface mining activities

and for restoration and reclamation of surface areas affected by mining

activities. This administrative regulation sets forth requirements for

restoring land use capability after completion of surface mining activities,

and specific criteria for approval of postmining land uses which differ from

the premining land use.

 

      Section 1.

General. (1) Prior to the final release of performance bond, affected areas

shall be restored in a timely manner:

      (a) To

conditions capable of supporting the uses which the areas were capable of

supporting before any mining; or

      (b) To

conditions capable of supporting higher or better alternative uses as approved

by the cabinet under Section 4 of this administrative regulation.

      (2) The

following land uses shall apply under this administrative regulation:

      (a) Cropland;

      (b) Pastureland;

      (c) Forest land;

      (d) Residential;

      (e)

Industrial/commercial;

      (f) Recreation;

      (g) Fish and

wildlife;

      (h) Developed

water resources;

      (i) Undeveloped

land or no current use or land management.

 

      Section 2.

Premining and Postmining Land Use. (1) The premining uses of land to which the

postmining land use is compared shall be those uses which the land previously

supported if the land has not been previously mined. The premining land use for

a specific area shall be determined based on the prevalent or dominant use,

vegetative types, and features present at that area; however, more than one (1)

land use can exist within a proposed permit boundary.

      (2) The

postmining land use for land that has been previously mined, and not reclaimed

in compliance with 405 KAR Chapter 1 or 3 or Chapters 7 through 24, shall be judged

on the basis of the land use that existed prior to any mining; except if the

land cannot be reclaimed to the land use that existed prior to any mining

because of the previously mined condition, the postmining land use shall be

judged on the basis of the highest and best use that can be achieved which is

compatible with surrounding areas and does not require the disturbance of areas

previously unaffected by mining.

      (3) Prime

farmland that has been historically used for cropland that is not exempted by 405

KAR 8:050, Section 3 shall have a postmining land use of cropland.

      (4)(a) The land

use category of "undeveloped land or no current use or land

management" shall not be used to designate a postmining land use.

      (b) If the

premining land use is "undeveloped land or no current use or land

management", and if consistent with subsection (2) of this section and

Section 3 of this administrative regulation:

      1. If trees are

dominant on the area prior to mining, the area may be designated as forestland

for the postmining land use without compliance with the procedures and criteria

for an alternative postmining land use.

      2. For all other

cases, the area may be designated as fish and wildlife for the postmining land

use without compliance with the procedures and criteria for an alternative

postmining land use.

      (5) Slope

limitations for specific postmining land uses. These limitations shall apply to

permits issued after the effective date of this amendment. Portions of the

permit area with slopes greater than twenty (20) percent (eleven and

three-tenths (11.3) degrees) shall not be designated as cropland, including hay

production.

      (6) Steep slope

operations with variances from approximate original contour shall comply with

the requirements of 405 KAR 20:060, Section 3(2), and mountaintop removal

operations shall comply with 405 KAR 8:050, Section 4(3).

 

      Section 3.

Historical Land Use. If the premining use of the land was changed within five

(5) years of the date of application for a permit to conduct surface coal mining

and reclamation operations, the historical use of the land as well as the land

use immediately preceding the date of application shall be considered in

establishing the premining capability of the land to support a variety of

feasible uses.

 

      Section 4.

Alternative Postmining Land Use. Higher or better alternative postmining land

uses may be approved by the cabinet if the following criteria are met:

      (1) There is a

reasonable likelihood that the land use will be achieved;

      (2) The use will

not be impractical or unreasonable;

      (3) The

landowner or the land management agency having jurisdiction over the lands has

been consulted, and the proposed alternative postmining land use is consistent

with applicable land use policies and plans;

      (4) The proposed

use will not present an actual or probable hazard to public health or safety or

threat of water pollution or diminution of water availability;

      (5) The proposed

use will not involve unreasonable delays in implementation; and

      (6) The proposed

use will not cause or contribute to violation of federal, state, or local law.

(8 Ky.R. 1553; eff. 1-6-83; Am. 18 Ky.R. 431; 1875; 2243; eff. 11-26-91.)