405 KAR 8:020 - Coal exploration
RELATES TO: KRS 350.057, 350.610, 30 C.F.R. Parts 730-733, 735, 772, 917, 30 U.S.C. 1253, 1255, 1262
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in
pertinent part requires the cabinet to promulgate rules and administrative
regulations pertaining to
Section 1. Exploration in an Area Not
Designated Unsuitable for Mining and Removing Twenty-five (25) Tons or Less of
Coal .
(1) Any person who intends to conduct
coal exploration during which twenty-five (25) tons or less of coal will be
removed and which will not take place in an area designated unsuitable for
mining pursuant to 405 KAR Chapter 24 shall, at least twenty-one (21) days
prior to conducting the exploration, file with the cabinet a written notice of
intention to explore.
(2) The
notice shall include:
(a) The name, address,
and telephone number of the person seeking to explore;
(b) The name, address, and telephone number
of the representative who will be present at and responsible for conducting the
exploration activities;
(c) A
precise narrative description of the exploration area, or a map at a scale of
1:24,000 or greater, describing or showing the proposed area of exploration
(including latitude, longitude, nearest community, and USGS quadrangle),
existing and proposed roads, occupied dwellings, topographic features, bodies
of surface water, pipelines, and the general location of drill holes and
trenches;
(d) A statement of the
period of intended exploration;
(e)
The names and addresses of the owner of record of the surface land and of the
subsurface mineral estate of the area to be explored; and
(f) A description of the method of
exploration to be used and the practices that will be followed to protect the
environment and to reclaim the area from adverse impacts of the exploration
activities in accordance with the applicable requirements of
405 KAR
20:010.
(3) The cabinet shall, in accordance with
Section 3 of this administrative regulation, place the notices on public file
and make them available for public inspection and copying at the appropriate
regional office of the cabinet.
(4)
Any person who conducts coal exploration activities pursuant to this section
which substantially disturb the natural land surface shall comply with
405 KAR
20:010.
Section 2. Exploration Removing More than
Twenty-five (25) Tons of Coal and Exploration in an Area Designated Unsuitable
for Mining, Regardless of Tonnage.
(1)
General. Any person who intends to conduct coal exploration in which more than
twenty-five (25) tons of coal will be removed, or which will take place in an
area designated unsuitable for mining pursuant to 405 KAR Chapter 24, shall,
prior to conducting the exploration, submit an application and obtain the
written approval of the cabinet in accordance with this section.
(2) Contents of application for approval.
Each application for approval, in the number and form required by the cabinet,
shall contain, at a minimum:
(a) The name,
address, and telephone number of the applicant ;
(b) The name, address, and telephone number
of the representative of the applicant who will be present at and be
responsible for conducting the exploration;
(c) An exploration and reclamation operations
plan, including:
1. A narrative description
of the proposed exploration area, cross-referenced to the map required under
paragraph (e) of this subsection, including latitude, longitude, and nearest
community; surface topography; geological, surface water, and other physical
features; vegetative cover, the distribution and important habitats of fish,
wildlife, and plants, including, but not limited to, any endangered or
threatened species listed pursuant to the Endangered Species Act of 1973
(16
U.S.C. 1531 et seq.); cultural or historic
resources listed or known to be eligible for listing on the National Register
of Historic Places; known archaeological resources located within the proposed
exploration area; and any other information which the cabinet may require
regarding known or unknown historic or archaeological resources;
2. A narrative description of the methods to
be used to conduct coal exploration and reclamation, including, but not limited
to, the types and uses of equipment, drilling, blasting, road or other access
route construction, and excavated earth and other debris disposal
activities;
3. An estimated
timetable for conducting and completing each phase of the exploration and
reclamation;
4. The estimated
amounts of coal to be removed and a description of the methods to be used to
determine those amounts;
5. A
description of the measures to be used to comply with the applicable
requirements of
405 KAR 20:010;
and
6. A statement as to whether
the proposed coal exploration will be conducted within an area which has been
designated unsuitable for mining pursuant to 405 KAR Chapter 24. If so, the
application shall include a description of the measures to be taken so as not
to interfere with the values for which the area was designated
unsuitable;
(d) The name
and address of the owner of record of the surface land and of the subsurface
mineral estate of the area to be explored;
(e)
1. A
USGS seven and one-half (7 1/2) minute topographic map marked showing the area
of land to be affected and the location of drill holes or excavations;
and
2. A map at a scale of 1:6000
(one (1) inch equals 500 feet) or larger, showing the areas of land which may
be affected by the proposed exploration and reclamation. The map shall also
specifically show existing roads, occupied dwellings, and pipelines; proposed
location of trenches, roads, and other access routes and structures to be
constructed; the location of land excavations to be conducted; water or coal
exploratory holes and wells to be drilled or altered; earth or debris disposal
areas; existing bodies of surface water; historic, cultural, topographic, and
drainage features; and habitats of any endangered or threatened species listed
pursuant to the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.);
(f) If the surface is owned by a person other
than the applicant , a description of the basis upon which the applicant claims
the right to enter that land for the purpose of conducting exploration and
reclamation;
(g) A justification of
the necessity to remove more than twenty-five (25) tons of coal from the area
during exploration; and
(h) A fee
of $375.
(3) Public
notice and opportunity to comment. Public notice of the application and
opportunity to comment shall be provided as follows:
(a) As contemporaneously as possible with
receipt of written notification from the cabinet under subsection (4)(a) of
this section that the application has been determined to be administratively
complete, public notice of the filing of the administratively complete
application with the cabinet shall be published by the applicant in the
newspaper of largest bona fide circulation, according to the definition in
KRS 424.110 to
424.120,
in the county where the proposed exploration area is to be located.
(b) The public notice shall state the name
and business address of the person seeking approval, the date of the filing of
the administratively complete application , the address of the cabinet at which
written comments on the application may be submitted, the closing date of the
public comment period under paragraph (c) of this subsection, and a description
of the general area of exploration.
(c) Any person with an interest which is or
may be adversely affected shall have the right to file with the cabinet written
comments on the application within thirty (30) days of the publication of the
public notice under paragraph (a) of this subsection.
(4) Processing of applications.
(a) Within ten (10) working days of receipt
of an application for approval of coal exploration operations, the cabinet
shall provide written notification to the applicant as to the administrative
completeness of the application . The date of written notification shall be
deemed the date of filing of the administratively complete application . A
determination by the cabinet that the application is administratively complete
shall not mean that the application is technically sufficient.
(b) The cabinet shall act upon an application
within sixty (60) days after the filing of the administratively complete
application .
(c) The cabinet shall
approve a complete and accurate application filed in accordance with this
administrative regulation, if it finds, in writing, that the applicant has
demonstrated that the exploration and reclamation described in the application :
1. Will be conducted in accordance with KRS
Chapter 350,
405 KAR 20:010,
and this administrative regulation;
2. Will not jeopardize the continued
existence of an endangered or threatened species listed pursuant to Section 4
of the Endangered Species Act of 1973 (16
U.S.C. 1533) or result in the destruction or
adverse modification of critical habitat of those species;
3. Will not adversely affect any cultural or
historic resources listed on the National Register of Historic Places, unless
the proposed exploration has been approved by both the cabinet and the agency
with jurisdiction over the areas;
4. If located within an area designated
unsuitable for mining, will not be incompatible with the values for which the
area was designated unsuitable for mining; and
5. If removal of more than twenty-five (25)
tons of coal has been proposed, that the removal is justified.
(5) Terms of approval.
Each approval issued by the cabinet shall contain conditions necessary to
ensure that the exploration and reclamation will be conducted in compliance
with KRS Chapter 350, this administrative regulation, and
405 KAR
20:010.
(6) Notice and hearing:
(a) The cabinet shall notify the applicant ,
the appropriate local government officials, and all commenters on the
application , in writing, of its decision on the application . If the application
has been disapproved, the notice to the applicant shall include a statement of
the reason for disapproval. The cabinet shall provide public notice of approval
or disapproval of each application by publication of notice in the newspaper of
largest bona fide circulation, according to the definition in
KRS 424.110 to
424.120,
in the county where the proposed exploration operations are to be
located.
(b) Any person having an
interest which is or may be adversely affected by a decision of the cabinet
pursuant to paragraph (a) of this subsection shall have the opportunity for
administrative and judicial review as set forth in
405 KAR
8:010, Section 24.
Section 3. Public Availability of
Information.
(1) Except as provided in
subsection (2) of this section, all information submitted to the cabinet under
this administrative regulation shall be made readily available for public
inspection and copying pursuant to Kentucky open record statutes
KRS
61.870 to
61.884,
at the appropriate Regional Office of the Department for Natural
Resources.
(2)
(a) The cabinet shall not make information
available for public inspection, if the person submitting it requests in
writing, when it is submitted, that it not be disclosed and the cabinet
determines that the information is confidential.
(b) The cabinet shall determine that
information is confidential only if it concerns trade secrets or is privileged
commercial or financial information which relates to the competitive rights of
the person intending to conduct coal exploration .
(c) Information requested to be held as
confidential under this subsection shall not be made publicly available until
notice and opportunity to be heard has been afforded persons seeking or
opposing disclosure of the information.
Section 4. Commercial Use or Sale.
(1) Except as provided under subsection (2)
of this section, any person who intends to commercially use or sell coal
extracted during coal exploration operations that are subject to Section 2 of
this administrative regulation shall first obtain a permit to conduct surface
coal mining and reclamation operations under
405 KAR
8:010.
(2)
With the prior written approval of the cabinet, no permit to conduct surface
coal mining and reclamation operations shall be required for the sale or
commercial use of coal extracted during coal exploration operations if the sale
or commercial use is for coal testing purposes only. The person conducting the
exploration shall file an application for the approval with the cabinet. The
application shall demonstrate that the coal testing is necessary for the
development of a surface coal mining and reclamation operation for which a
surface coal mining and reclamation operations permit application is to be
submitted in the near future, and that the proposed commercial use or sale of
coal extracted during exploration operations is solely for the purpose of
testing the coal . The application shall contain the following:
(a) The name of the testing firm and the
locations at which the coal will be tested;
(b) If the coal will be sold directly to, or
commercially used directly by, the intended end user, a statement from the
intended user, or if the coal is sold indirectly to the intended end user
through an agent or broker, a statement from the agent or broker. The statement
shall include:
1. The specific reason for the
test, including why the coal may be so different from the intended user's other
coal supplies as to require testing;
2. The amount of coal necessary for the test
and why a lesser amount is not sufficient; and
3. A description of the specific tests that
will be conducted;
(c)
Evidence that sufficient reserves of coal are available to the person
conducting exploration or his principals for future commercial use or sale to
the intended end user, or agent or broker of the user identified above, to
demonstrate that the amount of coal to be removed is not the total reserve, but
is a sampling of a larger reserve; and
(d) An explanation as to why other means of
exploration, such as core drilling, are not adequate to determine the quality
of the coal and the feasibility of developing a surface coal mining
operation.
Section
5. Compliance. All coal exploration and reclamation operations
which substantially disturb the natural land surface shall be conducted in
accordance with the coal exploration requirements of KRS Chapter 350, this
administrative regulation, and
405 KAR 20:010,
and any conditions on approval for exploration and reclamation imposed by the
cabinet.
Notes
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