405 KAR 7:030 - Applicability
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
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.
Section 2. Coal Extraction Incidental to
Government Financed Construction.
(1)
(a) Coal extraction which is an incidental
part of government-financed construction is exempt from KRS Chapter 350 and 405
KAR Chapters 7 through 24, except subsection (2) of this section shall
apply.
(b) Any person who conducts
or intends to conduct coal extraction which does not satisfy paragraph (a) of
this subsection shall not proceed until a permit has been obtained from the
cabinet.
(c) Reclamation of
abandoned mined lands funded under Title IV of SMCRA shall be deemed
government-financed construction.
(2) Information to be maintained on site. Any
person extracting coal incident to government-financed highway or other
construction who extracts more than 250 tons of coal or affects more than two
(2) acres shall maintain, on the site of the extraction operation and available
for inspection, documents which show:
(a) A
description of the construction project;
(b) The exact location of the construction,
right-of-way or the boundaries of the area which will be directly affected by
the construction; and
(c) The
government agency which is providing the financing and the kind and amount of
public financing, including the percentage of the entire construction costs
represented by the government financing.
Section 3. Exemptions.
(1) Exemptions from 405 KAR Chapters 7
through 24 shall be recognized for the following:
(a) The extraction of coal by a landowner of
fifty (50) tons or less within twelve (12) successive calendar months for his
or her own noncommercial use from land owned or leased by him or her.
Noncommercial use does not include the extraction of coal by one (1) unit of an
integrated company or other business or nonprofit entity which uses the coal in
its own manufacturing or power plants;
(b) The extraction of or intent to extract
twenty-five (25) tons of coal or less by any person by within twelve (12)
successive calendar months;
(c) The
extraction of coal as an incidental part of federal, state or local
government-financed highway or other construction; and
(d) The extraction of coal incidental to the
extraction of other minerals if coal does not exceed sixteen and two-thirds (16
2/3) percent of the tonnage of coal and other minerals removed for purposes of
commercial use or sale in accordance with
405
KAR 7:035.
(2) The cabinet may on its own initiative and
shall, within a reasonable time of a request from any person who intends to
extract coal pursuant to subsection (1)(a) through (c) of this section, make a
written determination whether the operation is exempt from 405 KAR Chapters 7
through 24. The cabinet shall give reasonable notice of the request to
interested persons. Prior to the time a determination is made, any person may
submit, and the cabinet shall consider, any written information relevant to the
determination. A person requesting that an operation be declared exempt shall
have the burden of establishing the exemption.
(3) If a written determination of exemption
pursuant to subsection (1)(a) through (c) of this section is reversed through
subsequent administrative or judicial action, any person who, in good faith,
has made a complete and accurate request for an exemption and relied upon the
determination shall not be cited for violations which occurred prior to the
date of the reversal. This subsection shall not apply to two (2) acre
permits.
(4) Exemptions pursuant to
subsection (1)(d) of this section shall be subject to
405
KAR 7:035.
Section 4. Termination and Reassertion of
Jurisdiction.
(1) Beginning November 1, 1992,
the jurisdiction of the cabinet under 405 KAR Chapters 7-24 over the reclaimed
site of a completed surface coal mining and reclamation operation, or increment
thereof, or coal exploration operation, shall terminate when:
(a) The cabinet has determined in writing
that all requirements imposed under 405 KAR Chapters 7-24 and KRS Chapter 350
have been successfully completed; or
(b) If a performance bond was required, the
cabinet has made a final decision in accordance with
405
KAR 10:040 to release the performance bond fully. For
the purposes of this section, the cabinet's decision to release the performance
bond shall not be final until the time to file administrative and judicial
appeals has expired and all appeals have been resolved.
(2) If jurisdiction was terminated under
subsection (1) of this section, the cabinet shall reassert jurisdiction under
405 KAR Chapters 7-24 over the site if it is demonstrated that the bond release
decision or written determination referred to in subsection (1) of this section
was based upon fraud, collusion, or misrepresentation of a material
fact.
(3) If the cabinet prior to
November 1, 1992, terminated jurisdiction under 405 KAR Chapters 7-24 over the
reclaimed site of a completed surface coal mining and reclamation operation, or
increment thereof, or coal exploration operation, the cabinet shall reassert
jurisdiction over the site if it is demonstrated that the bond release decision
or other determination that led to the termination of jurisdiction was based
upon fraud, collusion, or misrepresentation of a material fact.
Notes
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