Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
350.010(2),
350.130,
350.240,
350.300
NECESSITY, FUNCTION, AND CONFORMITY:
KRS 350.028
requires the Energy and Environment Cabinet to promulgate administrative
regulations pertaining to noncoal mineral operations to minimize their adverse
effects on the citizens and the environment of the commonwealth.
KRS
350.029 authorizes the cabinet to promulgate
reasonable administrative regulations to establish effective programs for the
control of surface soil disturbance in connection with mining as defined by the
Interstate Mining Compact.
KRS
350.240 authorizes the cabinet to promulgate
reasonable administrative regulations for the reclamation of land disturbed or
removed in the mining of clay.
KRS
350.300 authorizes the cabinet to formulate
and establish an effective program and standards for the conservation and use
of mined land. This administrative regulation specifies information to be
submitted by the applicant relating to legal status, financial information,
general site information, map requirements, cultural and environmental resource
information, and mining and reclamation plans. This administrative regulation
also addresses the waivers and approvals necessary to conduct noncoal mineral
operations, including those of other agencies, and establishes provisions
concerning review of permits and other permit related procedural
matters.
Section 1. General.
(1) This administrative regulation shall
pertain to a person who applies for a permit to conduct mineral
operations.
(2) Preliminary permit
requirements.
(a) A person or mineral operator
desiring a permit shall submit a preliminary map at a scale one (1) inch equals
400 feet or 500 feet, marked to show the proposed permit area and adjacent
areas, including location of access roads, spoil or waste areas, and
sedimentation ponds.
(b) Personnel
of the cabinet shall conduct, within fifteen (15) working days after filing, an
on-site investigation of the area with the applicant or the applicant's
designated representatives.
(3) Permanent permit requirements. An
original and two (2) complete, separately bound and distinct copies of the
application shall be submitted to the cabinet, at the Department for Natural
Resources, Division of Mine Reclamation and Enforcement, Noncoal Review Branch,
300 Sower Boulevard, Frankfort, Kentucky 40601, or at one (1) of the following
regional offices:
(a) Madisonville Regional
Office, 625 Hospital Drive, Madisonville, Kentucky 42431-1683;
(b) Middlesboro Regional Office, 1804 East
Cumberland Avenue, Middlesboro, Kentucky 40965-1229;
(c) Pikeville Regional Office, 121 Mays
Branch Road, Pikeville, Kentucky 41501-9331; or
(d) Hazard Regional Office, 556 Village Lane,
P.O. Box 851, Hazard, Kentucky 41702.
Section 2. Identification of Interests.
(1) Each permit application shall contain the
names and addresses of:
(a) The applicant,
including phone number;
(b) The
registered agent for service of process, if applicable, including phone
number;
(c) Owners, partners, or if
a corporation, officers or stockholders owning ten (10) percent or more
stock;
(d) The project engineer,
along with registration number and name of associated firm;
(e) The company and engineer to which
correspondence concerning the subject permit shall be addressed;
(f) Surface owners of record within the area
proposed for mining, including areas overlying underground workings;
(g) Mineral owners of record within the area
proposed for mining, including areas overlying underground workings;
and
(h) Surface owners of record
within 500 feet of the proposed permit boundary and areas overlying underground
workings.
(2) If the
company has undergone a name change or changes during the previous five (5)
years, the applicant shall list the names.
(3) The legal structure of the applicant
shall be specified.
(4) If the
business is owned by an individual or is a partnership, and is performed under
an assumed name, the applicant shall specify the county and state where the
name is registered.
(5) The
applicant shall list previous Kentucky permits held by the applicant or an
individual, partnership, or corporation associated with the
applicant.
(6) The applicant shall
provide the name of the contact person at the site, including phone
number.
(7) The applicant shall
specify the type of application, along with the permit number.
Section 3. Bond Information.
(1) If bond is required pursuant to
405 KAR 5:082,
the following information shall be provided in the permit application:
(a) The bond amount per acre;
(b) The total amount of bond; and
(c) The bond type.
(2) If a surety is used, the applicant shall
provide the bond number and surety.
(3) If a certificate of deposit is used, the
applicant shall provide the bank name and CD number.
(4) If a letter of credit is used, the
applicant shall provide the bank name and letter of credit number.
Section 4. Equipment Inventory.
The permit application shall contain a list of all equipment, model numbers,
and condition of the equipment proposed to be used for removing overburden and
reclaiming the affected area of the proposed mineral operation.
Section 5. Waivers and Approvals.
(1) If blasting will occur within 300 feet of
an occupied dwelling or if mineral extraction will occur within 100 feet of an
occupied dwelling, the permit application shall contain a waiver from the
owner, acknowledging approval of the activity.
(2) Except where mine access roads or haul
roads join the right-of-way, if the proposed mineral operation will occur
within 100 feet of the right-of-way of a public road, or if relocation of a
public road is proposed, the permit application shall contain proof of
notification to and required approvals from the appropriate agency or local
government with jurisdiction over the road.
(3) If a permanent pond other than a final
pit impoundment with no embankment is proposed, approval from the landowner for
the structure and a written acknowledgment from the landowner that the mineral
permittee shall not have continuing maintenance responsibility after permit
release shall be required.
(4) If
relocation, channelization, or other significant disturbance to an intermittent
or perennial stream is proposed, or if the proposed mineral operation will
occur within, or in any way impact, a floodplain, wetland, or other water of
the commonwealth, the applicant shall obtain permits and approvals from the
United States Army Corps of Engineers and the Kentucky Division of Water.
Approval shall also be required by the cabinet for disturbances within 100 feet
of an intermittent or perennial stream.
(5) If a sedimentation pond or other point
source discharge is proposed, a KPDES permit from the Kentucky Division of
Water shall be required.
(6) If
water withdrawal is proposed, a Water Withdrawal Permit, pursuant to
401 KAR
4:010, shall be obtained from the Kentucky Division of
Water.
(7) If there are local
zoning regulations, the applicant shall state this in the application to the
Division of Mine Reclamation and Enforcement.
(8) If applicable, approval from the owner of
the utilities and facilities as provided in
405 KAR 5:015,
Section 4(6) shall be required.
Section 6. Right to Mine. The permit
application shall contain a signed statement by the applicant attesting that
the applicant has the legal right to mine including the effective date of the
source document of the legal right to mine.
Section 7. Verification of Application. The
permit application shall contain a statement, signed by the applicant,
acknowledging that all statements and representations, made in the application,
are true and correct.
Section 8.
Map Requirements. The permit application shall include original and two (2)
copies of a section of the relevant United States Geological Survey
Topographical Map or an equivalent format which shall:
(1) Delineate the proposed permit area and
areas, if applicable, overlying proposed underground workings;
(2) Be of a scale of not more than one (1)
inch to 400 feet;
(3) Show all
other mine operations within 500 feet of the proposed permit boundaries and
proposed underground workings, including those within the proposed permit
boundaries;
(4) Delineate the
property boundaries of all landowners within the proposed permit area and areas
overlying proposed underground workings and all landowners within 500 feet of
the proposed permit boundary and areas overlying proposed underground workings,
along with the names of all the landowners;
(5) Delineate all proposed access roads onto
the proposed mineral operation;
(6)
Show the site slope;
(7) Show the
name and location of all streams, rivers, lakes, outstanding resource waters
pursuant to
401 KAR
10:031, or other public water bodies; proposed stream
buffer zones; roads, cemeteries, houses, churches, schools and other public
buildings; oil and gas wells; public properties such as;
(a) Parks, Wildlife Management Areas, and
nature preserves; and
(b) Utility
lines on the area to be affected, and within 1,000 feet of the proposed permit
boundary;
(8) Locate
sites listed on the National Register of Historic Places and known
archaeological sites;
(9) Delineate
wetlands that may be affected by the proposed mineral operation;
(10) Show the drainage pattern on and away
from the area to be affected, including the direction of flow, proposed
constructed drainways, natural drainways to be used for drainage, and the
streams or tributaries to receive discharges from the proposed mineral
operation;
(11) Show proposed pit
area, sediment structures, storage areas, and other facilities and features
related to the mineral operation;
(12) Provide a north point arrow;
(13) Contain a legend, which shall:
(a) Provide the company name;
(b) Provide the application number;
(c) Provide the county and quadrangle
names;
(d) Provide the site
coordinates;
(e) Provide the site
address;
(f) Provide the map scale
and contour interval;
(g) Provide a
description of the site location including:
1.
The nearest stream; and
2. The
distance and direction from the nearest road intersection or town;
(h) Identify each insignia,
symbol, number, or letter used to designate features, facilities, or
areas;
(i) Provide acreage
breakdowns of the various mineral operation features and facilities, including
pit areas, storage areas, sediment structures, access roads, and the total
number of acres of area to be affected; and
(j) Specify the deposit to be mined;
and
(14) Provide a
signed, notarized statement that the map has been prepared and certified by a
professional engineer, licensed pursuant to the provisions of KRS Chapter 322.
This statement shall read, "I, the undersigned, hereby certify that this map is
correct, and shows to the best of my knowledge and belief all the information
required by the mineral operation laws and administrative regulations of the
state". This statement shall include:
(a) The
engineer's registration number; and
(b) The date on which the map was
prepared.
Section
9. General Site Information. The permit application shall contain
the following general site information:
(1)
Location of the mineral operation to include:
(a) Latitude and longitude;
(b) The nearest community;
(c) The name of the nearest stream;
(d) The nearest public road intersection;
and
(e) The name of the United
States Geological Survey quadrangle or quadrangles, in which the proposed
mineral operation will occur;
(2) A county by county list of the types of
disturbances planned, accompanied by the acreage to be involved with each
disturbance;
(3) Specification of
the mineral to be extracted;
(4)
Specification of the major watershed or watersheds, which will be affected, by
the proposed mineral operation;
(5)
Specification if active discharges exist that may affect the proposed mineral
operation. If so, provide the following information:
(a) The pH of the discharge; and
(b) The source of the discharge;
(6) Specification if underground
workings will be encountered, and the distance, in feet, to the nearest active
deep mine; and
(7) Specification of
the types of disturbances planned for the proposed mineral operation.
Section 10. Cultural Resource
Information. The applicant shall specify if sites listed on the National
Register of Historic Places or known archaeological sites exist within, or
adjacent to, the proposed permit boundary.
Section 11. Environmental Resources
Information.
(1) The applicant shall indicate
if there are Wildlife Management Areas, wildlife refuges, nature preserves,
state or national parks, state or national forests, or similar public lands
within the vicinity of the proposed mineral operation. If these lands exist,
the applicant shall delineate them on the map.
(2) The applicant shall indicate if
disturbances within the channel of, or within 100 feet of, an intermittent or
perennial stream are proposed.
(3)
The applicant shall indicate if there are outstanding resource waters, pursuant
to
401 KAR
10:031, within the vicinity of the proposed mineral
operation. If so, the applicant shall delineate these waters on the
map.
Section 12. Surface
Water Quantity and Quality Protection Plan. The permit application shall
contain a surface water quantity and quality protection plan, which shall
demonstrate compliance with
405 KAR
5:050 and
405 KAR
5:055, and shall include the following information:
(1) The number of sedimentation ponds
proposed, accompanied by designs, drawings, and specifications for each
structure to include:
(a) The structure
number;
(b) The number of acres to
be disturbed within the drainage area;
(c) The number of acres in the drainage
area;
(d) Sediment storage
capacity;
(e) Storage capacity at
the principal spillway;
(f) Storage
capacity at the emergency spillway;
(g) Spillway capacities;
(h) Structure height measured from the
downstream toe; and
(i) All other
engineering designs, dimensions, and calculations required to demonstrate
compliance with
405 KAR
5:050 and
405 KAR
5:055.
(2) If sediment removal becomes necessary,
the permit application shall contain a description of how sediment shall be
removed and disposed.
(3) The
applicant shall state if any permanent sedimentation ponds are
proposed.
(4) The permit
application shall contain descriptions, designs, diagrams, figures, and
calculations as necessary to adequately explain and illustrate all other
sediment control structures.
(5)
The permit application shall contain descriptions, designs, diagrams, figures,
and calculations as necessary to adequately explain and illustrate other
methods proposed for protecting surface waters.
Section 13. Permanent and Temporary
Impoundments. If an impoundment is part of the plan of reclamation or method of
mineral operation, the permit application shall contain detailed designs and
specifications for the impoundment that demonstrates compliance with
405 KAR
5:055.
Section
14. Spoil Handling Plan. The permit application shall contain or
be accompanied by a plan for the handling and disposal of spoil, in excess of
that involved with backfilling and grading, which shall demonstrate compliance
with the requirements of
405 KAR
5:062.
Section
15. Toxic Materials Handling Plan. The permit application shall
contain, or be accompanied by, a plan for the handling of acidforming or
toxicforming materials, waste materials, or other unstable materials that shall
demonstrate compliance with the requirements of
405 KAR
5:062.
Section
16. Backfilling and Grading Plan. The permit application shall
contain, or be accompanied by, a plan for backfilling and grading, which shall
demonstrate compliance with the requirements of
405 KAR
5:062.
Section
17. Topsoil Handling and Restoration Plan. The permit application
shall contain, or be accompanied by, a plan for the handling and restoration of
topsoil, which shall demonstrate compliance with the requirements of
405 KAR
5:062.
Section
18. Land Use Plan.
(1) The permit
application shall contain a land use plan, which demonstrates compliance with
405 KAR
5:065, and is consistent with
405 KAR 5:070, that:
(a) Specifies the premining use or uses
within, and adjacent to, the proposed permit boundary;
(b) Specifies the intended postmining land
use for the proposed permit area; and
(c) If the postmining land use is different
from the premining land use, shall provide a discussion justifying the
change.
(2) The land
uses are listed at
405 KAR
5:065, and are defined in
405 KAR
5:002.
Section 19. Revegetation Plan. The permit
application shall contain a revegetation plan that shall demonstrate compliance
with the requirements of
405 KAR 5:070, and
is consistent with
405 KAR
5:065 and that provides the following information:
(1) Identification of the material that will
be redistributed on the regraded area as a plant growth medium;
(2) Permanent grass species, permanent legume
species, and quick cover species to be seeded during revegetation, along with
their application rates (pounds/acre);
(3) Tree and shrub species to be planted
during revegetation, along with their stocking rates (number/acre);
and
(4) The type of mulch to be
used, along with the mulching rate (pounds or tons/acre), or other soil
stabilization practices to be incorporated.
Section 20. Designs and Attachments.
(1) The permit application shall be
accompanied by the descriptions, designs, diagrams, figures, and calculations
necessary to adequately explain and illustrate proposed sediment control
structures, as required under Sections 12 and 13 of this administrative
regulation; spoil disposal fills; access and haul roads; stream crossings; and
ditches.
(2) Access and haul road
designs shall conform to the specifications established in
405 KAR
5:040.
(3)
The designs and plans shall demonstrate compliance with all pertinent
requirements of 405 KAR Chapter 5, and shall be certified by a Kentucky
professional engineer.
Section
21. Newspaper Advertisement: Publication of Notice of Intention to
Mine.
(1) An applicant for a new permit
required pursuant to KRS Chapter 350, shall publish at least once, a public
notice of the application for that permit.
(a)
The publication shall be made by advertisement in the newspaper of largest bona
fide circulation in the county where the proposed mining site is
located.
(b) If the proposed mining
site is in more than one (1) county, publication shall be required in the
newspaper of largest bona fide circulation in each county.
(2) The publication shall be made not less
than ten (10) nor more than thirty (30) days prior to the filing of the permit
application with the department.
(3) The public notice of the intention to
file an application shall be entitled "Notice of Intention to Mine Noncoal
Minerals" and shall include at a minimum the following:
(a) Name and address of the
applicant;
(b) Permit application
number;
(c) The location of the
proposed mining site; and
(d) A
brief description of the kind of mining activity proposed, together with a
statement of the amount of acreage affected by the proposed mineral
operations.
(4) The
applicant for a new permit required by KRS Chapter 350 shall establish the date
and place that the "Notice of Intention to Mine Noncoal Minerals" was
published, by attaching to the application proof of the time, place, and
content of the published notice.
Section 22. Permit Revisions. A revision to a
permit shall be obtained if the mineral permittee desires to modify the mineral
operations or make changes to the original permit that does not involve
increased acreage. The following stipulations shall apply to permit revisions:
(1) The application for revision shall be
filed with the cabinet and approved prior to the date on which the mineral
permittee expects to revise the mineral operation;
(2) The term of a permit shall remain
unchanged by a revision; and
(3)
The application for revision shall be submitted using the "Application for
Surface Disturbance Mining Permit Noncoal Mining", Form NCR-2.
Section 23. Permit Amendments.
Upon application by the mineral permittee, the cabinet may amend a valid
existing permit, so as to increase the permitted area to be affected by mineral
operations under the permit. Applications for amendment may be filed at any
time during the term of the permit.
(1) The
mineral permittee shall file an application in the same form and with the same
content as required for an original permit pursuant to this administrative
regulation.
(2) The mineral
permittee may need to file a supplemental bond with the cabinet in an amount to
be determined, as provided under
405 KAR 5:082,
for each additional acre or fraction of an acre.
Section 24. Permit Renewals. A valid permit
issued pursuant to 405 KAR Chapter 5 shall carry with it, the right of
successive renewal upon expiration of the term of the permit. Successive
renewal shall be allowed only for those areas specifically within the
boundaries of the existing permit.
(1) An
application for renewal of a permit shall be filed with the cabinet at least
sixty (60) days prior to the expiration date of the permit.
(2) If an application for renewal of a valid
existing permit includes a proposal to extend the mineral operation beyond the
boundaries authorized pursuant to the existing permit, the portion of the
application that addresses a new land area shall be subject to all requirements
of 405 KAR Chapter 5, and a new original permit application shall be required
for these areas.
(3) The permit
renewal shall be issued if the following requirements are met:
(a) The application for renewal shall be
submitted using the "Application for Surface Disturbance Mining Permit Noncoal
Mining", Form NCR-2;
(b) The
mineral permittee shall submit all revised or updated information required by
the cabinet, including at a minimum:
1. An
updated operational plan current to the date of request for renewal;
and
2. Specification of the status
and extent of all mineral operations on the existing permit area;
(c) The present mineral operation
is in compliance with KRS Chapter 350 and 405 KAR Chapter 5; and
(d) The mineral permittee shall provide
additional bond required in accordance with
405 KAR
5:082.
Section 25. Permit Succession.
(1) There shall not be succession on the
permitted area without the prior written approval of the cabinet in accordance
with this section.
(2) The initial
mineral permittee shall notify the cabinet, in writing, of a proposed
succession.
(3) The cabinet may
release the first mineral operator from reclamation responsibility pursuant to
405 KAR Chapter 5 as to that particular mineral operation, except that:
(a) There shall not be release until the
successive mineral operator has been issued a permit and has otherwise complied
with the requirements of 405 KAR Chapter 5; and
(b) The successor shall immediately assume,
as a part of his obligation pursuant to 405 KAR Chapter 5, all liability for
the reclamation of the area affected by the former permitted mineral
operation.
(4) If the
cabinet has given its prior written approval to the succession, a successor in
interest to a mineral permittee who applies for a successor permit within
thirty (30) days of succeeding to the interest, and who obtains immediate bond
coverage at least equivalent to the amount of the bond of the original mineral
permittee, may continue mineral operations according to the approved permit
plan of the original mineral permittee until the successor's application is
granted or denied.
(5) The bond
coverage provided by the successor in interest shall take effect immediately
upon the commencement of mineral operations by the successor.
Section 26. Review of Permits.
(1) Within thirty (30) working days of
receiving the permit application, the cabinet shall make one (1) of three (3)
decisions:
(a) To technically withdraw the
permit application;
(b) To deny the
permit application; or
(c) To
approve the permit application.
(2) If the permit application is technically
withdrawn or denied, the thirty (30) working day period shall be stopped on the
date of this decision.
(3) The time
period shall restart on the date the permit application is returned with
deficiencies corrected.
(4) If the
application is not approved, the cabinet shall state the reasons, in writing,
for which the application is not approved; and the cabinet may propose
modifications, delete areas, or reject the entire application.
(5) If the mineral permittee disagrees with
the decision of the cabinet, the mineral permittee may, by written notice,
request a hearing by the cabinet, pursuant to
400
KAR 1:120.
(6) The cabinet shall notify the applicant by
registered mail within twenty (20) days after a decision is made.
Section 27. Criteria for Permit
Approval and Denial. An application for a permit and mineral operation shall
not be approved unless the application affirmatively demonstrates and the
cabinet determines on the basis of information stated in the application, and
other available pertinent information, that:
(1) The permit application is accurate,
complete, and that the applicant has complied with all requirements of 405 KAR
Chapter 5;
(2) The mineral
operation proposed can be carried out under the method of mineral operation
outlined in the permit application in a manner that will satisfy all
requirements of 405 KAR Chapter 5;
(3) The proposed mineral operation shall not
constitute a hazard to, or do physical damage to life, to an occupied dwelling,
public building, school, church, cemetery, commercial or institutional
building, public road, stream, lake, other public property, or to members of
the public or their real and personal property.
(a) All necessary measures shall be included
in the method of mineral operation in order to eliminate the hazard or
damage.
(b) If it is not
technologically feasible to eliminate the hazard or damage by adopting
specifications in the method of mineral operation, then that part of the
mineral operation that constitutes the cause of the hazard or damage shall be
deleted from the application and mineral operation;
(4) The proposed mineral operation shall not
adversely affect natural hazard lands or a wild river established pursuant to
KRS Chapter 146;
(5) The proposed
mineral operation shall not be inconsistent with other mineral operations
anticipated in areas adjacent to the proposed permit area; and
(6) The proposed permit area is:
(a) Not included within the boundaries of the
National Park System, the National Wildlife Refuge System, including study
rivers designated under Section 5(a) of the Wild and Scenic Rivers Act
(16
U.S.C. 1276(a)) , and the
National Recreation Areas designated by Act of Congress;
(b) Not included within 300 feet, measured
horizontally, of a public park, public building, school, church, community, or
institutional building;
(c) Not
included within 100 feet, measured horizontally, of a cemetery, and access to
be provided to a cemetery at all times;
(d) Not within 100 feet, measured
horizontally, of the outside right-of-way line of a public road, except:
1. Where mine access roads or haul roads join
the right-of-way; or
2. Where the
cabinet allows the roads to be relocated or allows disturbances within 100 feet
of the roads, once the applicant has obtained necessary approval from the
governmental authority with jurisdiction over the public road, as required
under Section 5 of this administrative regulation; and if after public notice
and opportunity for public hearing a written finding is made by the cabinet
that the interest of the public and the landowners affected thereby shall be
protected;
(e) Not
within the distances specified in Section 5 of this administrative regulation,
measured horizontally, of an occupied dwelling unless the applicant submits
with the permit application a written affidavit from the owner of the dwelling
specifying an allowance, as required by Section 5 of this administrative
regulation.
1. This waiver shall be knowingly
and intelligently executed, and be separate from a lease or deed, unless the
lease or deed contains an explicit waiver.
2.
a. A
waiver obtained from previous owners shall remain effective for subsequent
owners who had actual or constructive knowledge of the existing waiver when the
dwelling was purchased.
b. A
subsequent owner shall be deemed to have constructive knowledge if the waiver
has been properly filed in public property records pursuant to
KRS
382.110 or if the mining has proceeded to
within the distance limit prior to the date of purchase; and
(f) Not within 100 feet
of an intermittent or perennial stream unless appropriate permits and
approvals, required pursuant to Section 5 of this administrative regulation,
have been obtained authorizing mineral operations at a closer distance to, or
through, the stream. The authorization shall not be given unless the applicant
demonstrates that the authorization is environmentally sound and that KRS
Chapter 350 and 405 KAR Chapter 5 have been satisfied.
Section 28. Permit Conditions;
Permit Term.
(1) Permits issued by the
cabinet may contain certain conditions necessary to ensure that the mineral
operation shall be conducted in compliance with KRS Chapter 350 and 405 KAR
Chapter 5.
(2) All mineral
operations shall be conducted in accordance with KRS Chapter 350 and 405 KAR
Chapter 5 and conditions of the permit.
(3) Each permit shall be issued for a fixed
term not to exceed five (5) years.
Section 29. Denial of a Permit for Past
Violations.
(1) A mineral operator or person
whose permit has been revoked or suspended shall not be eligible to receive
another permit or begin another mineral operation, or be eligible to have
suspended permits or mineral operations reinstated until he has complied with
all applicable requirements of KRS Chapter 350 and 405 KAR Chapter 5 with
respect to all permits issued him.
(2) A mineral operator or person whose
surface coal mining operation permit has been revoked or suspended shall not be
eligible to receive another permit or begin another mineral operation, or be
eligible to have suspended permits or mineral operations reinstated until he
has complied with all applicable requirements of KRS Chapter 350, 405 KAR
Chapters 7 through 24 with respect to all surface coal mining operation permits
issued him.
(3) A mineral operator
or person who has forfeited any bond filed with the cabinet for a mineral
operation or a surface coal mining operation shall not be eligible to receive
another permit or begin another mineral operation unless:
(a) The land for which the bond was forfeited
has been reclaimed without cost to the state; or
(b) The mineral operator or person has paid a
sum in accordance with the estimate prepared by the Division of Abandoned Mine
Lands of the cost to reclaim the lands, based upon site specific
conditions.
(4) If the
applicant, mineral operator, a subcontractor, or a person acting on behalf of
the applicant has either conducted activities with a demonstrated pattern of
willful violations of 405 KAR Chapter 5, or has repeatedly been in
noncompliance of this chapter, then the permit application shall be denied. A
mineral permittee shall not be relieved of responsibility with respect to a
permit issued to him.
(5) If the
cabinet determines that an activity of the applicant regulated pursuant to 405
KAR Chapter 5 is currently in violation of KRS Chapters 149, 151, 224, 350
through 353, 400 KAR Chapters 1 through 3, 401 KAR Chapters 4 through 100, 402
KAR Chapter 3, or 405 KAR Chapters 2 through 30, then the cabinet shall require
the applicant, before the issuance of the permit, to either:
(a) Submit proof that can be substantiated by
the cabinet that the violation has been corrected or is in the process of being
corrected in good faith; or
(b)
Establish, by proof that can be substantiated by the cabinet, that the
applicant has filed and is presently pursuing, a good faith administrative or
judicial appeal to contest the validity of the violation.
(6) If the applicant submits the proof
specified pursuant to subsection (5) of this section, then the cabinet may
issue the permit with a condition that either the reclamation work be continued
in good faith until completion or that if the applicant loses his action
contesting the violation that the violation be corrected within a specified
time. Failure to comply with a condition shall be grounds for revocation of the
permit.
(7) If the applicant
disagrees with the cabinet's determination pursuant to this section, then he or
she has the right to request an administrative hearing pursuant to
400
KAR 1:120.
Section 30. Permit Conference and Public
Comment.
(1) Procedures for requests. A person
whose interests are or may be adversely affected by the issuance of the
application, including the officer or head of any federal, state, or local
government agency or authority, may request that the cabinet hold an informal
conference on an application for a permit. The request shall:
(a) Briefly summarize the issues to be raised
by the requester at the conference; and
(b) Be filed with the cabinet within fifteen
(15) days of the newspaper advertisement.
(2)
(a) The
conference shall be held at the Division of Mine Reclamation and
Enforcement.
(b) The conference
shall be held within fifteen (15) days of the date of the request. The date,
time, and location of the conference shall be sent to the applicant and parties
requesting the conference.
(c) The
conference shall be conducted by a representative of the cabinet who shall
accept oral or written statements and other relevant information from a party
to the conference.
(d) If all
parties requesting the conference stipulate agreement before the requested
conference and withdraw their requests, the conference shall not be
held.
(e) All comments and evidence
shall be taken into consideration by the Division of Mine Reclamation and
Enforcement in Frankfort before a final decision is made on the disposition of
the application.
(f) The record
shall be maintained and shall be accessible to the parties during the life of
the mineral operation.
(3) A person whose interests are or may be
adversely affected by the issuance of the application, including the officer or
head of a federal, state, or local government agency or authority, may submit
written comments to the cabinet.
Section 31. Existing Mineral Operations.
(1) The cabinet may grant limited variances
from the distance limitations of Section 27(6) of this administrative
regulation if an existing disturbance within those limits was made prior to
February 1995 by an existing mineral operation that was not permitted or
regulated prior to February 1995. These variances shall only be granted if
practical and reasonable remedial compliance measures cannot be
identified.
(2) The distance
limitations of Section 27(6) of this administrative regulation shall not apply
if lesser distance limitations have been approved in a valid permit issued
prior to February 1995. The distance limitations established in those permits
shall continue to apply.
Section
32. Incorporation by Reference.
(1) "Application for Surface Disturbance
Mining Permit Noncoal Mining, NCR-2", July 2005, is incorporated by
reference.
(2) This material may be
inspected, copied, or obtained, subject to applicable copyright law, at the
Department for Natural Resources, 300 Sower Boulevard, Frankfort, Kentucky
40601, Monday through Friday, 8 a.m. to 4:30 p.m.
STATUTORY AUTHORITY:
KRS 350.028,
350.029,
350.240,
350.300