Kentucky Administrative Regulations › Title 405 - ENERGY AND ENVIRONMENT CABINET - DEPARTMENT FOR NATURAL RESOURCES › Chapter 7 - General Provisions › Section 405 KAR 7:030 - Applicability

Current through Register Vol. 51, No. 1, July 1, 2024
RELATES TO:
				KRS
				350.010,
				350.028,
				350.057,
				350.060,
				350.151,
				350.465,
				30
				C.F.R. Parts 700.11,
				707.11 -.12,
				730-733, 735, 917,
				30 U.S.C. 1253,
				1255,
				1278,
				1291
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 designates 405 KAR Chapters 7 through 24 as
				applicable to all coal exploration and surface coal mining and reclamation
				operations, and specifies those activities to which 405 KAR Chapters 7 through
				24 do not apply. This administrative regulation reflects the jurisdiction of
				the cabinet over coal exploration and surface coal mining and reclamation
				operations and sets forth certain nonjurisdictional activities.
Section 1. Applicability. 405 KAR Chapters 7
			 through 24 apply to all coal exploration and surface coal mining and
			 reclamation operations, except any surface coal mining and reclamation
			 operations which, together with any related operation, affected an area of two
			 (2) acres or less, which were conducted pursuant to a two (2) acre or less
			 permit issued by the cabinet, which were commenced on or before June 5, 1987,
			 and on which mining ceased on or before November 7, 1987, in which case the
			 provisions of 405 KAR Chapter 26 and
			 KRS
			 350.060(13) shall apply.
(1) For purposes of this administrative
			 regulation, if a segment of a road is used for access or coal haulage by more
			 than one (1) surface coal mining operation, the entire segment shall be
			 included in the affected area of each of those operations; except that two (2)
			 or more operations which are deemed related pursuant to subsection (2) of this
			 section shall be considered as one (1) operation for the purposes of this
			 subsection.
(2) Except as provided
			 in subsection (3) of this section, surface coal mining operations shall be
			 deemed related if they occur within twelve (12) months of each other, are
			 physically related, and are under common ownership or control.
(a) Operations shall be deemed physically
			 related if drainage from both operations flows into the same watershed at or
			 before a point within five (5) aerial miles of both operations.
(b) Operations shall be deemed under common
			 ownership or control if they are owned or controlled, directly or indirectly,
			 by or on behalf of:
1. The same
			 person;
2. Two (2) or more persons,
			 one (1) of whom controls, is under common control with, or is controlled by the
			 other; or
3. Members of the same
			 family and their relatives, unless it is established that there is no direct or
			 indirect business relationship between or among them.
(c) For purposes of this subsection, control
			 exists if one has ownership of fifty (50) percent or more of the voting shares
			 of, or general partnership in, an entity; any relationship which gives one (1)
			 person the ability in fact or in law to direct what the other does; or any
			 relationship which gives one (1) person express or implied authority to
			 determine the manner in which coal at different sites will be mined, handled,
			 sold or disposed of.
(3)
			 Notwithstanding the provisions of subsection (2) of this section, the cabinet
			 may determine, in accordance with the procedures applicable to requests for
			 determination of exemption pursuant to Section 3 of this administrative
			 regulation, that two (2) or more surface coal mining operations shall not be
			 deemed related if, considering the history and circumstances relating to the
			 coal, its location, the operations at the sites in question, all related
			 operations and all persons mentioned in subsection (2)(b) of this section, the
			 cabinet concludes in writing that the operations are not of the type which
			 SMCRA was intended to regulate and that there is no intention on the part of
			 the operations or persons to evade the requirements of KRS Chapter 350 or 405
			 KAR Chapters 7 through 24.
(4) The
			 exemption provided by this section applies only to operations with an affected
			 area of less than two (2) acres where coal is being extracted for commercial
			 purposes and to surface coal mining operations within that affected area
			 incidental to those operations.