Kentucky Administrative Regulations › Title 405 - ENERGY AND ENVIRONMENT CABINET - DEPARTMENT FOR NATURAL RESOURCES › Chapter 24 - Areas Unsuitable for Mining › Section 405 KAR 24:040 - Areas unsuitable for mining

Current through Register Vol. 51, No. 1, July 1, 2024
RELATES TO:
				KRS
				350.465(2)(b),
				350.610
NECESSITY, FUNCTION, AND CONFORMITY:
				KRS
				350.465(2) and
				350.610
				require the cabinet to prepare, develop, and promulgate a permanent regulatory
				program for the implementation of SMCRA containing procedures similar to that
				Act. This administrative regulation sets forth procedures for reviewing
				applications for surface coal mining and reclamation operation permits to
				determine whether surface coal mining and reclamation operations are limited or
				prohibited.
Section 1. General. The
			 cabinet shall prohibit or limit surface coal mining and reclamation operations
			 on or near certain private, federal, and other public lands designated by
			 Congress in SMCRA, except for operations which existed on August 3, 1977, or
			 were subject to valid existing rights on that date. The cabinet shall also
			 prohibit certain surface coal mining operations on lands designated unsuitable
			 for all or certain types of surface coal mining and reclamation operations
			 under
			 405
			 KAR 24:030.
Section
			 2. Permit Application Review. Except for operations which existed
			 on August 3, 1977, unless the required approvals or waivers have been obtained,
			 upon receipt of a complete and accurate application for a surface coal mining
			 and reclamation operation permit, and subject to valid existing rights, the
			 cabinet shall review the application and deny the permit if it determines that
			 the lands on which the proposed operation would be conducted include:
(1) Lands within the boundaries of the
			 National Park System, the National Wildlife Refuge System, the National System
			 of Trails, the National Wilderness Preservation System, the Wild and Scenic
			 Rivers System, including study rivers designated under Section 5(a) of the Wild
			 and Scenic Rivers Act (16
			 USC 1276(a)) or study rivers
			 or study river corridors as established in any guidelines pursuant to that Act,
			 and the National Recreation Areas designated by Act of Congress;
(2) Lands within 300 feet, measured
			 horizontally, of any public park, public building, school, church, community or
			 institutional building; or
(3)
			 Lands within 100 feet, measured horizontally, of a cemetery; except that
			 cemeteries may be relocated if authorized by applicable state law or
			 administrative regulations;
(4)
			 Lands where mining will adversely affect any publicly-owned park or any places
			 included on the National Register of Historic Places unless jointly approved by
			 the cabinet and the federal, state, or local agency with jurisdiction over the
			 park or place as set forth in paragraphs (a) and (b) of this subsection.
(a) The cabinet shall transmit to the
			 federal, state, or local government agency with jurisdiction over the park or
			 place a copy of applicable parts of the permit application, together with a
			 request for that agency's approval or disapproval of the operation, and a
			 notice to that agency that it has thirty (30) days from receipt of the request
			 within which to respond and that failure to interpose a timely objection will
			 constitute approval. The cabinet, upon request by the appropriate agency, may
			 grant an extension to the thirty (30) day period of an additional thirty (30)
			 days. Failure to interpose an objection within thirty (30) days or the extended
			 period granted shall constitute an approval of the proposed permit by the
			 agency.
(b) A permit for a surface
			 coal mining and reclamation operation shall not be issued unless jointly
			 approved by all affected agencies.
(5) Lands within 300 feet, measured
			 horizontally, from any occupied dwelling, unless the owner of the dwelling has
			 provided a written waiver consenting to surface coal mining operations closer
			 than 300 feet.
(a) The applicant shall submit
			 with the permit application a written waiver by lease, deed, or other
			 conveyance from the owner of the dwelling, clarifying that the owner and
			 signator had the legal right to deny mining and knowingly waived that right.
			 The waiver shall act as consent to the operation within a closer distance of
			 the dwelling specified in the waiver. Valid waivers obtained prior to August 3,
			 1977 shall be valid for the purposes of this paragraph. Waivers 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.
			 A subsequent owner shall be deemed to have constructive knowledge if the waiver
			 has been properly filed in public property records pursuant to state law or if
			 the mining has proceeded to within the 300-foot limit prior to the date of
			 purchase.
(b) The waiver shall be
			 knowingly made and separate from a lease or deed unless the lease or deed
			 contains an explicit waiver. In this case, a copy of the lease or deed shall be
			 included with the permit application.
(c) This subsection shall not apply when the
			 part of the mining operation which is within 300 feet of the dwelling is a haul
			 road or access road which connects with an existing public road on the side of
			 the public road opposite the dwelling.
(6) Lands within 100 feet, measured
			 horizontally, of the outside right-of-way line of any public road (except where
			 mine access roads or haulage roads join the right-of-way). The cabinet may
			 allow areas within 100 feet to be affected or may allow the public road to be
			 closed or relocated, provided that, the cabinet shall:
(a) Require the applicant to obtain any
			 necessary approval of the governmental authority with jurisdiction over the
			 public road;
(b) Provide
			 opportunity for a public hearing in the locality of the proposed mining
			 operations for the purpose of determining whether the interests of the public
			 and affected landowners will be protected;
(c) Publish notice in a newspaper of largest
			 bona fide circulation according to the definition in
			 KRS 424.110 to
			 424.120
			 in the county of the affected area at least two (2) weeks before the public
			 hearing;
(d) Make a written finding
			 within thirty (30) days after the hearing or after any public comment period
			 ends if no hearing is held, on the basis of information received at the public
			 hearing as to whether the interests of the public and affected landowners will
			 be protected. No mining shall be allowed within 100 feet of the outside
			 right-of-way line of a road nor may a road be relocated or closed unless the
			 cabinet determines that the interests of the public and affected landowners
			 will be protected.
(7)
			 Federal lands within the boundaries of any national forest, unless specifically
			 approved by the Secretary of the Interior.