Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
350.020,
350.028,
350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in
pertinent part requires the cabinet to promulgate rules and administrative
regulations pertaining to surface coal mining and reclamation operations that
are no more stringent than SMCRA. This administrative regulation governs the
granting and approval of experimental mining practices that encourage advances
in mining, reclamation, and postmining land use practices.
Section 1. General. Experimental practices
provide a variance from the environmental protection performance standards of
KRS Chapter 350 and 405 KAR Chapters 16 through 20 for experimental or research
purposes to encourage advances in mining and reclamation practices or to allow
certain alternative postmining land uses. Experimental practices may be
undertaken if they are approved by the cabinet and the Director of OSM and if
their terms and conditions are incorporated into a permit, a permit amendment,
or a permit revision issued in accordance with
405 KAR
8:010.
Section
2. Approval Procedures.
(1)
Required approval. No person shall engage in or maintain any experimental
practice unless that practice is first approved in a permit by the cabinet and
the Director of OSM.
(2)
Application requirements. Each permit application submitted pursuant to this
administrative regulation shall contain appropriate descriptions, data, maps,
and plans which identify:
(a) The nature of
the experimental practice, including a description of the performance standards
for which variances are requested, the duration of the experimental practice,
and any special monitoring which will be conducted.
(b) How use of the experimental practice:
1. Encourages advances in mining and
reclamation technology; or
2.
Allows a postmining land use for industrial, commercial, residential, or public
(including recreational facilities) use on an experimental basis, when the
results are not otherwise attainable under the administrative regulations of
405 KAR Chapters 7 through 24.
(c) That the experimental practice:
1. Is potentially more, or at least as,
environmentally protective during and after the proposed mining and reclamation
operations as would otherwise be required by standards promulgated under 405
KAR Chapters 16 through 20; and
2.
Will not reduce the protection afforded public health and safety below that
provided by the requirements of 405 KAR Chapters 16 through 20.
(d) That the applicant will
conduct monitoring of the effects of the experimental practice. The monitoring
program shall ensure the collection, analysis, and reporting of sufficient,
reliable data to enable the cabinet and the Director of OSM to:
1. Evaluate the effectiveness of the
experimental practice; and
2.
Identify, as soon as possible, potential risks to the environment and public
health and safety which may be caused by the experimental practice during and
after mining.
(e) To the
extent possible as can be foreseen prior to the actual conductance of the
experimental practice, the procedures and measures which will be implemented to
comply with the performance standards of KRS Chapter 350 and 405 KAR Chapters
16 through 20, or, if such compliance is not possible, to provide a level of
protection equivalent to or in excess of that provided for by the performance
standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20, if the
experimental practice should fail to be as environmentally protective or as
protective of the health or safety of the public as provided for by the
performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through
20.
(3) Public notice.
All experimental practices for which variances are sought shall be specifically
identified through the newspaper advertisements by the applicant and the
written notifications by the cabinet required under
405 KAR
8:010, Section 8.
(4) Criteria for approval. No permit
authorizing an experimental practice shall be issued unless the cabinet finds,
in writing upon the basis of both a complete application filed in accordance
with the requirements of this administrative regulation and 405 KAR Chapter 8,
and the concurrence of the Director of OSM, that:
(a) The experimental practice encourages
advances in mining and reclamation technology or allows a postmining land use
for industrial, commercial, residential, or public (including recreational
facilities) use on an experimental basis;
(b) The experimental practice is potentially
more, or at least as, environmentally protective during and after mining
operations as would otherwise be required under 405 KAR Chapters 16 through
20;
(c) The mining operations
approved for a particular land use or other purpose are not larger or more
numerous than necessary to determine the effectiveness and feasibility of the
experimental practice; and
(d) The
experimental practice does not reduce the protection afforded public health and
safety below that provided by standards promulgated under 405 KAR Chapters 16
through 20.
(5)
Revisions. Revisions to an experimental practice shall be processed and
approved in accordance with
405 KAR
8:010, Section 20. Any revisions which propose
significant alterations in the experimental practice shall be deemed major
revisions and subject to the approval of the Director of OSM. Revisions that do
not propose significant alterations in the experimental practice shall be
deemed minor revisions and shall not require the approval of the Director of
OSM.
(6) Prime farmland.
Experimental practices granting variances from the special environmental
performance standards applicable to prime farmland shall be approved only after
consultation with SCS.
(7)
Alternative postmining land uses. Experimental practices granting variances
from the requirements of KRS Chapter 350 and 405 KAR for alternative postmining
land uses shall not be approved by the cabinet, unless the attainment of the
alternative postmining land uses would not otherwise be practicable or feasible
without the approval of the experimental practice.
Section 3. Monitoring and Additional
Requirements.
(1) Each permittee undertaking
an experimental practice shall conduct the periodic monitoring, recording, and
reporting programs set forth and approved in the application. Each permittee
shall satisfy such additional requirements as the cabinet or the Director of
OSM may impose to ensure protection of the environment and the public health
and safety.
(2) In accordance with
405 KAR
8:010, Section 18, the terms and conditions applicable
to the experimental practice shall be as indicated in the approved permit
application.
(3) If, subsequent to
the issuance of a permit for an experimental practice, the experimental
practice should fail to be as environmentally protective or as protective of
the health or safety of the public as provided for by the performance standards
of KRS Chapter 350 and 405 KAR Chapters 16 through 20, the permittee shall
immediately contact the cabinet and the OSM, shall fully and accurately
describe the situation to those agencies, and shall implement those procedures
and measures identified pursuant to Section 2(2)(e) of this administrative
regulation which are necessary to achieve such a condition. If the procedures
and measures identified pursuant to Section 2(2)(e) of this administrative
regulation are determined by the cabinet or the OSM to be insufficient to
achieve this condition, the permittee shall perform remedial measures as
required by the cabinet or the OSM to achieve such a condition. If the cabinet
or the OSM determines that such a level of protection cannot be achieved, the
cabinet or the OSM shall inform the permittee of remedial measures which must
be implemented to provide maximum protection to the environment and the health
and safety of the public.
Section
4. Periodic Review.
(1) Each
experimental practice shall be reviewed by the cabinet at a frequency set forth
in the approved permit but no less than two and one-half (2 1/2) years. After
review the cabinet shall, after consulting with the Director of OSM, require,
by order supported by written findings, any reasonable modification of the
experimental practice necessary to ensure that the operations involved are
conducted to fully protect the environment and public health and
safety.
(2) Administrative review
of modification order. Any person who is or may be adversely affected by an
order pursuant to subsection (1) of this section shall be provided with an
opportunity for a hearing as established in
400
KAR 1:110, Section 8.
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028,
350.465