Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
350.465(2)(b),
350.610
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
350.465(2) and
350.610
require the cabinet to prepare, develop, and promulgate a permanent regulatory
program for the implementation of SMCRA containing procedures similar to that
Act. This administrative regulation sets forth procedures and criteria for
reviewing petitions seeking designation of lands as unsuitable for all or
certain types of coal mining operations and for the termination of
designations.
Section 1. General. The
following procedures and criteria establish a process enabling objective
decisions to be made on land areas, if any, which are unsuitable for all or
certain types of surface coal mining operations. These decisions shall be based
on the best available, scientifically sound data and other relevant
information.
Section 2. Lands
Exempt From Designation.
(1) Petitions for
designating lands as unsuitable for all or certain surface coal mining
operations will not be considered for:
(a)
Lands on which surface coal mining operations were being conducted on August 3,
1977;
(b) Lands covered by a permit
issued under KRS Chapter 350 or a permit application for which the public
comment period has closed according to Section 3(6) of this administrative
regulation;
(c) Lands where
substantial legal and financial commitments were in existence prior to January
4, 1977 in such surface coal mining operations.
(2)
(a)
"Substantial legal and financial commitments" means significant investments,
that have been made on the basis of a long-term coal contract, consisting of
actual expenditures of substantial monies or execution of valid and binding
contracts involving substantial monies for such things as power plants;
railroads; coal handling, preparation, extraction, and storage facilities; and
other capital-intensive activities such as:
1.
Improvement or modification of coal lands within, for access to, or in support
of surface coal mining and reclamation operations in the petitioned
area;
2. Acquisition of capital
equipment for use in, for access to, or for use in support of surface coal
mining and reclamation operations in the petitioned area; and
3. Exploration, mapping, surveying, and
geological work, as well as expenditures of engineering and legal fees,
associated with the acquisition of the property or preparation of an
application to conduct surface coal mining and reclamation operations in the
petitioned area.
(b) The
costs of acquiring the coal in place or the right to mine such coal are not
sufficient to constitute a substantial legal and financial commitment in the
absence of other investments as described in paragraph (a) of this
subsection.
Section
3. Initial Processing of Petitions.
(1) Within thirty (30) days of the receipt of
a petition to designate or terminate, the cabinet shall notify the petitioner
by certified mail whether or not the petition is complete. A petition shall be
deemed incomplete if the cabinet finds that the petition does not contain all
information required by
405 KAR
24:020, Sections 3 and 4.
(2) If the cabinet determines that the
petition is incomplete, it shall be returned to the petitioner with a written
statement of the reasons for the determination and the categories of
information needed to make the petition complete.
(3) The cabinet shall determine whether any
identified coal resources exist in the area described in the petition. Should
the cabinet find that there are no identified coal resources in that area, the
petition shall be returned to the petitioner with a statement of
findings.
(4) If the cabinet
determines the petition to be frivolous or that the petition does not meet the
requirements of
405 KAR
24:020, Section 2, it shall be returned to the
petitioner with a written statement of the reasons for the determination and
the categories of information needed to make the petition complete. A frivolous
petition is one in which the allegations of harm lack serious merit.
(5) When considering a petition for an area
which was previously and unsuccessfully proposed for designation, the cabinet
shall determine if the new petition presents substantial new allegations of
facts and objective evidence. If the petition does not contain new and
substantial allegations of facts, the cabinet shall return the petition with a
statement of its findings and a reference to the record of the previous
designation proceedings.
(6)
Petitions received after the close of the public comment period on a permit
application relating to the same area shall not prevent the cabinet from
issuing a decision on that permit application. The cabinet may return such a
petition to the petitioner with a statement of why the cabinet will not
consider the petition. For the purposes of this administrative regulation, the
close of the public comment period shall mean at the close of the period for
filing written comments and objections under
405 KAR
8:010, Sections 9 and 10.
Section 4. Notification and Request for
Information.
(1) The cabinet shall
periodically notify the petitioner of applications for a permit received which
propose to include any area covered by the petition. The cabinet shall begin
this notification procedure only after it has determined that the petition is
complete and has so notified the petitioner.
(2) Within twenty-one (21) days after the
determination that a petition is complete, the cabinet shall circulate copies
of the petition form to, and request submission of relevant information from:
(a) Other interested government
agencies;
(b) Area-wide development
district agencies;
(c) The
petitioner;
(d) Intervenors;
and
(e) Other persons known to the
cabinet to have an interest in the property.
(3) Within twenty-one (21) days of the final
determination that the petition is incomplete or frivolous, the cabinet shall
notify the general public of the receipt of the petition and the cabinet's
determination that the petition is incomplete or frivolous by one (1) newspaper
advertisement in the newspapers specified in subsection (4)(a) and (b) of this
section.
(4) Within twenty-one (21)
days after the determination that a petition is complete, the cabinet shall
notify the general public by newspaper advertisement. The notice shall identify
the petitioner and provide the mailing address of the petitioner. The notice
shall request submissions of relevant information; and shall request that
persons with an ownership or other interest of record in the property covered
by the petition, who wish to be notified of any hearing, identify themselves to
the cabinet. The advertisement shall be placed once a week for two (2)
consecutive weeks:
(a) In the newspaper of
largest bona fide circulation, according to the definition in
KRS 424.110 to
424.120,
in the county of the area covered by the petition; and
(b) In the newspaper of largest circulation
in the state.
(5) Until
three (3) days before the cabinet holds a public hearing on the petition
pursuant to Section 7 of this administrative regulation, any person may
intervene in the preceding, by filing:
(a) The
intervenor's name, address, telephone number, and notarized
signature;
(b) Identification of
the intervenor's interest which is or may be adversely affected;
(c) A short statement identifying the
petition;
(d) Allegations of fact
and objective evidence which would tend to establish or dispute the allegations
found in the petition.
Section 5. Data Base and Inventory System.
(1) The cabinet will develop and maintain a
data base and inventory system which will permit evaluation of reclamation
feasibility in areas covered by petitions.
(2) The cabinet will include in the data base
and inventory system, information relevant to the criteria in Section 8 of this
administrative regulation.
(3) The
cabinet will include in the data base and inventory system sufficient
information to prepare the statements required in Section 8(4) of this
administrative regulation, including information on:
(a) The coal sources of Kentucky;
(b) The demand for Kentucky coal;
(c) The supply of Kentucky coal;
(d) The economy of Kentucky and its coal
mining regions; and
(e) The
environment and natural resources of Kentucky.
(4) The cabinet will include in the data base
and inventory system relevant information that comes available from petitions,
publications, studies, experiments, permit applications, surface coal mining
operations, and other sources. The cabinet will also include relevant
information received from the U.S. Fish and Wildlife Service, the Kentucky
Heritage Commission, and the cabinet's Division of Air Pollution
Control.
Section 6.
Public Information.
(1) Beginning immediately
after the cabinet receives a petition, it shall compile and maintain a record
consisting of the petition and all documents relating to the petition filed
with or prepared by the cabinet. This record shall be maintained at the central
office of the department in Frankfort and the regional office within whose
district the petition site is located.
(2) The cabinet shall make the record, data
base and information system available for public inspection, pursuant to
KRS
61.870 et seq.
(3) The cabinet shall provide information on
the petition procedures necessary to designate (or terminate a designation of)
an area as unsuitable for surface coal mining operations.
(4) The cabinet shall describe how the
inventory and data base can be used.
(5) Notwithstanding the requirements in
subsections (1) through (4) of this section, if the cabinet determines that the
disclosure of information relating to the location of properties proposed to be
nominated to, or listed in the National Register of Historic Places would
create a risk of destruction or harm to such properties, such disclosure will
not be made.
(6) The cabinet shall
make available to any person any information within its control regarding
designations, including mineral or elemental content which is potentially toxic
in the environment. The cabinet will not, however, provide proprietary
information on the chemical and physical properties of coal.
Section 7. Hearing Requirements.
(1) Within ten (10) months after receipt of a
complete petition, the cabinet shall hold a public hearing in the locality of
the area covered by the petition. However, when a permit application is pending
before the cabinet and such application involves an area in a petition, the
cabinet shall hold the hearing on the petition within ninety (90) days of its
receipt. If all petitioners and intervenors agree, the hearing need not be
held. The hearing shall be legislative in nature, without cross-examination of
witnesses. No person shall bear the burden of proof or persuasion. The cabinet
shall make a verbatim record of the hearing.
(2) The cabinet shall give notice of the
date, time, and location of the hearing to:
(a) Local, area-wide, state, and federal
agencies which may have an interest in the decision on the petition;
(b) The petitioner and the intervenors;
and
(c) Any person with an
ownership or other interest in the area covered by the petition who has
identified himself or herself to the cabinet as set forth in Section 4(3) of
this administrative regulation or who is otherwise actually known to the
cabinet.
(3) Notice of
the hearing shall be sent by certified mail to the petitioner and any
intervenors and by regular mail to the persons designated in subsection (2)(a)
and (c) of this section, and be postmarked not less than thirty (30) days
before the scheduled date of the hearing.
(4) The cabinet shall notify the general
public of the date, time, and location of the hearing by placing an
advertisement in the newspaper of largest circulation according to the
definition in
KRS 424.110 to
424.120,
in the county of the are covered by the petition once a week for two (2)
consecutive weeks and once during the week prior to the scheduled date of the
public hearing. The consecutive weekly advertisement must be published four (4)
and five (5) weeks before the scheduled date of the public hearing.
(5) The cabinet may consolidate in a single
hearing, the hearings required for each of several petitions which relate to
areas in the same locale.
(6) In
the event that all petitioners and intervenors stipulate agreement prior to the
hearing, the petition may be withdrawn from consideration.
Section 8. Criteria and Decision.
(1) The cabinet shall designate an area as
unsuitable for all or certain types of surface coal mining operations if, upon
petition, it determines that reclamation is not technologically and
economically feasible under the performance standards of 405 KAR Chapters 7
through 24 at the time of designation.
(2) The cabinet may designate an area as
unsuitable for all or certain types of surface coal mining operations if, upon
petition, it is determined that the surface coal mining operations will:
(a) Be incompatible with existing land use
policies, plans, or programs adopted by state, area-wide, or local agencies
with management responsibilities for the areas which would be affected by such
surface coal mining operations;
(b)
Affect fragile or historic lands in which the surface coal mining and
reclamation operations could result in significant damage to important
historic, cultural, scientific, and aesthetic values and natural
systems;
(c) Affect renewable
resource lands in which the surface coal mining operations could result in
substantial loss or reduction of the long-range availability of water
supplies;
(d) Affect renewable
resource lands in which the surface coal mining operations could result in
substantial loss or reduction of the long-range productivity of food and fiber
products; or
(e) Affect natural
hazard lands in which the surface coal mining operations could substantially
endanger life and property.
(3) If the cabinet does not designate a
petitioned area under subsection (2) of this section, the secretary may direct
that any future permits issued for the area contain specific requirements for
minimizing the impact of surface coal mining operations on the feature that was
the subject of the petition.
(4)
Prior to designating any land areas as unsuitable for surface coal mining
operations, the cabinet shall prepare a detailed statement, using existing and
available information, on the potential coal resources of the area, the effect
of the action on demand for, and supply of, Kentucky coal, and the
environmental and economic impacts of designation.
(5) In reaching a decision, the secretary
shall use:
(a) The relevant information
contained in the data base and inventory system;
(b) Relevant information provided by other
governmental agencies;
(c) The
detailed statement prepared in response to subsection (4) of this section;
and
(d) Any other relevant
information or analysis submitted during the comment period and public
hearing.
(6) A final
written decision shall be issued by the secretary including a statement of
reasons, within sixty (60) days of completion of the public hearing, or, if no
public hearing is held, then within twelve (12) months after receipt of the
complete petition. The cabinet shall simultaneously send the decision by
certified mail to the petitioner, all intervenors, and to the Regional Director
of the Office of Surface Mining, U.S. Department of the Interior; and by
regular mail to all other persons involved in the proceedings.
Section 9. Administrative and
Judicial Review.
(1) Following any order or
determination of the cabinet concerning completeness or frivolousness of a
petition, any person with an interest which is or may be adversely affected may
request a hearing on the reasons for the order or determination, in accordance
with
400
KAR 1:110, Section 9. Any person with an interest
which is or may be adversely affected and who has participated in an
administrative hearing under this subsection shall have the right to judicial
review as provided in
KRS
350.610(6).
(2) Any person with an interest which is or
may be adversely affected by a final decision of the secretary under Section
8(6) of this administrative regulation shall have the right to judicial review
as provided in
KRS
350.610(6).
Section 10. Map. The cabinet shall
maintain a current map of areas designated as unsuitable for all or certain
types of surface coal mining operations at each regional office and at the
central office in Frankfort. Copies of such maps will be available for
inspection and copying as prescribed in the Open Records Act,
KRS
61.872 to
61.884.
Such maps will periodically be distributed to appropriate federal, state,
area-wide, and local government agencies.
STATUTORY AUTHORITY: KRS Chapter 13A, 350.465(2),
350.610