KENTUCKY REGULATORY PROGRAM KENTUCKY ADMINISTRATIVE REGULATIONS (KAR) TITLE 405 NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET DEPARTMENT FOR SURFACE MINING RECLAMATION AND ENFORCEMENT [Current as of 7/22/03] 405 KAR CHAPTER 24 AREAS UNSUITABLE FOR MINING 405 KAR 24:001 Definitions for 405 KAR Chapter 24 405 KAR 24:020 Petition requirements 405 KAR 24:030 Process and criteria for designating lands unsuitable for surface mining operations 405 KAR 24:040 Areas unsuitable for mining NOTE: Cross references to OSM's federal regulations, the U.S. Code ("USC") and Kentucky Revised Statutes ("KRS") are part of the Kentucky Regulatory Program's regulations. These references appear at the beginning of each subchapter under "RELATES TO" and " STATUTORY AUTHORITY". The SMCRA section number equivalents to the USC section numbers have been added to the end of these notations. In addition, specific cross references to federal regulation and statute sections were added to Kentucky regulation sections; they appear in double braces to the right of the section name and number, e.g., "SECTION 1. NOTICE OF CITIZEN SUITS. {{ 30 CFR 700.13 }}". These annotations were compiled using the preambles to OSM's approval of amendments to the Kentucky Regulatory Program published in the Federal Register and from the file of Kentucky regulatory material in the COALEX Library in LexisNexis. 405 KAR 24:001. DEFINITIONS FOR 405 KAR CHAPTER 24. RELATES TO: KRS Chapter 350, 30 CFR Parts 700.5, 701.5, 707.5, 730-733, 735, 761.5, 762.5, 773.5, 800.5, 843.5, 917, 30 USC 1253, 1255, 1291 {SMCRA Secs. 503, 505, 701} STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465, 30 CFR Parts 700.5, 701.5, 707.5, 730-733, 735, 761.5, 762.5, 773.5, 800.5, 843.5, 917, 30 USC 1253, 1255, 1291 {SMCRA Secs. 503, 505, 701} NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations under the permanent regulatory program. This administrative regulation provides for the defining of certain essential terms used in 405 KAR Chapter 24. SECTION 1. DEFINITIONS. (1) "AFFECTED AREA" means any land or water area which is used to facilitate, or is physically altered by, surface coal mining and reclamation operations. The affected area includes the disturbed area; any area upon which surface coal mining and reclamation operations are conducted; any adjacent lands the use of which is incidental to surface coal mining and reclamation operations; all areas covered by new or existing roads used to gain access to, or for hauling coal to or from, surface coal mining and reclamation operations, except as provided in this definition; any area covered by surface excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, shipping areas; any areas upon which are sited structures, facilities, or other property or material on the surface resulting from, or incident to, surface coal mining and reclamation operations; and the area located above underground workings associated with underground mining activities, auger mining, or in situ mining. The affected area shall include every road used for the purposes of access to, or for hauling coal to or from, surface coal mining and reclamation operations, unless the road: (a) Was designated as a public road pursuant to the laws of the jurisdiction in which it is located; (b) Is maintained with public funds, and constructed in a manner similar to other public roads of the same classification within the jurisdiction; and (c) There is substantial (more than incidental) public use. (2) "APPLICANT" means any person(s) seeking a permit, permit revision, permit amendment, permit renewal, or transfer, assignment, or sale of permit rights from the cabinet to conduct surface coal mining and reclamation operations or approval to conduct coal exploration operations pursuant to KRS Chapter 350 and all applicable administrative regulations. (3) "APPLICATION" means the documents and other information filed with the cabinet seeking issuance of permits; revisions; amendments; renewals; and transfer, assignment or sale of permit rights for surface coal mining and reclamation operations or, if required, seeking approval for coal exploration. (4) "AQUIFER" means a zone, stratum, or group of strata that can store and transmit water in sufficient quantities for domestic, agricultural, industrial, or other beneficial use. (5) "AREA", as used in 405 KAR Chapter 24, means a geographic unit in which the criteria alleged in the petition pursuant to 405 KAR 24:020, Sections 3 and 4 and 405 KAR 24:030, Section 8 occur throughout and form a significant feature. (6) "AUGER MINING" means a method of mining coal at a cliff or highwall by drilling holes into an exposed coal seam from the highwall and transporting the coal along an auger bit to the surface and shall also include all other methods of mining in which coal is extracted from beneath the overburden by mechanical devices located at the face of the cliff or highwall and extending laterally into the coal seam, such as extended depth, secondary recovery systems. (7) "CABINET" is defined in KRS 350.010. (8) "CEMETERY" means any area where human bodies are interred. (9) "CFR" means Code of Federal Regulations. (10) "COAL" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77. (11) "COAL EXPLORATION" means the field gathering of: (a) Surface or subsurface geologic, physical, or chemical data by mapping, trenching, drilling, geophysical, or other techniques necessary to determine the quality and quantity of overburden and coal of an area; or (b) Environmental data to establish the conditions of an area before beginning surface coal mining and reclamation operations under the requirements of 405 KAR Chapters 7 through 24 if the activity may cause any disturbance of the land surface or may cause any appreciable effect upon land, air, water, or other environmental resources. (12) "COAL MINE WASTE" means coal processing waste and underground development waste. (13) "COAL PROCESSING WASTE" means materials which are separated from the product coal during the cleaning, concentrating, or other processing or preparation of coal. (14) "COMMUNITY OR INSTITUTIONAL BUILDING" means any structure, other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings, or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental health, or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation, or sewage treatment. (15) "COMPLETE AND ACCURATE APPLICATION" means an application for permit approval, or approval for coal exploration if required, which the cabinet determines to contain all information required under, and necessary to comply with, KRS Chapter 350 and 405 KAR Chapters 7 through 24, in order to make decisions concerning its administrative and technical acceptability and whether a permit or exploration approval may be issued. (16) "DAY" means calendar day unless otherwise specified to be a working day. (17) "DISTURBED AREA" means an area where vegetation, topsoil, or overburden is removed or upon which topsoil, spoil, coal processing waste, underground development waste, or noncoal waste is placed by surface coal mining operations. Those areas are classified as "disturbed" until reclamation is complete and the performance bond or other assurance of performance required by 405 KAR Chapter 10 is released. (18) "FEDERAL LANDS" means any lands, including mineral interests, owned by the United States, without regard to how the United States acquired ownership of the lands or which agency manages the lands. It does not include Indian lands. (19) "FRAGILE LANDS" means areas containing natural, ecologic, scientific, or aesthetic resources that could be significantly damaged by surface coal mining operations. Examples of fragile lands include uncommon geologic formations, paleontological sites, national natural landmarks, valuable habitats for fish or wildlife, areas where mining may result in flooding, critical habitats for endangered or threatened species of animals or plants, wetlands, environmental corridors containing a concentration of ecologic and aesthetic features, state-designated nature preserves and wild rivers, and areas of recreational value due to high environmental quality. (20) "GROUNDWATER" means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated. (21) "GROWING SEASON" means the period during a one (1) year cycle, from the last killing frost in the spring to the first killing frost in the fall, in which climatic conditions are favorable for plant growth. In Kentucky, this period normally extends from mid-April to mid-October. (22) "HIGHWALL" means the face of exposed overburden and coal in an open cut of a surface mining activity or for entry to underground mining activities. (23) "HISTORIC LANDS" means areas containing historic, cultural, or scientific resources. Examples of historic lands include properties listed on or eligible for listing on a state or national register of historic places, national historic landmarks, archaeological sites, properties having religious or cultural significance to native Americans or religious groups, and properties for which historic designation is pending. (24) "IMPOUNDMENT" means a closed basin, naturally formed or artificially built, which is dammed or excavated for the retention of water, sediment, or waste. (25) "IN SITU PROCESSES" means activities conducted on the surface or underground in connection with in-place distillation, retorting, leaching, or other chemical or physical processing of coal. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, solution mining, borehole mining, and fluid recovery mining. (26) "KAR" means Kentucky administrative regulations. (27) "KRS" means Kentucky Revised Statutes. (28) "NATURAL HAZARD LANDS" means geographic areas in which natural conditions exist that pose or, as a result of surface coal mining operations, may pose a threat to the health, safety, or welfare of people, property, or the environment, including, but not limited to, areas subject to landslides, cave-ins, subsidence, substantial erosion, unstable geology, or frequent flooding. (29) "OCCUPIED DWELLING" means any building that is currently being used on a regular or temporary basis for human habitation. (30) "OPERATIONS" is defined in KRS 350.010. (31) "OPERATOR" is defined in KRS 350.010. (32) "OVERBURDEN" is defined in KRS 350.010. (33) "PERMIT" means written approval issued by the cabinet to conduct surface coal mining and reclamation operations. (34) "PERSON" is defined in KRS 350.010. (35) "PERSON HAVING AN INTEREST WHICH IS OR MAY BE ADVERSELY AFFECTED" or "PERSON WITH A VALID LEGAL INTEREST" shall include any person: (a) Who uses any resource of economic, recreational, aesthetic, or environmental value that may be adversely affected by coal exploration or surface coal mining and reclamation operations, or by any related action of the cabinet; or (b) Whose property is or may be adversely affected by coal exploration or surface coal mining and reclamation operations, or by any related action of the cabinet. (36) "PETITIONER" means a person who submits a petition under 405 KAR Chapter 24 to designate a specific area as unsuitable for all or certain types of surface coal mining and reclamation operations, or who submits a petition under 405 KAR Chapter 24 to terminate such a designation. (37) "PUBLIC BUILDING" means any structure that is owned or leased, and principally used by a governmental agency for public business or meetings. (38) "PUBLICLY-OWNED PARK" means a public park that is owned by a federal, state, or local governmental entity. (39) "PUBLIC PARK" means an area dedicated or designated by any federal, state, or local agency primarily for public recreational use, despite whether the use is limited to certain times or days. It includes any land leased, reserved, or held open to the public because of that use. (40) "PUBLIC ROAD" means any publicly owned thoroughfare for the passage of vehicles. (41) "RAM" means Reclamation Advisory Memorandum. (42) "RECLAMATION" is defined in KRS 350.010. (43) "RENEWABLE RESOURCE LANDS" means geographic areas which contribute significantly to the long- range productivity of water supplies or of food or fiber products, these lands to include aquifers and aquifer recharge areas. (44) "ROAD" means a surface right-of-way for purposes of travel by land vehicles used in coal exploration or surface coal mining and reclamation operations. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side area, approaches, structures, ditches, surface, and contiguous appendages necessary for the total structure. The term includes access and haul roads constructed, used, reconstructed, improved, or maintained for use in coal exploration or surface coal mining and reclamation operations, including use by coal hauling vehicles leading to transfer, processing, or storage areas. The term does not include pioneer or construction roadways used for part of the road construction procedure and promptly replaced by a road pursuant to 405 KAR Chapters 16 and 18 located in the identical right-of-way as the pioneer or construction roadway. The term also excludes any roadway within the immediate mining pit area. (45) "SECRETARY" is defined in KRS 350.010. (46) "SLURRY MINING" means the hydraulic breakdown of subsurface coal with drill-hole equipment, and the eduction of the resulting slurry to the surface for processing. (47) "SMCRA" means Surface Mining Control and Reclamation Act of 1977 (PL 95-87), as amended. (48) "SOIL HORIZONS" means contrasting layers of soil parallel or nearly parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics and laboratory data. The four (4) master soil horizons are: (a) "A HORIZON." The uppermost mineral layer, often called the surface soil. It is the part of the soil in which organic matter is most abundant, and leaching of soluble or suspended particles is typically the greatest. (b) "E HORIZON." The layer commonly near the surface below an A horizon and above a B horizon. An E horizon is most commonly differentiated from an overlying A horizon by lighter color and generally has measurably less organic matter than the A horizon. An E horizon is most commonly differentiated from an underlying B horizon in the same sequum by color of higher value or lower chroma, by coarser texture, or by a combination of these properties. (c) "B HORIZON." The layer that typically is immediately beneath the E horizon and often called the subsoil. This middle layer commonly contains more clay, iron, or aluminum than the A, E, or C horizons. (d) "C HORIZON." The deepest layer of soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity. (49) "SPOIL" means overburden and other materials, excluding topsoil, coal mine waste, and mined coal, that are excavated during surface coal mining and reclamation operations. (50)(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. (51) "SURFACE COAL MINING AND RECLAMATION OPERATIONS" is defined in KRS 350.010. (52) "SURFACE COAL MINING OPERATIONS" is defined in KRS 350.010. (53) "TOPSOIL" means the A and E soil horizon layers of the four (4) master soil horizons. (54) "TRANSFER, ASSIGNMENT, OR SALE OF PERMIT RIGHTS" means a change in ownership or other effective control over the right to conduct surface coal mining operations under a permit issued by the cabinet. (55) "UNDERGROUND DEVELOPMENT WASTE" means waste coal, shale, claystone, siltstone, sandstone, limestone, or similar materials that are extracted from underground workings in connection with underground mining activities. (56) "UNDERGROUND MINING ACTIVITIES" means a combination of: (a) Surface operations incident to underground extraction of coal or in situ processing, including construction, use, maintenance, and reclamation of roads, aboveground repair areas, storage areas, processing areas, and shipping areas; areas upon which are sited support facilities including hoist and ventilating ducts; areas utilized for the disposal and storage of waste; and areas on which materials incident to underground mining operations are placed; and (b) Underground operations such as underground construction, operation, and reclamation of shafts, adits, underground support facilities; in situ processing; and underground mining, hauling, storage, and blasting. (57) "VALID EXISTING RIGHTS" means: (a) Except for haul roads, 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: 1. 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 2. 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. (b) For haul roads: 1. A recorded right-of-way, recorded easement, or a permit for coal haul road recorded as of August 3, 1977; or 2. Any other road in existence as of August 3, 1977. (c) 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. (58) "WETLAND" means land that has a predominance of hydric soils and that is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions. (a) "HYDRIC SOIL" means soil that, in its undrained condition, is saturated, flooded, or ponded long enough during a growing season to develop an anaerobic condition that supports the growth and regeneration of hydrophytic vegetation. (b) "HYDROPHYTIC VEGETATION" means a plant growing in: 1. Water; or 2. A substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content. (18 Ky.R. 2495; eff. 4-3-92.) 405 KAR 24:020. PETITION REQUIREMENTS. 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 program for the implementation of SMCRA containing procedures similar to that Act. This administrative regulation sets forth requirements for petitions seeking designation of certain lands as unsuitable for all or certain types of surface coal mining operations and for the termination of such designations. SECTION 1. GENERAL. Under the following procedures, persons may petition the cabinet to designate areas as unsuitable for all or certain types of surface coal mining operations. Additionally, there are procedures for citizens to petition the cabinet to terminate a designation of unsuitability for mining. SECTION 2. RIGHT TO PETITION. {{ 30 CFR 764.13 }} Any person having an interest which is or may be adversely affected has the right to petition the cabinet to have an area designated as unsuitable for all or certain types of surface coal mining operations, or to have an existing designation terminated. However, a person having an interest which is or may be adversely affected must demonstrate how he or she meets an "injury in fact" test by describing the injury to his or her specific affected interests and demonstrate how he or she is among the injured. SECTION 3. DESIGNATION PETITION. {{ 30 CFR 764.13, 764.15 }} (1) A petitioner shall file a petition containing all information that the cabinet requires pursuant to this section using forms provided by the cabinet. (2) The petition for designation shall include the following information: (a) The petitioner's name, address, telephone number, and notarized signature. (b) Identification of the petitioner's interest which is or may be adversely affected, including a statement demonstrating how the petitioner satisfies the requirements of Section 2 of this administrative regulation. (c) A USGS seven and one-half (7 1/2) minute topographic map(s) marked to show the location and size of the geographic area covered by the designation petition. (d) A description of how surface coal mining operations in the area have or may adversely affect people, land, air, water or other resources. (e) Allegations of facts and objective evidence which would tend to establish that the area, as defined in 405 KAR 7:020, is unsuitable for all or certain types of surface coal mining operations, assuming that contemporary mining practices required under 405 KAR Chapters 7 through 24 would be followed if the area were to be mined. Each of the allegations of fact should be specific as to the mining operation, if known; the portion(s) of the petitioned area and the petitioner's interests to which the allegation applies; and be supported by evidence that tends to establish the validity of the allegations for the mining operation or portion of the petitioned area. The allegations shall address one (1) or more of the following: 1. Reclamation is not technologically and economically feasible under the provisions of 405 KAR Chapters 7 through 24; or 2. Surface coal mining and reclamation operations will be: 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 and reclamation operations; b. Affect fragile or historic lands in which the surface coal mining operations could result in significant damage to important historic, cultural, scientific, or aesthetic values or natural systems; c. Affect lands in which the surface coal mining operations could result in a substantial loss or reduction in the long-range availability of water supplies, to include aquifers and aquifer recharge areas; d. Affect renewable resource lands in which the surface coal mining operations could result in a substantial loss or reduction in the long-range productivity of food or fiber products; or e. Affect natural hazard lands in which surface coal mining operations could substantially endanger life and property. (3) The cabinet may request that the petitioner provide other supplementary information which is readily available. However, failure to provide such information shall not render the petition incomplete. (4) Petitions shall be mailed or delivered to: Kentucky Cabinet for Natural Resources and Environmental Protection, Lands Unsuitable Program, Department of Surface Mining Reclamation and Enforcement, Frankfort, Kentucky 40601. SECTION 4. TERMINATION PETITION. {{ 30 CFR 764.13, 764.15 }} (1) A petitioner shall file a petition for termination of designation of an area as unsuitable for all or certain types of surface coal mining operations using forms provided by the cabinet. The petition for termination may cover all or any portion of the specific geographical area that was previously designated as unsuitable for surface coal mining operations and shall address those criteria upon which designation was based. (2) The petition for termination shall include the following information: (a) The petitioner's name, address, telephone number, and notarized signature. (b) Identification of the petitioner's interest which is or may be adversely affected by the continuation of the designation of the area as unsuitable for all or certain types of surface coal mining operations, including a statement demonstrating how the petitioner satisfies the requirements of Section 2 of this administrative regulation. (c) A USGS seven and one-half (7 1/2) minute topographic map(s) marked to show the location and size of the geographic area covered by the termination petition. (d) Allegation of facts and objective evidence covering the area for which the termination is proposed. Each of the allegations of fact shall be specific as to the mining operation, if any, and to portions of the petitioned area and the petitioner's interests to which the allegation applies. The allegations shall be supported by evidence, not contained in the record of the designation proceeding, that tends to establish the validity of the allegations for the mining operation or portion of the petitioned area, assuming that contemporary mining practices required under 405 KAR Chapters 7 through 24, would be followed were the area to be mined. For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence must be presented in the petition. Allegations and supporting evidence should also be specific to the basis for which the designation was made and tend to establish that the designation should be terminated on one (1) or more of the following bases: 1. Reclamation is now technologically and economically feasible, if the designation was based on a finding that reclamation was either technologically and economically unfeasible; or 2. Surface coal mining operations: a. Will not now be incompatible with land use policies, plans, or programs adopted by state, area-wide, or local agencies with management responsibilities for the designated area, if the designation was based on a finding of such incompatibility; b. Will not now result in significant damage to important historic, cultural, scientific, or aesthetic values or natural systems related to fragile or historic lands, if the designation was so based; c. Will not now result in substantial loss or reduction of long-range availability of water supplies if the designation was so based; d. Will not now result in substantial loss or reduction of long-range productivity of food and fiber products, if the designation was so based; or e. Will not now affect natural hazard lands in which the surface coal mining operation could have substantially endangered life and property, if the designation was so based. (3) The cabinet may request that the petitioner provide other supplementary information which is readily available. However, failure to provide such information shall not render the petition incomplete. (4) Termination petitions shall be mailed or delivered to: Kentucky Cabinet for Natural Resources and Environmental Protection, Lands Unsuitable Program, Department of Surface Mining Reclamation and Enforcement, Frankfort, Kentucky 40601. (8 Ky.R. 1594; eff. 1-6-83; Am. 15 Ky.R. 508; eff. 12-13-88.) 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. {{ 30 CFR 762.5, 762.13 }} (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. {{ 30 CFR 764.13, 764.15 }} (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. {{ 30 CFR 764.15 }} (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. {{ 30 CFR 764.21 }} (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. {{ 30 CFR 764.23 }} (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. {{ 30 CFR 764.17 }} (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. {{ 30 CFR 762.11, 764.17, 764.19 }} (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. {{ 30 CFR 764.25 }} (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.) 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. {{ 30 CFR 761.11, 761.12 }} 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. {{ 30 CFR 761.12 }} (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. {{ 30 CFR 761.5 }} (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. {{ 30 CFR 762.14 }} 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. {{ 30 CFR 764.25 }} (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.)