Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
350.465, 30 C.F.R. Parts 730-733, 735, 795,
917,
30 U.S.C. 1253,
1255,
1257
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. This
administrative regulation provides for cabinet assistance to eligible small
operators, under the federally- funded small operator assistance program. This
administrative regulation sets forth the scope, objectives, and sources and use
of funds for the small operator assistance program in Kentucky; establishes
eligibility criteria; establishes procedures and forms for filing for
assistance; establishes notification procedures; sets forth the services to be
provided under the program and the regulatory requirements to be addressed by
those services; authorizes allocation if available funds are insufficient to
serve all eligible applicants; establishes minimum standards for qualified
laboratories; and requires reimbursement of the cabinet in certain
circumstances.
Section 1. Scope.
(1) This administrative regulation
establishes the small operator assistance program (program) authorized at
KRS
350.465(2)(f).
(2) Consistent with
30 USC
1257(c) and 30 CFR Part 795
, this administrative regulation shall govern the procedures and criteria under
which the cabinet shall provide assistance to eligible small operators in
meeting the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through
24.
(3) This administrative
regulation shall be construed to allow the fullest possible extent of services
consistent with federal requirements and available funds.
Section 2. Objective. The objective of this
administrative regulation is to meet the intent of
KRS
350.465(2)(f) by:
(1) Providing financial and other necessary
assistance to eligible small operators; and
(2) Assuring that the cabinet shall have
sufficient information to make a reasonable assessment of the probable
cumulative impacts of all anticipated mining upon the hydrology of the
watershed(s) and particularly upon water availability.
Section 3. Source and Use of Funds. The
secretary shall provide financial and other assistance under
KRS
350.465(2)(f) to the extent
that state funds are made available and to the extent that funds are
appropriated by the United States Congress specifically for implementation of
30 USC
1257(c) and made available
to the Commonwealth.
Section 4.
Program Services. To the extent possible with available funds the cabinet shall
provide services in accordance with this section.
(1) For eligible small operators who request
assistance, the cabinet shall select and pay a qualified laboratory to perform
the following services in accordance with Section 8 of this administrative
regulation:
(a) Determine for the operator the
probable hydrologic consequences of the mining and reclamation operations both
on and off the proposed permit area, including the engineering analyses and
designs necessary for the determination;
(b) Perform geologic drilling and prepare a
statement of the results of test borings or core samplings;
(c) Collect cultural, historic, and
archaeological resources information and prepare necessary reports and
plans;
(d) Perform preblasting
surveys;
(e) Collect site-specific
resource information and prepare plans for the protection and enhancement of
fish and wildlife and other environmental values; and
(f) Develop cross sections, maps and plans
required for permit applications, in accordance with
30 USC
1257(c).
(2) For eligible small operators
who request assistance, the cabinet may select and pay a qualified laboratory
to collect and provide general hydrologic information on the basin or subbasin
areas within which the anticipated mining will occur. The information provided
shall be limited to that required to relate the basin or subbasin hydrology to
the hydrology of the proposed permit area.
(3) The cabinet shall provide informational
services to insure that eligible small operators are made aware of the
assistance available under the program.
(4) The cabinet shall make training services
available to eligible small operators and their representatives and other
potentially affected persons concerning preparation of permit applications and
compliance with regulatory requirements.
Section 5. Eligibility for Assistance. An
applicant shall be eligible for assistance if he:
(1) Intends to apply for a permit pursuant to
KRS Chapter 350;
(2) Establishes
that the probable total actual and attributed annual production of the
applicant from all locations will not exceed 300,000 tons. Production from the
following operations shall be attributed to the applicant:
(a) The pro rata share, based upon percentage
of ownership of the applicant, of coal produced by operations in which the
applicant owns more than a ten (10) percent interest;
(b) The pro rata share, based upon percentage
of ownership of the applicant, of coal produced in other operations by persons
who own more than ten (10) percent of the applicant's operation;
(c) All coal produced by operations owned by
persons who directly or indirectly control the applicant by reason of direction
of the management; and
(d) All coal
produced by operations owned by members of the applicant's family and the
applicant's relatives, unless it is established that there is no direct or
indirect business relationship between or among them.
(3) Is not restricted in any manner from
receiving a permit under 405 KAR Chapters 7 through 24; and
(4) Does not organize or reorganize his
company solely for the purpose of obtaining assistance under this
administrative regulation.
Section
6. Filing for Assistance. The application form "Kentucky Small
Operator Application for Assistance", revised September 1994, is hereby
incorporated by reference. This form may be reviewed or obtained at the
Department for Natural Resources, 300 Sower Boulevard, Frankfort, KY 40601,
Monday through Friday, 8 a.m. to 4:30 p.m. Each applicant shall submit the
following information to the cabinet when filing for assistance:
(1) A statement of the operator's intent to
file a permit application;
(2) The
names and addresses of:
(a) The permit
applicant; and
(b) The operator if
different from the applicant.
(3) The names, addresses, and percentages of
ownership of all owners of and stockholders in the applicant;
(4) A schedule of the estimated total
production of coal from the proposed permit area and all other locations from
which production is attributed to the applicant under Section 5(2) of this
administrative regulation. The schedule shall include for each location:
(a) The operator or company name under which
coal is or will be mined;
(b) The
permit number and MSHA number if currently or previously permitted;
(c) The estimated coal production for each
year of the proposed permit and that portion attributed to the applicant;
and
(d) Mine location
(county).
(5) The
Kentucky coal severance tax vendor number and copies of payments for the past
twelve (12) months made by the applicant and any affiliated companies as
defined under Section 5(2) of this administrative regulation;
(6) A description of:
(a) The proposed method of coal
mining;
(b) The anticipated
starting and termination dates of mining operations;
(c) The total number of acres of land to be
affected by the proposed mining and number of acres (surface or underground)
from which coal is to be removed;
(d) A general statement on the probable depth
and thickness of the coal resource, and the name(s) of the coal seam(s) to be
mined; and
(e) A statement
identifying the coal resources in the permit area and the method by which they
were calculated.
(7) A
USGS topographic map of 1:6,000 scale or larger or other topographic map of
equivalent detail which clearly shows:
(a) The
area of land to be affected;
(b)
The names of property owners within the area to be affected and of adjacent
lands;
(c) The location and extent
of known workings for the proposed underground mine; and
(8) Copies of documents which show that:
(a) The applicant has a legal right to enter
and commence mining within the permit area; and
(b) A legal right of entry has been obtained
for the cabinet and laboratory personnel to inspect the lands to be mined and
adjacent lands which may be affected to collect environmental information or to
install necessary instruments.
Section 7. Application Approval and Notice.
(1) If the cabinet finds the applicant
eligible and it does not have information readily available which would
preclude issuance of a permit to the applicant for mining in the area proposed,
it shall:
(a) Notify the applicant in writing
that the application is approved;
(b) Determine the minimum information
requirements necessary to meet the provisions of Section 8 of this
administrative regulation; and
(c)
Select the services of one (1) or more qualified laboratories to perform the
required work. A copy of the contract or other appropriate work order and the
final approved reports shall be provided to the applicant.
(2) If the cabinet finds the applicant
ineligible, the applicant shall be informed in writing that the application is
denied and the reasons for denial shall be stated.
(3) The granting of assistance under this
administrative regulation shall not be a factor in decisions by the cabinet on
a subsequent permit application.
Section 8. Information Requirements.
(1) General. This section describes the
minimum requirements for information necessary to meet the objectives of this
Program. The cabinet shall determine for each applicant or group of applicants
the specific information, including the collection and analysis of field
information and the development of engineering and other technical analyses,
designs, and plans, that shall be provided under this section. Collection,
analysis, and development of information under this section may proceed
concurrently with the development of mining and reclamation plans by the
applicant.
(2) Specific provisions.
Pursuant to Sections 1 through 4 of this administrative regulation, information
required under the administrative regulations listed in this subsection may be
supplied under this Program.
(a) Surface
mines.
1.
405 KAR
8:030, Section 11(2); Cultural, historic, and
archaeological resources information.
2.
405 KAR
8:030, Section 12; General requirements for geology
and hydrology.
3.
405 KAR
8:030, Section 13; Geology information.
4.
405 KAR
8:030, Section 14; Groundwater information.
5.
405 KAR
8:030, Section 15; Surface water
information.
6.
405 KAR
8:030, Section 16; Alternative water supply
information.
7.
405 KAR
8:030, Section 17; Climatological
information.
8.
405 KAR
8:030, Section 19; Vegetation information.
9.
405 KAR
8:030, Section 20; Fish and wildlife resources
information.
10.
405 KAR
8:030, Section 23; Maps and drawings.
11.
405 KAR
8:030, Section 30; MRP; protection of public parks and
historic places.
12.
405 KAR
8:030, Section 32(1); Description of measures to
protect the hydrologic balance.
13.
405 KAR
8:030, Section 32(3); Determination of probable
hydrologic consequences of mining.
14.
405 KAR
8:030, Section 32(4); Plan for monitoring groundwater
and surface water.
15.
405 KAR
8:030, Section 36; MRP; Fish and wildlife protection
and enhancement.
16.
405 KAR 16:120,
Section 2; Preblasting survey.
(b) Underground mines.
1.
405 KAR
8:040, Section 11(2); Cultural, historic, and
archaeological resources information.
2.
405 KAR
8:040, Section 12; General requirements for geology
and hydrology.
3.
405 KAR
8:040, Section 13; Geology information.
4.
405 KAR
8:040, Section 14; Groundwater information.
5.
405 KAR
8:040, Section 15; Surface water
information.
6.
405 KAR
8:040, Section 16; Alternate water supply
information.
7.
405 KAR
8:040, Section 17; Climatological
information.
8.
405 KAR
8:040, Section 19; Vegetation information.
9.
405 KAR
8:040, Section 20; Fish and wildlife resources
information.
10.
405 KAR
8:040, Section 23; Maps and drawings.
11.
405 KAR
8:040, Section 30; MRP; protection of public parks and
historic places.
12.
405 KAR
8:040, Section 32(1); Description of measures to
protect the hydrologic balance.
13.
405 KAR
8:040, Section 32(3); Determination of the probable
hydrologic consequences of mining.
14.
405 KAR
8:040, Section 32(4); Plan for monitoring groundwater
and surface water.
15.
405 KAR
8:040, Section 36; MRP; Fish and wildlife protection
and enhancement.
16.
405 KAR 18:120,
Section 2; Preblasting survey.
(3) Availability of information. Information
collected under this program shall be made available to all interested persons,
except information related to the chemical and physical properties of coal.
Information regarding the mineral or elemental content of the coal which is
potentially toxic in the environment shall be made available.
Section 9. Allocation of Funds. If
available funds are not sufficient to provide services under this
administrative regulation to all eligible applicants, the cabinet shall
allocate the available funds among eligible applicants based upon a formula
which shall include, but shall not be limited to, the following factors:
(1) Date of filing of application for
assistance; and
(2) Anticipated
date for commencing mining operations.
Section 10. Qualified Laboratories.
(1) General.
(a) The cabinet shall establish a list of
qualified laboratories which may be used by the cabinet under the procedures of
this section. A qualified laboratory shall be a designated public agency,
private consulting firm, institution, or analytical laboratory which can
provide the required determination, statement, or other eligible services under
this program.
(b) Persons who
desire to be included in the list of qualified laboratories established by the
cabinet shall apply to the cabinet and provide such information as is necessary
to establish the qualifications required by subsection (2) of this
section.
(2) Basic
qualifications.
(a) To be designated a
qualified laboratory, a firm shall demonstrate that it:
1. Is staffed with experienced, professional
or technical personnel in the fields applicable to the work to be
performed.
2. Is capable of
collecting necessary field information and samples.
3. Has adequate space for material
preparation and cleaning and sterilizing of necessary equipment and has
stationary equipment, storage, and space to accommodate workloads during peak
periods.
4. Meets the requirements
of the Occupational Safety and Health Act or the equivalent Commonwealth safety
and health program.
5. Has the
financial capability and business organization necessary to perform the work
required.
6. Has analytical,
monitoring, and measuring equipment capable of meeting the applicable standards
and methods contained in: "Standard Methods for the Examination of Water and
Waste Water," 14th Edition, 1975; "Methods for Chemical Analysis of Water and
Wastes," 1974; and other references as specified by the cabinet.
7. Has the capability of making hydrologic
field measurements and to conduct analytical laboratory determinations by
acceptable hydrologic, geologic, or analytical methods or by those appropriate
methods or guidelines for information acquisition recommended by the
cabinet.
(b) The
qualified laboratory shall be capable of performing some or all of the services
set forth in Section 8 of this administrative regulation. Subcontractors may be
used to provide the services required if their use is defined in the
application for qualification and they meet the requirements established by the
cabinet.
Section
11. Applicant Liability.
(1) The
applicant shall reimburse the cabinet for the costs of the services performed
pursuant to this administrative regulation:
(a) If the applicant submits false
information;
(b) If the applicant
fails to submit a permit application within one (1) year from the date of
receipt of the approved laboratory reports;
(c) If the applicant fails to mine after
obtaining a permit;
(d) If the
cabinet finds that the applicant's actual and attributed production of coal for
all locations exceeds 300,000 tons during the twelve (12) months immediately
following the date the permit is issued; or
(e) If the permit rights or the permit
application is sold, transferred, or assigned to another person and the
successor's total actual and attributed production exceeds the 300,000 ton
annual production limit during the twelve (12) months immediately following the
date the original permit is reissued in the name of the successor. Under this
paragraph, the applicant and its successor shall be jointly and severally
obligated to reimburse the cabinet.
(2) The cabinet may waive the reimbursement
obligation if it finds that the applicant at all times acted in good
faith.
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028,
350.465, 30 C.F.R. Parts 730-733, 735, 795, 917,
30 U.S.C. 1253,
1255,
1257