KENTUCKY REGULATORY PROGRAM KENTUCKY REVISED STATUTES (KRS) TITLE XXVIII MINES AND MINERALS CHAPTER 350 SURFACE COAL MINING (Current through 2003 Regular Session) KRS CHAPTER 350.00 SURFACE COAL MINING KRS 350.005 Repealed, 1960. KRS 350.010 Definitions for chapter. KRS 350.020 Declaration of legislative policy and finding of fact. KRS 350.024 Repealed, effective January 1, 1973. KRS 350.025 Provisions inconsistent with federal law unenforceable. KRS 350.026 Repealed, 1966. KRS 350.028 Powers of cabinet. KRS 350.0281 Repealed, 1992. KRS 350.0285 Notification to Transportation Cabinet of permits for mine openings and of mine closings under authority of cabinet. KRS 350.029 Regulations to implement Interstate Mining Compact -- Adoption -- Limitations. KRS 350.030 Repealed, 1956. KRS 350.0301 Petition challenging determination of cabinet -- Conduct of hearings -- Administrative regulations. KRS 350.0305 Appeal of cabinet's order. KRS 350.032 Enforcement of subpoenas -- Judicial review of final orders -- Forfeiture of performance bond -- Temporary relief pending final determination. KRS 350.035 Department for Surface Mining Reclamation and Enforcement -- Appointment of special investigations officers. KRS 350.040 Repealed, 1956. KRS 350.045 Repealed, 1960. KRS 350.050 Powers of cabinet. KRS 350.052 Powers, qualifications, and training of special investigations officers. KRS 350.053 Seizure and sale of equipment -- Rights of owner or lien holder. KRS 350.054 Illegal mining and conveyance reclamation fund -- Purpose -- Control. KRS 350.055 Publication of notice of intention to mine by permit applicant -- Notification of various local government bodies by cabinet. KRS 350.057 Coal exploration operations. KRS 350.060 Permit requirement -- Contents of application -- Fee -- Bond -- Exemptions -- Administrative regulations -- Successive renewal -- Auger mining of previously mined area -- Exempt operations. KRS 350.062 Data included in permit application -- Contemporaneous reclamation -- Subsoil augmentation -- Cabinet to compile hydrologic data -- Abandoned land projects classified as government financed construction. KRS 350.063 Duty of applicant to meet and confer with well operator if permit will disturb access roads. KRS 350.064 Reclamation bond to be filed by applicant. KRS 350.066 Bond posting not required until permit application approved. KRS 350.068 Cancellation of surety. KRS 350.069 Stringency of regulations. KRS 350.070 Permit revisions. KRS 350.075 Special permits for remining of previously affected areas -- Administrative regulations. KRS 350.080 Procedure for obtaining approval of other mining operations -- Deferral of reclamation. KRS 350.085 Denial of permits and operations -- Deletion of land areas. KRS 350.090 Method of operation, grading, backfilling, and reclamation plans -- Funding from reclamation development fund -- Waste materials in permit area only. KRS 350.093 Time and distance limits on reclamation efforts -- Deferments -- Drift or other underground mining -- Variances -- Release of bond. KRS 350.095 Responsibility for successful revegetation -- Cabinet administrative regulations. KRS 350.100 Time for commencement and completion of reclamation -- Deferred planting. KRS 350.110 Repealed, 1990 KRS 350.113 Planting report. KRS 350.117 Ownership of trees, shrubs, and plants. KRS 350.120 Report on expiration of permit -- Contents. KRS 350.130 Notice of noncompliance -- Revocation of permit -- Bond forfeiture -- Ineligibility for future permits. KRS 350.131 Use of forfeited reclamation bond funds -- Contract to reclaim overlapped disturbed area for which bond has been forfeited and collected. KRS 350.133 Mountaintop removal. KRS 350.135 Requirements for transfer of surface coal mining permit -- Release of bond -- Regulations -- Approval by cabinet. KRS 350.139 Deposit of funds to State Treasury -- Transfer to fiscal courts. KRS 350.140 Repealed, effective January 1, 1973. KRS 350.141 Repealed, effective January 1, 1973. KRS 350.143 Repealed, effective January 1, 1973. KRS 350.145 Repealed, effective January 1, 1973. KRS 350.150 Reclamation work by cabinet -- Procedure -- Acceptance of federal and other funds Access to land. KRS 350.151 Permanent program administrative regulations for mining and reclamation -- Bond. KRS 350.152 Acquisition of land by Commonwealth for reclamation purposes. KRS 350.154 Restoration and reclamation by cabinet. KRS 350.156 Transfer of jurisdiction of restored land to state agency or sale to political subdivision -- Return of money to revolving fund. KRS 350.158 Land under bond for restoration not to be acquired. KRS 350.160 Repealed, 1962. KRS 350.161 Acquisition and disposal of land, how governed. KRS 350.163 Cabinet may accept state and federal funds -- Deposit in State Treasury. KRS 350.170 Construction of chapter. KRS 350.175 Persons required to comply with requirements of chapter. KRS 350.180 Repealed, 1962. KRS 350.185 Repealed, effective January 1, 1973. KRS 350.190 Repealed, 1962. KRS 350.195 Repealed, 1966. KRS 350.200 Signs to be posted at mining sites. KRS 350.210 Repealed, effective May 18, 1982. KRS 350.220 Repealed, 1978. KRS 350.230 Conformance to statutes and regulations required, when -- Effective date of regulation. KRS 350.240 Clay mining regulations. KRS 350.250 Complaints of violation -- Mandamus -- Civil action by person adversely affected by violation -- Intervention by cabinet. KRS 350.255 Petition for initiation of proceeding for issuance, amendment or repeal of a regulation -- Notice -- Hearing -- Order -- Judicial review. KRS 350.260 Small Coal Operators Advisory Council. KRS 350.270 Disposal of coal combustion by-products at surface coal mining operations Permitting process -- Requirements for disposal -- Authority for administrative regulations. KRS 350.275 Legislative findings and declaration on backstowing and reinjection of coal processing and coal underground development waste. KRS 350.280 Easements of necessity to abate certain dangerous violations and for appraisal purposes when access to property denied -- When effective -- Appraisal of damages likely to occur -- Independent appraisal by property owner or legal occupant -- Payment of damages. KRS 350.285 Removal of coal on private land -- Implementation of section. NOTE: Cross references to OSM's federal regulations and SMCRA appear in double braces to the right of the Rule or Section number, e.g., "KRS Sec. 350.068 CANCELLATION OF SURETY {{ SMCRA Sec. 509 }}". The cross references 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. KRS Sec. 350.005 STRIP MINING AND RECLAMATION COMMISSION ABOLISHED -- TRANSFER OF FUNCTIONS. [Repealed.] History: Repealed 1960 Ky. Acts ch. 143, sec. 7. -- Created 1956 (1st Extra. Sess.) Ky. Acts ch. 7, Article VII, sec. 2. KRS Sec. 350.010 DEFINITIONS FOR CHAPTER {{ SMCRA Secs. 528, 701; 30 CFR 700.5, 701.5 }} As used in this chapter, unless the context requires otherwise: (1) "SURFACE COAL MINING OPERATIONS" means activities conducted on the surface of lands in connection with a surface coal mine and surface impacts incident to an underground coal mine. The activities shall include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, extended depth secondary recovery systems, mountaintop removal, box cut, open pit, and area mining, the use of explosives and blasting, and in situ distillation or retorting, leaching, or other chemical or physical processing, and cleaning, concentrating, or other processing or preparation, and the loading of coal at or near the mine site. Excavation for the purpose of obtaining coal includes extraction of coal from refuse piles. The activities shall not include the extraction of coal by a landowner of fifty (50) tons or less within twelve (12) successive calendar months for his own noncommercial use from land owned or leased by him; the extraction of twenty-five (25) to two hundred fifty (250) tons of coal as an incidental part of privately financed construction where the coal is donated to a charitable or educational organization for noncommercial use or noncommercial distribution; the extraction of coal as an incidental part of federal, state, or local government financed highway or other construction under administrative regulations established by the cabinet; the extraction of, or intent to extract, twenty-five (25) tons or less of coal by any person by surface coal mining operations within twelve (12) successive calendar months; the extraction of coal incidental to the extraction of other minerals where coal does not exceed sixteen and two-thirds percent (16- 2/3%) of the tonnage of minerals removed for purposes of commercial use or sale; or coal exploration subject to KRS 350.057. Surface coal mining operations shall also include the areas upon which the activities occur or where the activities disturb the natural land surface. The areas shall also include any adjacent land, the use of which is incidental to the activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of the activities and for haulage, and 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, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or materials on the surface resulting from or incident to the activities. This definition shall include the terms "strip mining" of coal and the "surface effects of underground mining" of coal as used in this chapter; (2) "STRIP MINING" means the breaking of the surface soil in order to facilitate or accomplish the extraction or removal of minerals, ores, or other solid matter; any activity or process constituting all or part of a process for the extraction or removal of minerals, ores, and other solid matter from its original location; and the preparation, washing, cleaning, or other treatment of minerals, ores, or other solid matter so as to make them suitable for commercial, industrial, or construction use; but shall not include the extraction of coal by a landowner for his own noncommercial use of fifty (50) tons or less within twelve (12) successive calendar months from land owned or leased by him; the extraction of coal as an incidental part of federal, state, or local government financed highway or other construction under administrative regulations established by the cabinet; the extraction of, or intent to extract, twenty-five (25) tons or less of coal by any person by surface coal mining operations within twelve (12) successive calendar months; the extraction of coal incidental to the extraction of other minerals where coal does not exceed sixteen and two-thirds percent (16- 2/3%) of the tonnage of minerals removed for purposes of commercial use or sale; coal exploration subject to KRS 350.057; nor shall it include the surface effects or surface impacts of underground coal mining; (3) "SURFACE COAL MINING AND RECLAMATION OPERATIONS" means surface coal mining operations and all activities necessary and incident to the reclamation of the operations as required by this chapter; (4) "OVERBURDEN" means material of any nature, consolidated or unconsolidated, excluding topsoil, which lies above a natural deposit of coal and also means the material after removal from its natural state in the process of surface coal mining; (5) "AREA OF LAND AFFECTED" means any area of land or water upon which surface coal mining and reclamation operations are conducted or located or are to be conducted or located; (6) "OPERATIONS" means surface coal mining operations, all of the premises, facilities, roads, and equipment used in the process of producing coal from a designated area or removing overburden for the purpose of determining the location, quality, or quantity of a natural coal deposit or the activity to facilitate or accomplish the extraction or the removal of coal; (7) "METHOD OF OPERATION" means the method or manner by which the cut or open pit is made, the overburden is placed or handled, water is controlled, and other acts are performed by the operator in the process of uncovering and removing the coal; (8) "OPERATOR" means any person, partnership, or corporation engaged in surface coal mining operations who removes or intends to remove more than twenty-five (25) tons of coal from the earth by coal mining within twelve (12) consecutive calendar months in any one (1) location; (9) "PERSON" means any individual, partnership, corporation, association, society, joint stock company, firm, company, or other business organization and shall also include any agency, unit, or instrumentality of federal, state, or local government including any publicly-owned utility or publicly-owned corporation of federal, state, or local government; (10) "CABINET" means the Natural Resources and Environmental Protection Cabinet; (11) "SECRETARY" means the secretary of the Natural Resources and Environmental Protection Cabinet; (12) "RECLAMATION" means the reconditioning of the area affected by surface coal mining operations under a plan approved by the cabinet; (13) "DEGREE" when used in this chapter shall mean from the horizontal, and in each case shall be subject to a tolerance of five percent (5%) of error; (14) "BENCH" means the ledge, shelf, or terrace formed in the contour method of strip mining; (15) "APPROXIMATE ORIGINAL CONTOUR" means that surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls and spoil piles eliminated; water impoundments may be permitted where the cabinet determines that they are in compliance with KRS 350.455; (16) "CERTIFICATION" by a qualified registered professional engineer, as required by this chapter and administrative regulations promulgated hereunder, means a good faith representation to the best of his or her knowledge and belief, based on adequate knowledge of the requirements of this chapter and administrative regulations promulgated hereunder, related experience, best professional judgment, accepted engineering practices and recognized professional standards, and standard practice as it relates to direct participation by the registered professional engineer or supervision of the registered professional engineer's employees or subordinates. Certification shall not be construed to constitute a warranty or guarantee. (17) "RECLAMATION DEVELOPMENT FUND" means only that reconditioning of land affected by surface mining, which will directly promote and benefit the fund administered by the Kentucky Economic Development Finance Authority to foster economic development on surface mining land. (18) "RECLAMATION DEVELOPMENT PROJECT" means only that reconditioning of land affected by surface mining, which will directly promote and benefit an economic undertaking which constitutes a project under KRS 154.01-010(19). (19) "RECLAMATION DEVELOPMENT PLAN" means a plan submitted to the cabinet to show compliance with reclamation standards, and submitted to the Kentucky Economic Development Finance Authority to seek moneys from the reclamation development fund for a reclamation development project. (20) "PERMIT APPLICANT" or "APPLICANT" means a person applying for a permit. (21) "PERMITTEE" means a person holding a permit to conduct surface coal mining and reclamation operations. (22) "UNANTICIPATED EVENT OR CONDITION" as used in KRS 350.085(7) means an event or condition encountered in a remining operation that was not contemplated by the applicable surface coal mining and reclamation permit. (23) "LANDS ELIGIBLE FOR REMINING" means those lands that would otherwise be eligible for expenditures under KRS 350.560(1) or (2). (24) "COAL COMBUSTION BY-PRODUCTS" means fly ash, bottom ash, scrubber sludge, and waste from fluidized bed combustion, produced by the combustion of coal. Coal combustion by-products do not include boiler slag, or residues of refuse derived fuels, such as municipal solid waste, tires, and solvents. Effective: July 15, 1994 History: Amended 1994 Ky. Acts ch. 172, sec. 1, effective July 15, 1994; ch. 178, sec. 1, effective July 15, 1994; ch. 390, sec. 35, effective July 15, 1994; and ch. 459, sec. 1, effective July 15, 1994. Amended 1992 Ky. Acts ch. 105, sec. 59; ch. 107, sec. 15; ch. 120, sec. 1; ch. 429, sec. 1. -- Amended 1992 Ky. Acts ch. 105, sec. 59, effective July 14, 1992, ch. 107; sec. 15, effective July 1, 1992; ch. 120, sec. 1; effective July 14, 1992; and ch. 429, sec. 1, effective July 14, 1992. -- Amended 1990 Ky. Acts ch. 205, sec. 1, effective July 13, 1990; and ch. 306, sec. 4, effective July 13, 1990. -- Amended 1988 Ky. Acts ch. 383, sec. 18, effective July 15, 1988. - - Amended 1984 Ky. Acts ch. 145, sec. 5, effective March 28, 1984. -- Amended 1982 Ky. Acts ch. 283, sec. 1, effective April 2, 1982; and ch. 357, sec. 1, effective July 15, 1982. -- Amended 1980 Ky. Acts ch. 62, sec. 1, effective March 21, 1980. - - Amended 1978 Ky. Acts ch. 330, sec. 14, effective May 3, 1978. -- Amended 1974 Ky. Acts ch. 74, Art. III, sec. 13(2), (7). -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 58. -- Amended 1972 Ky. Acts ch. 270, sec. 1. -- Amended 1968 Ky. Acts ch. 152, sec. 149. -- Amended 1966 Ky. Acts ch. 4, sec. 1. -- Amended 1964 Ky. Acts ch. 61, sec. 1. -- Amended 1962 Ky. Acts ch. 105, sec. 1. Amended 1960 Ky. Acts ch. 143, sec. 3. -- Amended 1956 (lst Extra. Sess.) Ky. Acts ch. 7, Art. VII, sec. 1. -- Created 1954 Ky. Acts ch. 8, sec. 1. Legislative Research Commission Note (2/9/99). Under KRS 7.136(1)(e), the prior reference to "KRS 154.01- 010(19)" in subsection (18) of this statute has been changed to "KRS 154.01-010(20)" because of the renumbering of the referenced subsection in 1996 Ky. Acts ch. 113, sec. 6. Legislative Research Commission Note (7/15/94). This section was amended by 1994 Ky. Acts chs. 172, 178, 390, and 459 which do not appear to be in conflict and have been codified together. Legislative Research Commission Note (7/14/92). This section was amended by four 1992 Acts. Where those Acts are not in conflict, they have been compiled together. Where a conflict exists, the Act which prevails is ch. 105 pursuant to sec. 79 of that Act. KRS Sec. 350.020 DECLARATION OF LEGISLATIVE POLICY AND FINDING OF FACT The General Assembly finds that the Commonwealth is the leading producer of coal and that the production of coal in Kentucky contributes significantly to the nation's energy needs. The General Assembly further finds that unregulated surface coal mining operations cause soil erosion, damage from rolling stones and overburden, landslides, stream pollution, the accumulation of stagnant water and the seepage of contaminated water, increase the likelihood of floods, destroy the value of land for agricultural purposes, destroy aesthetic values, counteract efforts for the conservation of soil, water and other natural resources, destroy or impair the property rights of citizens, create fire hazards, and in general create hazards dangerous to life and property, so as to constitute an imminent and inordinate peril to the welfare of the Commonwealth. The General Assembly further finds that lands that have been subjected to surface coal mining operations and have not been reclaimed and rehabilitated in accordance with modern standards constitute the aforementioned perils to the welfare of the Commonwealth. The General Assembly further finds that there are wide variations in the circumstances and conditions surrounding and arising out of surface coal mining operations due primarily to difference in topographical and geological conditions, and by reason thereof it is necessary, in order to provide the most effective, beneficial and equitable solution to the problem, that a broad discretion be vested in the authority designated to administer and enforce the regulatory provisions enacted by the General Assembly. The General Assembly further finds that governmental responsibility for regulating surface coal mining operations rests with state government and hereby directs the Natural Resources and Environmental Protection Cabinet to take all actions necessary to preserve and exercise the Commonwealth's authority, to the exclusion of all other governmental entities except the Commonwealth and agencies thereof and except as provided in KRS Chapter 100, and any county surface mining regulation contained within a zoning ordinance adopted prior to April 1, 1988, in regulating surface coal mining operations. Therefore, it is the purpose of this chapter to provide such regulation and control of surface coal mining operations as to minimize or prevent injurious effects on the people and resources of the Commonwealth. To that end, the cabinet is directed to rigidly enforce this chapter and to adopt whatever administrative regulations are found necessary to accomplish the purpose of this chapter. Effective: July 15, 1988. History: Amended 1988 Ky. Acts ch. 253, sec. 1 and ch. 374, sec. 1, effective July 15, 1988. -- Amended 1980 Ky. Acts ch. 62, sec. 2. -- Amended 1978 Ky. Acts ch. 332, sec. 1, effective June 17, 1978. -- Amended 1974 Ky. Acts ch. 74, Art. III, sec. 13(7). -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 59. -- Amended 1966 Ky. Acts ch. 4, sec. 2. -- Amended 1964 Ky. Acts ch. 61, sec. 2. -- Created 1954 Ky. Acts ch. 8, sec. 2. Legislative Research Commission Note (1988). This section was amended by two 1988 Acts which do not appear to be in conflict and have been compiled together. KRS Sec. 350.024 RECLAMATION COMMISSION -- MEMBERSHIP -- MEETINGS -- COMPENSATION. [Repealed.] History: Repealed 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 93, effective January 1, 1973. -- Amended 1972 Ky. Acts ch. 270, sec. 2. -- Amended 1966 Ky. Acts ch. 4, sec. 3. -- Created 1960 Ky. Acts ch. 143, sec. 1. KRS Sec. 350.025 PROVISIONS INCONSISTENT WITH FEDERAL LAW UNENFORCEABLE Any provision of this chapter which is set forth as inconsistent with the provisions of Public Law 95-87 by the Secretary of the Interior pursuant to Section 505(b) of that act shall be deemed superseded by federal law and shall thereafter be unenforceable by the Commonwealth of Kentucky. History: Created 1980 Ky. Acts ch. 209, sec. 5. Legislative Research Commission Note. The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register. KRS Sec. 350.026 TRANSFER OF RECORDS, PROPERTY, PERSONNEL, FUNDS. [Repealed.] History: Repealed 1966 Ky. Acts ch. 255, sec. 283. -- Created 1960 Ky. Acts ch. 143, sec. 2. KRS Sec. 350.028 POWERS OF CABINET {{ SMCRA Secs. 518, 521(a) }} The Natural Resources and Environmental Protection Cabinet shall have and exercise the following authority and powers: (1) To adopt administrative regulations after a hearing pertaining to surface coal mining operations including strip mining and the surface effects of underground mining to accomplish the purposes of this chapter; (2) To conduct investigations and hearings under provisions of this chapter or regulations adopted pursuant thereto; (3) To issue, after an opportunity for a hearing, suspension orders or show cause orders requiring an operator, permittee, or person to adopt remedial measures that are necessary to comply with this chapter and administrative regulations adopted pursuant thereto. Failure to attend a hearing shall be excused for good cause shown; (4) To issue, after an opportunity for a hearing, a final order imposing civil penalties for violations of this chapter or directing the Kentucky Bureau of Surface Mining Reclamation and Enforcement to revoke a permit, when the requirements set forth by the notice of noncompliance, order of cessation, or an order of the cabinet requiring remedial measures have not been complied with according to the terms therein. When the secretary or his authorized representatives determines that a pattern of violations of any requirements of this chapter or any permit conditions required by this chapter exists or has existed, and if the secretary or his authorized representatives also find that the violations are caused by the unwarranted failure of the permittee to comply with any requirements of this chapter or any permit conditions or that the violations are willfully caused by the permittee, the secretary or his authorized representative shall forthwith issue an order to the permittee to show cause as to why the permit should not be suspended or revoked and shall provide an opportunity for a hearing. Failure to attend a hearing shall be excused for good cause shown; and (5) To adopt administrative regulations to allow the state to administer and enforce the initial and permanent regulatory programs of Public Law 95-87, "Surface Mining Control and Reclamation Act of 1977." Administrative regulations shall be no more stringent than required by that law. Nothing in this chapter shall be construed as superseding, amending, modifying, or repealing any of the acts listed in Section 702(a) of Public Law 95-87, or any administrative regulation promulgated thereunder. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 304, sec. 3, effective July 14, 1992; and ch. 429, sec. 2, effective July 14, 1992. -- Amended 1982 Ky. Acts ch. 283, sec. 2, effective April 2, 1982. -- Amended 1980 Ky. Acts ch. 62, sec. 3, effective March 21, 1980. - - Amended 1978 Ky. Acts ch. 330, sec. 15, effective May 3, 1978. -- Amended 1974 Ky. Acts ch. 74, Art. III, sec. 13(2), (7). -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 60. -- Amended 1966 Ky. Acts ch. 4, sec. 4. -- Created 1962 Ky. Acts ch. 105, sec. 2 (1), (2), (3), and (5). Legislative Research Commission Note. (7/14/92) This section was amended by two 1992 Acts which do not appear to be in conflict and have been compiled together. KRS Sec. 350.0281 MORATORIUM ON REGULATIONS -- EXCEPTIONS. [Repealed.] History: Repealed 1992 Ky. Acts ch. 120, sec. 4, effective July 14, 1992; Created 1986 Ky. Acts ch. 148, sec. 1, effective July 15, 1986. KRS Sec. 350.0285 NOTIFICATION TO TRANSPORTATION CABINET OF PERMITS FOR MINE OPENINGS AND OF MINE CLOSINGS UNDER AUTHORITY OF CABINET The cabinet shall notify the secretary of the Transportation Cabinet every six (6) months of permits issued for mine openings and mine closings under the authority of the cabinet. Effective: July 15, 1994 History: Created 1994 Ky. Acts ch. 488, sec. 1, effective July 15, 1994. KRS Sec. 350.029 REGULATIONS TO IMPLEMENT INTERSTATE MINING COMPACT -- ADOPTION -- LIMITATIONS The cabinet is hereby authorized and empowered to adopt, after public hearing, reasonable regulations in order to formulate and establish effective programs for the control of surface soil disturbance in connection with mining as defined by the Interstate Mining Compact. Such regulations shall follow the general standards established in Article III of the Interstate Mining Compact. The cabinet shall have the authority to adopt such regulations prior to the effective date of the Interstate Mining Compact and irrespective of whether the state becomes a member or withdraws from membership in the Interstate Mining Compact. Nothing in this section shall be construed to grant the cabinet additional authority in regulating the strip mining of coal or clay, and the authority granted to the cabinet by this section shall be separate from the powers of the cabinet already enacted relating to the strip mining of coal and clay. History: Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 61. -- Created 1966 Ky. Acts ch. 23, sec. 79. KRS Sec. 350.030 STRIP MINING AND RECLAMATION COMMISSION. [Repealed.] History: Repealed 1956 (1st Extra. Sess.) Ky. Acts ch. 7, Art. VII, sec. 9. -- Created 1954 Ky. Acts ch. 8, sec. 3. KRS Sec. 350.0301 PETITION CHALLENGING DETERMINATION OF CABINET -- CONDUCT OF HEARINGS -- ADMINISTRATIVE REGULATIONS {{ SMCRA Sec. 525 }} (1) Any person who considers himself aggrieved by any determination made by the cabinet under this chapter may file, in accordance with administrative regulations promulgated by the cabinet under the provisions of this chapter, a petition alleging that the determination is contrary to law or fact and is injurious to him, the grounds and reasons therefor, and demand a hearing. Unless the cabinet considers that the petition is frivolous, it shall serve written notice of the petition on each person named therein and shall schedule a hearing before the cabinet not less than twenty-one (21) days after the date of the notice unless the person complained against waives in writing the twenty- one (21) day period. The right to demand a hearing pursuant to this section shall be limited to a period of thirty (30) days after the petitioner has had actual notice of the determination complained of, or could reasonably have had notice. However, the petitioner shall have the opportunity to contest the validity of an underlying notice of noncompliance in a timely-filed demand for hearing to contest the validity of a cessation order issued for a failure to abate the violation contained in the notice of noncompliance. (2) All hearings, other than conferences, under this chapter shall be held before a hearing officer, duly qualified to practice law in the Commonwealth of Kentucky, who may be a full-time employee of the cabinet, serve by contract, or be paid on a per diem basis in the discretion of the cabinet. After the conclusion of the hearing, the hearing officer shall within thirty (30) days make to the secretary a report and recommended order which shall contain a finding of fact and a conclusion of law. If the secretary finds upon written request of the hearing officer that additional time is needed, the secretary may grant an extension. The hearing officer shall serve a copy of his report and recommended order upon all parties of record and their attorney of record to the proceeding, and they shall be granted the right to file exceptions thereto within fourteen (14) days of service. Any party may submit a written response to exceptions within twenty-one (21) days of service of the report and recommended order. Exceptions and responses not timely filed shall be noted and made a part of the record but shall not be considered by the secretary in making a final order. The secretary shall consider the report, exceptions, and recommended order and decide the case. The decision shall be served by mail upon all parties and their attorney of record and shall be a final order of the cabinet. (3) Any party to a hearing under this subsection may be represented by counsel, may make oral or written argument, offer testimony, cross-examine witnesses, or take any combination of these actions. The record of the hearing shall be open to public inspection, and copies thereof shall be made available to any person upon payment of the actual cost of reproducing the original. (4) All hearings conducted pursuant to this chapter shall be open to the public. (5) The cabinet shall promulgate administrative regulations, pursuant to the provisions set forth in this chapter, establishing formal and informal hearing procedures by which any hearing shall, upon the written request of the operator, permittee, or person, be held in the county or regional office where the surface coal mining operation is located, before an impartial hearing officer who is independent of any prosecutorial functions of the cabinet. The administrative regulations shall provide for the conduct of hearings and investigation of any matter relating to the regulation of surface coal mining and reclamation operations; provide for the assessment and payment of civil penalties, including the placement of proposed civil penalty assessments into an escrow account prior to a formal hearing on the amount of the assessment; and provide for a waiver of the placement of the proposed civil penalties into escrow for those individuals who demonstrate with substantial evidence an inability to pay the proposed civil penalties into escrow. The procedures developed pursuant to this subsection shall provide that the hearings be held in the most expeditious manner possible within the time constraints established under this chapter. No person who presided at a prior hearing shall either preside at a subsequent hearing or participate in any further decision or subsequent administrative appeal in the same matter. (6) The cabinet may promulgate administrative regulations pursuant to the provisions set forth in this chapter establishing procedures for the holding of administrative conferences needed to implement the provisions of this chapter. Effective: July 15, 1996 History: Amended 1996 Ky. Acts ch. 210, sec. 1, effective July 15, 1996. -- Amended 1994 Ky. Acts ch. 178, sec. 2, effective July 15, 1994. Created 1992 Ky. Acts ch. 304, sec. 1, effective July 14, 1992. KRS Sec. 350.0305 APPEAL OF CABINET'S ORDER {{ SMCRA Sec. 526(a) }} Any party aggrieved by a final order resulting from the hearing conducted pursuant to KRS 350.0301(1) on cabinet determinations may appeal to the Franklin Circuit Court; except that judicial review of a final order resulting from a hearing on the issuance of a notice of noncompliance, the issuance of an order for cessation and immediate compliance, the assessment of civil penalties, or a bond forfeiture shall be in accordance with KRS 350.032. The appeal shall be taken within thirty (30) days from the rendition of the final order. The party or parties affected by the final order shall file in the Circuit Court a petition which states fully the grounds upon which a review is sought and shall assign all errors relied on. The cabinet shall be named respondent, and service shall be had on the cabinet. Summons shall issue upon the petition directing the cabinet to send its entire record, properly bound, to the clerk of the Circuit Court after certifying that the record is its entire original record or a true copy. The record, when filed, shall become official and be considered by the Circuit Court on the review. After the case has been properly docketed in the Circuit Court, any party directly affected by the issues on appeal, may, upon notice to the parties, upon proper showing, and in the discretion of the court, be permitted to intervene. The court shall review the entire record and the findings and final order of the cabinet. No objection to the final order shall be considered by the court unless it was raised before the cabinet or there were reasonable grounds for failure to do so. The findings of the cabinet as to the facts, if supported by substantial evidence, shall be conclusive. The commencement of the proceedings under this section shall not operate as a stay of the cabinet's final order unless specifically ordered by the court. Appeals to the Court of Appeals from orders of the Circuit Court shall be taken in the manner provided in the Kentucky Rules of Civil Procedure. Effective: July 15, 1994 History: Amended 1994 Ky. Acts ch. 178, sec. 3, effective July 15, 1994. Created 1992 Ky. Acts ch. 304, sec. 2, effective July 14, 1992. KRS Sec. 350.032 ENFORCEMENT OF SUBPOENAS -- JUDICIAL REVIEW OF FINAL ORDERS -- FORFEITURE OF PERFORMANCE BOND -- TEMPORARY RELIEF PENDING FINAL DETERMINATION {{ SMCRA Secs. 503(a), 514, 519, 526 }} (1) In case of refusal to obey a subpoena issued to any person, any Circuit Court of competent jurisdiction, upon application by any party, may issue to that person an order requiring him to appear before the cabinet, there to produce documentary evidence if so ordered or to give evidence touching the matter under investigation or in question; and any failure to obey the order of the court may be punished by the court as a contempt of court. (2) Any person aggrieved by a final order of the cabinet resulting from a hearing on the issuance of a notice of noncompliance, the issuance of an order for cessation and immediate compliance, the assessment of civil penalties, or a bond forfeiture may obtain a review of the order by filing in the Franklin Circuit Court or the Circuit Court of the county within which the mine is located, within thirty (30) days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part, provided that a surety on a performance bond shall not file such petition until it has complied with subsection (3) of this section. A copy of the petition shall be forthwith served upon the cabinet, and thereupon the cabinet shall certify and file in court a copy of the record before the cabinet, including therein all pleadings, orders, documentary exhibits and the stenographic transcript of the testimony taken before the cabinet. When these have been filed, the court shall have exclusive jurisdiction to affirm, modify, enforce or set aside the order, in whole or in part. No objection to the order may be considered by the court unless it was urged before the cabinet or there were reasonable grounds for failure to do so. The findings of the cabinet as to the facts, if supported by substantial evidence, are conclusive. If either party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for failure to adduce the evidence in the hearings before the cabinet, the court may order that additional evidence be taken before the cabinet in such manner and upon such condition as the court may consider proper. The cabinet may modify its findings as to the facts, by reason of the additional evidence so taken; and it shall file any modified or new findings with the court, which if supported by substantial evidence shall be conclusive, and any recommendation for the modification or setting aside of the original order. The commencement of the proceedings under this section does not, unless specifically ordered by the court, operate as a stay of the cabinet's order. An appeal may be taken from the judgment of the Circuit Court to the Court of Appeals on the same terms and conditions as an appeal is taken in any civil action. (3) Where the cabinet has ordered forfeiture of a performance bond, the surety shall forward to the cabinet by certified mail a cashier's check for the required amount within seven (7) business days from the effective date of the order. The cabinet shall establish an interest-bearing escrow account and shall deposit therein the full amount of the forfeiture rendered by the surety. The amount shall continue to be held by the cabinet until completion of judicial review as authorized in subsection (2) of this section. If the final decision following the review reverses the order of the secretary of the cabinet, the cabinet shall within thirty (30) days of receipt of such order, refund to the surety the appropriate amount plus all interest accrued from the date of deposit to the date of the final order. (4) In the case of a proceeding to review any order or decision issued by the secretary under this chapter pertaining to surface coal mining operations, the court may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate pending final determination of the proceedings if: (a) All parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief; (b) The person requesting the relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding; and (c) The relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources. Effective: July 15, 1994 History: Amended 1994 Ky. Acts ch. 178, sec. 4, effective July 15, 1994. -- Amended 1986 Ky. Acts ch. 331, sec. 47, effective July 15, 1986; and ch. 400, sec. 1, effective July 15, l986. -- Amended 1984 Ky. Acts ch. 145, sec. 1, effective March 28, 1984; and ch. 257, sec. 1, effective July 13, 1984. -- Amended 1982 Ky. Acts ch. 192, sec. 2, effective July 15, 1982. -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 62. -- Created 1962 Ky. Acts ch. 105, sec. 2 (4) and (6). KRS Sec. 350.035 DEPARTMENT FOR SURFACE MINING RECLAMATION AND ENFORCEMENT -- APPOINTMENT OF SPECIAL INVESTIGATIONS OFFICERS (1) There is established within the cabinet a Department for Surface Mining Reclamation and Enforcement which shall be headed by a commissioner appointed by the secretary with the approval of the Governor as required by KRS 12.050. The secretary may divide the department into a Division of Permits, Division of Standards and Specifications, Division of Operations and Enforcement, an Office of Special Investigation, and any other offices or divisions as the secretary may deem necessary to perform the functions, powers, and duties of the department, subject to the provisions of KRS Chapter 12. (2) The secretary shall have the power to appoint not more than fifteen (15) special investigations officers who shall be peace officers except for purposes of KRS 527.020. Such peace officers shall be responsible for enforcement of the provisions of this chapter relating to criminal offenses. Effective: July 15, 1982. History: Amended 1982 Ky. Acts ch. 150, sec. 2, effective July 15, 1982. -- Amended 1980 Ky. Acts ch. 377, sec. 2, effective May 18, 1982. -- Amended 1978 Ky. Acts ch. 332, sec. 2, effective June 17, 1978. -- Amended 1972 (1st. Extra. Sess.) Ky. Acts ch. 3, sec. 63.. -- Amended 1966 Ky. Acts ch. 4, sec. 5. -- Created 1956 (1st Extra. Sess.) Ky. Acts ch. 7, Art. VII, sec. 3. KRS Sec. 350.040 DIRECTOR OF STRIP MINING AND RECLAMATION -- EMPLOYMENT OF PERSONNEL -- UTILIZATION OF OTHER STATE SERVICES AND FACILITIES. [Repealed.] History: Repealed 1956 (1st Extra. Sess.) Ky. Acts ch. 7, Art. VII, sec. 9. -- Created 1954 Ky. Acts ch. 8, sec. 4. KRS Sec. 350.045 TRANSFER OF RECORDS, PROPERTY, PERSONNEL AND FUNDS TO DEPARTMENT OF CONSERVATION. [Repealed.] History: Repealed 1960 Ky. Acts ch. 143, sec. 7. -- Created 1956 (1st Extra. Sess.) Ky. Acts ch. 7, Art. VIII, sec. 4. KRS Sec. 350.050 POWERS OF CABINET {{ SMCRA Secs. 511, 517, 521 }} The Natural Resources and Environmental Protection Cabinet under the supervision of the secretary of the Natural Resources and Environmental Protection Cabinet shall have and exercise the following authority and powers: (1) To exercise general supervision and administration and enforcement of this chapter and all rules and regulations and orders promulgated thereunder; (2) To encourage and conduct investigations, research, experiments, and demonstrations, and to collect and disseminate information relating to strip mining and reclamation of lands and waters affected by strip mining; (3) To adopt, without hearing, internal procedures with respect to the filing of reports, the issuance of permits, and other matters of procedure and administration; (4) To examine and pass upon all plans and specifications submitted by the permit applicant for the method of operation, backfilling, grading, and for the reclamation of the area of land affected by his operation; (5) To make investigations or inspections which may be deemed necessary to insure compliance with any provision of this chapter; (6) To order, through personnel of the cabinet, the suspension of any permit for failure to comply with any of the provisions of this chapter or any regulations adopted pursuant thereto; (7) To order, through personnel of the cabinet, the stopping of any operation that is started without first having secured a permit as required by this chapter. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 3, July 14, 1992. -- Amended 1978 Ky. Acts ch. 332, sec. 3, effective June 17, 1978. -- Amended 1974 Ky. Acts ch. 74, Art. III, sec. 13(2),(7) -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 64. Amended 1966 Ky. Acts ch. 4, sec. 6. -- Amended 1962 Ky. Acts ch. 105, sec. 3. -- Amended 1956, (1st Extra. Sess.) Ky. Acts ch. 7, Art. VII, sec. 5. -- Created 1954 Ky. Acts ch. 8, sec. 5. KRS Sec. 350.052 POWERS, QUALIFICATIONS, AND TRAINING OF SPECIAL INVESTIGATIONS OFFICERS (1) Any officer appointed by the secretary pursuant to KRS 350.035(2) shall be empowered to arrest, without a warrant, any person detected by him to be violating the provisions of this chapter which constitute criminal offenses. (2) Any officer appointed by the secretary pursuant to KRS 350.035(2) shall have the authority to use physical force, which he believes necessary, in accomplishing any lawful arrest for a criminal offense; however, deadly physical force may be used only when the officer is authorized to make an arrest, the arrest is for a felony involving the threatened use of physical force likely to cause death or serious physical injury, and the officer believes that the person to be arrested is likely to endanger human life unless arrested without delay. (3) Any officer appointed by the secretary pursuant to KRS 350.035(2) shall meet the qualifications set forth in KRS 61.300(1), (4), and (5) and shall prior to appointment: (a) Successfully complete not fewer than eighty (80) hours of training in a program provided by the Department of Criminal Justice Training, Justice Cabinet, and dealing comprehensively with the subjects of criminal law and the law of arrest, search and seizure; and (b) Demonstrate in written and practical examinations approved by the Department of Criminal Justice Training, Justice Cabinet, knowledge of and proficiency in firearms safety, range firing, the moral and legal aspects of firearms use, and first aid. Effective: July 14, 2000 History: Amended 2000 Ky. Acts ch. 416, sec. 2, effective July 14, 2000. -- Amended 1986 Ky. Acts ch. 64, sec. 7, effective July 15, 1986. -- Created 1982 Ky. Acts ch. 150, sec. 5, effective July 15, 1982. KRS Sec. 350.053 SEIZURE AND SALE OF EQUIPMENT -- RIGHTS OF OWNER OR LIEN HOLDER (1) Authorized representatives of the Office of Special Investigations of the cabinet and all peace officers may seize and take possession of all instrumentalities willfully and knowingly used in the mining of coal without a permit in violation of KRS 350.060(1)(a) or willfully and knowingly used for the removal of more than twenty-five (25) tons of coal during coal exploration in violation of KRS 350.057(3). (2) Upon conviction of any person for the willful and knowing violation of KRS 350.057(3)(a) or 350.060(1)(a), the court shall order the machinery, trucks, and earth moving equipment, and materials used in furtherance of the crime forfeited and sold at public auction. Proceeds from the sale shall be deposited in the "illegal mining and conveyance reclamation fund" established by KRS 350.054(1). (3) Upon conviction of any person of a violation of KRS 350.057(3)(b) or 350.060(1)(b), the court shall order the instrumentalities used in furtherance of the crime forfeited and sold at public auction. Proceeds from the sale shall be deposited in the illegal mining and conveyance reclamation fund established by KRS 350.054(1). (4) All property seized under subsection (1) of this section shall be subject to the right of any owner or lienor whose lien is valid and recorded to intervene and upon trial or special hearing held for that purpose before the court establish his rights in the property by proving that the property was used in violation of KRS 350.057(3) or 350.060(1) without the knowledge, consent, or approval of the owner or lienor. If the owner of the property does so prove, the court may order the property restored to him. If the lienor so proves, the court may order a sale of the property at public auction with the lienor receiving from the sale the amount of his outstanding lien. However, the cabinet shall deliver any seized property to a lienor whose claim has been established by order of a court of competent jurisdiction, upon payment to the cabinet of the difference between the fair market value of the property so seized and the recorded claim of the lienor. (5) If the person charged with a violation of KRS 350.057(3) or 350.060(1) is acquitted, all property seized pursuant to subsection (1) of this section shall be ordered returned to the rightful owner unless previously returned under subsection (4) of this section. (6) All expenses associated with the seizure, storing, and, if applicable, sale of the property shall be the responsibility upon conviction of the person charged with a violation of KRS 350.057(3) or 350.060(1). (7) All peace officers and other public officers or officials having knowledge of the lawful owner or claimant of property subject to forfeiture shall report the same to the court before the act of forfeiture occurs. Effective: July 13, 1990. History: Amended 1990 Ky. Acts ch. 205, sec. 2, effective July 13, 1990; and ch. 212, sec. 1, effective July 13, 1990. -- Created 1982 Ky. Acts ch. 150, sec. 6, effective July 15, 1982. Legislative Research Commission Note (7/13/90) This section was amended by two 1990 Acts which do not appear to be in conflict and have been compiled together. KRS Sec. 350.054 ILLEGAL MINING AND CONVEYANCE RECLAMATION FUND -- PURPOSE - - CONTROL (1) There is established a special fund to be known as the "Illegal Mining and Conveyance Reclamation Fund" which shall be under the control of the Natural Resources and Environmental Protection Cabinet. (2) The fund shall consist of all moneys from the sale or forfeiture of all instrumentalities used in violation of KRS 350.057(3) or 350.060(1) as provided for in KRS 350.053. (3) Moneys in the fund may be used for the following purposes: (a) To reclaim lands mined without a permit or authorization, as required by KRS 350.057 or 350.060(1), and not eligible for the abandoned mine lands reclamation fund; and (b) To defray all expenses associated with the seizure, storing, and sale of forfeited property pursuant to KRS 350.053. (4) Moneys contained in the illegal mining and conveyance reclamation fund shall be deemed a trust and agency account and shall not lapse. (5) The cabinet shall have access to and control of the moneys held in the illegal mining and conveyance reclamation fund, but shall expend the moneys only for the purposes set forth in subsection (3) of this section. Effective: July 13, 1990. History: Amended 1990 Ky. Acts ch. 212, sec. 2, effective July 13, 1990. -- Created 1982 Ky. Acts ch. 150, sec. 7, effective July 15, 1982. KRS Sec. 350.055 PUBLICATION OF NOTICE OF INTENTION TO MINE BY PERMIT APPLICANT -- NOTIFICATION OF VARIOUS LOCAL GOVERNMENT BODIES BY CABINET {{ SMCRA Secs. 507(e), 513 }} (1) n applicant for a permit required by KRS 350.060 shall publish public notice of his filing of an application for that permit. The publication shall be made by advertisement in a newspaper of largest bona fide circulation, according to the definition in KRS 424.110 to 424.120, in the county wherein the proposed mining site is located. (2) The applicant shall publish the notice of intention to mine in the newspaper identified in subsection (1) at least once a week for four (4) consecutive weeks beginning at the time of submission of an application for a surface coal mining operation permit, pursuant to regulations promulgated by the cabinet. (3) The public notice of the filing of an application shall be entitled "Notice of Intention to Mine" and shall be in a manner and form prescribed by the cabinet and shall include, though not be limited to, the following: (a) The name and address of the applicant; (b) The location, ownership, and boundaries of the proposed mining site. (4) A copy of the newspaper advertisement of the applicant's "Notice of Intention to Mine" shall be filed with the cabinet and made a part of the complete application within a reasonable time after the last date of publication. (5) The cabinet shall notify various local government bodies, planning agencies, and sewage and water treatment authorities and water companies in the locality of the proposed operation notifying them of the applicant's intention to mine the land area as set forth in the notice of intention to mine, and identifying the permit application number assigned by the cabinet and where a copy of the permit application may be inspected. The secretary shall promulgate regulations specifying the manner in which the agencies may comment on the application. Any comments put forward pursuant to this section shall immediately be forwarded by the cabinet to the applicant and shall be made available to the public at the same places as the permit application is available. Effective: July 14, 1992. History: Amended 1992 Ky. Acts ch. 429, sec. 4, effective July 14, 1992. -- Amended 1980 Ky. Acts ch. 62, sec. 4; and ch. 377, sec. 1 -- Created 1976 Ky. Acts ch. 322, sec. 1. KRS Sec. 350.057 COAL EXPLORATION OPERATIONS {{ SMCRA Sec. 512(d) }} (1) The secretary of the Natural Resources and Environmental Protection Cabinet shall promulgate regulations for the permitting and performance of coal exploration operations which substantially disturb the natural land surface. The regulations shall include at a minimum provisions for giving notice of intention to explore including a description of the area to be explored and the period of supposed exploration and provisions for reclamation, as required by this chapter, of all land disturbed in the exploration. (2) Any requirements of public access to records set forth in the Kentucky Revised Statutes to the contrary notwithstanding, the secretary shall order that confidential trade secrets or privileged commercial or financial information in the possession of the cabinet or pursuant to a coal exploration permit remain confidential. (3)(a) No person or operator shall remove more than twenty-five (25) tons of coal by coal exploration operations without first obtaining a coal exploration permit from the cabinet. (b) No person or operator conducting coal exploration operations in which more than twenty-five (25) tons of coal are removed shall knowingly and willfully receive, transport, sell, convey, exchange, transfer, trade, donate, deliver, or otherwise convert to a commercial use any coal extracted during the course of the operations, except with the prior written approval of the cabinet for the purpose of testing or determining the properties of the coal. (4) All persons or operators conducting operations pursuant to this section shall be subject to the applicable provisions of KRS 350.990. Effective: July 13, 1990. History: Amended 1990 Ky. Acts ch. 205, sec. 3, effective July 13, 1990; and ch. 212, sec. 3, effective July 13, 1990. -- Created 1980 Ky. Acts ch. 62, sec. 6. Legislative Research Commission Note (7/13/90) This section was amended by two 1990 Acts which do not appear to be in conflict and have been compiled together. KRS Sec. 350.060 PERMIT REQUIREMENT -- CONTENTS OF APPLICATION -- FEE -- BOND -- EXEMPTIONS -- ADMINISTRATIVE REGULATIONS -- SUCCESSIVE RENEWAL -- AUGER MINING OF PREVIOUSLY MINED AREA -- EXEMPT OPERATIONS {{ SMCRA Secs. 506, 507, 509, 523(c), 528; 30 CFR 773.17, 777.17, 778.13, 778.14, 785.20, 843.11 }} (1)(a) No person shall engage in surface coal mining and reclamation operations without having first obtained from the cabinet a permit designating the area of land affected by the operation. Permits shall authorize the permittee to engage in surface coal mining and reclamation operations upon the area of land described in his application for a period not to exceed five (5) years. However, if an applicant demonstrates that a specified longer term is reasonably needed to obtain necessary financing for equipment and the opening of the operation and if the application is full and complete for the specified longer term, the cabinet may grant a permit for the longer term. No mining shall be permitted beyond the time period obligations of the initial or extended bond coverage. (b) Subject to the provisions of KRS 350.010(1) and (2), no person shall knowingly and willfully receive, transport, sell, convey, transfer, trade, exchange, donate, purchase, deliver, or in any way derive benefit from coal removed from any surface mining operation which does not have a permit as required under this section. (2) No permit or revision application shall be approved unless the application affirmatively demonstrates, and the cabinet finds in writing on the basis of the information set forth in the application or from information otherwise available, that the permit application is accurate and complete and that all the requirements of this chapter have been complied with. (3) A person desiring a permit to engage in surface coal mining operations shall file an application which shall state: (a) The location and area of land to be affected by the operation, with a description of access to the area from the nearest public highways; (b) The owner or owners of the surface of the area of land to be affected by the permit and the owner or owners of all surface area adjacent to any part of the affected area; (c) The owner or owners of the coal to be mined; (d) The source of the applicant's legal right to mine the coal on the land affected by the permit; (e) The permanent and temporary post office addresses of the applicant, which shall be updated immediately if changed at any point prior to final bond release; (f) Whether the applicant or any person, partnership, or corporation associated with the applicant holds or has held any other permits under this chapter, and an identification of the permits; (g) The names and addresses of every officer, partner, director, or person performing a function similar to a director of the applicant, together with the names and addresses of any individual owning of record ten percent (10%) or more of any class of voting stock of the applicant, and whether the applicant or any person is subject to any of the provisions of subsection (3) of KRS 350.130 and he shall so certify. The permittee shall submit updates of this information as changes occur or as otherwise provided by administrative regulation; however, failure to submit updated information shall constitute a violation of this chapter only upon the permittee's refusal or failure to timely submit the information to the cabinet upon request. Upon receipt of updated information satisfactory to the cabinet, the cabinet shall promptly update its computer system containing the information; (h) A listing of any violations of this chapter, Public Law 95-87, and any law, rule, or regulation in effect for the protection of air or water resources incurred by the applicant in connection with any surface coal mining and reclamation operation during the three (3) year period prior to the date of an application. The list shall indicate the final resolution of the violations; and (i) Whether the area of land to be affected by the operation has been previously mined and is in compliance with current reclamation standards, and, if not, identify the needed reclamation work. (4) The application for a permit shall be accompanied by an official document, and an affidavit attesting to the document's authenticity, which will evidence what particular business entity the applicant is, whether a foreign or domestic corporation, a partnership, an entity doing business as another, or, if sole proprietorship, an affidavit so stating. (5) The application for a permit shall be accompanied by copies, in numbers satisfactory to the cabinet, of a United States Geological Survey topographic map or other map acceptable to the cabinet on which the applicant has indicated the location of the operation, the course which would be taken by drainage from the operation to the stream or streams to which the drainage would normally flow, the name of the applicant and date, and the name of the person who located the operation on the map. (6) The application for a permit shall be accompanied by copies, in numbers satisfactory to the cabinet, of an enlarged United States Geological Survey topographic map or other map acceptable to the cabinet meeting the requirements of paragraphs (a) to (i) of this subsection. The map shall: (a) Be prepared and certified by a professional engineer registered under the provisions of KRS Chapter 322. The certification shall be in the form as provided in subsection (8) of this section, except that the engineer shall not be required to certify the true ownership of property under paragraph (d) of this subsection; (b) Identify the area to correspond with the application; (c) Show adjacent deep mining; (d) Show the boundaries of surface properties and names of owners of the affected area and adjacent to any part of the affected area; (e) Be of a scale of 1:24,000 or larger; (f) Show the names and locations of all streams, creeks, or other bodies of public water, roads, buildings, cemeteries, oil and gas wells, and utility lines on the area of land affected and within five hundred (500) feet of the area; (g) Show by appropriate markings the boundaries of the area of land affected, the cropline of the seam or deposit of coal to be mined, and the total number of acres involved in the area of land affected; (h) Show the date on which the map was prepared, the north point, and the quadrangle name; and (i) Show the drainage plan on and away from the area of land affected. The plan shall indicate the directional flow of water, constructed drainways, natural waterways used for drainage, and the streams or tributaries receiving the discharge. (7) Each application shall include a determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site, with respect to the hydrologic regime, quantity and quality of water in surface and groundwater systems, including the dissolved and suspended solids under seasonal flow conditions, and the collection of sufficient data for the mine site and surrounding areas so that an assessment can be made by the cabinet of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area and particularly upon water availability. This determination shall not be required until the time hydrologic information on the general area prior to mining is made available from an appropriate federal or state agency. The permit shall not be approved until the information is available and is incorporated into the application. (8) All certifications required by this chapter to be made by professional engineers shall be done in the form prescribed by the cabinet and shall be reasonably specific as to the work being certified. The cabinet may reject any document or map as incomplete if it is not properly certified. (9) In addition to the information and maps required above, each application for a permit shall be accompanied by detailed plans or proposals showing the method of operation; the manner, time, and distance for backfilling; grading work; and a reclamation plan for the affected area, which proposals shall meet the requirements of this chapter and administrative regulations adopted pursuant thereto. (10) The application for a permit shall be accompanied by proof that the applicant has public liability insurance coverage satisfactory to the cabinet for the surface mining and reclamation operations for which the permit is sought, or proof that the applicant has satisfied self-insurance requirements as provided by administrative regulations of the cabinet. The coverage shall be maintained in full force and effect during the terms of the permit and any permit renewal, and until reclamation operations are completed. (11) A basic fee set by administrative regulation, and bearing a reasonable relationship to the cost of processing the permit application but not to exceed three hundred seventy-five dollars ($ 375), plus a fee set by administrative regulation but not to exceed seventy-five dollars ($ 75), for each acre or fraction thereof of the area of land to be affected by the operation, shall be paid before the permit required in this section shall be issued; provided that if the cabinet approves an incremental bonding plan submitted by the applicant, the acreage fees may be paid in increments and at times corresponding to the approved plan. The applicant shall file with the cabinet a bond payable to the Commonwealth of Kentucky with surety satisfactory to the cabinet in the sum to be determined by the cabinet for each acre or fraction thereof of the area of land affected, with a minimum bond of ten thousand dollars ($ 10,000), conditioned upon the faithful performance of the requirements set forth in this chapter and of the administrative regulations of the cabinet. The cabinet shall forfeit the entire amount of the bond for the permit area or increment in the event of forfeiture. In determining the amount of the bond, the cabinet shall take into consideration the character and nature of the overburden; the future suitable use of the land involved; the cost of backfilling, grading, and reclamation to be required; and the probable difficulty of reclamation, giving consideration to such factors as topography, geology, hydrology, and revegetation potential. The bond amount shall initially be computed to be sufficient to assure completion of reclamation if the work had to be performed by the cabinet in the event of forfeiture. The cabinet shall promulgate administrative regulations setting forth bonding requirements including, but not limited to, requirements for the amount, duration, release, and forfeiture of bonds. (12) Surface coal mining and reclamation operations which affected two (2) acres or less, as defined by administrative regulations of the cabinet, which were conducted pursuant to two (2)-acre-or-less permits issued by the cabinet, which were commenced on or before June 5, 1987, and on which mining ceased on or before November 7, 1987, shall be exempt from the requirements of this chapter, except as follows. Reclamation of the operations shall be accomplished in accordance with administrative regulations promulgated by the cabinet for operations of two (2) acres or less. The cabinet shall not require that the highwalls left by the operations be eliminated. Bond shall be maintained until reclamation is successfully completed. All procedural provisions and the penalty provisions of KRS 350.990 shall apply to operations conducted pursuant to this subsection. The cabinet shall enforce this subsection consistent with this chapter, except that the cabinet shall not issue orders requiring cessation of operations for mere failure to abate a violation. (13) The cabinet shall promulgate administrative regulations for the permitting of operations with surface effects of underground mining and other surface coal mining and reclamation operations consistent with this section. The cabinet shall recognize the distinct differences between the surface effects of underground mining and strip mining, as also provided in KRS 350.151, in promulgating permitting requirements for these operations; provided, that the cabinet shall require that all the areas overlying underground workings be permitted but that the areas overlying underground workings not affected by operations and facilities occurring on the surface shall not be subject to the payment of acreage fees or bond requirements of subsection (11) of this section, KRS 350.070, or KRS 350.151. (14) Any valid permit issued pursuant to this chapter shall carry with it the right of successive renewal upon expiration with respect to areas within the boundaries of the existing permit. An applicant for renewal of a permit shall pay a basic fee set by regulation, not to exceed three hundred seventy-five dollars ($ 375). The holders of the permit may apply for renewal and the renewal shall be issued, provided that on application for renewal the burden shall be on the opponents of renewal, subsequent to the fulfillment of the public notice requirements of this chapter, unless it is established and written findings by the cabinet are made that: (a) The terms and conditions of the existing permit are not being satisfactorily met; (b) The present surface coal mining and reclamation operation is not in compliance with the environmental protection standards of this chapter; (c) The renewal requested substantially jeopardizes the applicant's continuing responsibility on existing permit areas; (d) The applicant has not provided evidence that the performance bond in effect for the operation will continue in full force and effect for any renewal requested in the application as well as any additional bond the cabinet might require; or (e) Any additional revised or updated information required by the cabinet has not been provided. Prior to the approval of any renewal of permit, the cabinet shall provide notice to the appropriate public authorities. (15) If an application for renewal of a valid permit includes a proposal to extend the mining operation beyond the boundaries authorized in the existing permit, the portion of the application for renewal of a valid permit which addresses any new areas of surface disturbance shall be subject to the full standards applicable to new applications under this chapter. (16) Any permit renewal shall be for a term not to exceed the period of the original permit. Application for permit renewal shall be made at least one hundred twenty (120) days prior to the expiration of the valid permit. However, if a permit has expired or if a permit renewal application has not been timely filed, and the operator or permittee desires to continue the surface coal mining operation, the cabinet shall forthwith cause a notice of noncompliance to be issued. The notice of noncompliance shall be deemed to have been complied with, and the permit may be renewed, if the cabinet receives a permit renewal application within thirty (30) days of the receipt of the notice of noncompliance. Upon the submittal of a permit renewal application, the operator or permittee shall be deemed to have timely filed the permit renewal application and shall be entitled to continue, under the terms of the expired permit, the surface coal mining operation, pending the issuance of the permit renewal. Failure to comply with the remedial measures of the notice of noncompliance shall result in the cessation of the surface coal mining operation. (17) Notwithstanding any of the provisions of this section, a permit shall terminate if the permittee has not commenced the surface coal mining operations covered by the permit within three (3) years of the issuance of the permit. However, the cabinet may grant reasonable extensions of time upon a showing that the extensions are necessary by reason of litigation precluding commencement of operations, or threatening substantial economic loss to the permittee, or by reason of conditions beyond the control and without the fault or negligence of the permittee. With respect to coal to be mined for use in a synthetic fuel facility or specific major electric generating facility, the permittee shall be deemed to have commenced surface mining operations at the time the construction of the synthetic fuel or generating facility is initiated. (18) Each application for a permit or revision for auger mining on a previously mined area shall contain information to describe the area to be affected, to show that the proposed method of operation will result in stable post-mining conditions, and reduce or eliminate adverse environmental conditions created by previous mining activities. If the cabinet determines that the affected area cannot be stabilized and reclaimed subsequent to augering or that the operation will result in an adverse impact to the proposed or adjacent area, the permit or revision shall not be issued. The cabinet shall, consistent with all applicable requirements of this chapter, issue a permit or revision if the applicant demonstrates that the proposed coal mining operations will provide for reduction or elimination of the highwall, or reduction or abatement of adverse impacts resulting from past mining activities, or stabilization or enhancement of a previously mined area. The cabinet shall insure that all reasonably available spoil material will be used to backfill the highwall to the extent practical and feasible; provided, however, that in all cases the holes be properly sealed and backfilled to a minimum of four (4) feet above the coal seam being mined. (19) All operations involving the loading of coal which do not separate the coal from its impurities, and which are not located at or near the mine site, shall be exempt from the requirements of this chapter. Effective: July 15, 1998 History: Amended 1998 Ky. Acts ch. 382, sec. 1, effective July 15, 1998. -- Amended 1992 Ky. Acts ch. 429, sec. 5, effective July 14, 1992. -- Amended 1990 Ky. Acts ch. 210, sec. 1, effective July 13, 1990; and ch. 212, sec. 4, effective July 13, 1990. - - Amended 1988 Ky. Acts ch. 294, sec. 1, effective July 15, 1988; ch. 415, sec. 2, effective July 15, 1988; and ch. 417, sec. 1, effective July 15, 1988. -- Amended 1986 Ky. Acts ch. 448, sec. 1, effective July 15, 1986. -- Amended 1984 Ky. Acts ch. 111, sec. 144, effective July 13, 1984, ch. 145, sec. 2, effective March 28, 1984; and ch. 358, sec. 1, effective July 13, 1984. -- Amended 1982 Ky. Acts ch. 266, sec. 10, effective July 15, 1982 and ch. 283, sec. 3, effective April 2, 1982. Amended 1980 Ky. Acts ch. 62, sec. 5, effective March 21, 1980; and ch. 377, sec. 3, effective March 21, 1980. -- Amended 1978 Ky. Acts ch. 330, sec. 23, effective May 3, 1978; ch. 332, sec. 4, effective June 17, 1978. -- Amended 1976 Ky. Acts ch. 271, sec. 1. -- Amended 1974 Ky. Acts ch. 69, sec. 1; ch. 74, Art. III, sec. 13(7); ch. 258, sec. 1; and ch. 373, sec. 2. -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 65. -- Amended 1972 Ky. Acts ch. 270, sec. 3. -- Amended 1966 Ky. Acts ch. 4, sec. 7. -- Amended 1964 Ky. Acts ch. 61, sec. 3. -- Amended 1962 Ky. Acts ch. 105, sec. 4.-- Amended 1960 Ky. Acts ch. 143, sec. 4. Amended 1956 (1st Extra. Sess.) Ky. Acts ch. 7, Art. VII, sec. 6. -- Created 1954 Ky. Acts ch. 8, sec. 6.. KRS Sec. 350.062 DATA INCLUDED IN PERMIT APPLICATION -- CONTEMPORANEOUS RECLAMATION -- SUBSOIL AUGMENTATION -- CABINET TO COMPILE HYDROLOGIC DATA -- ABANDONED LAND PROJECTS CLASSIFIED AS GOVERNMENT FINANCED CONSTRUCTION {{ SMCRA Sec. 507(b) }} (1) Applicants for permits may submit such hydrologic information on the general area prior to mining as may be made available by the cabinet pursuant to subsection (7) of this section and employ the information in any reasonable mathematical water modeling formulation, logical extrapolation from existing data on the same or similar watershed, or other reasonable predictive techniques which regionalize and synthesize historical, geologic, and hydrologic parameters on the general area to determine surface ground water conditions, together with site specific data in determining the probable hydrologic consequences of the proposed mining. (2) Climatological data, average seasonable precipitation, average direction and velocity of prevailing winds, or seasonable temperature ranges shall be submitted by the applicant only when requested by the cabinet on a site-by- site basis. (3) A statement of the result of test borings or core samplings from the permit area, including logs of the drill holes; the thickness of the coal seam found; an analysis of the chemical properties of the coal; the sulfur content of any coal seam to be disturbed; chemical analysis of potentially acid or toxic forming sections of the overburden; or chemical analysis of the stratum lying immediately underneath the coal seam to be mined, may be waived by the cabinet with respect to the specific application by a written determination that the requirements are unnecessary. (4) Applicants may submit fish and wildlife information within the proposed mine plan area and adjacent areas in the form of published data or data otherwise available from state and federal fish and wildlife management, conservation, or regulatory agencies and site-specific information unless the cabinet requires the information based on reasonable grounds to believe that the available data are inaccurate. (5) The cabinet shall provide in its regulations that notwithstanding a permittee's detailed estimated timetable for the reclamation plan in the application, as long as the permittee or operator is in compliance with the contemporaneous reclamation requirements of its regulations, a failure to adhere to the timetable shall not be an independent basis for a violation. (6) The cabinet shall provide in its regulations establishing environmental protection performance standards that a permittee may augment subsoil strata with chemical or organic soil supplement materials produced on site or elsewhere for the purpose of complying with the topsoiling requirements of this chapter if topsoil is of insufficient quality or of poor quality for sustaining vegetation. (7) The cabinet shall compile by September 1, 1980, available background hydrologic information concerning the general areas in which surface coal mining has or may be conducted in the Commonwealth as may be available in standard published form, research reports, studies or data compiled by other state or federal agencies including state- supported colleges and universities, the cabinet's own files, including, at a minimum, quality and quantity of water in surface and ground water systems; minimum, maximum, and average discharge quantities at peak and critical low flow and seasonal variations; dissolved and suspended solids, acidity, pH, iron, and manganese under seasonal flow conditions; and any other background hydrologic information required by the cabinet concerning the hydrologic regime of a general area prior to mining for purposes of making a determination of the probable consequences of the mining; and shall make available to an operator the data and information concerning general areas within ten (10) days of a request in writing. (8) The cabinet shall classify all abandoned mine land program reclamation projects as government financed construction and not surface coal mining operations and the extraction of coal as an incidental part of the projects shall be exempt from the requirements of this chapter and regulations promulgated pursuant thereto. (9) The cabinet shall not arbitrarily deny or unreasonably delay any permit application based upon the information required in this section if the registered professional engineer or geologist or other qualified person has utilized or developed a procedure or analytical method that differs from departmental technical guidelines; provided, that the registered professional engineer or geologist or other qualified person shall design a sampling and testing program based on all available information and on a site-specific basis. The reasons for denial shall be given in writing and shall be reasonably specific. The requirements contained in subsection (3) of this section may be waived for locations where the cabinet determines that adequate information is already available to the cabinet. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 6. effective July 14, 1992. -- Amended 1982 Ky. Acts ch. 283, sec. 4, effective April 2, 1992. -- Created 1980 Ky. Acts ch. 209, sec. 2. KRS Sec. 350.063 DUTY OF APPLICANT TO MEET AND CONFER WITH WELL OPERATOR IF PERMIT WILL DISTURB ACCESS ROADS Prior to the issuance of a permit, if the operation will disturb any roads used as access to an oil or gas well or other oil and gas facility, the permit applicant shall certify that he has met and conferred with, or offered to meet and confer with, the well operator as to the disturbance. Effective: July 14, 1992. History: Created 1992 Ky. Acts ch. 348, sec. 1, effective July 14, 1992. KRS Sec. 350.064 RECLAMATION BOND TO BE FILED BY APPLICANT {{ SMCRA Sec. 523(c); 30 CFR 800.11 }} (1) After a surface coal mining and reclamation permit application has been approved but before the permit is issued, the applicant shall file with the regulatory authority, on a form prescribed and furnished by the regulatory authority, a reclamation bond for performance payable, as appropriate, to the state, and conditional upon faithful performance of all the requirements of this chapter and the permit. The reclamation bond shall cover that area of land within the permit area upon which the applicant will initiate and conduct surface coal mining and reclamation operations within the initial term of the permit. As succeeding increments of surface coal mining and reclamation operations are to be initiated and conducted within the permit area, the permittee shall file with the cabinet an additional bond or bonds to cover the increments in accordance with this section. (2) The cabinet may accept the reclamation bond of the applicant itself without separate surety when the applicant demonstrates to the satisfaction of the cabinet the existence of a suitable agent to receive service of process and a history of financial solvency and continuous operation sufficient for authorization to self-insure or bond the amount or in lieu of the establishment of a bonding program, as set forth in this section; the cabinet may approve an alternative system that will achieve the objectives and purposes of the bonding program pursuant to this section. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 7, effective July 14, 1992. -- Amended 1988 Ky. Acts ch. 417, sec. 2, effective July 15, 1988. -- Created 1980 Ky. Acts ch. 209, sec. 4. KRS Sec. 350.066 BOND POSTING NOT REQUIRED UNTIL PERMIT APPLICATION APPROVED {{ SMCRA Sec. 509 }} All bonds required to be filed in accordance with KRS 350.060 and 350.064 shall not be required to be filed until the applicant for the permit has been notified in writing by the cabinet that the application for the permit has been approved, with the exception of the bond. Effective: March 9, 1982. History: Created 1982 Ky. Acts ch. 55, sec. 1, effective March 9, 1982. KRS Sec. 350.068 CANCELLATION OF SURETY {{ SMCRA Sec. 509 }} A surety upon receipt of a copy of a notice of noncompliance for failure to maintain contemporaneous reclamation issued to its insured, may notify the insured by certified mail, return receipt requested, that surety on any area disturbed after thirty (30) days from the effective date of the surety's notice may be refused unless the violation is abated. A copy of such notice shall be sent by certified mail, return receipt requested, to the cabinet, and shall become effective upon approval by the cabinet. Within thirty (30) days of receipt of a notice of cancellation, the cabinet shall either accept a suitable substitute bond for the canceled area or shall amend the permit to delete the unbonded acreage or shall revoke the permit for lack of a bond. Proof of the abatement shall be documented by notice to the surety from the cabinet. Nothing contained herein shall be construed to relieve the surety of its liability for areas disturbed within the thirty (30) day notice period. The surety shall remain obligated for the full extent of the bond for reclamation of all areas disturbed prior to the cabinet's approval of the cancellation. Effective: July 13, 1984. History: Created 1984 Ky. Acts ch. 281, sec. 1, effective July 13, 1984. KRS Sec. 350.069 STRINGENCY OF REGULATIONS To make the state program no more stringent than the federal program, effective October 1, 1984, the cabinet shall, within thirty (30) days of publication of final rulemaking in the Federal Register, promulgate those regulations that are consistent with and no less effective than the federal regulations promulgated pursuant to Public Law 95-87, the Surface Mining Control and Reclamation Act of 1977 and by having such regulations in full force and effect within sixty (60) days thereafter unless a public hearing is requested. In the event a public hearing is held, the regulations shall be implemented within thirty (30) days after the hearing. Effective: July 13, 1984. History: Created 1984 Ky. Acts ch. 190, sec. 1, effective July 13, 1984. KRS Sec. 350.070 PERMIT REVISIONS {{ SMCRA Secs. 509(a), (e), 511; 30 CFR 774.13, 777.17 }} (1) Any extensions of the area covered by the permit, except incidental boundary revisions, shall be made by application for another permit or an amendment to the permit. However, extensions of the underground mining area that are not incidental boundary revisions and do not include planned subsidence or other new proposed surface disturbances may be made by application for a major revision to the permit. (2) For an amendment, the permittee shall file an application, map, and revised reclamation plan in the same form and with the same content as required for an original application under this chapter. He shall pay a basic fee set by regulation and bearing a reasonable relationship to the cost of processing the permit application, not to exceed three hundred seventy-five dollars ($ 375), plus a fee set by regulation, not to exceed seventy-five dollars ($ 75), for each acre or fraction of an acre for the increase requested. He shall file with the cabinet a supplemental bond in the amount to be determined under the provisions of KRS 350.060(11) for each acre or fraction of an acre of the increase approved. This application shall be subject to all of the same requirements as an original application, including, but not limited to, the same public notice, review, and issuance or denial provisions. (3) If the cabinet approves a reduction in the acreage covered by the permit, it shall release the bond for each acre reduced, but the bond shall not be reduced below ten thousand dollars ($ 10,000). If the cabinet approves a reduction in acreage, it shall transfer the acreage fee for each acre reduced to acreage fees for subsequent permit applications by the permittee. (4) The cabinet shall promulgate regulations specifying the permit application information requirements and procedures, including notice and hearing, which shall apply depending on the scale or extent of a permit revision. Any revision which proposes significant alterations in the reclamation plan shall be subject to the notice and hearing requirements as set forth in the regulations of the cabinet. The applicant for a revision shall pay a basic fee set by regulation, not to exceed three hundred seventy-five dollars ($ 375), plus a fee set by regulation not to exceed seventy-five dollars ($ 75), for each acre or fraction of an acre included in an incidental boundary revision. (5) Incidental boundary revisions shall be deemed minor revisions if they: (a) Do not exceed ten percent (10%) of the initial permit acreage; (b) Are contiguous with the permit acreage; (c) Are within the same watershed as the initial permit acreage; (d) Are required for an orderly continuation of the mining operation; (e) Cover the same coal seam or seams as in the permit; (f) Would only involve lands for which the hydrologic and geologic data and the probable hydrologic consequences analysis contained in the permit are applicable to the proposed incidental boundary revision; (g) Would not involve properties designated as unsuitable for mining, or any properties eligible for listing on the National Register of Historic Places; (h) Would not involve any of the special categories of mining listed in 30 C.F.R. Part 785 including, but not limited to, prime farmland and coal preparation plants, unless the approved permit already includes the relevant category; (i) Would not constitute a change in the method of mining; and (j) Would be reclaimed in conformity with the initial reclamation plan. (6) For the purpose of this section, the maximum acreage allowed to be added by an incidental boundary revision shall be as follows: (a) Surface operations shall be allowed up to twenty (20) acres; (b) Underground operations shall be allowed up to ten percent (10%) of the original permitted acreage of the underground workings or twenty (20) acres, whichever is less; (c) Surface disturbances of underground mines including, but not limited to, face-up areas and haul roads, shall be allowed up to twenty (20) acres; (d) The cumulative acreage added by successive revisions shall not exceed the above limitations. Effective: July 15, 1994 History: Amended 1994 Ky. Acts ch. 301, sec. 1, effective July 15, 1994. Amended 1992 Ky. Acts ch. 429, sec. 8, effective July 14, 1992. -- Amended 1990 Ky. Acts ch. 210, sec. 2, effective July 13, 1990; and ch. 232, sec. 1, effective July 13, 1990; and ch. 308, sec. 1, effective July 13, 1990. -- Amended 1980 Ky. Acts ch. 62, sec. 7, -- Amended 1978 Ky. Acts ch. 330, sec. 24, effective May 3, 1978; and ch. 332, sec. 5, effective July 17, 1978. -- Amended 1974 Ky. Acts ch. 69, sec. 2 and ch. 74, Art. III, sec. 13(7). -- Amended 1972 Ky. Acts ch. 270, sec. 4. -- Amended 1966 Ky. Acts ch. 4, sec. 11. -- Amended 1962 Ky. Acts ch. 105, sec. 5. - - Created 1954 Ky. Acts ch. 8, sec. 7. KRS Sec. 350.075 SPECIAL PERMITS FOR REMINING OF PREVIOUSLY AFFECTED AREAS -- ADMINISTRATIVE REGULATIONS (1) In order to bring about a more desirable land use or promote the public interest and the environment, the cabinet may, at its discretion, issue special permits for the remining of previously affected areas, including but not limited to, secondary coal recovery operations, such as coal extraction from coal refuse piles and coal recovery from slurry ponds. Such permits may provide for alternate requirements for revegetation, topsoil, bonding, premining data collection requirements, water quality requirements where there are pre-existing pollutional discharges resulting from previous mining, and other provisions which may encourage remining and secondary coal recovery. (2) The cabinet is hereby authorized to promulgate administrative regulations as necessary in order to implement the provisions of this section. (3) The cabinet shall, on or before August 1, 1986, submit to the Federal Office of Surface Mining proposed regulations to amend the state program to provide for such permits. Effective: July 15, 1986. History: Created 1986 Ky. Acts ch. 266, sec. 1, effective July 15, 1986. KRS Sec. 350.080 PROCEDURE FOR OBTAINING APPROVAL OF OTHER MINING OPERATIONS -- DEFERRAL OF RECLAMATION A permittee may conduct other mining operations from premises covered by a strip mining permit with approval of the cabinet, subject to the provisions of KRS Chapters 351 and 352. In applying to the cabinet for the approval, he shall furnish the cabinet with a revised copy of the map of the area on which his permit was based on which he shall designate other mining locations, the location of outside haulageways, and other parts of the area necessary to the conduct of other mining operations. The cabinet may authorize the permittee to defer the reclamation of the area covered by the operations during such time as other bona fide mining operations are carried out. The bond covering that area shall remain in effect until reclamation of it has been completed by the permittee under a plan approved by the cabinet. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 9, effective July 14, 1992. -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 66. -- Created 1954 Ky. Acts ch. 8, sec. 8. KRS Sec. 350.085 DENIAL OF PERMITS AND OPERATIONS -- DELETION OF LAND AREAS {{ SMCRA Secs. 510, 511, 522(e); 30 CFR 773.14, 773.28 }} (1) No application for a permit and no operation shall be approved or allowed by the cabinet if there is found on the basis of the information set forth in the application that the requirements of this chapter or administrative regulations will not be observed or that there is not probable cause to believe that the proposed method of operation, backfilling, grading, or reclamation of the affected area can be carried out consistent with the purpose of this chapter. (2) If the cabinet finds that the overburden on any part of the area of land described in the application for a permit is such that experience in the Commonwealth with a similar type of operation upon land with similar overburden shows that substantial deposition of sediment in stream beds, landslides, or acid water pollution cannot feasibly be prevented, the cabinet may delete the part of the land described in the application upon which that overburden exists. (3) Subject to valid existing rights, no surface coal mining operations except those which existed on or before August 4, 1977, shall be permitted within three hundred (300) feet from any occupied dwelling unless waived by the owner, nor within three hundred (300) feet of any public building, school, church, community, or institutional building, public park, or within one hundred (100) feet of a cemetery. The cabinet shall not issue a permit if it finds that the operation will constitute a hazard to or do physical damage to a dwelling house, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, or other public property. The cabinet shall delete the areas from the permit application or operation. (4) Subject to valid existing rights, no surface coal mining operations except those which existed on or before August 4, 1977, shall be permitted within one hundred (100) feet of the outside right-of-way line of any public road, except where mine access roads or haulage roads join the right-of-way line. The cabinet shall permit the roads to be relocated or the area affected to lie within one hundred (100) feet of the road if, after public notice and opportunity for public hearing in the locality, a written finding is made that the interest of the public and the affected land owner will be protected, and shall not approve the application for a permit where the surface coal mining operation will adversely affect a wild river established pursuant to KRS Chapter 146, a state park or place listed on the National Register of Historic Places unless adequate screening and other measures as approved by the cabinet are incorporated into the permit application. (5) Subject to valid existing rights, no surface coal mining operations except those which existed on August 4, 1977, shall be permitted on any privately owned lands within the boundaries of units of the National Park System, the National Wildlife Refuge Systems, 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 and national recreation areas designated by Act of Congress. (6) If based on the information provided pursuant to KRS 350.060(3)(h) and other relevant information, the cabinet finds that any surface coal mining and reclamation operation owned or controlled by the applicant is currently in violation of this chapter or other requirements listed pursuant to KRS 350.060(3)(h), the cabinet shall not issue the permit or permit renewal until the applicant submits proof satisfactory to the cabinet that the violation has been corrected or is in the process of being corrected. It shall be grounds to deny a permit or permit renewal if the cabinet, based on any information available to it and after a hearing, makes a finding that the applicant, or the operator specified in the application has demonstrated a pattern of willful violations pursuant to KRS 350.130(3). (7) The prohibition of subsection (6) of this section shall not apply to a permit applicant with a violation resulting from an unanticipated event or condition at a surface coal mining operation on lands eligible for and under a permit for remining held by the applicant. As used in this subsection, the term "violation" has the same meaning as the term has under subsection (6). The authority of this subsection shall terminate on September 30, 2004. Effective: July 15, 1994 History: Amended 1994 Ky. Acts ch. 172, sec. 2, effective July 15, 1994. -- Amended 1990 Ky. Acts ch. 210, sec. 3, effective July 13, 1990. -- Amended 1980 Ky. Acts ch. 62, sec. 8. -- Amended 1978 Ky. Acts ch. 330, sec. 16, effective May 3, 1978. Amended 1974 Ky. Acts ch. 69, sec. 3 and ch. 74, Art. III, sec. 13(7). -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 67. -- Created 1966 Ky. Acts ch. 4, sec. 10. KRS Sec. 350.090 METHOD OF OPERATION, GRADING, BACKFILLING, AND RECLAMATION PLANS -- FUNDING FROM RECLAMATION DEVELOPMENT FUND -- WASTE MATERIALS IN PERMIT AREA ONLY {{ SMCRA Secs. 507(d), 508, 510, 514, 515(b), 516(b)(7) }} (1) Under the provisions of this chapter and administrative regulations adopted by the cabinet, a permittee shall prepare and the permittee or operator shall carry out a method of operation, plan of grading and backfilling, and a reclamation plan for the area of land affected by his operation. In developing a method of operation, and the plans of backfilling, grading, and reclamation, all measures shall be taken to eliminate damages to members of the public, their real and personal property, public roads, streams, and all other public property from soil erosion, rolling stones and overburden, water pollution, and hazards dangerous to life and property. The permit application containing the required plans and other information as required shall be submitted to the cabinet and, except for applications or renewals submitted in compliance with KRS 350.060(2), the cabinet shall notify the applicant by certified mail, return receipt requested, within sixty-five (65) cumulative working days after receipt of a complete application whether it is acceptable. If applicable notice, hearing, and conference procedures prevent a decision from being issued within the sixty-five (65) cumulative working day period, the cabinet shall have additional reasonable time to issue its decision, not to exceed twenty (20) days from the completion of the notice, hearing, and conference procedures. If the permit application is not acceptable, the cabinet shall set forth the reasons for which the application or plans are not acceptable and it may propose modifications, delete areas, or reject the entire application. If the applicant disagrees with the decision of the cabinet, he may, by written notice, request a hearing conducted by the cabinet in the manner provided by KRS 350.0305. The cabinet shall notify the applicant by certified mail, return receipt requested, within twenty (20) days after the hearing of its decision. Any person aggrieved by a final order of the cabinet may appeal through the courts as set forth in KRS 350.0305. (2) If the permittee desires to seek funds from the reclamation development fund to develop an economic development unit during reclamation, the permittee shall submit, along with the reclamation plan, a reclamation development plan outlining the reclamation development project and showing how it will conform with the reclamation standards of this chapter. (3) No permittee, operator, or person shall throw, dump, pile, or permit the dumping, piling, or throwing, or otherwise placing any overburden, stones, rocks, coal, particles of coal, earth, soil, dirt, debris, trees, wood, logs, or any other materials or substances of any kind or nature beyond or outside of the area of land which is under permit and for which bond has been posted under KRS 350.060 or place these materials in such a way that normal erosion or slides brought about by natural physical causes will permit the materials to go beyond or outside of the area of land which is under permit and for which bond has been posted under KRS 350.060. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 304, sec. 4, effective July 14, 1992; and ch. 429, sec. 10, effective July 14, 1992. -- Amended 1990 Ky. Acts ch. 206, sec. 1, effective July 13, 1990. -- Amended 1988 Ky. Acts ch. 383, sec. 19, effective July 15, 1988. - - Amended 1984 Ky. Acts ch. 145, sec. 6, effective March 28, 1984. -- Amended 1980 Ky. Acts ch. 62, sec. 9 and ch. 114, sec. 98, effective July 15, 1980. Amended 1978 Ky. Acts ch. 330, sec. 17, effective May 3, 1978. -- Amended 1976 Ky. Acts ch. 341, sec. 1. -- Amended 1974 Ky. Acts ch. 315, sec. 74. Amended 1974 Ky. Acts ch. 74, Art. III, sec. 13(7); and ch. 315, sec. 74. -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 68. -- Amended 1966 Ky. Acts ch. 4, sec. 12. - - Amended 1964 Ky. Acts ch. 61, sec. 4. -- Amended 1960 Ky. Acts ch. 143, sec. 5. -- Created 1954 Ky. Acts ch. 8, sec. 9. Legislative Research Commission Note (7/14/92). This section was amended by two 1992 Acts. Where those Acts are not in conflict, they have been compiled together. Where a conflict exists, the Act which was last enacted by the General Assembly prevails, pursuant to KRS 446.250. KRS Sec. 350.093 TIME AND DISTANCE LIMITS ON RECLAMATION EFFORTS -- DEFERMENTS -- DRIFT OR OTHER UNDERGROUND MINING -- VARIANCES -- RELEASE OF BOND {{ SMCRA Secs. 509, 515, 519; 30 CFR 800.13, 800.40 }} (1) As determined by administrative regulations of the cabinet, time and distance limits shall be established requiring backfilling, grading, and planting to be kept current, so that all reclamation efforts proceed in an environmentally sound manner and as contemporaneously as practicable under regulations promulgated by the cabinet. All backfilling and grading shall be completed before necessary equipment is moved from the operation; except that the cabinet may for good cause approve the moving of equipment before all backfilling and grading is completed. (2)(a) The cabinet may allow a permittee to defer the time criteria of contemporaneous reclamation requirements on specified areas if the permittee can demonstrate that the deferment is necessary to address at least one (1) of the following: 1. Adverse condition including weather, labor, and other conditions clearly beyond the permittee's control; 2. Other bona fide mining operations carried out on a strip mined area, pursuant to KRS 350.080; or 3. Coal marketing problems. (b) Application for a deferment pursuant to this section shall be in the form prescribed by the cabinet. The applicant shall have the burden of establishing the need for the deferment. The applicant for the deferment shall demonstrate that reclamation on the site is contemporaneous as of the date of the request for deferment and that distance requirements for contemporaneous reclamation will be met during the period of the deferment. Approval of the deferment request shall be made in writing. The approval shall state that the deferment is justified and that no environmental damage will occur during the period of deferment. Reclamation deferments may be approved for a period reasonably related to the specified conditions justifying the deferment, but the aggregate deferral period shall not exceed thirty (30) months. The deferral shall not extend beyond the expiration date of the permit. The cabinet shall periodically reexamine and update the amount of the bond on the permit area so that the amount of the bond is sufficient to assure completion of reclamation if the work had to be performed by the cabinet in the event of forfeiture. (3) If the permittee or operator desires to conduct drift mining or other underground mining upon the premises or use the openings for haulageways or other lawful purposes, the permittee or operator may designate locations to be used for purposes at which places it will not be necessary to backfill until the drift or other underground mining or other use is completed, during which time the bond on file for that portion of the operation shall not be released. That portion of the locations shall be described and designated on the map attached thereto. If the permittee or operator wishes to combine surface operations with underground mining operations to assure maximum practical recovery of coal resources, the cabinet may grant a variance, pursuant to regulations promulgated by the cabinet, for specific areas within the reclamation plan from the requirement that reclamation efforts proceed pursuant to subsection (1) of this section so as to permit underground mining operations prior to reclamation. (4) The cabinet may release in whole or in part the reclamation bond or deposit for a particular operation if the cabinet is satisfied that the reclamation covered by the bond or deposit or portion thereof has been accomplished as required by this chapter. These bond releases shall be made in accordance with the following schedule: (a) When the permittee completes the backfilling, regrading, and drainage control of a bonded area in accordance with his approved reclamation plan, the release of sixty percent (60%) of the bond or collateral for the applicable permit area. (b) After revegetation has been established on the regraded mined lands in accordance with the approved reclamation plan, additional bond or collateral for the applicable permit shall be released. When determining the amount of bond to be released after successful revegetation has been established, the cabinet shall retain that amount of the bond for the revegetated area which would be sufficient for a third party to cover the cost of reestablishing revegetation; this amount shall be retained for the period specified for permittee responsibility for reestablishing revegetation. No part of the bond or deposit shall be released under this subsection as long as the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of requirements set by this chapter or until soil productivity for prime farm lands has returned to levels of yield equivalent to those of unmined land of the same soil type in the surrounding area under equivalent management practices as determined from soil surveys that may be required to be included in the permit application. If a sedimentation pond is to be retained as a permanent impoundment, the portion of bond may be released under this subsection so long as provisions for sound future maintenance by the permittee or the landowner have been made with the cabinet. (c) When the permittee has completed successfully all surface coal mining and reclamation activities, the release of the remaining portion of the bond, or collateral, but not before the expiration of the period specified for permittee responsibility. No bond shall be fully released until all reclamation requirements of this chapter are fully met. (5) Upon satisfying the requirements of subsections (4)(a), (b), or (c) of this section, the permittee may file, or the cabinet shall initiate, an application for total or partial bond release. (a) A permittee shall have the right to begin public advertisement of its request for bond release at the time it files its request for the release. The cabinet may undertake, at permittee expense, public advertisement of any cabinet initiated bond release. If the cabinet initiates a bond release pursuant to this subsection but chooses not to advertise the release pursuant to this section, and the permittee does not advertise the request for the release within the time schedules established by this subsection, the bond release application shall be denied. All public advertisements of bond release applications, whether authorized by the permittee or the cabinet, shall begin within sixty (60) days after either the filing of a bond release request by the permittee or the initiation of a bond release by the cabinet. Public advertisement shall occur at least once a week for four (4) successive weeks in a newspaper of general circulation in the locality of the surface coal mining operation. (b) The public advertisement required by this subsection shall include: the permit number and permit approval date, notification of the precise location of the land affected, the number of acres, the type and amount of the bond filed and the portion sought to be released, the type and appropriate dates of reclamation work performed, a description of the results achieved as they relate to the operator's approved reclamation plan, and the name and address of the cabinet to which written comments, objections, or requests for public hearings and informal conferences on the specific bond release may be submitted. Proof of advertisement shall be placed with the bond release application within thirty (30) days after the advertisement. (c) Within thirty (30) days of filing of any bond release request, the permittee shall submit copies of letters which it has sent to adjoining property owners, local governmental bodies, planning agencies, sewage and water treatment authorities, and water companies in the locality in which the surface coal mining and reclamation operation took place, notifying them of the intention to seek release from the bond. For bond releases initiated by the cabinet, the cabinet shall undertake the notification requirements set forth in this subsection. (d) Upon the filing of an application for bond release by a permittee, or the initiation of the release by the cabinet, the cabinet shall notify, within thirty (30) days of the filing or initiation, the municipality where the surface coal mining operation is located, pursuant to regulations promulgated by the cabinet. (6) Upon the filing of any partial or total bond release request by a permittee, the cabinet shall within thirty (30) days conduct an inspection and evaluation of the reclamation work involved. The evaluation shall consider, among other things, the degree of difficulty to complete any remaining reclamation, whether pollution of surface or subsurface water is occurring, the probability of continuance of future occurrence of the pollution, and the estimated cost of abating the pollution. (7) The cabinet shall notify the permittee in writing of its decision to release or not to release all or part of the performance bond or deposit within five (5) days following receipt of proof of public advertisement as required in subsection (5)(b), or the end of the thirty (30) day public comment period, whichever is later, if no public hearing is held pursuant to subsection (10) of this section; and if there has been a public hearing held pursuant to subsection (10) of this section, within thirty (30) days thereafter. (8) If the cabinet disapproves the application for release of the bond or portion thereof, the cabinet shall notify the permittee, in writing, stating the reasons for disapproval and recommending corrective actions necessary to serve the release and allowing opportunity for a public hearing. The cabinet shall not disapprove an application for release of a surety bond or a bond secured by a letter of credit as provided for under subsection (4)(a) or (b) of this section or under the partial release provisions applicable to an interim permit, or take any action to forfeit the surety bond, or bond secured by letter of credit, solely upon the permittee's failure to pay penalties or fines, if applicable reclamation requirements for the requested release have been fully met. The cabinet shall not continue to hold under the interim or permanent program remaining surety bond proceeds or the remaining bond secured by a letter of credit where a forfeiture has occurred solely as a result of a failure to pay penalties or fines, if the reclamation requirements of this chapter have been fully met. (9) The bond liability of the permittee shall include only those actions which the permittee is obliged to take under the permit, including completion of the reclamation plan. Actions of third parties which are beyond the control and influence of the permittee and for which the permittee is not responsible under the permit shall not be covered by the bond. (10) Any person having a valid legal interest which might be adversely affected by release of the bond, and the responsible officer or head of any governmental agency so designated by cabinet regulations, shall have the right to file written objections to the proposed bond release with the cabinet, and to request a hearing in accordance with procedural regulations promulgated by the cabinet. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 11, effective July 14, 1992. Amended 1990 Ky. Acts ch. 210, sec. 4, effective July 13, 1990. -- Amended 1988 Ky. Acts ch. 209, sec. 1, effective July 15, 1988; and ch. 294, sec. 2, effective July 15, 1988. -- Amended 1984 Ky. Acts ch. 145, sec. 3, effective March 28, 1984. Amended 1982 Ky. Acts ch. 283, sec. 5, effective April 2, 1982. -- Amended 1980 Ky. Acts ch. 62, sec. 10, effective March 21, 1980. -- Amended 1978 Ky. Acts ch. 33, sec. 18, effective May 3, 1978. -- Amended 1976 Ky. Acts ch. 341, sec. 2, Amended 1974 Ky. Acts ch. 69, sec. 4; ch.74, Art. III, sec. 13(7); and ch. 399, sec. 1, -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 69. -- Created 1966 Ky. Acts ch. 4, sec. 8. KRS Sec. 350.095 RESPONSIBILITY FOR SUCCESSFUL REVEGETATION -- CABINET ADMINISTRATIVE REGULATIONS {{ SMCRA Sec. 515(b) }} (1) The permittee shall assume responsibility for successful revegetation as required in KRS 350.435 for a period of five (5) full years after the last year in which augmented seeding, fertilizing, irrigation, or other work occurs. The cabinet shall promulgate administrative regulations which shall include provisions to assure compliance with KRS 350.435, 350.093, and other applicable provisions. The cabinet may by administrative regulation set forth different requirements when it approves a long-term, intensive, agricultural postmining land use as part of the mining and reclamation plan. (2) On lands eligible for remining, the permittee shall assume the responsibility for successful revegetation for a period of two (2) full years after the last year in which augmented seeding, fertilizing, irrigation, or other work occurs in order to assure compliance with the applicable standards. The authority of this subsection shall terminate on September 30, 2004. Effective: July 15, 1994 History: Amended 1994 Ky. Acts ch. 172, sec. 3, effective July 15, 1994. Amended 1992 Ky. Acts ch. 429, sec. 12, effective July 14, 1992. -- Amended 1980 Ky. Acts ch. 62, sec. 11. -- Amended 1978 Ky. Acts ch. 330, sec. 19, effective May 3, 1978. - - Amended 1974 Ky. Acts ch. 74, Art. III, sec. 13(7). -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 70. -- Created 1966 Ky. Acts ch. 4, sec. 9 KRS Sec. 350.100 TIME FOR COMMENCEMENT AND COMPLETION OF RECLAMATION -- DEFERRED PLANTING (1) It shall be the duty of a permittee and operator to commence the reclamation of the area of land affected by the operation as contemporaneously as practicable after the beginning of operations on that area in accordance with plans previously approved by the cabinet. The grading, backfilling, and water management practices that are approved in the plans shall be kept current with the operation as defined by regulations of the cabinet and no permit renewal or revision shall be issued, if, under the regulations of the cabinet, these practices are not current; (2) If an investigation indicates that planting so as to provide vegetative cover of an area of land affected by surface coal mining may not be successful, consistent with subsection (1), the cabinet may authorize the permittee or person to defer the planting until the soil and/or weather has become suitable for that purpose. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 13, effective July 14, 1992. Amended 1980 Ky. Acts ch. 62, sec. 12. -- Amended 1974 Ky. Acts ch. 74, Art. III, sec. 13(7). -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 71. -- Amended 1966 Ky. Acts ch. 4, sec. 15. -- Amended 1964 Ky. Acts ch. 61, sec. 5. -- Amended 1962 Ky. Acts ch. 105, sec. 6. -- Created 1954 Ky. Acts ch. 8, sec. 10. KRS Sec. 350.110 PARTIAL RELEASE OF BOND WHEN PLANTING DEFERRED. [Repealed.] History: Repealed 1990 Ky. Acts ch. 210, sec. 14, effective July 13, 1990. -- Amended 62, sec. 13. -- Amended 1978 Ky. Acts ch. 105, sec. 1, effective June 17, 1978. Amended 1976 Ky. Acts ch. 341, sec. 3. -- Amended 1974 Ky. Acts ch. 69, sec. 5; and ch. 74, Art. III, sec. 13(7). -- Amended 1966 Ky. Acts ch. 4, sec. 17. Amended 1962 Ky. Acts ch. 105, sec. 8. -- Created 1954 Ky. Acts ch. 8, sec. 11. KRS Sec. 350.113 PLANTING REPORT (1) When the planting of a permit area is completed, the permittee shall file a planting report with the cabinet on a form to be prescribed and furnished by the cabinet, giving the following information: (a) Identification of the operation; (b) The type of planting or seeding, including mixtures and amounts; (c) The date of planting or seeding; (d) The area of land planted; (e) Other relevant information as the cabinet may require. (2) All planting reports shall be certified. (3) Inspection and evaluation for vegetative cover shall be made as soon as it is possible to determine if a satisfactory stand has been established. In no instance shall this vegetative cover check be made until just prior to or after the completion of the first growing season. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 14, July 14, 1992. -- Amended 1990 Ky. Acts ch. 210, sec. 5, effective July 13, 1990. -- Amended 1978 Ky. Acts ch. 332, sec. 6, effective June 17, 1978. -- Amended 1974 Ky. Acts ch. 74, Art. III, sec. 13(7). -- Created 1966 Ky. Acts ch. 4, sec. 16. KRS Sec. 350.117 OWNERSHIP OF TREES, SHRUBS, AND PLANTS All trees, shrubs, grasses, and legumes required by this chapter and regulations to be planted or seeded on the area of land affected shall become the property of the landowner, unless the permittee and the landowner agree otherwise. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 15, July 14, 1992. -- Created 1966 Ky. Acts ch. 4, sec. 14. KRS Sec. 350.120 REPORT ON EXPIRATION OF PERMIT -- CONTENTS Within sixty (60) days after the date of expiration of a permit, the permittee shall file with the cabinet a report stating the exact number of acres of land affected by the operation, the extent of the reclamation already accomplished by him, and such other information as may be required by the rules and regulations of the cabinet. The report shall be accompanied by a copy of the map filed with the original application which shall show any revisions made necessary by results of the operation. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 16, effective July 14, 1992. Amended 1966 Ky. Acts ch. 4, sec. 18. -- Amended 1964 Ky. Acts ch. 61, sec. 6. Amended 1962 Ky. Acts ch. 105, sec. 9. -- Created 1954 Ky. Acts ch. 8, sec. 12. KRS Sec. 350.130 NOTICE OF NONCOMPLIANCE -- REVOCATION OF PERMIT -- BOND FORFEITURE -- INELIGIBILITY FOR FUTURE PERMITS {{ SMCRA Secs. 517(e), 518, 521(a); 30 CFR 800.50 }} (1) When any of the requirements of this chapter or administrative regulations adopted pursuant thereto or the orders of the cabinet have not been complied with, the cabinet shall forthwith cause a notice of noncompliance to be issued upon the permittee, person, or operator. The cabinet shall set forth in its notice a reasonable time period but not more than ninety (90) days for the abatement of the violation. If any permittee, person, or operator has not abated the violation within the time prescribed in the notice of noncompliance, the secretary or other authorized personnel of the cabinet shall issue to the permittee, operator, or person an order for immediate compliance and cessation of any mining activities or operations which are contributing to the violation. The order shall require the permittee, person, or operator to abate the violation in the most expeditious manner possible. The secretary is authorized to promulgate reasonable administrative regulations for the implementation of this section. The notice or order shall be handed to the person in charge of the operation, and the operator or person engaged in coal exploration operations or sent by certified mail, return receipt requested, addressed to the permanent address shown on the application for a permit or if no address is shown on the application, then to the address known to the cabinet. The notice of noncompliance or order for immediate compliance and cessation shall specify in what respects the permittee, person, or operator has failed to comply with this chapter or the regulations or orders of the cabinet and the remedial action required, the period of time established for abatement, and a reasonable description of the portion of the surface coal mining and reclamation operation to which the notice or order applies. If the permittee, person, or operator has not reached an agreement with the cabinet or has not complied with the requirements set forth in the notice of noncompliance or order for immediate compliance and cessation within time limits set therein, the permit may be revoked or the operation terminated, after an opportunity for a hearing, by order of the cabinet, and the performance bond, if any, shall then be forfeited to the cabinet, provided that failure to attend a hearing shall be excused for good cause shown. Any bonding company or financial institution providing bond to the cabinet shall have the right to perform those measures necessary to secure bond releases if the bonding company or financial institution can demonstrate that it has the ability to perform the measures and will undertake to do so within a reasonable time frame. The bonding company, or financial institution providing the bond, may, at any stage of the reclamation process, pay the remaining encumbered balance of the bond and thereby discharge its obligation under the bond. Neither the surety company nor the financial institution may employ anyone to perform the measures who has been barred from mining pursuant to the provisions of this chapter. (2) When a bond is forfeited consistent with the provisions of this chapter, the cabinet shall forfeit the entire amount of the bond for the permit area or increment. (3) A permittee, operator, or person whose mining permit or operation has been revoked, suspended, or terminated or is at the time of the application in violation of this chapter or other applicable requirements as set forth in KRS 350.085 shall not be eligible to receive another permit or begin another operation or to have suspended permits or operations reinstated until he shall have complied with all the requirements of this chapter or submitted proof satisfactory to the cabinet under KRS 350.085 that the violation has been corrected or is in the process of being corrected in respect to all permits issued him, provided, further, that no permittee, operator, or person shall be eligible to receive another permit or begin another operation who has forfeited any bond unless the land for which the bond was forfeited has been reclaimed without cost to the state or the permittee, operator, or person has paid such sum as the cabinet finds is adequate to reclaim the lands. The cabinet shall not issue any permits to or allow future operations by any permittee, operator, or person who has demonstrated a pattern of willful violations of this chapter of such nature and duration with such resulting irreparable damage to the environment as to indicate an intent not to comply with the provisions of this chapter, provided that no permit shall be denied on this basis without an opportunity for a hearing. The secretary shall promulgate regulations which implement this section. For the purposes of this section, if a corporate permittee has demonstrated a pattern of willful violations, then any subsequent application for a permit by that corporation, or any person who controls or has controlled that corporation, shall be denied. (4) In the exercise of the secretary's enforcement powers and authority under this chapter, the secretary, or an authorized representative of the cabinet, after inspection, shall immediately order the cessation of the condition or operation when he determines that the condition or operation creates an imminent danger to the health or safety of the public or that the condition or operation is causing or can reasonably be expected to cause significant imminent environmental harm in violation of this chapter or the regulations pursuant to this chapter, or any permit condition. For purposes of this subsection, "imminent danger to the health and safety of the public"