Kentucky Administrative Regulations › Title 405 - ENERGY AND ENVIRONMENT CABINET - DEPARTMENT FOR NATURAL RESOURCES › Chapter 7 - General Provisions › Section 405 KAR 7:097 - Reclamation in lieu of cash payment of civil penalties

Current through Register Vol. 51, No. 1, July 1, 2024
RELATES TO:
				KRS
				350.010,
				350.020,
				350.028,
				350.130,
				350.150,
				350.151,
				350.465,
				350.550-350.597,
				350.990, 30 C.F.R.
				Parts 730-733, 735, 845, 846, 917,
				30 U.S.C. 1253,
				1255,
				1268
NECESSITY, FUNCTION, AND CONFORMITY:
				KRS 350.028(1),
				(5),
				350.151(1),
				and
				350.465(2)
				authorize the cabinet to promulgate administrative regulations relating to
				surface and underground coal mining operations.
				KRS
				350.990(11) authorizes the
				cabinet to allow a permittee, person, or operator to perform in-kind
				reclamation, environmental rehabilitation, or similar action to correct
				environmental pollution, instead of making cash payment of a civil penalty
				assessed under
				KRS 350.990.
				KRS
				350.990(11) authorizes the
				cabinet to promulgate administrative regulations as necessary to implement and
				administer its provisions. This administrative regulation establishes criteria
				and procedures to implement
				KRS
				350.990(11). This
				administrative regulation differs from federal regulations as follows: There
				are no corresponding federal regulations that establish specific requirements
				applicable to state regulatory programs that provide for reclamation in lieu of
				cash payment of civil penalties. As a condition of federal approval of
				KRS
				350.990(11),
				30 CFR
				917.16(c)(3) requires the
				cabinet to obtain federal approval of administrative regulations prior to
				implementation of
				KRS
				350.990(11). This
				administrative regulation was submitted to the Office of Surface Mining
				Reclamation and Enforcement for approval as required by
				30 CFR
				917.16(c)(3) at 64 FR 3670,
				January 25, 1999.
Section 1.
			 Applicability and General Provisions.
(1) This
			 administrative regulation shall apply to a permittee, person, or operator who
			 has been assessed a civil penalty under
			 KRS 350.990 by a final
			 order of the secretary of the cabinet.
(2) The cabinet may, in accordance with
			 KRS
			 350.990(11) and this
			 administrative regulation, allow a permittee, person, or operator to perform
			 activities in lieu of cash payment of one (1) or more civil penalties, if the
			 aggregate amount of the civil penalties is $2,500 or more.
(3) Activities under this administrative
			 regulation shall be authorized under a binding agreement between the cabinet
			 and the person owing the civil penalty. The agreement shall be termed a "Civil
			 Penalty Reclamation Agreement."
(4)
			 A permittee, person, or operator conducting activities authorized under this
			 administrative regulation shall not be deemed an agent, contractor, or employee
			 of the cabinet.
(5) A permittee,
			 person, or operator conducting activities authorized under this administrative
			 regulation shall obtain and maintain the legal right to enter upon the site and
			 conduct the authorized activities.
(6)
(a) A
			 permittee, person, or operator conducting activities authorized under this
			 administrative regulation shall obtain and maintain liability insurance
			 coverage in accordance with this subsection.
(b) The permittee, person, or operator shall
			 submit a certificate issued by an insurance company authorized to do business
			 in Kentucky certifying that the permittee, person, or operator has a public
			 liability insurance policy in force for the authorized activities. The policy
			 shall provide for personal injury and property damage protection in an amount
			 adequate to compensate for all personal injury and property damage resulting
			 from the authorized activities, including damage caused by the use of
			 explosives and damage to water wells. Minimum insurance coverage for bodily
			 injury and property damage shall be $300,000 for each occurrence and $500,000
			 aggregate.
(c) The policy shall be
			 maintained in force during the term of the Civil Penalty Reclamation Agreement,
			 until the cabinet has determined in writing that the terms of the Civil Penalty
			 Reclamation Agreement have been satisfied.
(d) The policy shall include a clause
			 requiring that the insurer notify the cabinet if a substantive change is made
			 in the policy, including a termination or failure to renew.
(e) If the insurer becomes unable to fulfill
			 its obligations under the policy, notice shall be given immediately to the
			 permittee, person, or operator and the cabinet.
(f) Upon the incapacity of an insurer by
			 reason of bankruptcy, insolvency, or suspension or revocation of its license or
			 certificate of authority, the permittee, person, or operator shall be deemed to
			 be without insurance coverage and shall promptly notify the cabinet.
			 Notification shall not relieve the insurer of liability on its policy. The
			 cabinet shall notify the permittee, person, or operator in writing, specifying
			 a reasonable period to replace the coverage, not to exceed ninety (90) days. If
			 adequate insurance coverage is not obtained by the end of the period allowed,
			 the permittee, person, or operator shall cease the authorized activities and
			 the cabinet may terminate the Civil Penalty Reclamation Agreement and require
			 the permittee, person, or operator to pay the assessed civil penalty.
(7) If the activities authorized
			 under this administrative regulation are for reclamation of a mine site, the
			 permittee, person, or operator shall provide a performance bond. For activities
			 other than reclamation of a mine site, the cabinet may require the permittee,
			 person, or operator to provide a performance bond if the cabinet determines
			 that the authorized activities could create a risk of environmental harm. This
			 bond shall be in addition to a bond required by another federal, state, or
			 local law. The cabinet shall determine the amount of the bond based upon site
			 specific conditions. This subsection may be satisfied by a performance bond
			 that meets the requirements of 405 KAR Chapter 10. The cabinet shall release
			 the performance bond promptly after the cabinet has determined that the terms
			 of the Civil Penalty Reclamation Agreement have been fulfilled, and the bond
			 release procedures of
			 405
			 KAR 10:040 shall not apply.
(8) A permittee, person, or operator
			 conducting activities authorized under this administrative regulation shall
			 comply with applicable federal, state, and local laws and
			 regulations.
(9) A permittee,
			 person, or operator conducting activities authorized under this administrative
			 regulation shall not engage in coal removal in connection with the authorized
			 activities.
(10) Activities
			 authorized under this administrative regulation shall be on-ground activities
			 that directly result in reclamation, environmental rehabilitation, or
			 correction of environmental pollution. Educational, promotional, training, and
			 other activities that may indirectly affect the environment, shall not be
			 authorized.
(11) Activities
			 authorized under this administrative regulation shall not constitute government
			 financed construction for the purposes of
			 405 KAR 7:030,
			 Sections 2 and 3.
(12) The cabinet
			 shall determine the location, scope, and time schedule for activities
			 authorized under this administrative regulation.
(13) The Division of Abandoned Mine Lands
			 shall determine the estimate of the cost of activities authorized or completed
			 under this administrative regulation.
(14) Activities shall not be authorized under
			 this administrative regulation unless their estimated cost exceeds the assessed
			 amount of the civil penalty.
(15)
			 The cost of activities in excess of the civil penalty amount covered in the
			 Civil Penalty Reclamation Agreement shall not be credited or carried forward to
			 satisfy a civil penalty not covered in the Civil Penalty Reclamation Agreement
			 or a future civil penalty.
(16) The
			 cabinet shall maintain appropriate records of activities conducted under this
			 administrative regulation. The Department for Natural Resources shall maintain
			 custody of the records. The cabinet shall request an audit of these records and
			 activities authorized under this administrative regulation, at intervals of not
			 more than five (5) years.