Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
350.020,
350.028,
350.151,
350.465,
30 C.F.R. Parts 730-733, 735,
784.20(a)(3),
817.121
-.122, 917,
30 U.S.C. 1253,
1255,
1266,
1309a
NECESSITY, FUNCTION, AND CONFORMITY:
KRS 350.028(1),
(5),
350.151(1),
and
350.465(2)
authorize the cabinet to promulgate administrative regulations relating to
surface and underground coal mining operations. This administrative regulation
establishes requirements for prevention or control of subsidence and for
correction of subsidence damage to surface lands and structures. This
administrative regulation differs from
30
CFR 817.121 -.122. Section 3(2) of this
administrative regulation, regarding repair or compensation for subsidence
damage to noncommercial buildings and occupied residential dwellings and
related structures existing at the time of mining, is not limited to damage
resulting from underground mining activities conducted after October 24, 1992,
the effective date of
30
USC 1309a as created by
PL
102-486, the Energy Policy Act of 1992. The
federal counterpart regulation at
30
CFR 817.121(c)(2) is so
limited. Section 3(2) of this administrative regulation is not limited to
subsidence damage resulting from underground mining activities conducted after
October 24, 1992 because that would retroactively remove protection currently
existing under this administrative regulation and applicable state law. Section
3(5)(c) of this administrative regulation allows the additional performance
bond amount for subsidence damage to be released or returned promptly after the
cabinet determines the permittee has satisfactorily completed the required
repair or compensation for subsidence damage. The federal counterpart at
30
CFR 817.121(c)(5) does not
include any provision for prompt release of the additional performance bond
amount after the subsidence damage is corrected. The purpose of the additional
bond is to guarantee that the cabinet will have the money to repair or
compensate if the permittee fails to do so. Since the repair or compensation
guaranteed by the additional bond amount must be satisfactorily completed
before any release or return of the bond can take place, the purpose of the
bond will have been fulfilled and thus the cabinet believes the prompt release
or return is not inconsistent with the federal regulations. Section 5(1) of
this administrative regulation, regarding permittee submission of an annual
plan of underground workings, does not provide for confidentiality of the
annual plan. The federal counterpart at
30
CFR 817.121(g) provides that
information submitted with the plan may be held as confidential in accordance
with
30 CFR
773.13(d) if requested by
the permittee. The cabinet's counterpart to
30 CFR
773.13(d) is
405 KAR
8:010, Section 12. The cabinet believes it is unlikely
that any information submitted in the annual plan of underground workings will
qualify for confidentiality under
405 KAR
8:010, Section 12, and that it would be misleading to
mention confidentiality in connection with the plan, thereby creating the false
impression that the plan generally would be held confidential on
request.
Section 1. General
Requirements.
(1)
(a) The permittee shall adopt:
1. Measures consistent with known technology
that:
a. Prevent subsidence from causing
material damage to the extent technologically and economically
feasible;
b. Maximize mine
stability; and
c. Maintain the
value and reasonably foreseeable use of surface land; or
2. Mining technology that provides for
planned subsidence in a predictable and controlled manner.
(b) Nothing in 405 KAR Chapters 7 through 24
shall be construed to prohibit the standard method of room and pillar
mining.
(2) If a
permittee employs mining technology that provides for planned subsidence in a
predictable and controlled manner, the permittee shall take necessary and
prudent measures, consistent with the mining method employed, to minimize
material damage to the extent technologically and economically feasible to
noncommercial buildings and occupied residential dwellings and structures
related thereto except that measures required to minimize material damage to
these structures are not required if:
(a) The
permittee has the written consent of the owners; or
(b) Unless the anticipated damage would
constitute a threat to health or safety, the costs of the measures exceed the
anticipated costs of repair.
(3) The permittee shall comply with all
provisions of the approved subsidence control plan prepared pursuant to
405 KAR
8:040, Section 26.
Section 2. Public Notice.
(1) The permittee shall mail a notification
to all owners and occupants of surface property and structures within the area
above the underground workings. Each owner or occupant shall be notified by
mail at least ninety (90) days prior to mining beneath his property or
structure.
(2) If the notice has
been properly given, and subsequent emergencies or other unforeseen conditions
in underground mining necessitate mining beneath the property or structure
sooner than ninety (90) days after the notice, the permittee shall immediately
provide additional written notice to the owner or occupant that the mining will
be conducted, but in no case shall mining be conducted beneath the property or
structure sooner than thirty (30) days after the additional notice is given
unless the owner has expressly waived the thirty (30) day period in writing.
The waiver shall be granted after the initial notice required under subsection
(1) of this section has been given, and shall be separate from any other
waiver, lease, deed, easement, agreement, or other conveyance of property or
rights.
(3) The notification shall
include, at a minimum:
(a) Identification of
specific areas in which mining will take place;
(b) Dates that specific areas are anticipated
to be undermined; and
(c) The
location or locations where the permittee's subsidence control plan may be
examined.
Section
3. Repair of Damage.
(1) Repair
of damage to surface lands. The permittee shall correct any material damage
resulting from subsidence caused to surface lands, to the extent
technologically and economically feasible, by restoring the land to a condition
capable of maintaining the value and reasonably foreseeable uses that it was
capable of supporting before subsidence damage.
(2) Repair or compensation for damage to
noncommercial buildings and occupied residential dwellings and related
structures existing at the time of mining. The permittee shall promptly repair,
or compensate the owner for, material damage resulting from subsidence caused
to any noncommercial building or occupied residential dwelling or structure
related thereto that existed at the time of mining. If repair is selected, the
permittee shall fully rehabilitate, restore or replace the damaged structure.
If compensation is selected, the permittee shall compensate the owner of the
damaged structure for the full amount of the decrease in value resulting from
the subsidence related damage. The permittee may provide compensation by the
purchase before mining of a noncancellable, premium prepaid insurance
policy.
(3) Repair or compensation
for damage to other structures. The permittee shall, to the extent required
under applicable provisions of state law, either correct material damage
resulting from subsidence caused to any structures or facilities not protected
by subsection (2) of this section by repairing the damage or compensate the
owner of the structures or facilities for the full amount of the decrease in
value resulting from the subsidence. Repair of damage shall include
rehabilitation, restoration, or replacement of damaged structures or
facilities. Compensation may be accomplished by the purchase before mining of a
noncancellable, premium prepaid insurance policy.
(4) Information to be considered in
determination of causation. In any determination whether damage to protected
structures was caused by subsidence from underground mining, all relevant and
reasonably available information shall be considered by the cabinet.
(5) Adjustment of bond amount for subsidence
damage.
(a) If subsidence related material
damage to land, structures or facilities protected under subsections (1)
through (3) of this section occurs, the cabinet shall require the permittee to
obtain additional performance bond in the amount of the estimated cost of the
repairs if the permittee will be repairing, or in the amount of the decrease in
value if the permittee will be compensating the owner, until the repair or
compensation is completed. If repair or compensation is completed within ninety
(90) days of the occurrence of damage, additional bond shall not be required.
The cabinet may extend the ninety (90) day time frame, but not to exceed one
(1) year, if the permittee demonstrates and the cabinet finds in writing that
subsidence is not complete, or that not all probable subsidence related
material damage has occurred to lands or protected structures, and that
therefore it would be unreasonable to complete within ninety (90) days the
repair of the subsidence related material damage to lands or protected
structures.
(b) If the permittee
demonstrates that his liability insurance policy under
405 KAR
10:030, Section 4, covers the subsidence damage, the
additional bond amount required under paragraph (a) of this subsection may be
reduced by the amount of the insurance coverage applicable to the subsidence
damage. The existence of applicable insurance coverage shall not prevent
forfeiture of a performance bond under
405 KAR
10:050.
(c) The cabinet may promptly release or
return the additional bond amount provided under paragraph (a) of this
subsection if the cabinet determines, based upon an application and information
submitted by the permittee, the cabinet's own investigation as appropriate, and
other information available to the cabinet, that the permittee has
satisfactorily completed the required repair or compensation.
Section 4. Buffer
Zones.
(1) Underground mining activities shall
not be conducted beneath or adjacent to public buildings and facilities;
churches, schools, and hospitals; or impoundments with a storage capacity of
twenty (20) acre-feet or more or bodies of water with a volume of twenty (20)
acre-feet or more, unless the subsidence control plan demonstrates that
subsidence will not cause material damage to, or reduce the reasonably
foreseeable use of, the features or facilities. If the cabinet determines that
it is necessary in order to minimize the potential for material damage to the
features or facilities previously described in this subsection or to any
aquifer or body of water that serves as a significant water source for any
public water supply system, it may limit the percentage of coal extracted under
or adjacent to the feature, facility, aquifer, or body of water.
(2) If subsidence causes material damage to
any of the features or facilities covered by subsection (1) of this section,
the cabinet may suspend mining under or adjacent to the features or facilities
until the subsidence control plan is modified to ensure prevention of further
material damage to the features or facilities.
(3) The cabinet shall suspend underground
mining activities under urbanized areas, cities, towns, and communities, and
adjacent to industrial or commercial buildings, major impoundments, or
perennial streams, if imminent danger is found to inhabitants of the urbanized
areas, cities, towns, or communities.
Section 5. Annual Plan of Underground
Workings.
(1) Within forty-five (45) days
after the first day of January following each year in which underground mining
activities are conducted, and at any other time upon written request by the
cabinet, the permittee shall submit two (2) copies of a detailed plan of the
existing and proposed underground workings. The detailed plan shall include
maps and descriptions, as appropriate, of significant features of the
underground mine, including the size, configuration, and approximate location
of pillars and entries, extraction ratios, measures taken to prevent or
minimize subsidence and related damage, areas of full extraction, the
boundaries of the permit area, and other information required by the
cabinet.
(2) Copies of the maps
required to be filed with the Kentucky Office of Mine Safety and Licensing
under
KRS
352.450 and
352.480
may be submitted to the cabinet to fulfill the requirements of this section, if
the maps include all the information required under subsection (1) of this
section.
STATUTORY AUTHORITY:
KRS 350.028,
350.151,
350.465,
30 C.F.R. Parts 730-733, 735,
817.121
-.122, 917,
30 U.S.C. 1253,
1255,
1266,
1309a
