KENTUCKY REGULATORY PROGRAM KENTUCKY REVISED STATUTES (KRS) TITLE XXVIII MINES AND MINERALS CHAPTER 350 SURFACE COAL MINING (Current through 2003 Regular Session) RECLAMATION KRS 350.400 Repealed, 1982. KRS 350.405 Restoration of land. KRS 350.410 Restoration of approximate original contour. KRS 350.415 Soil segregation. KRS 350.420 Minimization of the disturbance to hydrologic balance. KRS 350.421 Protection of water resources. KRS 350.425 Waste used as dams -- Jurisdiction over dams. KRS 350.430 Explosives. KRS 350.435 Vegetation. KRS 350.440 Placement of excess spoil. KRS 350.445 Steep-slope strip mining -- Performance standards -- Conditions for disturbing land above highwall for road construction. KRS 350.450 Prime farmland -- Mountaintop removal -- Variance upon written request of surface owner -- Technical assistance for small operator -- Release of portion of bond. KRS 350.455 Water impoundment on mining site. KRS 350.460 Financial interest by state employee prohibited. KRS 350.465 Permanent regulatory program. KRS 350.470 Review of regulations. KRS 350.475 Regulations regarding disturbance of reclaimed permit areas and for transferring liability for reclamation. KRS 350.480 Use of simplified procedures for determining restoration of soil productivity on mined prime farmlands. KRS 350.485 Promotion of research and data collection on simplified procedures to determine their validity with respect to restoration of soil productivity on mined prime farmlands. 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. 350.400 APPLICABILITY. [Repealed.] History: Repealed 1982 Ky. Acts ch. 283, sec. 10. -- Created 1978 Ky. Acts ch. 330, sec. 1, effective May 3, 1978. KRS Sec. 350.405 RESTORATION OF LAND {{ SMCRA Sec. 515(b) }} The permittee or person shall restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses of which there is reasonable likelihood, so long as the use or uses do not present any actual or probable hazard to public health or safety or pose any actual or probable threat of water diminution or pollution, and the permit applicant's declared proposed land use following reclamation is not deemed to be impractical or unreasonable, inconsistent with applicable land use policies and plans, involves unreasonable delay in implementation, or is violative of federal, state, or local law. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 24, effective July 14, 1992. Amended 1980 Ky. Acts ch. 62, sec. 30. -- Created 1978 Ky. Acts ch. 330, sec. 3, effective May 3, 1978. KRS Sec. 350.410 RESTORATION OF APPROXIMATE ORIGINAL CONTOUR {{ SMCRA Sec. 515(b) }} Except as provided in KRS 350.450(2)(a) to (e), the permittee, operator, or person shall with respect to all surface coal mining operations backfill, compact (where advisable to insure stability or to prevent leaching of toxic materials), and grade in order to restore the approximate original contour of the land with all highwalls, spoil piles, and depressions eliminated (unless small depressions are needed in order to retain moisture to assist revegetation or as otherwise authorized pursuant to this chapter); provided, however, that in surface coal mining which is carried out at the same location over a substantial period of time where the operation transects the coal deposit, and the thickness of the coal deposits relative to the volume of the overburden is large and where the permittee or operator demonstrates that the overburden and other spoil and waste materials at a particular point in the permit area or otherwise available from the entire permit area is insufficient, giving due consideration to volumetric expansion, to restore the approximate original contour, the operator, at a minimum, shall backfill, grade, and compact (where advisable) using all available overburden and other spoil and waste materials to attain the lowest practicable grade but not more than the angle of repose, to provide adequate drainage and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with the surrounding region; and, provided further, that in surface coal mining where the volume of overburden is large relative to the thickness of the coal deposit and where the permittee or operator demonstrates that due to volumetric expansion the amount of overburden and other spoil and waste materials removed in the course of the mining operation is more than sufficient to restore the approximate original contour, the permittee or operator shall, after restoring the approximate contour, backfill, grade, and compact (where advisable) the excess overburden and other spoil and waste materials to attain the lowest grade but not more than the angle of repose, and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with the surrounding region and that the overburden or spoil shall be shaped and graded in such a way as to prevent slides, erosion, and water pollution and shall be revegetated in accordance with the requirements of this chapter. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 24, effective July 14, 1992. Amended 1980 Ky. Acts ch. 62, sec. 30. -- Created 1978 Ky. Acts ch. 330, sec. 3, effective May 3, 1978. KRS Sec. 350.415 SOIL SEGREGATION {{ SMCRA Sec. 515(b) }} The permittee or operator shall remove the topsoil from the land in a separate layer, replace it on the backfill area, or if not utilized immediately, segregate it in a separate pile from other spoil and when the topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of the topsoil, maintain a successful cover by quick growing plant or other means thereafter so that the topsoil is preserved from wind and water erosion, remains free of any contamination by other acid or toxic material, and is in a usable condition for sustaining vegetation when restored during reclamation, except if topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other strata can be shown to be more suitable for vegetation requirements, then the operator shall remove, segregate, and preserve in a like manner such other strata which are best able to support vegetation. Or where topsoil is of insufficient quantity or of poor quality for sustaining vegetation, the permittee or operator may, with the approval of the cabinet, employ the technology required to utilize alternative soil materials approved by the cabinet or soil amendments necessary to sustain vegetation in accordance with the requirements of this chapter. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 25, effective July 14, 1992. -- Created 1978 Ky. Acts ch. 330, sec. 4, effective May 3, 1978. KRS Sec. 350.420 MINIMIZATION OF THE DISTURBANCE TO HYDROLOGIC BALANCE {{ SMCRA Secs. 515, 516 }} The permittee, operator, or person shall minimize disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation by: (1) Avoiding acid or other toxic mine drainage by such measures as, but not limited to: (a) Preventing or removing water from contact with toxic producing deposits; (b) Treating drainage to reduce toxic content which adversely affects downstream water upon being released to watercourses; and (c) Casing, sealing, or otherwise managing boreholes, shafts, and wells and keeping acid or other toxic drainage from entering ground and surface waters; (2) Conducting surface coal mining operations so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow, or runoff outside the permit area, but in no event shall contributions be in excess of requirements set by applicable state or federal law; (3) Constructing any siltation structures pursuant to subsection (2) of this section prior to commencement of surface coal mining operations, the structures to be certified by a qualified registered engineer to be constructed as designed and as approved in the reclamation plan; (4) Cleaning out and removing temporary or large settling ponds or other siltation structures from drainways after disturbed areas are revegetated and stabilized, and depositing the silt and debris at a site and in a manner approved by the cabinet; however, settling ponds and siltation structures may be left and not removed if determined to be safe and written approval is granted by the cabinet pursuant to its regulations; (5) Restoring recharge capacity of the mined area to approximate premining conditions; (6) Avoiding channel deepening or enlargement in operations requiring the discharge of water from mines; and (7) Such other actions as the cabinet may prescribe. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 26, effective July 14, 1992. Amended 1980 Ky. Acts ch. 62, sec. 31; and ch. 377, sec. 12. -- Created 1978 Ky. Acts ch. 330, sec. 5, effective May 3, 1978. KRS Sec. 350.421 PROTECTION OF WATER RESOURCES {{ SMCRA Sec. 720 }} (1) Nothing in this chapter shall be construed as affecting in any way the right of any person to enforce or protect, under applicable law, his interest in water resources affected by a surface coal mining operation or an underground coal mine. (2) Each permittee or operator of a surface or underground coal mine shall replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution, or interruption proximately resulting from the surface or underground coal mine. Effective: July 15, 1994 History: Amended 1994 Ky. Acts ch. 311, sec. 1, effective July 15, 1994. Amended 1992 Ky. Acts ch. 429, sec. 27, effective July 14, 1992. -- Created 1980 Ky. Acts ch. 62, sec. 37. 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. 350.425 WASTE USED AS DAMS -- JURISDICTION OVER DAMS {{ SMCRA Sec. 515 }} The permittee, operator, or other person shall design, locate, construct, operate, maintain, enlarge, modify, and remove or abandon, in accordance with the standards and criteria developed pursuant to subsection (f) of Section 515 of Public Law 95-87, "Surface Mining Control and Reclamation Act of 1977," all existing and new coal mine waste piles consisting of mine wastes, tailings, coal processing wastes, or other liquid and solid wastes, and used either temporarily or permanently as dams or embankments. The Kentucky Department of Surface Mining through this chapter shall have exclusive jurisdiction over KRS Chapter 151 concerning the regulation of dams, levees, embankments, dikes, bridges, fills, or other obstructions across or along any stream or in the floodway of any stream, which structures or obstructions are permitted under this chapter. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 28, effective July 14, 1992. Amended 1982 Ky. Acts ch. 368, sec. 1, effective April 2, 1982. -- Created 1978 Ky. Acts ch. 330, sec. 6, effective May 3, 1978. KRS Sec. 350.430 EXPLOSIVES {{ SMCRA Secs. 507(g), 515, 719 }} The permittee or operator shall: (1) Provide adequate advance written notice to local governments and residents who might be affected by the use of such explosives by publication of the planned blasting schedule in a newspaper of general circulation in the locality and by mailing a copy of the proposed blasting schedule to every resident living within one-half ( 1/2) mile of the proposed blasting site and by providing daily notice to resident/occupiers in the areas prior to any blasting; (2) Maintain for a period of at least three (3) years and make available for public inspection upon request a log detailing the location of the blasts, the pattern and depth of the drill holes, the amount of explosives used per hole, and the order and length of delay in the blasts; (3) Limit the type of explosives and detonating equipment, the size, the timing and frequency of blasts based upon the physical conditions of the site so as to prevent injury to persons, damage to public and private property outside the permit area, adverse impacts on any underground mine, and change in the course, channel, or availability of ground or surface water outside the permit area; (4) Require that all blasting operations be conducted by trained and competent persons as certified by the Department of Mines and Minerals; and (5) Provide that upon the request of a resident or owner of a man-made dwelling or structure within one-half ( 1/2) mile of any portion of the permitted area the applicant or permittee shall conduct a preblasting survey of the structures and submit the survey to the cabinet and a copy to the resident or owner making the request. The area of the survey shall be decided by the cabinet and shall include such provisions as the cabinet shall promulgate. The cabinet and the Department of Mines and Minerals are authorized to enter into agreements whereby the cabinet or the Department of Mines and Minerals administers part or all of this section. (6) Penalties for violations of this section are those set forth in KRS 350.990. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 29, effective July 14, 1992. -- Created 1978 Ky. Acts ch. 330, sec. 7, effective May 3, 1978. KRS Sec. 350.435 VEGETATION {{ SMCRA Secs. 515(b), 516(b) }} The permittee or other person shall establish on the regraded areas, and all other lands affected, a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area; except, that introduced species may be used in the revegetation process where desirable and necessary to achieve the approved postmining land use plan. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 30, effective July 14, 1992. -- Created 1978 Ky. Acts ch. 330, sec. 8, effective May 3, 1978. KRS Sec. 350.440 PLACEMENT OF EXCESS SPOIL {{ SMCRA Sec. 515 }} The permittee or operator shall place all excess spoil material resulting from surface coal mining and reclamation operations pursuant to this chapter in the following manner: (1) Spoil is transported and placed in a controlled manner in position for concurrent compaction (where advisable) and in such a way as to assure mass stability and to prevent mass movement; (2) The areas of disposal are within the bonded permit areas and all organic matter shall be removed immediately prior to spoil placement; (3) Appropriate surface and internal drainage systems and diversion ditches are used so as to prevent spoil erosion and movement; (4) The disposal area does not contain springs, natural watercourses, or wet-weather seeps unless lateral drains are constructed from the wet area to the main underdrains in such a manner that filtration of the water into the spoil pile will be prevented; (5) If placed on a slope, the spoil is placed upon the most moderate slope among those upon which, in the judgment of the cabinet, the spoil could be placed in compliance with all the requirements of this chapter and shall be placed, where possible, upon, or above, a natural terrace, bench, or berm, if the placement provides additional stability and prevents mass movement; (6) Where the toe of the spoil rests on a downslope, a rock toe buttress of sufficient size to prevent mass movement is constructed; (7) The final configuration is compatible with the natural drainage pattern and surroundings and suitable for intended uses; (8) Design of the spoil disposal area is certified by a qualified registered professional engineer in conformance with professional standards; and (9) All other provisions of this chapter are met. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 31, effective July 14, 1992. Amended 1980 Ky. Acts ch. 62, sec. 32; and ch. 377, sec. 13. -- Created 1978 Ky. Acts ch. 330, sec. 10, effective May 3, 1978. KRS Sec. 350.445 STEEP-SLOPE STRIP MINING -- PERFORMANCE STANDARDS -- CONDITIONS FOR DISTURBING LAND ABOVE HIGHWALL FOR ROAD CONSTRUCTION {{ SMCRA Sec. 515(d) }} The following performance standards shall be applicable to steep-slope strip mining and shall be in addition to those general performance standards required by KRS 350.405 to 350.435; provided, however, that the provisions of this section shall not apply to those situations in which a permittee or operator is mining on flat or gently rolling terrain, on which an occasional steep slope is encountered through which the mining operation is to proceed, leaving a plain or predominantly flat area, or where a permittee or operator is in compliance with the provisions of KRS 350.450(2): (1) The permittee or operator shall insure that when performing strip mining on steep slopes, debris, abandoned or disabled equipment, spoil material, or waste mineral matter not be placed on the downslope below the bench or mining cut; provided, that spoil material in excess of that required for the reconstruction of the approximate original contour under the provisions of KRS 350.410 or 350.445(2) shall be permanently stored pursuant to KRS 350.440. (2) The permittee or operator shall complete backfilling with spoil material and shall be required to cover completely the highwall and return the site to the approximate original contour, which material will maintain stability following mining and reclamation. (3) The permittee or operator may not disturb land above the top of the highwall unless the cabinet finds that the disturbance will facilitate compliance with the environmental protection standards of this subsection; provided, however, that the land disturbed above the highwall shall be limited to that amount necessary to facilitate compliance. The land above the highwall may be disturbed for construction of a permanent road only where the applicant affirmatively demonstrates, and the cabinet makes a detailed and written determination, that the proposed disturbance facilitates compliance with this chapter and provided that the land disturbed shall be limited to that amount necessary to facilitate such compliance. The cabinet shall make this determination upon a demonstration by the permittee that: (a) The permittee will completely eliminate the production highwall and backfill the mined areas to approximate original contour with no road remaining on the bench; (b) The road will be placed on a solid base rather than on fill material and drainage will be diverted from the mining area; (c) The road will comply with all applicable design criteria, including a drainage plan for avoiding seepage or uncontrolled discharge of water into the backfilled areas; (d) The spoil calculations and spoil disposal plans include the road cut material and the extent, if any, that road cut material will be used to eliminate a production highwall; (e) The road will connect to another road or roads and is necessary in order to support the approved postmining land uses; (f) Where practical and feasible, an undisturbed barrier will be left between the production highwall and the road itself. When an undisturbed barrier is not feasible, witness monuments will be left at a minimum of two (2) locations above the production highwall; (g) The road will be constructed to a size and design appropriate to support coal mining activities and the proposed post-mining land use; (h) The proposed mine plan and sequencing of the road construction in relation to the mining activity will minimize placement of spoil material into valley or hollow fills and will maximize permanent retention of mined spoil on the mine bench; (i) There will be no coal removal from the construction of the permanent road except for incidental nonmerchantable coal that is disposed of in an approved manner; and (j)All other performance standards of the chapter are met. (4) For the purposes of this section, the term "steep slope" is any slope above twenty (20) degrees or such lesser slope as may be defined by the cabinet, by regulation, after consideration of soil, climate, and other characteristics of the region. Effective: July 14, 2000 History: Amended 2000 Ky. Acts ch. 367, sec. 1, effective July 14, 2000. -- Amended 1992 Ky. Acts ch. 429, sec. 32, effective July 14, 1992. -- Created 1978 Ky. Acts ch. 330, sec. 10, effective May 3, 1978. KRS Sec. 350.450 PRIME FARMLAND -- MOUNTAINTOP REMOVAL -- VARIANCE UPON WRITTEN REQUEST OF SURFACE OWNER -- TECHNICAL ASSISTANCE FOR SMALL OPERATOR -- RELEASE OF PORTION OF BOND {{ SMCRA Secs. 507, 510, 515 }} (1) If the area proposed to be mined contains prime farmland as defined in Public Law 95-87, "Surface Mining Control and Reclamation Act of 1977," then no permit shall be issued unless it complies with Section 510(d)(1) therein. Nothing in this subsection shall apply to any permit issued prior to August 3, 1977, or to any revisions or renewals thereof, or to any existing surface coal mining operations for which a permit was issued prior to August 3, 1977. Nothing herein shall be construed as authorizing the cabinet to promulgate regulations more stringent than those promulgated pursuant to PL 95-87 relating to prime farmland. (2) Where a surface coal mining operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining, the operation shall comply with the requirements of paragraphs (c) and (d) of this subsection without regard to the requirements of KRS 350.410 or 350.445(2) and (3) with respect to lands from which overburden and the coal seam being mined have not been removed; provided, however, the cabinet shall establish internal procedures pursuant to which it shall permit surface coal mining operations for the purposes set forth in paragraph (b) of this subsection. (a) Where an applicant meets the requirements of paragraphs (b) and (c) of this subsection a permit without regard to the requirements to restore to approximate original contour set forth in KRS 350.410 or 350.445(2) and (3) may be granted for the surface coal mining operations where the mining operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill, except as provided in paragraph (c)1. of this subsection, by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining and capable of supporting postmining uses in accord with the requirements of this subsection. (b) In cases where an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use is proposed for the postmining use of the affected land, the cabinet may grant a permit for a surface coal mining operation of the nature described in paragraph (a) of this subsection where: 1. After consultation with the appropriate land use planning agencies, if any, the proposed postmining land use is deemed by the cabinet to constitute an equal or better economic or public use of the affected land as compared with premining use; 2. The applicant presents specific plans for the proposed postmining land use and appropriate assurances that the land use will be: a. Compatible with adjacent land uses; b. Obtainable according to data regarding expected need and market; c. Assured of investment in necessary public facilities; d. Supported by commitments from public agencies where appropriate; e. Practicable with respect to private financial capability for completion of the proposed use; f. Planned pursuant to a schedule attached to the reclamation plan so as to integrate the mining operation and reclamation with the postmining land use; and g. Designed by a registered engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site; 3. The proposed use would be consistent with adjacent land uses and existing state and local land use plans; 4. The cabinet provides the governing body of the unit of general-purpose government in which the land is located, and any state or federal agency which the cabinet in its discretion determines to have an interest in the proposed use, an opportunity of not more than thirty (30) days to review and comment on the proposed use; and 5. All other requirements of this chapter will be met. (c) In granting any permit pursuant to this subsection the following requirements apply: 1. The toe of the lowest coal seam and the overburden associated with it are retained in place as a barrier to slides and erosion; 2. The reclaimed area is stable; 3. The resulting plateau or rolling contour drains inward from the outslopes except at specified points; 4. No damage will be done to natural watercourses; 5. Spoil will be placed on the mountaintop bench as is necessary to achieve the planned postmining land use; provided, that all excess spoil material not retained on the mountaintop shall be placed in accordance with the provisions of KRS 350.440; and 6. Insure stability of the spoil retained on the mountaintop and meet the other requirements of this chapter. (d) The regulatory authority shall promulgate specific regulations to govern the granting of permits in accord with the provisions of this subsection. (e) All permits granted under the provisions of this subsection shall be reviewed not more than three (3) years from the date of issuance of the permit, unless the applicant affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the approved schedule and reclamation plan. (3)(a) The cabinet shall adopt procedures pursuant to which it may permit variances from the requirements of KRS 350.410 for the purposes set forth in paragraph (c) of this subsection, provided that the watershed control of the area is improved, and further provided, complete backfilling with spoil material shall be required to cover completely the highwall, which material will maintain stability following mining and reclamation. (b) Where an applicant meets the requirements of paragraphs (c) and (d) of this subsection, a variance from the requirement to restore the approximate original contour set forth in KRS 350.410 and 350.445(2) may be granted for surface coal mining operations where the owner of the surface knowingly requests in writing, as a part of the permit application, that such a variance be granted so as to render the land, after reclamation, suitable for an industrial, commercial, residential, or public use, including recreational facilities. (c) After consultation with the appropriate land use planning agencies, if any, the potential use of the affected land shall: 1. Be deemed by the cabinet to constitute an equal or better economic or public use; 2. Be designed and certified by a qualified registered professional engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site; and 3. The watershed of the affected land be deemed by the cabinet to be improved. (d) In granting a variance pursuant to paragraph (b) of this subsection, the cabinet shall require that only the amount of spoil will be placed off the mine bench that is necessary to achieve the planned postmining land use, insure stability of the spoil retained on the bench, meet all other requirements of this chapter, and require all spoil placement off the mine bench to comply with KRS 350.440. (e) The cabinet shall promulgate specific regulations as it deems necessary, if any, to govern the granting of variances in accord with the provisions of this subsection and may impose additional requirements it deems to be necessary. (f) All exceptions granted under the provisions of this subsection shall be reviewed not more than three (3) years from the date of issuance of the permit, unless the permittee affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the reclamation plan. (4) The cabinet shall adopt programs, regulations, and procedures designed to provide technical assistance to assist the small coal operator with the permitting and environmental protection performance standards for surface coal mining operations within the Commonwealth. The programs shall be directed towards eliminating delays in the processing of permits by establishing a special administrative program to review small operator's permit applications and by establishing a procedure for providing the small operator the technical services of public and private agencies in addition to the services provided pursuant to KRS 350.465(2)(f) necessary for completing the permit application. Specifically, notwithstanding any other provision of this chapter or regulations adopted pursuant thereto, for the purpose of this program, the cabinet shall: (a) Develop a simplified small operator permit application. The cabinet shall notify all applicants of deficiencies in the form of the application by certified mail within ten (10) working days after the filing in the regional office. The applicant shall have ten (10) working days after the receipt of the notification to repair the deficiencies. Upon failure of the applicant to repair the deficiencies within ten (10) working days after receipt of the notification, the cabinet may return the application as incomplete. (b) Provide in the abandoned mine land program for small operators, having mined coal under a state permit or license at any time within the previous three (3) years, participation consisting at least of the following: 1. That lands acquired or reclaimed by the state containing coal, coal refuse or other marketable minerals which should be removed in order to maximize the utilization, recoverability or conservation of solid fuel resources or to protect against adverse water quality impacts and which, once reclaimed, cannot be disturbed again by mining, shall be reclaimed by small operators unless the cabinet determines, after advertisement and advance opportunity to bid, that the reclamation project cannot be performed by the small operator bidders; 2. That the cabinet shall establish procedures for maximizing participation by small operators in all reclamation projects including: a. Designing and establishing project specifications and setting forth in the annual request for federal funding under the state reclamation plan not less than twenty percent (20%) of the projects on cost basis to be performed by small operators; b. Advance advertising, soliciting, evaluating bids, and awarding contracts on all state reclamation projects for small operators. 3. In the event no bids are submitted by small operators for small operator projects, the projects will be thereafter open for public bidding and no longer designated as small operator projects but shall satisfy that portion of the twenty percent (20%) set aside. (c) For the purposes of this subsection, a small coal operator is one who is anticipated to mine less than three hundred thousand (300,000) tons per year, and the cabinet in determining tonnage for qualification shall consider all production from common ownership of other corporations or operations. (d) Upon written notification by the small coal operator to the cabinet stating that no more mining will take place under a permit, the cabinet shall release a portion of the bond in accordance with KRS 350.070. In making its determinations pursuant to KRS 350.070 the cabinet shall: 1. Determine the percentage of the permitted acreage in the area of reduction in relation to the initial acreage of the permit; 2. Examine the land which has been disturbed and estimate the cost of reclamation; 3. When the estimated cost of reclamation does not exceed ten thousand dollars ($ 10,000) then the cabinet shall return all bond money in excess of the ten thousand dollars ($ 10,000); 4. When the estimated cost of reclamation exceeds ten thousand dollars ($ 10,000), the cabinet shall retain the amount estimated and shall return all bond money in excess of the estimated amount but in no case shall the cabinet return more than the amount determined by multiplying the percentage determined under subparagraph 1. of this paragraph times the original total bond amount. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 119, sec. 2, effective July 14, 1992. -- Amended 1984 Ky. Acts ch. 390, sec. 1, effective April 11, 1984. -- Amended 1982 Ky. Acts ch. 283, sec. 7, effective April 2, 1982. -- Amended 1980 Ky. Acts ch. 62, sec. 33, effective March 21, 1980; and ch. 209, sec. 1, effective March 21, 1980. Amended 1979 (1st Extra. Sess.) Ky. Acts ch. 26, sec. 1, effective February 13, 1979. -- Created 1978 Ky. Acts ch. 330, sec. 11, effective May 3, 1978. KRS Sec. 350.455 WATER IMPOUNDMENT ON MINING SITE {{ SMCRA Sec. 515 }} If authorized in the approved mining and reclamation plan and permit, the permittee or operator may create permanent impoundments of water on mining sites as part of reclamation activities only when it is adequately demonstrated that: (1) The size of the impoundment is adequate for its intended purposes; (2) The impoundment dam construction will be so designed as to achieve necessary stability with an adequate margin of safety compatible with that of structures constructed under Public Law 83-566 (16 U.S.C. 1006); (3) The quality of impounded water will be suitable on a permanent basis for its intended use and that discharges from the impoundment will not degrade the water quality below water quality standards established pursuant to applicable federal and state law in the receiving stream; (4) The level of water will be reasonably stable; (5) Final grading will provide adequate safety and access for proposed water users; and (6) The water impoundments will not result in the diminution of the quality or quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 33, effective July 14, 1992. Amended 1980 Ky. Acts ch. 377, sec. 8. -- Created 1978 Ky. Acts ch. 330, sec. 12, effective May 3, 1978. KRS Sec. 350.460 FINANCIAL INTEREST BY STATE EMPLOYEE PROHIBITED {{ SMCRA Secs. 201(f), 517(g) }} No employee of the state performing any function or duty under this chapter shall have a direct or indirect financial interest in any underground or strip coal mining operation. Whoever knowingly violates the provisions of this section is guilty of a Class A misdemeanor, and shall, upon conviction, be punished by a fine of not more than two thousand and five hundred dollars ($ 2,500), or by imprisonment of not more than one (1) year, or both. Effective: May 3, 1978 History: Created 1978 Ky. Acts ch. 330, sec. 13, effective May 3, 1978. KRS Sec. 350.465 PERMANENT REGULATORY PROGRAM {{ SMCRA Secs. 102, 201(c), 501, 507, 508, 511, 513, 514, 515, 516, 517, 518, 519, 521, 525 }} (1) The provisions of this section and regulations promulgated pursuant thereto, except with regard to the mining of clay, limestone, sand, gravel, fluorspar, stone, and rock asphalt, shall apply to the regulation of all surface coal mining and reclamation operations in the Commonwealth in the event that the Commonwealth receives from the United States Department of Interior and pursuant to the Surface Mining Control and Reclamation Act of 1977, PL 95-87, approval of a permanent state regulatory program, and the Commonwealth has promulgated regulations pursuant to this section. (2) The Natural Resources and Environmental Protection Cabinet is hereby authorized and directed to prepare, develop and promulgate a comprehensive permanent regulatory program for the implementation of the Surface Mining Control and Reclamation Act of 1977, PL 95-87, for the purpose of accepting and administering primary enforcement responsibilities pursuant to that act. The implementation of this section shall contain procedures similar to the Surface Mining Control and Reclamation Act of 1977, PL 95-87, and shall require surface coal mining operation performance standards no more stringent than provided for in that act. Nothing in this section shall be construed to empower the cabinet to adopt a regulatory program in conflict with the policy and purposes of the Surface Mining Control and Reclamation Act of 1977, PL 95-87. To that end, the Natural Resources and Environmental Protection Cabinet shall include in its permanent regulatory program: (a) Environmental protection performance standards to prevent or minimize the adverse environmental effects of surface coal mining and reclamation operations on the land and water resources of the Commonwealth. (b) A procedure for designating as being unsuitable for mining certain lands because of their topographical, geological, hydrological, climatological, biological, or chemical characteristics or historical, cultural, scientific, or aesthetic values. (c) Procedures and regulations for the allowance of those persons having an interest which is or may be adversely affected to have the opportunity to be heard at every significant or critical part of the administrative and judicial process, including, but not limited to, the permit review and issuance process, the general enforcement process and hearings incident thereto, and the rulemaking procedures conducted by the cabinet; and procedures and regulations for persons having a valid legal interest which is or may be adversely affected by the setting, release, and inspection of bonds to have an opportunity to be heard at every significant or critical part of the administrative and judicial process relating to bonds. The regulations shall provide reasonable procedures for notice and an opportunity to be heard, access to minesites, access to records, and other reasonable procedures to accomplish the purposes of this chapter. (d) Procedures for the administrative and judicial review of all actions of the cabinet to administer and enforce the provisions of this chapter, including the award of costs and expenses, including attorney's fees and expert witness fees, by the cabinet or the court. (e) Plans and procedures for the reclamation and restoration of land and water resources affected by mining which have been abandoned or inadequately reclaimed to the standards imposed by this section and for which no bond is held or legal obligation to reclaim continues. The plan shall include provisions for the imposition of liens for necessary reclamation expenditures made on private property. (f) Procedures for the assumption of the small operator assistance program pursuant to the Surface Mining Control and Reclamation Act of 1977, PL 95-87. The cabinet shall assume and implement that program and apply for and administer funds as may be provided pursuant to that act and such state funds as may be provided for the program. (3) In addition to any other authority, power, and duty vested in it by law, the cabinet shall have and exercise broad authority, power, and duty to: (a) Require those persons who wish to engage in surface coal mining and reclamation operations to submit application for a permit from the cabinet to conduct the operations, and to include in that application all information required by the cabinet pertaining to that operation. (b) Issue, deny, or modify under such conditions as the cabinet may prescribe, permits to conduct surface coal mining and reclamation operations within the Commonwealth. (c) Enter and inspect any permitted surface coal mining and reclamation operation or any known or suspected unpermitted mining operation for the purpose of ascertaining compliance with any provision of this chapter or of the permit. (d) Order the cessation of mining activities, and if necessary impose affirmative abatement obligations, upon the permittee, operator, or person when, upon inspection, the cabinet determines that this section or any permit condition is being or has been violated so as to constitute an imminent and inordinate peril to the welfare of the Commonwealth. (e) Order a person, permittee, or an operator to comply with the requirements of this section or his permit if inspection reveals a violation of the conditions of his permit or of any provision of this section. (f) Order a permittee to appear and show cause why his permit should not be suspended or revoked and his bond forfeited if the cabinet determines that the permittee or operator or the permitted operation has a pattern of violations of this section or permit conditions, and has willfully violated this section or permit conditions or a pattern of violations exists and that the violations are caused by the operator's or permittee's unwarranted failure to comply with this section or permit conditions. (g) Require, increase, release, or decrease, under such conditions as the cabinet may prescribe, reclamation performance bonds and cause the forfeiture and collection of those bonds where the permittee has abandoned the operation or for which the permit under which the bond was given has been revoked or has expired without the required reclamation. (h) To administratively impose, in lieu of those civil penalties provided for in KRS 350.990, civil penalties of up to five thousand dollars ($ 5,000) per day for violations of permit conditions, this section, or any orders of the cabinet and enforce the administrative assessment of the penalties by initiating civil action in the Franklin Circuit Court or in any court having jurisdiction of the defendant. (i) Conduct hearings and make investigations of any matter relating to the regulation of surface coal mining and reclamation operations, and provide for the assessment and payment of civil penalties including the placement of proposed civil penalty assessments into an escrow account prior to a contest on the amount of the assessment, consistent with the process of law. (j) Provide for variances or exceptions consistent with KRS 350.450 from or in addition to mining performance standards, recognizing the specific characteristics inherent in: 1. Steep slope mining; 2. Mountaintop removal; 3. Relatively low acreage disturbance or annual coal production; 4. Prime farmland mining as defined by the United States Department of Agriculture, and to provide for other variances where land uses and watersheds will be improved; and 5. Postmining uses different from and as beneficial as the premining uses. (k) Receive and expend funds or aid from whatever source to accomplish the purposes of this chapter. (l) Propose and promulgate regulations to accomplish the purposes of this section. (4) The cabinet shall not promulgate regulations which are inconsistent with the Surface Mining Control and Reclamation Act of 1977, PL 95-87. (5) Any person who violates a provision of this section or the regulations promulgated pursuant thereto shall be subject to those penalties and remedies set forth in KRS 350.990 except as provided for in subsection (3)(h) of this section. Effective: July 14, 1992 History: Amended 1992 Ky. Acts ch. 429, sec. 34, effective July 14, 1992. Amended 1980 Ky. Acts ch. 62, sec. 34. -- Created 1978 Ky. Acts ch. 330, sec. 28, effective June 1, 1979. KRS Sec. 350.470 REVIEW OF REGULATIONS For the purposes of regulations promulgated under the provisions of KRS 350.465, and pursuant to any other section which confers authority on the cabinet to promulgate regulations for the permanent regulatory program consistent with P.L. 95-87, the interim joint committee of jurisdiction shall have the same authority and responsibility as the administrative regulation review subcommittee has under KRS Chapter 13A. Following acceptance or rejection of the regulations by the interim committee the same shall be reviewed by the administrative regulation review subcommittee for the purposes of KRS Chapter 13A, provided that: (1) review by the administrative regulation review subcommittee may begin before acceptance or rejection of the regulations by the interim committee; and (2) the interim committee must accept or reject the regulations within twenty (20) days of the date the regulations are submitted to the Legislative Research Commission for purposes of legislative review. The Governor shall have the same authority to issue emergency regulations under this section that he has under KRS Chapter 13A. History: Amended 1980 Ky. Acts ch. 377, sec. 6. -- Created 1978 Ky. Acts ch. 330, sec. 29, effective June 1, 1979. Legislative Research Commission Note (1987). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136. 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. 350.475 REGULATIONS REGARDING DISTURBANCE OF RECLAIMED PERMIT AREAS AND FOR TRANSFERRING LIABILITY FOR RECLAMATION (1) The Natural Resources and Environmental Protection Cabinet is directed to promulgate regulations which specifically address what liability surface mining permittees shall have to reclaim permit areas on which parties or forces not controlled by the permittee have disturbed the reclamation previously performed by the permittee. Such parties or forces not controlled by the permittee shall include, without limitation, acts of God, oil and gas operations, loggers, recreational vehicles, and trespassers. (2) The Natural Resources and Environmental Protection Cabinet is also directed to promulgate regulations which specifically set forth the procedure for transferring liability for reclamation of a surface mining permit to a party who will make a post mining use of the permit area. Effective: July 13, 1990 History: Created 1990 Ky. Acts ch. 494, sec. 1, effective July 13, 1990. KRS Sec. 350.480 USE OF SIMPLIFIED PROCEDURES FOR DETERMINING RESTORATION OF SOIL PRODUCTIVITY ON MINED PRIME FARMLANDS The cabinet shall allow the use of a soil test or other simplified procedures to determine if soil productivity on mined prime farmlands has been restored to levels that would allow average crop yields to equal or exceed the average yield of the reference crop, provided the methods are approved by the Office of Surface Mining. Effective: July 14, 1992 History: Created 1992 Ky. Acts ch. 284, sec. 1, effective July 14, 1992. KRS Sec. 350.485 PROMOTION OF RESEARCH AND DATA COLLECTION ON SIMPLIFIED PROCEDURES TO DETERMINE THEIR VALIDITY WITH RESPECT TO RESTORATION OF SOIL PRODUCTIVITY ON MINED PRIME FARMLANDS The cabinet shall encourage research and data collection to determine the validity of using a soil test or other simplified procedure to determine if mined prime farmland soils will meet yield requirements. Effective: July 14, 1992 History: Created 1992 Ky. Acts ch. 284, sec. 2, effective July 14, 1992.