KRS § 350.450 — KY Code / Title XXVIII / Chapter 350 / Section 350.450
350.450 Prime farmland -- Mountaintop removal -- Variance upon written request of surface owner -- Technical assistance for small operator -- Release of portion of bond
Status: in_force

350.450 Prime farmland -- Mountaintop removal -- Variance upon written request

of surface owner -- Technical assistance for small operator -- Release of

portion of bond.

(1) If the area proposed to be mined contains prime farmland as defined in Public Law

95-87, "Surface Mining Control and Reclamation Act of 1977," then no permit shall

be issued unless it complies with Section 510(d)(1) therein. Nothing in this

subsection shall apply to any permit issued prior to August 3, 1977, or to any

revisions or renewals thereof, or to any existing surface coal mining operations for

which a permit was issued prior to August 3, 1977. Nothing herein shall be

construed as authorizing the cabinet to promulgate regulations more stringent than

those promulgated pursuant to PL 95-87 relating to prime farmland.

(2) Where a surface coal mining operation will remove an entire coal seam or seams

running through the upper fraction of a mountain, ridge, or hill by removing all of

the overburden and creating a level plateau or a gently rolling contour with no

highwalls remaining, the operation shall comply with the requirements of

paragraphs (c) and (d) of this subsection without regard to the requirements of KRS

350.410 or 350.445(2) and (3) with respect to lands from which overburden and the

coal seam being mined have not been removed; provided, however, the cabinet shall

establish internal procedures pursuant to which it shall permit surface coal mining

operations for the purposes set forth in paragraph (b) of this subsection.

(a) Where an applicant meets the requirements of paragraphs (b) and (c) of this

subsection a permit without regard to the requirements to restore to

approximate original contour set forth in KRS 350.410 or 350.445(2) and (3)

may be granted for the surface coal mining operations where the mining

operation will remove an entire coal seam or seams running through the upper

fraction of a mountain, ridge, or hill, except as provided in paragraph (c)1. of

this subsection, by removing all of the overburden and creating a level plateau

or a gently rolling contour with no highwalls remaining and capable of

supporting postmining uses in accord with the requirements of this subsection.

(b) In cases where an industrial, commercial, agricultural, residential, or public

facility (including recreational facilities) use is proposed for the postmining

use of the affected land, the cabinet may grant a permit for a surface coal

mining operation of the nature described in paragraph (a) of this subsection

where:

1. After consultation with the appropriate land use planning agencies, if

any, the proposed postmining land use is deemed by the cabinet to

constitute an equal or better economic or public use of the affected land

as compared with premining use;

2. The applicant presents specific plans for the proposed postmining land

use and appropriate assurances that the land use will be:

a. Compatible with adjacent land uses;

b. Obtainable according to data regarding expected need and market;

c. Assured of investment in necessary public facilities;

d. Supported by commitments from public agencies where

appropriate;

e. Practicable with respect to private financial capability for

completion of the proposed use;

f. Planned pursuant to a schedule attached to the reclamation plan so

as to integrate the mining operation and reclamation with the

postmining land use; and

g. Designed by a registered engineer in conformance with

professional standards established to assure the stability, drainage,

and configuration necessary for the intended use of the site;

3. The proposed use would be consistent with adjacent land uses and

existing state and local land use plans;

4. The cabinet provides the governing body of the unit of general-purpose

government in which the land is located, and any state or federal agency

which the cabinet in its discretion determines to have an interest in the

proposed use, an opportunity of not more than thirty (30) days to review

and comment on the proposed use; and

5. All other requirements of this chapter will be met.

(c) In granting any permit pursuant to this subsection the following requirements

apply:

1. The toe of the lowest coal seam and the overburden associated with it

are retained in place as a barrier to slides and erosion;

2. The reclaimed area is stable;

3. The resulting plateau or rolling contour drains inward from the outslopes

except at specified points;

4. No damage will be done to natural watercourses;

5. Spoil will be placed on the mountaintop bench as is necessary to achieve

the planned postmining land use; provided, that all excess spoil material

not retained on the mountaintop shall be placed in accordance with the

provisions of KRS 350.440; and

6. Insure stability of the spoil retained on the mountaintop and meet the

other requirements of this chapter.

(d) The regulatory authority shall promulgate specific regulations to govern the

granting of permits in accord with the provisions of this subsection.

(e) All permits granted under the provisions of this subsection shall be reviewed

not more than three (3) years from the date of issuance of the permit, unless

the applicant affirmatively demonstrates that the proposed development is

proceeding in accordance with the terms of the approved schedule and

reclamation plan.

(3) (a) The cabinet shall adopt procedures pursuant to which it may permit variances

from the requirements of KRS 350.410 for the purposes set forth in paragraph

(c) of this subsection, provided that the watershed control of the area is

improved, and further provided, complete backfilling with spoil material shall

be required to cover completely the highwall, which material will maintain

stability following mining and reclamation.

(b) Where an applicant meets the requirements of paragraphs (c) and (d) of this

subsection, a variance from the requirement to restore the approximate

original contour set forth in KRS 350.410 and 350.445(2) may be granted for

surface coal mining operations where the owner of the surface knowingly

requests in writing, as a part of the permit application, that such a variance be

granted so as to render the land, after reclamation, suitable for an industrial,

commercial, residential, or public use, including recreational facilities.

(c) After consultation with the appropriate land use planning agencies, if any, the

potential use of the affected land shall:

1. Be deemed by the cabinet to constitute an equal or better economic or

public use;

2. Be designed and certified by a qualified registered professional engineer

in conformance with professional standards established to assure the

stability, drainage, and configuration necessary for the intended use of

the site; and

3. The watershed of the affected land be deemed by the cabinet to be

improved.

(d) In granting a variance pursuant to paragraph (b) of this subsection, the cabinet

shall require that only the amount of spoil will be placed off the mine bench

that is necessary to achieve the planned postmining land use, insure stability

of the spoil retained on the bench, meet all other requirements of this chapter,

and require all spoil placement off the mine bench to comply with KRS

350.440.

(e) The cabinet shall promulgate specific regulations as it deems necessary, if any,

to govern the granting of variances in accord with the provisions of this

subsection and may impose additional requirements it deems to be necessary.

(f) All exceptions granted under the provisions of this subsection shall be

reviewed not more than three (3) years from the date of issuance of the permit,

unless the permittee affirmatively demonstrates that the proposed

development is proceeding in accordance with the terms of the reclamation

plan.

(4) The cabinet shall adopt programs, regulations, and procedures designed to provide

technical assistance to assist the small coal operator with the permitting and

environmental protection performance standards for surface coal mining operations

within the Commonwealth. The programs shall be directed towards eliminating

delays in the processing of permits by establishing a special administrative program

to review small operator's permit applications and by establishing a procedure for

providing the small operator the technical services of public and private agencies in

addition to the services provided pursuant to KRS 350.465(2)(f) necessary for

completing the permit application. Specifically, notwithstanding any other provision

of this chapter or regulations adopted pursuant thereto, for the purpose of this

program, the cabinet shall:

(a) Develop a simplified small operator permit application. The cabinet shall

notify all applicants of deficiencies in the form of the application by certified

mail within ten (10) working days after the filing in the regional office. The

applicant shall have ten (10) working days after the receipt of the notification

to repair the deficiencies. Upon failure of the applicant to repair the

deficiencies within ten (10) working days after receipt of the notification, the

cabinet may return the application as incomplete.

(b) Provide in the abandoned mine land program for small operators, having

mined coal under a state permit or license at any time within the previous

three (3) years, participation consisting at least of the following:

1. That lands acquired or reclaimed by the state containing coal, coal refuse

or other marketable minerals which should be removed in order to

maximize the utilization, recoverability or conservation of solid fuel

resources or to protect against adverse water quality impacts and which,

once reclaimed, cannot be disturbed again by mining, shall be reclaimed

by small operators unless the cabinet determines, after advertisement

and advance opportunity to bid, that the reclamation project cannot be

performed by the small operator bidders;

2. That the cabinet shall establish procedures for maximizing participation

by small operators in all reclamation projects including:

a. Designing and establishing project specifications and setting forth

in the annual request for federal funding under the state

reclamation plan not less than twenty percent (20%) of the projects

on cost basis to be performed by small operators;

b. Advance advertising, soliciting, evaluating bids, and awarding

contracts on all state reclamation projects for small operators.

3. In the event no bids are submitted by small operators for small operator

projects, the projects will be thereafter open for public bidding and no

longer designated as small operator projects but shall satisfy that portion

of the twenty percent (20%) set aside.

(c) For the purposes of this subsection, a small coal operator is one who is

anticipated to mine less than three hundred thousand (300,000) tons per year,

and the cabinet in determining tonnage for qualification shall consider all

production from common ownership of other corporations or operations.

(d) Upon written notification by the small coal operator to the cabinet stating that

no more mining will take place under a permit, the cabinet shall release a

portion of the bond in accordance with KRS 350.070. In making its

determinations pursuant to KRS 350.070 the cabinet shall:

1. Determine the percentage of the permitted acreage in the area of

reduction in relation to the initial acreage of the permit;

2. Examine the land which has been disturbed and estimate the cost of

reclamation;

3. When the estimated cost of reclamation does not exceed ten thousand

dollars ($10,000) then the cabinet shall return all bond money in excess

of the ten thousand dollars ($10,000);

4. When the estimated cost of reclamation exceeds ten thousand dollars

($10,000), the cabinet shall retain the amount estimated and shall return

all bond money in excess of the estimated amount but in no case shall

the cabinet return more than the amount determined by multiplying the

percentage determined under subparagraph 1. of this paragraph times the

original total bond amount.