KRS § 350.465 — KY Code / Title XXVIII / Chapter 350 / Section 350.465
350.465 Permanent regulatory program
Status: in_force

350.465 Permanent regulatory program.

(1) The provisions of this section and regulations promulgated pursuant thereto, except

with regard to the mining of clay, limestone, sand, gravel, fluorspar, stone, and rock

asphalt, shall apply to the regulation of all surface coal mining and reclamation

operations in the Commonwealth in the event that the Commonwealth receives

from the United States Department of Interior and pursuant to the Surface Mining

Control and Reclamation Act of 1977, PL 95-87, approval of a permanent state

regulatory program, and the Commonwealth has promulgated regulations pursuant

to this section.

(2) The Energy and Environment Cabinet is hereby authorized and directed to prepare,

develop and promulgate a comprehensive permanent regulatory program for the

implementation of the Surface Mining Control and Reclamation Act of 1977, PL

95-87, for the purpose of accepting and administering primary enforcement

responsibilities pursuant to that act. The implementation of this section shall contain

procedures similar to the Surface Mining Control and Reclamation Act of 1977, PL

95-87, and shall require surface coal mining operation performance standards no

more stringent than provided for in that act. Nothing in this section shall be

construed to empower the cabinet to adopt a regulatory program in conflict with the

policy and purposes of the Surface Mining Control and Reclamation Act of 1977,

PL 95-87. To that end, the Energy and Environment Cabinet shall include in its

permanent regulatory program:

(a) Environmental protection performance standards to prevent or minimize the

adverse environmental effects of surface coal mining and reclamation

operations on the land and water resources of the Commonwealth;

(b) A procedure for designating as being unsuitable for mining certain lands

because of their topographical, geological, hydrological, climatological,

biological, or chemical characteristics or historical, cultural, scientific, or

aesthetic values;

(c) Procedures and regulations for the allowance of those persons having an

interest which is or may be adversely affected to have the opportunity to be

heard at every significant or critical part of the administrative and judicial

process, including, but not limited to, the permit review and issuance process,

the general enforcement process and hearings incident thereto, and the

rulemaking procedures conducted by the cabinet; and procedures and

regulations for persons having a valid legal interest which is or may be

adversely affected by the setting, release, and inspection of bonds to have an

opportunity to be heard at every significant or critical part of the

administrative and judicial process relating to bonds. The regulations shall

provide reasonable procedures for notice and an opportunity to be heard,

access to minesites, access to records, and other reasonable procedures to

accomplish the purposes of this chapter;

(d) Procedures for the administrative and judicial review of all actions of the

cabinet to administer and enforce the provisions of this chapter, including the

award of costs and expenses, including attorney's fees and expert witness fees,

by the cabinet or the court;

(e) Plans and procedures for the reclamation and restoration of land and water

resources affected by mining which have been abandoned or inadequately

reclaimed to the standards imposed by this section and for which no bond is

held or legal obligation to reclaim continues. The plan shall include provisions

for the imposition of liens for necessary reclamation expenditures made on

private property; and

(f) Procedures for the assumption of the small operator assistance program

pursuant to the Surface Mining Control and Reclamation Act of 1977, PL 95-

87. The cabinet shall assume and implement that program and apply for and

administer funds as may be provided pursuant to that act and such state funds

as may be provided for the program.

(3) In addition to any other authority, power, and duty vested in it by law, the cabinet

shall have and exercise broad authority, power, and duty to:

(a) Require those persons who wish to engage in surface coal mining and

reclamation operations to submit application for a permit from the cabinet to

conduct the operations, and to include in that application all information

required by the cabinet pertaining to that operation;

(b) Issue, deny, or modify under such conditions as the cabinet may prescribe,

permits to conduct surface coal mining and reclamation operations within the

Commonwealth;

(c) Enter and inspect any permitted surface coal mining and reclamation

operation or any known or suspected unpermitted mining operation for the

purpose of ascertaining compliance with any provision of this chapter or of

the permit;

(d) Order the cessation of mining activities, and if necessary impose affirmative

abatement obligations, upon the permittee, operator, or person when, upon

inspection, the cabinet determines that this section or any permit condition is

being or has been violated so as to constitute an imminent and inordinate peril

to the welfare of the Commonwealth;

(e) Order a person, permittee, or an operator to comply with the requirements of

this section or his permit if inspection reveals a violation of the conditions of

his permit or of any provision of this section;

(f) Order a permittee to appear and show cause why his permit should not be

suspended or revoked and his bond forfeited if the cabinet determines that the

permittee or operator or the permitted operation has a pattern of violations of

this section or permit conditions, and has willfully violated this section or

permit conditions or a pattern of violations exists and that the violations are

caused by the operator's or permittee's unwarranted failure to comply with this

section or permit conditions;

(g) Require, increase, release, or decrease, under such conditions as the cabinet

may prescribe, reclamation performance bonds and cause the forfeiture and

collection of those bonds where the permittee has abandoned the operation or

for which the permit under which the bond was given has been revoked or has

expired without the required reclamation;

(h) To administratively impose, in lieu of those civil penalties provided for in

KRS 350.990, civil penalties of up to five thousand dollars ($5,000) per day

for violations of permit conditions, this section, or any orders of the cabinet

and enforce the administrative assessment of the penalties by initiating civil

action in the Franklin Circuit Court or in any court having jurisdiction of the

defendant;

(i) Conduct hearings and make investigations of any matter relating to the

regulation of surface coal mining and reclamation operations, and provide for

the assessment and payment of civil penalties including the placement of

proposed civil penalty assessments into an escrow account prior to a contest

on the amount of the assessment, consistent with the process of law;

(j) Provide for variances or exceptions consistent with KRS 350.450 from or in

addition to mining performance standards, recognizing the specific

characteristics inherent in:

1. Steep slope mining;

2. Mountaintop removal;

3. Relatively low acreage disturbance or annual coal production;

4. Prime farmland mining as defined by the United States Department of

Agriculture, and to provide for other variances where land uses and

watersheds will be improved; and

5. Postmining uses different from and as beneficial as the premining uses;

(k) Receive and expend funds or aid from whatever source to accomplish the

purposes of this chapter; and

(l) Propose and promulgate regulations to accomplish the purposes of this

section.

(4) The cabinet shall not promulgate regulations which are inconsistent with the

Surface Mining Control and Reclamation Act of 1977, PL 95-87.

(5) Any person who violates a provision of this section or the regulations promulgated

pursuant thereto shall be subject to those penalties and remedies set forth in KRS

350.990 except as provided for in subsection (3)(h) of this section.