kycode

CHAPTER 349 Coalbed Methane Development

349.005. Legislative findings, purpose, and public policy.

The General Assembly hereby declares:
1. The venting of coalbed methane and degasification of coal seams is approved by the Commonwealth for the purpose of ensuring the safe recovery of coal;
2. The positive economic impact of coal mining to the Commonwealth is currently greater than that of coalbed methane production;
3. Coalbed methane is not found in conventional gas reservoirs;
4. Any development of coalbed methane should be undertaken in a way to protect and preserve the environment and protect and preserve the coal for future safe mining and the maximum recovery of coal;
5. Commercial recovery and marketing of coalbed methane should be facilitated whenever appropriate to meet the energy needs of both the Commonwealth and the United States;
6. The extraction of methane from mineable coal enhances mine safety, promotes environmental goals and objectives, and conserves an important energy resource; and
7. The Energy Policy Act of 1992 was enacted, in part, to encourage coalbed methane development and the Commonwealth should enact legislation to carry out the purpose of that act.
Therefore, in order to encourage and ensure the fullest practical safe recovery of both coal and coalbed methane, consistent with the above declarations and findings, this chapter is established to:
1. Authorize coalbed methane well permits;
2. Regulate the design of coalbed methane wells and recovery techniques;
3. Authorize coalbed methane well drilling units and pooling interests therein;
4. Establish field rules; and
5. Provide a process to enable coalbed methane well operators and coalbed methane owners to proceed with the orderly development and production of coalbed methane pending the judicial resolution of issues relating to coalbed methane ownership.
Notwithstanding subsections (1) and (2) of this section, the General Assembly expressly finds that establishing an orderly process to permit and produce coalbed methane shall in no way be construed to create an inference or presumption as to the ownership of coalbed methane in any judicial or administrative proceeding, or be construed to or be used or interpreted to apply to any well otherwise permitted, approved, or regulated under KRS Chapter 353, except for any wells that are to be permitted, converted to, or operated as coalbed methane wells.
It is hereby declared to be the public policy of this Commonwealth and in the public interest to:
1. Safeguard, preserve, and protect coal seams for safe mining; facilitate the expeditious, safe evacuation of coalbed methane from the coalbeds of this state; and maintain the ability and right of coal operators at all times to vent coalbed methane from mine areas for the safe recovery of coal;
2. Foster, encourage, and promote the commercial development of the Commonwealth’s coalbed methane by establishing procedures for issuing permits and forming drilling units for coalbed methane wells without adversely affecting the safety of mining or the mineability of coal seams;
3. Safeguard, protect, and enforce the correlative rights of coalbed methane operators and coalbed methane owners in a pool of coalbed methane so that each operator and owner may obtain his or her just and equitable share of production from coalbed methane;
4. Create a state permitting procedure and authority to provide for and facilitate coalbed methane development as encouraged by the Energy Policy Act of 1992; and
5. Seek the deletion of the Commonwealth of Kentucky from the list of affected states by the Secretary of the United States Department of Interior as provided for in the Energy Policy Act of 1992.

History. Enact. Acts 2004, ch. 65, § 1, effective July 13, 2004.

Research References and Practice Aids

Journal of Natural Resources & Environmental Law.

Clevinger, The Battle Between Coal Rights and Gas Rights Continues: Hazard Coal Corp. v. Kentucky West Virginia Gas Co., 20 J. Nat. Resources & Envtl. L. 131 (2005-2006).

Kentucky Bench & Bar.

Thomas, Coalbed Methane: Who Owns This $4.8 Billion Natural Resource in Kentucky. Vol. 72, No. 2, March 2008, Ky. Bench & Bar 6..

The Balancing of Coal and Coalbed Methane Interests Within the Coalbed Methane Statutory Schemes of Virginia, West Virginia and Kentucky, 19 J.N.R. & E.L. 137 (2004-2005).

349.010. Definitions for chapter.

As used in this chapter:

“Abandoned” when used in connection with a well or hole means a well or hole which has never been used, or which, in the opinion of the department, will no longer be used for the production of coalbed methane or the injection or disposal of fluid therein;
“Coal interest holder” means every record coal owner, record coal lessee, mine licensee as defined in KRS 352.010(1)(r) and mine permittee as defined in KRS 350.010(21) whose coalbed is penetrated, or proposed to be penetrated, by a coalbed methane well;
“Coalbed” or “coal seam” means a seam of coal, whether workable or unworkable;
“Coalbed methane” means gas produced from a reservoir found in a coalbed, a mined-out area, or gob;
“Coalbed methane well” means any well drilled, deepened, converted, or reopened for the purpose of capturing coalbed methane for sale or use. Any well initially used for a coal mining-related purpose, such as a vent well, but which is subsequently used for the purpose of recovering coalbed methane for sale or use, shall then be deemed to be a coalbed methane well and shall comply with the provisions of this chapter at the time that the well is converted or used for the purpose of recovering coalbed methane for sale or use;
“Commissioner” means the commissioner of the Department for Natural Resources;
“Correlative rights” means the reasonable opportunity of each person entitled to recover, without waste, the coalbed methane in and under his or her tract or tracts, or the equivalent thereof;
“Department” means the Department for Natural Resources;
“Director” means the director of the Division of Oil and Gas as established in KRS 353.530 ;
“Drilling unit” means the maximum area in a pool which may be drained efficiently by one (1) well so as to produce the reasonable maximum recoverable coalbed methane in the area. Where the department has provided rules for the establishment of a drilling unit and an operator, proceeding within the framework of the rules so prescribed, has taken the action necessary to have a specified area established for production from a well, the area shall be a drilling unit;
“Division” means the Division of Mine Permits in the Department for Natural Resources;
“Field rules” means rules established by orders of the review board relating to the drilling, completion, production of, and specifications for coalbed methane wells in a particular geographic area as defined by an order;
“Gob” means the de-stressed zone associated with any full-seam extraction of coal that extends above and below the mined-out coalbed;
“Gob well” means a well drilled or a vent hole converted to a well pursuant to this chapter which produces or is capable of producing coalbed methane for sale or use, from a de-stressed zone associated with any full seam extraction of coal that extends above or below a mined-out coalbed;
“Horizontally drill” or “horizontal drilling” means the intentional act of drilling a borehole, shaft, or hole, which deviates from vertical for the purpose of penetrating a coal seam to produce coalbed methane;
“Mine licensee” means the mine licensee as defined in KRS 352.010(1)(r);
“Mine permittee” means the permittee as defined in KRS 350.010(21);
“Nonparticipating working interest owner” means a coalbed methane owner or lessee of a tract included in a drilling unit who elects to share in the operation of the coalbed methane well on a carried basis by agreeing to have his or her proportionate share of the costs allocable to his or her interest charged against his or her share of production from the coalbed methane well;
“Nonparticipating operator” means a nonparticipating working interest owner who is also the operator of the coalbed methane well;
“Operator” means any owner of the right to drill, develop, operate, and produce coalbed methane from a pool and to appropriate the coalbed methane produced therefrom, either for himself or herself, or for himself, herself, and others; in the event there is no coalbed methane lease in existence with respect to the tract in question, the owner of the coalbed methane rights therein shall be considered as an “operator” to the extent of seven-eighths (7/8) of the coalbed methane in that portion of the pool underlying the tract owned by that owner, and as a “royalty owner” as to one-eighth (1/8) interest in that coalbed methane;
“Other interested coalbed methane parties” means all working interest owners other than the operator, all royalty and overriding royalty interest owners or holders, and any other party who owns or holds a right or interest in a drilling unit, coalbed methane well site for which a drilling permit has been issued or is pending, and all associated equipment, facilities, infrastructure, and improvements;
“Participating working interest owner” means a coalbed methane owner or lessee who elects to bear a share of the risks and costs of drilling, completing, equipping, operating, plugging, and abandoning a coalbed methane well equal to the proportion which the acreage in the drilling unit he or she owns or holds under lease bears to the total acreage of the drilling unit;
“Participating operator” means a participating working interest owner who is also the operator of the coalbed methane well;
“Person” means any person, corporation, association, partnership, limited liability company, receiver, governmental agency subject to this chapter, trustee, so-called common law or statutory trust, guardian, executor, administrator, or fiduciary of any kind, federal agency, state agency, city, commission, political subdivision of the Commonwealth, or any interstate body;
“Plat” means a map, drawing, or print showing the location of a well;
“Review board” means the Coalbed Methane Well Review Board;
“Royalty owner” means any owner of coalbed methane in place, or coalbed methane rights, to the extent that the owner is not an operator as defined in subsection (20) of this section;
“Stimulate” means any action taken to increase the flow of coalbed methane, or the inherent productivity of a coalbed methane well, including but not limited to fracturing, shooting, acidizing, or waterflooding, but excluding cleaning out, bailing, or workover operations;
“Surface owner” means the person in whose name the surface of the land is assessed for purposes of taxes imposed according to the property valuation administrator;
“Unit” means any tract or tracts which the department has determined are underlaid by a pool or pools of coalbed methane and are not drilling units as defined in subsection (10) of this section;
“Unitization” means the act of combining separately owned tracts or separate interests therein into a unit constituting all or some portion of a coalbed that produces or is capable of producing coalbed methane and the joint operation of that unit;
“Unit operator” means the party designated in a pooling order to develop a unit by the drilling of one (1) or more coalbed methane wells;
“Vent hole” means a borehole, shaft driven, or hole dug, drilled, deepened, converted or reopened, which is used for the purpose of releasing or venting coalbed methane to the atmosphere and not for the purpose of capturing or producing coalbed methane for sale or use;
“Venting” means the act of releasing coalbed methane to the atmosphere;
“Well” means any borehole, shaft driven, or hole dug, drilled, deepened, converted or reopened for the purpose of capturing or producing coalbed methane for sale or use; and
“Workable coalbed” means:
1. Any coalbed twenty-four (24) inches or more in thickness;
2. Any coalbed actually being operated commercially;
3. Any coalbed that the department decides can be operated commercially, and the operation of which can reasonably be expected to commence within not more than ten (10) years; or
4. Any coalbed that, from outcrop indication or other definite evidence, proves to the satisfaction of the department to be workable and, when operated, will require protection if wells are drilled through or into it.

HISTORY: Enact. Acts 2004, ch. 65, § 2, effective July 13, 2004; 2005, ch. 123, § 44, effective June 20, 2005; 2006, ch. 241, § 7, effective July 12, 2006; 2010, ch. 24, § 1871, effective July 15, 2010; 2017 ch. 117, § 28, effective June 29, 2017.

349.015. Application for permits — Contents, distribution, and filing of plats — Notice to record owners, licensees, and permittees — Information required to accompany plats or exhibits.

Before a permit may be issued by the department to drill a coalbed methane well on any tract known to be underlaid with coal-bearing strata, the well operator shall provide to the department a plat prepared by a licensed, professional land surveyor and a licensed, professional engineer showing:
1. The county in which the coalbed methane well drill site is located;
2. The name of the surface owner of the drill site tract, the acreage of the drill site tract, the names of the surface owners of adjacent tracts, the names of all coal interest holders from the surface to fifty (50) feet below the deepest penetration of the coalbed methane well on the tract on which the well is proposed to be located, and the names of all oil and gas owners from the surface to one hundred (100) feet below the deepest penetration of the coalbed methane well on the tract on which the well is proposed to be located;
3. The proposed or actual location of the coalbed methane well determined by bearing and distance, relative to two (2) permanent points or monuments that appear on the applicable United States Geological Survey seven and one-half (7-1/2) minute topographic quadrangle map;
4. The location of any other existing or permitted coalbed methane well or any oil or gas well located within one thousand five hundred (1,500) feet of the well;
5. The outside boundary of the mineral tract from which the coalbed methane is to be produced if within seven hundred fifty (750) feet of the well; and
6. The number to be given the coalbed methane well, the earliest date for commencement of drilling, the earliest date for commencement of any stimulation of the coalbed methane well, and if horizontal drilling of a coalbed methane well is proposed, the vertical and horizontal alignment and extent of the coalbed methane well.
If the location of any coalbed methane well proposed to be drilled, deepened, or reopened is known to be underlaid by a coal bearing stratum which is not within the area of an existing mining permit or the proposed permitted area of a pending application or permit modification for a mine before the division, simultaneously with the filing of an application for a permit, the applicant shall send, by registered or certified mail, a copy of the required plat to the record coal owner or owners and record coal lessee or lessees from the surface to fifty (50) feet below the deepest penetration of the coalbed methane well on the tract on which the well is proposed to be located.
If the coal bearing stratum is within the area of an existing mining permit or the proposed permitted area of a pending application or permit modification for a mine before the division, a copy of the required plat shall also be sent by the applicant, by registered or certified mail, to each mine licensee and mine permittee operating any stratum as designated on the current license issued by the department and at the address stated thereon.
A copy of the required plat shall also be sent, by registered or certified mail, simultaneously with the filing of an application for a permit, to the surface owner of the drill site tract and surface owners of adjoining tracts.
If the address of any record owner is unknown to the applicant and cannot upon diligent inquiry within the county be ascertained, or if there are more than five (5) record owners, then the applicant shall file with the department an affidavit that either condition exists, and the department may prescribe some different method of notifying the record owner in lieu of sending a copy of the plat and notice of application as required by this section.
The plat shall be filed and become a permanent record, subject to inspection at any time by any interested person. Any executive officer, process agent, or chief engineer of the mine licensee or mine permittee may be considered a mine licensee or mine permittee for the purposes of mailing the required copy of the plat.
If a coalbed methane well is proposed to be drilled, deepened, converted, or reopened by an applicant who is not the owner or lessee of all of the oil and gas interests, the applicant shall, simultaneously with the filing of the application for a permit, send by registered or certified mail a copy of the required plat to the record oil and gas lessees of, to the record oil and gas lessors of, and to the operator of all oil and gas wells producing from, all formations from the surface to one hundred (100) feet below the deepest penetration of the coalbed methane well on the tract upon which the well is proposed to be located.
The operator shall promptly upon completion of either a vertically drilled coalbed methane well located ten (10) feet or more from the location reflected on the plat required with the permit application or a horizontally drilled coalbed methane well file with the department an as-drilled plat prepared by a licensed professional land surveyor and a licensed professional engineer reflecting the actual coalbed methane well location. If the operator has completed a horizontally drilled coalbed methane well, the as-drilled plat shall show its alignment and extent. The plat shall become a permanent record subject to inspection at any time by any interested persons.
Each plat, or exhibit attached thereto, shall have the following information on a form supplied by the department:
1. Notice of the application for a coalbed methane well and the address where a copy of the application may be obtained;
2. A statement that the recipient has twenty (20) days within which to file an objection to the proposed coalbed methane well, its location, the proposed stimulation in the workable coalbed, or the proposed completion in the workable coalbed; and
3. A statement that the applicant has met and conferred with, or offered to meet and confer with, each coal interest holder concerning the proposed coalbed methane well, its location, the proposed stimulation in the workable coalbed, or the proposed completion in the workable coalbed.

History. Enact. Acts 2004, ch. 65, § 3, effective July 13, 2004; 2005, ch. 123, § 45, effective June 20, 2005.

349.020. Filing of objections to drilling — Filing of real property interest claims — Issuance of drilling permit — Department to notify Division of Mine Permits of applications to drill — Appeal to review board.

If the drilling of a coalbed methane well could adversely affect the present or future use or operation of a workable coalbed, any coal interest holder may object to a proposed coalbed methane well, the well’s location, the proposed stimulation in the workable coalbed, or the proposed completion in the workable coalbed. Any coal interest holder, within twenty (20) days of receipt of the plat by him or her and by the department, may file specific objections in writing with the department. The filed objections shall provide sufficient detail for the applicant to identify the nature and substance of the objection. The department shall notify the applicant of the objections and fix a time and place for a hearing before the review board to be conducted in accordance with KRS Chapter 13B and this chapter.
If any coal interest holder, notified pursuant to KRS 349.015 , or any other person, claims to have a valid real property interest in, or the current legal right to produce, coalbed methane, the person claiming the real property interest or right shall notify the applicant and the department, in writing, within twenty (20) days from the receipt of the plat by him or her and by the department. The person also shall request that a pooling order be entered pursuant to KRS 349.080(1).
If the record oil and gas lessor, lessee, or well operator notified pursuant to KRS 349.015 , or any other person, claims to have a valid real property interest in, or the current legal right to produce, coalbed methane, the person claiming the real property interest or right shall notify the applicant and the department, in writing, within twenty (20) days from the receipt of the plat by him. The person shall request that a pooling order be entered pursuant to KRS 349.080(1).
If no objections are filed within the twenty (20) day period, the department shall immediately issue a drilling permit to the well operator approving the location of the well and authorizing the well operator to proceed to drill at that location, provided all other preconditions to issuance of a permit, as contained in this chapter, have been met.
Upon receipt of an application to drill a coalbed methane well, the department shall provide a copy of the required plat and permit application to the division. Within fifteen (15) days of receipt by the division, notification shall be sent to the department by the division as to whether the proposed coalbed methane well will be located within the boundaries of any coal mine for which a permit has been issued or has been applied for pursuant to KRS Chapter 350. If the proposed coalbed methane well is to penetrate a workable coalbed that is within the area of an existing permit for an underground mine issued by the division, or the proposed permitted area of a pending application or permit modification for an underground mine before the division, the written authorization of the mine permittee shall be required prior to issuance by the department of a permit to stimulate, complete, or horizontally drill the coalbed methane well in the workable coalbed that is within the area of an existing permit for an underground mine issued by the division or within the proposed permitted area of a pending application or permit modification for an underground mine before the division. If the proposed coalbed methane well is to be located within a surface area permitted, or proposed in a pending application or permit modification to be issued by the division, the written authorization of the mine permittee shall be required prior to issuance by the department of a permit to drill the coalbed methane well. In the absence of the written authorization of the mine permittee, the applicant may file an appeal with the review board requesting approval to drill the proposed coalbed methane well if:
1. Authorization has been denied by the mine permittee; and
2. The proposed location and area to be disturbed by the proposed coalbed methane well has achieved either a partial bond release status or the bond for the area has been forfeited.

History. Enact. Acts 2004, ch. 65, § 4, effective July 13, 2004; 2005, ch. 123, § 46, effective June 20, 2005.

349.025. Procedure for plugging and abandoning wells — Request for hearing — Exception — Rights of coal interest holder.

Prior to the abandonment of a coalbed methane well drilled through a workable coalbed, the well operator shall notify, by certified mail, return receipt requested, or by registered mail, all the coal interest holders of the workable coalbed and the department of the operator’s intention to plug and abandon the well. The notice shall give the number of the well and its location, and fix the time at which the work of plugging and filling will be commenced. The time shall not be less than fifteen (15) days after the day on which the notice was received, or in due course should be received, by the department. The department shall prescribe the form of notice to be used. A representative of any coal interest holder, at his or her own expense and liability, and of the department may be present at the plugging and filling of the well. Regardless of whether representatives appear, the well operator may proceed, at the time fixed, to plug and fill the well. When the well is plugged and filled, an affidavit setting forth the time and manner in which the well was plugged shall be made in triplicate by two (2) persons experienced in plugging and filling wells who participated in the work. The affidavit shall be made on forms furnished by the department. One (1) copy of the affidavit shall be retained by the well operator, one (1) provided to each coal interest holder, and one (1) provided to the department.
In addition to the notification required under subsection (1) of this section, prior to the abandonment of a coalbed methane well the operator shall submit a plugging plan which is subject to approval by the department. The proposed plugging plan shall be designed to allow coal mining to occur through the well after the well is plugged.
If a coalbed methane well ceases to produce in paying quantities and no dewatering operations are being conducted for a period of fifteen (15) consecutive months, any coal interest holder or any record oil or gas lessor or lessee of any tract being penetrated by the coalbed methane well, may file a request for hearing pursuant to KRS 349.060 , to determine whether the well has been abandoned and should be plugged in accordance with this section. However, nothing in this subsection shall require the plugging and abandonment of a coalbed methane well that is being temporarily shut in by the coalbed methane well operator. Simultaneously with the filing of a request for a hearing with the department, the person requesting the hearing shall send a copy of the request to the coalbed methane well operator.
Any coal interest holder shall have the following rights with respect to a coalbed methane well to be plugged and abandoned:
1. To convert the coalbed methane well to a vent hole or otherwise take the coalbed methane well. In this event the department, upon determination that the coal interest holder has placed the coalbed methane well under a mining permit, shall release the coalbed methane well operator’s bond and the coalbed methane well operator shall be relieved of further responsibility for the coalbed methane well; and
2. To file an objection concerning the proposed manner or method of plugging with the department, within fifteen (15) days after receipt of notice of intent to plug. The department shall consider any objection and may issue an order specifying the manner and method of plugging and reclamation consistent with this section.
All coalbed methane wells shall be plugged and abandoned in accordance with this section. The department shall promulgate regulations specifying the manner and method of plugging vertical and horizontal coalbed methane wells and in so doing, or in entering any order for such plugging and abandonment, shall give consideration to the ability to mine any affected coal seam safely and the protection of any affected coal seam for future mining.

History. Enact. Acts 2004, ch. 65, § 5, effective July 13, 2004.

349.030. Establishment of rules and procedures for mining through coalbed methane well — Coalbed Methane Well Review Board to hold hearings and issue orders and mine-through certificates — Determination of compensation for all parties interested in coalbed methane wells — Appeal of review board’s decisions to Circuit Court — Escrow of funds.

If a coalbed methane well is permitted and drilled within the boundaries of any coal mine for which a permit has been issued or an application for a mine permit or a mine permit modification or amendment has been filed but not issued pursuant to KRS Chapter 350, the mine licensee shall have the right to mine through that coalbed methane well and the associated drilling unit in accordance with the provisions of this subsection.
1. At least one hundred twenty (120) days prior to mining through a coalbed methane well and associated drilling unit, the mine licensee shall notify the review board and operator of its intention to mine through the property. The notice shall be made on a form prescribed by the review board, and shall include a plat showing the location of the drilling unit, the coalbed methane well and associated surface equipment, facilities, infrastructure, and improvements, and the geographic extent of the mining operations to be conducted within the drilling unit. The mine licensee shall also submit an estimated schedule for commencing and completing mining operations within the drilling unit. After a hearing the review board shall promptly issue a written determination on whether the continued operation of the coalbed methane well will impede, interfere with, or present a possible safety hazard to the mine licensee’s planned mining operations. If the review board determines that the coalbed methane well will impede, interfere with, or present a safety hazard to the planned mining operations, concurrently an order shall be issued to the operators, with a copy to the mine licensee, directing the temporary or permanent plugging of the well at the operator’s cost and such other action as may be appropriate in the circumstances. Following the issuance of the order, the review board shall promptly issue a mine-through certificate to the mine licensee, with a copy to the operator, authorizing the mine licensee to mine-through the coalbed methane well and associated drilling unit.
2. The mine licensee and all other coal interest holders having interests in the coalbed within the drilling unit shall have no duty or obligation to compensate or pay the operator or other interested coalbed methane parties for any causes of action, claims, or damages arising from the suspension or loss of coalbed methane production or the plugging and abandonment of a coalbed methane well and the removal or relocation of any associated facilities, infrastructure, and improvements due to mining through the coalbed methane well and associated drilling unit pursuant to this subsection.
If a mine licensee files an application for a coal mine permit or seeks to modify or amend an existing coal mine permit so as to include a geographical area containing one (1) or more existing coalbed methane wells or any well sites for which drilling permits have been issued or are pending, the mine licensee shall have the right to mine through those coalbed methane wells or into or through a coalbed methane well and the associated drilling units and any well sites for which permits to drill have been issued or applications for permits to drill have been filed but not issued in accordance with the provisions of this subsection.
1. At least one hundred eighty (180) days prior to mining into or through one (1) or more drilling units or permitted well sites operated by a common operator, the mine licensee shall notify the review board and the operator of its intention to mine into or through the property. The notice shall be made on a form prescribed by the review board and shall include a plat showing the location of the drilling unit, the coalbed methane well and associated surface equipment, facilities, infrastructure, and improvements, and the geographic extent of the mining operations to be conducted within the drilling unit. The mine licensee shall also submit an estimated schedule for commencing and completing mining operations within the drilling unit.
2. Within thirty (30) days after receiving the mine licensee’s notice pursuant to paragraph (a) of this subsection, the mine licensee and operator shall enter into a confidentiality agreement on a form prescribed by the review board and the operator shall provide, to the extent available, copies of all data and information necessary and appropriate to enable the mine licensee to determine the current value of each drilling unit, well site, and any associated assets described in the mine licensee’s notice in accordance with the criteria set forth in paragraph (e) of this subsection. The information shall be in a form prescribed by the review board and shall include, among other things, data, reports, and information relating to current coalbed methane reserve calculations, well completions, historic production and sales results, capital and operating costs, all actual land, legal permitting, survey, title, and any other costs and expenses directly relating to the acquisition, permitting, development, and operation of each drilling unit and well site, and estimated well plugging and abandonment costs of any existing coalbed methane wells. In addition, the operator shall provide the review board and mine licensee with copies of all agreements and leases, payment division orders and any pooling agreements or pooling orders for each drilling unit and well site, together with a schedule setting forth the name, address, and working interest and net revenue percentages, royalties and overriding royalties, and all other interests and rights of all other interested coalbed methane parties. If the information is not timely filed or is incomplete, the mine licensee may seek an order from the review board directing the operator to comply with the provisions of this subsection.
3. Within thirty (30) days after receiving the information described in paragraph (b) of this subsection, the mine licensee and operator shall meet and confer at a mutually agreed upon date, time, and place for the purpose of attempting to conclude a mutually acceptable agreement as to the compensation due to the operator for any damage, impairment, or loss to each drilling unit, well site, and any associated assets described in the information provided by the operator resulting from the mine licensee’s planned mine-through operations. Any compensation agreement between the mine licensee and operator for each drilling unit or well site shall be approved and executed by all other interested coalbed methane parties. The mine licensee and operator shall jointly notify the review board that a compensation agreement has been entered into between the parties and request that the review board issue a mine-through certificate for each drilling unit and well site described in the notice. The notice shall include any terms and conditions set forth in the compensation agreement that the parties have agreed to incorporate in the applicable mine-through certificates. Upon receipt of the executed compensation agreement, the review board shall promptly issue the requested mine-through certificates to the mine licensee, with copies to the operator and all other interested coalbed methane parties. If the parties are unable to reach an agreement, within ten (10) days following the expiration of the thirty (30) day meet and confer period, either party may request a hearing before the review board for the purpose of determining the compensation due the operator and any terms and conditions to be imposed upon the mine licensee’s proposed mining operations. Copies of the hearing request shall be sent to all other interested coalbed methane parties.
4. Within fifteen (15) days of receiving the hearing request, the review board shall schedule a hearing to take place within sixty (60) days and shall notify the mine licensee, the operator and all other interested coalbed methane parties of the date, time, and location of the hearing. At its election, the review board may engage a qualified petroleum engineer for the purpose of conducting an independent evaluation of the compensation to be paid to the operator and all other interested coalbed methane parties in accordance with paragraph (e) of this subsection. The mine licensee and the operator shall each pay one-half (1/2) of the costs and expenses for the petroleum engineer retained by the review board.
5. The review board shall determine the value of each drilling unit, well site, and all associated assets before and after the mine licensee’s planned mine-through operations. In determining the amount of compensation due the operator and all other interested coalbed methane parties, the review board must consider all relevant evidence and information submitted and the review board shall base its decision solely upon the following criteria and procedures:
  1. Except as otherwise expressly provided in this subsection, all coalbed methane reserve estimates and the valuation of reserves and other assets damaged, impaired, or lost due to the planned mining operations shall be consistent with standard oil and gas industry accounting, engineering, and reserve practices and shall be performed pursuant to the then-current applicable laws, regulations, policies, and guidelines for determining gas reserves for public reporting companies in the United States.
  2. At the hearing, the mine licensee and operator, on behalf of itself and all other interested coalbed methane parties, shall appear and submit evidence and testimony as to the value of the subject drilling units, well sites, and any associated assets before and after the mine licensee’s planned mining operations. The review board shall only consider coalbed methane reserve estimates or valuation determinations made in conformity with subparagraph 1. of this paragraph by a professional petroleum engineer with experience in evaluating coalbed methane reserves and operations. All reserve estimates and any valuation analysis prepared by the mine licensee and operator for use in the review board’s hearing shall be effective thirty (30) days prior to the date of the hearing. The reserve estimates and valuation analysis shall be exchanged between the mine licensee and operator and copies of the information shall be provided to the review board and all other interested coalbed methane parties no less than twenty-one (21) days prior to the hearing date. Any coalbed methane reserve estimates or valuation analysis prepared at the review board’s request shall be set forth in a written report. Copies of the report prepared for the review board shall be provided to the mine licensee, the operator, and all other interested coalbed methane parties no less than ten (10) days prior to the review board’s hearing date.
  3. All estimates of remaining recoverable coalbed methane reserves immediately before and immediately after the planned mining operations shall consist of proved developed producing or proved developed nonproducing reserves as determined pursuant to this subsection. A drilling unit shall have proved developed producing reserves if the unit has an operating coalbed methane well, which is completed in one (1) or more target coal seams and is producing commercial quantities of coalbed methane. The drilling units total proved developed producing reserves before and after the planned mining operations shall be calculated based on the completed coal seams within the unit well. A drilling unit shall have proved developed nonproducing reserves if the unit has a coalbed methane well which is completed in one (1) or more target coal seams and is fully operational and all associated infrastructure such as power, gas gathering, and water management systems required to produce and sell coalbed methane in commercial quantities has been constructed, but the well is not producing coalbed methane in commercial quantities because it either is in the dewatering stage or is not operating due to factors beyond the operator’s control. Whether a drilling unit contains proved developed producing reserves or proved developed nonproducing reserves shall be determined based on the status of the coalbed methane well and associated infrastructure sixty (60) days prior to the review board’s hearing date.
  4. The net present value of proved developed producing reserves projected immediately before and immediately after the planned mining operations shall be calculated using a discount rate of twelve percent (12%). The net present value of proved developed nonproducing reserves projected immediately before and immediately after the planned mining operations shall be calculated using a discount rate of twenty percent (20%). The valuation analysis shall also project the net present value of all revenues received, if any, by the operator during the period in which the planned mining operations are to be conducted.
  5. In determining the compensation due the operator and all other interested coalbed methane parties for delayed or lost production, if the total projected production of the coalbed methane well is reduced so as not to yield a commercially reasonable return on investment to the operator, but the well is still able to produce coalbed methane in commercial quantities, the projected difference in the net present value of the recoverable reserves before and after mining shall be included as part of the compensation due the operator and all other interested coalbed methane parties.
  6. In determining the value of the coalbed methane reserves impaired or lost due to the planned mining operations, except as expressly provided herein, no consideration shall be given to undeveloped coalbed methane resources in coal seams which have not been completed in the subject coalbed methane well or which are in coal seams below the total depth of the well bore. If, however, a coal seam in the same field is producing coalbed methane but the coal seam is not completed in the subject coalbed methane well, the operator may submit evidence to the review board for its consideration as to the potential net present value of the resources within the uncompleted seam, but in no event shall the net present value of those resources be discounted at less than thirty percent (30%).
  7. Except as otherwise provided herein, in determining the value of coalbed methane for purposes of this subsection, the gas price shall be the last published price in the gas market closest to the drilling unit sixty (60) days prior to the review board’s hearing date. If the coalbed methane is sold pursuant to a gas sales agreement or marketing contract in which the gas price is determined based on a published price, subject to any contractual adjustment, in the gas market other than the market closest to the drilling unit, the gas price shall be determined based on the last published price in a gas market referred to in the gas sales agreement or marketing contract, subject to any contractual adjustment set forth therein, sixty (60) days prior to the review board’s hearing date. If the coalbed methane is sold pursuant to an arms-length firm or fixed price gas sales agreement or marketing contract, the actual sales price received by operator for gas sold sixty (60) days prior to the review board’s hearing date shall be used as the gas price in the coalbed methane valuation.
  8. All capital, operating, and production costs used in the net present value determinations made pursuant to this subsection shall be based on the operator’s then current reasonable and verifiable actual costs and expenses. Copies of all relevant and available cost information shall be provided by the operator to the review board and mine licensee as provided in paragraph (b) of this subsection. If actual cost information is not otherwise available, all calculations shall be made using reasonable and customary costs for comparable coalbed methane operations in the Commonwealth and in the surrounding states.
  9. If the planned mining operations will mine through a coalbed methane well or require the removal, relocation, or suspension of operation of other facilities, infrastructure, or improvements in a drilling unit, the operator and any other interested coalbed methane parties shall be reimbursed for all reasonable actual and direct costs, damages, and expenses to be incurred due to these mining operations; provided, however, that in no event shall any replacement costs and expenses exceed the operator’s or any other interested coalbed methane parties’ actual costs and expenses for the affected well, facilities, infrastructure, and improvements, as the case may be. The operator and any other interested coalbed methane parties shall not be reimbursed for any general, administrative, or overhead costs and expenses or any other costs and expenses not otherwise allocated to the costs of the subject drilling unit, coalbed methane well and the associated facilities, infrastructure, and improvements. Any amounts due the operator and any other interested coalbed methane parties shall be reduced by the projected then-current market value of such equipment, facilities, and improvements to the extent that it can be salvaged and sold or used in other operations.
  10. If, prior to drilling a coalbed methane well, the mine licensee submits a plan to mine into or through any part of the associated drilling unit or well site for which a drilling permit has been issued or is pending, the operator shall not proceed with drilling a coalbed methane well pending a final decision by the review board with respect to the mine licensee’s request for a mine-through certificate. When a mine-through certificate is issued to the mine licensee, the operator and all other interested coalbed methane parties shall be reimbursed for all reasonable costs and verifiable actual land, legal, permitting, surveying, and technical costs and expenses incurred to acquire or lease and maintain the property and obtain any permits, approvals, and other agreements required to drill the coalbed methane well. The operator and all other interested coalbed methane parties shall not be reimbursed for any general, administrative, or overhead costs and expenses or any other costs and expenses not otherwise allocated to the costs to acquire or lease the subject property or permit the coalbed methane well.
6. At a hearing, the review board shall take testimony and evidence from the mine licensee and operator, on behalf of itself and all other interested coalbed methane parties consistent with the provisions in this subsection. Within fifteen (15) days following the hearing, the review board shall issue a written decision to the mine licensee and operator determining the compensation due the operator and each of the other interested coalbed methane parties in the amount of the difference between the value of each drilling unit, well site, and any associated assets before and after the mine licensee’s planned mining operations. If the review board determines that the mine licensee’s proposed mining operations will result in a loss or taking of all of either the coalbed methane reserves in the coal seam to be mined and all coalbed methane reserves in completed coal seams in the coalbed methane well below the mined coal seam as provided in paragraph (e)5. of this subsection or the entire drilling unit, the operator and other interested coalbed methane parties shall be awarded the full value of the property and assets prior to the proposed mining operations as determined by the review board. The review board’s decision shall list the compensation amounts to be paid to the operator and each of the other interested coalbed methane parties for each drilling unit, well site, and any associated assets. The decision shall also set forth any duties or obligations to be performed by the parties, such as the temporary or permanent plugging of any well or the relocation or removal of any surface facilities, to enable the mine licensee to proceed immediately with the planned mining operations.
7. Within fifteen (15) days of receiving the review board’s decision, the mine licensee shall notify the review board and the operator and all other interested coalbed methane parties of its decision to:
  1. Accept the review board’s decision with respect to one (1) or more of the drilling units, well sites, and associated assets and deposit the compensation awarded to the operator and each of the other interested coalbed methane parties for the property;
  2. Appeal all or part of the review board’s decision as provided in paragraph (j) of this subsection; or
  3. Withdraw notice of intent to mine into any of the subject coalbed methane property and assets. If the mine licensee elects to withdraw notice of intent to mine into or through all of the drilling units, well sites, and any associated assets which were the subject of the review board hearing, upon receiving a statement of costs from the operator, the mine licensee shall promptly reimburse the operator for all reasonable out-of-pocket engineering and legal costs and expenses incurred to prepare for and participate in the review board hearing and shall have no further obligations to the operator or any of the other interested coalbed methane parties.
8. Within fifteen (15) days of receiving the review board’s decision, the operator, on behalf of itself and other interested coalbed methane parties, shall notify the review board and the mine licensee whether it will accept the amounts awarded by the review board or file an appeal with the Circuit Court in the county where the drilling unit or well site is located challenging the review board’s valuation of any of the property or assets.
9. If no appeal of the review board’s decision is filed by the parties, upon receipt of the compensation due the operator and all other interested coalbed methane parties for each drilling unit and well site selected by the mine licensee for which a mine-through certificate will be issued, the review board shall promptly deliver the awarded compensation to the operator and all other interested coalbed methane parties for the drilling unit and well site and concurrently issue the appropriate mine-through certificate to the mine licensee, with copies to the operator and all other interested coalbed methane parties. If the operator and other interested coalbed methane parties are awarded either the total net present value of the coalbed methane reserves in coal seams to be mined by the mine licensee and all coalbed methane reserves in coal seams completed in a coalbed methane well below such coal seam as provided in paragraph (e)5. of this subsection or the total value of the entire drilling unit and associated assets, upon payment of the compensation, the operator and other interested coalbed methane parties shall simultaneously, if requested by the mine licensee, assign and transfer free and clear of all encumbrances to the mine licensee all of their respective rights, title, and interests in such property and assets, as the case may be, within the drilling unit on a form to be prescribed by the review board. The review board shall take whatever other action that may be deemed appropriate or necessary in the circumstances.
10. If either party notifies the review board of a decision to appeal the review board’s valuation of any of the subject coalbed methane properties and assets to the Circuit Court, the mine licensee shall deposit with the review board the compensation due the operator and each of the other interested coalbed methane parties for each drilling unit, well site and any associated assets selected by the mine licensee for which a mine-through certificate will be issued. Upon receipt of the funds from the mine licensee, the review board shall promptly deliver to the operator and the other interested coalbed methane parties one hundred percent (100%) of the awarded compensation for any drilling unit, well site, and any associated assets not listed in any notice of appeal and seventy-five percent (75%) of the awarded compensation to the operator and other interested coalbed methane parties for any drilling unit, well site, and any associated assets for which an appeal is to be filed. Concurrently with delivering the awarded compensation to the operator as provided herein, the review board shall issue to the mine licensee, with copies to the operator and all other interested coalbed methane parties, a mine-through certificate for each drilling unit and well site for which compensation has been received. If the review board’s decision with respect to any drilling unit is not appealed and the operator and other interested coalbed methane parties are awarded either the total net present value of the coalbed methane reserves in the coal seam to be mined by the mine licensee and all coalbed methane reserves in coal seams completed in a coalbed methane well below that coal seam as provided in paragraph (e)5. of this subsection or the total value of each drilling unit, well site, and any associated assets, upon payment of the compensation, the operator and other interested coalbed methane parties shall simultaneously if requested by the mine licensee, assign and transfer free and clear of all encumbrances to the mine licensee all of their respective rights, title, and interests in that property and assets, as the case may be, within the drilling unit or well site on a form to be prescribed by the review board. The review board shall take whatever other action that may be deemed appropriate or necessary in the circumstances to carry out its decision. All funds deposited with the review board shall be placed in an interest-bearing account pending a final resolution of any appeals.
11. Within thirty (30) days following the issuance of the review board’s decision, the mine licensee or the operator, on behalf of itself and any other interested coalbed methane parties, may file a petition in the Circuit Court of the county in which the drilling unit or well site is located or in the Franklin County Circuit Court disputing the review board’s valuation of all or any part of any coalbed methane properties or assets pursuant to this subsection. The parties filing the petition shall name as parties to the action the following: the review board, the mine licensee, all other coal interest holders, the operator, and all other interested coalbed methane parties. Promptly upon receiving notice of the petition, the review board shall deliver any remaining funds deposited by the mine licensee as provided in paragraph (j) of this subsection, together with all interest accrued thereon, to the clerk of the Circuit Court for the county in which the petition is filed and these funds shall be deposited in an interest bearing account pending a decision on the petition. The decision of the Circuit Court shall be made in accordance with the provisions of KRS 349.090 . If the Circuit Court determines the operator and other interested coalbed methane parties are entitled to greater compensation than the amount awarded by the review board, the mine licensee shall pay the difference to the clerk of the Circuit Court within fifteen (15) days of the court’s decision. Upon receipt of the additional funds awarded by the Circuit Court, the clerk shall promptly deliver to the operator and any other interested coalbed methane parties these funds together with all interest accrued thereon. If the Circuit Court determines that the operator is entitled to less compensation than the amount awarded by the review board, the amount of the reduction shall be refunded to the mine licensee together with any interest that accrued thereon. If the escrowed funds are not sufficient to fully reimburse the mine licensee, the operator and all other interested coalbed methane parties having an interest in the subject coalbed methane properties and assets shall promptly pay the mine licensee for the difference between the escrowed funds and the total amount to be reimbursed pursuant to the Circuit Court’s order. If the Circuit Court determines that the operator and other interested coalbed methane parties are to receive either the total net present value of the coalbed methane reserves in the coal seam to be mined by the mine licensee and all coalbed methane reserves in coal seams completed in a coalbed methane well below such coal seam as provided in paragraph (e)5. of this subsection or the total value of the entire drilling unit, well site, and any associated assets, which values may be increased or decreased by the Circuit Court, upon receipt of the awarded compensation, the operator and other interested coalbed methane parties shall simultaneously if requested by the mine licensee, assign and transfer free and clear of all encumbrances to the mine licensee all of their respective rights, title, and interest in such property and assets, as the case may be, within the drilling unit on a form to be prescribed by the review board.
12. Subject to obtaining a decision by the Circuit Court with respect to any appeals initiated pursuant to paragraph (k) of this subsection, the operator and all of the other interested coalbed methane parties’ acceptance of the compensation awarded by the review board and of the performance of any duties and obligations by the mine licensee as ordered by the review board shall constitute full and complete consideration to the operator and all of the other interested coalbed methane parties for any and all causes of action, claims, damages, or losses to each drilling unit or any portion thereof, well site, or any associated assets caused by the mine licensee, or any other coal interest holder’s subsequent mining operations. The mine licensee shall be liable for any and all injuries, deaths, or damages proximately caused by the mine licensee on, in, or with respect to that property.
If, after the mine licensee files a notice of intention to mine into or through any coalbed methane properties or assets pursuant to subsection (1) or (2) of this section, the mine licensee’s coal mining permit or any pending amendment to an existing permit issued pursuant to KRS Chapter 350 is withdrawn, canceled, delayed, or modified so as to exclude all or any part of the geographic area covering any drilling unit or well site described in the mine licensee’s notice, the mine licensee shall promptly advise the review board and operator that it is amending its request for a mine-through certificate to exclude any property that is no longer subject to a coal mine permit or a pending coal mine permit application.

History. Enact. Acts 2004, ch. 65, § 6, effective July 13, 2004.

349.035. Application of chapter — Prohibition of waste — Permits required — Notification to state and federal agencies.

This chapter shall apply to all lands located in the Commonwealth however owned including lands owned or administered by any government or any agency or political subdivision thereof, over which the Commonwealth has jurisdiction under its police power.
The waste of coalbed methane is hereby prohibited. The waste prohibited includes physical waste as that term is generally understood in the oil, gas, and coalbed methane industry, giving consideration to coal mining operations and the safe recovery of coal and includes:
1. The locating, drilling, equipping, operating, or producing of any coalbed methane well or wells drilled, deepened, or reopened in a manner that causes or tends to cause a reduction in the quantity of coalbed methane ultimately recoverable from a pool under prudent and proper operations, or contrary to any provision of, or any order, rule or administrative regulation promulgated or issued under this chapter;
2. Permitting the migration of coalbed methane from the stratum in which it is found into other strata, thereby ultimately resulting in the loss of recoverable coalbed methane;
3. The drowning with water of any stratum or part thereof capable of producing coalbed methane in paying quantities, except for secondary recovery purposes, or in hydraulic fracturing or other completion practices;
4. The unlawful damage to underground, fresh, or mineral water supply, coalbeds, or other mineral deposits in the operations for the discovery, development, production, or handling of coalbed methane;
5. The unnecessary or excessive loss of coalbed methane by spillage or venting or destruction of coalbed methane or its constituents; and
6. The drilling of more wells than are reasonably required to recover efficiently the maximum amount of coalbed methane from a pool.
For purposes of this chapter, waste does not include coalbed methane vented or released from any mine area, the degasification of a coal seam for the safe recovery of coal, the plugging of coalbed methane wells for the safe recovery of coal, or the conversion of coalbed methane wells to vent holes for the safe recovery of coal.
The sale or use of coalbed methane from any coalbed methane well unless a permit has been issued as required by KRS 349.040 , or in violation of the spacing provisions of KRS 349.075 , shall be prohibited.
No person shall conduct coalbed methane operations unless that person has first obtained the necessary permits, including surface discharge and underground injection control permits, as appropriate for the particular operation to be conducted. The department shall notify state and federal agencies with jurisdiction over the protection of surface waters and groundwater when permit applications are filed and shall, to the extent possible, coordinate permit review.

History. Enact. Acts 2004, ch. 65, § 7, effective July 13, 2004.

349.040. Prohibited drilling activities — Filing requirements for permit application — Appeal — Waiver — Filing of maps and plans — Denial of permit.

It is unlawful for any person to drill, commence, operate, deepen, convert, or stimulate any coalbed methane well, to conduct any horizontal drilling of a coalbed methane well or to convert any existing oil or natural gas well to a coalbed methane well, without first securing from the department a permit pursuant to this chapter. Before any well, borehole, or facility initially used for a coal mining related purpose, such as a vent hole, is converted for the purpose of recovering coalbed methane for sale or use, the operator shall obtain a permit and comply with the provisions of this chapter prior to the time that the well, borehole, or facility is converted or used for the purpose of recovering coalbed methane for sale or use. It is unlawful for any person to drill, deepen, convert, or reopen a coalbed methane well for the production of oil or natural gas or for the injection of water, gas, or other fluids into any oil or natural gas producing formation until the person has obtained a permit from the department for a petroleum or natural gas well pursuant to KRS 353.570 . However, no additional permit fee shall be required if the original permit for the coalbed methane well has not expired.
Every permit application filed under this section shall be verified and shall contain the following:
1. A statement that the applicant claims to have a valid real property interest in, or the current legal right to produce coalbed methane from a person claiming a valid real property interest in, the coalbed methane. The statement shall identify with specificity the nature of the real property interest and the document or instrument evidencing that interest or right, including recording information of any recorded document or instrument;
2. The names and addresses of the coalbed methane well operator and every person or entity whom the applicant must notify under any section of this chapter;
3. The name and address of each coal interest holder of any workable coalbed which is to be penetrated by a proposed coalbed methane well or within seven hundred fifty (750) horizontal feet or fifty (50) vertical feet of any portion of the proposed coalbed methane well;
4. The name and addresses of each record oil and gas lessee of, the record oil and gas lessor of, and the operator of all oil and gas formations from the surface to one hundred (100) feet below the deepest penetration of the coalbed methane well on the tract upon which the coalbed methane well is proposed to be located;
5. The coalbed methane well name or such other identification as the department may require;
6. The approximate depth to which the coalbed methane well is to be drilled, deepened, or converted, the coal seams including the depth and thickness of each seam that will be completed for production, and any other coal seams which will be penetrated by the coalbed methane well;
7. A description of any means to be used to stimulate any of the workable coalbeds penetrated by the coalbed methane well;
8. If the proposed coalbed methane well will require casing or tubing, the entire casing program for the coalbed methane well, including the size of each string of pipe, the starting point and depth to which each string is to be set, and the extent to which each string is to be cemented;
9. If the proposed operation is to convert an existing petroleum or natural gas well, as defined in KRS 353.010(19), or to convert a vertical borehole or facility initially used for a coal mining related purpose, such as a vent hole, to a coalbed methane well, all information required by this section, all formations from which production is anticipated, and any plans to plug any portion of the well;
10. Except for a vent hole proposed to be converted to a coalbed methane well, if the proposed coalbed methane well will be completed in some but not all coal seams for production, a plan and design for the coalbed methane well which will protect all workable coalbeds which will be penetrated by the coalbed methane well;
11. If the proposed operations will include horizontal drilling of a coalbed methane well, a description of the operations, including both the vertical and horizontal alignment and extent of the coalbed methane well from the surface to total depth; and
12. Other information as the department may require consistent with this chapter.
Each application for a coalbed methane well permit shall be accompanied by the following:
1. A permit application fee of three hundred dollars ($300);
2. A bond in an amount prescribed in KRS 349.120 ;
3. A certificate that the applicant’s notice requirements of KRS 349.015 have been satisfied. Certification may be by affidavit of personal service, or the return receipt card, or other postal receipt, for certified mailing;
4. If the proposed coalbed methane well will be located within one-half (1/2) of a mile, measuring horizontally, of a water supply well being used for residential or domestic purposes, the applicant will submit the groundwater protection plan required under KRS 224.70-110 and applicable administrative regulations promulgated pursuant thereto for review by the department, or demonstrate to the department that a plan is not required; and
5. Proof that the applicant has public liability insurance coverage in an amount not less than five hundred thousand dollars ($500,000) in aggregate and three hundred thousand dollars ($300,000) per occurrence for damages to persons and property caused by the applicant’s operations or proof that the applicant has satisfied self-insurance requirements as provided by administrative regulations which shall be promulgated by the department.
Prior to the department’s issuance of a permit to drill a coalbed methane well, a copy of the written authorization from the mine licensee shall be filed with the application under the following circumstances:
1. If the proposed coalbed methane well is to penetrate a workable coalbed that is within the permitted area of an existing permit or the proposed permitted area of a permit pending before the division and if the applicant plans to stimulate, complete, or horizontally drill the coalbed methane well in a workable coalbed that is within the permitted area of an existing permit or the proposed permitted area of a permit pending before the division;
2. If the proposed coalbed methane well is to be located within a surface area permitted under an existing permit, or the proposed permitted area of a permit pending before the division for which no bond release has been obtained; or
3. If the proposed coalbed methane well is to be located within a surface area permitted under an existing permit by the division for which a partial bond release has been obtained.
  If a coalbed methane well permit is issued for a well site located within the boundaries of any coal mine for which a permit has been issued or is pending pursuant to KRS Chapter 350, the permit shall include a provision specifically stating that the permitted coalbed methane well location is in an area for which a coal mine permit has been issued or is pending pursuant to KRS Chapter 350 and is subject to the mine-through rights set forth in KRS 349.030(1).
If a partial bond release for the surface area on which the proposed coalbed methane well is located has been obtained from the division and the applicant is denied written authorization from the mine licensee, the applicant may file an appeal with the review board requesting approval to drill the proposed coalbed methane well. When requesting an appeal, the applicant shall submit a verified statement including the following:
1. The applicant has met and conferred with or offered to meet and confer with the mine licensee concerning the authorization;
2. The mine licensee has refused to provide written authorization to disturb the permitted area;
3. The physical area to be disturbed by the proposed well location and the use of area, including ingress and egress thereto, qualifies as a commercial or industrial postmining land use entitling the mine licensee to a complete bond release for the area to be disturbed by the coalbed methane well operator in accordance with KRS Chapter 350; and
4. The applicant has agreed to pay the reasonable and actual costs of the permit revision required by the division to affect the incremental bond release for the proposed area to be disturbed by the coalbed methane well operator, not to exceed five thousand dollars ($5,000).
Prior to the issuance of a permit to drill a coalbed methane well, the applicant shall grant assignable subsidence waivers to any mine licensee if requested in an objection filed pursuant to KRS 349.060 and, if required, to allow present or future mining with planned subsidence under KRS Chapter 350. However, this subsection and any subsidence waivers shall in no way waive, affect, or impair the ability of the applicant or the applicant’s successors or assigns to pursue any remedies for damages to persons, or to improved or tangible property, suffered or incurred as a result of any subsidence caused by the mine licensee or the mine licensee’s successors or assigns. The mine licensee, its successors or assigns, shall be liable for any and all damages to persons or to improved or tangible property proximately caused by the mine licensee.
If the mine licensee is mining in a coal seam that is not being produced by the coalbed methane well operator and has not exercised his or her mine-through rights, as set forth in KRS 349.030(1) or (2), in any coal mine before removing any coal or other material or driving any entry or passageway within five hundred (500) horizontal feet of the vertical segment of a coalbed methane well or within fifty (50) vertical feet of the horizontal segment of a coalbed methane well, the mine licensee shall forward simultaneously to the well operator and to the department, by certified mail, return receipt requested, or by registered mail, a copy of the maps and plans required by law to be filed and kept up to date. Maps or plans shall show the mine workings and projected mine workings within five hundred (500) horizontal feet of the coalbed methane well. However, the issuance of any coalbed methane well permit shall not preclude or prevent coal mining outside two hundred (200) feet, but not closer than fifty (50) feet, of the vertical segment of a coalbed methane well or outside of the workable coalbed in which the horizontal segment of a coalbed methane well is located, unless specified by the department for reasons of mine or well safety. The mine licensee shall not mine within fifty (50) feet of the vertical segment of a coalbed methane well without the written authorization of the coalbed methane well operator. A mine licensee may file a request with the department to mine closer than two hundred (200) feet of the vertical segment of the coalbed methane well. The mine licensee shall forward simultaneously to the well operator and the department, by certified mail, return receipt requested, or by registered mail, a request to mine closer than two hundred (200) feet, but not closer than fifty (50) feet, of the vertical segment of the coalbed methane well, which shall be accompanied by the following:
1. A copy of the maps and plans required by law to be filed and kept up to date, showing on the copy of the map or plan its mine plan workings and projected mine workings beneath the tract of land and within two hundred (200) feet, but not closer than fifty (50) feet, of the vertical segment of the coalbed methane well; and
2. A statement that the applicant has met and conferred with, or offered to meet and confer with, the well operator concerning the mine licensee’s plan to mine closer than two hundred (200) feet, but not closer than fifty (50) feet, of the vertical segment of the coalbed methane well.
  The well operator may, within twenty (20) days of receipt of the documents listed in paragraphs (a) and (b) of this subsection, file specific objections in writing with the department. When objections are filed, the department shall provide a copy of the objections to the mine licensee and fix a time and place for an informal hearing. The hearing shall be held not more than ten (10) days from the end of the twenty (20) day period. At the hearing, the mine licensee and the well operator, in person or by representative, shall consider the objections and seek agreement on the character and the extent of operations to be conducted within less than two hundred (200) feet, but not closer than fifty (50) feet, of the vertical segment of the coalbed methane well. If no agreement can be reached, the department, after administrative hearing conducted in accordance with KRS Chapter 13B, shall make a decision defining what coal, if any, is necessary to be left for the safe protection, use, and operation of the well. The department’s decision shall be subject to appeal by either party as provided in this chapter. The department shall keep a complete record of all hearings. The mine licensee shall, every six (6) months, while mining within two hundred (200) feet, but not closer than fifty (50) feet, of the vertical segment of the coalbed methane well, file up-to-date maps and plans required by this section, or file new maps and plans complete to date.
The department may deny the issuance of a permit if it determines that the applicant has a documented pattern or practice of substantial violations of the provisions of this chapter and has failed to abate or seek review of the violations. If the department finds that a substantial violation has occurred with respect to existing operations and that the operator has failed to abate or seek review of the violation in the time prescribed, the department may suspend the permit. After a suspension, the operator shall forthwith cease all work being conducted under the permit until the department reinstates the permit. The department shall make a written finding of its determination and may enforce the determination in Circuit Court pursuant to KRS 349.145 .

History. Enact. Acts 2004, ch. 65, § 8, effective July 13, 2004; 2005, ch. 123, § 47, effective June 20, 2005; 2009, ch. 79, § 9, effective June 25, 2009.

349.045. Voluntary pooling agreements.

When two (2) or more separately owned tracts, or portions thereof, are embraced within a drilling unit, or when there are separately owned interests in all or part of any such drilling unit, the operators or owners of coalbed methane owning the interests may pool their interests for the development and operation of the drilling unit by voluntary agreement. These agreements may be based on the exercise of pooling rights or rights to establish units which are granted in any gas or oil lease, coal lease, coalbed methane lease, or similar instrument.
No voluntary pooling agreement between or among coalbed methane operators or owners shall be held to violate the statutory or common law of the Commonwealth which prohibits monopolies or acts, arrangements, contracts, combinations, or conspiracies in restraint of trade or commerce.

History. Enact. Acts 2004, ch. 65, § 9, effective July 13, 2004.

349.050. Requirements and procedures for stimulating workable coal seam — Contents and construction of agreements to stimulate — Request for hearing — Liability of well operator.

If any coal interest holder has objected to the proposed stimulation pursuant to KRS 349.020(1), no permit shall be issued to stimulate a coalbed methane well unless the applicant has obtained and filed with the department an agreement between the coal interest holders of any workable coalbed within five hundred (500) horizontal feet of the proposed coalbed methane well to be stimulated and within the five hundred (500) foot horizontal radius and fifty (50) vertical feet above or below the workable coalbed proposed to be stimulated.
The requirement for an agreement to stimulate in this section shall not be construed to impair, abridge, or affect any contractual rights or obligations arising out of a contract, lease, deed, or similar agreement which provides for the development of coalbed methane and stimulation of workable coalbeds between the applicant and the coal interest holder. The existence of any such contract, lease, deed, or similar document shall constitute a waiver of the requirement to file an agreement to stimulate with the department.
An agreement to stimulate shall provide:
1. That the coal interest holder has been provided with a copy of the permit application to drill a coalbed methane well and a copy of all plats and documents which may accompany the application; and
2. That the coal interest holder agrees to the stimulation of the workable coalbed as described in the application.
Subject to KRS 349.020(5), in the absence of the applicant submitting the agreement to stimulate as described herein, the applicant may submit a request for a hearing before the review board accompanied by an affidavit, or verified statement, which shall include the following:
1. A statement that the coal interest holder has refused to sign a written agreement to stimulate the workable coalbed;
2. A statement detailing the efforts undertaken to obtain the signed agreement to stimulate; and
3. A statement that the proposed method of stimulation does not involve the use of explosives and will not have a significant adverse affect on the mineability of the workable coalbed, or impair mine safety.
The failure to obtain an agreement to stimulate shall in no way create an inference or presumption that the method of stimulation proposed by the applicant will harm the workable coalbed.
Upon receipt of a request for a hearing and an affidavit, or verified statement, as set forth in this section, the department shall forward the application to the review board to consider the proposed stimulation, or if other objections or requests are filed requiring a hearing before the review board, the request may be included for consideration by the review board along with other matters related to the permit application.
Any well operator that stimulates a workable coalbed without an agreement to stimulate from the coal interest holder shall be liable in tort without proof of negligence for any damages proximately caused by the stimulation to the workable coalbed, or any other workable coalbed within five hundred (500) horizontal feet of the coalbed methane well stimulated or within the five hundred (500) foot horizontal radius and fifty (50) vertical feet above or below the workable coalbed stimulated and for damages to any mining equipment proximately caused by the stimulation. The well operator shall be liable for injury, death, or damage to property proximately caused by the stimulation.

History. Enact. Acts 2004, ch. 65, § 10, effective July 13, 2004.

349.055. Coalbed Methane Well Review Board established — Board attached to Department of Natural Resources within Energy and Environment Cabinet.

The Coalbed Methane Well Review Board is hereby established. The review board shall be composed of five (5) members and shall have the powers and duties specified under this chapter.
The review board shall consist of the commissioner of the Department for Natural Resources or his or her designee within the department, the director of the Division of Mine Reclamation and Enforcement and the director of the Division of Oil and Gas within the Department for Natural Resources, a representative of the oil and gas industry, and a representative of the coal industry. The representatives from the oil and gas industry and the coal industry shall be appointed by the Governor for terms of four (4) years subject to confirmation by the Senate.
The review board shall be, for administrative purposes only, attached to the Energy and Environment Cabinet, Department for Natural Resources.

History. Enact. Acts 2004, ch. 65, § 11, effective July 13, 2004; 2005, ch. 123, § 48, effective June 20, 2005; 2010, ch. 24, § 1872, effective July 15, 2010.

349.060. Powers and duties of Coalbed Methane Well Review Board — Promulgation of administrative regulations.

The review board shall rule upon:
1. Objections to proposed coalbed methane wells, their locations, the proposed stimulation, or the proposed completion pursuant to KRS 349.020 ;
2. Appeals of permit denials arising under KRS 349.020 (5);
3. Requests for a hearing arising under KRS 349.025(3);
4. Requests for pooling orders pursuant to KRS 349.080(1);
5. Requests for the establishment or modification of drilling units for coalbed methane wells;
6. Requests for the creation or modification of field rules relating to the drilling, completion, and production of coalbed methane wells; and
7. Requests for the unitization of coalbed methane wells, pools, or fields.
The review board shall meet, hold conferences, and hold hearings at a time and place as designated by the chairman. The chairman may call a meeting of the review board at any time. A majority of the members of the review board shall constitute a quorum for the transaction of any business to come before the review board. All determinations of the review board shall be by majority vote of the quorum present. The commissioner, or his or her designee within the department, shall be the chairman of the review board. The review board shall hold a regular monthly meeting. Notice of all meetings of the review board shall be given to each member by the chairman at least ten (10) days in advance of each meeting, unless otherwise agreed by the members.
The review board shall execute, carry out, administer, and enforce the provisions of this chapter in the manner provided in this section.
The review board may:
1. Take evidence and issue orders concerning the permitting of a coalbed methane well, its location, stimulation, and the completion pursuant to KRS 349.015 ; issue pooling orders in accordance with KRS 349.080(1); issue orders regarding the establishment or modification of drilling units for coalbed methane wells, field rules relating to the drilling, completion, and production of coalbed methane wells; and requests for the unitization of coalbed methane wells, pools, and fields;
2. Promulgate and enforce administrative regulations and rules necessary to govern the practice and procedure before the review board;
3. Make relevant investigations of records and facilities as it deems proper in connection with ruling on any objections to a proposed coalbed methane well, its location, the proposed stimulation, or the proposed completion; and
4. Issue subpoenas for the attendance and sworn testimony from witnesses and subpoenas duces tecum for the production of any books, records, maps, charts, diagrams, electronic data, and other pertinent documents or data in the review board’s own name or at the request of any party.

History. Enact. Acts 2004, ch. 65, § 12, effective July 13, 2004.

349.065. Authority of Coalbed Methane Well Review Board to hear and rule upon appeals of actions of the Department of Natural Resources — Hearings.

The department shall notify the review board of the objection, request, or appeal as set forth in KRS 349.060(1) and schedule a time and place for a hearing.
Notice of the hearing shall be given not less than fifteen (15) days in advance of the hearing to the applicant, surface owners, and all other parties as required under KRS 349.020 , 349.070 , or 349.085 , as applicable. The hearing of the review board shall be held within thirty (30) days after the filing of the objection, request, or appeal or as soon thereafter as the review board can be assembled.
All proceedings before the review board shall be conducted in accordance with KRS Chapter 13B.
With respect to any objection filed pursuant to KRS 349.015 concerning the proposed coalbed methane well, or its location, stimulation or completion, appeals arising under KRS 349.020(5), or requests for a hearing arising under this chapter, the review board shall make a determination as to whether a permit shall be issued by the department and any conditions to be included within the permit, which determination and order shall be consistent with the intent and purposes of KRS Chapters 350 and 352 and this chapter, taking into consideration the following factors that it considers applicable in the particular proceeding:
1. The declaration of public policy and legislative findings as set forth in this chapter;
2. Whether the proposed coalbed methane well can be drilled safely, taking into consideration the dangers from creeps, squeezes, or other disturbances due to the extraction of coal;
3. The feasibility of moving the proposed drilling location to another location;
4. Whether any stimulation of the workable coalbed will have a significant adverse affect on the mineability of that workable coalbed or any other workable coalbeds within five hundred (500) feet of the proposed coalbed methane well to be stimulated or within the five hundred (500) foot horizontal radius and fifty (50) vertical feet above or below the workable coalbed proposed to be stimulated or impair mine safety;
5. Whether the drilling location is above or in close proximity to any mine opening, shaft, entry, travelway, airway, haulageway, drainageway or passageway, or to any proposed extension thereof, any abandoned, operating coal mine or any coal mine already surveyed and platted but not yet being operated;
6. Whether the proposed drilling can reasonably be done through an existing or planned pillar of coal, or in close proximity to an existing or planned pillar of coal, taking into consideration the surface topography;
7. The extent to which the proposed drilling location interferes with the safe recovery of coal or coalbed methane;
8. The extent to which the proposed drilling location will unreasonably interfere with present or future coal mining operations;
9. The technology and methods proposed for the safe and efficient recovery of coal and coalbed methane;
10. The practicality of locating the coalbed methane well out of a uniform pattern with other wells;
11. The surface topography and use; and
12. Any other factor the review board determines would be considered consistent with KRS Chapters 350 and 352 and this chapter.
Upon consideration of the matters raised at the hearing, the review board shall render a decision based upon the ability to mine any affected workable coalbed safely and the protection of any workable coalbed for safe future mining, shall enter a written order containing findings of fact and conclusions which address any relevant considerations in subsection (4) of this section, and based thereon shall issue and file with the department a written order directing it to:
1. Refuse to issue a coalbed methane well permit;
2. Issue a permit for the proposed coalbed methane well location and any conditions to be included within the permit;
3. Issue a coalbed methane well permit and any conditions to be included within the permit for an alternate drilling location different from that requested by the applicant; or
4. Issue a permit authorizing the applicant to stimulate the coalbed methane well in the absence of an agreement of the affected coal interest holders as described in KRS 349.045(1), as proposed or as modified by the order of the review board.
With respect to any request for a hearing pursuant to KRS 349.025 by a coalbed interest holder, or any record oil or gas lessor or lessee of any tract being penetrated by a coalbed methane well, to determine whether the well has been abandoned and should be plugged in accordance with this chapter, the review board shall make a determination as to whether the coalbed methane well should be plugged, which determination and order shall be consistent with the intent and purposes of KRS Chapters 350 and 352 and this chapter, taking into consideration the following factors that it considers applicable in the particular proceeding:
1. Whether the coalbed methane well has ceased to produce in paying quantities, and no dewatering operations are being conducted, for a period of fifteen (15) consecutive months;
2. Whether the coalbed methane well is being temporarily shut in by the coalbed methane well operator; and
3. Any other factor the review board determines should be considered consistent with this section.
Upon consideration of the matters raised at the hearing, the review board shall render a decision based upon whether the coalbed methane well has been abandoned and should be plugged in accordance with this chapter; shall enter a written order containing findings of fact and conclusions which address any relevant consideration in subsection (6) of this section based thereon; and shall issue and file with the department a written order directing the department to:
1. Require the coalbed methane well operator to plug and abandon the well;
2. Allow the coalbed methane well operator to continue to operate and produce the well; or
3. Allow the coalbed methane well operator to continue to shut in the coalbed methane well on a temporary basis.
Upon receipt of the review board order, the department shall promptly undertake the action directed by the review board, provided that all other provisions of this chapter have been complied with.

History. Enact. Acts 2004, ch. 65, § 13, effective July 13, 2004.

Legislative Research Commission Note.

(7/13/2004). When this statute was enacted (2004 Ky. Acts ch. 65, sec. 13), the word “feet” should have been included after the phrase “five hundred (500)” in subsection (4)(d) of this section. This manifest clerical or typographical error has been corrected by the Reviser of Statutes pursuant to KRS 7.136 .

349.070. Powers of Coalbed Methane Well Review Board to take actions necessary to prevent waste and protect rights of owners — Objections by holders, lessors, and lessees — Hearings.

In order to prevent the waste of coalbed methane or to protect the correlative rights of the owners of coalbed methane, the review board on its own motion or upon application of an operator of a coalbed methane well or owner of coalbed methane shall have the power to establish or modify drilling units, establish or modify field rules, or unitize coalbed methane wells, pools or fields. Drilling units, to the extent reasonably possible, shall be of uniform shape and size for an entire pool or field. Any operator of a coalbed methane well or owner of coalbed methane may apply to the review board for the creation or modification of drilling units, the establishment or modification of field rules for a pool or field, and the unitization of any coalbed methane wells, pools, or fields.
With respect to any request for the creation or modification of drilling units, establishment or modification of field rules for the pool or field, and the unitization of any coalbed methane wells, pools, or fields, the review board shall grant or deny the request and issue an order consistent with the intent and purposes of KRS Chapters 350 and 352 and this chapter, taking into consideration the following factors that it considers applicable in the particular proceedings:
1. The area which may be drained efficiently and economically by the proposed coalbed methane well or wells and the spacing requirements of KRS 349.075 ;
2. The plan of development for the coal, that drilling units conform to mine development plans, and the need for proper ventilation of any mines or degasification of any affected coal seams;
3. The nature and character of any coal seam or seams which will be affected by the coalbed methane well or wells;
4. The surface topography and mineral boundaries of the lands underlaid by the coal seams to be included in the unit;
5. Evidence relevant to the proper boundary of the drilling unit;
6. The nature and extent of ownership of each coalbed methane owner or claimant and whether conflicting claims exist;
7. Whether the applicant for the drilling unit proposes to be the operator of the coalbed methane well within the drilling unit; and if so, whether the applicant has a lease or other agreement from the owners or claimants of a majority interest in the proposed drilling unit;
8. Whether a disagreement exists among the coalbed methane owners or claimants over the designation of the operator for any coalbed methane well within the drilling unit; and if so, relevant evidence to determine which operator can properly and efficiently develop the coalbed methane within the drilling unit for the benefit of the majority of the coalbed methane owners;
9. If more than one person is interested in operating a coalbed methane well within the drilling unit, the estimated cost of submitting by each such person for drilling, completing, operating and marketing the coalbed methane from any proposed coalbed methane well or wells;
10. Any other available geological or scientific data pertaining to the pool which is proposed to be developed;
11. The correlative rights of the operators and owners of coalbed methane, so that each operator and owner may obtain his or her just and equitable share of production from the coalbed methane; and
12. Any other factor the review board determines should be considered consistent with KRS Chapters 350 and 352, and this chapter.
Upon consideration of the matters raised at the hearing, the review board shall render a decision based upon whether to establish or modify a drilling unit, establish or modify field rules or establish or modify the unitization of coalbed methane wells, pools or fields. The review board shall enter a written order containing findings of fact and conclusions which address any relevant considerations in subsection (2) of this section and based thereon shall issue and file with the department a written order:
1. Establishing or modifying a drilling unit, field rules or unitizing coalbed methane wells, pools or fields;
2. Refusing to establish or modify a drilling unit, field rules or unitization of coalbed methane wells, pools or fields; or
3. Attaching certain conditions to the establishment or modification of a drilling unit, field rules, or unitization of coalbed methane wells, pools or fields.
In establishing or modifying a drilling unit for coalbed methane wells, and in order to accommodate the unique characteristics of coalbed methane development, the review board may require that drilling units conform to the mine development plan, if any. If requested by the coal interest holder, well locations and spacing shall correspond with mine operations, including the drilling of multiple coalbed methane wells on the same surface location of each drilling unit.
If an order to establish or modify a drilling unit, field rules or unitization of coalbed methane wells, pools or fields will allow a coalbed methane well to be drilled into or through a workable coalbed, any coal interest holder and any record oil and gas lessor and lessee within the area to be covered by the drilling unit, field rules or unitization of coalbed methane wells, pools or fields may object to the establishment or modification of the drilling unit, field rules or unitization of coalbed methane wells, pools or fields.
The review board may continue a hearing to allow for further investigation and the gathering and taking of additional data and evidence. If at any time during a hearing there is not sufficient evidence for the review board to determine field boundaries, or drilling unit size or shape, the review board may enter a temporary order establishing provisional drilling units, and field boundaries for the orderly development of the pool or field, pending receipt of the information necessary to determine the ultimate pool or field boundaries, and spacing of wells for the pool or field. Upon additional findings of fact, the boundaries of a pool or field and drilling units for the pool or field may be modified by the review board.
Unless otherwise provided for by the review board, after an application for a hearing to establish or modify drilling units or pool boundaries has been filed, no additional wells shall be permitted in the pool or field until the review board’s order establishing or modifying the pool or field or unit has been entered.
After the review board issues a field or pool spacing order which creates drilling units or a pattern of drilling units for a pool or field, should an operator or owner of coalbed methane apply for a permit or otherwise indicate a desire to drill a coalbed methane well outside of such drilling units or pattern of drilling units and thereby potentially extend the pool or field, the review board may, on its own motion or the motion of any interested person, require that the coalbed methane well be located and drilled in compliance with the provisions of the order affecting the pool or field.

History. Enact. Acts 2004, ch. 65, § 14, effective July 13, 2004.

349.075. Spacing requirements for vertical and horizontal coalbed methane wells.

Except as provided in KRS 349.070 , or pursuant to voluntary pooling, no permit shall be issued for a coalbed methane well unless the proposed location of a vertical well shall be at least seven hundred fifty (750) feet horizontally from the nearest mineral boundary upon which the well is to be drilled and the proposed location shall be at least one thousand five hundred (1,500) feet horizontally from the nearest coalbed methane well, unless the department orders that a different spacing distance shall apply. Spacing distances for coalbed methane horizontal wells shall be separately established by the department pursuant to this chapter.

History. Enact. Acts 2004, ch. 65, § 15, effective July 13, 2004.

Legislative Research Commission Note.

(7/13/2004). When this statute was enacted (2004 Ky. Acts ch. 65, sec. 15), the word “subchapter” was erroneously included in the last sentence of the section. KRS Chapter 349, which was created in this bill, is not divided into subchapters. This manifest clerical or typographical error has been corrected by changing the word “subchapter” to “chapter” by the Reviser of Statutes pursuant to KRS 7.136 .

349.080. Authority of Coalbed Methane Well Review Board to issue pooling orders.

Whenever an applicant proposes to drill, deepen, convert, or reopen a well for purposes of production of coalbed methane and the ownership of the right to produce coalbed methane is in dispute, the department shall refer the application to the review board for its consideration and the issuance of appropriate pooling orders, if any, in accordance with KRS 349.085 . Upon the issuance of a pooling order by the review board, and if all other provisions of this chapter are complied with, the department shall issue a permit to drill, deepen, convert, or reopen the well and require the development and operation of all pooled tracts and interests as a single leasehold estate in accordance with the pooling order.
No pooling as permitted by this section shall be ordered except:
1. When an application has been filed to drill, deepen, or reopen a well within the distance limitations prescribed in KRS 349.075 ; or
2. A request for pooling has been made pursuant to this section or KRS 349.085 .
No pooling, as permitted by this section, shall be ordered with respect to any tract or portion thereof upon which a well is drilled, deepened, or converted or reopened:
1. Unless the pooling was requested prior to the commencement of the drilling, deepening, converting, or reopening of the coalbed methane well; and
2. Unless the request, if made by the owner of an operating interest who elects to participate in the risk and cost of the drilling, deepening, converting, or reopening of the coalbed methane well, is accompanied by a bond or other security satisfactory to and in an amount set by the review board for the payment of such owner’s share of the cost of drilling, deepening, converting, or reopening the well.
Production from any well which is ordered pooled pursuant to this section shall be deemed for all purposes to have been so produced from each tract or portion thereof included in the pool in proportion to the amounts established in the pooling order.

History. Enact. Acts 2004, ch. 65, § 16, effective July 13, 2004.

349.085. Duties of person requesting pooling order — Notice to interested persons — Review board to rule on request for pooling order — Contents of pooling order — Rights and financial shares of interested parties — Escrow account.

The person requesting a pooling order shall provide to the department a list of all persons reasonably known to own an oil or gas interest and all coal interest holders, in any tract upon which the coalbed methane well will be located from the surface to a depth of one hundred (100) feet below the base of the deepest coal seam to be penetrated. A pooling order shall be made only after the department provides notice to all persons reasonably known to own an oil or gas interest and all coal interest holders in any tract upon which the well will be located and any tract or portion thereof proposed to be pooled in any drilling unit, from the surface to a depth of one hundred (100) feet below the base of the deepest coal seam to be penetrated, after a hearing has been held. After filing an application for a pooling order under KRS 349.080(1), where unknown or nonlocatable owners exist, or at the request of the permit applicant or person requesting a pooling order, the permit applicant shall publish, at least twenty (20) days prior to the hearing on the application for the pooling order, one (1) notice in the newspaper of the largest circulation in each county in which any tract, or portion thereof, proposed to be pooled is located. The notice shall:
1. State that an application for a pooling order is being filed with the review board;
2. Describe any tract, or portion thereof, proposed to be pooled;
3. In the case of an unknown owner, identify the name of the last known owner;
4. In the case of a nonlocatable owner, identify the owner and the owner’s last known address; and
5. State that any party claiming an interest in any tract, or portion thereof, proposed to be pooled should contact the permit applicant at the published address and provide a copy of the notification to the review board within twenty (20) days of the date of the publication.
The review board shall grant or deny the request for a pooling order and issue an order consistent with the intent and purposes of KRS Chapters 350 and 352 and this chapter, taking into consideration the following factors that it considers applicable in the particular proceeding:
1. The area which may be drained efficiently and economically by the proposed coalbed methane well or wells and the spacing requirements of KRS 349.075 ;
2. The plan of development of the coal and the need for proper ventilation of any mines or degasification of any affected coal seams;
3. The nature and character of any coal seam or seams which will be affected by the proposed coalbed methane well or wells;
4. The surface topography and mineral boundaries of the lands underlaid by the coal seams to be included in the unit;
5. Evidence relevant to the proper boundary of the drilling unit;
6. The nature and extent of ownership of each coalbed methane owner or claimant and whether conflicting claims exist;
7. Whether the applicant for the drilling unit proposes to be the operator of the coalbed methane well or wells within the drilling unit; and if so, whether the applicant has a lease or other agreement from the owners or claimants of a majority interest in the proposed drilling unit;
8. Whether a disagreement exists among the coalbed methane owners or claimants over the designation of the operator for any coalbed methane wells within the unit, and if so, relevant evidence to determine which operator can properly and efficiently develop the coalbed methane within the unit for the benefit of the majority of the coalbed methane owners;
9. If more than one person is interested in operating a coalbed methane well within the unit, the estimated cost submitted by each such person for drilling, completing, operating, and marketing the coalbed methane from any proposed coalbed methane well or wells;
10. Any other available geological or scientific data pertaining to the pool which is proposed to be developed;
11. The correlative rights of the operators and owners of the coalbed methane, so that each operator and owner may obtain his or her just and equitable share of production from the coalbed methane; and
12. Any other factor the review board determines should be considered consistent with KRS Chapters 350 and 352 and this chapter.
Upon consideration of the matters raised at the hearing, the review board shall render a decision based upon whether to grant a pooling order, and shall enter a written order containing findings of fact and conclusions which address any relevant considerations in subsection (2) of this section and based thereon shall issue and file with the department a written order granting the pooling order with any applicable conditions or denying the pooling order.
A pooling order shall authorize the drilling, deepening, or reopening, and the operation of a well for the production of coalbed methane on the tracts or portions thereof pooled; shall designate the operator to drill and operate the well; shall prescribe the time and manner in which all owners of working interests in the pooled tracts or portions thereof may elect to participate therein; shall provide that all reasonable costs and expenses of drilling, deepening, converting or reopening, and the completing, operating, plugging, and abandoning the well shall be borne, and all production from the well shall be shared, by all owners of working interests in proportion to the net mineral acres in the pooled tracts owned or under lease to each owner; and shall make provision for the payment of the reasonable and actual cost thereof, including a reasonable charge for supervision, by all those who elect to participate therein.
A pooling order shall establish a procedure for the owner who claims a working interest and who does not decide to become a participating working interest owner to elect to either:
1. Surrender, by means of sale or lease, the interest to a participating working interest owner on a reasonable basis and for a reasonable consideration, which if not agreed upon shall be one-eighth (1/8) of the production attributable to the well; or
2. Share in the operation of the well as a nonparticipating working interest owner on a carried basis after the proceeds allocable to his or her share equal to two hundred percent (200%) of the share of the costs allocable to his or her interest.
A coalbed methane owner or claimant whose identity and location remain unknown at the conclusion of the hearing concerning the entry of a pooling order for which public notice was given and whose interest is pooled pursuant to KRS 349.080(1) shall be deemed to have elected to lease the interest to the coalbed methane operator, exclusive of one-eighth (1/8) of the production attributable to the unleased interest, and shall not be entitled to make the election established in subsection (5) of this section.
Except as provided in this section, a coalbed methane owner who does not make an election under the pooling order within thirty (30) days of the entry of the order shall be deemed to have leased the coalbed methane interest to the coalbed methane well operator in the manner established in subsection (6) of this section.
A person whose interest is subject to a coalbed methane lease or other agreement which grants to another the right to operate or conduct operations shall not own an operating interest for the purposes of this section.
A certified copy of any pooling order entered under this section shall be entitled to be recorded in the office of the county clerk of the county or counties in which all or any portion of the pooled tract is located, and the record of the order, from the time of lodging the order for record, shall be notice of the order to all persons.
Each pooling order for a coalbed methane well issued pursuant to KRS 349.080(1) shall provide for the establishment of an interest-bearing escrow account to be maintained by the department. The escrow account shall receive deposits and hold payment for costs and proceeds attributable to the conflicting interests as follows:
1. Each participating working interest owner, except for the unit operator, shall deposit in the escrow account the owner’s proportionate share of the costs allocable to the ownership interest claimed by each participating working interest owner as set forth in the pooling order; and
2. The unit operator shall collect all proceeds from the sale or use of coalbed methane and deposit in the escrow account all proceeds attributable to the conflicting interests of lessors, lessees, or royalty owners and all proceeds in excess of the recovery of all capital costs and expenses and all ongoing operational expenses including reasonable overhead costs and operating fees attributable to conflicting working interests.
The department shall order payment of principal and accrued interest from the escrow account to all legally entitled entities within thirty (30) days of receipt by the department of notification of the final legal determination of entitlement or upon agreement of all entities claiming an ownership interest in the coalbed methane. Upon the department’s final determination:
1. Each legally entitled participating working interest owner shall receive a proportionate share of the proceeds attributable to the conflicting ownership interest;
2. Each legally entitled nonparticipating working interest owner shall receive a proportionate share of the proceeds attributable to the conflicting ownership interest, less the cost of being carried as a nonparticipating working interest owner as determined by the election of the person under the applicable pooling order;
3. Each person leasing or deemed to have leased its coalbed methane ownership interest to the unit operator shall receive a share of the royalty proceeds as set out in the applicable pooling order attributable to the conflicting interests of the lessees;
4. The unit operator shall receive the costs contributed to the escrow account by each legally entitled participating working interest owner, but only to the extent that the costs and expenses described in subsection (10)(b) of this section have not been recouped from production proceeds;
5. Each participating working interest owner who is determined not to hold an ownership interest shall receive a refund of all amounts placed in escrow pursuant to subsection (10)(a) of this section plus interest earned thereon; and
6. All amounts remaining in escrow, after distribution of amounts described in paragraphs (a), (b), (c), (d), and (e) of this subsection, shall be distributed to the legally entitled participating working interest owners in proportion to their interests.

History. Enact. Acts 2004, ch. 65, § 17, effective July 13, 2004.

349.090. Civil actions to review orders issued by Coalbed Methane Well Review Board — Procedure — Jurisdiction of Circuit Court.

Any person aggrieved by any order issued by the review board under this chapter shall have the right to bring a civil action for review of the order by filing a complaint in the Circuit Court of the county in which the premises or any portion thereof is located as established by the order, or in Franklin Circuit Court.
The civil action shall be brought within thirty (30) days after the order is issued, and in the event no civil action is filed within the thirty (30) day period, the order shall be final.
In any civil action the burden of proof shall be upon the party challenging the order. The order shall be deemed prima facie valid. Any party to the civil action may offer evidence for any part of the record of the hearing which resulted in the order, and any other relevant evidence.
In any civil action no new evidence may be introduced, except as to fraud or misconduct of some person engaged in the hearing before the review board. New evidence may be introduced if, upon motion and for good cause shown, the court determines that the interest of justice will be better served by the introduction of new evidence. The court, sitting without a jury, shall hear the cause upon the record before it. The court shall dispose of the civil action in a summary manner, being limited to determining whether or not: the review board acted without or in excess of its powers; the order was procured by fraud; the order is not in conformity with the provisions of this chapter; the order is clearly erroneous on the basis of reliable, probative, and material evidence contained in the whole record; the order is arbitrary, capricious, characterized by abuse of discretion, or clearly unwarranted exercise of discretion. The court shall enter its findings in the order book as a judgment of the court, and the judgment shall have the effect and be enforceable the same as any other judgment of the court in civil cases.
The practice, pleading, and proceedings in the civil action shall be in accordance with the Rules of Civil Procedure.
During the pendency of the civil action, the court may stay the order until it shall enter its decree. The court shall have jurisdiction to enter a decree affirming or setting aside the order, or remand the cause with directions to modify the order to conform to the provisions of this chapter. Appeals may be taken by any party to the suit in the same manner and to the same extent as in other civil actions.

History. Enact. Acts 2004, ch. 65, § 18, effective July 13, 2004.

349.095. Procedure and requirements for drilling coalbed methane well.

A coalbed methane well penetrating one (1) or more workable coalbeds shall be drilled in a manner that will exclude, if practicable, all coalbed methane or coalbed methane pressure from the workable coalbed, except as is found in the workable coalbed itself. Each string of casing that is run through a workable coalbed shall be seated at least thirty (30) feet below the workable coalbed in twenty (20) feet of cement, mud, clay, or other nonporous material that will make an effective seal. If a second workable coalbed is found less than thirty (30) feet below the first workable coalbed, the casing shall be seated and mudded off as above provided at least thirty (30) feet below the second workable coalbed. If gas is found between the two (2) workable coalbeds, it shall be treated as prescribed by this chapter. After any such string of casing has been properly seated, drilling may proceed immediately.
When a coalbed methane well is drilled through the horizon of a workable coalbed where the coal has been removed, the hole shall be drilled at least thirty (30) feet below the workable coalbed, and shall be of a size sufficient to permit the placing of a liner, which shall start not less than twenty (20) feet beneath the horizon of the workable coalbed and extend not less than twenty (20) feet above it. The largest sized casing to be used in the well shall be centrally placed within this liner. The liner may be welded to the casing to be used, and the space between the liner and the casing shall be filled with cement as the liner and casing are lowered into the hole. Cement shall be placed in the bottom of the hole to a depth of twenty (20) feet to form a sealed seat for both liner and casing. Following the setting of the liner, drilling may proceed. If it is necessary to drill through the horizon of two (2) or more workable coalbeds where the coal has been removed, the liner shall be started not less than twenty (20) feet below the lowest horizon penetrated and shall extend to a point not less than twenty (20) feet above the highest horizon penetrated.

History. Enact. Acts 2004, ch. 65, § 19, effective July 13, 2004.

349.100. Preservation of strings of casing in producing wells.

If any coalbed methane well produces coalbed methane, all coal-protecting strings of casing shall remain in place during the life of the well. The top ends of all the strings shall be provided with casing heads or other suitable devices that will allow the free passage of coalbed methane and prevent filling the annular spaces outside the casing with dirt or debris.

History. Enact. Acts 2004, ch. 65, § 20, effective July 13, 2004.

349.105. Procedure for plugging well — Rights and duties of various parties — Restoration of surface.

No person shall abandon or remove casings from any coalbed methane well, either dry or producing, without first plugging the well in a secure manner approved by the department and consistent with administrative regulations. Upon the department’s plugging of an abandoned coalbed methane well in accordance with the requirements of this subsection, the department may sell all equipment removed from that well by sealed bid, or may include the equipment as part of compensation in the contract for the plugging of the well. Proceeds from the sale shall be deposited into the coalbed methane well plugging fund, established in KRS 349.120(3).
Not less than thirty (30) days before advertising for bids for the plugging of coalbed methane wells, the department shall publish, in a newspaper of general circulation, and in locally published newspapers serving the areas in which the wells proposed for plugging are located, notices of all wells on which there is salvageable equipment, described as to farm name, Carter Coordinate, and state plane coordinate location, for which the department intends to seek bids for plugging. If a person other than the operator claims an interest in the equipment of a well proposed for plugging, the person shall provide documentation of that interest to the department within thirty (30) days of the date of publication of the notice of the department’s intent to plug a well. Prior to the department’s advertising of bids for the plugging of a well, the department shall release the well’s equipment to the person deemed to have an interest in that equipment. It shall be the duty of the interest holder to remove the equipment before the well is plugged. If documentation as to an asserted interest is not provided to the department in the manner described in this subsection or if a person deemed to be an interest holder fails to remove the equipment before a well is plugged, the department may sell or otherwise dispose of the equipment in accordance with this section.
If a person fails to comply with subsection (1) of this section, any person lawfully in possession of land adjacent to the coalbed methane well or the department may enter on the land upon which the well is located and plug the well in the manner provided in subsection (1) of this section, and may maintain a civil action against the owner or person abandoning the well, jointly or severally, to recover the cost of plugging the well. This subsection shall not apply to persons owning the land on which the well is situated, and drilled by other persons.
In conjunction with the plugging and abandonment of any coalbed methane well or the reworking of any coalbed methane well, the operator shall restore the surface and any improvements thereon to a condition as near as practicable to their condition prior to commencement of work. The surface owner and operator may waive this requirement in writing, subject to the approval of the department that the waiver is in accordance with its administrative regulations.

History. Enact. Acts 2004, ch. 65, § 21, effective July 13, 2004.

349.110. Department of Natural Resources to supervise drilling, casing, plugging, and filling of coalbed methane wells — Department to hold hearings and issue orders.

The department shall exercise supervision over the drilling, casing, plugging, and filling of all coalbed methane wells. The department shall exercise supervision over all mining operations in close proximity to any well. The department shall have access to the records and properties of coal, oil, gas and coalbed methane operators when necessary.
The department may receive, or may file on its own motion, formal complaints that drilling or mining operations are being conducted contrary to the provisions of this chapter or to the order of the department or review board, and shall hold administrative hearings on the complaints, in accordance with KRS Chapter 13B. Following a hearing, the department shall issue a final order necessary to secure the proper administration of this chapter.

History. Enact. Acts 2004, ch. 65, § 22, effective July 13, 2004.

349.115. Department of Natural Resources to adopt rules and administrative regulations after notice and hearing — Operators to submit production information annually.

The department is hereby authorized to adopt all rules, administrative regulations, and amendments to implement the provisions of this chapter. All rules, administrative regulations, and amendments promulgated under this chapter shall be promulgated by the department after notice and a hearing. At all hearings held to consider any rules, administrative regulations, or amendments thereto, any interested person shall be entitled to be heard.
All hearings shall be held at a time and place as is specified by the department according to rules and regulations promulgated under this chapter. A written record of each hearing shall be kept; however, if not at variance with KRS 61.870 to 61.884 , the keeping of a record may be waived by all parties who participate therein. All interested persons shall be entitled to be heard at all hearings conducted under this chapter.
Operators shall submit annual production information for each coalbed methane well on a form prescribed by the department.

History. Enact. Acts 2004, ch. 65, § 23, effective July 13, 2004.

349.120. Well operators to execute bonds or blanket bonds in favor of department — Establishment of coalbed methane well plugging fund — Operators’ civil and criminal liability.

When any person submits to the department an application for a permit to drill a coalbed methane well, or to reopen, deepen, or temporarily abandon any coalbed methane well which is not covered by a surety bond, the department shall, except as provided in this section, require from the well operator a bond in the sum of five thousand dollars ($5,000). The bonds shall be made in favor of the Department for Natural Resources, conditioned that the wells upon abandonment shall be plugged in accordance with the administrative regulations and that all records required by the department be filed as specified. All bonds shall remain in effect until the plugging of the well is approved by the department, or the bond is released by the department. Any well operator in lieu of the bond may file with the department a blanket bond in a sum of one hundred thousand dollars ($100,000), covering all coalbed methane wells drilled or to be drilled in the Commonwealth by the principal in the bond, and the acceptance and approval by the department of the blanket bond shall be in full compliance with the above provision requiring an individual well bond. The department may establish a bond in a sum greater than five thousand dollars ($5,000) for an individual well or blanket bond in sum greater than one hundred thousand dollars ($100,000) if the department determines that the particular circumstances of the drilling of the well or wells warrant an increase in the bond amount. A deposit in cash or a bank-issued irrevocable letter of credit may serve in lieu of either of the individual well or blanket bonds. A certificate of deposit, the principal of which is pledged in lieu of a bond and whose interest is payable to the party making the pledge, may also be accepted by the department. If an operator is required to post individual well bonds exceeding a total of five thousand dollars ($5,000) or elects to post a blanket bond, the certificate of deposit shall be accepted by the department in lieu of that portion of the amount of the bonds exceeding five thousand dollars ($5,000). The bond or bonds referred to in this section shall be executed by the well operator as principal and, if a surety bond, by a corporate surety authorized to do business in the Commonwealth. A deposit in cash shall serve in lieu of either of the above bonds; all cash bonds accepted by the department shall be deposited into an interest-bearing account, with the interest thereon payable to the special agency account known as the coalbed methane well plugging fund, created in subsection (3) of this section, to be used in accordance with the purposes described therein.
A successor to the well operator shall post bond, pay a twenty-five dollar ($25) fee per well to the department, and notify the department in writing in advance of commencing use or operations of a well or wells. The successor shall assume the obligations of this chapter as to a particular well or wells and relieve the original permittee of responsibility under this chapter with respect to the well or wells. It shall be the responsibility of the selling operator to require the successor operator to post bond before use or operation is commenced by the successor and relief of responsibility under this chapter is granted to the original permittee.
All sums received through the forfeiture of bonds shall be placed in the State Treasury and credited to a special agency account to be designated as the coalbed methane well plugging fund, which shall be in an interest-bearing account with the interest thereon payable to the fund. This fund shall be available to the department and shall be expended for the plugging of any abandoned coalbed methane wells coming within the authority of the department pursuant to this chapter. The plugging of any coalbed methane wells pursuant to this subsection shall not be construed to relieve the operator or any other person from civil or criminal liability which would exist except for the plugging. Any unencumbered and any unexpended balance of this fund remaining at the end of any fiscal year shall not lapse but shall be carried forward for the purpose of the fund until expended or until appropriated by subsequent legislative action.

History. Enact. Acts 2004, ch. 65, § 24, effective July 13, 2004.

Legislative Research Commission Note.

(6/20/2005). 2005 Ky. Acts chs. 11, 85, 95, 97, 98, 99, 123, and 181 instruct the Reviser of Statutes to correct statutory references to agencies and officers whose names have been changed in 2005 legislation confirming the reorganization of the executive branch. Such a correction has been made in this section.

349.125. Permittee to file information for transmittal to the Kentucky Geological Survey — Samples of cuttings — Confidentiality of information — Exception.

Any person to whom a permit is issued pursuant to this chapter shall file, within ninety (90) days after termination of operations conducted under the permit, with the department for transmittal to the Kentucky Geological Survey on forms to be furnished by the department the following information relating to the well:
1. A copy of the driller’s log certified to be true and accurate;
2. The depth and thickness of all water zones encountered and logged;
3. The depth of all showing of oil, gas, or coalbed methane;
4. The depth and thickness of all coal seams encountered; and
5. A true copy of all electrical surveys and similar logs and surveys taken. If the person to whom the permit is issued obtains a copy of the electrical survey or similar log or survey in electronic form, the operator shall submit the electrical survey or similar log in electronic form if requested by the department.
Upon request by the department, any person to whom a permit is issued shall save for the Kentucky Geological Survey samples of all cuttings from the well drilled or deepened pursuant to the permit for a period of ninety (90) days after completion thereof.
Upon request by any person furnishing information under this section, the information shall be kept confidential, for a period of one (1) year after the information is furnished by such person.
This section shall not apply to wells drilled or deepened as geological or structure test holes.

History. Enact. Acts 2004, ch. 65, § 25, effective July 13, 2004.

349.130. Compliance with KRS 353.5901 and 353.595 — Applicants to submit operations and reclamation proposal at time of filing of application.

In all cases in which there has been a complete severance of the ownership of the coalbed methane from the ownership of the surface to be disturbed, the applicant for a coalbed methane well permit shall comply with all of the substantive requirements of KRS 353.5901 and 353.595 .
In all cases other than a complete severance of the ownership of coalbed methane from the ownership of the surface to be disturbed, the applicant for a coalbed methane well shall submit to the department an operations and reclamation proposal at the time of filing an application for a permit to drill, deepen, or reopen a coalbed methane well. The proposal shall be filed on forms provided by the department and shall include:
1. A proposal to prevent erosion of and sedimentation from the well site and all disturbed areas, including roads;
2. A narrative description of the location of all areas to be disturbed, including the location of roads, gathering lines, the well site, tanks, and other storage facilities, and any other information that may be required by the department. Accompanying this narrative description shall be a plat depicting the location on the land of all of these disturbances or facilities; and
3. Any additional information that the department may require.

History. Enact. Acts 2004, ch. 65, § 26, effective July 13, 2004.

349.135. Expiration of coalbed methane well permit — Extension of permit term.

Each coalbed methane well permit issued under this chapter shall expire one (1) year after the date issued, unless the drilling, deepening, or reopening of a coalbed methane well is commenced prior to the expiration of the one (1) year period. However, the permit term shall be extended by one (1) year if, prior to the expiration date, the permit applicant:
1. Notifies the department in writing of the applicant’s request for an extension;
2. Notifies all coal interest holders originally entitled to receive a copy of the plat under KRS 349.015 ;
3. Submits an affidavit, or verified statement, stating that the information in the original permit application is still correct; and
4. Submits a fee for the extension in an amount equal to the permit fee required by KRS 349.040 .
The extension of the permit term pursuant to subsection (1) of this section shall not create a right to object to the coalbed methane well location under KRS 349.020 nor to mediation under KRS 353.5901 .

History. Enact. Acts 2004, ch. 65, § 27, effective July 13, 2004.

349.140. Establishment of affirmative defense for willful trespass arising from coalbed methane drilling operations.

In any case where title to subsurface minerals has been severed in such a way that title to natural gas underlying the tract and title to coal underlying the tract are in different persons, it shall be an affirmative defense to any action for willful trespass arising from the drilling, development, operation, and production of coalbed methane from any coal seam or gob area underlying the tract, that the operator of the coalbed methane well permitted, drilled, completed, and produced the coalbed methane well under color of title of any instrument, deed, or lease for oil and gas purposes from the gas owner, or any instrument, deed, or lease for coal mining purposes from the coal owner.

History. Enact. Acts 2004, ch. 65, § 28, effective July 13, 2004.

349.145. Authorization for Department of Natural Resources and Attorney General to bring suit in Circuit Court to restrain violations under this chapter.

Whenever it appears that a person is violating or threatening to violate any provision of this chapter, or any rule, administrative regulation, or order promulgated or issued under this chapter, the department may bring suit against the person in the Circuit Court of the county where the violation occurred or is threatened, the Circuit Court in the county in which the defendant resides or in which any defendant resides if there is more than one (1) defendant, or the Franklin Circuit Court to restrain the person from continuing the violation or from carrying out the threatened violation. In the suit, the court shall have jurisdiction to grant without bond or other undertaking the prohibitory or mandatory injunction as the facts may warrant, including a temporary restraining order or injunction.
Whenever it appears that any person is violating any provision of this chapter, or any rule, administrative regulation or order promulgated or issued hereunder, the Attorney General or any person who is adversely affected by the violation may bring suit to restrain the violation in any court in which the department might have brought suit. The department shall be made a party defendant in the suit in addition to the person allegedly violating a provision or any rule, administrative regulation, or order promulgated or issued under this chapter.

History. Enact. Acts 2004, ch. 65, § 29, effective July 13, 2004.

Legislative Research Commission Note.

(7/13/2004). When this statute was enacted (2004 Ky. Acts ch. 65, sec. 29), the word “subchapter” was erroneously included in the first sentence of subsection (2). KRS Chapter 349, which was created in this bill, is not divided into subchapters. This manifest clerical or typographical error has been corrected by changing the word “subchapter” to “chapter” by the Reviser of Statutes pursuant to KRS 7.136 .

349.150. Protection of rights in water resources — Responsibility of operators to protect and preserve water supply.

Nothing in this chapter shall be construed as affecting, in any way, the right of any person to enforce or protect, under applicable law, his or her interest in water resources affected by a coalbed methane well or related operations.
The operator of a coalbed methane well shall replace the water supply of an owner of an interest in real property who obtains all or part of his or her supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution, or interruption proximately resulting from the operation of a coalbed methane well.

History. Enact. Acts 2004, ch. 65, § 30, effective July 13, 2004.

349.155. Penalties.

Any person who violates any provision of this chapter shall be subject to a fine of not more than one thousand dollars ($1,000) or imprisonment for a term not exceeding one hundred eighty (180) days, or both.
Any person who continues to violate any provision of this chapter, or any administrative regulation or order promulgated or issued under this chapter after being notified in writing of the violation by the department, shall be subject to a fine of not more than one thousand dollars ($1,000) or imprisonment for a term not exceeding one hundred eighty (180) days, or both.
Any person who does any of the following for the purpose of evading or violating this chapter or any administrative regulation or order promulgated or issued under this chapter shall be subject to a fine of not more than one thousand dollars ($1,000) or imprisonment for a term not exceeding one hundred and eighty (180) days, or both:
1. Makes or causes to be made a false entry or statement in a report, record, account, or memorandum, required by this chapter, or by any administrative regulation or order under this chapter;
2. Omits or causes to be omitted from a report, record, account, or memorandum full, true, and correct entries and information as required by this chapter, or by any administrative regulation or order under this chapter; or
3. Removes from this Commonwealth or destroys, mutilates, alters, or falsifies a report, record, account, or memorandum required by this chapter, or by any administrative regulation or order.
Any person who knowingly aids or abets any other person in the violation of any provision of this chapter, or any administrative regulation or order promulgated or issued under this chapter, shall be subject to the same penalty as that prescribed in this section for the violation by the other person.

History. Enact. Acts 2004, ch. 65, § 31, effective July 13, 2004.

349.160. Construction and interpretation of chapter.

Nothing in this chapter shall be construed to preclude any coal interest holder from removing support of the surface and any structure or facilities thereon and other strata as such rights may exist in any severance deed or other contract.
Nothing in this chapter is intended to or shall be construed as superseding, impairing, abridging, or affecting any specific contractual rights or obligations now or hereafter existing between the respective owners of coal, oil, gas, or other minerals, or any interests therein.
Nothing in this chapter shall be construed to, or be used or interpreted to, determine ownership.
Nothing in this chapter shall be construed to, or be used or interpreted to, apply to any well otherwise permitted, approved, or regulated under KRS Chapter 353 except for the wells that are to be converted to or operated as coalbed methane wells.
Nothing in this chapter shall be construed to authorize any limitation of production of coalbed methane from any coalbed methane well, lease, drilling unit, pool, field, or property to prevent or control economic waste or to limit production to market demand.
This chapter shall be liberally construed so as to effectuate the declaration of public policy set forth in KRS 349.005 .
Coalbed methane wells shall not be subject to the provisions of KRS Chapter 353, except as expressly provided in this chapter.
Gathering lines associated with coalbed methane wells shall be regulated under KRS 353.500(2) and the regulations promulgated thereunder.

History. Enact. Acts 2004, ch. 65, § 32, effective July 13, 2004.

Research References and Practice Aids

Kentucky Bench & Bar.

Thomas, Coalbed Methane: Who Owns This $4.8 Billion Natural Resource in Kentucky. Vol. 72, No. 2, March 2008, Ky. Bench & Bar 6..

CHAPTER 350 Surface Coal Mining

350.005. Strip Mining and Reclamation Commission abolished; transfer of functions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956 (1st Ex. Sess.), ch. 7, Art. VII, § 2) was repealed by Acts 1960, ch. 143, § 7.

350.010. Definitions for chapter.

As used in this chapter, unless the context requires otherwise:

“Surface coal mining operations” means activities conducted on the surface of lands in connection with a surface coal mine and surface impacts incident to an underground coal mine. The activities shall include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, extended depth secondary recovery systems, mountaintop removal, box cut, open pit, and area mining, the use of explosives and blasting, and in situ distillation or retorting, leaching, or other chemical or physical processing, and cleaning, concentrating, or other processing or preparation, and the loading of coal at or near the mine site. Excavation for the purpose of obtaining coal includes extraction of coal from refuse piles. The activities shall not include the extraction of coal by a landowner of fifty (50) tons or less within twelve (12) successive calendar months for his own noncommercial use from land owned or leased by him; the extraction of twenty-five (25) to two hundred fifty (250) tons of coal as an incidental part of privately financed construction where the coal is donated to a charitable or educational organization for noncommercial use or noncommercial distribution; the extraction of coal as an incidental part of federal, state, or local government financed highway or other construction under administrative regulations established by the cabinet; the extraction of, or intent to extract, twenty-five (25) tons or less of coal by any person by surface coal mining operations within twelve (12) successive calendar months; the extraction of coal incidental to the extraction of other minerals where coal does not exceed sixteen and two-thirds percent (16-2/3%) of the tonnage of minerals removed for purposes of commercial use or sale; or coal exploration subject to KRS 350.057 . Surface coal mining operations shall also include the areas upon which the activities occur or where the activities disturb the natural land surface. The areas shall also include any adjacent land, the use of which is incidental to the activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of the activities and for haulage, and excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or materials on the surface resulting from or incident to the activities. This definition shall include the terms “strip mining” of coal and the “surface effects of underground mining” of coal as used in this chapter;
“Strip mining” means the breaking of the surface soil in order to facilitate or accomplish the extraction or removal of minerals, ores, or other solid matter; any activity or process constituting all or part of a process for the extraction or removal of minerals, ores, and other solid matter from its original location; and the preparation, washing, cleaning, or other treatment of minerals, ores, or other solid matter so as to make them suitable for commercial, industrial, or construction use; but shall not include the extraction of coal by a landowner for his own noncommercial use of fifty (50) tons or less within twelve (12) successive calendar months from land owned or leased by him; the extraction of coal as an incidental part of federal, state, or local government financed highway or other construction under administrative regulations established by the cabinet; the extraction of, or intent to extract, twenty-five (25) tons or less of coal by any person by surface coal mining operations within twelve (12) successive calendar months; the extraction of coal incidental to the extraction of other minerals where coal does not exceed sixteen and two-thirds percent (16-2/3%) of the tonnage of minerals removed for purposes of commercial use or sale; coal exploration subject to KRS 350.057 ; nor shall it include the surface effects or surface impacts of underground coal mining;
“Surface coal mining and reclamation operations” means surface coal mining operations and all activities necessary and incident to the reclamation of the operations as required by this chapter;
“Overburden” means material of any nature, consolidated or unconsolidated, excluding topsoil, which lies above a natural deposit of coal and also means the material after removal from its natural state in the process of surface coal mining;
“Area of land affected” means any area of land or water upon which surface coal mining and reclamation operations are conducted or located or are to be conducted or located;
“Operations” means surface coal mining operations, all of the premises, facilities, roads, and equipment used in the process of producing coal from a designated area or removing overburden for the purpose of determining the location, quality, or quantity of a natural coal deposit or the activity to facilitate or accomplish the extraction or the removal of coal;
“Method of operation” means the method or manner by which the cut or open pit is made, the overburden is placed or handled, water is controlled, and other acts are performed by the operator in the process of uncovering and removing the coal;
“Operator” means any person, partnership, or corporation engaged in surface coal mining operations who removes or intends to remove more than twenty-five (25) tons of coal from the earth by coal mining within twelve (12) consecutive calendar months in any one (1) location;
“Person” means any individual, partnership, corporation, association, society, joint stock company, firm, company, or other business organization and shall also include any agency, unit, or instrumentality of federal, state, or local government including any publicly-owned utility or publicly-owned corporation of federal, state, or local government;
“Cabinet” means the Energy and Environment Cabinet;
“Secretary” means the secretary of the Energy and Environment Cabinet;
“Reclamation” means the reconditioning of the area affected by surface coal mining operations under a plan approved by the cabinet;
“Degree” when used in this chapter shall mean from the horizontal, and in each case shall be subject to a tolerance of five percent (5%) of error;
“Bench” means the ledge, shelf, or terrace formed in the contour method of strip mining;
“Approximate original contour” means that surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls and spoil piles eliminated; water impoundments may be permitted where the cabinet determines that they are in compliance with KRS 350.455 ;
“Certification” by a qualified registered professional engineer, as required by this chapter and administrative regulations promulgated hereunder, means a good faith representation to the best of his or her knowledge and belief, based on adequate knowledge of the requirements of this chapter and administrative regulations promulgated hereunder, related experience, best professional judgment, accepted engineering practices and recognized professional standards, and standard practice as it relates to direct participation by the registered professional engineer or supervision of the registered professional engineer’s employees or subordinates. Certification shall not be construed to constitute a warranty or guarantee;
“Reclamation development fund” means only that reconditioning of land affected by surface mining, which will directly promote and benefit the fund administered by the Kentucky Economic Development Finance Authority to foster economic development on surface mining land;
“Reclamation development project” means only that reconditioning of land affected by surface mining, which will directly promote and benefit an economic undertaking which constitutes a project under KRS 154.1-010 (20);
“Reclamation development plan” means a plan submitted to the cabinet to show compliance with reclamation standards, and submitted to the Kentucky Economic Development Finance Authority to seek moneys from the reclamation development fund for a reclamation development project;
“Permit applicant” or “applicant” means a person applying for a permit;
“Permittee” means a person holding a permit to conduct surface coal mining and reclamation operations;
“Unanticipated event or condition” as used in KRS 350.085(7) means an event or condition encountered in a remining operation that was not contemplated by the applicable surface coal mining and reclamation permit;
“Lands eligible for remining” means those lands that would otherwise be eligible for expenditures under KRS 350.560(1) or (2);
“Coal combustion by-products” means fly ash, bottom ash, scrubber sludge, and waste from fluidized bed combustion, produced by the combustion of coal. Coal combustion by-products do not include boiler slag, or residues of refuse derived fuels, such as municipal solid waste, tires, and solvents;
“NAD 83” means the North American Datum, 1983 version, in feet units; and
“Single Zone Projection” means the Kentucky Single Zone State Plane Coordinate System of 1983, based on the Lambert Conformal map projection with double standard parallels on the North American Datum, as established in 10 KAR 5:010.

History. Enact. Acts 1954, ch. 8, § 1; 1956, (1st Ex. Sess.), ch. 7, Art. VII, § 1; 1960, ch. 143, § 3; 1962, ch. 105, § 1; 1964, ch. 61, § 1; 1966, ch. 4, § 1; 1968, ch. 152, § 149; 1972, ch. 270, § 1; 1972 (1st Ex. Sess.), ch. 3, § 58; 1974, ch. 74, Art. III, § 13(2), (7); 1978, ch. 330, § 14, effective May 3, 1978; 1980, ch. 62, § 1, effective March 21, 1980; 1982, ch. 283, § 1, effective April 2, 1982; 1982, ch. 357, § 1, effective July 15, 1982; 1984, ch. 145, § 5, effective March 28, 1984; 1988, ch. 383, § 18, effective July 15, 1988; 1990, ch. 205, § 1, effective July 13, 1990; 1990, ch. 306, § 4, effective July 13, 1990; 1992, ch. 105, § 59, effective July 14, 1992; 1992, ch. 107, § 15, effective July 1, 1992; 1992, ch. 120, § 1, effective July 14, 1992; 1992, ch. 429, § 1, effective July 14, 1992; 1994, ch. 172, § 1, effective July 15, 1994; 1994, ch. 178, § 1, effective July 15, 1994; 1994, ch. 390, § 35, effective July 15, 1994; 1994, ch. 459, § 1, effective July 15, 1994; 2005, ch. 123, § 49, effective June 20, 2005; 2009, ch. 79, § 10, effective June 25, 2009; 2010, ch. 24, § 1873, effective July 15, 2010.

Compiler’s Notes.

Acts 1980, ch. 62, § 39, provided:

“The general assembly finds and declares that an emergency exists because of the federal requirement that state legislation necessary to comply with the provisions of Public Law 95-87, the ‘Surface Mining Control and Reclamation Act of 1977,’ be a validly enacted law on or before June 15, 1980, in order that the state program filing of March 3, 1980, be deemed complete, and that the state law shall be in effect before the United States Secretary of Interior can approve the state program, or the state’s proposed permanent program would otherwise be disapproved by the United States Secretary of Interior, thereby causing the installation of a federal program in the Commonwealth. Therefore, this legislation shall become a validly enacted law when signed by the governor [March 21, 1980], and the provisions of this Act, except subsection (3) of KRS 350.060 , shall become effective simultaneously with approval of the state program by the United States Secretary of Interior pursuant to Public Law 95-87, the Surface Mining Control and Reclamation Act of 1977.

“The general assembly further finds and declares that, since it is vitally important to the Commonwealth that the permitting process for surface coal mining operations remains administratively workable an emergency exists and therefore subsection (3) of KRS 350.060 shall become effective immediately upon its passage and approval by the governor (March 21, 1980).”

Section 11 of Acts 1982, ch. 283, provided: “The general assembly finds and declares that it is vitally important to the Commonwealth that the statutes relating to surface coal mining be cohesive and administratively workable. Therefore, the general assembly finds and declares that an emergency exists and that this legislation shall become validly enacted law when signed by the governor, and the provisions of this Act shall become operative simultaneously with the approval of the state’s proposed permanent program by the secretary of the interior pursuant to Public Law 95-87, the surface mining control and reclamation act of 1977. In the event that the secretary of the interior approves the permanent program before this legislation is signed by the governor, then the provisions of this Act shall become effective immediately upon the signing of this Act by the governor.”

This section is set out above to reflect a correction to the section reference appearing in (18) from KRS 154.01-010 (20) to 154.1-010 (20) due to renumbering by the state reviser effective in 2013.

1.Purpose of Chapter.

Based on the statutory language of KRS 350.020 , it is clear that this chapter was enacted for the environmental welfare of the people and property in the State of Kentucky, and therefore, is not pecuniary in nature. Renfro v. Kentucky, Kentucky Natural Res. & Envtl. Prot. Cabinet (In re Renfrow), 112 B.R. 22, 1989 Bankr. LEXIS 2450 (Bankr. W.D. Ky. 1989 ).

2.Surface Coal Mining Operations.

Where miner was seen operating a drill upon unpermitted site and as much as 2700 tons of coal had been removed therefrom, his activities fell under the definition of surface coal mining operations. Natural Resources & Envtl. Protection Cabinet v. Adams, 812 S.W.2d 159, 1991 Ky. App. LEXIS 46 (Ky. Ct. App. 1991).

The statutory definitions of “surface coal mining” and “strip mining” in KRS 350.010(1) and (2) unambiguously require the person to be acting for the purpose of obtaining coal or extracting minerals, ores, or other solid matter, respectively. Campbell v. Natural Res. & Envtl. Prot. Cabinet, 2004 Ky. App. LEXIS 201 (Ky. Ct. App. July 2, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 998 (Ky. Ct. App. July 2, 2004).

3.Administrative Remedies.

In action by surface miners for declaration rights and injunctive relief where miner was not attacking the validity of surface mining statutes or regulations, or showing that they could not successfully defend against pending administrative proceedings, but instead were claiming that the statutes and regulations did not apply to them, they were not entitled to rely on the exception to the general rule which required them to exhaust their administrative remedies and trial court did not err by dismissing their action for failing to first exhaust their administrative remedies. White v. Shepherd, 940 S.W.2d 909, 1997 Ky. App. LEXIS 25 (Ky. Ct. App. 1997).

Developer was improperly fined under KRS 350.060 and KRS 350.010(1) and (2) for mining coal as he lacked the required intent to obtain the coal, which was uncovered when the developer’s employee was building a road to a nearby water pump; there was no evidence that the actions of either the developer or his employee were for the purpose of obtaining the coal. Campbell v. Natural Res. & Envtl. Prot. Cabinet, 2004 Ky. App. LEXIS 201 (Ky. Ct. App. July 2, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 998 (Ky. Ct. App. July 2, 2004).

4.Authority of Court and Agency.

After a trustee requested instruction pursuant to KRS 386.675(1), the circuit court did not err in ruling that the trustee acted within its authority under KRS 386.810(3)(s) and complied with its fiduciary duties under KRS 286.3-277 , 386.800(3), 386.810(1) when the trustee opted to keep a mining lease in force despite the lessee’s alleged royalty shortfall and permit violation. There was conflicting evidence as to whether royalties had been underpaid, and the lessee had cured the alleged default by paying the disputed amount while the appeal was pending; moreover, an alleged mining permit violation could not serve as a basis to find the lessee in default absent an agency determination under KRS ch. 350 that such a violation existed. Vander Boegh v. Bank of Okla., 394 S.W.3d 917, 2013 Ky. App. LEXIS 28 (Ky. Ct. App. 2013).

Cited:

Wombles v. Commonwealth, 328 S.W.2d 146, 1959 Ky. LEXIS 91 ( Ky. 1959 ); Commonwealth ex rel. Department of Conservation v. Wombles, 346 S.W.2d 299, 1961 Ky. LEXIS 301 ( Ky. 1961 ).

Opinions of Attorney General.

Since auger mining is a technique associated with and a part of the process of surface mining, it is subject to regulations. OAG 73-249 .

Research References and Practice Aids

Kentucky Law Journal.

Tarlock, Kentucky Planning and Land Use Control Enabling Legislation: An Analysis of the 1966 Revision of KRS Chapter 100, 56 Ky. L.J. 556 (1968).

Begley and Williams, Coal Mine Water Pollution: An Acid Problem With Murky Solutions, 64 Ky. L.J. 506 (1975-76).

Randall and Pagoulatos, Surface Mining and Environmental Quality: An Economic Perspective, 64 Ky. L.J. 549 (1975-76).

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

McGraw, Surface Mining Primacy for Kentucky: The Legal Implications, 71 Ky. L.J. 37 (1982-83).

ALR

Validity and construction of statutes regulating strip mining. 86 A.L.R.3d 27.

350.020. Declaration of legislative policy and finding of fact.

The General Assembly finds that the Commonwealth is the leading producer of coal and that the production of coal in Kentucky contributes significantly to the nation’s energy needs. The General Assembly further finds that unregulated surface coal mining operations cause soil erosion, damage from rolling stones and overburden, landslides, stream pollution, the accumulation of stagnant water and the seepage of contaminated water, increase the likelihood of floods, destroy the value of land for agricultural purposes, destroy aesthetic values, counteract efforts for the conservation of soil, water and other natural resources, destroy or impair the property rights of citizens, create fire hazards, and in general create hazards dangerous to life and property, so as to constitute an imminent and inordinate peril to the welfare of the Commonwealth. The General Assembly further finds that lands that have been subjected to surface coal mining operations and have not been reclaimed and rehabilitated in accordance with modern standards constitute the aforementioned perils to the welfare of the Commonwealth. The General Assembly further finds that there are wide variations in the circumstances and conditions surrounding and arising out of surface coal mining operations due primarily to difference in topographical and geological conditions, and by reason thereof it is necessary, in order to provide the most effective, beneficial and equitable solution to the problem, that a broad discretion be vested in the authority designated to administer and enforce the regulatory provisions enacted by the General Assembly. The General Assembly further finds that governmental responsibility for regulating surface coal mining operations rests with state government and hereby directs the Energy and Environment Cabinet to take all actions necessary to preserve and exercise the Commonwealth’s authority, to the exclusion of all other governmental entities except the Commonwealth and agencies thereof and except as provided in KRS Chapter 100. Therefore, it is the purpose of this chapter to provide such regulation and control of surface coal mining operations as to minimize or prevent injurious effects on the people and resources of the Commonwealth. To that end, the cabinet is directed to rigidly enforce this chapter and to adopt whatever administrative regulations are found necessary to accomplish the purpose of this chapter.

HISTORY: Enact. Acts 1954, ch. 8, § 2; 1964, ch. 61, § 2; 1966, ch. 4, § 2; 1972 (1st Ex. Sess.), ch. 3, § 59; 1974, ch. 74, Art. III, § 13(7); 1978, ch. 332, § 1, effective June 17, 1978; 1980, ch. 62, § 2; 1988, ch. 253, § 1, effective July 15, 1988; 1988, ch. 374, § 1, effective July 15, 1988; 2010, ch. 24, § 1874, effective July 15, 2010; 2015 ch. 85, § 1, effective June 24, 2015.

Legislative Research Commission Notes.

(6/24/2015). 2015 Ky. Acts ch. 85, sec. 2 provides that the amendments made to this statute in that Act shall not relate to permit actions or bonds required thereby in the effect prior to the Act's effective date, which was June 24, 2015.

Compiler's Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes to KRS 350.010 .

NOTES TO DECISIONS

1. Purpose of Chapter.
2. Broad Form Deed.
3. Compulsory Reclamation.
4. Administrative Regulations.
5. Cabinet's Jurisdiction.

1.Purpose of Chapter.

Based on the language of this section, it is clear that this chapter was enacted for the environmental welfare of the people and property in the State of Kentucky, and, therefore, is not pecuniary in nature. Renfro v. Kentucky, Kentucky Natural Res. & Envtl. Prot. Cabinet (In re Renfrow), 112 B.R. 22, 1989 Bankr. LEXIS 2450 (Bankr. W.D. Ky. 1989 ).

2.Broad Form Deed.

In a suit for an injunction and damages under the Civil Rights Act (42 USCS § 1983) in which plaintiffs alleged that surface rights in land owned by them were being destroyed by mineral owners’ strip mining of the land under authority of a “broad form” deed executed in 1905, the federal court dismissed the complaint for lack of subject matter jurisdiction since neither the environmental laws and strip mining regulations of Kentucky nor decisions of the Kentucky Court of Appeals interpreting “broad form” deeds were sufficient to constitute the necessary degree of state involvement. Watson v. Kenlick Coal Co., 498 F.2d 1183, 1974 U.S. App. LEXIS 8010 (6th Cir. Ky. 1974 ), cert. denied, 422 U.S. 1012, 95 S. Ct. 2639, 45 L. Ed. 2d 677, 1975 U.S. LEXIS 3830 (U.S. 1975).

3.Compulsory Reclamation.

The Cabinet for Natural Resources and Environmental Protection has the authority to enforce reclamation and there is no violation of separation of powers thereby. Payne v. Commonwealth, Natural Resources & Environmental Protection Cabinet, 746 S.W.2d 90, 1988 Ky. App. LEXIS 29 (Ky. Ct. App. 1988).

4.Administrative Regulations.

Strip mining regulation which denies the due process hearing to an aggrieved party based solely on his financial inability to pay the penalties which he seeks to appeal is unconstitutional, in violation of the equal protection clauses of both the United States and Kentucky constitutions. Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1, 1990 Ky. LEXIS 75 ( Ky. 1990 ).

The statutes which authorize the enactment of a regulation requiring payment of any penalties imposed by a hearing officer prior to a formal hearing — viz., KRS 224.033 (now 224.10-100 ), 350.020 , 350.028 , 350.255 , 350.465 and 350.610 — do not mention nor do they authorize prepayment of penalties as a condition precedent to a formal hearing; therefore such regulation is null, void and unenforceable. Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1, 1990 Ky. LEXIS 75 ( Ky. 1990 ).

Where a federal act and its regulations provide for a procedure by which an accused strip miner is provided a formal hearing, with a full record, rights of examination, cross-examination, subpoenas, etc., and where from this full hearing there is an appeal to an administrative law judge and ultimately to the federal court system, by not providing a similar proceeding, the parallel Kentucky regulations are more stringent than the federal law and regulations, in violation of KRS 13A.120(1), thus making 405 KAR 7:090(4), which provides for a formal hearing only upon prepayment, null, void and unenforceable. Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1, 1990 Ky. LEXIS 75 ( Ky. 1990 ).

Kentucky Revised Statutes 350.090(3), 405 KAR 18:140 Section 1(1), 405 KAR 1:010(64), and KRS 350.028 , by prohibiting the unregulated disposal of earth materials separated from coal at coal washing facility, were not constitutionally overbroad as prohibiting a substantial amount of constitutionally protected conduct; concerns relating to surface coal mining and its byproducts are not limited to the effects of pollution-producing materials. Natural Resources & Envtl. Protection Cabinet v. Kentucky Harlan Coal Co., 870 S.W.2d 421, 1993 Ky. App. LEXIS 82 (Ky. Ct. App. 1993).

5.Cabinet's Jurisdiction.

The Cabinet’s jurisdiction to order mining company to reclaim permitted sites did not expire on the dates when its mining permits expire, for although the right to mine may expire, both the obligation to reclaim the permit site and the Cabinet’s enforcement jurisdiction continue until such time as the required reclamation is complete. Natural Resources & Envtl. Protection Cabinet v. Whitley Dev. Corp., 940 S.W.2d 904, 1997 Ky. App. LEXIS 26 (Ky. Ct. App. 1997).

Cited:

Commonwealth ex rel. Department of Conservation v. Wombles, 346 S.W.2d 299, 1961 Ky. LEXIS 301 ( Ky. 1961 ); Smith v. Natural Resources & Environmental Protection Cabinet, 712 S.W.2d 951, 1986 Ky. App. LEXIS 1113 (Ky. Ct. App. 1986); Collins v. Commonwealth Natural Resources & Envtl. Protection Cabinet, 10 S.W.3d 122, 1999 Ky. LEXIS 128 ( Ky. 1999 ).

Opinions of Attorney General.

The burden of establishing that the proposed operation will in fact be so conducted as not to offend the proscriptions and purposes expressly set forth in this section and KRS 350.085 is upon the operator who applies for a permit. OAG 70-563 .

Before a permit to strip mine is issued or denied the Department of Natural Resources and Environmental Protection (now Natural Resources and Environmental Protection Cabinet) must make a determination as to whether or not the quality of the environment will be degraded or altered, all other provisions of KRS 350.060 and 350.085 must be met and consideration should be given to whether proper reclamation practices can be utilized. OAG 74-502 .

The Department for Natural Resources and Environmental Protection (now Natural Resources and Environmental Protection Cabinet) may not withhold issuance of a surface mining permit, which meets the statutory criteria, pending receipt of certification that the mining use will comply with local planning and zoning ordinances, but the issuance of the permit in no way authorizes the holder to violate such ordinances or any other law or requirement imposed by any governmental authority. OAG 75-556 .

Research References and Practice Aids

Journal of Natural Resources & Environmental Law.

Clevinger, The Battle Between Coal Rights and Gas Rights Continues: Hazard Coal Corp. v. Kentucky West Virginia Gas Co., 20 J. Nat. Resources & Envtl. L. 131 (2005-2006).

Kentucky Law Journal.

Ausness, Torts, 63 Ky. L.J. 753 (1974-1975).

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Northern Kentucky Law Review.

Note, Ward v. Harding: Kentucky Strips Miners of Dominate Rights, Burying a Century of Litigation, 21 N. Ky. L. Rev. 649 (1994).

350.024. Reclamation Commission — Membership — Meetings — Compensation. [Repealed.]

Compiler’s Notes.

This section (Acts 1960, ch. 143, § 1; 1966, ch. 4, § 3; 1972, ch. 270, § 2) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93.

350.025. Provisions inconsistent with federal law unenforceable.

Any provision of this chapter which is set forth as inconsistent with the provisions of Public Law 95-87 by the Secretary of the Interior pursuant to Section 505(b) of that act shall be deemed superseded by federal law and shall thereafter be unenforceable by the Commonwealth of Kentucky.

History. Enact. Acts 1980, ch. 209, § 5.

Compiler’s Notes.

Acts 1980, ch. 209, § 6, provides: “The general assembly finds and declares that an emergency exists because of the federal requirement that state legislation necessary to comply with the provisions of Public Law 95-87, the “Surface Mining Control and Reclamation Act of 1977”, be a validly enacted law on or before June 15, 1980, in order that the state program filing of March 3, 1980, be deemed complete, and that the state law shall be in effect before the United States Secretary of Interior can approve the state program, or the state’s proposed permanent program would otherwise be disapproved by the United States Secretary of Interior, thereby causing the installation of a federal program in the Commonwealth. Therefore, this legislation shall become a validly enacted law when signed by the governor [April 3, 1980], but the provisions of this Act shall not become effective until approval of the state program by the United States Secretary of Interior pursuant to Public Law 95-87, the Surface Mining Control and Reclamation Act of 1977.”

Section 505(b) of Public Law 95-87, referred to herein, is compiled as 30 USCS § 1255(b).

Legislative Research Commission Note.

The provisions of the act became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

NOTES TO DECISIONS

1.Obligation to Reclaim Permit Site.

Cited:

Payne v. Commonwealth, Natural Resources & Environmental Protection Cabinet, 746 S.W.2d 90, 1988 Ky. App. LEXIS 29 (Ky. Ct. App. 1988).

350.026. Transfer of records, property, personnel, funds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 143, § 2) was repealed by Acts 1966, ch. 255, § 283.

350.028. Powers of cabinet.

The Energy and Environment Cabinet shall have and exercise the following authority and powers:

To adopt administrative regulations after a hearing pertaining to surface coal mining operations including strip mining and the surface effects of underground mining to accomplish the purposes of this chapter;
To conduct investigations and hearings under provisions of this chapter or regulations adopted pursuant thereto;
To issue, after an opportunity for a hearing, suspension orders or show cause orders requiring an operator, permittee, or person to adopt remedial measures that are necessary to comply with this chapter and administrative regulations adopted pursuant thereto. Failure to attend a hearing shall be excused for good cause shown;
To issue, after an opportunity for a hearing, a final order imposing civil penalties for violations of this chapter or directing the Department for Natural Resources to revoke a permit, when the requirements set forth by the notice of noncompliance, order of cessation, or an order of the cabinet requiring remedial measures have not been complied with according to the terms therein. When the secretary or his authorized representatives determines that a pattern of violations of any requirements of this chapter or any permit conditions required by this chapter exists or has existed, and if the secretary or his authorized representatives also find that the violations are caused by the unwarranted failure of the permittee to comply with any requirements of this chapter or any permit conditions or that the violations are willfully caused by the permittee, the secretary or his authorized representative shall forthwith issue an order to the permittee to show cause as to why the permit should not be suspended or revoked and shall provide an opportunity for a hearing. Failure to attend a hearing shall be excused for good cause shown; and
To adopt administrative regulations to allow the state to administer and enforce the initial and permanent regulatory programs of Public Law 95-87, “Surface Mining Control and Reclamation Act of 1977.” Administrative regulations shall be no more stringent than required by that law. Nothing in this chapter shall be construed as superseding, amending, modifying, or repealing any of the acts listed in Section 702(a) of Public Law 95-87, or any administrative regulation promulgated thereunder.

History. Enact. Acts 1962, ch. 105, § 2(1) to (3), (5); 1966, ch. 4, § 4; 1972 (1st Ex. Sess.), ch. 3, § 60; 1974, ch. 74, Art. III, § 13(2), (7); 1978, ch. 330, § 15, effective May 3, 1978; 1980, ch. 62, § 3, effective March 21, 1980; 1982, ch. 283, § 2, effective April 2, 1982; 1992, ch. 304, § 3, effective July 14, 1992; 1992, ch. 429, § 2, effective July 14, 1992; 2005, ch. 123, § 50, effective June 20, 2005; 2010, ch. 24, § 1875, effective July 15, 2010.

Compiler’s Notes.

For effective date of amendments by Acts 1980, ch. 62 and by Acts 1982, ch. 283, see Compiler’s Notes following KRS 350.010 .

Public Law 95-87, the Surface Mining Control and Reclamation Act of 1977, referred to herein, is compiled as 30 USCS § 1201 et seq. Section 702(a) of such act is compiled as 30 USCS § 1292.

NOTES TO DECISIONS

1. Constitutionality.
2. Separation of Powers.
3. Regulations.
4. Remedies Not Mutually Exclusive.

1.Constitutionality.

KRS 350.090(3), 405 KAR 18:140 Section 1(1), 405 KAR 1:010(64), and this section, by prohibiting the unregulated disposal of earth materials separated from coal at coal washing facility, were not constitutionally overbroad as prohibiting a substantial amount of constitutionally protected conduct; concerns relating to surface coal mining and its byproducts are not limited to the effects of pollution-producing materials. Natural Resources & Envtl. Protection Cabinet v. Kentucky Harlan Coal Co., 870 S.W.2d 421, 1993 Ky. App. LEXIS 82 (Ky. Ct. App. 1993).

2.Separation of Powers.

3.Regulations.

4.Remedies Not Mutually Exclusive.

The remedy of bond forfeiture and the remedy of ordering a permittee to reclaim a site are not mutually exclusive; nothing in the statutes providing for forfeiture of bond if a reclamation violation is not abated, that authorize the cabinet to order that a permittee undertake certain abatement obligations or that authorize the cabinet to seek injunctive relief suggest that these remedies are intended to be mutually exclusive; on the contrary the cabinet’s ability to seek remedies of both bond forfeiture and injunctive relief afford it protection in those cases in which the amount of the bond is inadequate to pay for the cost of completing reclamation. Natural Resources & Envtl. Protection Cabinet v. Whitley Dev. Corp., 940 S.W.2d 904, 1997 Ky. App. LEXIS 26 (Ky. Ct. App. 1997).

Cited:

In re Renfrow, 112 B.R. 22, 1989 Bankr. LEXIS 2450 (Bankr. W.D. Ky. 1989 ); Swatzell v. Natural Resources & Envtl. Protection Cabinet, 996 S.W.2d 500, 1999 Ky. LEXIS 70 ( Ky. 1999 ).

Opinions of Attorney General.

This section, KRS 12.080 and 350.050 provide ample statutory authority authorizing the Department for Natural Resources and Environmental Protection (now Natural Resources and Environmental Protection Cabinet) to impose the requirements of 30 C.F.R. part 705, concerning conflicts of interest, on its employees. OAG 78-335 .

Research References and Practice Aids

Cross-References.

Administrative regulations, adoption and effective dates, KRS 13A.330 .

Kentucky Law Journal.

Plater, Coal Law From the Old World: A Perspective on Land Use and Environmental Regulation in the Coal Industries of the United States, Great Britain, and West Germany, 64 Ky. L.J. 473 (1975-76).

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

McGraw, Surface Mining Primacy for Kentucky: The Legal Implications, 71 Ky. L.J. 37 (1982-83).

Northern Kentucky Law Review.

Comments, Kentucky Application for Abandoned Mine Reclamation Funds Pursuant to Title IV of Federal Law 95-87, Surface Mining Control and Reclamation Act of 1977, 10 N. Ky. L. Rev. 261 (1983).

350.0281. Moratorium on regulations — Exceptions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 148, § 1, effective July 15, 1986) was repealed by Acts 1992, ch. 120, § 4, effective July 14, 1992.

350.0285. Notification to Transportation Cabinet of permits for mine openings and of mine closings under authority of cabinet.

The cabinet shall notify the secretary of the Transportation Cabinet every six (6) months of permits issued for mine openings and mine closings under the authority of the cabinet.

History. Enact. Acts 1994, ch. 488, § 1, effective July 15, 1994.

350.029. Regulations to implement Interstate Mining Compact — Adoption — Limitations.

The cabinet is hereby authorized and empowered to adopt, after public hearing, reasonable regulations in order to formulate and establish effective programs for the control of surface soil disturbance in connection with mining as defined by the Interstate Mining Compact. Such regulations shall follow the general standards established in Article III of the Interstate Mining Compact. The cabinet shall have the authority to adopt such regulations prior to the effective date of the Interstate Mining Compact and irrespective of whether the state becomes a member or withdraws from membership in the Interstate Mining Compact. Nothing in this section shall be construed to grant the cabinet additional authority in regulating the strip mining of coal or clay, and the authority granted to the cabinet by this section shall be separate from the powers of the cabinet already enacted relating to the strip mining of coal and clay.

History. Enact. Acts 1966, ch. 23, § 79; 1972 (1st Ex. Sess.), ch. 3, § 61.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Bratt and Brown, Environmental Law, 70 Ky. L.J. 455 (1981-82).

350.030. Strip Mining and Reclamation Commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 8, § 3) was repealed by Acts 1956 (1st Ex. Sess.), ch. 7, Art. VII, § 9.

350.0301. Petition challenging determination of cabinet — Conduct of hearings — Administrative regulations — Secretary may designate deputy to sign final orders.

Any person who considers himself or herself aggrieved by any determination made by the cabinet under this chapter may file, in accordance with administrative regulations promulgated by the cabinet under the provisions of this chapter, a petition alleging that the determination is contrary to law or fact and is injurious to him, the grounds and reasons therefor, and demand a hearing. Unless the cabinet considers that the petition is frivolous, it shall serve written notice of the petition on each person named therein and shall schedule a hearing before the cabinet not less than twenty-one (21) days after the date of the notice unless the person complained against waives in writing the twenty-one (21) day period. The right to demand a hearing pursuant to this section shall be limited to a period of thirty (30) days after the petitioner has had actual notice of the determination complained of, or could reasonably have had notice. However, the petitioner shall have the opportunity to contest the validity of an underlying notice of noncompliance in a timely-filed demand for hearing to contest the validity of a cessation order issued for a failure to abate the violation contained in the notice of noncompliance.
All hearings, other than conferences, under this chapter shall be held before a hearing officer, duly qualified to practice law in the Commonwealth of Kentucky, who may be a full-time employee of the cabinet, serve by contract, or be paid on a per diem basis in the discretion of the cabinet. After the conclusion of the hearing, the hearing officer shall within thirty (30) days make to the secretary a report and recommended order which shall contain a finding of fact and a conclusion of law. If the secretary finds upon written request of the hearing officer that additional time is needed, the secretary may grant an extension. The hearing officer shall serve a copy of his report and recommended order upon all parties of record and their attorney of record to the proceeding, and they shall be granted the right to file exceptions thereto within fourteen (14) days of service. Any party may submit a written response to exceptions within twenty-one (21) days of service of the report and recommended order. Exceptions and responses not timely filed shall be noted and made a part of the record but shall not be considered by the secretary in making a final order. The secretary shall consider the report, exceptions, and recommended order and decide the case. The decision shall be served by mail upon all parties and their attorney of record and shall be a final order of the cabinet.
Any party to a hearing under this subsection may be represented by counsel, may make oral or written argument, offer testimony, cross-examine witnesses, or take any combination of these actions. The record of the hearing shall be open to public inspection, and copies thereof shall be made available to any person upon payment of the actual cost of reproducing the original.
All hearings conducted pursuant to this chapter shall be open to the public.
The cabinet shall promulgate administrative regulations, pursuant to the provisions set forth in this chapter, establishing formal and informal hearing procedures by which any hearing shall, upon the written request of the operator, permittee, or person, be held in the county or regional office where the surface coal mining operation is located, before an impartial hearing officer who is independent of any prosecutorial functions of the cabinet. The administrative regulations shall provide for the conduct of hearings and investigation of any matter relating to the regulation of surface coal mining and reclamation operations and provide for the assessment and payment of civil penalties. The procedures developed pursuant to this subsection shall provide that the hearings be held in the most expeditious manner possible within the time constraints established under this chapter. No person who presided at a prior hearing shall either preside at a subsequent hearing or participate in any further decision or subsequent administrative appeal in the same matter.
The cabinet may promulgate administrative regulations pursuant to the provisions set forth in this chapter establishing procedures for the holding of administrative conferences needed to implement the provisions of this chapter.
The secretary may designate a deputy to sign any or all final orders of the cabinet, whether the orders are the result of hearing or agreement.

HISTORY: Enact. Acts 1992, ch. 304, § 1, effective July 14, 1992; 1994, ch. 178, § 2, effective July 15, 1994; 1996, ch. 210, § 1, effective July 15, 1996; 2005, ch. 123, § 51, effective June 20, 2005; 2018 ch. 85, § 2, effective July 14, 2018.

NOTES TO DECISIONS

1. Constitutionality.
2. Exhaustion of Administrative Remedies.

1.Constitutionality.

Bifurcated hearings regarding post-mining land use violations and the penalty assessed, did not satisfy fundamental due process by operating under a double standard of access to an administrative forum; thus, insofar as they exacted a monetary pre-requisite prior to the penalty phase hearing, both KRS 350.0301 and 405 KAR 7:092 were unconstitutional violations of due process, equal protection, and the ban against arbitrary state action contained in Ky. Const., § 2. Kentec Coal Co. v. Commonwealth, 2003 Ky. App. LEXIS 179 (Ky. Ct. App. July 25, 2003), aff'd, 177 S.W.3d 718, 2005 Ky. LEXIS 303 ( Ky. 2005 ).

2.Exhaustion of Administrative Remedies.

Appellant’s failure to file exceptions to hearing officer’s report as provided by regulation constituted a failure to exhaust administrative remedies and thereby precluded judicial review of the Cabinet’s order. Swatzell v. Natural Resources & Envtl. Protection Cabinet, 962 S.W.2d 866, 1998 Ky. LEXIS 25 ( Ky. 1998 ), overruled in part, Rapier v. Philpot, 130 S.W.3d 560, 2004 Ky. LEXIS 3 ( Ky. 2004 ).

350.0305. Appeal of cabinet’s order.

Any party aggrieved by a final order resulting from the hearing conducted pursuant to KRS 350.0301(1) on cabinet determinations may appeal to the Franklin Circuit Court; except that judicial review of a final order resulting from a hearing on the issuance of a notice of noncompliance, the issuance of an order for cessation and immediate compliance, the assessment of civil penalties, or a bond forfeiture shall be in accordance with KRS 350.032 . The appeal shall be taken within thirty (30) days from the rendition of the final order. The party or parties affected by the final order shall file in the Circuit Court a petition which states fully the grounds upon which a review is sought and shall assign all errors relied on. The cabinet shall be named respondent, and service shall be had on the cabinet. Summons shall issue upon the petition directing the cabinet to send its entire record, properly bound, to the clerk of the Circuit Court after certifying that the record is its entire original record or a true copy. The record, when filed, shall become official and be considered by the Circuit Court on the review. After the case has been properly docketed in the Circuit Court, any party directly affected by the issues on appeal, may, upon notice to the parties, upon proper showing, and in the discretion of the court, be permitted to intervene. The court shall review the entire record and the findings and final order of the cabinet. No objection to the final order shall be considered by the court unless it was raised before the cabinet or there were reasonable grounds for failure to do so. The findings of the cabinet as to the facts, if supported by substantial evidence, shall be conclusive. The commencement of the proceedings under this section shall not operate as a stay of the cabinet’s final order unless specifically ordered by the court. Appeals to the Court of Appeals from orders of the Circuit Court shall be taken in the manner provided in the Kentucky Rules of Civil Procedure.

History. Enact. Acts 1992, ch. 304, § 2, effective July 14, 1992; 1994, ch. 178, § 3, effective July 15, 1994.

NOTES TO DECISIONS

1.Preservation for Review.

Kentucky Secretary of Natural Resources and Environmental Protection Cabinet waived its claim that it was not properly served with a summons in a developer’s challenge to a fine for improper surface mining as was required by KRS 350.0305 and CR 4.01 by failing to raise the claim in a protective cross-appeal; the claim was not related to the developer’s arguments on appeal, but was a separate ground for cross-appeal under CR 74.01. Campbell v. Natural Res. & Envtl. Prot. Cabinet, 2004 Ky. App. LEXIS 201 (Ky. Ct. App. July 2, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 998 (Ky. Ct. App. July 2, 2004).

350.032. Enforcement of subpoenas — Judicial review of final orders — Forfeiture of performance bond — Temporary relief pending final determination.

In case of refusal to obey a subpoena issued to any person, any Circuit Court of competent jurisdiction, upon application by any party, may issue to that person an order requiring him to appear before the cabinet, there to produce documentary evidence if so ordered or to give evidence touching the matter under investigation or in question; and any failure to obey the order of the court may be punished by the court as a contempt of court.
Any person aggrieved by a final order of the cabinet resulting from a hearing on the issuance of a notice of noncompliance, the issuance of an order for cessation and immediate compliance, the assessment of civil penalties, or a bond forfeiture may obtain a review of the order by filing in the Franklin Circuit Court or the Circuit Court of the county within which the mine is located, within thirty (30) days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part, provided that a surety on a performance bond shall not file such petition until it has complied with subsection (3) of this section. A copy of the petition shall be forthwith served upon the cabinet, and thereupon the cabinet shall certify and file in court a copy of the record before the cabinet, including therein all pleadings, orders, documentary exhibits and the stenographic transcript of the testimony taken before the cabinet. When these have been filed, the court shall have exclusive jurisdiction to affirm, modify, enforce or set aside the order, in whole or in part. No objection to the order may be considered by the court unless it was urged before the cabinet or there were reasonable grounds for failure to do so. The findings of the cabinet as to the facts, if supported by substantial evidence, are conclusive. If either party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for failure to adduce the evidence in the hearings before the cabinet, the court may order that additional evidence be taken before the cabinet in such manner and upon such condition as the court may consider proper. The cabinet may modify its findings as to the facts, by reason of the additional evidence so taken; and it shall file any modified or new findings with the court, which if supported by substantial evidence shall be conclusive, and any recommendation for the modification or setting aside of the original order. The commencement of the proceedings under this section does not, unless specifically ordered by the court, operate as a stay of the cabinet’s order. An appeal may be taken from the judgment of the Circuit Court to the Court of Appeals on the same terms and conditions as an appeal is taken in any civil action.
Where the cabinet has ordered forfeiture of a performance bond, the surety shall forward to the cabinet by certified mail a cashier’s check for the required amount within seven (7) business days from the effective date of the order. The cabinet shall establish an interest-bearing escrow account and shall deposit therein the full amount of the forfeiture rendered by the surety. The amount shall continue to be held by the cabinet until completion of judicial review as authorized in subsection (2) of this section. If the final decision following the review reverses the order of the secretary of the cabinet, the cabinet shall within thirty (30) days of receipt of such order, refund to the surety the appropriate amount plus all interest accrued from the date of deposit to the date of the final order.
In the case of a proceeding to review any order or decision issued by the secretary under this chapter pertaining to surface coal mining operations, the court may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate pending final determination of the proceedings if:
1. All parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief;
2. The person requesting the relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding; and
3. The relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources.

History. Enact. Acts 1962, ch. 105, § 2(4), (6); 1972 (1st Ex. Sess.), ch. 3, § 62; 1982, ch. 192, § 2, effective July 15, 1982; 1984, ch. 145, § 1, effective March 28, 1984; 1984, ch. 257, § 1, effective July 13, 1984; 1986, ch. 331, § 47, effective July 15, 1986; 1986, ch. 400, § 1, effective July 15, 1986; 1994, ch. 178, § 4, effective July 15, 1994.

NOTES TO DECISIONS

1. Venue.
2. Application.
3. Failure to Appear at Preliminary Hearing.
4. Petition for Modification Denied.
5. Circuit Court Authority.
6. Limitations.
7. Exhaustion of Administrative Remedies.

1.Venue.

In an appeal from a judgment dismissing a petition for review of a final order of the Natural Resources and Environmental Protection Cabinet for lack of venue, where petitioner sought partial release of a performance bond covering an interim surface mining permit, this section was held to deal more specifically with surface mining than KRS 224.085 (now 224.10-470 ) and, since it was more recent than KRS 224.085 (now 224.10-470 ), was held to control venue in the appeal. Black Energy Mining, Inc. v. Natural Resources & Environmental Protection Cabinet, 767 S.W.2d 334, 1989 Ky. App. LEXIS 2 (Ky. Ct. App. 1989).

2.Application.

The provision of subsection (2) of this section that indicates the findings of the Natural Resources and Environmental Protection Cabinet as to the facts, if supported by substantial evidence, are conclusive is applicable only to contested proceedings where evidence is heard and findings of fact are made; it has no application whatever to a default situation, where under the regulations, the violations are deemed to be admitted and no evidence is required to prove them. Natural Resources & Environmental Protection Cabinet v. Cricket Coal Co., 780 S.W.2d 609, 1989 Ky. LEXIS 80 ( Ky. 1989 ).

3.Failure to Appear at Preliminary Hearing.

The failure to appear at a preliminary hearing and the failure to request a formal hearing are deemed to be an admission of the violations charged and an acceptance of the proposed penalty. Natural Resources & Environmental Protection Cabinet v. Cricket Coal Co., 780 S.W.2d 609, 1989 Ky. LEXIS 80 ( Ky. 1989 ).

Defendants were cited by the Natural Resources and Environmental Protection Cabinet for violations of certain strip-mining regulations but, despite proper notification, neither attended their scheduled hearings and, since on appeal to Circuit Court no objection to the cabinet’s order can be raised which was not previously urged to the cabinet, defendants are therefore deemed to have waived all rights to contest the fact of the violation or the proposed penalty. Griffie v. Natural Resources & Environmental Protection Cabinet, 817 S.W.2d 897, 1991 Ky. App. LEXIS 88 (Ky. Ct. App. 1991).

4.Petition for Modification Denied.

Defendant, cited for violations of the surface mining laws, waived his right to complain about notice of formal hearings and the cabinet’s order where, although defendant received the hearing officer’s report, defendant still failed to file exceptions thereto in accordance with KRS 224.10-440 ; therefore defendant’s petition was denied. Natural Resources & Environmental Protection Cabinet v. Cook, 812 S.W.2d 507, 1991 Ky. App. LEXIS 76 (Ky. Ct. App. 1991).

5.Circuit Court Authority.

Because there was substantial evidence to support the Natural Resources and Environmental Protection Cabinet’s order penalizing defendant for mining without a permit, the Circuit Court was without authority to make independent findings of fact. Natural Resources & Envtl. Protection Cabinet v. Adams, 812 S.W.2d 159, 1991 Ky. App. LEXIS 46 (Ky. Ct. App. 1991).

Court did not have jurisdiction in declaratory judgment proceedings brought by surface miner for a declaration of rights which raised issues that were pending in administrative proceedings before the Natural Resources and Environmental Protection Cabinet on the date the declaratory judgment was filed, since the secretary and Cabinet are vested with the full power and authority to enforce the state’s surface mining and reclamation laws, while the courts are vested in such proceeding with only the authority to review final orders on appeal. White v. Shepherd, 940 S.W.2d 909, 1997 Ky. App. LEXIS 25 (Ky. Ct. App. 1997).

6.Limitations.

Since sureties on performance bonds of corporation that had received permits to engage in surface mining could not be deemed to be in default until the date upon which they refused to honor their obligations as sureties after being called upon to do so, where no claims were asserted against sureties until 1993 when they were notified by letter that mining corporation had been cited for noncompliance and that state was entitled to undertake the required reclamation work and state filed action when the bond were not honored, since it is clear from the record that a cause of action was filed against surety within seven (7) years of its right to institute suit, such claims were not barred by limitations. Natural Resources & Envtl. Protection Cabinet v. Whitley Dev. Corp., 940 S.W.2d 904, 1997 Ky. App. LEXIS 26 (Ky. Ct. App. 1997).

7.Exhaustion of Administrative Remedies.

Appellant’s failure to file exceptions to hearing officer’s report, as provided by regulation, constituted a failure to exhaust administrative remedies and thereby precluded judicial review of the Cabinet’s order. Swatzell v. Natural Resources & Envtl. Protection Cabinet, 962 S.W.2d 866, 1998 Ky. LEXIS 25 ( Ky. 1998 ), overruled in part, Rapier v. Philpot, 130 S.W.3d 560, 2004 Ky. LEXIS 3 ( Ky. 2004 ).

Cited:

Natural Resources & Environmental Protection Cabinet v. J & D Coal Co., 817 S.W.2d 452, 1991 Ky. App. LEXIS 126 (Ky. Ct. App. 1991); Natural Resources & Envtl. Protection Cabinet v. Kentucky Ins. Guar. Ass’n, 972 S.W.2d 276, 1997 Ky. App. LEXIS 47 (Ky. Ct. App. 1997); Couch v. Natural Resources & Envtl. Protection Cabinet, 986 S.W.2d 158, 1999 Ky. LEXIS 19 ( Ky. 1999 ).

350.035. Department for Natural Resources — Divisions — Appointment of special investigations officers. [Repealed]

History. Enact. Acts 1956 (1st Ex. Sess.), ch. 7, Art. VII, § 3; 1966, ch. 4, § 5; 1972 (1st Ex. Sess.), ch. 3, § 63; 1978, ch. 332, § 2, effective June 17, 1978; 1980, ch. 377, § 2, effective May 18, 1982; 1982, ch. 150, § 2, effective July 15, 1982; 2005, ch. 123, § 52, effective June 20, 2005; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1956 (1st Ex. Sess.), ch. 7, Art. VII, § 3; 1966, ch. 4, § 5; 1972 (1st Ex. Sess.), ch. 3, § 63; 1978, ch. 332, § 2, effective June 17, 1978; 1980, ch. 377, § 2, effective May 18, 1982; 1982, ch. 150, § 2, effective July 15, 1982; 2005, ch. 123, § 52, effective June 20, 2005) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

350.040. Director of Strip Mining and Reclamation; employment of personnel; utilization of other state services and facilities. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 8, § 4) was repealed by Acts 1956 (1st Ex. Sess.), ch. 7, Art. VII, § 9.

350.045. Transfer of records, property, personnel and funds to Department of Conservation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956 (1st Ex. Sess.), ch. 7, Art. VIII, § 4) was repealed by Acts 1960, ch. 143, § 7.

350.050. Powers of cabinet.

The Energy and Environment Cabinet under the supervision of the secretary of the Energy and Environment Cabinet shall have and exercise the following authority and powers:

To exercise general supervision and administration and enforcement of this chapter and all rules and regulations and orders promulgated thereunder;
To encourage and conduct investigations, research, experiments, and demonstrations, and to collect and disseminate information relating to strip mining and reclamation of lands and waters affected by strip mining;
To adopt, without hearing, internal procedures with respect to the filing of reports, the issuance of permits, and other matters of procedure and administration;
To examine and pass upon all plans and specifications submitted by the permit applicant for the method of operation, backfilling, grading, and for the reclamation of the area of land affected by his operation;
To make investigations or inspections which may be deemed necessary to insure compliance with any provision of this chapter;
To order, through personnel of the cabinet, the suspension of any permit for failure to comply with any of the provisions of this chapter or any regulations adopted pursuant thereto;
To order, through personnel of the cabinet, the stopping of any operation that is started without first having secured a permit as required by this chapter.

History. Enact. Acts 1954, ch. 8, § 5; 1956 (1st Ex. Sess.), ch. 7, Art. VII, § 5; 1962, ch. 105, § 3; 1966, ch. 4, § 6; 1972 (1st Ex. Sess.), ch. 3, § 64; 1974, ch. 74, Art. III, § 13(2), (7); 1978, ch. 332, § 3, effective June 17, 1978; 1992, ch. 429, § 3, effective July 14, 1992; 2010, ch. 24, § 1876, effective July 15, 2010.

NOTES TO DECISIONS

1. Separation of Powers.
2. Suspension of Permits.

1.Separation of Powers.

2.Suspension of Permits.

Circuit Court properly affirmed a decision by the Secretary of Natural Resources and Environmental Protection Cabinet to suspend rather than revoke a mining permit and an amended permit even though a hearing officer recommended that the permits be revoked based on a mining company’s failure to adequately address several statutory and regulatory requirements in its permit applications. KRS 350.050(6) gave the Cabinet the authority to suspend “any” permit, as did 405 KAR 5:095, § 1(14). Cook v. Envtl. & Pub. Prot. Cabinet, 208 S.W.3d 266, 2006 Ky. App. LEXIS 329 (Ky. Ct. App. 2006).

Opinions of Attorney General.

KRS 12.080 , 350.028 and this section provide ample statutory authority authorizing the Department for Natural Resources and Environmental Protection (now Natural Resources and Environmental Protection Cabinet) to impose the requirements of 30 C.F.R. part 705, concerning conflicts of interest, on its employees. OAG 78-335 .

Subdivision (3) of this section is not in conflict with KRS Chapter 13 (now repealed), concerning administrative regulations, since questions of internal procedure not affecting private rights or procedures available to the public are not regulations within the meaning of KRS 13.080 (3) (now repealed). OAG 78-335 .

Research References and Practice Aids

Cross-References.

Administrative regulations, adoption and effective dates, KRS 13A.330 .

Kentucky Law Journal.

Begley and Williams, Coal Mine Water Pollution: An Acid Problem With Murky Solutions, 64 Ky. L.J. 506 (1975-76).

350.052. Powers, qualifications, and training of special investigations officers. [Repealed]

History. Enact. Acts 1982, ch. 150, § 5, effective July 15, 1982; 1986, ch. 64, § 7, effective July 15, 1986; 2000, ch. 416, § 2, effective July 14, 2000; 2007, ch. 85, § 303, effective June 26, 2007§ 49; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1982, ch. 150, § 5, effective July 15, 1982; 1986, ch. 64, § 7, effective July 15, 1986; ch. 416, effective July 14, 2000; 2007, ch. 85, § 303, effective June 26, 2007) was repealed by ch. 117, § 49, effective June 29, 2017.

350.053. Seizure and sale of equipment — Rights of owner or lien holder. [Repealed]

History. Enact. Acts 1982, ch. 150, § 6, effective July 15, 1982; 1990, ch. 205, § 2, effective July 13, 1990; 1990, ch. 212, § 1, effective July 13, 1990; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1982, ch. 150, § 6, effective July 15, 1982; 1990, ch. 205, § 2, effective July 13, 1990; 1990, ch. 212, § 1, effective July 13, 1990) was repealed by ch. 117, § 49, effective June 29, 2017.

350.054. Illegal mining and conveyance reclamation fund — Purpose — Control.

There is established a special fund to be known as the “Illegal Mining and Conveyance Reclamation Fund” which shall be under the control of the Energy and Environment Cabinet.
The fund shall consist of all moneys from the sale or forfeiture of all instrumentalities used in violation of KRS 350.057(3) or 350.060(1).
Moneys in the fund may be used for the following purposes:
1. To reclaim lands mined without a permit or authorization, as required by KRS 350.057 or 350.060(1), and not eligible for the abandoned mine lands reclamation fund; and
2. To defray all expenses associated with the seizure, storing, and sale of forfeited property.
Moneys contained in the illegal mining and conveyance reclamation fund shall be deemed a trust and agency account and shall not lapse.
The cabinet shall have access to and control of the moneys held in the illegal mining and conveyance reclamation fund, but shall expend the moneys only for the purposes set forth in subsection (3) of this section.

HISTORY: Enact. Acts 1982, ch. 150, § 7, effective July 15, 1982; 1990, ch. 212, § 2, effective July 13, 1990; 2010, ch. 24, § 1877, effective July 15, 2010; 2017 ch. 117, § 48, effective June 29, 2017.

350.055. Publication of notice of intention to mine by permit applicant — Notification of various local government bodies by cabinet.

An applicant for a permit required by KRS 350.060 shall publish public notice of his filing of an application for that permit. The publication shall be made by advertisement in a newspaper of largest bona fide circulation, according to the definition in KRS 424.110 to 424.120 , in the county wherein the proposed mining site is located.
The applicant shall publish the notice of intention to mine in the newspaper identified in subsection (1) at least once a week for four (4) consecutive weeks beginning at the time of submission of an application for a surface coal mining operation permit, pursuant to regulations promulgated by the cabinet.
The public notice of the filing of an application shall be entitled “Notice of Intention to Mine” and shall be in a manner and form prescribed by the cabinet and shall include, though not be limited to, the following:
1. The name and address of the applicant;
2. The location, ownership, and boundaries of the proposed permit area.
A copy of the newspaper advertisement of the applicant’s “Notice of Intention to Mine” shall be filed with the cabinet and made a part of the complete application within a reasonable time after the last date of publication.
The cabinet shall notify various local government bodies, planning agencies, and sewage and water treatment authorities and water companies in the locality of the proposed operation notifying them of the applicant’s intention to mine the land area as set forth in the notice of intention to mine, and identifying the permit application number assigned by the cabinet and where a copy of the permit application may be inspected. The secretary shall promulgate regulations specifying the manner in which the agencies may comment on the application. Any comments put forward pursuant to this section shall immediately be forwarded by the cabinet to the applicant and shall be made available to the public at the same places as the permit application is available.

HISTORY: Enact. Acts 1976, ch. 322, § 1; 1980, ch. 62, § 4; 1980, ch. 377, § 1; 1992, ch. 429, § 4, effective July 14, 1992; 2017 ch. 142, § 1, effective June 29, 2017.

Compiler’s Notes.

For effective date of 1980 amendments to this section, see Compiler’s Notes following KRS 350.010 and 350.035 .

350.057. Coal exploration operations.

The secretary of the Energy and Environment Cabinet shall promulgate regulations for the permitting and performance of coal exploration operations which substantially disturb the natural land surface. The regulations shall include at a minimum provisions for giving notice of intention to explore including a description of the area to be explored and the period of supposed exploration and provisions for reclamation, as required by this chapter, of all land disturbed in the exploration.
Any requirements of public access to records set forth in the Kentucky Revised Statutes to the contrary notwithstanding, the secretary shall order that confidential trade secrets or privileged commercial or financial information in the possession of the cabinet or pursuant to a coal exploration permit remain confidential.
1. No person or operator shall remove more than twenty-five (25) tons of coal by coal exploration operations without first obtaining a coal exploration permit from the cabinet.
2. No person or operator conducting coal exploration operations in which more than twenty-five (25) tons of coal are removed shall knowingly and willfully receive, transport, sell, convey, exchange, transfer, trade, donate, deliver, or otherwise convert to a commercial use any coal extracted during the course of the operations, except with the prior written approval of the cabinet for the purpose of testing or determining the properties of the coal.
All persons or operators conducting operations pursuant to this section shall be subject to the applicable provisions of KRS 350.990 .

History. Enact. Acts 1980, ch. 62, § 6; 1990, ch. 205, § 3, effective July 13, 1990; 1990, ch. 212, § 3, effective July 13, 1990; 2010, ch. 24, § 1878, effective July 15, 2010.

Compiler’s Notes.

For effective date of this section as enacted by Acts 1980, ch. 62, see Compiler’s Notes following KRS 350.010 .

350.060. Permit requirement — Contents of application — Fee — Bond — Administrative regulations — Successive renewal — Auger mining of previously mined area — Exempt operations.

1. No person shall engage in surface coal mining and reclamation operations without having first obtained from the cabinet a permit designating the area of land affected by the operation. Permits shall authorize the permittee to engage in surface coal mining and reclamation operations upon the area of land described in his application for a period not to exceed five (5) years. However, if an applicant demonstrates that a specified longer term is reasonably needed to obtain necessary financing for equipment and the opening of the operation and if the application is full and complete for the specified longer term, the cabinet may grant a permit for the longer term. No mining shall be permitted beyond the time period obligations of the initial or extended bond coverage.
2. Subject to the provisions of KRS 350.010(1) and (2), no person shall knowingly and willfully receive, transport, sell, convey, transfer, trade, exchange, donate, purchase, deliver, or in any way derive benefit from coal removed from any surface mining operation which does not have a permit as required under this section.
No permit or revision application shall be approved unless the application affirmatively demonstrates, and the cabinet finds in writing on the basis of the information set forth in the application or from information otherwise available, that the permit application is accurate and complete and that all the requirements of this chapter have been complied with.
A person desiring a permit to engage in surface coal mining operations shall file an application which shall state:
1. The location and area of land to be affected by the operation, with a description of access to the area from the nearest public highways;
2. The owner or owners of the surface of the area of land to be affected by the permit and the owner or owners of all surface area adjacent to any part of the affected area;
3. The owner or owners of the coal to be mined;
4. The source of the applicant’s legal right to mine the coal on the land affected by the permit;
5. The permanent and temporary post office addresses of the applicant, which shall be updated immediately if changed at any point prior to final bond release;
6. Whether the applicant or any person, partnership, or corporation associated with the applicant holds or has held any other permits under this chapter, and an identification of the permits;
7. The names and addresses of every officer, partner, director, or person performing a function similar to a director of the applicant, together with the names and addresses of any individual owning of record ten percent (10%) or more of any class of voting stock of the applicant, and whether the applicant or any person is subject to any of the provisions of subsection (3) of KRS 350.130 and he shall so certify. The permittee shall submit updates of this information as changes occur or as otherwise provided by administrative regulation; however, failure to submit updated information shall constitute a violation of this chapter only upon the permittee’s refusal or failure to timely submit the information to the cabinet upon request. Upon receipt of updated information satisfactory to the cabinet, the cabinet shall promptly update its computer system containing the information;
8. A listing of any violations of this chapter, Public Law 95-87, and any law, rule, or regulation in effect for the protection of air or water resources incurred by the applicant in connection with any surface coal mining and reclamation operation during the three (3) year period prior to the date of an application. The list shall indicate the final resolution of the violations; and
9. Whether the area of land to be affected by the operation has been previously mined and is in compliance with current reclamation standards, and, if not, identify the needed reclamation work.
The application for a permit shall be accompanied by an official document, and an affidavit attesting to the document’s authenticity, which will evidence what particular business entity the applicant is, whether a foreign or domestic corporation, a partnership, an entity doing business as another, or, if sole proprietorship, an affidavit so stating.
The application for a permit shall be accompanied by copies, in numbers satisfactory to the cabinet, of a United States Geological Survey topographic map or other map acceptable to the cabinet on which the applicant has indicated the location of the operation, the course which would be taken by drainage from the operation to the stream or streams to which the drainage would normally flow, the name of the applicant and date, and the name of the person who located the operation on the map.
The application for a permit shall be accompanied by copies, in numbers satisfactory to the cabinet, of an enlarged United States Geological Survey topographic map or other map acceptable to the cabinet meeting the requirements of paragraphs (a) to (i) of this subsection. The map shall:
1. Be prepared and certified by a professional engineer registered under the provisions of KRS Chapter 322. The certification shall be in the form as provided in subsection (8) of this section, except that the engineer shall not be required to certify the true ownership of property under paragraph (d) of this subsection;
2. Identify the area to correspond with the application;
3. Show adjacent deep mining;
4. Show the boundaries of surface properties and names of owners of the affected area and adjacent to any part of the affected area;
5. Be of a scale of 1:24,000 or larger;
6. Show the names and locations of all streams, creeks, or other bodies of public water, roads, buildings, cemeteries, oil and gas wells, and utility lines on the area of land affected within three hundred (300) feet of an as-drilled oil or gas well, but as-drilled locations of oil and gas wells shall be certified only by a licensed surveyor and the well locations shall be entered in coordinates in feet units, using NAD 83, with Single Zone Projection, as those terms are defined in KRS 350.010 ;
7. Show by appropriate markings the boundaries of the area of land affected, the cropline of the seam or deposit of coal to be mined, and the total number of acres involved in the area of land affected;
8. Show the date on which the map was prepared, the north point, and the quadrangle name; and
9. Show the drainage plan on and away from the area of land affected. The plan shall indicate the directional flow of water, constructed drainways, natural waterways used for drainage, and the streams or tributaries receiving the discharge.
Each application shall include a determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site, with respect to the hydrologic regime, quantity and quality of water in surface and groundwater systems, including the dissolved and suspended solids under seasonal flow conditions, and the collection of sufficient data for the mine site and surrounding areas so that an assessment can be made by the cabinet of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area and particularly upon water availability. This determination shall not be required until the time hydrologic information on the general area prior to mining is made available from an appropriate federal or state agency. The permit shall not be approved until the information is available and is incorporated into the application.
All certifications required by this chapter to be made by professional engineers shall be done in the form prescribed by the cabinet and shall be reasonably specific as to the work being certified. The cabinet may reject any document or map as incomplete if it is not properly certified.
In addition to the information and maps required above, each application for a permit shall be accompanied by detailed plans or proposals showing the method of operation; the manner, time, and distance for backfilling; grading work; and a reclamation plan for the affected area, which proposals shall meet the requirements of this chapter and administrative regulations adopted pursuant thereto.
The application for a permit shall be accompanied by proof that the applicant has public liability insurance coverage satisfactory to the cabinet for the surface mining and reclamation operations for which the permit is sought, or proof that the applicant has satisfied self-insurance requirements as provided by administrative regulations of the cabinet. The coverage shall be maintained in full force and effect during the terms of the permit and any permit renewal, and until reclamation operations are completed.
A basic fee set by administrative regulation, and bearing a reasonable relationship to the cost of processing the permit application but not to exceed two thousand five hundred dollars ($2,500), plus a fee set by administrative regulation but not to exceed seventy-five dollars ($75), for each acre or fraction thereof of the area of land to be affected by the operation, shall be paid before the permit required in this section shall be issued; provided that if the cabinet approves an incremental bonding plan submitted by the applicant, the acreage fees may be paid in increments and at times corresponding to the approved plan. The applicant shall file with the cabinet a bond payable to the Commonwealth of Kentucky with surety satisfactory to the cabinet in the sum to be determined by the cabinet for each acre or fraction thereof of the area of land affected, with a minimum bond of ten thousand dollars ($10,000), conditioned upon the faithful performance of the requirements set forth in this chapter and of the administrative regulations of the cabinet. The cabinet shall forfeit the entire amount of the bond for the permit area or increment in the event of forfeiture. In determining the amount of the bond, the cabinet shall take into consideration the character and nature of the overburden; the future suitable use of the land involved; the cost of backfilling, grading, and reclamation to be required; and the probable difficulty of reclamation, giving consideration to such factors as topography, geology, hydrology, and revegetation potential. The bond amount shall initially be computed to be sufficient to ensure completion of reclamation if the work had to be performed by the cabinet in the event of forfeiture. Within thirty (30) days of a cabinet determination of a need to change a bond protocol currently in use, the cabinet shall immediately promulgate administrative regulations setting forth bonding requirements, including but not limited to requirements for the amount, duration, release, and forfeiture of bonds. Bond protocols shall not be exempt from KRS 13A.100 and shall be established by promulgating administrative regulations under KRS Chapter 13A. Failure to include the formula for establishing the amount of the bond in any administrative regulation on bonding requirements shall be deemed a failure to comply with the prescriptions of this section and the administrative regulation shall automatically be declared deficient in accordance with KRS Chapter 13A.
The cabinet shall promulgate administrative regulations for the permitting of operations with surface effects of underground mining and other surface coal mining and reclamation operations consistent with this section. The cabinet shall recognize the distinct differences between the surface effects of underground mining and strip mining, as also provided in KRS 350.151 , in promulgating permitting requirements for these operations.
Any valid permit issued pursuant to this chapter shall carry with it the right of successive renewal upon expiration with respect to areas within the boundaries of the existing permit. An applicant for renewal of a permit shall pay a basic fee set by regulation, not to exceed seven hundred fifty dollars ($750). The holders of the permit may apply for renewal and the renewal shall be issued, provided that on application for renewal the burden shall be on the opponents of renewal, subsequent to the fulfillment of the public notice requirements of this chapter, unless it is established and written findings by the cabinet are made that:
1. The terms and conditions of the existing permit are not being satisfactorily met;
2. The present surface coal mining and reclamation operation is not in compliance with the environmental protection standards of this chapter;
3. The renewal requested substantially jeopardizes the applicant’s continuing responsibility on existing permit areas;
4. The applicant has not provided evidence that the performance bond in effect for the operation will continue in full force and effect for any renewal requested in the application as well as any additional bond the cabinet might require; or
5. Any additional revised or updated information required by the cabinet has not been provided.
  Prior to the approval of any renewal of permit, the cabinet shall provide notice to the appropriate public authorities.
If an application for renewal of a valid permit includes a proposal to extend the mining operation beyond the boundaries authorized in the existing permit, the portion of the application for renewal of a valid permit which addresses any new areas of surface disturbance shall be subject to the full standards applicable to new applications under this chapter.
Any permit renewal shall be for a term not to exceed the period of the original permit. Application for permit renewal shall be made at least one hundred twenty (120) days prior to the expiration of the valid permit.
Notwithstanding any of the provisions of this section, a permit shall terminate if the permittee has not commenced the surface coal mining operations covered by the permit within three (3) years of the issuance of the permit. However, the cabinet may grant reasonable extensions of time upon a showing that the extensions are necessary by reason of litigation precluding commencement of operations, or threatening substantial economic loss to the permittee, or by reason of conditions beyond the control and without the fault or negligence of the permittee. With respect to coal to be mined for use in a synthetic fuel facility or specific major electric generating facility, the permittee shall be deemed to have commenced surface mining operations at the time the construction of the synthetic fuel or generating facility is initiated.
Each application for a permit or revision for auger mining on a previously mined area shall contain information to describe the area to be affected, to show that the proposed method of operation will result in stable post-mining conditions, and reduce or eliminate adverse environmental conditions created by previous mining activities. If the cabinet determines that the affected area cannot be stabilized and reclaimed subsequent to augering or that the operation will result in an adverse impact to the proposed or adjacent area, the permit or revision shall not be issued. The cabinet shall, consistent with all applicable requirements of this chapter, issue a permit or revision if the applicant demonstrates that the proposed coal mining operations will provide for reduction or elimination of the highwall, or reduction or abatement of adverse impacts resulting from past mining activities, or stabilization or enhancement of a previously mined area. The cabinet shall insure that all reasonably available spoil material will be used to backfill the highwall to the extent practical and feasible; provided, however, that in all cases the holes be properly sealed and backfilled to a minimum of four (4) feet above the coal seam being mined.
All operations involving the loading of coal which do not separate the coal from its impurities, and which are not located at or near the mine site, shall be exempt from the requirements of this chapter.

HISTORY: Enact. Acts 1954, ch. 8, § 6; 1956 (1st Ex. Sess.), ch. 7, Art. VII, § 6; 1960, ch. 143, § 4; 1962, ch. 105, § 4; 1964, ch. 61, § 3; 1966, ch. 4, § 7; 1972, ch. 270, § 3; 1972 (1st Ex. Sess.), ch. 3, § 65; 1974, ch. 69, § 1; 1974, ch. 74, Art. III, § 13(7); 1974, ch. 258, § 1; 1974, ch. 373, § 2; 1976, ch. 291, § 1; 1978, ch. 330, § 23, effective May 3, 1978; 1978, ch. 332, § 4, effective June 17, 1978; 1980, ch. 62, § 5, effective March 21, 1980; 1980, ch. 377, § 3, effective March 21, 1980; 1982, ch. 266, § 10, effective July 15, 1982; 1982, ch. 283, § 3, effective April 2, 1982; 1984, ch. 111, § 144, effective July 13, 1984; 1984, ch. 145, § 2, effective March 28, 1984; 1984, ch. 358, § 1, effective July 13, 1984; 1986, ch. 448, § 1, effective July 15, 1986; 1988, ch. 294, § 1, effective July 15, 1988; 1988, ch. 415, § 2, effective July 15, 1988; 1988, ch. 417, § 1, effective July 15, 1988; 1990, ch. 210, § 1, effective July 13, 1990; 1990, ch. 212, § 4, effective July 13, 1990; 1992, ch. 429, § 5, effective July 14, 1992; 1998, ch. 382, § 1, effective July 15, 1998; 2006, ch. 37, § 1, effective July 12, 2006; 2009, ch. 79, § 11, effective June 25, 2009; 2010, ch. 103, § 1, effective April 8, 2010; 2011, ch. 102, § 1, effective June 8, 2011; 2017 ch. 142, § 2, effective June 29, 2017.

Compiler’s Notes.

For effective date of amendments by Acts 1980, ch. 62 and Acts 1982, ch. 283, see Compiler’s Notes following KRS 350.010 . For effective date of amendment by Acts 1980, ch. 377, see Compiler’s Notes following KRS 350.035 .

Public Law 95-87, referred to in subdivision (3)(h) of this section, is codified as 30 USCS §§ 1201-1328.

Legislative Research Commission Note.

(6/25/2009). Under KRS 7.136(1)(h), the Reviser of Statutes corrected a manifest clerical or typographical error in subsection (6)(f) of this statute by inserting the word “with” before “Single Zone Projection,” consistent with the language used in 2009 Ky. Acts ch. 79, sec. 3.

NOTES TO DECISIONS

1. Constitutionality.
2. Broad Form Deed.
3. Forfeiture of Bond.
4. Permit.
5. Performance Bond Liability.
6. Cabinet’s Jurisdiction.
7. Fine Improper.

1.Constitutionality.

Since former subsection (8) of this section, which delegated to private individuals who owned interests in surface estates the right to undo the environmental conservation purposes of this chapter by granting their consent to surface mining on their land, had the effect of changing the relative legal rights and economic bargaining positions of such private parties under their contracts rather than achieving any public purpose, such former subsection was not justified as a legitimate exercise of police power and was unconstitutional. Department for Natural Resources & Environmental Protection v. No. 8 Limited of Virginia, 528 S.W.2d 684, 1975 Ky. LEXIS 73 ( Ky. 1975 ).

2.Broad Form Deed.

3.Forfeiture of Bond.

Where the language of a surety agreement clearly stated that all reclamation requirements had to be performed, otherwise the entire bonded sum would be forfeited, the Department and the trial court did not err in forfeiting the total bond when the surface mining permittee failed to comply with the reclamation standards. American Druggists Ins. Co. v. Commonwealth Dep't for Natural Resources & Environmental Protection, 670 S.W.2d 485, 1983 Ky. App. LEXIS 374 (Ky. Ct. App. 1983).

The applicant’s failure to disclose, in the permit application, a previous association with a company that had been declared in default did not require forfeiture of the bond required by subsection (11) of this section, as no bond is required to be posted until the permit is approved. Natural Resources & Environmental Protection Cabinet v. Integrity Ins. Co., 759 S.W.2d 67, 1988 Ky. LEXIS 67 ( Ky. 1988 ), aff'd on other grounds, Integrity Ins. Co. v. Natural Resources & Envtl. Protection Cabinet, 1988 Ky. App. LEXIS 45 (Ky. Ct. App. Mar. 4, 1988).

4.Permit.

There was substantial evidence the defendant engaged in surface coal mining before a permit was issued where mine inspectors discovered that land had been disturbed, where a 20 x 200-300 foot road “cut” onto the proposed mine site, and where inspectors testified that “brushing”, (i.e. removal of timber and undergrowth) had occurred. Commonwealth v. Mic-Bar, Inc., 765 S.W.2d 585, 1988 Ky. App. LEXIS 208 (Ky. Ct. App. 1988).

Kentucky Energy and Environment Cabinet (Cabinet) properly denied a coal company’s application to renew the company’s coal mining permit because (1) a bona fide property dispute that the Cabinet could not adjudicate existed over the company’s right of entry to the subject land, due to the expiration of the company’s lease pursuant to a prior judgment, and (2) the Cabinet had no legal authority to adjudicate the property dispute, which could only be adjudicated by the court which issued the prior judgment. Ky. S. Coal Corp. v. Ky. Energy & Env't Cabinet Formerly the Envtl. & Pub. Prot. Cabinet, 396 S.W.3d 804, 2013 Ky. LEXIS 86 ( Ky. 2013 ).

5.Performance Bond Liability.

Pursuant to KRS 304.36-080 (1)(b), the Kentucky Insurance Guaranty Association (KIGA) becomes liable for reclamation performance bond where surface mining permittee fails to obtain adequate bond after surety’s insolvency. However, KRS 304.36-080 (1)(b) limits KIGA’s obligation where the permittee violates applicable statutes and regulations other than the performance bond requirements. In most cases, KIGA will only become liable if a permittee fails to obtain a new performance bond and fails to properly reclaim the mining site. Kentucky Ins. Guar. Ass'n v. Natural Resources & Envtl. Protection Cabinet, 885 S.W.2d 315, 1994 Ky. App. LEXIS 50 (Ky. Ct. App. 1994).

In a bankruptcy proceeding, the Kentucky Natural Resources and Environmental Protection Cabinet’s enforcement of reclamation bonding requirements regarding surface mining permits would not violate the automatic stay; the police power exception to the automatic stay under 11 USCS § 362(b)(4) applied to the threatened actions. Bickford v. Lodestar Energy, Inc., 310 B.R. 70, 2004 U.S. Dist. LEXIS 5097 (E.D. Ky. 2004 ).

6.Cabinet’s Jurisdiction.

7.Fine Improper.

Cited:

Wombles v. Commonwealth, 328 S.W.2d 146, 1959 Ky. LEXIS 91 ( Ky. 1959 ); Commonwealth ex rel. Department of Conservation v. Wombles, 346 S.W.2d 299, 1961 Ky. LEXIS 301 ( Ky. 1961 ); Gibbons v. Tenneco, Inc., 710 F. Supp. 643, 1988 U.S. Dist. LEXIS 15902 (E.D. Ky. 1988 ).

Opinions of Attorney General.

The lowering of the required minimum bond for operators can only be effected on a case-by-case basis and with the utilization of the precise criteria outlined in subsection (9) (now subsection (11)) of this section. In such manner only can the legislative intent be implemented and no lowering of the bond as a general policy can be authorized. OAG 68-494 .

Before a permit to strip mine is issued or denied the Department for Natural Resources and Environmental Protection (now Natural Resources and Environmental Protection Cabinet) must make a determination as to whether or not the quality of the environment will be degraded or altered, all other provisions of this section and KRS 350.085 must be met and consideration should be given to whether proper reclamation practices can be utilized. OAG 74-502 .

Research References and Practice Aids

Journal of Mineral Law & Policy.

Comments, Akers v. Baldwin: The Broad Form Deed Dilemma Revisited, 4 J. M. L. & P. 213 (1988).

Kentucky Bench & Bar.

Glover, Digesting the Federal Strip Mine Act, Vol. 42, No. 1, Jan. 1978 Ky. Bench & B. 25.

Kentucky Law Journal.

Notes, Economic, Social and Legal Aspects of Coal Transportation in Kentucky, 64 Ky. L.J. 601 (1975-76).

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Randall and Pagoulatos, Surface Mining and Environmental Quality: An Economic Perspective, 64 Ky. L.J. 549 (1975-76).

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

Northern Kentucky Law Review.

Note, Ward v. Harding: Kentucky Strips Miners of Dominate Rights, Burying a Century of Litigation, 21 N. Ky. L. Rev. 649 (1994).

350.062. Data included in permit application — Contemporaneous reclamation — Subsoil augmentation — Cabinet to compile hydrologic data — Abandoned land projects classified as government financed construction.

Applicants for permits may submit such hydrologic information on the general area prior to mining as may be made available by the cabinet pursuant to subsection (7) of this section and employ the information in any reasonable mathematical water modeling formulation, logical extrapolation from existing data on the same or similar watershed, or other reasonable predictive techniques which regionalize and synthetize historical, geologic, and hydrologic parameters on the general area to determine surface ground water conditions, together with site specific data in determining the probable hydrologic consequences of the proposed mining.
Climatological data, average seasonable precipitation, average direction and velocity of prevailing winds, or seasonable temperature ranges shall be submitted by the applicant only when requested by the cabinet on a site-by-site basis.
A statement of the result of test borings or core samplings from the permit area, including logs of the drill holes; the thickness of the coal seam found; an analysis of the chemical properties of the coal; the sulfur content of any coal seam to be disturbed; chemical analysis of potentially acid or toxic forming sections of the overburden; or chemical analysis of the stratum lying immediately underneath the coal seam to be mined, may be waived by the cabinet with respect to the specific application by a written determination that the requirements are unnecessary.
Applicants may submit fish and wildlife information within the proposed mine plan area and adjacent areas in the form of published data or data otherwise available from state and federal fish and wildlife management, conservation, or regulatory agencies and site-specific information unless the cabinet requires the information based on reasonable grounds to believe that the available data are inaccurate.
The cabinet shall provide in its regulations that notwithstanding a permittee’s detailed estimated timetable for the reclamation plan in the application, as long as the permittee or operator is in compliance with the contemporaneous reclamation requirements of its regulations, a failure to adhere to the timetable shall not be an independent basis for a violation.
The cabinet shall provide in its regulations establishing environmental protection performance standards that a permittee may augment subsoil strata with chemical or organic soil supplement materials produced on site or elsewhere for the purpose of complying with the topsoiling requirements of this chapter if topsoil is of insufficient quality or of poor quality for sustaining vegetation.
The cabinet shall compile by September 1, 1980, available background hydrologic information concerning the general areas in which surface coal mining has or may be conducted in the Commonwealth as may be available in standard published form, research reports, studies or data compiled by other state or federal agencies including state-supported colleges and universities, the cabinet’s own files, including, at a minimum, quality and quantity of water in surface and ground water systems; minimum, maximum, and average discharge quantities at peak and critical low flow and seasonal variations; dissolved and suspended solids, acidity, pH, iron, and manganese under seasonal flow conditions; and any other background hydrologic information required by the cabinet concerning the hydrologic regime of a general area prior to mining for purposes of making a determination of the probable consequences of the mining; and shall make available to an operator the data and information concerning general areas within ten (10) days of a request in writing.
The cabinet shall classify all abandoned mine land program reclamation projects as government financed construction and not surface coal mining operations and the extraction of coal as an incidental part of the projects shall be exempt from the requirements of this chapter and regulations promulgated pursuant thereto.
The cabinet shall not arbitrarily deny or unreasonably delay any permit application based upon the information required in this section if the registered professional engineer or geologist or other qualified person has utilized or developed a procedure or analytical method that differs from departmental technical guidelines; provided, that the registered professional engineer or geologist or other qualified person shall design a sampling and testing program based on all available information and on a site-specific basis. The reasons for denial shall be given in writing and shall be reasonably specific. The requirements contained in subsection (3) of this section may be waived for locations where the cabinet determines that adequate information is already available to the cabinet.

History. Enact. Acts 1980, ch. 209, § 2; 1982, ch. 283, § 4, effective April 2, 1982; 1992, ch. 429, § 6, effective July 14, 1992.

Compiler’s Notes.

For effective date of the 1980 enactment of this section, see Compiler’s Notes following KRS 350.025 .

For effective date of amendment by Acts 1982, ch. 283, see Compiler’s Notes following KRS 350.010 .

350.063. Duty of applicant to meet and confer with well operator if permit will disturb access roads.

Prior to the issuance of a permit, if the operation will disturb any roads used as access to an oil or gas well or other oil and gas facility, the permit applicant shall certify that he has met and conferred with, or offered to meet and confer with, the well operator as to the disturbance.

History. Enact. Acts 1992, ch. 348, § 1, effective July 14, 1992.

350.064. Reclamation bond to be filed by applicant.

After a surface coal mining and reclamation permit application has been approved but before the permit is issued, the applicant shall file with the regulatory authority, on a form prescribed and furnished by the regulatory authority, a reclamation bond for performance payable, as appropriate, to the state, and conditional upon faithful performance of all the requirements of this chapter and the permit. The reclamation bond shall cover that area of land within the permit area upon which the applicant will initiate and conduct surface coal mining and reclamation operations within the initial term of the permit. As succeeding increments of surface coal mining and reclamation operations are to be initiated and conducted within the permit area, the permittee shall file with the cabinet an additional bond or bonds to cover the increments in accordance with this section.
The cabinet may approve an alternative system that will achieve the objectives and purposes of the bonding program pursuant to this section.

HISTORY: Enact. Acts 1980, ch. 209, § 4; 1988, ch. 417, § 2, effective July 15, 1988; 1992, ch. 429, § 7, effective July 14, 1992; 2018 ch. 85, § 3, effective July 14, 2018.

Compiler’s Notes.

For effective date of the 1980 enactment of this section, see Compiler’s Notes following KRS 350.025 .

NOTES TO DECISIONS

1.Liability for Performance Bond.

Cited:

Natural Resources & Envtl. Protection Cabinet v. Kentucky Ins. Guar. Ass’n, 972 S.W.2d 276, 1997 Ky. App. LEXIS 47 (Ky. Ct. App. 1997).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

350.066. Bond posting not required until permit application approved.

All bonds required to be filed in accordance with KRS 350.060 and 350.064 shall not be required to be filed until the applicant for the permit has been notified in writing by the cabinet that the application for the permit has been approved, with the exception of the bond.

History. Enact. Acts 1982, ch. 55, § 1, effective March 9, 1982.

NOTES TO DECISIONS

1.Forfeiture of Bond.

The applicant’s failure to disclose, in the permit application, a previous association with a company that had been declared in default did not require forfeiture of the bond required by subsection (11) of KRS 350.060 , as no bond is required to be posted until the permit is approved. Natural Resources & Environmental Protection Cabinet v. Integrity Ins. Co., 759 S.W.2d 67, 1988 Ky. LEXIS 67 ( Ky. 1988 ), aff'd on other grounds, Integrity Ins. Co. v. Natural Resources & Envtl. Protection Cabinet, 1988 Ky. App. LEXIS 45 (Ky. Ct. App. Mar. 4, 1988).

350.068. Cancellation of surety.

A surety upon receipt of a copy of a notice of noncompliance for failure to maintain contemporaneous reclamation issued to its insured, may notify the insured by certified mail, return receipt requested, that surety on any area disturbed after thirty (30) days from the effective date of the surety’s notice may be refused unless the violation is abated. A copy of such notice shall be sent by certified mail, return receipt requested, to the cabinet, and shall become effective upon approval by the cabinet. Within thirty (30) days of receipt of a notice of cancellation, the cabinet shall either accept a suitable substitute bond for the canceled area or shall amend the permit to delete the unbonded acreage or shall revoke the permit for lack of a bond. Proof of the abatement shall be documented by notice to the surety from the cabinet. Nothing contained herein shall be construed to relieve the surety of its liability for areas disturbed within the thirty (30) day notice period. The surety shall remain obligated for the full extent of the bond for reclamation of all areas disturbed prior to the cabinet’s approval of the cancellation.

History. Enact. Acts 1984, ch. 281, § 1, effective July 13, 1984.

350.069. Stringency of regulations.

To make the state program no more stringent than the federal program, effective October 1, 1984, the cabinet shall, within thirty (30) days of publication of final rulemaking in the Federal Register, promulgate those regulations that are consistent with and no less effective than the federal regulations promulgated pursuant to Public Law 95-87, the Surface Mining Control and Reclamation Act of 1977 and by having such regulations in full force and effect within sixty (60) days thereafter unless a public hearing is requested. In the event a public hearing is held, the regulations shall be implemented within thirty (30) days after the hearing.

History. Enact. Acts 1984, ch. 190, § 1, effective July 13, 1984.

Compiler’s Notes.

The Surface Mining Control and Reclamation Act of 1977, referred to herein, is compiled as 30 USCS §§ 1201 — 1328.

NOTES TO DECISIONS

1.Permit Issuance Upheld.

In limiting NEPA environmental analysis to health effects closely related to discharge of dredged or fill material into jurisdictional waters, finding no significant impact, and issuing surface mining permit, U.S. Army Corps of Engineers did not act arbitrarily and capriciously; Kentucky’s surface mining permitting program tracks federal requirements, and mitigation plan provisions requiring improvement of other streams were rationally designed. Kentuckians for the Commonwealth v. United States Army Corps of Eng'rs, 746 F.3d 698, 2014 FED App. 0046P, 2014 U.S. App. LEXIS 4267 (6th Cir. Ky. 2014 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Greenwell, On the Constitutionality of Kentucky’s Mineral Deed Act, 13 N. Ky. L. Rev. 219 (1986).

350.070. Permit revisions.

Any extensions of the area covered by the permit, except incidental boundary revisions, shall be made by application for another permit or an amendment to the permit.
For an amendment, the permittee shall file an application, map, and revised reclamation plan in the same form and with the same content as required for an original application under this chapter. He or she shall pay a basic fee set by regulation and bearing a reasonable relationship to the cost of processing the permit application, not to exceed one thousand seven hundred fifty dollars ($1,750), plus a fee set by regulation, not to exceed seventy-five dollars ($75), for each acre or fraction of an acre for the increase requested. He or she shall file with the cabinet a supplemental bond in the amount to be determined under the provisions of KRS 350.060(11) for each acre or fraction of an acre of the increase approved. This application shall be subject to all of the same requirements as an original application, including, but not limited to, the same public notice, review, and issuance or denial provisions.
If the cabinet approves a reduction in the acreage covered by the permit, it shall release the bond for each acre reduced, but the bond shall not be reduced below ten thousand dollars ($10,000). If the cabinet approves a reduction in acreage, it shall transfer the acreage fee for each acre reduced to acreage fees for subsequent permit applications by the permittee.
The cabinet shall promulgate regulations specifying the permit application information requirements and procedures, including notice and hearing, which shall apply depending on the scale or extent of a permit revision. Any revision which proposes significant alterations in the reclamation plan shall be subject to the notice and hearing requirements as set forth in the regulations of the cabinet. The applicant for a revision shall pay a basic fee set by regulation, not to exceed seven hundred fifty dollars ($750) for a minor revision and one thousand seven hundred fifty dollars ($1,750) for a major revision, plus a fee set by regulation not to exceed seventy-five dollars ($75), for each acre or fraction of an acre included in an incidental boundary revision.
Incidental boundary revisions shall be deemed minor revisions if they:
1. Do not exceed ten percent (10%) of the initial permit acreage;
2. Are contiguous with the permit acreage;
3. Are within the same watershed as the initial permit acreage;
4. Are required for an orderly continuation of the mining operation;
5. Cover the same coal seam or seams as in the permit;
6. Would only involve lands for which the hydrologic and geologic data and the probable hydrologic consequences analysis contained in the permit are applicable to the proposed incidental boundary revision;
7. Would not involve properties designated as unsuitable for mining, or any properties eligible for listing on the National Register of Historic Places;
8. Would not involve any of the special categories of mining listed in 30 C.F.R. Part 785 including, but not limited to, prime farmland and coal preparation plants, unless the approved permit already includes the relevant category;
9. Would not constitute a change in the method of mining; and
10. Would be reclaimed in conformity with the initial reclamation plan.
For the purpose of this section, the maximum acreage allowed to be added by an incidental boundary revision shall be as follows:
1. Surface operations shall be allowed up to twenty (20) acres;
2. Surface disturbances of underground mines including, but not limited to, face-up areas and haul roads, shall be allowed up to twenty (20) acres; and
3. The cumulative acreage added by successive revisions shall not exceed the above limitations.

HISTORY: Enact. Acts 1954, ch. 8, § 7; 1962, ch. 105, § 5; 1966, ch. 4, § 11; 1972, ch. 270, § 4; 1974, ch. 69, § 2; 1974, ch. 74, Art. III, § 13(7); 1978, ch. 330, § 24, effective May 3, 1978; 1978, ch. 332, § 5, effective June 17, 1978; 1980, ch. 62, § 7; 1990, ch. 210, § 2, effective July 13, 1990; 1990, ch. 232, § 1, effective July 13, 1990; 1990, ch. 308, § 1, effective July 13, 1990; 1992, ch. 429, § 8, effective July 14, 1992; 1994, ch. 301, § 1, effective July 15, 1994; 2010, ch. 103, § 2, effective April 8, 2010; 2018 ch. 85, § 4, effective July 14, 2018.

Compiler’s Notes.

For effective date of 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

Research References and Practice Aids

Kentucky Law Journal.

Schneider, Strip Mining in Kentucky, 59 Ky. L.J. 652 (1971).

350.075. Special permits for remining of previously affected areas — Administrative regulations.

In order to bring about a more desirable land use or promote the public interest and the environment, the cabinet may, at its discretion, issue special permits for the remining of previously affected areas, including but not limited to, secondary coal recovery operations, such as coal extraction from coal refuse piles and coal recovery from slurry ponds. Such permits may provide for alternate requirements for revegetation, topsoil, bonding, premining data collection requirements, water quality requirements where there are pre-existing pollutional discharges resulting from previous mining, and other provisions which may encourage remining and secondary coal recovery.
The cabinet is hereby authorized to promulgate administrative regulations as necessary in order to implement the provisions of this section.

History. Enact. Acts 1986, ch. 266, § 1, effective July 15, 1986; 2006, ch. 37, § 2, effective July 12, 2006.

350.080. Procedure for obtaining approval of other mining operations — Deferral of reclamation.

A permittee may conduct other mining operations from premises covered by a strip mining permit with approval of the cabinet, subject to the provisions of KRS Chapters 351 and 352. In applying to the cabinet for the approval, he shall furnish the cabinet with a revised copy of the map of the area on which his permit was based on which he shall designate other mining locations, the location of outside haulageways, and other parts of the area necessary to the conduct of other mining operations. The cabinet may authorize the permittee to defer the reclamation of the area covered by the operations during such time as other bona fide mining operations are carried out. The bond covering that area shall remain in effect until reclamation of it has been completed by the permittee under a plan approved by the cabinet.

History. Enact. Acts 1954, ch. 8, § 8; 1972 (1st Ex. Sess.), ch. 3, § 66; 1992, ch. 429, § 9, effective July 14, 1992.

350.085. Denial of permits and operations — Deletion of land areas.

No application for a permit and no operation shall be approved or allowed by the cabinet if there is found on the basis of the information set forth in the application that the requirements of this chapter or administrative regulations will not be observed or that there is not probable cause to believe that the proposed method of operation, backfilling, grading, or reclamation of the affected area can be carried out consistent with the purpose of this chapter.
If the cabinet finds that the overburden on any part of the area of land described in the application for a permit is such that experience in the Commonwealth with a similar type of operation upon land with similar overburden shows that substantial deposition of sediment in stream beds, landslides, or acid water pollution cannot feasibly be prevented, the cabinet may delete the part of the land described in the application upon which that overburden exists.
Subject to valid existing rights, no surface coal mining operations except those which existed on or before August 4, 1977, shall be permitted within three hundred (300) feet from any occupied dwelling unless waived by the owner, nor within three hundred (300) feet of any public building, school, church, community, or institutional building, public park, or within one hundred (100) feet of a cemetery. The cabinet shall not issue a permit if it finds that the operation will constitute a hazard to or do physical damage to a dwelling house, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, or other public property. The cabinet shall delete the areas from the permit application or operation.
Subject to valid existing rights, no surface coal mining operations except those which existed on or before August 4, 1977, shall be permitted within one hundred (100) feet of the outside right-of-way line of any public road, except where mine access roads or haulage roads join the right-of-way line. The cabinet shall permit the roads to be relocated or the area affected to lie within one hundred (100) feet of the road if, after public notice and opportunity for public hearing in the locality, a written finding is made that the interest of the public and the affected land owner will be protected, and shall not approve the application for a permit where the surface coal mining operation will adversely affect a wild river established pursuant to KRS Chapter 146, a state park or place listed on the National Register of Historic Places unless adequate screening and other measures as approved by the cabinet are incorporated into the permit application.
Subject to valid existing rights, no surface coal mining operations except those which existed on August 4, 1977, shall be permitted on any privately owned lands within the boundaries of units of the National Park System, the National Wildlife Refuge Systems, 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 and national recreation areas designated by Act of Congress.
If based on the information provided pursuant to KRS 350.060(3)(h) and other relevant information, the cabinet finds that any surface coal mining and reclamation operation owned or controlled by the applicant is currently in violation of this chapter or other requirements listed pursuant to KRS 350.060(3)(h), the cabinet shall not issue the permit or permit renewal until the applicant submits proof satisfactory to the cabinet that the violation has been corrected or is in the process of being corrected. It shall be grounds to deny a permit or permit renewal if the cabinet, based on any information available to it and after a hearing, makes a finding that the applicant, or the operator specified in the application has demonstrated a pattern of willful violations pursuant to KRS 350.130(3).
The prohibition of subsection (6) of this section shall not apply to a permit applicant with a violation resulting from an unanticipated event or condition at a surface coal mining operation on lands eligible for and under a permit for remining held by the applicant. As used in this subsection, the term “violation” has the same meaning as the term has under subsection (6). After September 30, 2004, the period of authority of this subsection shall be coincident with the period of authority of sec. 510(e) of Pub. L. No. 95-87, the “Surface Mining Control and Reclamation Act of 1977,” as amended, 30 U.S.C. sec. 1260(e) .

History. Enact. Acts 1966, ch. 4, § 10; 1972 (1st Ex. Sess.), ch. 3, § 67; 1974, ch. 69, § 3; 1974, ch. 74, Art. III, § 13(7); 1978, ch. 330, § 16, effective May 3, 1978; 1980, ch. 62, § 8; 1990, ch. 210, § 3, effective July 13, 1990; 1994, ch. 172, § 2, effective July 15, 1994; 2005, ch. 114, § 1, effective March 18, 2005.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

Section 5(a) of the Wild and Scenic Rivers Act, referred to herein, is compiled as 16 USCS § 1276.

NOTES TO DECISIONS

1. Authority of Cabinet.
2. Due Process.
3. Environmental Protection.
4. Waiver.
5. Hearing.

1.Authority of Cabinet.

The department (now cabinet) can neither add to the requirements established by the legislature for the issuance of a permit nor can it exercise authority not vested in it. Department for Natural Resources & Environmental Protection v. Stearns Coal & Lumber Co., 563 S.W.2d 471, 1978 Ky. LEXIS 338 ( Ky. 1978 ).

2.Due Process.

Where the denial of a coal company’s application for a strip mine permit is arbitrary and cannot stand as a valid exercise of the police power, the denial of the permit takes the property of the company without compensation and is a violation of both the Federal and State Constitutions. Department for Natural Resources & Environmental Protection v. Stearns Coal & Lumber Co., 563 S.W.2d 471, 1978 Ky. LEXIS 338 ( Ky. 1978 ).

3.Environmental Protection.

Any action taken pursuant to the strip mining legislation must stand as an environmental conservation measure. Department for Natural Resources & Environmental Protection v. Stearns Coal & Lumber Co., 563 S.W.2d 471, 1978 Ky. LEXIS 338 ( Ky. 1978 ).

4.Waiver.

The waiver of a nonoccupant/co-owner of a dwelling is not sufficient as a matter of law to satisfy subsection (3) of this section. Smith v. Natural Resources & Environmental Protection Cabinet, 712 S.W.2d 951, 1986 Ky. App. LEXIS 1113 (Ky. Ct. App. 1986).

The waiver required by subsection (3) of this section is intended to protect the person who will be most affected by the surface mining; this will usually be the owner. Smith v. Natural Resources & Environmental Protection Cabinet, 712 S.W.2d 951, 1986 Ky. App. LEXIS 1113 (Ky. Ct. App. 1986).

5.Hearing.

Where the occupant/co-owner sought an administrative hearing to determine whether the nonoccupant/co-owner could execute a waiver sufficient under subsection (3) of this section, the request for an administrative hearing was not a question of adjudicating property rights, but a question of adequate compliance with a statutory provision; therefore, the Natural Resources and Environmental Protection Cabinet erred in denying a formal administrative hearing. Smith v. Natural Resources & Environmental Protection Cabinet, 712 S.W.2d 951, 1986 Ky. App. LEXIS 1113 (Ky. Ct. App. 1986).

Cited:

Black Energy Mining, Inc. v. Natural Resources & Environmental Protection Cabinet, 767 S.W.2d 334, 1989 Ky. App. LEXIS 2 (Ky. Ct. App. 1989).

Opinions of Attorney General.

The burden of establishing that the proposed operation will in fact be so conducted as not to offend the proscriptions and purposes expressly set forth in KRS 350.020 and this section is upon the operator who applies for a permit. OAG 70-563 .

The Department (now Cabinet) may deny, withhold, suspend or modify a permit, including the deletion of the offending portions of land, where the operation falls within the contemplation of this chapter. OAG 70-563 .

The Department (now Cabinet) shall not issue a permit where the “experience in the Commonwealth with a similar type of operation upon land with similar overburden” demonstrates that landslides, water pollution and deposition of sediment will occur regardless of whether applicants comply with the specific provision of this chapter and the Department’s (now Cabinet’s) regulations. OAG 70-563 .

The granting of permits in the first instance does not prevent the state from revoking those permits if it is determined subsequently that the permits were improvidently granted. OAG 70-563 .

This section applies to the control of the utilization of overloaded or oversized coal trucks in the movement of applicants’ coal on the public highways. OAG 70-563 .

Robinson Forest must be considered as public property within the terms of this section prohibiting strip mining within 100 feet of the property. OAG 71-406 .

The Department (now Cabinet) may, upon proper consideration and review of the application, including consideration of the possible adverse effect on Robinson Forest, issue a permit which would allow the operator on the property adjoining Robinson Forest to auger coal up to 25 feet from the property line of Robinson Forest so long as the operator does not destroy any part of the surface within 100 feet of the boundary of this public property. OAG 73-249 .

Before a permit to strip mine is issued or denied the Department for Natural Resources and Environmental Protection (now Natural Resources and Environmental Protection Cabinet) must make a determination as to whether or not the quality of the environment will be degraded or altered, all other provisions of KRS 350.060 and this section must be met and consideration should be given to whether proper reclamation practices can be utilized. OAG 74-502 .

Research References and Practice Aids

Kentucky Law Journal.

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Randall and Pagoulatos, Surface Mining and Environmental Quality: An Economic Perspective, 64 Ky. L.J. 549 (1975-76).

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

350.090. Method of operation, grading, backfilling, and reclamation plans — Funding from reclamation development fund — Waste materials in permit area only — Exclusions.

Under the provisions of this chapter and administrative regulations adopted by the cabinet, a permittee shall prepare and the permittee or operator shall carry out a method of operation, plan of grading and backfilling, and a reclamation plan for the area of land affected by his operation. The reclamation plan shall include a requirement to permanently remove all electrical distribution installations on the surface owned by the permittee, including poles, wires, attachments, and other appurtenances related to the delivery of electric service in the permit area, except where:
1. The electrical distribution installations are being used or will be used by a local distribution entity to provide electrical service to persons other than the permittee at the permit area; or
2. The cabinet specifically has approved the retention of the electrical distribution installations to facilitate the approved post-mining land use for the permit in the reclamation plan.
In developing a method of operation, and the plans of backfilling, grading, removing electric distribution poles and wires, and reclamation, all measures shall be taken to eliminate potential hazards from electrical distribution poles and wires to low-flying aircraft and damages to members of the public and their real and personal property, public roads, streams, and all other public property from soil erosion, rolling stones and overburden, water pollution, and hazards dangerous to life and property. The permit application containing the required plans and other information as required shall be submitted to the cabinet, and the cabinet shall notify the applicant by certified mail, return receipt requested, within sixty-five (65) cumulative working days after receipt of a complete application whether the permit application is acceptable. If applicable notice, hearing, and conference procedures prevent a decision from being issued within the sixty-five (65) cumulative working day period, the cabinet shall have additional reasonable time to issue its decision, not to exceed twenty (20) days from the completion of the notice, hearing, and conference procedures. If the permit application is not acceptable, the cabinet shall set forth the reasons for which the application or plans are not acceptable and it may propose modifications, delete areas, or reject the entire application. If the applicant disagrees with the decision of the cabinet, he or she may, by written notice, request a hearing conducted by the cabinet in the manner provided by KRS 350.0305 . The cabinet shall notify the applicant by certified mail, return receipt requested, within twenty (20) days after the hearing of its decision. Any person aggrieved by a final order of the cabinet may appeal through the courts as set forth in KRS 350.0305 .
If the permittee desires to seek funds from the reclamation development fund to develop an economic development unit during reclamation, the permittee shall submit, along with the reclamation plan, a reclamation development plan outlining the reclamation development project and showing how it will conform with the reclamation standards of this chapter.
No permittee, operator, or person shall throw, dump, pile, or permit the dumping, piling, or throwing, or otherwise placing any overburden, stones, rocks, coal, particles of coal, earth, soil, dirt, debris, trees, wood, logs, or any other materials or substances of any kind or nature beyond or outside of the area of land which is under permit and for which bond has been posted under KRS 350.060 or place these materials in such a way that normal erosion or slides brought about by natural physical causes will permit the materials to go beyond or outside of the area of land which is under permit and for which bond has been posted under KRS 350.060 .
The provisions of subsections (1) and (2) of this section pertaining to the removal of electric installations from the permit area shall not apply to electrical transmission lines, poles, wires, attachments, or other appurtenances related to electrical transmission.

History. Enact. Acts 1954, ch. 8, § 9; 1960, ch. 143, § 5; 1964, ch. 61, § 4; 1966, ch. 4, § 12; 1972 (1st Ex. Sess.), ch. 3, § 68; 1974, ch. 74, Art. III, § 13(7); 1974, ch. 315, § 74; 1976, ch. 341, § 1; 1978, ch. 330, § 17, effective May 3, 1978; 1980, ch. 62, § 9; 1980, ch. 114, § 98, effective July 15, 1980; 1984, ch. 145, § 6, effective March 28, 1984; 1988, ch. 383, § 19, effective July 15, 1988; 1990, ch. 206, § 1, effective July 13, 1990; 1992, ch. 304, § 4, effective July 14, 1992; 1992, ch. 429, § 10, effective July 14, 1992; 2006, ch. 37, § 3, effective July 12, 2006; 2014, ch. 140, § 1, effective July 15, 2014.

Compiler’s Notes.

For effective date of amendment by Acts 1980, ch. 62, see Compiler’s Notes following KRS 350.010 .

Legislative Research Commission Notes.

(7/15/2014). In codification, the Reviser of Statutes has corrected the misplacement of some of the language added to subsection (2) of this statute from the way it appeared in 2014 Ky. Acts ch. 140, sec. 1, under the authority of KRS 7.136(1)(h). Neither the added language nor the meaning was changed.

(7/14/92). This section was amended by two 1992 Acts. Where those Acts are not in conflict, they have been compiled together. Where a conflict exists, the Act which was last enacted by the General Assembly prevails, pursuant to KRS 446.250 .

NOTES TO DECISIONS

1. Constitutionality.
2. Reclamation Plan.

1.Constitutionality.

This section, 405 KAR 18:140 section 1(1), 405 KAR 1:010(64), and KRS 350.028 , by prohibiting the unregulated disposal of earth materials separated from coal at coal washing facility, were not constitutionally overbroad as prohibiting a substantial amount of constitutionally protected conduct; concerns relating to surface coal mining and its byproducts are not limited to the effects of pollution-producing materials. Natural Resources & Envtl. Protection Cabinet v. Kentucky Harlan Coal Co., 870 S.W.2d 421, 1993 Ky. App. LEXIS 82 (Ky. Ct. App. 1993).

2.Reclamation Plan.

The permanent mandatory injunction to force subdivision developers to undertake reclamation was not void for vagueness, where a prior agreed order, signed by the parties, set out the initial steps to be taken to obtain approval by the Cabinet for Natural Resources and Environmental Protection of a reclamation plan, and the regulations themselves outlined steps to be taken to reclaim the land. Payne v. Commonwealth, Natural Resources & Environmental Protection Cabinet, 746 S.W.2d 90, 1988 Ky. App. LEXIS 29 (Ky. Ct. App. 1988).

Cited:

Natural Resources & Envtl. Protection Cabinet v. Whitley Dev. Corp., 940 S.W.2d 904, 1997 Ky. App. LEXIS 26 (Ky. Ct. App. 1997).

Research References and Practice Aids

Kentucky Law Journal.

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

350.093. Time and distance limits on reclamation efforts — Deferments — Drift or other underground mining — Variances — Release of bond.

As determined by administrative regulations of the cabinet, time and distance limits shall be established requiring backfilling, grading, and planting to be kept current, so that all reclamation efforts proceed in an environmentally sound manner and as contemporaneously as practicable under regulations promulgated by the cabinet. All backfilling and grading shall be completed before necessary equipment is moved from the operation; except that the cabinet may for good cause approve the moving of equipment before all backfilling and grading is completed.
1. The cabinet may allow a permittee to defer the time criteria of contemporaneous reclamation requirements on specified areas if the permittee can demonstrate that the deferment is necessary to address at least one (1) of the following:
  1. Adverse condition including weather, labor, and other conditions clearly beyond the permittee’s control;
  2. Other bona fide mining operations carried out on a strip mined area, pursuant to KRS 350.080 ; or
  3. Coal marketing problems.
2. Application for a deferment pursuant to this section shall be in the form prescribed by the cabinet. The applicant shall have the burden of establishing the need for the deferment. The applicant for the deferment shall demonstrate that reclamation on the site is contemporaneous as of the date of the request for deferment and that distance requirements for contemporaneous reclamation will be met during the period of the deferment. Approval of the deferment request shall be made in writing. The approval shall state that the deferment is justified and that no environmental damage will occur during the period of deferment. Reclamation deferments may be approved for a period reasonably related to the specified conditions justifying the deferment, but the aggregate deferral period shall not exceed thirty (30) months. The deferral shall not extend beyond the expiration date of the permit. The cabinet shall periodically reexamine and update the amount of the bond on the permit area so that the amount of the bond is sufficient to assure completion of reclamation if the work had to be performed by the cabinet in the event of forfeiture.
If the permittee or operator desires to conduct drift mining or other underground mining upon the premises or use the openings for haulageways or other lawful purposes, the permittee or operator may designate locations to be used for purposes at which places it will not be necessary to backfill until the drift or other underground mining or other use is completed, during which time the bond on file for that portion of the operation shall not be released. That portion of the locations shall be described and designated on the map attached thereto. If the permittee or operator wishes to combine surface operations with underground mining operations to assure maximum practical recovery of coal resources, the cabinet may grant a variance, pursuant to regulations promulgated by the cabinet, for specific areas within the reclamation plan from the requirement that reclamation efforts proceed pursuant to subsection (1) of this section so as to permit underground mining operations prior to reclamation.
The cabinet may release in whole or in part the reclamation bond or deposit for a particular operation if the cabinet is satisfied that the reclamation covered by the bond or deposit or portion thereof has been accomplished as required by this chapter. These bond releases shall be made in accordance with the following schedule:
1. When the permittee completes the backfilling, regrading, and drainage control of a bonded area in accordance with his approved reclamation plan, the release of sixty percent (60%) of the bond or collateral for the applicable permit area.
2. After revegetation has been established on the regraded mined lands in accordance with the approved reclamation plan, additional bond or collateral for the applicable permit shall be released. When determining the amount of bond to be released after successful revegetation has been established, the cabinet shall retain that amount of the bond for the revegetated area which would be sufficient for a third party to cover the cost of reestablishing revegetation; this amount shall be retained for the period specified for permittee responsibility for reestablishing revegetation. No part of the bond or deposit shall be released under this subsection as long as the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of requirements set by this chapter or until soil productivity for prime farm lands has returned to levels of yield equivalent to those of unmined land of the same soil type in the surrounding area under equivalent management practices as determined from soil surveys that may be required to be included in the permit application. If a sedimentation pond is to be retained as a permanent impoundment, the portion of bond may be released under this subsection so long as provisions for sound future maintenance by the permittee or the landowner have been made with the cabinet.
3. When the permittee has completed successfully all surface coal mining and reclamation activities, the release of the remaining portion of the bond, or collateral, but not before the expiration of the period specified for permittee responsibility. No bond shall be fully released until all reclamation requirements of this chapter are fully met.
Upon satisfying the requirements of subsections (4)(a), (b), or (c) of this section, the permittee may file, or the cabinet shall initiate, an application for total or partial bond release.
1. A permittee shall have the right to begin public advertisement of its request for bond release at the time it files its request for the release. The cabinet may undertake, at permittee expense, public advertisement of any cabinet initiated bond release. If the cabinet initiates a bond release pursuant to this subsection but chooses not to advertise the release pursuant to this section, and the permittee does not advertise the request for the release within the time schedules established by this subsection, the bond release application shall be denied. All public advertisements of bond release applications, whether authorized by the permittee or the cabinet, shall begin within sixty (60) days after either the filing of a bond release request by the permittee or the initiation of a bond release by the cabinet. Public advertisement shall occur at least once a week for four (4) successive weeks in a newspaper of general circulation in the locality of the surface coal mining operation.
2. The public advertisement required by this subsection shall include: the permit number and permit approval date, notification of the precise location of the land affected, the number of acres, the type and amount of the bond filed and the portion sought to be released, the type and appropriate dates of reclamation work performed, a description of the results achieved as they relate to the operator’s approved reclamation plan, and the name and address of the cabinet to which written comments, objections, or requests for public hearings and informal conferences on the specific bond release may be submitted. Proof of advertisement shall be placed with the bond release application within thirty (30) days after the advertisement.
3. Within thirty (30) days of filing of any bond release request, the permittee shall submit copies of letters which it has sent to adjoining property owners, local governmental bodies, planning agencies, sewage and water treatment authorities, and water companies in the locality in which the surface coal mining and reclamation operation took place, notifying them of the intention to seek release from the bond. For bond releases initiated by the cabinet, the cabinet shall undertake the notification requirements set forth in this subsection.
4. Upon the filing of an application for bond release by a permittee, or the initiation of the release by the cabinet, the cabinet shall notify, within thirty (30) days of the filing or initiation, the municipality where the surface coal mining operation is located, pursuant to regulations promulgated by the cabinet.
Upon the filing of any partial or total bond release request by a permittee, the cabinet shall within thirty (30) days conduct an inspection and evaluation of the reclamation work involved. The evaluation shall consider, among other things, the degree of difficulty to complete any remaining reclamation, whether pollution of surface or subsurface water is occurring, the probability of continuance of future occurrence of the pollution, and the estimated cost of abating the pollution.
The cabinet shall notify the permittee in writing of its decision to release or not to release all or part of the performance bond or deposit within five (5) days following receipt of proof of public advertisement as required in subsection (5)(b), or the end of the thirty (30) day public comment period, whichever is later, if no public hearing is held pursuant to subsection (10) of this section; and if there has been a public hearing held pursuant to subsection (10) of this section, within thirty (30) days thereafter.
If the cabinet disapproves the application for release of the bond or portion thereof, the cabinet shall notify the permittee, in writing, stating the reasons for disapproval and recommending corrective actions necessary to serve the release and allowing opportunity for a public hearing. The cabinet shall not disapprove an application for release of a surety bond or a bond secured by a letter of credit as provided for under subsection (4)(a) or (b) of this section or under the partial release provisions applicable to an interim permit, or take any action to forfeit the surety bond, or bond secured by letter of credit, solely upon the permittee’s failure to pay penalties or fines, if applicable reclamation requirements for the requested release have been fully met. The cabinet shall not continue to hold under the interim or permanent program remaining surety bond proceeds or the remaining bond secured by a letter of credit where a forfeiture has occurred solely as a result of a failure to pay penalties or fines, if the reclamation requirements of this chapter have been fully met.
The bond liability of the permittee shall include only those actions which the permittee is obliged to take under the permit, including completion of the reclamation plan.
Any person having a valid legal interest which might be adversely affected by release of the bond, and the responsible officer or head of any governmental agency so designated by cabinet regulations, shall have the right to file written objections to the proposed bond release with the cabinet, and to request a hearing in accordance with procedural regulations promulgated by the cabinet.

History. Enact. Acts 1966, ch. 4, § 8; 1972 (1st Ex. Sess.), ch. 3, § 69; 1974, ch. 69, § 4; 1974, ch. 74, Art. III, § 13(7); 1974, ch. 399, § 1; 1976, ch. 341, § 2; 1978, ch. 33, § 18, effective May 3, 1978; 1980, ch. 62, § 10, effective March 21, 1980; 1982, ch. 283, § 5, effective April 2, 1982; 1984, ch. 145, § 3, effective March 28, 1984; 1988, ch. 209, § 1, effective July 15, 1988; 1988, ch. 294, § 2, effective July 15, 1988; 1990, ch. 210, § 4, effective July 13, 1990; 1992, ch. 429, § 11, effective July 14, 1992; 2006, ch. 37, § 4, effective July 12, 2006.

Compiler’s Notes.

For effective date of amendment by Acts 1980, ch. 62, see Compiler’s Notes following KRS 350.010 . For effective date of amendment by Acts 1982, ch. 62, see Compiler’s Notes following KRS 350.010 .

Research References and Practice Aids

Kentucky Law Journal.

Schneider, Strip Mining in Kentucky, 59 Ky. L.J. 652 (1971).

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Randall and Pagoulatos, Surface Mining and Environmental Quality: An Economic Perspective, 64 Ky. L.J. 549 (1975-76).

350.095. Responsibility for successful revegetation — Cabinet administrative regulations.

The permittee shall assume responsibility for successful revegetation as required in KRS 350.435 for a period of five (5) full years after the last year in which augmented seeding, fertilizing, irrigation, or other work occurs. The cabinet shall promulgate administrative regulations which shall include provisions to assure compliance with KRS 350.435 , 350.093 , and other applicable provisions. The cabinet may by administrative regulation set forth different requirements when it approves a long-term, intensive, agricultural postmining land use as part of the mining and reclamation plan.
On lands eligible for remining, the permittee shall assume the responsibility for successful revegetation for a period of two (2) full years after the last year in which augmented seeding, fertilizing, irrigation, or other work occurs in order to assure compliance with the applicable standards. After September 30, 2004, the period of authority of this subsection shall be coincident with the period of authority of sec. 515(b)(20)(B) of Pub. L. No. 95-87, the “Surface Mining Control and Reclamation Act of 1977,” as amended, 30 U.S.C. sec. 1265(b)(20) (B).

History. Enact. Acts 1966, ch. 4, § 9; 1972 (1st Ex. Sess.), ch. 3, § 70; 1974, ch. 74, Art. III, § 13(7); 1978, ch. 330, § 19, effective May 3, 1978; 1980, ch. 62, § 11; 1992, ch. 429, § 12, effective July 14, 1992; 1994, ch. 172, § 3, effective July 15, 1994; 2005, ch. 114, § 2, effective March 18, 2005.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

350.097. Protection and location of pollinator habitats on coal mine reclamation sites.

The General Assembly finds that the reclamation of coal mine sites can benefit from pollinator habitat sites. These sites are an important conservation resource which will encourage and protect the habitat for pollinators like honeybees, bumble bees, and other bee species. The protection and location of pollinator sites situated on mine sites can increase the revegetation rates during the reclamation period which supports soil and hydrologic stability. Therefore, the General Assembly hereby directs the cabinet to develop a plan in conjunction with the Division of Conservation to encourage coal licensees to locate and protect pollinator sites on reclamation sites and to use high-value trees and shrubs to aid in pollen transfer.

History. Enact. Acts 2010, ch. 19, § 1, effective July 15, 2010.

350.100. Time for commencement and completion of reclamation — Deferred planting.

It shall be the duty of a permittee and operator to commence the reclamation of the area of land affected by the operation as contemporaneously as practicable after the beginning of operations on that area in accordance with plans previously approved by the cabinet. The grading, backfilling, and water management practices that are approved in the plans shall be kept current with the operation as defined by regulations of the cabinet and no permit renewal or revision shall be issued, if, under the regulations of the cabinet, these practices are not current;
If an investigation indicates that planting so as to provide vegetative cover of an area of land affected by surface coal mining may not be successful, consistent with subsection (1), the cabinet may authorize the permittee or person to defer the planting until the soil and/or weather has become suitable for that purpose.

History. Enact. Acts 1954, ch. 8, § 10; 1962, ch. 105, § 6; 1964, ch. 61, § 5; 1966, ch. 4, § 15; 1972 (1st Ex. Sess.), ch. 3, § 71; 1974, ch. 74, Art. III, § 13(7); 1980, ch. 62, § 12; 1992, ch. 429, § 13, effective July 14, 1992.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

Opinions of Attorney General.

Extensions of time beyond the 12-month limit or extensions of time for the operations required to be kept current would be violations of this section. OAG 70-563 .

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

350.105. Easement of necessity to conduct reclamation operations.

An easement of necessity for the completion of reclamation activities, created by this subsection, requires satisfaction of these circumstances:
1. An entity has, by court order or approved plan of reorganization, become responsible for performance of reclamation under a surface coal mining and reclamation permit issued by the cabinet pursuant to KRS Chapter 350 prior to July 12, 2006;
2. The entity obtained those permit rights and obligations in connection with a bankruptcy proceeding;
3. The permit holder’s right to enter upon some portion or all of the property covered by such permit is derived from a leasehold interest in the property; and
4. The lease authorizing the conducting of surface coal mining and reclamation operations was held by an entity other than the entity responsible for reclamation and has expired or was terminated prior to completion of reclamation operations for that leased property.
Upon satisfaction of paragraphs (a) to (d) of subsection (1) of this section and all other obligations provided for in this section, the entity responsible for the performance of reclamation shall be deemed by operation of law to have an “easement of necessity to conduct reclamation operations” for such property as was under the expired or terminated lease. The easement of necessity to conduct reclamation operations shall exist for a period of time that is reasonably necessary for the entity responsible for the reclamation to complete any reclamation operations required by the permit and by KRS Chapter 350, but in no case shall the easement of necessity to conduct reclamation operations exist longer than eight (8) years from the date the easement is created pursuant to this section.
In order to create the easement of necessity to conduct reclamation operations, the entity responsible for the performance of reclamation shall:
1. Provide to the permitting agency, with a certified copy to the current surface owner, documentation to establish the satisfaction of the conditions imposed by this section and receive from the permitting agency a written determination that the permitted area for which the easement of necessity is requested falls within the conditions of this section; and
2. Compensate the current surface owner with the fair rental value of the property for the reclamation period, including the extended liability period prior to the final bond release on the formerly leased property, as follows:
  1. The entity responsible for the reclamation shall provide a written opinion by a qualified appraiser as to the fair rental value and the basis for the determination;
  2. The surface owner and the entity responsible for the reclamation shall attempt to reach agreement as to the amount of the appropriate compensation; and
  3. If no agreement is reached as to the amount of appropriate compensation within fifteen (15) days following receipt by the surface owner of the written offer of compensation from the entity responsible for reclamation and the appraisal report, the entity responsible for reclamation shall pay into an escrow account for the benefit of the current surface owner in a bank authorized to do business in the Commonwealth an amount equal to the written offer by the entity responsible for reclamation, which shall be not less than fifteen thousand dollars ($15,000) for the first three (3) years of the reclamation and liability period. The entity responsible for the reclamation shall provide the current owner with the location of the escrow account.
After subsection (3)(b)3. of this section is satisfied, the entity responsible for reclamation shall have the immediate right of entry solely to perform reclamation as required by the permit and state law.
If the surface owner believes the amount placed in escrow is insufficient compensation, the owner may bring an action in the Circuit Court in the county in which the property in question is located for a determination of the fair rental value of the property.
Following the first payment, five thousand dollars ($5,000) or the appraised fair rental value, whichever is greater, shall be paid to the current surface owner for each year of reclamation and extended liability period until the final bond release and shall be paid on the first day of each subsequent year beginning with the fourth year.
After July 15, 2008, no new easement of necessity to conduct reclamation operations created by this section shall be deemed to exist by operation of law, except for continuation of such easements that were created prior to July 15, 2008.

History. Enact. Acts 2006, ch. 58, § 1, effective July 12, 2006.

350.110. Partial release of bond when planting deferred. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 8, § 11; 1962, ch. 105, § 8; 1966, ch. 4, § 17; 1974, ch. 69, § 5; 1974, ch. 74, Art. III, § 13(7); 1976, ch. 341, § 3; 1978, ch. 105, § 1, effective June 17, 1978; 1980, ch. 62, § 13) was repealed by Acts 1990, ch. 210, § 14, effective July 13, 1990.

350.113. Planting report.

When the planting of a permit area is completed, the permittee shall file a planting report with the cabinet on a form to be prescribed and furnished by the cabinet, giving the following information:
1. Identification of the operation;
2. The type of planting or seeding, including mixtures and amounts;
3. The date of planting or seeding;
4. The area of land planted;
5. Other relevant information, including whether the operator has utilized a pollinator colony, as the cabinet may require.
All planting reports shall be certified.
Inspection and evaluation for vegetative cover shall be made as soon as it is possible to determine if a satisfactory stand has been established. In no instance shall this vegetative cover check be made until just prior to or after the completion of the first growing season.

History. Enact. Acts 1966, ch. 4, § 16; 1974, ch. 74, Art. III, § 13(7); 1978, ch. 332, § 6, effective June 17, 1978; 1990, ch. 210, § 5, effective July 13, 1990; 1992, ch. 429, § 14, effective July 14, 1992; 2010, ch. 19, § 3, effective July 15, 2010.

Research References and Practice Aids

Kentucky Law Journal.

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

350.117. Ownership of trees, shrubs, and plants.

All trees, shrubs, grasses, and legumes required by this chapter and regulations to be planted or seeded on the area of land affected shall become the property of the landowner, unless the permittee and the landowner agree otherwise.

History. Enact. Acts 1966, ch. 4, § 14; 1992, ch. 429, § 15, effective July 14, 1992.

350.120. Report on expiration of permit — Contents.

Within sixty (60) days after the date of expiration of a permit, the permittee shall file with the cabinet a report stating the exact number of acres of land affected by the operation, the extent of the reclamation already accomplished by him, and such other information as may be required by the rules and regulations of the cabinet. The report shall be accompanied by a copy of the map filed with the original application which shall show any revisions made necessary by results of the operation.

History. Enact. Acts 1954, ch. 8, § 12; 1962, ch. 105, § 9; 1964, ch. 61, § 6; 1966, ch. 4, § 18; 1992, ch. 429, § 16, effective July 14, 1992.

350.130. Notice of noncompliance — Revocation of permit — Bond forfeiture — Ineligibility for future permits — Notice or order effective upon delivery.

When any of the requirements of this chapter or administrative regulations adopted pursuant thereto or the orders of the cabinet have not been complied with, the cabinet shall forthwith cause a notice of noncompliance to be issued upon the permittee, person, or operator. The cabinet shall set forth in its notice a reasonable time period but not more than ninety (90) days for the abatement of the violation. If any permittee, person, or operator has not abated the violation within the time prescribed in the notice of noncompliance, the secretary or other authorized personnel of the cabinet shall issue to the permittee, operator, or person an order for immediate compliance and cessation of any mining activities or operations which are contributing to the violation. The order shall require the permittee, person, or operator to abate the violation in the most expeditious manner possible. The secretary is authorized to promulgate reasonable administrative regulations for the implementation of this section. The notice or order shall be handed to the person in charge of the operation and the operator or person engaged in coal exploration operations or sent by certified mail, return receipt requested, addressed to the permanent address shown on the application for a permit; or by electronic mail to the address shown on the permit application or otherwise voluntarily provided to the cabinet by the permittee on a form prepared by the cabinet; or, if no address is shown on the application, then by certified or electronic mail to the address known to the cabinet. The notice of noncompliance or order for immediate compliance and cessation shall specify in what respects the permittee, person, or operator has failed to comply with this chapter or the regulations or orders of the cabinet and the remedial action required, the period of time established for abatement, and a reasonable description of the portion of the surface coal mining and reclamation operation to which the notice or order applies. If the permittee, person, or operator has not reached an agreement with the cabinet or has not complied with the requirements set forth in the notice of noncompliance or order for immediate compliance and cessation within time limits set therein, the permit may be revoked or the operation terminated, after an opportunity for a hearing, by order of the cabinet, and the performance bond, if any, shall then be forfeited to the cabinet, provided that failure to attend a hearing shall be excused for good cause shown. Any bonding company or financial institution providing bond to the cabinet shall have the right to perform those measures necessary to secure bond releases if the bonding company or financial institution can demonstrate that it has the ability to perform the measures and will undertake to do so within a reasonable time frame. The bonding company, or financial institution providing the bond, may, at any stage of the reclamation process, pay the remaining encumbered balance of the bond and thereby discharge its obligation under the bond. Neither the surety company nor the financial institution may employ anyone to perform the measures who has been barred from mining pursuant to the provisions of this chapter.
When a bond is forfeited consistent with the provisions of this chapter, the cabinet shall forfeit the entire amount of the bond for the permit area or increment.
A permittee, operator, or person whose mining permit or operation has been revoked, suspended, or terminated or is at the time of the application in violation of this chapter or other applicable requirements as set forth in KRS 350.085 shall not be eligible to receive another permit or begin another operation or to have suspended permits or operations reinstated until he shall have complied with all the requirements of this chapter or submitted proof satisfactory to the cabinet under KRS 350.085 that the violation has been corrected or is in the process of being corrected in respect to all permits issued him, provided, further, that no permittee, operator, or person shall be eligible to receive another permit or begin another operation who has forfeited any bond unless the land for which the bond was forfeited has been reclaimed without cost to the state or the permittee, operator, or person has paid such sum as the cabinet finds is adequate to reclaim the lands. The cabinet shall not issue any permits to or allow future operations by any permittee, operator, or person who has demonstrated a pattern of willful violations of this chapter of such nature and duration with such resulting irreparable damage to the environment as to indicate an intent not to comply with the provisions of this chapter, provided that no permit shall be denied on this basis without an opportunity for a hearing. The secretary shall promulgate regulations which implement this section. For the purposes of this section, if a corporate permittee has demonstrated a pattern of willful violations, then any subsequent application for a permit by that corporation, or any person who controls or has controlled that corporation, shall be denied.
In the exercise of the secretary’s enforcement powers and authority under this chapter, the secretary, or an authorized representative of the cabinet, after inspection, shall immediately order the cessation of the condition or operation when he determines that the condition or operation creates an imminent danger to the health or safety of the public or that the condition or operation is causing or can reasonably be expected to cause significant imminent environmental harm in violation of this chapter or the regulations pursuant to this chapter, or any permit condition. For purposes of this subsection, “imminent danger to the health and safety of the public” means the existence of any condition or practice, or any violation of a permit or other requirement of this chapter in a surface coal mining and reclamation operation, which condition, practice, or violation could reasonably be expected to cause substantial physical harm to persons outside the permit area before the condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not expose himself or herself to the danger during the time necessary for abatement.
Each provision of this section shall be interpreted and applied consistently with due process of law.
The secretary, or authorized representatives of the cabinet, shall have the power to vacate, amend, modify, or terminate notices of noncompliance and cessation orders, pursuant to administrative regulations promulgated by the cabinet.
Service of any notice or order by electronic mail shall be effective upon delivery of the notice or the order to the recipient’s inbox by electronic mail as electronically communicated to the cabinet by an electronic registered receipt.

History. Enact. Acts 1954, ch. 8, § 13; 1962, ch. 105, § 10; 1964, ch. 61, § 7; 1966, ch. 4, § 19; 1972 (1st Ex. Sess.), ch. 3, § 72; 1974, ch. 69, § 6; 1974, ch. 74, Art. III, § 13(7); 1974, ch. 315, § 75; 1974, ch. 399, § 2; 1978, ch. 105, § 2, effective June 17, 1978; 1978, ch. 330, § 20, effective May 3, 1978; 1980, ch. 114, § 99, effective July 15, 1980; 1980, ch. 62, § 14, effective March 21, 1980; 1980, ch. 377, § 11, effective March 21, 1980; 1982, ch. 283, § 6, effective April 2, 1982; 1988, ch. 294, § 3, effective July 15, 1988; 1990, ch. 210, § 6, effective July 13, 1990; 1992, ch. 120, § 2, effective July 14, 1992; 1992, ch. 429, § 17, effective July 14, 1992; 2010, ch. 114, § 2, effective July 15, 2010.

Compiler’s Notes.

For effective dates of amendments by Acts 1980, ch. 62 and ch. 377, see Compiler’s Notes following KRS 350.010 and 350.035 . For effective date of amendment by Acts 1982, ch. 283, see Compiler’s Notes following KRS 350.010 .

NOTES TO DECISIONS

1. Failure to Appear at Preliminary Hearing.
2. Court Error.
3. Remedies Not Mutually Exclusive.
4. Future Permits.
5. Revocation Proper.

1.Failure to Appear at Preliminary Hearing.

2.Court Error.

The Court of Appeals, in a prior opinion, had stated that the issue of who was considered an “operator” under a mining permit, had to initially be litigated before the Natural Resources and Environmental Protection Cabinet (NREPC); therefore, where the trial court simply failed to follow the Court of Appeals mandate which was the law of the case and failed to allow the issue to be resolved by proceedings before the NREPC, the trial court thereby committed reversible error. Natural Resources & Environmental Protection Cabinet v. J & D Coal Co., 817 S.W.2d 452, 1991 Ky. App. LEXIS 126 (Ky. Ct. App. 1991).

3.Remedies Not Mutually Exclusive.

4.Future Permits.

In a bankruptcy proceeding, the police power exception to the automatic stay applied to the Kentucky Natural Resources and Environmental Protection Cabinet’s enforcement of reclamation bonding requirements regarding surface mining permits because the court was not convinced that the bonding requirement served a primarily pecuniary end. Bickford v. Lodestar Energy, Inc., 310 B.R. 70, 2004 U.S. Dist. LEXIS 5097 (E.D. Ky. 2004 ).

5.Revocation Proper.

Circuit court properly upheld the forfeiture of a mining company’s reclamation bonds and the revocation of its permit because the Energy and Environment Cabinet did not have to notify the bank that issued a letter of credit securing the bonds in order to allow the company to perform reclamation, the company made no attempt to obtain an easement by necessity, and the Cabinet followed proper procedures in the bond by providing uncontradicted testimony that reclamation had not been performed. Black Fire Coal Co., LLC v. Commonwealth, 393 S.W.3d 36, 2012 Ky. App. LEXIS 327 (Ky. Ct. App. 2012).

Cited:

Natural Resources & Envtl. Protection Cabinet v. Kentucky Ins. Guar. Ass’n, 972 S.W.2d 276, 1997 Ky. App. LEXIS 47 (Ky. Ct. App. 1997).

Opinions of Attorney General.

The division (now cabinet) may deny, withhold, suspend or modify a permit, including the deletion of the offending portions of land, where the operation falls within the contemplation of this chapter. OAG 70-563 .

The granting of permits in the first instance does not prevent the state from revoking those permits if it is determined subsequently that the permits were improvidently granted. OAG 70-563 .

Since there is considerable overlap in the conditions precedent to the issuance of a notice of violation or a notice of noncompliance, the choice of which of these enforcement tools to utilize upon discovery of a violation is largely committed to the department’s (now cabinet’s) discretion. OAG 79-24 .

Since there is no time period given by statute for compliance with the requirement of this section, it would be reasonable for the department (now cabinet) to immediately issue a notice of noncompliance upon discovering a violation of such a requirement, rather than issuing a notice of violation and giving an opportunity to correct the violation. OAG 79-24 .

The department (now cabinet) has both general and specific powers to promulgate the regulation creating the notice of violation. OAG 79-24 .

Research References and Practice Aids

Kentucky Bench & Bar.

Glover, Digesting the Federal Strip Mine Act, Vol. 42, No. 1, Jan. 1978 Ky. Bench & B. 25.

Kentucky Law Journal.

Notes, Economic, Social and Legal Aspects of Coal Transportation in Kentucky, 64 Ky. L.J. 601 (1975-76).

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Randall and Pagoulatos, Surface Mining and Environmental Quality: An Economic Perspective, 64 Ky. L.J. 549 (1975-76).

Kentucky Law Survey, Bratt and Brown, Environmental Law, 70 Ky. L.J. 455 (1981-82); Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

350.131. Use of forfeited reclamation bond funds — Contract to reclaim overlapped disturbed area for which bond has been forfeited and collected.

When a bond for an interim or preinterim program permit was forfeited prior to July 15, 1988, by the cabinet, and the entire forfeited amount is not necessary to establish proper drainage and revegetation on the permit area for which it was submitted, the cabinet may use any remaining funds to supplement reclamation of other forfeited or released permit areas, if the other permit areas endanger public health and safety.
When the bond for an interim or permanent program permit is forfeited by the cabinet, and the entire forfeited amount is more than the amount necessary to complete reclamation, the unused funds less any interest that has accrued shall be returned to the party from whom they were collected, subject to the cabinet’s right to attach or set off the proceeds under other state laws.
Notwithstanding any other provisions of this chapter or the provisions of KRS Chapter 45A, when the bond, other than a surety bond or bond secured by a letter of credit, for an interim or permanent program permit is forfeited and collected by the cabinet, and a person subsequently applies for a permit overlapping all or part of the disturbed area of the permit area for which the bond is forfeited, the cabinet may negotiate and enter into a contract with the applicant to reclaim the disturbed area overlapped in exchange for all or part of the forfeited bond funds held by the cabinet, if requested by the applicant. If the applicant proposes to overlap only a part of the disturbed area the cabinet may enter into a contract with the applicant to reclaim the overlapped part of the disturbed area if the cabinet has retained a portion of the forfeited bond that is sufficient for the cabinet to reclaim the part of the disturbed area that is not overlapped. Any applicant under this subsection shall not be eligible for the benefits available under this subsection if the applicant has any ownership or control connection with the permittee or operator with respect to which the bond was forfeited. The amount of forfeited bond funds the cabinet may pay to the applicant shall be determined by the cabinet based upon the estimated cost for the cabinet to reclaim the disturbed area overlapped to the reclamation standards applicable to the original permit, but not to exceed the forfeited bond amount collected and held by the cabinet. Payments under this subsection shall be made only after release of the bond pursuant to KRS 350.093(4)(a) for those areas of the overlapping permit that are covered by the contract. If the applicant obtains a permanent program permit overlapping a forfeited interim permit, any disturbances created in connection with the overlapping permit on areas that were disturbed under the forfeited interim permit may be covered by a contract under this subsection and shall be reclaimed to permanent program standards. Areas where coal is not removed under the overlapping permit and the disturbances are for reclamation of the interim permit only shall be reclaimed to interim program standards. If the applicant obtains a permanent program permit overlapping a forfeited interim permit, any disturbances created in connection with the overlapping permit on areas that were not disturbed under the forfeited interim permit shall not be covered by a contract under this subsection and shall be reclaimed to permanent program standards. Nothing in this subsection shall be construed to exempt a person from the permitting, bonding, and reclamation requirements imposed in this chapter or to infringe upon the right of any surety to reclaim any permit or increment thereof to avoid bond forfeiture.

History. Enact. Acts 1986, ch. 451, § 1, effective July 15, 1986; 1988, ch. 294, § 4, effective July 15, 1988; 1996, ch. 323, § 1, effective July 15, 1996; 1998, ch. 222, § 1, effective July 15, 1998.

350.133. Mountaintop removal.

Nothing in this chapter shall prohibit the mountaintop removal method of strip mining coal under the conditions set forth in this chapter or regulations promulgated pursuant thereto.

History. Enact. Acts 1974, ch. 399, § 3; 1978, ch. 330, § 21, effective May 3, 1978.

350.135. Requirements for transfer of surface coal mining permit — Release of bond — Regulations — Approval by cabinet.

No surface coal mining permit issued pursuant to this chapter shall be transferred by sale, assignment, lease, or otherwise except upon the written approval by the cabinet of a joint application submitted by both the transferor and the transferee. A basic fee set by regulation, and bearing a reasonable relationship to the cost of processing the transfer, but not to exceed seven hundred fifty dollars ($750) shall accompany the application and no acreage fee will be assessed. The transferee shall file with the application a bond satisfactory to the cabinet which shall ensure reclamation of the entire area of land affected under the permit, including areas previously affected by the transferor. All rights and liabilities under the permit shall pass to the transferee upon written approval of the transfer by the cabinet, except that the transferor shall remain liable for any civil penalties resulting from violations occurring prior to the date of approval of the transfer. The cabinet shall not approve transfer of a surface coal mining permit to any person who would be ineligible to receive a new permit under this chapter.
After the cabinet has given its written approval to the transfer, the transferee may conduct surface coal mining and reclamation operations according to the approved mining and reclamation plan of the original permittee. Any transferee seeking to change the conditions of mining or reclamation operations, or any of the terms or conditions of the original permit, shall apply for a new or revised permit pursuant to the requirements of the cabinet.
The cabinet shall not release the first permittee from bond liability under this chapter as to that particular operation until the transferee, having filed a bond satisfactory to the cabinet, receives written approval from the cabinet for the transfer, and otherwise complies with the requirements of this chapter, and provided further that the transferee shall assume as part of his obligation under this chapter, all liability for the reclamation of the area of land affected by the former permittee.
The cabinet may promulgate reasonable regulations and administrative procedures to implement this section.
The cabinet shall approve the transfer application if:
1. A joint agreement or sale has been executed;
2. The transferee has posted bond satisfactory to the cabinet which insures reclamation of the entire area of land affected under the permit;
3. The transferee has paid the fee pursuant to subsection (1) of this section;
4. The transferee has agreed to operate under provisions of the approved permit being transferred.

History. Enact. Acts 1962, ch. 105, § 7; 1974, ch. 74, Art. III, § 13(7); 1978, ch. 330, § 27, effective May 3, 1978; 1980, ch. 62, § 15; 1984, ch. 392, § 1, effective July 13, 1984; 1992, ch. 429, § 18, effective July 14, 1992; 2010, ch. 103, § 3, effective April 8, 2010.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

NOTES TO DECISIONS

1.In General.

The statute requires Natural Resources and Environmental Protection Cabinet approval of permit transfers by sale. Commonwealth Natural Resources & Envtl. Protection Cabinet v. Neace, 14 S.W.3d 15, 2000 Ky. LEXIS 8 ( Ky. 2000 ).

The Natural Resources and Environmental Protection Cabinet cannot approve transfer of a permit to any person who would be ineligible to receive a new permit. Commonwealth Natural Resources & Envtl. Protection Cabinet v. Neace, 14 S.W.3d 15, 2000 Ky. LEXIS 8 ( Ky. 2000 ).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

350.139. Deposit of funds to State Treasury — Exceptions — Amount to be transferred to fiscal courts — Remainder for Division of Mine Permits.

All prior enactments of this General Assembly to the contrary notwithstanding, all funds received by the Energy and Environment Cabinet through the payment of fees and civil penalties shall be deposited in the State Treasury to the credit of the general fund, except those fees established in KRS 350.060(11) and (13), 350.070(2) and (4), 350.135(1), and as provided in KRS 350.990(1). All funds from the forfeiture of bonds shall be placed in the State Treasury in an interest-bearing account and credited to a special agency account. The interest shall become a supplemental fund and may be used to supplement forfeited bonds which are inadequate to complete the reclamation plan. Except as provided in KRS 350.131(1), forfeited bond funds shall be expended upon the lands for which the bond was given. The interest may be expended upon lands other than those for which the bond was given. No more than twenty-five percent (25%) of the supplemental fund may be expended upon any single site, unless a larger expenditure is necessary to abate an imminent danger to public health or safety.
1. Subject to the limitation in paragraph (b) of this subsection, the Department for Natural Resources shall, on or before August 1 of each year, transfer to the fiscal court of the county in which the permitted operation is located, an amount equal to thirty-three and one-third percent (33-1/3%) of all funds paid during the preceding fiscal year as fees for the issuance of any permit for surface coal mining operations for the general purposes of that fiscal court.
2. The department shall calculate the amount to be transferred each year under this subsection as if the fee rates in effect pursuant to this chapter on October 1, 2009, were still in effect during the preceding fiscal year.
Except for the amount of fees paid to fiscal courts pursuant to subsection (2) of this section, all permit and acreage fees established in KRS 350.060(11) and (13), 350.070(2) and (4), and 350.135(1) shall be held specifically for the use of the Division of Mine Permits.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 81; 1974, ch. 74, Art. III, § 13(2), (7); 1980, ch. 377, § 4; 1982, ch. 409, § 14, effective July 15, 1982; 1990, ch. 210, § 7, effective July 13, 1990; 1998, ch. 222, § 2, effective July 15, 1998; 2010, ch. 24, § 1879, effective July 15, 2010; 2010, ch. 103, § 4, effective April 8, 2010.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.035 .

Legislative Research Commission Note.

(7/15/2010). This section was amended by 2010 Ky. Acts chs. 24 and 103, which do not appear to be in conflict and have been codified together.

350.140. Strip mining and reclamation fund. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 8, § 14; 1962, ch. 105, § 11) was repealed by Acts 1972, ch. 270, § 8 and Acts 1972 (1st Ex. Sess.), ch. 3, § 93.

Legislative Research Commission Note.

Due to a clerical error the enrolled bill (Acts 1972, ch. 270) does not show the repeal of this section; this compilation attempts to correct the error.

350.141. Disposition of funds derived from fees and forfeiture of bonds; lapse of trust and agency accounts; fund for financing grant-in-aid projects. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 270, § 5) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93.

350.143. State treasurer to annually transfer funds to fiscal court. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 270, § 6) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93.

350.145. Use of transferred funds by fiscal court. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 270, § 7) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93.

350.150. Reclamation work by cabinet — Procedure — Acceptance of federal and other funds — Access to land.

In the reclamation of land affected by surface coal mining operations for which it has funds available, the cabinet may avail itself of any services which may be provided by other state agencies or by agencies of the federal government, and may compensate them for the services. The cabinet may also receive any federal funds, state funds, or any other funds for the reclamation of land affected by surface coal mining operations. The cabinet may cause the reclamation work to be done by its own employees or by employees of other governmental agencies, soil conservation districts, or through contracts with qualified persons. The contracts, other than negotiated contracts awarded pursuant to KRS 350.131(3), shall be awarded to the lowest responsible bidder upon competitive bids after reasonable advertisement. The cabinet and any other agency and any contractor under a contract with the cabinet shall have the right of access to the land affected to carry out the reclamation.
Any funds available to the cabinet and any public works program (both funds and services) may be used and expended to reclaim and rehabilitate any lands that have been subjected to surface coal mining operations that have not been reclaimed and rehabilitated in accordance with standards set by this chapter or administrative regulations thereunder and which are not covered by bond to guarantee the reclamation.
A person or organization, having qualifications acceptable to the cabinet, may post bond or a cash deposit, in a sum determined by the cabinet, and assume the liability for carrying out the reclamation plan approved by the cabinet in areas where the mining operation and any necessary grading and backfilling have been completed. The cabinet shall then release the bond posted by the permittee for the area.

History. Enact. Acts 1954, ch. 8, § 15; 1962, ch. 105, § 12; 1964, ch. 61, § 8; 1966, ch. 4, § 20; 1972 (1st Ex. Sess.), ch. 3, § 73; 1974, ch. 74, Art. III, § 13(7); 1978, ch. 332, § 7, effective June 17, 1978; 1980, ch. 62, § 16; 1992, ch. 429, § 19, effective July 14, 1992; 1996, ch. 323, § 2, effective July 15, 1996.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

350.151. Permanent program administrative regulations for mining and reclamation — Bond.

The Energy and Environment Cabinet shall promulgate permanent program administrative regulations for the mining and reclamation of land disturbed or removed by operations resulting from or incident to underground coal mining. The regulations shall recognize the distinct differences between underground mining and strip mining of coal, shall be promulgated pursuant to this chapter, and shall be enforced as provided in KRS 350.130 and 350.990 . Those activities may include but not be limited to the construction of new roads or the improvement or use of existing roads to gain access to the site of the activities and all lands affected by haulage, excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or materials on the surface, but the regulations shall not be more stringent than those applied to strip mining of coal.
The permit applicant shall file with the cabinet a reclamation bond payable to the Commonwealth of Kentucky with surety satisfactory to the cabinet in the sum to be determined by the cabinet for each acre or fraction thereof of the area of land affected, with a minimum bond of ten thousand dollars ($10,000) conditioned upon the faithful performance of the requirements set forth in this section and of the administrative regulations of the cabinet. The cabinet shall forfeit the entire amount of the bond for the permit area or increment in the event of forfeiture. The cabinet shall accept, in lieu of the surety provided in this subsection, the deposit by the operator of United States government securities, cash or its equivalent in a sum equal to the principal amount of the required bond, or a self-bond pursuant to administrative regulations promulgated by the cabinet.
In order to protect the stability of the land, the cabinet shall suspend underground mining activities under urbanized areas, and adjacent to industrial or commercial buildings, major impoundments, or permanent streams, if the cabinet finds imminent danger to inhabitants of the urbanized areas.

History. Enact. Acts 1974, ch. 256, § 1; 1976, ch. 291, § 3; 1978, ch. 330, § 22, effective May 3, 1978; 1980, ch. 62, § 17; 1988, ch. 417, § 3, effective July 15, 1988; 1990, ch. 210, § 8, effective July 13, 1990; 1992, ch. 429, § 20, effective July 14, 1992; 2010, ch. 24, § 1880, effective July 15, 2010.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

Research References and Practice Aids

Kentucky Law Journal.

Begley and Williams, Coal Mine Water Pollution: An Acid Problem With Murky Solutions, 64 Ky. L.J. 506 (1975-76).

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Randall and Pagoulatos, Surface Mining and Environmental Quality: An Economic Perspective, 64 Ky. L.J. 549 (1975-76).

350.152. Acquisition of land by Commonwealth for reclamation purposes.

The Commonwealth, acting by and through its Energy and Environment Cabinet, shall have the power to acquire, either by negotiation or by exercise of the power of eminent domain, land which has been affected or disturbed by strip or auger mining, or by other surface coal mining operations which consists of orphan banks or unreclaimed spoil piles.
Prior to acquiring any land pursuant to KRS 350.152 to 350.163 and KRS 350.240 , the Energy and Environment Cabinet shall extend to the owners thereof an opportunity to backfill, grade, plant, and do other acts of restoration thereon to the same extent and within the same time limits as prescribed by this chapter and regulations adopted pursuant thereto. If the owner or owners agree in writing to perform such restoration and, weather permitting, start such restoration within a period of thirty (30) days, the land shall not be acquired by the Commonwealth.
The Energy and Environment Cabinet shall attempt to purchase any land which it has determined should be acquired for the purpose of restoration and which the owners have not agreed to restore as provided in subsection (2) above. In any case where the cabinet and the owners of the land are unable to agree upon the amount to be paid for the land, the cabinet may exercise the power of eminent domain against such land by filing a condemnation suit under the procedure of the Eminent Domain Act of Kentucky.
The purchase price, in the case of a negotiated acquisition, or the damages as finally determined, in the case of acquisition by condemnation, and the necessary expenses incidental thereto, shall be paid from appropriations made by the General Assembly for such purposes and appropriations to which federal funds made available for such purposes have been credited.

History. Enact. Acts 1966, ch. 4, § 32; 1972, ch. 359, § 1; 1972 (1st Ex. Sess.), ch. 3, § 74; 1974, ch. 74, Art. III, § 13(2); 1976, ch. 140, § 117; 1980, ch. 377, § 5; 2010, ch. 24, § 1881, effective July 15, 2010.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.035 .

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

350.154. Restoration and reclamation by cabinet.

The cabinet shall have the power to backfill, grade, plant and perform other acts of restoration and reclamation, or contract for the performance of such restoration work, on any lands acquired under KRS 350.152 to 350.163 and 350.240 , to the extent and subject to such conditions as state or federal funds are appropriated and available therefor.

History. Enact. Acts 1966, ch. 4, § 33; 1978, ch. 332, § 8, effective June 17, 1978.

350.156. Transfer of jurisdiction of restored land to state agency or sale to political subdivision — Return of money to revolving fund.

After restoration of the acquired land, the cabinet may, with the approval of the Governor, transfer jurisdiction of such land, or any portion thereof, to any state agency that can best utilize such land for public purposes.
If the retention of such land is determined to be impractical, the cabinet may, with the approval of the Governor, sell such land to political subdivisions of the Commonwealth at the cost of acquisition and restoration or public sale to the highest bidder. Such land shall be sold subject to the condition that no surface coal mining shall be carried on thereon at any time thereafter. The proceeds of any such sale shall be credited to a revolving fund within the cabinet.
Whenever the cabinet expends funds pursuant to this section in order to satisfy the total purchase price for lands purchased pursuant to KRS 350.570 , the cabinet may return to the revolving fund any moneys so used upon resale or other transfer of such land.

History. Enact. Acts 1966, ch. 4, § 34; 1972 (1st Ex. Sess.), ch. 3, § 75; 1974, ch. 74, Art. III, § 13(2); 1980, ch. 62, § 27.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

350.158. Land under bond for restoration not to be acquired.

No land, with respect to which a bond conditioned upon the restoration thereof is in effect, shall be acquired pursuant to the provisions of KRS 350.152 to 350.163 and 350.240 , nor shall this chapter be construed to relieve any person from any obligation to backfill, grade, plant or perform other restoration and reclamation required by law.

History. Enact. Acts 1966, ch. 4, § 35.

NOTES TO DECISIONS

Cited:

Natural Resources & Envtl. Protection Cabinet v. Whitley Dev. Corp., 940 S.W.2d 904, 1997 Ky. App. LEXIS 26 (Ky. Ct. App. 1997).

350.160. Review of department’s action; appeals. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 8, § 16; 1956 (1st Ex. Sess.), ch. 7, Art. VII, § 7) was repealed by Acts 1962, ch. 105, § 16.

350.161. Acquisition and disposal of land, how governed.

All acquisitions and disposals of land or any interests therein pursuant to the authority granted by KRS 350.152 to 350.163 and 350.240 shall be governed by the applicable provisions of KRS Chapters 45 and 56.

History. Enact. Acts 1966, ch. 4, § 36.

350.163. Cabinet may accept state and federal funds — Deposit in State Treasury.

The cabinet is authorized and empowered to receive and accept from the Commonwealth or any of its agencies and from federal agencies, appropriations or grants to accomplish the purposes of this chapter, and to receive and accept aid or contributions from any source of either money, property, labor or any other things of value, to accomplish the purposes of this chapter.
All funds available or paid to the cabinet under this chapter shall be placed in the State Treasury and credited pursuant to the terms of the appropriation, grant, aid or contribution.

History. Enact. Acts 1966, ch. 4, § 37; 1972 (1st Ex. Sess.), ch. 3, § 76; 1978, ch. 332, § 9, effective June 17, 1978.

350.170. Construction of chapter.

This chapter shall not be construed as repealing any of the laws of the Commonwealth relating to the pollution of the waters thereof, any conservation or mining laws, but shall be held and construed as ancillary and supplemental thereto.

History. Enact. Acts 1954, ch. 8, § 19; 1966, ch. 4, § 21.

350.175. Persons required to comply with requirements of chapter.

Any agency, unit, or instrumentality of federal, state, or local government, including any publicly owned utility or publicly owned corporation of federal, state, or local government, which proposes to engage in surface coal mining operations, as defined by KRS 350.010(1), shall comply with the requirements of this chapter.

History. Enact. Acts 1980, ch. 62, § 38.

Compiler’s Notes.

For effective date of this section, see Compiler’s Notes following KRS 350.010 .

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

350.180. Advisory committee on strip mining and reclamation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956 (1st Ex. Sess.), ch. 7, Art. VII, § 8) was repealed by Acts 1962, ch. 105, § 16.

350.185. Advisory committees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 105, § 13; 1966, ch. 4, § 24) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93.

350.190. Application of KRS 350.010, 350.024, 350.026, 350.060, 350.090, and 350.990. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 143, § 8) was repealed by Acts 1962, ch. 105, § 16.

350.195. Chapter not applicable to mining of ball clay. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 105, § 15) was repealed by Acts 1966, ch. 4, § 28.

350.200. Signs to be posted at mining sites.

All surface coal mining operations operating under a permit from the cabinet shall display appropriate signs at the entrances, clearly setting forth the name, business address, phone number of the permittee and the permit number of the surface coal mining and reclamation operations, as required by regulations of the cabinet. Such signs shall be maintained during the life of the operation.

History. Enact. Acts 1966, ch. 4, § 13; 1974, ch. 74, Art. III, § 13(7); 1980, ch. 62, § 28.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

350.210. Monuments marking permit areas. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 4, § 25) was repealed by Acts 1980, ch. 377, § 14; such repeal took effect on May 18, 1982. See Compiler’s Notes following KRS 350.035 .

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

350.220. Regulation of use of explosives. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 4, § 22; 1972 (1st Ex. Sess.), ch. 3, § 77) was repealed by Acts 1978, ch. 155, § 165, effective June 17, 1978 and ch. 330, § 31, effective May 3, 1978. For present law, see KRS 350.430 .

350.230. Conformance to statutes and regulations required, when — Effective date of regulation.

Irrespective of date of issuance of a permit, all permittees, operators, and persons shall immediately conform to any statutes enacted or regulations adopted on the effective date of the statute or regulation. This section shall not require the regrading or replanting of any area on which the work was satisfactorily performed prior to the effective date of the statute or regulation. The cabinet shall specify for every regulation promulgated pursuant to this chapter the effective date of such regulation. However, the cabinet may specify a reasonable period of time in which permittees, persons, and operators shall conform to any regulations adopted when it finds that such conformance time is reasonably necessary.

History. Enact. Acts 1966, ch. 4, § 26; 1980, ch. 377, § 9; 1992, ch. 429, § 21, effective July 14, 1992.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.035 .

350.240. Clay mining regulations.

The Energy and Environment Cabinet may adopt reasonable regulations for the reclamation of land disturbed or removed in the mining of clay. Such regulations shall encourage water impoundments and shall follow the standards established in Article III of the Interstate Mining Compact. The cabinet shall have the authority to adopt such regulations prior to the effective date of the Interstate Mining Compact and irrespective of whether the state becomes a member or withdraws from membership in the Interstate Mining Compact.

History. Enact. Acts 1966, ch. 4, § 38; 1972 (1st Ex. Sess.), ch. 3, § 78; 1974, ch. 74, Art. III, § 13(2); 2010, ch. 24, § 1882, effective July 15, 2010; 2017 ch. 117, § 44, effective June 29, 2017.

Legislative Research Commission Note.

(7/11/91). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 and 7.140 .

350.245. Permit required to conduct mining for vein minerals — Exemptions.

A person shall not conduct mining for limestone, dolomite, sand, gravel, clay, fluorspar, or other vein minerals without first obtaining a permit from the cabinet. However, no permit shall be required for the excavation of limestone, dolomite, sand, gravel, clay, fluorspar, or other vein minerals by a landowner for personal, noncommercial use if:

Fifty (50) tons or less are excavated in twelve (12) successive calendar months;
They are excavated from land owned by the landowner; and
They are used only on the property owned by the landowner, as provided in Article II(a) of KRS 350.300 .

HISTORY: 2018 ch. 85, § 5, effective July 14, 2018.

350.250. Complaints of violation — Mandamus — Civil action by person adversely affected by violation — Intervention by cabinet.

Any person with an interest which is or may be adversely affected having knowledge that any of the provisions of this chapter or regulations adopted thereunder are not being enforced by any public officer or employee, whose duty it is to enforce such provisions of this chapter and regulations thereunder, may bring such failure to enforce the law to the attention of such public officer or employee. To provide against unreasonable and irresponsible demands being made, all such demands to enforce the law must be in writing, under oath, with facts set forth specifically stating the nature of the failure to enforce the law. If such public officer or employee neglects or refuses for any unreasonable time but in no event longer than sixty (60) days after demand to enforce such provision, any such person shall have the right to bring an action of mandamus in the Circuit Court of the county in which the operation which relates to the alleged lack of enforcement is being conducted; provided, that any action pursuant to this section may be brought immediately after a demand for enforcement when the violation or order complained of constitutes an imminent threat to the health or safety of the complaining person or would immediately affect a legal interest of the complaining person. The court, if satisfied that any provision of this chapter or regulation thereunder is not being enforced, shall make an appropriate order compelling the public officer or employee, whose duty it is to enforce such provision, to perform his duties, and upon failure to do so such public officer or employee shall be held in contempt of court and shall be subject to the penalties provided by the laws of the Commonwealth in such cases.
The court having jurisdiction of a complaint made pursuant to subsection (1) of this section may in its final order award costs of litigation (including attorney and expert witness fees) to any party, whenever the court determines such an award is appropriate.
Any person who is or may be adversely affected by the violation by any person of any rule, regulation, order or permit issued pursuant to this chapter may bring a civil action for injunctive relief or for damages or both (including reasonable attorney and expert witness fees) in the Circuit Court of the county in which the surface coal mining operation complained of is located. Nothing in this subsection shall be construed to be a waiver of sovereign immunity by the Commonwealth.
In such action under this section, the cabinet, if not a party, may intervene as a matter of right.

History. Enact. Acts 1966, ch. 4, § 23; 1978, ch. 332, § 10, effective June 17, 1978; 1980, ch. 62, § 29; 1984, ch. 145, § 4, effective March 28, 1984.

Compiler’s Notes.

Section 7 of Acts 1984, ch. 145 read: “Section 7. Whereas, the secretary of the interior set May 1, 1984, as the date by which the Commonwealth shall have enacted certain statutory revisions as a condition of primacy, an emergency is declared to exist and this legislation shall become validly enacted law when signed by the governor, and the provisions of this Act shall become operative simultaneously with their approval in the state’s permanent regulatory program by the secretary of the interior pursuant to Public Law 95-87, the surface mining control and reclamation act of 1977.”

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

NOTES TO DECISIONS

1.Innocent Third Party.

This section confers on a innocent third party, who has been aggrieved either by a public employee’s failure to enforce the surface mining laws or by a surface miner’s violation of the law, a right to file a civil action seeking appropriate relief; nothing in the statute’s language evidences a legislative intent to confer upon a surface miner the right to avoid a pending administrative enforcement proceeding by directly filing a Circuit Court action against the Cabinet and obtaining an adjudication upholding the surface miner’s defenses to enforcement proceedings. White v. Shepherd, 940 S.W.2d 909, 1997 Ky. App. LEXIS 25 (Ky. Ct. App. 1997).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

350.255. Petition for initiation of proceeding for issuance, amendment or repeal of a regulation — Notice — Hearing — Order — Judicial review.

Any person may petition the secretary of the Energy and Environment Cabinet to initiate a proceeding for the issuance, amendment, or repeal of any regulation under this chapter.

Notice and an opportunity shall be provided for the petitioner and any person wishing to participate to be heard at a public hearing within thirty (30) days following the filing of the petition on the facts, technical justification, and law alleged in the petition.
The secretary shall render a final order in writing within thirty (30) days after the hearing granting or denying the petition on grounds that there is a reasonable basis for the petitioned rule change, or is not, or that it is required or prohibited by law and setting forth the reasons for the decision.
The secretary shall initiate a rulemaking proceeding pursuant to KRS Chapter 13A within thirty (30) days after a petition is granted proposing the issuance, amendment, or repeal of the petitioned regulations in conformity with the final order.
Any participant in the petition proceedings may seek review in the Circuit Court of Franklin County of a final order of the secretary denying all or any portion of the action requested in a petition.

History. Enact. Acts 1980, ch. 209, § 3; 1980, ch. 377, § 7; 1992, ch. 304, § 5, effective July 14, 1992; 1992, ch. 429, § 22, effective July 14, 1992; 1994, ch. 178, § 5, effective July 15, 1994; 2010, ch. 24, § 1883, effective July 15, 2010.

Compiler’s Notes.

For effective date of the 1980 enactment and amendment of this section, see Compiler’s Notes following KRS 350.025 and KRS 350.035 .

Legislative Research Commission Note.

(7/14/92) This section was amended by 1992 Acts chs. 304 and 429 which are in conflict. Pursuant to KRS 446.250 , Acts ch. 429 which was last enacted by the General Assembly prevails.

(10/5/90). Pursuant to KRS 7.136(1), KRS Chapter 13A has been substituted for the prior reference to KRS Chapter 13 in this statute. The sections in KRS Chapter 13 were repealed by 1984 Ky. Acts ch. 417, sec. 36, and KRS Chapter 13A was created in that same chapter of the 1984 Ky. Acts.

350.260. Small Coal Operators Advisory Council. [Repealed]

History. Enact. Acts 1984, ch. 328, § 1, effective July 13, 1984; 1990, ch. 325, § 32, effective July 13, 1990; 1992, ch. 119, § 1, effective July 14, 1992; 1996, ch. 194, § 64, effective July 15, 1996; 2005, ch. 123, § 53, effective June 20, 2005; 2010, ch. 24, § 1884 , effective July 15, 2010; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Acts 1984, ch. 328, § 1, effective July 13, 1984; 1990, ch. 325, § 32, effective July 13, 1990; 1992, ch. 119, § 1, effective July 14, 1992; 1996, ch. 194, § 64, effective July 15, 1996; 2005, ch. 123, § 53; effective June 20, 2005; 2010, ch. 24, § 1884, effective July 15, 2010) was repealed by 2017 ch. 117, § 49, effective March 27, 2017.

350.270. Disposal of coal combustion by-products at surface coal mining operations — Permitting process — Requirements for disposal — Authority for administrative regulations.

The cabinet may issue a permit under this chapter authorizing the disposal of coal combustion by-products at surface coal mining operations.
This section shall apply to the disposal of waste from burning clean oil or gas with coal, if the oil or gas is used only for startup or flame stabilization. This section shall not apply to disposal of coal combustion by-products for which a special waste formal permit or a special waste registered permit-by-rule is required under administrative regulations promulgated pursuant to KRS Chapter 224. This section shall also not apply to disposal of coal combustion by-products that have been mixed or otherwise co-managed with low volume waste or with materials that exhibit hazardous waste characteristics. This section shall also not apply to coal combustion by-products generated prior to July 15, 1994, unless the applicant can demonstrate to the satisfaction of the cabinet that these coal combustion by-products have not been mixed or otherwise co-managed with low volume waste or with materials that exhibit hazardous waste characteristics. This section shall also not apply to underground injection of coal combustion by-products.
An application to modify an existing permit to initially include disposal of coal combustion by-products shall be an application for a major revision or an amendment under KRS 350.070 .
An application under this section to modify an existing permit issued under this chapter that includes coal combustion by-product disposal pursuant to a permit issued under KRS Chapter 224, where the application proposes disposal of the same coal combustion by-products in the same locations as approved in these existing permits in a manner consistent with the disposal requirements of this section, may be made by application for a minor revision.
An application to modify an existing permit to increase the amount of coal combustion by-products to be received, to change the components of the coal combustion by-products, or to change the generating facility, may be an application for a minor revision. However, if the cabinet determines that the scope and nature of the proposed change will have the effect of increasing the concentrations of heavy metals, or is such that public notice is necessary to allow participation in the cabinet’s decision by persons who have an interest which may be adversely affected by the proposed change, the change shall be made by application for a major revision.
The permittee shall keep accurate records, which shall be made available to the cabinet upon request, showing the source and amount of each shipment of coal combustion by-products that is received.
Prior to disposal of the coal combustion by-products, any material that is not the coal combustion by-products approved for disposal shall be removed from the coal combustion by-products. A record shall be kept of the removed material and its disposition, and this record shall be available at the minesite for examination by the cabinet.
Coal combustion by-products shall be disposed of only in the pit or extraction area from which coal has been removed by surface mining activities; except that coal combustion by-products may be disposed of in areas within the permit area other than coal extraction areas if the applicant demonstrates to the satisfaction of the cabinet, based upon site specific conditions and the characteristics of the coal combustion by-products, that no adverse environmental impacts will occur.
No component of the coal combustion by-products to be disposed of shall be listed or meet the criteria of a hazardous waste in the cabinet’s administrative regulations promulgated pursuant to KRS Chapter 224 and the Resource Conservation and Recovery Act of 1976 (Public Law 94-580), as amended.
The permittee shall prepare and maintain accurate maps, which shall be made available to the cabinet upon request, showing each location where coal combustion by-products have been disposed of under this section and the volume of coal combustion by-products disposed of at that location. Phase I bond release shall not be granted for an area containing coal combustion by-products unless the permittee has submitted to the cabinet accurate maps showing the locations and volumes of the coal combustion by-products disposed of under this section.
If requested by the cabinet, or if required by the issued permit, the applicant or permittee shall provide representative samples of the coal combustion by-products to the cabinet in a manner satisfactory to the cabinet.
The permittee shall annually obtain and submit to the cabinet, a laboratory analysis to characterize the coal combustion by-products in the manner required under the cabinet’s administrative regulations promulgated pursuant to KRS Chapter 224 and the Resource Conservation and Recovery Act of 1976 (Public Law 94-580), as amended.
If the disposal of coal combustion by-products is proposed, any newspaper advertisements required under KRS 350.055 shall also state that the applicant proposes to dispose of coal combustion by-products in the permit area and shall state the location, business name, and mailing address of the facility that will generate the coal combustion by-products.
The application shall demonstrate that the applicant has the legal right to dispose of coal combustion by-products on the proposed disposal areas. The application shall include a copy of the conveyance that grants or reserves the right to dispose of waste materials such as coal combustion by-products. If the mineral estate has been severed from the surface estate, the application shall include the written consent of the surface owner for the disposal of coal combustion by-products or a copy of the conveyance that expressly grants or reserves the right to dispose of coal combustion by-products.
The application shall state:
1. The location, business name, mailing address, and telephone number of the facility that will generate the coal combustion by-products, and the name and title of the responsible official of the generating facility who may be contacted regarding the coal combustion by-products;
2. Each of the component materials, fly ash, bottom ash, scrubber sludge, or fluidized bed combustion waste that the coal combustion by-products will contain; and
3. The approximate volume in cubic yards, and the approximate tonnage, of coal combustion by-products that will be received from the generating facility annually and for the term of the permit.
The application shall include the results of representative sampling and laboratory analysis of each component of the coal combustion by-products for contaminants listed in the cabinet’s administrative regulations promulgated pursuant to KRS Chapter 224 and the Resource Conservation and Recovery Act of 1976 (Public Law 94-580), as amended, using analytical testing methods performed in accordance with those administrative regulations. The analysis for metals shall include aluminum, antimony, arsenic, barium, beryllium, cadmium, chromium, cobalt, copper, lead, manganese, molybdenum, nickel, selenium, mercury, silver, thallium, vanadium, and zinc. The analysis shall also include the neutralization potential and potential acidity. The application shall demonstrate that each component of the coal combustion by-products shall not contain any contaminant at a concentration that equals or exceeds the regulatory level set forth in the cabinet’s administrative regulations promulgated pursuant to KRS Chapter 224 and the Resource Conservation and Recovery Act of 1976 (Public Law 94-580), as amended.
The application shall describe the proposed methods of coal combustion by-product handling and disposal, including methods of record keeping.
The application shall include appropriate maps and drawings of all areas and facilities to be used in the permit area for coal combustion by-product handling and disposal.
Each application for disposal of coal combustion by-products shall contain a determination of the probable hydrologic consequences of the disposal of coal combustion by-products for the permit and adjacent area and shall include a description of the measures to be taken to assure that the disposal will not pose a threat to human health or the environment, to minimize disturbances to the hydrologic balance within the permit area and adjacent area, and to prevent material damage to the hydrologic balance outside the permit area. The description shall be based on the baseline hydrologic, geologic, and other information required under this chapter and shall identify the protective measures to be taken to meet the requirements of this chapter or demonstrate to the satisfaction of the cabinet that protective measures are not necessary for the operation to meet the requirements, considering the characteristics and volume of the coal combustion by-products and the hydrogeologic characteristics of the site determined from the baseline hydrologic, geologic, and other information required under this chapter. The application shall describe the measures to be taken to prevent coal combustion by-products from becoming airborne.
The application shall include baseline data to characterize the quality of ground water and surface water in areas that may be affected by disposal of coal combustion by-products.
Surface water and ground water baseline data collection and monitoring stations shall be established, as appropriate, to satisfy the requirements of this chapter. In determining the acceptable number and locations of monitoring wells, the cabinet shall recognize the distinct differences between disposal of coal combustion by-products under this section and the disposal of coal combustion by-products for which a special waste formal permit or a special waste registered permit-by-rule is required under administrative regulations promulgated pursuant to KRS Chapter 224.
The characterization of ground water shall include the parameters of total dissolved solids, or specific conductance corrected to twenty-five (25) degrees Celsius; pH; dissolved iron; dissolved manganese; acidity; alkalinity; sulfate; arsenic; barium; cadmium; chromium; lead; mercury; selenium; and silver; except the cabinet may require different parameters for an application based upon the demonstrated characteristics of the coal combustion by-products.
The characterization of surface water shall include the parameters of total dissolved solids, or specific conductance corrected to twenty-five (25) degrees Celsius; total suspended solids; pH; total iron; total manganese; acidity; alkalinity; sulfate; arsenic; barium; cadmium; chromium; lead; mercury; selenium; and silver; except the cabinet may require different parameters for an application based upon the demonstrated characteristics of the coal combustion by-products.
The minimum number of sampling events for baseline characterization of ground water and surface water for parameters beyond those normally required for surface coal mining operations shall be in accordance with cabinet administrative regulations promulgated pursuant to KRS Chapter 224 pertaining to special waste landfills used solely for the disposal of coal combustion by-products.
The application shall include a plan for the monitoring and reporting, until final bond release on the permit area, of the quality of ground water and surface water in areas that may be affected by disposal of coal combustion by-products and shall provide for monitoring capable of detecting if contaminants from the coal combustion by-products are entering ground water and surface water.
The performance bond required under this chapter shall cover the disposal of coal combustion by-products on the permit area.
A permittee, operator, or person disposing of coal combustion by-products under this section shall comply with the following additional environmental protection performance standards:
1. The coal combustion by-products shall be handled and disposed by the method approved in the permit.
2. Disposal areas and facilities used for coal combustion by-products handling and disposal shall be designed, located, operated, and maintained to assure that the handling and disposal will not pose a threat to human health or the environment, to minimize disturbances to the hydrologic balance within the permit area and adjacent area, and to prevent material damage to the hydrologic balance outside the permit area, as required under this chapter.
3. To the extent practicable, areas to receive coal combustion by-products shall be selected to minimize water contact with the coal combustion by-products.
4. The coal combustion by-products shall be placed at least four (4) feet above the seasonal high water table that is projected to be established after completion of mining and reclamation, unless the applicant demonstrates to the satisfaction of the cabinet, based upon site specific conditions and the characteristics of the coal combustion by-products, that no adverse environmental impacts will occur.
5. The coal combustion by-products shall not be placed within four (4) feet horizontally of a final highwall, exposed coal seam, or coal outcrop.
6. The volume of coal combustion by-products disposed of on the permit area shall not exceed the in-place volume of the marketable coal seams to be removed from the permit area.
7. Disposal of coal combustion by-products shall not result in a greater amount of excess spoil than the amount that would result if disposal of coal combustion by-products were not part of the permitted operation.
8. The thickness of coal combustion by-products at any point in any disposal area shall not exceed forty (40) feet.
9. The cabinet may reduce the allowable maximum volume or thickness of coal combustion by-products for a disposal area if the cabinet determines, based upon site specific conditions and the characteristics of the coal combustion by-products, that the reduction in volume or thickness is necessary to assure protection of human health and the environment.
10. After the coal combustion by-products are placed in the disposal area, they shall be covered as contemporaneously as practicable with at least four (4) feet of nonacid-forming spoil material.
The permittee shall monitor and report the quality of surface and ground water quarterly, except the monitoring of water quality parameters beyond those normally required for surface coal mining operations shall be conducted semiannually. The monitoring shall be conducted until final bond release on the permit area; except after four (4) initial monitoring events for the parameters beyond those normally required for surface coal mining operations, if analysis of subsequent monitoring events indicates no exceedences above maximum contaminant levels under cabinet administrative regulations promulgated pursuant to KRS Chapter 224 and the Safe Drinking Water Act of 1974 (Public Law 93-523), as amended, the permittee may, upon request, be granted permission from the cabinet to reduce monitoring parameters required under this chapter. The monitoring and reporting shall comply with the plan approved pursuant to subsection (25) of this section.
The monitoring and reporting of ground water quality shall include the parameters used in the baseline characterization of ground water under subsection (22) of this section, except the cabinet may require different parameters for a permit based upon the demonstrated characteristics of the coal combustion by-products.
The monitoring and reporting of surface water quality shall include the parameters used in the baseline characterization of surface water under subsection (23) of this section, except the cabinet may require different parameters for a permit based upon the demonstrated characteristics of the coal combustion by-products.
The cabinet shall, upon July 15, 1994, process applications submitted under this section in the same manner as other permit applications submitted under this chapter.
The cabinet may promulgate administrative regulations under this section pertaining to the disposal of coal combustion by-products.

History. Enact. Acts 1994, ch. 459, § 2, effective July 15, 1994.

Compiler’s Notes.

The Resource Conservation and Recovery Act of 1976 (Public Law 94-580) referred to in subsections (9), (12) and (16) of this section is compiled as 42 USCS §§ 6901 to 6907, 6911 to 6916, 6921 to 6931, 6941 to 6949, 6951 to 6954, 6961 to 6964, 6971 to 6979 and 6981 to 6986 and the Safe Drinking Water Act of 1974 (Public Law 93-523) referred to in subsection (28) is compiled as 42 USCS §§ 300f, 300g-1 to 300j-11.

350.275. Legislative findings and declaration on backstowing and reinjection of coal processing and coal underground development waste.

The General Assembly finds that:
1. The backstowing of coal processing and coal underground development waste is a disposal method which, under appropriate conditions, is authorized under state and federal coal mining laws;
2. The state Division of Water and Department for Natural Resources, United States Environmental Protection Agency, and United States Mine Safety and Health Administration each have responsibilities under different state and federal laws relative to any proposal to backstow or reinject coal processing and coal underground development waste; and
3. The maximization of coordination of agency review of such a proposal is in the best interest of each agency, the proponent, and the public-at-large.
It is the intent of the General Assembly that the Energy and Environment Cabinet negotiate improved coordination among state and federal agencies in the review of proposals for backstowing or reinjection of coal processing and coal underground development waste, consistent with all requirements of KRS Chapters 224 and 350 and other state and federal laws relating to such proposals.

History. Enact. Acts 1996, ch. 323, § 3, effective July 15, 1996; 2010, ch. 24, § 1885, effective July 15, 2010.

350.280. Easements of necessity to abate certain dangerous violations and for appraisal purposes when access to property denied — When effective — Appraisal and calculation of damages — Independent appraisal by property owner or legal occupant — Payment of damages — Payment of entry fee for appraisal purposes.

1. As used in this section, “he or she” includes “person” as defined in KRS 350.010 .
2. If a permittee or operator has been issued a notice or order directing abatement of a violation on the basis of an imminent danger to health and safety of the public or significant imminent environmental harm, and the notice or order requires access to property for which the permittee or operator does not have the legal right of entry necessary in order to abate that violation, and the owner or legal occupant of that property has refused access, an easement of necessity is recognized on behalf of the permittee or operator for the limited purpose of abating that violation. The easement of necessity becomes effective, and the permittee or operator is authorized to enter the property to undertake immediate action to abate the violation if he or she concurrently:
  1. Provides to the property owner or legal occupant a copy of the cabinet’s order and a plan of action reasonably calculated to result in abatement of the violation, repair of the damage, and restoration of the property, and provides proof of liability insurance and workers’ compensation insurance covering any accidents or injuries occurring on the property during the remedial work;
  2. Provides to the property owner or legal occupant and cabinet an affidavit that he or she has been denied access to the property; and
  3. Provides to the property owner or legal occupant a statement that he or she, the permittee or operator, will diligently pursue abatement of the violation, and will obtain an appraisal completed by a real estate appraiser certified under KRS Chapter 324A of the damages to the property, including loss of use, that have resulted from the violation, that the appraisal will be completed and provided to the property owner or legal occupant within three (3) days of abatement of the violation by the operator or permittee, and that he or she will pay the property owner or legal occupant the amount of the damages in the permittee or operator’s appraisal at that time.
3. Following the effective date of the easement of necessity, the following procedure shall be followed with respect to the appraisal of the damages:
  1. The permittee or operator shall have a certified appraiser on the site and have his or her appraisal completed and submitted to the property owner or legal occupant within three (3) days of abatement of the violation by the operator or permittee;
  2. The property owner or legal occupant shall accept or reject this appraisal in writing within seven (7) days of receipt of the completed appraisal;
  3. If the property owner or legal occupant rejects this appraisal, he or she may hire a real estate appraiser certified under KRS Chapter 324A to appraise the damages, including loss of use, that have resulted from the violation, and this such appraisal shall be completed and provided to the permittee or operator within thirty (30) days of receipt of the permittee’s or operator’s completed appraisal. Upon receipt of the invoice the permittee or operator shall pay for the property owner or legal occupant’s appraisal up to the amount he or she paid for his or her own appraisal; and
  4. If the property owner or legal occupant accepts the permittee’s or operator’s appraisal, the permittee or operator shall promptly pay the property owner or legal occupant the amount of the damages reflected therein.
4. If the property owner or legal occupant has an appraisal done, and if, based on his or her appraisal and the permittee’s or operator’s appraisal, an agreement is not reached on the appraised damages, the permittee or operator shall pay the property owner or legal occupant the amount of the permittee’s or operator’s appraisal damages, and if the property owner or legal occupant’s appraisal damages are for more than the permittee’s or operator’s, the permittee or operator shall pay the difference to the circuit clerk, in the county in which the majority of the property lies, to be placed in an interest-bearing account in a bank until final resolution of the matter by agreement or court or jury judgment. If the property owner or legal occupant is granted award of some or all of the difference, he or she shall also receive the interest on that portion of the difference.
5. If the property owner or legal occupant does not accept or reject the permittee’s or operator’s appraisal and offer of funds for damages within the time specified in subparagraph 2. of paragraph (c) of this subsection, the appraisal and offer shall be deemed accepted.
6. The appraiser shall calculate the damages to the property, including loss of use, that have resulted from the violation which the owner or the legal occupant shall be entitled to under this subsection as the difference between the fair market value of the property before the violation and after the abatement of the violation, plus the reasonable rental value of the property during the period of time between the effective date of the easement of necessity and the date of the abatement of the violation.
If a permittee or operator has been issued a notice or order directing abatement of a violation other than one described in subsection (1) of this section, and the notice or order requires access to property for which the permittee or operator does not have the legal right of entry necessary in order to abate that violation, and the owner or legal occupant of that property has refused access, an easement of necessity is recognized on behalf of the permittee or operator, for the limited purpose of allowing a real estate appraiser certified under KRS Chapter 324A, chosen by the permittee or operator, to enter upon the property to which the owner or legal occupant has refused access in order for the appraiser to appraise the damages, including loss of use, that likely will result from the violation.
1. The easement for the limited purpose of allowing the appraisal under subsection (2) of this section shall be recognized and take effect when the operator or permittee:
  1. Provides to the property owner or legal occupant a copy of the cabinet’s order;
  2. Provides to the property owner or legal occupant and cabinet a plan of remedial measures to abate the violation;
  3. Provides to the property owner or legal occupant and cabinet an affidavit that he or she has been denied access to the property; and
  4. Provides to the property owner or legal occupant a statement that he or she, the permittee or operator, will within seven (7) days of entry of the appraiser obtain an appraisal of the damages to the property including loss of use, that likely will result from the violation, and that upon completion of the appraisal he or she will provide the appraisal to the property owner or legal occupant and pay the property owner or legal occupant an entry fee. The entry fee shall be calculated as one-half (1/2) of the amount of the appraisal or the sum of five hundred dollars ($500), whichever is greater, for the privilege to enter the property and conduct the appraisal.
2. Upon payment of the entry fee by the permittee or operator, an easement of necessity shall be recognized on behalf of the permittee or operator for the limited purposes of abating the violation and the operator or permittee shall be authorized to enter the property to undertake immediate action to abate the violation, provided that the landowner has been provided a plan of action reasonably calculated to result in abatement of the violation, repair of the damage, and restoration of the property, and the permittee or operator provides proof of liability insurance and workers’ compensation insurance covering any accidents or injuries occurring on the property during the remedial work.
3. Following the effective date of the easement of necessity to abate the violation, the procedures set forth in subsection (1)(c) to (f) of this section shall apply. The entry fee shall be deducted from any subsequent payment deemed due the property owner or legal occupant as a result of the post-abatement appraisal or appraisals. If the entry fee exceeds the amount of all appraisals, the property owner or legal occupant shall be entitled to retain the entry fee in its entirety.
Nothing contained in this section shall affect any person’s right to bring a civil action for damages, including punitive and compensatory damages, or other appropriate relief.

History. Enact. Acts 2000, ch. 267, § 1, effective July 14, 2000; 2002, ch. 284, § 1, effective April 9, 2002; 2004, ch. 159, § 1, effective July 13, 2004.

Legislative Research Commission Note.

(7/13/2004). Although Ky. Acts ch. 159, sec. 1(2), contains language concerning “a real estate appraiser certified under KRS Chapter 324,” it is clear from the context that citing to KRS Chapter 324, rather than to KRS Chapter 324A, was a manifest clerical or typographical error, and it has been corrected in codification under KRS 7.136(1)(h).

NOTES TO DECISIONS

1. Easement By Necessity.

350.285. Removal of coal on private land — Implementation of section. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2002, ch. 293, § 1, effective April 9, 2002) was repealed by Acts 2006, ch. 37, § 6, effective July 12, 2006.

Interstate Compact

350.300. Interstate Mining Compact enacted.

The Interstate Mining Compact is hereby enacted into law and entered into with all other jurisdictions legally joining therein in the form substantially as follows:

HISTORY: Enact. Acts 1966, ch. 4, § 29; 2018 ch. 85, § 6, effective July 14, 2018.

ARTICLE I Findings and Purposes

The party States find that:
1. Mining and the contributions thereof to the economy and well-being of every State are of basic significance.
2. The effects of mining on the availability of land, water and other resources for other uses present special problems which properly can be approached only with due consideration for the rights and interests of those engaged in mining, those using or proposing to use these resources for other purposes, and the public.
3. Measures for the reduction of the adverse effects of mining on land, water and other resources may be costly and the devising of means to deal with them are of both public and private concern.
4. Such variables as soil structure and composition, physiography, climatic conditions, and the needs of the public make impracticable the application to all mining areas of a single standard for the conservation, adaptation, or restoration of mined land, or the development of mineral and other natural resources; but justifiable requirements of law and practice relating to the effects of mining on land, water, and other resources may be reduced in equity or effectiveness unless they pertain similarly from state to state for all mining operations similarly situated.
5. The States are in a position and have the responsibility to assure that mining shall be conducted in accordance with sound conservation principles, and with due regard for local conditions.
The purposes of this compact are to:
1. Advance the protection and restoration of land, water and other resources affected by mining.
2. Assist in the reduction or elimination or counteracting of pollution or deterioration of land, water and air attributable to mining.
3. Encourage, with due recognition of relevant regional, physical, and other differences, programs in each of the party States which will achieve comparable results in protecting, conserving, and improving the usefulness of natural resources, to the end that the most desirable conduct of mining and related operations may be universally facilitated.
4. Assist the party States in their efforts to facilitate the use of land and other resources affected by mining, so that such use may be consistent with sound land use, public health, and public safety, and to this end to study and recommend, wherever desirable, techniques for the improvement, restoration or protection of such land and other resources.
5. Assist in achieving and maintaining an efficient and productive mining industry and in increasing economic and other benefits attributable to mining.

ARTICLE II Definitions

As used in this compact, the term:

“Mining” means the breaking of the surface soil in order to facilitate or accomplish the extraction or removal of minerals, ores, or other solid matter; any activity or process constituting all or part of a process for the extraction or removal of minerals, ores, and other solid matter from its original location; and the preparation, washing, cleaning, or other treatment of minerals, ores, or other solid matter so as to make them suitable for commercial, industrial, or construction use; but shall not include those aspects of deep mining not having significant effect on the surface, and shall not include excavation or grading when conducted solely in aid of farming or construction pursuant to KRS 350.245 .
“State” means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a Territory or Possession of the United States.

ARTICLE III State Programs

Each party State agrees that within a reasonable time it will formulate and establish an effective program for the conservation and use of mined land, by the establishment of standards, enactment of laws, or the continuing of the same in force, to accomplish:

The protection of the public and the protection of adjoining and other landowners from damage to their lands and the structures and other property thereon resulting from the conduct of mining operations or the abandonment or neglect of land and property formerly used in the conduct of such operations.
The conduct of mining and the handling of refuse and other mining wastes in ways that will reduce adverse effects on the economic, residential, recreational or aesthetic value and utility of land and water.
The institution and maintenance of suitable programs for adaptation, restoration, and rehabilitation of mined lands.
The prevention, abatement and control of water, air and soil pollution resulting from mining, present, past and future.

ARTICLE IV Powers

In addition to any other powers conferred upon the Interstate Mining Commission, established by Article V of this compact, such Commission shall have power to:

Study mining operations, processes and techniques for the purpose of gaining knowledge concerning the effects of such operations, processes and techniques on land, soil, water, air, plant and animal life, recreation, and patterns of community or regional development or change.
Study the conservation, adaptation, improvement and restoration of land and related resources affected by mining.
Make recommendations concerning any aspect or aspects of law or practice and governmental administration dealing with matters within the purview of this compact.
Gather and disseminate information relating to any of the matters within the purview of this compact.
Cooperate with the federal government and any public or private entities having interests in any subject coming within the purview of this compact.
Consult, upon the request of a party State and within resources available therefor, with the officials of such State in respect to any problem within the purview of this compact.
Study and make recommendations with respect to any practice, process, technique, or course of action that may improve the efficiency of mining or the economic yield from mining operations.
Study and make recommendations relating to the safeguarding of access to resources which are or may become the subject of mining operations to the end that the needs of the economy for the products of mining may not be adversely affected by unplanned or inappropriate use of land and other resources containing minerals or otherwise connected with actual or potential mining sites.

ARTICLE V The Commission

There is hereby created an agency of the party States to be known as the “Interstate Mining Commission,” hereinafter called “the Commission.” The Commission shall be composed of one commissioner from each party State who shall be the Governor thereof. Pursuant to the laws of his party State, each Governor shall have the assistance of an advisory body (including membership from mining industries, conservation interests, and such other public and private interests as may be appropriate) in considering problems relating to mining and in discharging his responsibilities as the commissioner of his State on the Commission. In any instance where a Governor is unable to attend a meeting of the Commission or perform any other function in connection with the business of the Commission, he shall designate an alternate, from among the members of the advisory body required by this paragraph, who shall represent him and act in his place and stead. The designation of an alternate shall be communicated by the Governor to the Commission in such manner as its bylaws may provide.
The commissioners shall be entitled to one vote each on the Commission. No action of the Commission making a recommendation pursuant to Article IV-3, IV-7, and IV-8 or requesting, accepting or disposing of funds, services, or other property pursuant to this paragraph, Articles V(g), V(h), or VII shall be valid unless taken at a meeting at which a majority of the total number of votes on the Commission is cast in favor thereof. All other action shall be by a majority of those present and voting: provided that action of the Commission shall be only at a meeting at which a majority of the commissioners, or their alternates, is present. The Commission may establish and maintain such facilities as may be necessary for the transacting of its business. The Commission may acquire, hold, and convey real and personal property and any interest therein.
The Commission shall have a seal.
The Commission shall elect annually, from among its members, a chairman, a vice chairman, and a treasurer. The Commission shall appoint an Executive Director and fix his duties and compensation. Such Executive Director shall serve at the pleasure of the Commission. The Executive Director, the Treasurer, and such other personnel as the Commission shall designate shall be bonded. The amount or amounts of such bond or bonds shall be determined by the Commission.
Irrespective of the civil service, personnel or other merit system laws of any of the party States, the Executive Director with the approval of the Commission, shall appoint, remove or discharge such personnel as may be necessary for the performance of the Commission’s functions, and shall fix the duties and compensation of such personnel.
The Commission may establish and maintain independently or in conjunction with a party State, a suitable retirement system for its employees. Employees of the Commission shall be eligible for social security coverage in respect of old age and survivor’s insurance provided that the Commission takes such steps as may be necessary pursuant to the laws of the United States, to participate in such program of insurance as a governmental agency or unit. The Commission may establish and maintain or participate in such additional programs of employee benefits as it may deem appropriate.
The Commission may borrow, accept or contract for the services of personnel from any State, the United States, or any other governmental agency, or from any person, firm, association or corporation.
The Commission may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials and services, conditional or otherwise, from any State, the United States, or any other governmental agency, or from any person, firm, association or corporation, and may receive, utilize and dispose of the same. Any donation or grant accepted by the Commission pursuant to this paragraph or services borrowed pursuant to paragraph (g) of this Article shall be reported in the annual report of the Commission. Such report shall include the nature, amount and conditions, if any, of the donation, grant or services borrowed and the identity of the donor or lender.
The Commission shall adopt bylaws for the conduct of its business and shall have the power to amend and rescind these bylaws. The Commission shall publish its bylaws in convenient form and shall file a copy thereof and a copy of any amendment thereto, with the appropriate agency or officer in each of the party States.
The Commission annually shall make to the Governor, legislature and advisory body required by Article V(a) of each party State a report covering the activities of the Commission for the preceding year, and embodying such recommendations as may have been made by the Commission. The Commission may make such additional reports as it may deem desirable.

ARTICLE VI Advisory, Technical, and Regional Committees

The Commission shall establish such advisory, technical, and regional committees as it may deem necessary, membership on which shall include private persons and public officials, and shall cooperate with and use the services of any such committees and the organizations which the members represent in furthering any of its activities. Such committees may be formed to consider problems of special interest to any party States, problems dealing with particular commodities or types of mining operations, problems related to reclamation, development, or use of mine land, or any other matters of concern to the Commission.

ARTICLE VII Finance

The Commission shall submit to the Governor or designated officer or officers of each party State a budget of its estimated expenditures for such period as may be required by the laws of that party State for presentation to the legislature thereof.
Each of the Commission’s budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party States. The total amount of appropriations requested under any such budget shall be apportioned among the party States as follows: one-half in equal shares; and the remainder in proportion to the value of minerals, ores, and other solid matter mined. In determining such values, the Commission shall employ such available public source or sources of information as, in its judgment, present the most equitable and accurate comparisons among the party States. Each of the Commission’s budgets of estimated expenditures and requests for appropriations shall indicate the source or sources used in obtaining information concerning value of minerals, ores, and other solid matter mined.
The Commission shall not pledge the credit of any party State. The Commission may meet any of its obligations in whole or in part with funds available to it under Article V(h) of this compact: provided that the Commission takes specific action setting aside such funds prior to incurring any obligation to be met in whole or in part in such manner. Except where the Commission makes use of funds available to it under Article V(h) hereof, the Commission shall not incur any obligation prior to the allotment of funds by the party States adequate to meet the same.
The Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Commission shall be subject to the audit and accounting procedures established under its bylaws. All receipts and disbursements of funds handled by the Commission shall be audited yearly by a qualified public accountant and the report of the audit shall be included in and become part of the annual report of the Commission.
The accounts of the Commission shall be open at any reasonable time for inspection by duly constituted officers of the party States and by any persons authorized by the Commission.
Nothing contained herein shall be construed to prevent Commission compliance with laws relating to audit or inspection of accounts by or on behalf of any government contributing to the support of the Commission.

ARTICLE VIII Entry into Force and Withdrawal

This compact shall enter into force when enacted into law by any four or more States. Thereafter, this compact shall become effective as to any other State upon its enactment thereof.
Any party State may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until one year after the Governor of the withdrawing State has given notice in writing of the withdrawal to the Governors of all other party States. No withdrawal shall affect any liability already incurred by or chargeable to a party State prior to the time of such withdrawal.

ARTICLE IX Effect on Other Laws

Nothing in this compact shall be construed to limit, repeal or supersede any other law of any party State.

ARTICLE X Construction and Severability

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any State or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any State participating herein, the compact shall remain in full force and effect as to the remaining party States and in full force and effect as to the State affected as to all severable matters.

350.310. Mining Council — Members — Terms.

The “Mining Council,” hereinafter called “the council,” is hereby established in the office of the Governor. The council shall be the advisory body referred to in Article V(a) of the Interstate Mining Compact. No member of the council shall receive any compensation on account of his service thereon, but any such member shall be entitled to reimbursement for expenses actually incurred by him in connection with his possible service as the Governor’s alternate on the Interstate Mining Commission.
The council shall be composed of eight (8) members: one (1) of whom shall be the Lieutenant Governor; three (3) of whom shall be representatives of mining industries; two (2) of whom shall be representatives of nongovernmental conservation interests; the commissioner for environmental protection and the secretary of the Energy and Environment Cabinet.
The members of the council representing mining industries and nongovernmental conservation interests shall be appointed by the Governor. The term of office of such members shall be for four (4) years concurrent with that of the Governor or until their successor has been qualified.

History. Enact. Acts 1966, ch. 4, § 30; 1972 (1st Ex. Sess.), ch. 3, § 79; 1974, ch. 74, Art. III, § 13(7); 1980, ch. 141, § 13, effective July 15, 1980; 2010, ch. 24, § 1886, effective July 15, 2010.

350.320. Bylaws of Interstate Mining Commission — Where filed.

In accordance with Article V(i) of the compact, the commission shall file copies of its bylaws and any amendments thereto with the Energy and Environment Cabinet.

History. Enact. Acts 1966, ch. 4, § 31; 1974, ch. 74, Art. III, § 13(7); 2010, ch. 24, § 1887, effective July 15, 2010.

Reclamation

350.400. Applicability. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 330, § 1, effective May 3, 1978) was repealed by Acts 1982, ch. 283, § 10. For effective date of Acts 1982, ch. 283, see Compiler’s Notes following KRS 350.010 .

350.405. Restoration of land.

The permittee or person shall restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses of which there is reasonable likelihood, so long as the use or uses do not present any actual or probable hazard to public health or safety or pose any actual or probable threat of water diminution or pollution, and the permit applicant’s declared proposed land use following reclamation is not deemed to be impractical or unreasonable, inconsistent with applicable land use policies and plans, involves unreasonable delay in implementation, or is violative of federal, state, or local law.

History. Enact. Acts 1978, ch. 330, § 2, effective May 3, 1978; 1992, ch. 429, § 23, effective July 14, 1992.

NOTES TO DECISIONS

Cited:

Natural Resources & Envtl. Protection Cabinet v. Whitley Dev. Corp., 940 S.W.2d 904, 1997 Ky. App. LEXIS 26 (Ky. Ct. App. 1997).

350.410. Restoration of approximate original contour.

Except as provided in KRS 350.450(2)(a) to (e), the permittee, operator, or person shall with respect to all surface coal mining operations backfill, compact (where advisable to insure stability or to prevent leaching of toxic materials), and grade in order to restore the approximate original contour of the land with all highwalls, spoil piles, and depressions eliminated (unless small depressions are needed in order to retain moisture to assist revegetation or as otherwise authorized pursuant to this chapter); provided, however, that in surface coal mining which is carried out at the same location over a substantial period of time where the operation transects the coal deposit, and the thickness of the coal deposits relative to the volume of the overburden is large and where the permittee or operator demonstrates that the overburden and other spoil and waste materials at a particular point in the permit area or otherwise available from the entire permit area is insufficient, giving due consideration to volumetric expansion, to restore the approximate original contour, the operator, at a minimum, shall backfill, grade, and compact (where advisable) using all available overburden and other spoil and waste materials to attain the lowest practicable grade but not more than the angle of repose, to provide adequate drainage and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with the surrounding region; and, provided further, that in surface coal mining where the volume of overburden is large relative to the thickness of the coal deposit and where the permittee or operator demonstrates that due to volumetric expansion the amount of overburden and other spoil and waste materials removed in the course of the mining operation is more than sufficient to restore the approximate original contour, the permittee or operator shall, after restoring the approximate contour, backfill, grade, and compact (where advisable) the excess overburden and other spoil and waste materials to attain the lowest grade but not more than the angle of repose, and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with the surrounding region and that the overburden or spoil shall be shaped and graded in such a way as to prevent slides, erosion, and water pollution and shall be revegetated in accordance with the requirements of this chapter.

History. Enact. Acts 1978, ch. 330, § 3, effective May 3, 1978; 1980, ch. 62, § 30; 1992, ch. 429, § 24, effective July 14, 1992.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

350.415. Soil segregation.

The permittee or operator shall remove the topsoil from the land in a separate layer, replace it on the backfill area, or if not utilized immediately, segregate it in a separate pile from other spoil and when the topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of the topsoil, maintain a successful cover by quick growing plant or other means thereafter so that the topsoil is preserved from wind and water erosion, remains free of any contamination by other acid or toxic material, and is in a usable condition for sustaining vegetation when restored during reclamation, except if topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other strata can be shown to be more suitable for vegetation requirements, then the operator shall remove, segregate, and preserve in a like manner such other strata which are best able to support vegetation. Or where topsoil is of insufficient quantity or of poor quality for sustaining vegetation, the permittee or operator may, with the approval of the cabinet, employ the technology required to utilize alternative soil materials approved by the cabinet or soil amendments necessary to sustain vegetation in accordance with the requirements of this chapter.

History. Enact. Acts 1978, ch. 330, § 4, effective May 3, 1978; 1992, ch. 429, § 25, effective July 14, 1992.

350.420. Minimization of the disturbance to hydrologic balance.

The permittee, operator, or person shall minimize disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation by:

Avoiding acid or other toxic mine drainage by such measures as, but not limited to:
1. Preventing or removing water from contact with toxic producing deposits;
2. Treating drainage to reduce toxic content which adversely affects downstream water upon being released to watercourses; and
3. Casing, sealing, or otherwise managing boreholes, shafts, and wells and keeping acid or other toxic drainage from entering ground and surface waters;
Conducting surface coal mining operations so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow, or runoff outside the permit area, but in no event shall contributions be in excess of requirements set by applicable state or federal law;
Constructing any siltation structures pursuant to subsection (2) of this section prior to commencement of surface coal mining operations, the structures to be certified by a qualified registered engineer to be constructed as designed and as approved in the reclamation plan;
Cleaning out and removing temporary or large settling ponds or other siltation structures from drainways after disturbed areas are revegetated and stabilized, and depositing the silt and debris at a site and in a manner approved by the cabinet; however, settling ponds and siltation structures may be left and not removed if determined to be safe and written approval is granted by the cabinet pursuant to its regulations;
Restoring recharge capacity of the mined area to approximate premining conditions;
Avoiding channel deepening or enlargement in operations requiring the discharge of water from mines; and
Such other actions as the cabinet may prescribe.

History. Enact. Acts 1978, ch. 330, § 5, effective May 3, 1978; 1980, ch. 62, § 31; 1980, ch. 377, § 12; 1992, ch. 429, § 26, effective July 14, 1992.

Compiler’s Notes.

For effective date of the 1980 amendments to this section, see Compiler’s Notes following KRS 350.010 and 350.035 .

350.421. Protection of water resources.

Nothing in this chapter shall be construed as affecting in any way the right of any person to enforce or protect, under applicable law, his interest in water resources affected by a surface coal mining operation or an underground coal mine.
Each permittee or operator of a surface or underground coal mine shall replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution, or interruption proximately resulting from the surface or underground coal mine.

History. Enact. Acts 1980, ch. 62, § 37; 1992, ch. 429, § 27, effective July 14, 1992; 1994, ch. 311, § 1, effective July 15, 1994.

Compiler’s Notes.

For effective date of this section, see Compiler’s Notes following KRS 350.010 .

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

NOTES TO DECISIONS

1.Replacement Obligation.

Where well water was contaminated due to mining activities, the mine’s owner and operator was required to provide the property owners with access to a clean water source even though the well water, without mine contamination, was already contaminated and unfit for most uses because the property owners could easily correct the pre-mining problems with cleaning and routine maintenance but, even with cleaning and maintenance, the sulfates from the mining operation would remain. Further, the requirement of KRS 350.421(2) to provide fresh water upon contaminating a water source did not require the replacement only of an uncontaminated water supply; although the well water was already unfit for drinking and other uses, it was undisputed that it was also contaminated from mining operations, and as such, the mine was liable for the provision of fresh, uncontaminated water. Star Run, Inc. v. Commonwealth Envtl. & Pub. Prot. Cabinet, 350 S.W.3d 1, 2010 Ky. App. LEXIS 204 (Ky. Ct. App. 2010).

350.425. Waste used as dams — Jurisdiction over dams.

The permittee, operator, or other person shall design, locate, construct, operate, maintain, enlarge, modify, and remove or abandon, in accordance with the standards and criteria developed pursuant to subsection (f) of Section 515 of Public Law 95-87, “Surface Mining Control and Reclamation Act of 1977,” all existing and new coal mine waste piles consisting of mine wastes, tailings, coal processing wastes, or other liquid and solid wastes, and used either temporarily or permanently as dams or embankments. The Energy and Environment Cabinet through this chapter shall have exclusive jurisdiction over KRS Chapter 151 concerning the regulation of dams, levees, embankments, dikes, bridges, fills, or other obstructions across or along any stream or in the floodway of any stream, which structures or obstructions are permitted under this chapter.

History. Enact. Acts 1978, ch. 330, § 6, effective May 3, 1978; 1982, ch. 368, § 1, effective April 2, 1982; 1992, ch. 429, § 28, effective July 14, 1992; 2005, ch. 123, § 54, effective June 20, 2005; 2010, ch. 24, § 1888, effective July 15, 2010.

Compiler’s Notes.

Section 3 of Acts 1982, ch. 368 provided: “The general assembly finds and declares that it is vitally important to the Commonwealth that the statutes relating to surface coal mining be cohesive and administratively workable. Therefore, the general assembly finds and declares that an emergency exists and that this legislation shall become validly enacted law when signed by the governor, and the provisions of this Act shall become operative simultaneously with the approval of the state’s proposed permanent program by the secretary of the interior pursuant to Public Law 95-87, the surface mining control and reclamation act of 1977. In the event that the secretary of the interior approves the permanent program before this legislation is signed by the governor, then the provisions of this Act shall become effective immediately upon the signing of this Act by the governor.”

The provisions of the act became operative on May 18, 1982 when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

Section 515 of Public Law 95-87, referred to in this section, is compiled as 30 USCS § 1265.

350.430. Explosives.

The permittee or operator shall:

Provide adequate advance written notice to local governments and residents who might be affected by the use of such explosives by publication of the planned blasting schedule in a newspaper of general circulation in the locality and by mailing a copy of the proposed blasting schedule to every resident living within one-half (1/2) mile of the proposed blasting site and by providing daily notice to resident/occupiers in the areas prior to any blasting;
Maintain for a period of at least three (3) years and make available for public inspection upon request a log detailing the location of the blasts, the pattern and depth of the drill holes, the amount of explosives used per hole, and the order and length of delay in the blasts;
Limit the type of explosives and detonating equipment, the size, the timing and frequency of blasts based upon the physical conditions of the site so as to prevent injury to persons, damage to public and private property outside the permit area, adverse impacts on any underground mine, and change in the course, channel, or availability of ground or surface water outside the permit area;
Require that all blasting operations be conducted by trained and competent persons as certified by the Department for Natural Resources; and
Provide that upon the request of a resident or owner of a man-made dwelling or structure within one-half (1/2) mile of any portion of the permitted area the applicant or permittee shall conduct a preblasting survey of the structures and submit the survey to the cabinet and a copy to the resident or owner making the request. The area of the survey shall be decided by the cabinet and shall include such provisions as the cabinet shall promulgate.
Penalties for violations of this section are those set forth in KRS 350.990 .

History. Enact. Acts 1978, ch. 330, § 7, effective May 3, 1978; 1992, ch. 429, § 29, effective July 14, 1992; 2005, ch. 123, § 55, effective June 20, 2005.

350.435. Vegetation.

The permittee or other person shall establish on the regraded areas, and all other lands affected, a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area; except, that introduced species, such as the establishment of pollinator habitat sites for bees, may be used in the revegetation process where desirable and necessary to achieve the approved postmining land use plan.

History. Enact. Acts 1978, ch. 330, § 8, effective May 3, 1978; 1992, ch. 429, § 30, effective July 14, 1992; 2010, ch. 19, § 4, effective July 15, 2010.

350.440. Placement of excess spoil.

The permittee or operator shall place all excess spoil material resulting from surface coal mining and reclamation operations pursuant to this chapter in the following manner:

Spoil is transported and placed in a controlled manner in position for concurrent compaction (where advisable) and in such a way as to assure mass stability and to prevent mass movement;
The areas of disposal are within the bonded permit areas and all organic matter shall be removed immediately prior to spoil placement;
Appropriate surface and internal drainage systems and diversion ditches are used so as to prevent spoil erosion and movement;
The disposal area does not contain springs, natural watercourses, or wet-weather seeps unless lateral drains are constructed from the wet area to the main underdrains in such a manner that filtration of the water into the spoil pile will be prevented;
If placed on a slope, the spoil is placed upon the most moderate slope among those upon which, in the judgment of the cabinet, the spoil could be placed in compliance with all the requirements of this chapter and shall be placed, where possible, upon, or above, a natural terrace, bench, or berm, if the placement provides additional stability and prevents mass movement;
Where the toe of the spoil rests on a downslope, a rock toe buttress of sufficient size to prevent mass movement is constructed;
The final configuration is compatible with the natural drainage pattern and surroundings and suitable for intended uses;
Design of the spoil disposal area is certified by a qualified registered professional engineer in conformance with professional standards; and
All other provisions of this chapter are met.

History. Enact. Acts 1978, ch. 330, § 10, effective May 3, 1978; 1980, ch. 62, § 32; 1980, ch. 377, § 13; 1992, ch. 429, § 31, effective July 14, 1992.

Compiler’s Notes.

For effective date of the 1980 amendments to this section, see Compiler’s Notes following KRS 350.010 and 350.035 .

350.445. Steep-slope strip mining — Performance standards — Conditions for disturbing land above highwall for road construction.

The following performance standards shall be applicable to steep-slope strip mining and shall be in addition to those general performance standards required by KRS 350.405 to 350.435 ; provided, however, that the provisions of this section shall not apply to those situations in which a permittee or operator is mining on flat or gently rolling terrain, on which an occasional steep slope is encountered through which the mining operation is to proceed, leaving a plain or predominantly flat area, or where a permittee or operator is in compliance with the provisions of KRS 350.450(2):

The permittee or operator shall insure that when performing strip mining on steep slopes, debris, abandoned or disabled equipment, spoil material, or waste mineral matter not be placed on the downslope below the bench or mining cut; provided, that spoil material in excess of that required for the reconstruction of the approximate original contour under the provisions of KRS 350.410 or 350.445(2) shall be permanently stored pursuant to KRS 350.440 .
The permittee or operator shall complete backfilling with spoil material and shall be required to cover completely the highwall and return the site to the approximate original contour, which material will maintain stability following mining and reclamation.
The permittee or operator may not disturb land above the top of the highwall unless the cabinet finds that the disturbance will facilitate compliance with the environmental protection standards of this subsection; provided, however, that the land disturbed above the highwall shall be limited to that amount necessary to facilitate compliance. The land above the highwall may be disturbed for construction of a permanent road only where the applicant affirmatively demonstrates, and the cabinet makes a detailed and written determination, that the proposed disturbance facilitates compliance with this chapter and provided that the land disturbed shall be limited to that amount necessary to facilitate such compliance. The cabinet shall make this determination upon a demonstration by the permittee that:
1. The permittee will completely eliminate the production highwall and backfill the mined areas to approximate original contour with no road remaining on the bench;
2. The road will be placed on a solid base rather than on fill material and drainage will be diverted from the mining area;
3. The road will comply with all applicable design criteria, including a drainage plan for avoiding seepage or uncontrolled discharge of water into the backfilled areas;
4. The spoil calculations and spoil disposal plans include the road cut material and the extent, if any, that road cut material will be used to eliminate a production highwall;
5. The road will connect to another road or roads and is necessary in order to support the approved postmining land uses;
6. Where practical and feasible, an undisturbed barrier will be left between the production highwall and the road itself. When an undisturbed barrier is not feasible, witness monuments will be left at a minimum of two (2) locations above the production highwall;
7. The road will be constructed to a size and design appropriate to the proposed post-mining land use;
8. The proposed mine plan and sequencing of the road construction in relation to the mining activity will minimize placement of spoil material into valley or hollow fills and will maximize permanent retention of mined spoil on the mine bench;
9. There will be no coal removal from the construction of the permanent road except for incidental nonmerchantable coal that is disposed of in an approved manner; and
10. All other performance standards of the chapter are met.
For the purposes of this section, the term “steep slope” is any slope above twenty (20) degrees or such lesser slope as may be defined by the cabinet, by regulation, after consideration of soil, climate, and other characteristics of the region.

History. Enact. Acts 1978, ch. 330, § 10, effective May 3, 1978; 1992, ch. 429, § 32, effective July 14, 1992; 2000, ch. 367, § 1, effective July 14, 2000; 2006, ch. 37, § 5, effective July 12, 2006.

350.450. Prime farmland — Mountaintop removal — Variance upon written request of surface owner — Technical assistance for small operator — Release of portion of bond.

If the area proposed to be mined contains prime farmland as defined in Public Law 95-87, “Surface Mining Control and Reclamation Act of 1977,” then no permit shall be issued unless it complies with Section 510(d)(1) therein. Nothing in this subsection shall apply to any permit issued prior to August 3, 1977, or to any revisions or renewals thereof, or to any existing surface coal mining operations for which a permit was issued prior to August 3, 1977. Nothing herein shall be construed as authorizing the cabinet to promulgate regulations more stringent than those promulgated pursuant to PL 95-87 relating to prime farmland.
Where a surface coal mining operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining, the operation shall comply with the requirements of paragraphs (c) and (d) of this subsection without regard to the requirements of KRS 350.410 or 350.445(2) and (3) with respect to lands from which overburden and the coal seam being mined have not been removed; provided, however, the cabinet shall establish internal procedures pursuant to which it shall permit surface coal mining operations for the purposes set forth in paragraph (b) of this subsection.
1. Where an applicant meets the requirements of paragraphs (b) and (c) of this subsection a permit without regard to the requirements to restore to approximate original contour set forth in KRS 350.410 or 350.445(2) and (3) may be granted for the surface coal mining operations where the mining operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill, except as provided in paragraph (c)1. of this subsection, by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining and capable of supporting postmining uses in accord with the requirements of this subsection.
2. In cases where an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use is proposed for the postmining use of the affected land, the cabinet may grant a permit for a surface coal mining operation of the nature described in paragraph (a) of this subsection where:
  1. After consultation with the appropriate land use planning agencies, if any, the proposed postmining land use is deemed by the cabinet to constitute an equal or better economic or public use of the affected land as compared with premining use;
  2. The applicant presents specific plans for the proposed postmining land use and appropriate assurances that the land use will be:
    1. Compatible with adjacent land uses;
    2. Obtainable according to data regarding expected need and market;
    3. Assured of investment in necessary public facilities;
    4. Supported by commitments from public agencies where appropriate;
    5. Practicable with respect to private financial capability for completion of the proposed use;
    6. Planned pursuant to a schedule attached to the reclamation plan so as to integrate the mining operation and reclamation with the postmining land use; and
    7. Designed by a registered engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site;
  3. The proposed use would be consistent with adjacent land uses and existing state and local land use plans;
  4. The cabinet provides the governing body of the unit of general-purpose government in which the land is located, and any state or federal agency which the cabinet in its discretion determines to have an interest in the proposed use, an opportunity of not more than thirty (30) days to review and comment on the proposed use; and
  5. All other requirements of this chapter will be met.
3. In granting any permit pursuant to this subsection the following requirements apply:
  1. The toe of the lowest coal seam and the overburden associated with it are retained in place as a barrier to slides and erosion;
  2. The reclaimed area is stable;
  3. The resulting plateau or rolling contour drains inward from the outslopes except at specified points;
  4. No damage will be done to natural watercourses;
  5. Spoil will be placed on the mountaintop bench as is necessary to achieve the planned postmining land use; provided, that all excess spoil material not retained on the mountaintop shall be placed in accordance with the provisions of KRS 350.440 ; and
  6. Insure stability of the spoil retained on the mountaintop and meet the other requirements of this chapter.
4. The regulatory authority shall promulgate specific regulations to govern the granting of permits in accord with the provisions of this subsection.
5. All permits granted under the provisions of this subsection shall be reviewed not more than three (3) years from the date of issuance of the permit, unless the applicant affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the approved schedule and reclamation plan.
1. The cabinet shall adopt procedures pursuant to which it may permit variances from the requirements of KRS 350.410 for the purposes set forth in paragraph (c) of this subsection, provided that the watershed control of the area is improved, and further provided, complete backfilling with spoil material shall be required to cover completely the highwall, which material will maintain stability following mining and reclamation.
2. Where an applicant meets the requirements of paragraphs (c) and (d) of this subsection, a variance from the requirement to restore the approximate original contour set forth in KRS 350.410 and 350.445(2) may be granted for surface coal mining operations where the owner of the surface knowingly requests in writing, as a part of the permit application, that such a variance be granted so as to render the land, after reclamation, suitable for an industrial, commercial, residential, or public use, including recreational facilities.
3. After consultation with the appropriate land use planning agencies, if any, the potential use of the affected land shall:
  1. Be deemed by the cabinet to constitute an equal or better economic or public use;
  2. Be designed and certified by a qualified registered professional engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site; and
  3. The watershed of the affected land be deemed by the cabinet to be improved.
4. In granting a variance pursuant to paragraph (b) of this subsection, the cabinet shall require that only the amount of spoil will be placed off the mine bench that is necessary to achieve the planned postmining land use, insure stability of the spoil retained on the bench, meet all other requirements of this chapter, and require all spoil placement off the mine bench to comply with KRS 350.440 .
5. The cabinet shall promulgate specific regulations as it deems necessary, if any, to govern the granting of variances in accord with the provisions of this subsection and may impose additional requirements it deems to be necessary.
6. All exceptions granted under the provisions of this subsection shall be reviewed not more than three (3) years from the date of issuance of the permit, unless the permittee affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the reclamation plan.
The cabinet shall adopt programs, regulations, and procedures designed to provide technical assistance to assist the small coal operator with the permitting and environmental protection performance standards for surface coal mining operations within the Commonwealth. The programs shall be directed towards eliminating delays in the processing of permits by establishing a special administrative program to review small operator’s permit applications and by establishing a procedure for providing the small operator the technical services of public and private agencies in addition to the services provided pursuant to KRS 350.465(2)(f) necessary for completing the permit application. Specifically, notwithstanding any other provision of this chapter or regulations adopted pursuant thereto, for the purpose of this program, the cabinet shall:
1. Develop a simplified small operator permit application. The cabinet shall notify all applicants of deficiencies in the form of the application by certified mail within ten (10) working days after the filing in the regional office. The applicant shall have ten (10) working days after the receipt of the notification to repair the deficiencies. Upon failure of the applicant to repair the deficiencies within ten (10) working days after receipt of the notification, the cabinet may return the application as incomplete.
2. Provide in the abandoned mine land program for small operators, having mined coal under a state permit or license at any time within the previous three (3) years, participation consisting at least of the following:
  1. That lands acquired or reclaimed by the state containing coal, coal refuse or other marketable minerals which should be removed in order to maximize the utilization, recoverability or conservation of solid fuel resources or to protect against adverse water quality impacts and which, once reclaimed, cannot be disturbed again by mining, shall be reclaimed by small operators unless the cabinet determines, after advertisement and advance opportunity to bid, that the reclamation project cannot be performed by the small operator bidders;
  2. That the cabinet shall establish procedures for maximizing participation by small operators in all reclamation projects including:
    1. Designing and establishing project specifications and setting forth in the annual request for federal funding under the state reclamation plan not less than twenty percent (20%) of the projects on cost basis to be performed by small operators;
    2. Advance advertising, soliciting, evaluating bids, and awarding contracts on all state reclamation projects for small operators.
  3. In the event no bids are submitted by small operators for small operator projects, the projects will be thereafter open for public bidding and no longer designated as small operator projects but shall satisfy that portion of the twenty percent (20%) set aside.
3. For the purposes of this subsection, a small coal operator is one who is anticipated to mine less than three hundred thousand (300,000) tons per year, and the cabinet in determining tonnage for qualification shall consider all production from common ownership of other corporations or operations.
4. Upon written notification by the small coal operator to the cabinet stating that no more mining will take place under a permit, the cabinet shall release a portion of the bond in accordance with KRS 350.070 . In making its determinations pursuant to KRS 350.070 the cabinet shall:
  1. Determine the percentage of the permitted acreage in the area of reduction in relation to the initial acreage of the permit;
  2. Examine the land which has been disturbed and estimate the cost of reclamation;
  3. When the estimated cost of reclamation does not exceed ten thousand dollars ($10,000) then the cabinet shall return all bond money in excess of the ten thousand dollars ($10,000);
  4. When the estimated cost of reclamation exceeds ten thousand dollars ($10,000), the cabinet shall retain the amount estimated and shall return all bond money in excess of the estimated amount but in no case shall the cabinet return more than the amount determined by multiplying the percentage determined under subparagraph 1. of this paragraph times the original total bond amount.

History. Enact. Acts 1978, ch. 330, § 11, effective May 3, 1978; 1979 (Ex. Sess.), ch. 26, § 1, effective February 13, 1979; 1980, ch. 62, § 33, effective March 21, 1980; 1980, ch. 209, § 1, effective March 21, 1980; 1982, ch. 283, § 7, effective April 2, 1982; 1984, ch. 390, § 1, effective April 11, 1984; 1992, ch. 119, § 2, effective July 14, 1992.

Compiler’s Notes.

For effective date of the 1980 amendments to this section by ch. 62 and ch. 209, see Compiler’s Notes following KRS 350.010 and 350.025 . For effective date of amendment by Acts 1982, ch. 283, see Compiler’s Notes following KRS 350.010 .

The Surface Mining Control and Reclamation Act of 1977, referred to herein, is compiled as 30 USCS §§ 1201 — 1328.

350.455. Water impoundment on mining site.

If authorized in the approved mining and reclamation plan and permit, the permittee or operator may create permanent impoundments of water on mining sites as part of reclamation activities only when it is adequately demonstrated that:

The size of the impoundment is adequate for its intended purposes;
The impoundment dam construction will be so designed as to achieve necessary stability with an adequate margin of safety compatible with that of structures constructed under Public Law 83-566 (16 U.S.C. 1006);
The quality of impounded water will be suitable on a permanent basis for its intended use and that discharges from the impoundment will not degrade the water quality below water quality standards established pursuant to applicable federal and state law in the receiving stream;
The level of water will be reasonably stable;
Final grading will provide adequate safety and access for proposed water users; and
The water impoundments will not result in the diminution of the quality or quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses.

History. Enact. Acts 1978, ch. 330, § 12, effective May 3, 1978; 1980, ch. 377, § 8; 1992, ch. 429, § 33, effective July 14, 1992.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.035 .

350.460. Financial interest by state employee prohibited.

No employee of the state performing any function or duty under this chapter shall have a direct or indirect financial interest in any underground or strip coal mining operation. Whoever knowingly violates the provisions of this section is guilty of a Class A misdemeanor, and shall, upon conviction, be punished by a fine of not more than two thousand and five hundred dollars ($2,500), or by imprisonment of not more than one (1) year, or both.

History. Enact. Acts 1978, ch. 330, § 13, effective May 3, 1978.

350.465. Permanent regulatory program.

The provisions of this section and regulations promulgated pursuant thereto, except with regard to the mining of clay, limestone, sand, gravel, fluorspar, stone, and rock asphalt, shall apply to the regulation of all surface coal mining and reclamation operations in the Commonwealth in the event that the Commonwealth receives from the United States Department of Interior and pursuant to the Surface Mining Control and Reclamation Act of 1977, PL 95-87, approval of a permanent state regulatory program, and the Commonwealth has promulgated regulations pursuant to this section.
The Energy and Environment Cabinet is hereby authorized and directed to prepare, develop and promulgate a comprehensive permanent regulatory program for the implementation of the Surface Mining Control and Reclamation Act of 1977, PL 95-87, for the purpose of accepting and administering primary enforcement responsibilities pursuant to that act. The implementation of this section shall contain procedures similar to the Surface Mining Control and Reclamation Act of 1977, PL 95-87, and shall require surface coal mining operation performance standards no more stringent than provided for in that act. Nothing in this section shall be construed to empower the cabinet to adopt a regulatory program in conflict with the policy and purposes of the Surface Mining Control and Reclamation Act of 1977, PL 95-87. To that end, the Energy and Environment Cabinet shall include in its permanent regulatory program:
1. Environmental protection performance standards to prevent or minimize the adverse environmental effects of surface coal mining and reclamation operations on the land and water resources of the Commonwealth;
2. A procedure for designating as being unsuitable for mining certain lands because of their topographical, geological, hydrological, climatological, biological, or chemical characteristics or historical, cultural, scientific, or aesthetic values;
3. Procedures and regulations for the allowance of those persons having an interest which is or may be adversely affected to have the opportunity to be heard at every significant or critical part of the administrative and judicial process, including, but not limited to, the permit review and issuance process, the general enforcement process and hearings incident thereto, and the rulemaking procedures conducted by the cabinet; and procedures and regulations for persons having a valid legal interest which is or may be adversely affected by the setting, release, and inspection of bonds to have an opportunity to be heard at every significant or critical part of the administrative and judicial process relating to bonds. The regulations shall provide reasonable procedures for notice and an opportunity to be heard, access to minesites, access to records, and other reasonable procedures to accomplish the purposes of this chapter;
4. Procedures for the administrative and judicial review of all actions of the cabinet to administer and enforce the provisions of this chapter, including the award of costs and expenses, including attorney’s fees and expert witness fees, by the cabinet or the court;
5. Plans and procedures for the reclamation and restoration of land and water resources affected by mining which have been abandoned or inadequately reclaimed to the standards imposed by this section and for which no bond is held or legal obligation to reclaim continues. The plan shall include provisions for the imposition of liens for necessary reclamation expenditures made on private property; and
6. Procedures for the assumption of the small operator assistance program pursuant to the Surface Mining Control and Reclamation Act of 1977, PL 95-87. The cabinet shall assume and implement that program and apply for and administer funds as may be provided pursuant to that act and such state funds as may be provided for the program.
In addition to any other authority, power, and duty vested in it by law, the cabinet shall have and exercise broad authority, power, and duty to:
1. Require those persons who wish to engage in surface coal mining and reclamation operations to submit application for a permit from the cabinet to conduct the operations, and to include in that application all information required by the cabinet pertaining to that operation;
2. Issue, deny, or modify under such conditions as the cabinet may prescribe, permits to conduct surface coal mining and reclamation operations within the Commonwealth;
3. Enter and inspect any permitted surface coal mining and reclamation operation or any known or suspected unpermitted mining operation for the purpose of ascertaining compliance with any provision of this chapter or of the permit;
4. Order the cessation of mining activities, and if necessary impose affirmative abatement obligations, upon the permittee, operator, or person when, upon inspection, the cabinet determines that this section or any permit condition is being or has been violated so as to constitute an imminent and inordinate peril to the welfare of the Commonwealth;
5. Order a person, permittee, or an operator to comply with the requirements of this section or his permit if inspection reveals a violation of the conditions of his permit or of any provision of this section;
6. Order a permittee to appear and show cause why his permit should not be suspended or revoked and his bond forfeited if the cabinet determines that the permittee or operator or the permitted operation has a pattern of violations of this section or permit conditions, and has willfully violated this section or permit conditions or a pattern of violations exists and that the violations are caused by the operator’s or permittee’s unwarranted failure to comply with this section or permit conditions;
7. Require, increase, release, or decrease, under such conditions as the cabinet may prescribe, reclamation performance bonds and cause the forfeiture and collection of those bonds where the permittee has abandoned the operation or for which the permit under which the bond was given has been revoked or has expired without the required reclamation;
8. To administratively impose, in lieu of those civil penalties provided for in KRS 350.990 , civil penalties of up to five thousand dollars ($5,000) per day for violations of permit conditions, this section, or any orders of the cabinet and enforce the administrative assessment of the penalties by initiating civil action in the Franklin Circuit Court or in any court having jurisdiction of the defendant;
9. Conduct hearings and make investigations of any matter relating to the regulation of surface coal mining and reclamation operations, and provide for the assessment and payment of civil penalties including the placement of proposed civil penalty assessments into an escrow account prior to a contest on the amount of the assessment, consistent with the process of law;
10. Provide for variances or exceptions consistent with KRS 350.450 from or in addition to mining performance standards, recognizing the specific characteristics inherent in:
  1. Steep slope mining;
  2. Mountaintop removal;
  3. Relatively low acreage disturbance or annual coal production;
  4. Prime farmland mining as defined by the United States Department of Agriculture, and to provide for other variances where land uses and watersheds will be improved; and
  5. Postmining uses different from and as beneficial as the premining uses;
11. Receive and expend funds or aid from whatever source to accomplish the purposes of this chapter; and
12. Propose and promulgate regulations to accomplish the purposes of this section.
The cabinet shall not promulgate regulations which are inconsistent with the Surface Mining Control and Reclamation Act of 1977, PL 95-87.
Any person who violates a provision of this section or the regulations promulgated pursuant thereto shall be subject to those penalties and remedies set forth in KRS 350.990 except as provided for in subsection (3)(h) of this section.

History. Enact. Acts 1978, ch. 330, § 28, effective June 1, 1979; 1980, ch. 62, § 34; 1992, ch. 429, § 34, effective July 14, 1992; 2010, ch. 24, § 1889, effective July 15, 2010.

Compiler’s Notes.

For effective date of the 1980 amendment to this section, see Compiler’s Notes following KRS 350.010 .

The Surface Mining Control and Reclamation Act of 1977, referred to in this section, is compiled as 30 USCS § 1201 et seq.

NOTES TO DECISIONS

1. Compulsory Reclamation.
2. Regulations.
- 3. — Invalid.
4. Remedies Not Mutually Exclusive.

1.Compulsory Reclamation.

An operator can be compelled to undertake reclamation. Payne v. Commonwealth, Natural Resources & Environmental Protection Cabinet, 746 S.W.2d 90, 1988 Ky. App. LEXIS 29 (Ky. Ct. App. 1988).

2.Regulations.

3.— Invalid.

4.Remedies Not Mutually Exclusive.

Cited:

Smith v. Natural Resources & Environmental Protection Cabinet, 712 S.W.2d 951, 1986 Ky. App. LEXIS 1113 (Ky. Ct. App. 1986).

Research References and Practice Aids

Northern Kentucky Law Review.

Comments, Kentucky Application for Abandoned Mine Reclamation Funds Pursuant to Title IV of Federal Law 95-87, Surface Mining Control and Reclamation Act of 1977, 10 N. Ky. L. Rev. 261 (1983).

350.470. Review of regulations. [Repealed]

History. Enact. Acts 1978, ch. 330, § 29, effective June 1, 1979; 1980, ch. 377, § 6; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1978, ch. 330, § 29, effective June 1, 1979; 1980, ch. 377, § 6) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

350.475. Regulations regarding disturbance of reclaimed permit areas and for transferring liability for reclamation.

The Energy and Environment Cabinet is directed to promulgate regulations which specifically address what liability surface mining permittees shall have to reclaim permit areas on which parties or forces not controlled by the permittee have disturbed the reclamation previously performed by the permittee. Such parties or forces not controlled by the permittee shall include, without limitation, acts of God, oil and gas operations, loggers, recreational vehicles, and trespassers.
The Energy and Environment Cabinet is also directed to promulgate regulations which specifically set forth the procedure for transferring liability for reclamation of a surface mining permit to a party who will make a post mining use of the permit area.

History. Enact. Acts 1990, ch. 494, § 1, effective July 13, 1990; 2010, ch. 24, § 1890, effective July 15, 2010.

350.480. Use of simplified procedures for determining restoration of soil productivity on mined prime farmlands.

The cabinet shall allow the use of a soil test or other simplified procedures to determine if soil productivity on mined prime farmlands has been restored to levels that would allow average crop yields to equal or exceed the average yield of the reference crop, provided the methods are approved by the Office of Surface Mining.

History. Enact. Acts 1992, ch. 284, § 1, effective July 14, 1992.

350.485. Promotion of research and data collection on simplified procedures to determine their validity with respect to restoration of soil productivity on mined prime farmlands.

The cabinet shall encourage research and data collection to determine the validity of using a soil test or other simplified procedure to determine if mined prime farmland soils will meet yield requirements.

History. Enact. Acts 1992, ch. 284, § 2, effective July 14, 1992.

350.500. Definitions for KRS 350.500 to 350.521.

As used in KRS 350.500 to 350.521 , unless the context otherwise requires:

“Actuarial soundness” means the fund has achieved financial positioning such that the collected revenues, including bond forfeiture amounts, and earned investment income in aggregate are sufficient to build reserves that can be reasonably anticipated to provide for the long-term future expected reclamation losses, including shock or catastrophic losses, loss adjustment expenses, and administrative expenses associated with the fund’s operation;
“Date of establishment of the fund” means July 1, 2013;
“Kentucky reclamation guaranty fund” or “the fund” means the fund established in KRS 350.503 ;
“Reclamation Guaranty Fund Commission” or “commission” means the commission established in KRS 350.506 ; and
“Voluntary bond pool fund” means that bond pool fund established in KRS 350.700 to 350.755 , which are repealed by 2013 Ky. Acts ch. 78, sec. 12.

History. Enact. Acts 2013, ch. 78, § 1, effective March 22, 2013.

350.503. Kentucky reclamation guaranty fund.

There is hereby established a revolving fund to be known as the “Kentucky reclamation guaranty fund,” which shall be administratively assigned to the cabinet and which shall be administered in accordance with the terms of KRS 350.500 to 350.521 .
The fund shall consist of all moneys collected pursuant to KRS 350.515 and 350.518 .
Moneys collected pursuant to subsection (2) of this section shall not be utilized for the reclamation of permits forfeited prior to January 1, 2014, except for obligations as may arise from the forfeiture of bonds prior to that date secured by the voluntary bond pool.
Moneys in the fund shall be held in an interest-bearing account and shall be used as follows and for no other purposes:
1. To reclaim, in the event of forfeiture, permit areas or increments thereof, covered by the fund;
2. To compensate the cabinet for costs of administering the fund;
3. To fund audits and actuarial studies required under KRS 350.509 ; and
4. To cover all operating expenses and any necessary legal expenses of the Reclamation Guaranty Fund Commission.
Moneys in the fund shall not be utilized for long-term treatment of substandard water discharges and subsidence.
Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of a fiscal year shall not lapse, but shall be carried forward into the succeeding fiscal year for use as provided in this section.
The fund shall be exempt from the requirements applicable to insurers under KRS Chapter 304.

History. Enact. Acts 2013, ch. 78, § 2, effective March 22, 2013.

350.506. Reclamation Guaranty Fund Commission — Membership — Bylaws — Meetings — Conflicts of interest — Applicability of Executive Branch Code of Ethics.

There is hereby created the Reclamation Guaranty Fund Commission which shall be administratively attached to the cabinet. The commission shall consist of seven (7) members. One (1) member shall be the secretary of the Energy and Environment Cabinet, or his or her designee, who shall serve as chair of the commission. The other six (6) members of the commission shall be appointed by the Governor as follows:
1. Three (3) members of the commission shall be representatives of coal mining permittees that participate in the fund, with the following qualifications tiered to represent the size of the operator measured in tons of coal sold:
  1. A representative of a permittee which participates in the fund and has mined and sold less than one million (1,000,000) tons of coal during the twelve (12) months preceding appointment;
  2. A representative of a permittee which participates in the fund and has mined and sold over one million (1,000,000) tons but less than five million (5,000,000) tons of coal during the twelve (12) months preceding appointment; and
  3. A representative of a permittee which participates in the fund and has mined and sold more than five million (5,000,000) tons of coal during the twelve (12) months preceding appointment.
    If no permittee that participates in the fund meets the qualifications stated in subparagraph 2. or 3. of this paragraph, then a qualified permittee shall be selected in a lower tier;
2. Two (2) members of the commission shall be representatives with a background in the insurance and banking industries with knowledge of the coal industry and chosen from a list of nominees submitted by the chair of the commission and the remaining members of the commission; and
3. One (1) member shall be a certified public accountant who is not associated with, or does not have a financial interest in, coal mining operations in the Commonwealth of Kentucky.
1. Appointments shall be made by the Governor for terms of four (4) years. Members may serve successive terms if reappointed, not to exceed two (2) full consecutive terms. Any vacancy in an unexpired term shall be filled for the unexpired portion of the term by the Governor.
2. A member of the commission shall be elected at the first meeting of each fiscal year by majority vote of the other members to serve as vice chair of the commission whose term shall be for one (1) year.
The commission shall adopt bylaws by which it shall establish procedures for conduct of meetings.
The official domicile of the commission shall be Franklin County. All actions of the commission shall be considered to occur in Franklin County.
The commission shall meet no less than once every three (3) months. Four (4) members of the commission shall constitute a quorum at any meeting.
Each commission member, except the cabinet representative, shall receive one hundred fifty dollars ($150) per diem for each meeting attended. Members of the commission also shall be reimbursed for actual and necessary expenses directly related to meetings of the commission.
If a member of the commission fails to attend four (4) consecutive meetings, the position shall be considered to be vacated, and the Governor, after receiving notice of the vacancy from the commission, shall immediately appoint a qualified person to serve the remainder of the term.
Any member of the commission having any direct or indirect financial interest or any other conflict of interest with respect to an assignment of classification pursuant to KRS 350.518 , sanctions for nonpayment of fees established in KRS 350.515 and 350.518 , or assessment of the fee pursuant to KRS 350.518, shall not participate in any discussion or vote pertaining to specific mining operations for which the member is an owner or employee.
Misuse of the office by a member of the commission to obtain personal, pecuniary, or material gain or advantage for himself or a company in his dominion or control shall be automatic grounds for removal by the Governor.
Members of the commission, its agents, and employees shall be immune from suit in any action, civil or criminal, which is based upon any official act or acts performed by them in good faith.
Members of the commission, its agents, and employees shall be subject to the terms and provisions of the Executive Branch Code of Ethics, as set forth in KRS Chapter 11A.

HISTORY: Enact. Acts 2013, ch. 78, § 3, effective March 22, 2013; 2022 ch. 166, § 1, effective July 14, 2022.

Legislative Research Commission Notes.

(3/22/2013). Under the authority of KRS 7.136(1), the Reviser of Statutes has modified the internal numbering of subsection (1)(a) of this statute from the way it appeared in 2013 Ky. Acts ch. 78, sec. 3. The words in the text were not changed.

350.509. Duties of commission.

The commission shall be attached to the cabinet for administrative purposes and staffed by the Office of the Reclamation Guaranty Fund established pursuant to KRS 350.512 . The commission shall:

Review, recommend, and promulgate administrative regulations pursuant to KRS Chapter 13A, which are necessary to:
1. Monitor and maintain the fund;
2. Establish a structure for the administration of processing claims and making payments;
3. Establish mechanisms for review of the viability of the fund and criteria for determining when a recommendation shall be made to the secretary of the cabinet to close the fund for failure to maintain actuarial soundness;
4. Set the schedule of penalties consistent with this chapter associated with late payment, failure to pay, and defrauding the commission through the submission of fraudulent information or withholding requested documentation;
5. Review, in accordance with the applicable administrative regulations of the cabinet and KRS 350.515 and 350.518 , all assignments of permittee classification of mine type and assessment of established fees; and
6. Establish a structure for the payment of the assessments required in KRS 350.515 (2)(b) and 350.518 ;
Notify permittees of suspension or reinstatement of the fees required by KRS 350.518(2);
Employ, in accordance with KRS 45A.690 to 45A.725 , a certified public accountant in good standing to perform an annual audit of the fund for the first five (5) years of the operations of the fund. Thereafter, the commission shall have audits performed every two (2) years or more frequently as determined necessary by the commission. Audit results shall be reported to the commission and to the Governor;
Employ, in accordance with KRS 45A.690 to 45A.725 , a qualified actuary to perform an actuarial study annually for the first three (3) years of the operations of the fund. Thereafter, the commission shall have actuarial studies performed every two (2) years or more frequently as determined necessary by the commission. Results of these studies shall be reported to the commission and to the Governor;
Perform all functions necessary and authorize expenditures from the fund necessary to carry out the provisions of law and the administrative regulations of the commission;
Report to the Governor and the Interim Joint Committee on Natural Resources and Environment no later than December 31 of each year as to the financial status of the reclamation guaranty fund;
Conduct investigations and issue subpoenas on behalf of the commission to verify reporting, payment, and other activities of permittees related to the fund. All documents produced in response to investigations and subpoenas by the commission shall remain confidential and not subject to the provisions of KRS 61.870 to 61.882 ; and
Bring an action in Franklin Circuit Court against any permittee for the recovery of funds spent by the commission by reason of forfeiture of that permittee. The commission may utilize the legal department of the cabinet for this purpose.

History. Enact. Acts 2013, ch. 78, § 4, effective March 22, 2013.

350.512. Office of the Reclamation Guaranty Fund — Duties of executive director.

The Governor shall establish an Office of the Reclamation Guaranty Fund and appoint an executive director to manage its affairs. The executive director shall serve at the pleasure of the Governor and have all the authority to hire staff, contract for necessary services, and implement the collection of fees and assessments set forth by the commission.
The executive director shall be responsible for:
1. Collecting and depositing into the fund all fees submitted by permittees;
2. Assessing permit eligibility of permittees for late payment or nonpayment of fees, in accordance with KRS 350.515 and 350.518 ;
3. Compiling information about permittees for use by the commission in assigning or revising classifications and fees;
4. Paying moneys out of the fund as authorized by the commission;
5. At each meeting of the commission, reporting to the same, the status of the fund and activities of the fund’s executive director; and
6. Performing other administrative functions as are necessary to carry out the purposes of KRS 350.500 to 350.521 .

History. Enact. Acts 2013, ch. 78, § 5, effective March 22, 2013.

350.515. Mandatory participation in fund — Initial capitalization — One-time assessments — Full-cost bond in lieu of participation.

Any permittee of a surface coal mining operation, as defined in KRS 350.010(1), located in Kentucky who meets the criteria set forth in this section and in administrative regulations promulgated by the cabinet, shall be a mandatory participant in the fund, except as provided in subsection (5) of this section.
The initial capitalization of the fund shall be accomplished in the following manner:
1. Transfer of the assets and liabilities of the voluntary bond pool fund to the Kentucky reclamation guaranty fund upon March 22, 2013; and
2. On the date of the establishment of the fund, each entity holding a permit subject to subsection (1) of this section shall be liable to the fund for the following one (1) time assessments, which shall be payable to the fund within thirty (30) days’ notice of the amounts thereof:
  1. A start-up assessment of one thousand five hundred dollars ($1,500); and
  2. An assessment of ten dollars ($10) per active permitted acre.
Members of the former voluntary bond pool as established prior to March 22, 2013, shall be exempt from the requirements of subsections (2)(b) and (4) of this section.
Entities entering the fund after the date of the establishment of the fund shall pay a one (1) time assessment of ten thousand dollars ($10,000) to the fund. The cabinet shall not issue a permit to the entity until the one (1) time assessment is paid.
Member entities shall be given the option to provide full-cost bonds based on a reclamation cost estimate that reflects reclamation costs to the cabinet and certified by a registered professional engineer in lieu of participation in the fund. The estimate’s calculations shall be equivalent to those set forth in the United States Office of Surface Mining Reclamation and Enforcement’s Handbook for the Calculation of Reclamation Bond Amounts, OSM Directive TSR-1, and calculated on forms developed by the cabinet. If an applicant opts out and elects to provide a full-cost bond, the applicant shall not be subject to any fees or to any provisions of KRS 350.500 to 350.521 .

History. Enact. Acts 2013, ch. 78, § 6, effective March 22, 2013.

350.518. Permittee to submit permit-specific bond under KRS 350.060(11) — Tonnage fees — Assignment of mine type classification — Inclusion of future permits of existing classification — Inclusion of future permits of existing voluntary bond pool fund members — Permit-specific penal bond — Administrative regulations — Suspension of permit for arrearage in fees — Rights and remedies.

In addition to the provisions of KRS 350.500 to 350.521 , each permittee shall submit a permit-specific bond in accordance with KRS 350.060(11) and all administrative regulations promulgated thereunder.
Each permittee subject to KRS 350.515 (1) shall pay to the fund a fee for each ton of coal mined and sold by surface and underground coal mining operations from each permit area. For the purposes of assessing tonnage fees, all permits subject to eligibility for expenditures from the fund shall be assigned to one (1) of the following classifications:
1. Surface coal mining operations, including auger and highwall mining, for which an initial rate of seven and fifty-seven hundredths cents ($0.0757) per ton of coal shall be paid to the fund;
2. Underground coal mining operations, for which an initial rate of three and fifty-seven hundredths cents ($0.0357) per ton of coal shall be paid to the fund;
3. Permits that consist of combined surface and underground mining operations shall pay a fee in accordance with the predominant method of coal extraction;
4. All permits previously subject to the voluntary bond pool fund at the time of its repeal by 2013 Ky. Acts ch. 78, sec. 12, shall:
  1. Be excluded from the start-up fee established in KRS 350.515 ;
  2. Pay the tonnage fees set forth in paragraphs (a) and (b) of this subsection to the fund in lieu of tonnage fees otherwise due under KRS 350.725(2); and
  3. Continue to receive subsidization of the reclamation bonding authorized under KRS 350.500 to 350.521 and the administrative regulations adopted pursuant thereto. The fund shall continue to provide coverage for existing bonds previously issued for them by the voluntary bond pool;
5. Permits which are used exclusively for coal preparation and processing operations, loading activities, disposal of refuse operations, coal haulage and access roads, mine maintenance areas, and other support facilities, and other permits not subject to the provisions of paragraphs (a) and (b) of this subsection as determined by the commission, shall pay an annual fee of ten dollars ($10) per acre to the fund in equal quarterly installments; and
6. Any permits, or expired permits, not subject to the fees in paragraphs (a) to (e) of this subsection shall pay an annual fee of six dollars ($6) per surface acre to the fund in equal quarterly installments. The fee shall not apply to permits that:
  1. Have not been initially disturbed after permit issuance by the permittees;
  2. Contain underground acreage only; or
  3. Have received an initial bond release in accordance with KRS 350.093(4)(a).
1. The commission shall include in the fund under the terms set forth in subsection (2)(d) of this section, future permits obtained by entities that are members of the voluntary bond pool fund at the date of the establishment of the fund, provided the entity and the entity’s owners seeking permit coverage have:
  1. Never committed a violation for mining without having first obtained the required permit under this chapter;
  2. Never forfeited a bond or had a permit revoked under this chapter;
  3. Never avoided forfeiture of a bond under this chapter because of a surety-performed reclamation work to avoid forfeiture;
  4. Never been determined to have demonstrated a pattern of violations pursuant to KRS 350.028(4), 350.130(3), or 350.465(3)(f);
  5. Not been issued more than four (4) orders for cessation and immediate compliance pursuant to a failure to perform remediation within the time or under the terms specified by the cabinet in a notice of noncompliance and order for remedial measures in the most recent thirty-six (36) months of operation and the order was abated as ordered by the cabinet in a timely manner and was not for a violation of contemporaneous reclamation requirements as prescribed in administrative regulations promulgated by the cabinet and have reached final dispositions;
  6. Not committed more than three (3) violations for contemporaneous reclamation requirements as prescribed in administrative regulations promulgated by the cabinet in the most recent thirty-six (36) months of operation and the order was abated as ordered by the cabinet in a timely manner and have reached final disposition, except the commission may for good cause shown and by unanimous vote exclude violations that have been terminated by the cabinet with no civil penalty;
  7. Not committed more than eight (8) violations of surface mining permanent program requirements set forth in this chapter or any performance standards for mining established in administrative regulations promulgated by the cabinet pursuant to this chapter and which have reached final disposition on any one (1) permit in any twelve (12) month period of the most recent thirty-six (36) months of operation, except the commission may for good cause shown and by unanimous vote exclude the twelve (12) month period on one (1) permit during which the largest number of violations occurred and may for good cause shown and by unanimous vote exclude violations that were timely abated and terminated by the cabinet with no civil penalty; or
  8. Not had civil penalties under this chapter or imposed pursuant to administrative hearing of the cabinet remaining unpaid more than thirty (30) days after they were due and payable, within the most recent thirty- six (36) months of operation.
2. The existing members of the voluntary bond pool are deemed to qualify as members thereof under the provisions of this subsection, and the provisions of this subsection shall only apply to the existing members of the voluntary bond pool prospectively from March 22, 2013.
The increase in the total amount of bonds issued to any one (1) member of the voluntary bond pool under subsection (3) of this section shall not exceed twenty-five percent (25%) of the greater of:
1. The member’s aggregate amount of bonds in force and issued by the voluntary bond pool as of March 22, 2013; or
2. The total of that member’s aggregate amount of bonds in force and issued by the voluntary bond pool as of March 22, 2013, plus fifty-five percent (55%) of that total.
The commission may consider for inclusion in the fund under the terms set forth in subsection (2)(d) of this section permits obtained by an entity which is not a participant of the fund as of March 22, 2013, provided the entity and the entity’s owners can meet eligibility standards established in administrative regulations promulgated by the commission.
Any permits accepted into the fund under the terms set forth in subsection (3) of this section shall require payment of a permit-specific penal bond computed at a rate of two thousand dollars ($2,000) for each acre or fraction of an acre included in the proposed permit area, and shall pay the actuarially determined tonnage rates set forth in subsection (2)(a) to (c) of this section.
Changes to the rates set forth in this section and others, including those set out in subsection (2)(d) of this section, shall be made by the commission through administrative regulation and shall be in an amount sufficient to maintain actuarial soundness of the fund in accordance with the annual actuarial study.
Reporting and payment of fees shall be made in accordance with administrative regulations promulgated by the commission. The commission may request and review documents and reports from the Kentucky Department for Natural Resources and the United States Office of Surface Mining Reclamation and Enforcement to verify production records submitted by permittees.
Upon the receipt of notification from the commission that a permittee is in arrearage in the payment of any fees assessed to a permit, the cabinet shall forthwith suspend the permit. A suspension of a permit under this subsection may be appealed pursuant to the hearing provisions of KRS 350.0301 .
A permit suspended by the cabinet under subsection (9) of this section shall have that suspension immediately lifted upon notification by the commission that the arrearage has been paid in full by the permittee.
Any person who considers himself or herself to be aggrieved by any determination made by the commission under KRS 350.500 to 350.521 shall have all of the rights and remedies provided in KRS 350.0301 .

HISTORY: Enact. Acts 2013, ch. 78, § 7, effective March 22, 2013; 2018 ch. 85, § 7, effective July 14, 2018.

Legislative Research Commission Notes.

(3/22/2013). Under the authority of KRS 7.136(1), the Reviser of Statutes has modified the internal numbering of subsection (2)(d) of this statute from the way it appeared in 2013 Ky. Acts ch. 78, sec. 7. The words in the text were not changed.

350.521. Forfeiture of bonds for permits covered by fund — Use of additional moneys when bond insufficient to cover estimated reclamation cost.

Bonds for permits covered by the fund forfeited after January 1, 2014, in accordance with KRS 350.130(1) shall be placed in the fund. The commission, its members, and employees shall not be named a party to any forfeiture action.
Whenever the bond for a permit covered by the fund is forfeited to the cabinet, and a cost estimate prepared by the cabinet indicates the forfeited bond is insufficient to reclaim the permit to the requirements of this chapter, the cabinet shall first use any outstanding permit-specific performance bond for reclamation on the forfeited permit. Any additional moneys necessary to reclaim the permit area to the standards of this chapter shall be withdrawn from the reclamation guaranty fund upon request by the cabinet to the extent that moneys exist in the fund.
Within seven (7) days following receipt of a request for payment of funds by the cabinet, the executive director of the fund shall pay to the cabinet the sum requested, not to exceed the estimated reclamation cost, subject to the limitations set forth in subsection (2) of this section.

History. Enact. Acts 2013, ch. 78, § 8, effective March 22, 2013.

Abandoned Mine Lands Program

350.550. Creation of Abandoned Mine Lands Program — Reclamation fund — Use of fund.

There is hereby created within the Commonwealth of Kentucky an Abandoned Mine Lands Program, to be administered within the Energy and Environment Cabinet. The secretary of the Energy and Environment Cabinet may promulgate regulations necessary to implement this program. The provisions of KRS 350.150 , 350.152 , 350.154 , 350.156(1) and (2), 350.158 , 350.161 , and 350.163 shall not be applicable to this program.
The Finance and Administration Cabinet is hereby directed to establish a fund to be known as the abandoned mine reclamation fund (hereinafter referred to as the “fund”).
The fund shall consist of amounts deposited in the fund from time to time, including but not limited to:
1. The reclamation fees levied pursuant to Section 402 of P.L. 95-87 and allocated to the Commonwealth of Kentucky;
2. Any income derived from or any user charge imposed on or for land reclaimed pursuant to the Abandoned Mine Lands Program after the expenses of the program have been deducted;
3. Donations by persons, corporations, associations, governmental entities, and foundations for the purposes of the Abandoned Mine Lands Program;
4. Interest credited to the fund pursuant to Section 401(e) of P.L. 95-87 and allocated to the Commonwealth of Kentucky; and
5. All other moneys as provided for consistent with this chapter.
Moneys in the fund may be used for the following purposes:
1. Reclamation and restoration of land and water resources adversely affected by past coal mining, including but not limited to reclamation and restoration of abandoned surface mine areas, abandoned coal processing areas, and abandoned coal refuse disposal areas; sealing and filling of abandoned deep mine entries and voids; planting of land adversely affected by past coal mining to prevent erosion and sedimentation; prevention, abatement, treatment, and control of water pollution created by coal mine drainage, including restoration of stream beds, and construction and operation of water treatment plants; prevention, abatement, and control of burning coal refuse disposal areas and burning coal in situ; and prevention, abatement, and control of coal mine subsidence;
2. Acquisition and filling of voids and sealing of tunnels, shafts, and entryways;
3. Acquisition of land as provided for in this chapter;
4. Restoration, reclamation, abatement, control, or prevention of adverse effects of coal mining which constitute an emergency as provided for in this program;
5. Administrative expenses of the program to accomplish the purposes of this program;
6. For the purposes of Section 507(c) of P.L. 95-87; and
7. All other necessary expenses to accomplish the purposes of this program.

History. Enact. Acts 1980, ch. 62, § 18; 1992, ch. 207, § 1, effective July 14, 1992; 2007, ch. 32, § 2, effective June 26, 2007; 2010, ch. 24, § 1891, effective July 15, 2010.

Compiler’s Notes.

For effective date of the 1980 enactment of this section, see Compiler’s Notes following KRS 350.010 .

Section 402 of P.L. 95-87, referred to in subdivision (3)(a) of this section, is compiled as 30 USCS § 1232.

Section 401(e) of P.L. 95-87, referred to in subdivision (3)(d) of this section, is compiled as 30 USCS § 1231(e).

Section 507(c) of P.L. 95-87, referred to in subdivision (4)(g) of this section, is compiled as 30 USCS 1257(c).

350.553. Certification of achievement of priorities — Effect of concurrence in certification.

The Governor may certify to the Secretary of the Interior that all of the priorities stated in Section 403(a) of P.L. 95-87 and KRS 350.555 for eligible lands and waters pursuant to Section 404 of P.L. 95-87 and KRS 350.560(1), (2), and (3) have been achieved.
If the Secretary of the Interior concurs with the Governor’s certification under subsection (1), for purposes of determining the eligibility of lands and waters for annual grants under KRS 350.550(3), KRS 350.560(1), (2), and (3) shall not apply. Rather, eligible lands, waters, and facilities shall be those:
1. Which were mined or processed for minerals or which were affected by the mining or processing, and abandoned or left in inadequate reclamation status prior to August 3, 1977; and
2. For which there is no continuing responsibility under state or other federal laws.
Expenditures of moneys for lands, waters, and facilities referred to in subsection (2), above, shall reflect the following objectives and priorities in the order stated, in lieu of the priorities stated in KRS 350.555 :
1. The protection of public health, safety, general welfare, and property from extreme danger of adverse effects of mineral mining and processing practices.
2. The protection of public health, safety, and general welfare from adverse effects of mineral mining and processing practices.
3. The restoration of land and water resources and the environment previously degraded by the adverse effects of mineral mining and processing practices.
Sites and areas designated for remedial action pursuant to the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. Section 7901 et seq.) or which have been listed for remedial action pursuant to the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.) shall not be eligible for expenditures from the fund under this section.
Reclamation projects involving the protection, repair, replacement, construction, or enhancement of utilities such as those relating to water supply, roads, or other facilities serving the public adversely affected by mineral mining and processing, and the construction of public facilities in communities impacted by coal or other mineral mining and processing practices, shall be deemed part of the objectives set forth, and undertaken as they relate to, the priorities stated in subsection (3) above.
Notwithstanding subsection (5), above, if the Secretary of the Interior has concurred in the certification referenced in subsection (1), above, and the Governor determines that there is a need for activities or construction of specific public facilities related to the coal or minerals industry and if the Secretary of the Interior concurs in the need, then the Commonwealth of Kentucky may use annual grants made available under KRS 350.550(3) to carry out the activities or construction.
The provisions of KRS 350.570 and KRS 350.575 shall apply to subsections (1) through (5) of this section, except that for purposes of this section, the references to coal in KRS 350.570 and KRS 350.575 shall not apply.

History. Enact. Acts 1992, ch. 207, § 3, effective July 14, 1992.

Compiler’s Notes.

Sections 403(a) and 404 of P.L. 95-87, referred to in subsection (1) of this section, are compiled as 30 USCS §§ 1233a and 1234, respectively.

350.555. Priorities for expenditure of moneys from fund.

Expenditure of moneys from the fund on lands and water eligible pursuant to KRS 350.560 for the purposes of the Abandoned Mine Lands Program shall reflect the following priorities in the order stated:

1. The protection of public health, safety, and property from extreme danger of adverse effects of coal mining practices; and
2. The restoration of land and water resources and the environment that have been degraded by the adverse effects of coal mining practices and which are situated adjacent to a site that has been or will be remediated under this subsection;
1. The protection of public health and safety from the adverse effects of coal mining practices; and
2. The restoration of land and water resources and the environment that have been degraded by the adverse effects of coal mining practices and which are situated adjacent to a site that has been or will be remediated under this subsection; and
The restoration of land and water resources and the environment previously degraded by adverse effects of coal mining practices, including measures for the conservation and development of soil, water (excluding channelization), and woodland resources, fish and wildlife, recreation resources, and economic productivity.

History. Enact. Acts 1980, ch. 62, § 19; 2007, ch. 32, § 3, effective June 26, 2007.

Compiler’s Notes.

For effective date of this section, see Compiler’s Notes following KRS 350.010 .

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

350.560. Lands and water eligible for reclamation or drainage abatement expenditures.

Lands and water eligible for reclamation or drainage abatement expenditures under the Abandoned Mine Lands Program are those which were mined for coal or which were affected by coal mining, wastebanks, coal processing, or other coal mining processes, and were abandoned or left in an inadequate reclamation status prior to August 3, 1977, and for which there is no continuing reclamation responsibility under the provisions of this chapter. Surface coal mining operations on lands eligible for remining shall not affect the eligibility of those lands for reclamation and restoration under this chapter after the release of the bond or deposit for a remining operation as provided under KRS 350.093 . In the event the bond or deposit for a surface coal mining operation on lands eligible for remining is forfeited, funds available under this chapter may be used if the amount of the bond or deposit is not sufficient to provide for adequate reclamation or abatement, except that if conditions warrant the cabinet shall immediately exercise its authority under KRS 350.585 .
If the cabinet determines that the reclamation priority, under the priorities of KRS 350.555(1) and (2), of a site is the same or more urgent than the priority of sites under subsection (1) of this section, the following sites shall also be eligible for reclamation or drainage abatement expenditures:
1. Unreclaimed sites which were mined for coal or which were affected by coal mining, waste banks, coal processing, or other mining processes and left in an inadequate reclamation status during the period beginning August 4, 1977, and ending May 18, 1982, for which the bond, or other form of financial guarantee, was insufficient to provide adequate reclamation or abatement of the site; or
2. Unreclaimed sites which were mined for coal or which were affected by coal mining, waste banks, coal processing, or other coal mining processes and left in an inadequate reclamation status during the period beginning on August 4, 1977, and ending on or before November 5, 1990, where the surety for the permittee became insolvent during the period, and as of November 5, 1990, funds immediately available from proceedings relating to the insolvency, or from other sources have been insufficient to provide for adequate reclamation and abatement at the site.
Sites under subsection (2) of this section in the immediate vicinity of a residential area or which have an adverse economic impact upon a local community shall be given priority.
Funds allocated to the Commonwealth through annual grants from the Secretary of the Interior may be expended for the purposes of protecting, repairing, replacing, constructing, or enhancing facilities relating to water supply, including water distribution facilities and treatment plants, to replace water supplies adversely affected by coal mining practices. If the adverse effect on water supplies referred to in this subsection occurred both prior to and after August 3, 1977, subsections (1) and (2) of this section shall not be construed to prohibit use of funds for the purposes of this subsection, if the adverse effects occurred predominantly prior to August 3, 1977.
Where the Governor has made a certification under KRS 350.553 and the Secretary of the Interior has concurred in the certification, the reclamation categories of KRS 350.553 (2) shall take effect, supplanting the categories of subsections (1), (2), and (4) of this section.

History. Enact. Acts 1980, ch. 62, § 20; 1992, ch. 207, § 2, effective July 14, 1992; 1994, ch. 172, § 4, effective July 15, 1994; 2007, ch. 32, § 4, effective June 26, 2007.

Compiler’s Notes.

For effective date of the 1980 enactment of this section, see Compiler’s Notes following KRS 350.010 .

350.563. Restrictions on use of reclamation project grants.

The cabinet may use amounts available in grants made annually to the Commonwealth under KRS 350.550 for the reclamation of eligible land and water prioritized under KRS 350.555(3). However, the expenditure shall not occur unless the reclamation is done in conjunction with the expenditure of funds for reclamation projects prioritized under KRS 350.555(1) and (2), irrespective of when the higher priority project was initially funded.

History. Enact. Acts 2007, ch. 32, § 1, effective June 26, 2007.

350.565. Authority to submit plans and reports to federal Department of the Interior.

The Energy and Environment Cabinet shall have the authority to prepare and submit to the Secretary, United States Department of the Interior, reclamation plans, annual projects, applications for federal support, and any other reports or plans which are provided for or required pursuant to Title IV of the Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87).

History. Enact. Acts 1980, ch. 62, § 21; 2010, ch. 24, § 1892, effective July 15, 2010.

Compiler’s Notes.

For effective date of this section, see Compiler’s Notes following KRS 350.010 .

Title IV of the Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87), referred to in this section, is compiled as 30 USCS §§ 1231 to 1243.

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

350.570. Right of cabinet to enter upon land for reclamation purposes — Acquisition and disposal of land by Commonwealth.

If the cabinet makes a finding of fact pursuant to the Abandoned Mine Lands Program that:
1. Land or water resources have been adversely affected by past coal mining practices; and
2. The adverse effects are at a stage where, in the public interest, action to restore, reclaim, abate, control, or prevent should be taken; and
3. The owners of the land or water resources where entry must be made to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices are not known or readily available; or
4. The owners will not give permission for the United States, the Commonwealth, political subdivisions, or their agents, employees, or contractors to enter upon such property to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices;
  then, upon giving notice by mail to the owners if known, or if not known, by posting notice upon the premises and advertising once in a newspaper of general circulation in the municipality or county in which the land lies, the cabinet and its authorized representatives, agents, and contractors shall have the right to enter upon the property adversely affected by past coal mining practices, and any other property to have access to such property to do all things necessary or expedient to restore, reclaim, abate, control, or prevent the adverse effects. Such entry shall be construed as an exercise of the police power for the protection of public health, safety, and general welfare and shall not be construed as an act of condemnation of property nor of trespass thereon. The moneys expended for such work and the benefits accruing to any such premises so entered upon shall be chargeable against such land and shall mitigate or offset any claim in or any action brought by any owner of any interest in such premises for any alleged damages by virtue of such entry: provided, however, that this provision is not intended to create new rights of action or eliminate existing immunities.
The cabinet and its authorized representatives, agents, and contractors shall have the right to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of past coal mining practices and to determine the feasibility of restoration, reclamation, abatement, control, or prevention of such adverse effects. Such entry shall be construed as an exercise of the police power for the protection of public health, safety, and general welfare, and shall not be construed as an act of condemnation of property nor trespass thereon.
The Commonwealth shall have the power to acquire, by purchase, donation, devise, or condemnation, any land which is adversely affected by past coal mining practices if acquisition of such land is necessary for successful reclamation and that:
1. The acquired land, after restoration, reclamation, abatement, control, or prevention of the adverse effects of past coal mining practices, will serve recreation and historic purposes, conservation and reclamation purposes, or provide open space benefits; or
2. Permanent facilities such as a treatment plant or a relocated stream channel will be constructed on the land for the restoration, reclamation, abatement, control, or prevention of the adverse effects of past coal mining practices; or
3. Acquisition of coal refuse disposal sites and all coal refuse thereon will serve the purposes of this chapter or that public ownership is desirable to meet emergency situations and prevent recurrences of the adverse effects of past coal mining practices.
Title to all lands acquired pursuant to this section shall be in the name of the Commonwealth. The price paid for the land acquired under this section shall reflect the market value of the land as adversely affected by past coal mining practices. The Commonwealth may exercise the power of eminent domain against such land by filing a condemnation suit under the procedure of the Eminent Domain Act of Kentucky. Provided, that when the Commonwealth acquires land adversely affected by past coal mining practices pursuant to the Abandoned Mine Lands Program and when such abandoned mine reclamation fund moneys are less than the purchase price, the Commonwealth shall be authorized to use whatever funds are available pursuant to KRS 350.156(3).
The Energy and Environment Cabinet may receive any federal, state, or other funds for the purpose of reclaiming lands affected by past coal mining practices, including federal funds made available to it pursuant to Title IV of the Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87). The cabinet may avail itself of any services which may be provided by other state agencies or the federal government, and may compensate them for such services.
The cabinet shall have the power to backfill, grade, revegetate, and perform other acts of restoration and reclamation on lands acquired pursuant to this section. The cabinet may cause the reclamation work to be done by its own employees or by employees of other governmental agencies or soil conservation districts, or through contracts with qualified persons. Such contracts shall be awarded pursuant to regulations promulgated by the cabinet. The cabinet and any other agency and any contractor under a contract with the cabinet shall have the right of access to the land affected to carry out such reclamation.
Where land acquired pursuant to this section is deemed to be suitable for industrial, commercial, residential, or recreational development, the Commonwealth shall have the power to sell such land by public sale under a system of competitive bidding, at not less than fair market value and under such regulations as may be promulgated to insure that such lands are put to proper use consistent with local and state land use plans, if any. The proceeds of any such sale shall be credited to the abandoned mine reclamation fund. The cabinet, when requested after appropriate public notice, shall hold a public hearing, with the appropriate notice, in the county or counties in which lands acquired pursuant to this section are located. The hearings shall be held at a time which shall afford local citizens and governments the maximum opportunity to participate in the decision concerning the use or disposition of the lands after restoration, reclamation, abatement, control, or prevention of the adverse effects of past coal mining practices.
In addition to the authority to acquire and reclaim land for the purposes set forth in subsection (3) of this section, the Commonwealth is given authority to use money in the fund to acquire land by purchase, donation, devise, or condemnation and to reclaim such land and to transfer it to any political subdivision of the Commonwealth or to any person, firm, association, or corporation, if such is an integral and necessary element of an economically feasible plan for a project to construct or rehabilitate housing for persons disabled as the result of employment in the mines or work incidental thereto, persons displaced by acquisition of land pursuant to this section, persons dislocated as the result of adverse effects of coal mining practices which constitute an emergency as provided in KRS 350.585 , or persons dislocated as the result of natural disasters or catastrophic failures from any cause, or any related commercial, industrial, agricultural, recreational, or governmental use of facilities. Such activities shall be accomplished under such terms and conditions as the Commonwealth shall require, which may include transfers of land with or without monetary consideration. Provided, that to the extent that the consideration is below the fair market value of the land transferred, no portion of the difference between the fair market value and the consideration shall accrue as a profit to such persons, firm, association, or corporation. No part of the funds provided under the abandoned mine reclamation fund may be used to pay the actual construction costs of housing.
All acquisitions and disposals of land or any interests therein pursuant to the authority granted by this section shall be governed by the applicable provisions of KRS Chapters 45A and 56.

History. Enact. Acts 1980, ch. 62, § 22; 1990, ch. 496, § 64, effective July 13, 1990; 2010, ch. 24, § 1893, effective July 15, 2010.

Compiler’s Notes.

For effective date of the 1980 enactment of this section, see Compiler’s Notes following KRS 350.010 .

The Eminent Domain Act of Kentucky, referred to in subsection (4) of this section, is compiled as KRS 416.540 to 416.670 . Title IV of the Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87), referred to in subsection (5) of this section, is compiled as 30 USCS §§ 1231 to 1243.

350.575. Lien for reclamation.

Within six (6) months after the completion of projects to restore, reclaim, abate, control, or prevent adverse effects of past coal mining practices on privately owned land, the cabinet shall itemize the moneys so expended and may file a statement thereof in the office of the county in which the land lies which has the responsibility under local law for the recording of judgments against land, together with a notarized appraisal by an independent appraiser of the value of the land before the restoration, reclamation, abatement, control, or prevention of adverse effects of past coal mining practices if the moneys so expended shall result in a significant increase in property value. Such statement shall constitute a lien upon the said land. The lien shall not exceed the amount determined by the appraisal to be the increase in the market value of the land as a result of the restoration, reclamation, abatement, control, or prevention of the adverse effects of past coal mining practices. No lien shall be filed against the property of any person, in accordance with this section, who neither consented to nor participated in nor exercised control over the mining operation which necessitated the reclamation performed hereunder. The cabinet may waive the lien consistent with its regulations.
The landowner may proceed as provided by local law to petition within sixty (60) days of the filing of the lien, to determine the increase in the market value of the land as a result of the restoration, reclamation, abatement, control, or prevention of the adverse effects of past coal mining practices. The amount reported to be the increase in value of the premises shall constitute the amount of the lien and shall be recorded with the statement herein provided. Any party aggrieved by the decision may appeal as provided by local law.
The lien provided in this section shall be entered in the county office in which the land lies and which has responsibility under local law for the recording of judgments against land. Such statement shall constitute a lien upon the said land as of the date of the expenditure of the moneys and shall have priority as a lien second only to the lien of real estate taxes imposed upon said land.

History. Enact. Acts 1980, ch. 62, § 23; 2007, ch. 32, § 5, effective June 26, 2007.

Compiler’s Notes.

For effective date of this section, see Compiler’s Notes following KRS 350.010 .

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

350.580. Reclamation of surface impacts of underground or surface mining.

The cabinet is authorized to fill voids, seal abandoned tunnels, shafts, and entryways, and reclaim surface impacts of underground or surface mines which the secretary determines could endanger life and property, constitute a hazard to the public health and safety, or degrade the environment, with such moneys as may become available under the abandoned mine reclamation fund.
The Commonwealth may acquire by purchase, donation, devise, easement, or otherwise such interest in land as necessary to carry out the provisions of this section and may dispose of acquired land in a manner consistent with the purposes of the Abandoned Mine Lands Program.

History. Enact. Acts 1980, ch. 62, § 24.

Compiler’s Notes.

For effective date of this section, see Compiler’s Notes following KRS 350.010 .

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

350.585. Emergency restoration and reclamation.

The cabinet is authorized to expend moneys from the fund for the emergency restoration, reclamation, abatement, control, or prevention of adverse effects of coal mining practices, on eligible lands, if the cabinet makes finding of fact that:
1. An emergency exists constituting a danger to the public health, safety, or general welfare; and
2. No other person or agency will act expeditiously to restore, reclaim, abate, control, or prevent the adverse effects of coal mining practices.
The cabinet, its agents, employees, and contractors shall have the right to enter upon any land where the emergency exists and any other land to have access to the land where the emergency exists to restore, reclaim, abate, control, or prevent the adverse effects of coal mining practices and to do all things necessary or expedient to protect the public health, safety, or general welfare. Such entry shall be construed as an exercise of the police power and shall not be construed as an act of condemnation of property nor of trespass thereof. The moneys expended for such work and the benefits accruing to any such premises so entered upon shall be chargeable against such land and shall mitigate or offset any claim in or any action brought by any owner of any interest in such premises for any alleged damages by virtue of such entry. Provided, however, that this provision is not intended to create new rights of action or eliminate existing immunities.

History. Enact. Acts 1980, ch. 62, § 25.

Compiler’s Notes.

For effective date of this section, see Compiler’s Notes following KRS 350.010 .

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

350.590. Power of cabinet to administer provisions of Abandoned Mine Lands Program.

The cabinet shall have the power and authority, if not granted it otherwise, to engage in any work and to do all things necessary or expedient, including promulgation of rules and regulations, to implement and administer the provisions of the Abandoned Mine Lands Program.
The cabinet shall have the power and authority to engage in cooperative projects under the program with any agency of the United States, any state and their governmental agencies.
The cabinet may initiate, in addition to any other remedies provided for in this chapter, in any court of competent jurisdiction, an action in equity for an injunction to restrain any interference with the exercise of the right to enter or to conduct any work provided in the Abandoned Mine Lands Program.
The cabinet shall have the power and authority to construct and operate facilities for the control and treatment of water pollution resulting from mine drainage. The extent of this control and treatment may be dependent upon the ultimate use of the water; provided, that the above provisions of this subsection shall not be deemed in any way to repeal or supersede any portion of the Federal Water Pollution Control Act (33 U.S.C. secs. 1151 et seq., as amended) and no control or treatment under this subsection shall in any way be less than that required under the Federal Water Pollution Control Act. The construction of facilities may include major interceptors and other facilities appurtenant thereto.
The cabinet may transfer funds to other appropriate state agencies, in order to carry out the reclamation activities authorized by the Abandoned Mine Lands Program.

History. Enact. Acts 1980, ch. 62, § 26.

Compiler’s Notes.

For effective date of this section, see Compiler’s Notes following KRS 350.010 .

The Federal Water Pollution Control Act, referred to in subsection (4) of this section, which was formerly compiled as 33 USCS § 1151 et seq., is deemed to be superseded by Public Law 92-500, which is compiled as 33 USCS § 1251 et seq.

Legislative Research Commission Note.

The provisions of this section became operative on May 18, 1982, when the conditional approval granted by the United States Secretary of the Interior appeared in the Federal Register.

350.595. Application for inclusion under Abandoned Mine Land Enhancement Program — Coverage under Kentucky reclamation guaranty fund.

An applicant who desires to remine property which is classified as abandoned mine land under KRS 350.560 may apply to the Reclamation Guaranty Fund Commission established in KRS 350.506 for inclusion under the Abandoned Mine Land Enhancement Program. The commission may provide coverage under the Kentucky reclamation guaranty fund established pursuant to KRS 350.503 not to exceed fifty percent (50%) of the bond amount which the cabinet determines under KRS 350.060 is necessary for the abandoned mine land.
When the bond required for the abandoned mine land under KRS 350.060 is increased or reduced, or is released in whole or in part, the coverage provided by the bond pool shall be proportionately increased or reduced.
In the event of bond forfeiture on the property, moneys from the Kentucky reclamation guaranty fund shall be used to supplement the forfeited bond.

History. Enact. Acts 1984, ch. 282, § 1, effective July 13, 1984; 1988, ch. 397, § 1, effective July 15, 1988; 2013, ch. 78, § 10, effective March 22, 2013.

Legislative Research Commission Notes.

(3/22/2013). References to “bond pool fund” in this statute as it appeared in 2013 Ky. Acts ch. 78, sec. 10, have been changed in codification to “Kentucky reclamation guaranty fund” since the statute establishing the bond pool fund (KRS 350.700 ) was repealed in that Act and the Kentucky reclamation guaranty fund was established in Section 2 of that Act (KRS 350.503 ) to replace the bond pool fund. The Reviser of Statutes has made the needed conforming changes in codification under the authority of KRS 7.136(1).

350.597. Special trust fund.

The Finance and Administration Cabinet shall establish a special trust fund which may receive and retain up to thirty percent (30%) of the total grants made annually by the Secretary of the Interior, pursuant to Section 402(g)(6) of Pub. L. No. 95-87, as amended by the Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432.
Sums deposited into the special trust fund, and interest earned thereon, shall be expended for acid mine drainage abatement and treatment in accordance with the requirements of Section 402(g)(6) of Pub. L. No. 95-87, as amended by the Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432.

History. Enact. Acts 1992, ch. 207, § 4, effective July 14, 1992; 2007, ch. 32, § 6, effective June 26, 2007.

Compiler’s Notes.

Sections 402(g)(6) of Pub. L. No. 95-87, as amended by the Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432, referred to in (1) and (2), is compiled as 30 USCS § 1232(g)(6).

Oil Shale Mining

350.600. Legislative findings and intent — Commercial oil shale mining prohibited until adoption of rules and regulations.

The General Assembly finds that there has been a recent interest in the Commonwealth in the mining and processing of oil shale due to the critical need for fossil fuel which has developed in this country. The General Assembly further finds that the development of this fossil fuel could be of significant long-range benefit to the Commonwealth and to the United States of America, but that the unregulated extraction and processing of oil shale within the Commonwealth could cause soil erosion, water pollution, and the destruction of aesthetic and agricultural values. The General Assembly further finds that, in order to effectively regulate the extraction and processing of oil shale, the Energy and Environment Cabinet shall conduct extensive research concerning the process, waste production, and potentially adverse environmental impacts of such recovery operations.
It is the intent of the General Assembly to provide such regulation and control of the mining and processing of oil shale as to minimize and prevent its adverse effects on the citizens and the environment of the Commonwealth. The General Assembly further finds that the Energy and Environment Cabinet is the most competent agency to regulate the extraction and processing of oil shale due to its expertise in the handling of the surface mining of other minerals and in the regulation of other sources of air and water pollution.
The Energy and Environment Cabinet shall file with the regulations compiler reasonable rules and regulations pertaining to oil shale mining operations, which shall include strip mining as defined by KRS 350.010 , the surface effects of underground mining of oil shale, and the in situ mining of oil shale by June 30, 1981. No person shall engage in the commercial mining or processing of oil shale until such time as the cabinet promulgates rules and regulations to provide standards for such mining.
In promulgating regulations pursuant to subsection (3) of this section, the secretary shall make written finding that the regulations promulgated are based on sound scientific and engineering data and are reasonably necessary to protect the people and environment of the Commonwealth from the adverse effects of oil shale extraction. The secretary shall promulgate regulations consistent with existing standards for land, water, and air protection. The secretary may conduct a public hearing on the subject of the cabinet’s regulation of the extraction and processing of oil shale for the purpose of collecting data and receiving public comments on this issue. The hearing will be held at a time and place to be determined by the secretary in accordance with the policy of the cabinet.
Prior to the adoption of the regulations required by this section, any person may conduct core drilling, experimentation, removal of samples, or a pilot and demonstration project which involves the mining of not more than five (5) acres for the production of oil shale in any one (1) county. Such core drilling, experimentation, removal of samples, or pilot and demonstration project involving the mining of not more than five (5) acres for the production of oil shale in any one (1) county shall not be initiated until written notification of the intent to perform such operations shall be filed at least fifteen (15) days prior to commencement of such projects by registered mail by the mine operator with the secretary of the Energy and Environment Cabinet of the Commonwealth of Kentucky and with the person(s) holding title to the surface of the land to be utilized for such operations.
The secretary of the Energy and Environment Cabinet of the Commonwealth of Kentucky shall be granted the right to monitor such core drilling, experimentation, removal of samples, or pilot and demonstration project as it may deem necessary for the purpose of establishing sound and reasonable scientific and engineering data upon which rules and regulations pertaining to oil shale mining operations in the Commonwealth of Kentucky can be based.

History. Enact. Acts 1980, ch. 260, § 1, effective July 15, 1980; 2010, ch. 24, § 1894, effective July 15, 2010.

Research References and Practice Aids

ALR

Grant, lease, exception, or reservation of oil and/or gas rights as including oil shale. 61 A.L.R.3d 1109.

Lands Unsuitable

350.610. Designation of lands as unsuitable for surface coal mining.

The secretary of the Energy and Environment Cabinet is hereby authorized to establish a planning process enabling objective decisions based upon competent and scientifically sound data as to which, if any, lands of the Commonwealth are unsuitable for all or certain types of surface coal mining operations pursuant to the standards set forth in this chapter; provided, that any such designation shall not prevent coal or other mineral exploration of any area so designated.
Upon petition and hearing pursuant to subsection (6) of this section, the secretary shall designate an area as unsuitable for all or certain types of surface coal mining operations, if the secretary determines that reclamation pursuant to this chapter is not technologically and economically feasible.
Upon petition and hearing pursuant to subsection (6) of this section, a surface area may be designated unsuitable for certain types of surface coal mining operations if such operations will:
1. Be incompatible with existing state and local land use plans; or
2. Affect fragile or historic lands in which such operations could result in significant damage to important historic, cultural, scientific, and aesthetic values, and natural systems; or
3. Affect renewable resource lands in which such operations could result in a substantial loss or reduction of long-range productivity of water supply or food or fiber products, and such lands to include aquifers and aquifer recharge areas; or
4. Affect natural hazard lands in which such operations could substantially endanger life and property, such lands to include areas subject to frequent flooding and areas of unstable geology.
Determinations of the unsuitability of land for surface coal mining shall be integrated as closely as possible with present and future land use planning and regulation processes at any appropriate level of government, including but not limited to any valid exercise of authority of a municipality or county, acting independently or jointly, pursuant to KRS Chapter 100.
The requirements of this section shall not apply to lands on which coal mining operations were being conducted on August 3, 1977, or under a permit issued pursuant to this chapter or where substantial legal and financial commitments in such operation were in existence prior to January 4, 1977.
Other provisions of this chapter relating to hearings to the contrary notwithstanding, any person having an interest which is or may be adversely affected shall have the right to petition the cabinet to the extent such a petition would be consistent with subsections (2) and (3) of this section, to have a specific and well-defined area designated as unsuitable for surface coal mining operations, or to have such a designation terminated. Such a petition shall contain allegations of facts which shall be specific as to the petitioner’s designated area, including a justification that the criteria alleged occur throughout and form a significant feature, and shall be based upon objective evidence which would tend to establish the allegations. The cabinet shall make a determination or finding whether the petition is complete, incomplete, or frivolous. Within ten (10) months after the receipt of the petition, the cabinet shall hold a public hearing in the locality of the affected area, after appropriate notice and publication of the date, time, and location of such hearing, pursuant to regulations promulgated by the cabinet to implement this section, provided that when a permit application is pending before the cabinet and such application involves an area in a designation petition, the cabinet shall hold the hearing on the petition within ninety (90) days of its receipt. After a person having an interest which is or may be adversely affected has filed a petition and before the hearing, any person may intervene by filing allegations of facts with supporting evidence which would tend to establish the allegations. Within sixty (60) days after such a hearing, the cabinet shall issue and furnish to the petitioner and any other party to the hearing, a written decision regarding the petition, and the reasons therefor. In the event that all petitioners stipulate agreement prior to the requested hearing and withdraw their request, such hearing need not be held. Within thirty (30) days after receipt of an order, determination, finding, or decision by the cabinet or the secretary hereunder, any applicant, or any person with an interest which is or may be adversely affected and who is aggrieved by the order, determination, finding, or decision of the cabinet or secretary, may obtain judicial review thereof by appealing to the Circuit Court of Franklin County pursuant to the provisions of KRS 224.10-470 .
Prior to designating any land areas as unsuitable for surface coal mining operations, the cabinet shall prepare a detailed statement on:
1. The potential coal resources of the area;
2. The demand for coal resources;
3. The impact of such designation on the environment, the economy, and the supply of coal; and
4. The characteristics of the petition area including a justification that the criteria alleged occur throughout the petition area and form a significant feature.
Subject to subsection (5) of this section, the cabinet shall not issue a permit to conduct surface coal mining and reclamation operations in contravention of any designation or any decision on any petition pursuant to subsection (6) of this section regarding any surface area designated unsuitable for mining; nor shall the cabinet issue a permit to conduct surface coal mining and reclamation operations in an area under study for such designation in an administrative proceeding already commenced under subsection (6) of this section.

History. Enact. Acts 1980, ch. 62, § 36, effective March 21, 1980; 1982, ch. 283, § 8, effective April 2, 1982; 1984, ch. 180, § 1, effective July 13, 1984; 2010, ch. 24, § 1895, effective July 15, 2010.

Compiler’s Notes.

For effective date of this section as enacted by Acts 1980, ch. 62, see Compiler’s Notes following KRS 350.010 . For effective date of amendment by Acts 1982, ch. 283, see Compiler’s Notes following KRS 350.010 .

Legislative Research Commission Note.

(7/11/91). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 and 7.140 .

NOTES TO DECISIONS

1.Invalid Regulations.

Judgment of the trial court affirming the Secretary of the Commonwealth of Kentucky, Energy and Environment Cabinet’s (Cabinet) imposition of restrictive conditions on all future mining in the area was reversed where 405 Ky. Admin. Regs 24:030 § 8(3) was contrary to law, KRS 350.610 , and more stringent than the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.S. § 1201 et seq., thereby rendering it null, void and unenforceable; the Cabinet refused to make a finding of unsuitability yet imposed restrictive conditions consistent with an unsuitability determination. Laurel Mt. Res., LLC v. Commonwealth, 360 S.W.3d 791, 2012 Ky. App. LEXIS 34 (Ky. Ct. App. 2012).

Bond Pool Fund

350.700. Bond pool fund established. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 1, effective July 15, 1986; 1988, ch. 397, § 2, effective July 15, 1988) was repealed by Acts 2013, ch. 78, § 12, effective March 22, 2013.

350.705. Bond Pool Commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 2, effective July 15, 1986; 1988, ch. 397, § 3, effective July 15, 1988; 1992, ch. 119, § 3, effective July 14, 1992) was repealed by Acts 2013, ch. 78, § 12, effective March 22, 2013.

350.710. Powers of commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 3, effective July 15, 1986; 1988, ch. 397, § 4, effective July 15, 1988; 1990, ch. 210, § 9, effective July 13, 1990; 1990, ch. 496, § 65, effective July 13, 1990) was repealed by Acts 2013, ch. 78, § 12, effective March 22, 2013.

350.715. Pool administrator. [Repealed]

History. Enact. Acts 1986, ch. 137, § 4, effective July 15, 1986; 1988, ch. 397, § 5, effective July 15, 1988; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 4, effective July 15, 1986; 1988, ch. 397, § 5, effective July 15, 1988) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

350.720. Bond pool — Criteria — Compliance records. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 5, effective July 15, 1986; 1988, ch. 397, § 6, effective July 15, 1988; 1990, ch. 210, § 10, effective July 13, 1990; 1990, ch. 389, § 1, effective July 13, 1990) was repealed by Acts 2013, ch. 78, § 12, effective March 22, 2013.

350.725. Membership fee — Tonnage fee. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 6, effective July 15, 1986; 1988, ch. 397, § 7, effective July 15, 1988; 1990, ch. 389, § 2, effective July 13, 1990) was repealed by Acts 2013, ch. 78, § 12, effective March 22, 2013.

350.730. Tonnage fee suspension or reinstatement. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 7, effective July 15, 1986) was repealed by Acts 2013, ch. 78, § 12, effective March 22, 2013.

350.735. Permit-specific penal bond. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 8, effective July 15, 1986; 1988, ch. 397, § 8, effective July 15, 1988; 1990, ch. 210, § 11, effective July 13, 1990; 1990, ch. 389, § 3, effective July 13, 1990) was repealed by Acts 2013, ch. 78, § 12, effective March 22, 2013.

350.740. Permit issuance. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 9, effective July 15, 1986; 1990, ch. 210, § 12, effective July 13, 1990; 1990, ch. 389, § 4, effective July 13, 1990) was repealed by Acts 2013, ch. 78, § 12, effective March 22, 2013.

350.745. Payments from fund for reclamation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 10, effective July 15, 1986; 1988, ch. 397, § 9, effective July 15, 1988) was repealed by Acts 2013, ch. 78, § 12, effective March 22, 2013.

350.750. Revocation of membership in bond pool. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 11, effective July 15, 1986; 1988, ch. 397, § 10, effective July 15, 1988; 1990, ch. 389, § 5, effective July 13, 1990) was repealed by Acts 2013, ch. 78, § 12, effective March 22, 2013.

350.755. Grounds for refusal of permit. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 137, § 12, effective July 15, 1986) was repealed by Acts 2013, ch. 78, § 12, effective March 22, 2013.

Penalties

350.990. Penalties.

Any permittee, person, or operator who violates any of the provisions of this chapter or administrative regulations promulgated pursuant thereto or who fails to perform the duties imposed by these provisions, except the refusal or failure to obtain a permit or other authorization as provided in this chapter, or who violates any determination or order issued pursuant to the provisions of this chapter, may be liable to a civil penalty of not more than five thousand dollars ($5,000) for the violation, and an additional civil penalty of not more than five thousand dollars ($5,000) for each day during which the violation continues, and in addition, may be enjoined from continuing the violations provided in this section. Any permittee, operator, or person who fails to abate a violation noted in a notice of noncompliance or an order for immediate compliance and cessation within the time period prescribed for the abatement shall be assessed a civil penalty of not less than seven hundred fifty dollars ($750) for each day during which the violation continues. Any person issued an order pursuant to KRS 350.130(4) shall be assessed a civil penalty of not more than five thousand dollars ($5,000) for each violation cited in the underlying notice of noncompliance issued therewith. No separate civil penalty shall be assessed for the order issued pursuant to KRS 350.130(4). Each day of continuing violation may be deemed a separate violation for purposes of penalty assessment. The cabinet shall develop a method for calculating monetary penalties and shall promulgate it as an administrative regulation. The secretary or a designated representative, upon his or her own initiative or upon written request received within fifteen (15) days after the cabinet mails its proposed penalty assessment, may waive the use of the method for calculating monetary penalties if he or she determines that, taking into account exceptional factors present in the particular case, the penalty is demonstrably unjust. The basis for every waiver shall be fully explained and documented in the records of the case. If the secretary or his or her designated representative waives the use of the formula, he or she shall determine the appropriate penalty upon consideration of the permittee’s history of previous violations at the particular surface coal mining operation, the seriousness of the violation, whether the permittee was negligent, and the demonstrated good faith of the permittee charged in attempting to achieve rapid compliance after notification of the violation. The penalties shall be recoverable in an action brought in the name of the Commonwealth of Kentucky by the cabinet. The Franklin Circuit Court shall hold concurrent jurisdiction and venue of all civil and injunctive actions instituted by the cabinet for the enforcement of the provisions of this chapter or the orders and administrative regulations of the cabinet promulgated pursuant thereto. All sums recovered shall be placed in the State Treasury, except those moneys collected in excess of eight hundred thousand dollars ($800,000) in any fiscal year shall be deposited into the restricted fund account of the Office of the Commissioner of the Department for Natural Resources to be disbursed for the purposes set out in KRS Chapters 350, 351, and 352. All moneys previously deposited in the abandoned mine land enhancement fund shall be redeposited in the reclamation guaranty fund.
Any person or operator who engages in surface coal mining operations without first securing a permit, as provided in KRS 350.060 , or any person who engages in coal exploration operations, exclusive of core drilling, without proper authorization, as required by the cabinet pursuant to KRS 350.057 or administrative regulations promulgated pursuant thereto, or any person or operator who engages in other mining operations, without proper authorization as required by this chapter or administrative regulations promulgated pursuant thereto, shall be liable to a civil penalty for damages to the Commonwealth of not less than five thousand dollars ($5,000) nor more than twenty-five thousand dollars ($25,000) and in addition, may be enjoined from continuing the violations. Each day shall constitute a separate violation. In addition to the foregoing penalties, any permittee, person, or operator who fails to abate a violation of KRS 350.060 or KRS 350.029 or KRS 350.057 , as noted in a notice of noncompliance or an order for immediate compliance and cessation within the time period prescribed for the abatement, shall be assessed an additional civil penalty of not less than seven hundred fifty dollars ($750) for each day during which the violation continues. However, the penalties provided in subsection (1) of this section shall apply in lieu of the penalties provided in this subsection where an operator or permittee through inadvertence has exceeded the boundaries or expiration date of the permit in effect at that time.
The cabinet shall bring an action for the recovery of penalties and bring an action for a restraining order, temporary or permanent injunction, against any permittee, operator, or person violating or threatening to violate any of the provisions of this chapter or violating or threatening to violate any order or determination issued pursuant to the provisions of this chapter. The Franklin Circuit Court shall hold concurrent jurisdiction and venue of all civil and injunctive actions instituted by the cabinet for the enforcement of the provisions of this chapter or the orders and administrative regulations of the cabinet promulgated pursuant thereto.
Any permittee, operator, or person who knowingly and willfully violates any of the provisions of this chapter, except as provided in subsection (5) of this section, or any determination or order issued pursuant to the sections of this chapter which have become final, shall be guilty of a Class A misdemeanor. Each day on which the violation occurs may constitute a separate offense.
1. Any person or operator who, in violation of KRS 350.060(1)(a) willfully and knowingly engages in surface coal mining operations without first obtaining a permit from the cabinet, or any person or operator who willfully and knowingly engages in coal exploration operations, exclusive of core drilling, without proper authorization, as required by the cabinet pursuant to KRS 350.057 or administrative regulations promulgated pursuant thereto, or any person or operator who willfully and knowingly engages in other mining operations without proper authorization as required by this chapter or administrative regulations promulgated pursuant thereto, with the intent to violate the laws, shall be guilty of a Class D felony.
2. Any person or operator who in violation of KRS 350.060(1)(b) willfully and knowingly receives, transports, sells, conveys, transfers, trades, exchanges, donates, purchases, delivers, or in any way derives benefit from coal removed from any surface mining operations conducted in violation of KRS 350.060(1)(a) or 350.057 shall be guilty of a Class D felony.
Any person who violates any of the provisions of KRS 350.600 or administrative regulations promulgated pursuant thereto shall be subject to civil penalties of not more than twenty-five thousand dollars ($25,000). Each day of continuing violation shall be deemed a separate violation.
Any permittee, operator, or person who knowingly makes any false statement, representation, or certification, or knowingly fails to make any statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained by the cabinet, shall upon conviction be guilty of a Class A misdemeanor.
Except as permitted by law, any permittee, operator, or person who willfully and knowingly resists, prevents, impedes, or interferes with the secretary or other personnel of the cabinet in the performance of duties pursuant to this chapter shall be guilty of a Class A misdemeanor.
When a corporate permittee violates any provision of this chapter or administrative regulation promulgated pursuant thereto or fails or refuses to comply with any final order issued by the secretary, any director, officer, or agent of the corporation who willfully and knowingly authorized, ordered, or carried out the violation, failure, or refusal shall be subject to the same civil penalties, fines, and imprisonment as may be imposed upon a person pursuant to this section.
Upon notice by the secretary that any surety has failed to comply with the provisions of KRS 350.032(3), the commissioner of the Kentucky Department of Insurance shall revoke the surety’s certificate of authority to conduct insurance business within the Commonwealth of Kentucky.
The cabinet, upon written request by any permittee, person, or operator subject to any penalty assessment under this section and pursuant to procedures, if any, set forth by administrative regulation and after consultation with the local county fiscal court, may allow as an alternative to the payment of any assessed penalty under this section the performance of in-kind reclamation, environmental rehabilitation, or similar action to correct environmental pollution. The in-kind work shall not substitute for those remedial measures mandated by the cabinet for the correction of any violations. The estimated cost of the in-kind work shall be greater than the penalty assessment. The cabinet’s Division of Abandoned Mine Lands shall have the authority to approve proposed in-kind projects and to recommend projects to the cabinet, and shall determine whether the estimated cost of the in-kind work exceeds the penalty assessment. For the purposes of this subsection, the cost of the in-kind work shall include only those expenditures for actual on-site reclamation or rehabilitation work, including direct equipment, personnel, and material cost, but excluding administrative overhead or transportation costs. Failure to perform the in-kind work as agreed upon by the person or operator subject to the penalty assessment shall reinstate the liability of the person, permittee, or operator for the full amount of the assessed penalty. The cabinet may prepare and promulgate administrative regulations as are necessary to implement and administer the provisions of this subsection.

HISTORY: Enact. Acts 1954, ch. 8, § 17; 1960, ch. 143, § 6; 1962, ch. 105, § 14; 1966, ch. 4, § 27; 1972 (1st Ex. Sess.), ch. 3, § 80; 1976, ch. 289, § 1; 1976, ch. 291, § 2; 1978, ch. 332, § 11, effective June 17, 1978; 1980, ch. 62, § 35; 1980, ch. 260, § 1, effective July 15, 1980; 1980, ch. 377, § 3, effective March 21, 1980; 1982, ch. 150, § 4, effective July 15, 1982; 1982, ch. 283, § 9, effective April 2, 1982; 1984, ch. 257, § 2, effective July 13, 1984; 1984, ch. 282, § 2, effective July 13, 1984; 1986, ch. 137, § 13, effective July 15, 1986; 1986, ch. 394, § 1, effective July 15, 1986; 1988, ch. 397, § 11, effective July 15, 1988; 1990, ch. 202, § 1, effective July 13, 1990; 1990, ch. 210, § 13, effective July 13, 1990; 1990, ch. 212, § 5, effective July 13, 1990; 1990, ch. 399, § 7, effective July 13, 1990; 1992, ch. 120, § 3, effective July 14, 1992; 1992, ch. 429, § 35, effective July 14, 1992; 1992, ch. 463, § 38, effective July 14, 1992; 1996, ch. 210, § 2, effective July 15, 1996; 1998, ch. 148, § 1, effective July 15, 1998; 1998, ch. 222, § 3, effective July 15, 1998; 2010, ch. 24, § 1896, effective July 15, 2010; 2013, ch. 78, § 11, effective March 22, 2013; 2018 ch. 85, § 8, effective July 14, 2018.

Compiler’s Notes.

For effective date of the 1980 amendments to this section by ch. 62 and ch. 377, see Compiler’s Notes following KRS 350.010 and 350.035 . For effective date of amendment by Acts 1982, ch. 283, see Compiler’s Notes following KRS 350.010 .

Acts 1992, ch. 120, § 3 made no change in this section, however, a technical correction was made by the Reviser of Statutes.

Legislative Research Commission Notes.

(7/13/90). This section was amended by four 1990 Acts. Where those acts are not in conflict, they are compiled together. Where a conflict exists, the Act which was last enacted by the General Assembly prevails, pursuant to KRS 446.250 .

NOTES TO DECISIONS

1. Purpose.
2. Construction.
3. Compulsory Reclamation.
4. Procedure.
5. Notice.
6. Remedies Not Mutually Exclusive.
7. Corporate Officers, Directors, and Agents.
8. Good Faith.
9. Piercing the Corporate Veil.

1.Purpose.

The purpose of subsection (9) of this section is to impose an additional liability upon the corporate officer upon proof of willful and knowing complicity in the failure by the corporate permittee to respond to the secretary’s order. Natural Resources & Environmental Protection Cabinet v. Williams, 768 S.W.2d 47, 1989 Ky. LEXIS 23 ( Ky. 1989 ).

2.Construction.

This section is structured to permit the corporate officer to be joined as an additional defendant with the corporate permittee in the enforcement stage at the Franklin Circuit Court level, if liability is alleged and proved against the corporate officer pursuant to subsection (9) of this section. Natural Resources & Environmental Protection Cabinet v. Williams, 768 S.W.2d 47, 1989 Ky. LEXIS 23 ( Ky. 1989 ).

Whether a violation was willful or inadvertent is not determinative of the amount of the penalty imposed under the statute. Vanhoose v. Commonwealth, 995 S.W.2d 389, 1999 Ky. App. LEXIS 62 (Ky. Ct. App. 1999).

3.Compulsory Reclamation.

An operator can be compelled to undertake reclamation. Payne v. Commonwealth, Natural Resources & Environmental Protection Cabinet, 746 S.W.2d 90, 1988 Ky. App. LEXIS 29 (Ky. Ct. App. 1988).

4.Procedure.

The language of subsection (9) of this section necessarily implies that the enforcement procedure provided for therein against the corporate officer “who willfully and knowingly authorized, ordered, or carried out such . . . . . failure or refusal” shall be in Franklin Circuit Court because liability is predicated on failure by the corporate permittee to comply with the secretary’s “final order.” Chronologically, such failure can only occur after the administrative procedure against the corporation has culminated in an order that has been disobeyed. Natural Resources & Environmental Protection Cabinet v. Williams, 768 S.W.2d 47, 1989 Ky. LEXIS 23 ( Ky. 1989 ).

Subsection (9) of this section formed the basis for corporate permittee’s liability, not a piercing of the corporate veil, and did not require the naming of an individual, if the person is not the permittee, in the administrative proceeding as a prerequisite to the imposition of personal liability, only that a final order had been issued pertinent thereto and that there was a failure or refusal to comply before the individual entity could be held responsible. Triple M Mining Co. v. Natural Resources & Envtl. Protection Cabinet, 906 S.W.2d 364, 1995 Ky. App. LEXIS 146 (Ky. Ct. App. 1995).

5.Notice.

A complaint by the Natural Resources Environmental Protection Cabinet, in a case against the president and sole shareholder of a mining corporation, that specified that the defendant’s individual liability was as sole shareholder and president pursuant to subsection (9) of this section, provided adequate notice of the statutory basis for her liability without further parroting or paraphrasing the language within the statute. Natural Resources & Environmental Protection Cabinet v. Williams, 768 S.W.2d 47, 1989 Ky. LEXIS 23 ( Ky. 1989 ).

Notices of noncompliance, cessation orders, notice of proposed assessments and a form upon which the company could request an administrative hearing sent by certified mail to the corporate permittee and in several instances signed for by permittee’s father and business associate provided sufficient notice of the administrative orders and opportunity for hearing required by law and due process. Triple M Mining Co. v. Natural Resources & Envtl. Protection Cabinet, 906 S.W.2d 364, 1995 Ky. App. LEXIS 146 (Ky. Ct. App. 1995).

6.Remedies Not Mutually Exclusive.

7.Corporate Officers, Directors, and Agents.

The term “agent,” as used in this section, includes persons charged with the responsibility for protecting society and the environment from the adverse effects of surface coal mining operations and particularly charged with effectuating compliance with environmental performance standards during the course of a permittee’s mining operation. Couch v. Natural Resources & Envtl. Protection Cabinet, 986 S.W.2d 158, 1999 Ky. LEXIS 19 ( Ky. 1999 ).

The appellant was individually liable under subsection (9) where he was the sole officer, director, and shareholder of a corporation, he had notice of unabated violations by the corporation and related orders of the Natural Resources and Environmental Protection Cabinet, and he took no steps to see that the corporation complied with the orders. Commonwealth Natural Resources & Envtl. Protection Cabinet v. Neace, 14 S.W.3d 15, 2000 Ky. LEXIS 8 ( Ky. 2000 ).

Individual civil penalties can be imposed against shareholders, directors, or agents of a corporation during administrative review and need not await an enforcement action against the corporation in Circuit Court. Commonwealth v. Evans, 45 S.W.3d 442, 2001 Ky. LEXIS 2 ( Ky. 2001 ).

8.Good Faith.

A party’s alleged good faith is not relevant to the determination of whether he willfully and knowingly authorized, ordered, or carried out surface coal mining violations. Couch v. Natural Resources & Envtl. Protection Cabinet, 986 S.W.2d 158, 1999 Ky. LEXIS 19 ( Ky. 1999 ).

9.Piercing the Corporate Veil.

Subsection (9) does not repeal the common law pertaining to piercing the corporate veil. Commonwealth Natural Resources & Envtl. Protection Cabinet v. Neace, 14 S.W.3d 15, 2000 Ky. LEXIS 8 ( Ky. 2000 ).

Cited:

Wombles v. Commonwealth, 328 S.W.2d 146, 1959 Ky. LEXIS 91 ( Ky. 1959 ); Collins v. Nagle, 892 F.2d 489, 1989 U.S. App. LEXIS 19338 (6th Cir. 1989); Natural Resources & Envtl. Protection Cabinet v. Coleman, 876 S.W.2d 614, 1993 Ky. App. LEXIS 179 (Ky. Ct. App. 1993).

Opinions of Attorney General.

An offense under the statute is an indictable one under the provisions of Criminal Code § 9 (now RCr 6.02). OAG 61-65 .

While any violation of KRS Chapter 350 or a regulation or order of the cabinet pursuant thereto gives rise to a penalty under this section, the notice of violation procedure can be viewed as an exercise of the agency’s discretion not to “prosecute” when the violation is not very serious and is corrected; the authority for the notice of violation provision is the Cabinet’s inherent discretion to mitigate penalties. OAG 79-24 .

Research References and Practice Aids

Kentucky Bench & Bar.

Glover, Digesting the Federal Strip Mine Act, Vol. 42, No. 1, Jan. 1978 Ky. Bench & B. 25.

Kentucky Law Journal.

Notes, Economic, Social and Legal Aspects of Coal Transportation in Kentucky, 64 Ky. L.J. 601 (1975-76).

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

Northern Kentucky Law Review.

A Survey of Kentucky Environmental Law, 29 N. Ky. L. Rev. 1 (2002).

CHAPTER 351 Department for Natural Resources

351.010. Definitions for chapter — Applicability.

As used in this chapter, unless the context requires otherwise:
1. “Adulterated specimen” means a specimen containing a substance that is not a normal constituent or containing an endogenous substance at a concentration that is not a normal physiological concentration;
2. “Approved” means that a device, apparatus, equipment, or machinery, or practice employed in the mining of coal has been approved by the commissioner of the Department for Natural Resources;
3. “Assistant mine foreman” means a certified person designated to assist the mine foreman in the supervision of a portion or the whole of a mine or of the persons employed therein;
4. “Commercial mine” means any coal mine from which coal is mined for sale, commercial use, or exchange. This term shall in no instance be construed to include a mine where coal is produced for own use;
5. “Commission” means the Mine Safety Review Commission created by KRS 351.1041 ;
6. “Commissioner” means commissioner of the Department for Natural Resources;
7. “Department” means the Department for Natural Resources;
8. “Drift” means an opening through strata or coal seams with opening grades sufficient to permit coal to be hauled therefrom or which is used for the purpose of ventilation, drainage, ingress, egress, and other purposes in connection with the mining of coal;
9. “Excavations and workings” means the excavated portions of a mine;
10. “Fire boss” (often referred to as mine examiner) means a person certified as a mine foreman or assistant mine foreman who is designated by management to examine a mine or part of a mine for explosive gas or other dangers before a shift crew enters;
11. “Gassy mine.” All mines shall be classified as gassy or gaseous;
12. “Illicit substances” includes prescription drugs used illegally or in excess of therapeutic levels as well as illegal drugs;
13. “Intake air” means air that has not passed through the last working place of the split or by the unsealed entrances to abandoned workings and by analysis contains not less than nineteen and one-half percent (19.5%) oxygen, no dangerous quantities of flammable gas, and no harmful amounts of poisonous gas or dust;
14. “Licensee” means any owner, operator, lessee, corporation, partnership, or other person who procures a license from the department to operate a coal mine;
15. “Medical review officer” or “MRO” means a licensed physician with knowledge of substance abuse disorders, laboratory testing, chain of custody, collection procedures, and the ability to verify positive, confirmed test results. The MRO shall possess the necessary medical training to interpret and evaluate a positive test result in relation to the person’s medical history or any other relevant biomedical information;
16. “Mine” means any open pit or any underground workings from which coal is produced for sale, exchange, or commercial use, and all shafts, slopes, drifts, or inclines leading thereto, and includes all buildings and equipment, above or below the surface of the ground, used in connection with the workings. Workings that are adjacent to each other and under the same management, but which are administered as distinct units, shall be considered a separate mine;
17. “Mine foreman” means a certified person whom the licensee or superintendent places in charge of the workings of the mine and of the persons employed therein;
18. “Mine manager” means a certified or noncertified person whom the licensee places in charge of a mine or mines and whose duties include but are not limited to operations at the mine or mines and supervision of personnel when qualified to do so;
19. “Open-pit mine” shall include open excavations and open-cut workings, including but not limited to auger operations and highwall mining systems for the extraction of coal. However, excavation of refuse from a coarse coal refuse fill for reprocessing of the refuse, which is permitted and bonded under KRS Chapter 350 and is regulated by the Mine Safety and Health Administration, shall not be required to obtain a license under this chapter;
20. “Operator” means the licensee, owner, lessee, or other person who operates or controls a coal mine;
21. “Permissible” refers to any equipment, device, or explosive that has been approved by the United States Bureau of Mines, the Mining Enforcement and Safety Administration, or the Mine Safety and Health Administration and that meets all requirements, restrictions, exceptions, limitations, and conditions attached to the classification by the approving agency;
22. “Preshift examination” means the examination of a mine or any portion thereof where miners are scheduled to work or travel, which shall be conducted not more than three (3) hours before any oncoming shift;
23. “Return air” means air that has passed through the last active working place on each split, or air that has passed through abandoned, inaccessible, or pillared workings;
24. “Serious physical injury” means an injury which has a reasonable potential to cause death;
25. “Shaft” means a vertical opening through the strata that is used in connection with the mining of coal, for the purpose of ventilation or drainage, or for hoisting men, coal, or materials;
26. “Slope” means an inclined opening used for the same purpose as a shaft;
27. “Superintendent” means the person who, on behalf of the licensee, has immediate supervision of one (1) or more mines;
28. “Supervisory personnel” means a person certified under the provisions of this chapter to assist in the supervision of a portion or the whole of the mine or of the persons employed therein;
29. “Division” means the Division of Mine Safety;
30. “Director” means the director of the Division of Mine Safety;
31. “Probation” means the status of a certification or license issued by the Division of Mine Safety that conditions the validity of the certification or license upon compliance with orders of the Mine Safety Review Commission; and
32. “Final order of the commission” means an order which has not been appealed to the Franklin Circuit Court within thirty (30) days of entry, or an order affirming the commission’s order that has been entered by any court within the Commonwealth and for which all appeals have been exhausted.
Except as the context otherwise requires, this chapter applies only to commercial coal mines.
The definitions in KRS 352.010 apply also to this chapter, unless the context requires otherwise.

History. 2739-1: amend. Acts 1946, ch. 120, § 1; 1952, ch. 162, § 1; 1966, ch. 255, § 257; 1972, ch. 298, § 1; 1976, ch. 174, § 1; 1976 (Ex. Sess.), ch. 8, § 17, effective December 22, 1976; 1978, ch. 301, § 1, effective June 17, 1978; 1996, ch. 308, § 1, effective April 9, 1996; 2000, ch. 104, § 1, effective July 14, 2000; 2001, ch. 149, § 3, effective March 20, 2001; 2002, ch. 355, § 1, effective July 15, 2002; 2005, ch. 123, § 56, effective June 20, 2005; 2006, ch. 185, § 6, effective July 12, 2006; 2006, ch. 241, § 8, effective July 12, 2006; 2012, ch. 89, § 1, effective July 12, 2012; 2015 ch. 87, § 7, effective June 24, 2015; 2017 ch. 117, § 29, effective June 29, 2017; 2020 ch. 100, § 1, effective July 15, 2020.

Commissioner's Notes

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor's signed copy of the Act was filed with the Secretary of State.

NOTES TO DECISIONS

1.Unused Mine.

Opening was “mine” within statute although operations therefrom were extended merely to connect with old mine for use as haulway, and no coal was sold or shipped from opening. Interstate Coal Co. v. Baxavenie, 144 Ky. 172 , 137 S.W. 859, 1911 Ky. LEXIS 566 ( Ky. 1911 ) (decided under prior law).

Cited:

Courtney v. Island Creek Coal Co., 474 F.2d 468, 1973 U.S. App. LEXIS 11381 (6th Cir. 1973).

Research References and Practice Aids

Kentucky Law Journal.

Note: COWho? Kentucky’s Need to Statutorily Define Property Interests in Geologically Sequestered Carbon Dioxide, 98 Ky. L.J. 375 (2009/2010).

351.020. Commissioner of Department for Natural Resources — Functions.

The Department for Natural Resources shall be headed by the commissioner of the Department for Natural Resources.
The department shall administer all laws of the Commonwealth relating to mines.

History. 2739-2, 2739-3, 3766b-15, 4618-38: amend. Acts 2000, ch. 104, § 2, effective July 14, 2000; 2005, ch. 123, § 57, effective June 20, 2005.

Research References and Practice Aids

Cross-References.

Oil and gas laws, Department to enforce, KRS 353.200 .

351.021. “Chief” refers to “Commissioner.” [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 228) was repealed by Acts 1966, ch. 255, § 283.

351.025. Duties of department relating to mine safety — Administrative regulations.

The department shall:

Promulgate administrative regulations that establish comprehensive criteria for the imposition and enforcement of sanctions against certified and noncertified personnel and owners and part-owners of licensed premises whose intentional violation of, or order to violate, mine safety laws places miners in imminent danger of serious injury or death. These criteria shall include but not be limited to the following:
1. In the case of individuals that are certified miners, the Mine Safety Review Commission may revoke or suspend an individual’s certification, or probate an individual’s certification for first offenses, and the Mine Safety Review Commission shall establish a maximum penalty for subsequent offenses;
2. In the case of individuals that are owners or part-owners of licensed premises, the Mine Safety Review Commission may impose civil monetary penalties against individuals not to exceed ten thousand dollars ($10,000); and
3. In the case of noncertified personnel, the Mine Safety Review Commission may impose civil monetary fines equivalent to the value of the wages they receive for up to ten (10) working days for first offenses and the commission shall establish maximum penalties for subsequent offenses;
Notwithstanding KRS 351.070(15), promulgate administrative regulations that establish comprehensive criteria for the Mine Safety Review Commission’s imposition of penalties against licensed premises for violations of mine safety laws that place miners in imminent danger of serious injury or death. These penalties shall include but not be limited to the revocation or suspension of the mine’s license, the probation of a mine’s license, or the imposition of a penalty against the licensee not to exceed the gross value of the production of the licensed premise for up to ten (10) working days;
Direct that an employer shall not directly or indirectly reimburse a sanctioned miner or mine supervisor for days of work lost as a result of sanctions imposed by the Mine Safety Review Commission;
Establish procedures by which the department shall communicate with the Federal Mine Safety and Health Administration (MSHA) concerning allegations of mine safety violations against Kentucky coal operators and miners and for reports made to the division under KRS 351.193 ;
Jointly with the Mine Safety Review Commission establish a process for referring allegations of mine safety violations to the Mine Safety Review Commission for adjudication and for the hearing of appeals from penalties imposed by the division, and the underlying violation, authorized under KRS 351.070(15); and
Establish procedures to distribute quarterly reports to every licensed entity describing mine fatalities, serious mine accidents, and penalties imposed on certified and noncertified personnel and licensed premises and to require the report to be distributed to every certified working miner employed by the licensed entity, posted at work sites, and reviewed at regular mine safety meetings.

HISTORY: Enact. Acts 2001, ch. 149, § 6, effective March 20, 2001; 2006, ch. 185, § 7, effective July 12, 2006; 2007, ch. 94, § 1, effective June 26, 2007; 2015 ch. 87, § 8, effective June 24, 2015.

351.030. Hearings before department — Petition for intervention.

All administrative hearings conducted by the department shall be conducted in accordance with KRS Chapter 13B and this section. Following the hearing, the department shall decide each matter in controversy. No person shall be discharged or otherwise discriminated against by his or her employer for testifying, or for his failure to testify, at these hearings.
The executor or administrator of a deceased miner’s estate, or his or her designee, in the case of a fatality, miners that are injured as a result of an accident, and miners that are significantly affected by the conduct that gave rise to a disciplinary proceeding shall be granted the right of intervention in the penalty phase of that proceeding. The petition for intervention shall be made in accordance with KRS 13B.060(3). All hearings before the Mine Safety Review Commission shall be open proceedings. Any party with pertinent information regarding a mine accident may submit that information directly to the division’s chief accident investigator.

HISTORY: 3766b-16: amend. Acts 1972, ch. 298, § 2; 1996, ch. 308, § 2, effective April 9, 1996; 1996, ch. 318, § 330, effective July 15, 1996; 2000, ch. 104, § 3, effective July 14, 2000; 2007, ch. 94, § 2, effective June 26, 2007; 2015 ch. 87, § 9, effective June 24, 2015.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

Research References and Practice Aids

Kentucky Law Journal.

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

351.040. Action to vacate order of department — Appeal.

Any party in interest dissatisfied with an order of the department may commence an equitable action against the department and other interested parties as defendants, to vacate or set aside, in whole or in part, any such order. The action shall be brought in the Circuit Court of the county where the subject matter involved in the order, or the well or workable coal bed or part thereof, is located. The court may grant relief from any unlawful or unreasonable order of the department, and render such judgment as appears to it to be equitable and just.
The pendency of the action shall not of itself suspend the operation of the order of the department, but during the pendency of the action any party may secure from the court an order suspending or staying the operation of the order of the department pending the action by giving to the other parties adequate security, approved by the court, against loss due to the delay in enforcement of the order, in case the order under review is not set aside, and the court may, without security being given, suspend the operation of the order, in whole or in part, on such terms as it deems just and in accordance with the practice of courts of equity; provided, however, that the operation of an order pertaining to safety in coal mines shall not be suspended temporarily pending final decision of the court.
Appeals may be taken to the Court of Appeals as in other cases.

History. 3766b-17: amend. Acts 1952, ch. 162, § 2; 2000, ch. 104, § 4, effective July 14, 2000.

351.050. Commissioner — Appointment — Term — Oath. [Repealed.]

Compiler’s Notes.

This section (2739-3, 2739-5: amend. Acts 1952, ch. 162, § 3; 1962, ch. 106, Art. XV) was repealed by Acts 1972, ch. 298, § 19.

351.051. Commissioner — Appointment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 298, § 3) was repealed by Acts 2005, ch. 123, § 66, effective June 20, 2005.

351.060. Qualifications of director of Division of Mine Safety.

The director of the Division of Mine Safety shall be a citizen of Kentucky and shall be thoroughly familiar with all methods of safety pertaining to the operation of mines.
The director shall have a practical knowledge of:
1. The different systems of working and ventilating coal mines;
2. The nature, chemistry, and properties of noxious, poisonous, and explosive gases, the dangers due to these gases, and the prevention of these dangers;
3. The dangers incident to blasting and the prevention of these dangers;
4. The methods for the management and extinguishment of mine fires;
5. The methods for rescue and relief work in mine disasters;
6. The application of electricity in mining operations;
7. The application of mechanical loading in mining operations;
8. The equipment and explosives manufactured for use in coal mines;
9. The methods used in locating oil and gas wells when drilled through any coal seam;
10. The proper manner of drilling and plugging oil and gas wells;
11. Mining engineering; and
12. The methods for the prevention of explosions in mines due to gas or dust.
The director shall be capable of efficiently reporting on any proposed development in mining operations or the possibility of operating any coal or clay seam.
The director shall hold a mine inspector’s or mine safety specialist’s certificate.

HISTORY: 2739-4: amend. Acts 1974, ch. 386, § 64; 1976, ch. 86, § 14; 1996, ch. 308, § 3, effective April 9, 1996; 2005, ch. 123, § 58, effective June 20, 2005; 2015 ch. 87, § 10, effective June 24, 2015.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

Research References and Practice Aids

Kentucky Law Journal.

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

351.070. Duties of the commissioner — Office of Mine Safety and Licensing — Secretary may promulgate administrative regulations — Financial liaison — Civil monetary penalties.

The commissioner shall have full authority over the department and shall superintend and direct the activities of the mine safety specialists and other personnel of the department. There is created within the Department for Natural Resources a Division of Mine Safety.
The secretary shall appoint a director to the Division of Mine Safety in accordance with KRS 224.10-020 (2) and prescribe his or her powers and duties.
The commissioner may, whenever necessary, divide the coal fields of the state into as many inspection regions as necessary, so as to equalize as nearly as practicable the work of each mine safety specialist, and may assign to the specialists their respective regions.
The commissioner may, whenever he or she deems it necessary in the interest of efficient supervision of the mines, temporarily employ the services of additional mine safety specialists or change specialists from one (1) region to another.
The commissioner shall superintend and direct the inspection of mines and cause to be investigated the character and quality of air in mines whenever conditions indicate the necessity of doing so.
The commissioner shall collect statistics relating to coal mining in the state and make an annual report of the statistics.
The commissioner shall see that maps, plans, projections, and proposed developments of all underground coal mines are made and filed in his office.
The commissioner shall keep a properly indexed, permanent record of all inspections made by himself and the personnel of the department.
The commissioner shall exercise general supervision over the training of officials and workmen in safety and first aid and mine rescue methods, and may conduct demonstrations in safety whenever he deems it advisable.
The commissioner shall exercise general supervision over the dissemination of information among officials and employees concerning mine ventilation, mining methods, and mine accidents and their prevention, and shall assume full charge in the event of mine fire or explosion or other serious accident at any mine in the state.
The commissioner may assist in the resumption of operations of any mine or gather data for the development of any coal seams that would be of any benefit to the state or create new employment.
The commissioner may prescribe reasonable safety standards governing the use of explosives, and electrical and mechanical equipment in the operation of open-pit or surface mines.
The secretary of the Energy and Environment Cabinet shall have the power and authority to promulgate, amend, or rescind any administrative regulations he or she deems necessary and suitable for the proper administration of this chapter. Administrative regulations may be promulgated, amended, or rescinded by the secretary only after public hearing or an opportunity to be heard thereon of which proper notice by publication pursuant to KRS Chapter 424, has been given. Administrative regulations so promulgated shall carry the full force and effect of law.
The commissioner shall ascertain the cause or causes of any coal mining fatality and any accidents involving serious physical injury and, within sixty (60) days of completion of the investigation, shall report his or her findings and recommendations to the Governor, the Mine Safety Review Commission, and the Legislative Research Commission. Accident interviews conducted by the division shall be closed proceedings. The recommendations may include without being limited to the need to promulgate or amend administrative regulations to prevent the recurrence of the conditions causing the fatality. Effective January 1, 2009, the division shall appoint an existing full-time employee to act as a family liaison. The family liaison shall have the responsibility during an accident investigation to keep the families of miners informed of the progress and findings of the accident investigation. The family liaison shall be trained in mining and in grief counseling.
The commissioner shall assess civil monetary penalties against licensed facilities for violations of laws in this chapter and KRS Chapter 352 pertaining to roof control plans, mine seal construction plans, unsafe working conditions, and mine ventilation plans that could lead to imminent danger or serious physical injury. The Energy and Environment Cabinet shall promulgate administrative regulations within ninety (90) days of July 12, 2006, providing for the manner and method of the assessment of the penalties and appeals therefrom. In no event shall the civil penalty assessed pursuant to this subsection for the violation exceed five thousand dollars ($5,000). Nothing contained in this subsection shall be construed to impair or contravene the authority granted under KRS 351.025(2) for imposing penalties against licensed facilities.

HISTORY: 2739-7: amend. Acts 1952, ch. 162, § 4; 1966, ch. 239, § 210; 1972, ch. 298, § 4; 1994, ch. 488, § 2, effective July 15, 1994; 1996, ch. 308, § 4, effective April 9, 1996; 2001, ch. 149, § 4, effective March 20, 2001; 2005, ch. 123, § 59, effective June 20, 2005; 2006, ch. 185, § 8, effective July 12, 2006; 2007, ch. 94, § 3, effective June 26, 2007; 2010, ch. 24, § 1897, effective July 15, 2010; 2015 ch. 87, § 11, effective June 24, 2015; 2017 ch. 117, § 30, effective June 29, 2017.

Legislative Research Commission Notes.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

Opinions of Attorney General.

Under the authority granted by this section, the commissioner could adopt a regulation requiring a member of the supervisory personnel to be present with a crew working out by the loading point of an underground mine. OAG 77-320 .

The Mining Board is given the power and the obligation by KRS 351.105(11) to formally review and approve all administrative regulations proposed by the Department of Natural Resources that relate to the mining of coal, penalties, or the certification of miners before those administrative regulations are promulgated. The Mining Board does not have the power to review and approve regulations promulgated by the secretary of the Environmental and Public Protection Cabinet under KRS 351.070(13). OAG 10-010 , 2010 Ky. AG LEXIS 243.

351.073. Moratorium on regulations — Exceptions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 148, § 2, effective July 15, 1986) was repealed by Acts 1996, ch. 308, § 50, effective April 9, 1996.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

351.075. Exceptions to mandatory mine safety standards.

Upon petition by the operator or the representative of miners, the commissioner may modify the application of any mandatory safety standard to a mine if the commissioner determines that an alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard, or that the application of such standard to such mine will result in a diminution of safety to the miners in such mine. Upon receipt of such petition, the commissioner shall give notice to the operator or the representative of miners in the affected mine, as appropriate, and shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an opportunity for a public hearing, at the request of such operator or representative or other interested party, to enable the operator and the representative of miners in such mine or other interested party to present information relating to the modification of such standard.
The commissioner shall issue a decision incorporating his findings of fact therein, and shall send a copy thereof to the operator or the representative of the miners, as appropriate. Before granting any exception to a mandatory safety standard, the findings of the commissioner or his authorized representative shall be made available to the representative of the miners at the affected coal mine.

History. Enact. Acts 1976 (Ex. Sess.), ch. 8, § 16.

351.080. Offices of mine inspectors.

The offices of the mine inspectors shall be at such places within their respective districts as the commissioner designates, and each mine inspector shall be provided with a suitable office.

History. 2739-6: amend. Acts 1952, ch. 162, § 5; 1972, ch. 298, § 5; 1990, ch. 325, § 18, effective July 13, 1990.

351.090. Mine inspectors — Appointment — Qualifications — Oath and bond — Background check.

The Governor shall appoint an adequate number of mine safety specialists to ensure at least two (2) inspections annually at all surface mines, provided the mine is in operation the entire year or the proportionate thereof, of all mines in the Commonwealth and sufficient additional mine safety specialists to enable the commissioner to provide adequate monitoring of coal mines where conditions or management policy dictate that more inspections are needed to ensure the safety of miners. Underground mines shall be inspected at least six (6) times annually; except that the commissioner shall have the discretion to require up to three (3) of the six (6) required mine safety inspections to be mine safety analysis visits pursuant to KRS 351.242 . At least one (1) inspection shall be a full electrical inspection. One (1) or more of the appointees shall be designated as electrical mine inspectors. The Governor shall also appoint an adequate number of mine safety specialists to perform safety analysis and safety instruction. The term of office of each mine safety specialist shall be during the period of capable, efficient service and good behavior.
All mine safety specialists shall have a thorough knowledge of first aid and mine rescue and be able to instruct in first aid and mine rescue and shall have a thorough and practical knowledge of mining gained by at least five (5) years’ experience in coal mines in the Commonwealth. For the purposes of this subsection, a degree in mining engineering from a recognized institution shall be deemed equivalent to two (2) years of practical experience in coal mines or an associate degree in mining technology from a recognized institution shall be deemed equivalent to one (1) year practical experience in coal mines. A person desiring to use a mining engineering or technology degree for practical experience credit shall file proof of having received a degree prior to examination.
No person shall be appointed to the office of mine safety specialist unless he or she holds a current mine foreman’s certificate. A person appointed as mine safety specialist shall pass an examination administered by the department. The commissioner may recommend to the Governor applicants for the positions of mine safety specialist who have successfully passed the examination and are proved by worth, training, and experience to be the most competent of the applicants.
Mine safety specialists shall be of good moral character and temperate habits and shall not, while holding office, act in any official capacity in operating any coal mine.
No reimbursement for traveling expenses shall be made except on an itemized accounting for the expenses submitted by mine safety specialists who shall verify upon oath that the expenses were incurred in the discharge of their official duties.
Each mine safety specialist shall take oath, which shall be certified by the officer administering it. The oath, in writing, and the certificate, shall be filed in the office of the Secretary of State.
Each mine inspector, mine safety analyst, electrical inspector, and mine safety instructor shall give bond with surety approved by the Governor.
Each mine safety specialist shall provide authorization to the division to perform a criminal background check by means of a fingerprint check by the Department of Kentucky State Police. The results of the state criminal background check shall be sent to the director of the division. Any fee charged by the Department of Kentucky State Police shall be an amount no greater than the actual cost of processing the request and conducting the search.

History. 2739-15, 2739-16: amend. Acts 1946, ch. 120, § 2; 1952, ch. 162, § 6; 1972, ch. 298, § 6; 1978, ch. 301, § 2, effective June 17, 1978; 1982, ch. 370, § 3, effective July 15, 1982; 1984, ch. 323, § 1, effective July 13, 1984; 1996, ch. 308, § 5, effective April 9, 1996; 1998, ch. 480, § 1, effective July 15, 1998; 2000, ch. 104, § 5, effective July 14, 2000; 2002, ch. 355, § 2, effective July 15, 2002; 2006, ch. 185, § 9, effective July 12, 2006; 2007, ch. 94, § 4, effective January 1, 2009; 2015 ch. 87, § 12, effective June 24, 2015; 2017 ch. 72, § 1, effective June 29, 2017; 2017 ch. 117, § 31, effective June 29, 2017; 2018 ch. 85, § 9, effective July 14, 2018.

Legislative Research Commission Note.

(1/1/2009). 2007 Ky. Acts ch. 85, relating to the creation and organization of the Justice and Public Safety Cabinet, instructs the Reviser of Statutes to correct statutory references to agencies and officers whose names have been changed in that Act. Such a correction has been made in this section.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

Opinions of Attorney General.

Mine safety committee members who are appointed by a majority union or elected by a majority of miners would not be “mine safety inspectors.” OAG 76-337 .

Research References and Practice Aids

Cross-References.

Conditions of bond, penal sum, KRS 62.060 .

Subordinate appointments, department heads may make, KRS 12.050 , 12.060 .

351.100. Board of examiners for mine inspectors — Use of license fees. [Repealed.]

Compiler’s Notes.

This section (2739-44, 2739-45: amend. Acts 1952, ch. 162, § 7; 1972, ch. 298, § 7) was repealed by Acts 1976 (Ex. Sess.), ch. 8, § 30, effective December 22, 1976. For present law see KRS 351.105 and 351.110 .

351.101. Declaration of legislative finding of fact.

The General Assembly hereby finds and declares the following:

The highest priority and concern of the Commonwealth must be the health and safety of the coal industry’s most valuable resource, the miner.
The continued prosperity of the coal industry is of primary importance to the state.
A high priority must be given to increasing the productivity and competitiveness of the mines in this state.
An inordinate number of miners are killed or injured during the first few months of their experience in a mine and upon acquiring new work assignments in a mine.
These injuries result in the loss of life and serious injury to miners and are an impediment to the future growth of the state’s coal industry.
Mining is a technical occupation with various specialties requiring individualized training and education.
Injuries can be reduced through proper miner training, education, and certification.
Mine safety can be improved by the imposition and enforcement of sanctions against licensed premises and certified and noncertified personnel whose willful and repeated violations of mine safety laws place miners in imminent danger of serious injury or death.
Abuse of illicit substances and alcohol in the mining industry represents a serious threat to the health and safety of all miners. Substance and alcohol abuse adversely affect the health and safety of miners. Mine safety can be significantly improved by establishing as a condition of certification that miners remain drug and alcohol free.

History. Enact. Acts 1976 (Ex. Sess.), ch. 8, § 1; 2001, ch. 149, § 1, effective March 20, 2001; 2006, ch. 241, § 9, effective July 12, 2006.

NOTES TO DECISIONS

1.Applicability.

Under Ky. Rev. Stat. Ann. §§ 351.101 and 351.241 , the class of persons the legislature intended to be protected was the traditional coal miner and others associated with the process of extracting coal routinely exposed to the unique dangers and risks inherent to coal mining. McCarty v. Covol Fuels No. 2, LLC, 476 S.W.3d 224, 2015 Ky. LEXIS 1941 ( Ky. 2015 ).

351.102. Certificate of competency and qualification or permit as trainee required — Proof of drug- and alcohol-free status to be submitted — Examinations — Hearing — Appeals.

No person shall be assigned mining duties by a licensee as a laborer or supervisor unless the person holds a valid certificate of competency and qualification or a valid permit as trainee issued in accordance with this section.
The division shall require that all applicants for certified miner and initial applicants for other mining certifications pursuant to this chapter shall submit proof that he or she is drug and alcohol free. The proof shall be submitted in accordance with KRS 351.182 and 351.183 .
A permit as trainee miner shall be issued by the commissioner to any person who has submitted proof that he or she is drug and alcohol free in accordance with KRS 351.182 and 351.183 , and has completed a program of education of a minimum of forty (40) hours for underground mining or twenty-four (24) hours for surface mining comprised of sixteen (16) hours of classroom training and eight (8) hours of mine specifics or who has completed a certified mine technology program and has passed an examination approved by the commissioner. An additional eight (8) hours of mine-specific training shall be administered to the trainee miner by the licensee, which training shall be documented on a form approved by the commissioner. This education and training program shall be determined and established by the department, as provided in KRS 351.106 . A requirement for a permit as a trainee miner shall be one (1) hour of classroom training dedicated to alcohol and substance abuse education.
Trainee miners shall work within the sight and sound of a certified miner.
Any miner holding a certificate of competency and qualification may have one (1) person working with him and under his direction as a trainee miner. Any person certified as a mine foreman or assistant mine foreman shall have no more than five (5) persons working under his supervision or direction as trainee miners for the purpose of learning and being instructed in the duties of underground coal mining.
A certificate of competency and qualification as a miner shall be issued by the commissioner to any person who has a minimum of forty-five (45) working days’ experience within a thirty-six (36) month period as a trainee miner and demonstrated competence as a miner. Any trainee miner who exceeds six (6) months in obtaining the forty-five (45) working days of experience required in this section, shall submit proof of alcohol- and drug-free status in accordance with the provisions of KRS 351.182 and 351.183 .
All examinations for the certification of a miner shall be of a practical nature and shall determine the competency and qualification of the applicant to engage in the mining of coal with reasonable safety to himself and his fellow employees. The examination may be given orally, upon approval by the commissioner, if the miner is unable to read or comprehend a written examination.
Examinations shall be held in any regional office during regular business hours.
If the commissioner or his authorized representative finds that an applicant is not qualified and competent, he shall notify the applicant as soon as possible, but in no case more than thirty (30) days after the date of examination.
Any applicant aggrieved by an action of the commissioner or his authorized representative in failing or refusing to issue a certificate of qualification and competency shall, within ten (10) days of notice of the action complained of, appeal to the commissioner who shall either affirm the action or issue the certificate to the applicant.
If the applicant is aggrieved by the action of the commissioner, he may appeal to the commission which shall hold a hearing on the matter in accordance with KRS Chapter 13B.
The applicant may appeal from the final order of the commission by filing in the Franklin Circuit Court a petition for appeal in accordance with KRS Chapter 13B.

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 8, § 2; 1978, ch. 301, § 3, effective June 17, 1978; 1980, ch. 114, § 100, effective July 15, 1980; 1996, ch. 308, § 6, effective April 9, 1996; 1996, ch. 318, § 331, effective July 15, 1996; 2000, ch. 68, § 1, effective July 14, 2000; 2001, ch. 149, § 8, effective March 20, 2001; 2002, ch. 355, § 3, effective July 15, 2002; 2006, ch. 241, § 10, effective July 12, 2006; 2015 ch. 87, § 13, effective June 24, 2015; 2017 ch. 117, § 32, effective June 29, 2017.

Legislative Research Commission Note.

(7/14/2000). The reference to KRS 351.105 in subsection (2) of this section has been changed to KRS 351.106 under KRS 7.136(1)(e). Treatment of the “education and training program” formerly contained in KRS 351.105 was transferred to KRS 351.106 by 1996 Ky. Acts ch. 308, secs. 7 and 8.

(7/15/96). This section was amended by 1996 Ky. Acts chs. 308 and 318. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 308, which was last enacted by the General Assembly, prevails under KRS 446.250 .

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

Opinions of Attorney General.

This chapter does not require an operator to train an employee so that the employee can initially meet state licensing standards necessary to work underground for the purpose of mining coal. OAG 80-282 .

351.103. Eligibility of mining specialists to work as miners.

All persons possessing valid certificates as mine inspectors, electrical inspectors, mine safety instructors, assistant mine foreman, mine foreman, shotfirer, and other mining specialties as established by the department , or certified miner shall be eligible to work at any time as miners, provided they fulfill the annual requirements for retraining and reeducation as provided in KRS 351.106 .
Supervisory, clerical, and technically trained employees of the mine operator whose work contributes only indirectly to mine operations shall not be required to possess a miner’s certificate of competency and qualification.

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 8, § 3; 2000, ch. 104, § 6, effective July 14, 2000; 2006, ch. 241, § 11, effective July 12, 2006; 2017 ch. 117, § 33, effective June 29, 2017.

351.104. Certification of miners employed prior to date of training program establishment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 8, § 4) was repealed by Acts 1982, ch. 370, § 8, effective July 15, 1982.

351.1041. Mine Safety Review Commission.

The Mine Safety Review Commission is created as an independent governmental entity attached to the Energy and Environment Cabinet, Office of the Secretary, for administrative purposes. The commission shall:
1. Conduct hearings and issue orders regarding a licensee, coal operation, or other person involved in the mining of coal in accordance with KRS 351.194 ;
2. Jointly with the department establish a process for the department’s referral of allegations of mine safety violations, allegations of unsafe working conditions, violation of a miner’s drug- and alcohol-free condition of certification, or supervisory personnel’s failure to immediately report a fatal accident or an accident involving serious physical injury to the commission for adjudication;
3. Make any recommendations to the department that it believes appropriate upon its review, consideration, and analysis of:
  1. All reports of coal mining fatalities and serious physical injuries provided by the commissioner under KRS 351.070(14);
  2. Any case in which a miner or a mine owner or operator, in the professional opinion of the department has a history of significant and substantial safety violations even though there has been no serious physical injury or death resulting from the violations;
  3. Any case in which a miner or a mine owner or operator has been convicted of a criminal charge for a violation of a federal mine safety standard or standards; and
  4. Any case in which the Federal Mine Safety and Health Administration has made a recommendation relating to certification of an individual certified under this chapter.
The Mine Safety Review Commission shall consist of three (3) members appointed by the Governor subject to the consent of the Senate and the House of Representatives in accordance with KRS 11.160 . Of the members of the Mine Safety Review Commission first appointed under this section, one (1) shall be appointed for a term of one (1) year; one (1) shall be appointed for a term of two (2) years; and one (1) shall be appointed for a term of three (3) years. After the initial appointments, members of the commission shall be appointed for terms of four (4) years. A member may be reappointed at the expiration of his or her previous term. Members shall continue to serve until a successor is appointed and qualified.
The members of the Mine Safety Review Commission shall have the qualifications required of Judges of the Court of Appeals, except for residence in a district, and shall be subject to the same standards of conduct made applicable to a part-time judge by the Rules of the Kentucky Supreme Court. The members shall receive the per diem equivalent of the salary of a Judge of the Court of Appeals for each day spent in conducting the business of the commission.
The Governor shall designate a member of the Mine Safety Review Commission to serve as chair and shall fill any vacancy in the office of chair.
The Governor may remove any member for good cause, including violation of the Code of Judicial Conduct and repeated failure to perform satisfactorily the specific duties assigned in this chapter or KRS Chapter 352. The Governor may remove the member only after furnishing him or her with a written copy of the charges against that member and holding a public hearing if requested by the member.
The commission shall meet on the call of the chair or a majority of the members of the commission.
The Energy and Environment Cabinet shall provide administrative services to the Mine Safety Review Commission. If the commission deems it necessary to employ hearing officers to assist it, the Energy and Environment Cabinet shall employ hearing officers to assist the commission in accordance with KRS Chapter 13B and this chapter, notwithstanding the provisions of KRS 13B.030(2)(b).
The commission may conduct hearings, compel the attendance of witnesses, administer oaths, and conduct oversight activities as may be required to ensure the full implementation of its duties.
The department shall provide the Mine Safety Review Commission with all information requested by the commission for the fulfillment of its responsibilities under this chapter and KRS Chapter 352.
The secretary of the Energy and Environment Cabinet shall effectuate the hiring of any staff deemed necessary and affordable for the efficient operations of the Mine Safety Review Commission. This may include an executive director, general counsel, or other administrative support positions, to be appointed in accordance with KRS 12.010 and 12.050 .

HISTORY: Enact. Acts 2001, ch. 149, § 2, effective March 20, 2001; 2002, ch. 353, § 1, effective July 15, 2002; 2006, ch. 241, § 12, effective July 12, 2006; 2007, ch. 94, § 5, effective June 26, 2007; 2010, ch. 24, § 1898, effective July 15, 2010; 2017 ch. 117, § 34, effective June 29, 2017.

351.1045. Required new miner training course and site visits for members of the Mine Safety Review Commission.

The members of the Mine Safety Review Commission shall complete a forty (40) hour new miner training course if they have not completed the course within the previous two (2) years. In addition, they shall participate in a site visit of an underground mine and a surface coal mine and thereafter make a site visit of an underground mine at least every three (3) years.

HISTORY: Enact. Acts 2001, ch. 149, § 7, effective March 20, 2001; 2017 ch. 117, § 35, effective June 29, 2017.

351.105. Mining Board — Membership — Hearings — Administrative regulations. [Repealed]

History. Enact. Acts 1976 (Ex. Sess.), ch. 8, § 5; 1978, ch. 301, § 4, effective June 17, 1978; 1980, ch. 380, § 1, effective July 15, 1980; 1996, ch. 308, § 7, effective April 9, 1996; 2000, ch. 104, § 7, effective July 14, 2000; 2001, ch. 149, § 5, effective March 20, 2001; 2015 ch. 87, § 15, effective June 24, 2015; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 8, § 5; 1978, ch. 301, § 4, effective June 17, 1978; 1980, ch. 380, § 1, effective July 15, 1980; 1996, ch. 308, § 7, effective April 9, 1996; 2000, ch. 104, § 7, effective July 14, 2000; 2001, ch. 149, § 5, effective March 20, 2001) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

351.1055. Mine Equipment Review Panel — Membership — Recommendations. [Repealed]

History. Enact. Acts 2006, ch. 185, § 4, effective July 12, 2006; 2007, ch. 94, § 6, effective June 26, 2007; 2010, ch. 24, § 1899, effective July 15, 2010; 2010, ch. 135, § 10, effective July 15, 2010; 2015 ch. 87, § 14, effective June 24, 2015; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2006, ch. 185, § 4, effective July 12, 2006; 2007, ch. 94, § 6, effective June 26, 2007; 2010, ch. 24, § 1899, effective July 15, 2010; 2010, ch. 135, § 10, effective July 15, 2010) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

351.106. Education and training program — Alcohol and substance abuse training and education — Retraining and reeducation requirements — Administrative regulations — Implementation of program for training and examination — Records.

The department shall establish criteria and standards for a program of education and training to be required of prospective miners, miners, and all certified persons. This education and training shall be provided in a manner determined by the commissioner to be adequate to meet the standards established by the department, which shall include as a minimum the requirements of KRS 351.102 and the requirements of the federal government for the training of miners for new work assignments, and at least sixteen (16) hours of annual retraining and reeducation for all certified persons, of which thirty (30) minutes annually shall be dedicated to alcohol and substance abuse education. Effective January 1, 2009, in addition, six (6) hours of annual training on changes in mine safety laws, safe retreat mining practices, disciplinary cases litigated before the Mine Safety Review Commission, changes in mine safety technology, and ways to improve safe working procedures shall be required for all mine foremen. This annual training for mine foremen shall be provided exclusively by the division.
One (1) hour of initial substance abuse training and education shall be required as part of the certified miner’s first annual retraining conducted in a classroom that occurs after August 1, 2006. This requirement shall not apply to certified persons who received the one (1) hour initial substance abuse training and education as part of their forty (40) hour or twenty-four (24) hour new miner training.
In addition to the thirty (30) minutes of annual alcohol and substance abuse education required for certified miners, supervisory personnel shall be required to receive an additional thirty (30) minutes of alcohol and substance abuse awareness training annually.
Beginning with the first full calendar year after the effective date established by the department and during each calendar year thereafter, each certified miner shall receive at least sixteen (16) hours of retraining and reeducation.
Newly hired experienced miner training shall satisfy the miner’s annual retraining requirement if a time lapse occurs between the miner’s last training anniversary date and the next scheduled training anniversary date for the mine where he is newly employed, if the miner has complied with the annual retraining requirements within the last twelve (12) months from the date of his newly hired experienced miner training.
Retraining and reeducation sessions shall be conducted at times and in numbers to reasonably assure each certified miner an opportunity to attend.
The licensee shall pay all certified miners their regular wages and benefits while they receive training required by the department.
Willful failure of a working miner to complete annual retraining and reeducation requirements shall constitute grounds for revocation, suspension, or probation of his certificate.
If the department discovers a miner working without proper training or the licensee cannot provide proof of training, the miner shall be withdrawn immediately from the mine and the licensee shall pay the miner his regular wages until the training is administered and properly documented.
When employment is terminated, the licensee shall provide the employee a copy of his training records, upon request. If the employee does not request his training records immediately, the licensee shall, within fifteen (15) days, provide the employee with those training records.
The department may, upon its own motion or whenever requested to do so by the commissioner, deem applicable certificates issued by other states to be proof of training and education equal to the requirements of KRS 351.102 or deem training provided by appropriate federal agencies to be adequate to meet training and education requirements established by the department , if the training and education meet the minimum requirements of this chapter.
The secretary may promulgate administrative regulations necessary to establish a program to implement the provisions of this chapter according to the criteria and standards established by the department. This program shall include but not be limited to implementation of a program of instruction and the conduct of examinations to test each applicant’s knowledge and understanding of the training and instruction.
The commissioner shall keep and maintain current records on all certified miners, all of which shall be maintained by computer for ready access. The commissioner shall not grant certification to any person that, at the time of application, had his or her miner certification, foreman certification, electrician certification, or any other mining specialty certification suspended or revoked by another state. If a person has his or her miner certification, foreman certification, electrician certification, or other mining specialty certification probated in another state, the commissioner may, at his or her discretion, grant the equivalent certification. However, that certification shall be placed on probation in Kentucky until the probationary period in the other state has expired.
The commissioner is authorized and directed to utilize state mine safety specialists, private and public institutions of education, and other qualified persons available to him in implementing the program of instruction and examination.
The commissioner is authorized and directed to utilize state and federal moneys and personnel that may be available to the department for educational and training purposes in the implementation of the provisions of this chapter.
All training and education required by this section may be conducted in classrooms, on the job, or in simulated mines.

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 8 § 6; 1996, ch. 308, § 8, effective April 9, 1996; 2000, ch. 68, § 2, effective July 14, 2000; 2001, ch. 149, § 9, effective March 20, 2001; 2002, ch. 355, § 4, effective July 15, 2002; 2006, ch. 241, § 13, effective July 12, 2006; 2007, ch. 94, § 7, effective June 26, 2007; 2015 ch. 87, § 16, effective June 24, 2015; 2017 ch. 117, § 36, effective June 29, 2017.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

351.107. Requirements for certification as shotfirer.

A person desiring to obtain experience as a shotfirer may not charge or detonate explosives in an underground mine unless he or she is under the direction and within sight and sound of a certified shotfirer. No person shall charge or detonate explosives within an underground mine unless that person has successfully completed a training program and passed a test administered by the department. The test shall include at a minimum a determination of the person’s ability to test for mine gases and to safely handle and detonate explosives in an underground coal mine.
The commissioner shall issue a shotfirer’s certificate to the person upon successfully passing the test.

History. Enact. Acts 1976 (Ex. Sess.), ch. 8, § 7; 1996, ch. 308, § 9, effective April 9, 1996; 2000, ch. 104, § 8, effective July 14, 2000.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

351.1071. Training program — Certification as shotfirer and driller for solid blasting.

No person shall drill coal or detonate explosives within a mine using the method of shooting coal from the solid until that person successfully completes a training program administered by the department and has passed a test prescribed by the commissioner.
No person shall be issued a certificate in accordance with subsection (1) of this section unless he or she presents valid evidence to the commissioner of having one (1) year of practical underground coal mine experience.

History. Enact. Acts 1982, ch. 370, § 1, effective July 15, 1982.

351.108. Superintendent to hold a mine foreman certificate.

Mine superintendents shall hold a mine foreman certificate issued by the commissioner.

History. Enact. Acts 1976 (Ex. Sess.), ch. 8, § 8; 1996, ch. 308, § 10, effective April 9, 1996; 2000, ch. 104, § 9, effective July 14, 2000.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

351.109. Requirements for qualification and certification to perform electrical work — Written tests.

An individual is a qualified and certified person, within the meaning of this chapter, to perform electrical work, other than work on energized surface, high voltage lines, if he has at least one (1) year of experience under direct supervision of a qualified electrician in performing electrical work underground in a coal mine, in the surface work areas of an underground coal mine, in a surface coal mine, in a noncoal mine, in the mine equipment manufacturing industry, or in any other industry using or manufacturing similar equipment, and he attains a satisfactory grade on each of the series of written tests administered by the department and required in subsection (2) of this section.
The series of written tests shall include, but not be limited to, the following subjects:
1. Direct current theory and application;
2. Alternating current theory and application;
3. Electric equipment and circuits;
4. Permissibility of electric equipment;
5. Requirements of both federal and state laws; and
6. Pertinent sections of the National Electrical Code.
A score of at least eighty (80) percent on each of the written tests shall be deemed to be a satisfactory grade. Recognition shall be given to practical experience in that one (1) percentage point shall be added to an individual’s score in each test for each additional year of experience beyond the one (1) year minimum requirement specified in subsection (1) of this section; however, in no case shall an individual be given more than five (5) percentage points for such practical experience.
An individual may, within thirty (30) days from the date on which he received notification from the department of his test scores, repeat those sections on which he received an unsatisfactory score. If further retesting is necessary after this initial repetition, a minimum of thirty (30) days from the date of receipt of notification of the initial retest scores shall elapse prior to such further retesting, whereupon the entire series of written tests shall be retaken.
An individual qualified and certified in accordance with this section shall, in order to retain qualification and certification, satisfactorily complete annually a retraining program approved by the department.

History. Enact. Acts 1976 (Ex. Sess.), ch. 8, § 9; 1980, ch. 205, § 1, effective July 1, 1980; 1994, ch. 156, § 1, effective July 15, 1994; 2000, ch. 104, § 10, effective July 14, 2000.

351.110. Examination prerequisites — Fees — Moneys from licenses and examination fees for use of department.

The department shall not admit any applicant for certification as a mine inspector, mine safety analyst, electrical inspector, mine safety instructor, mine foreman, or assistant mine foreman to take an examination given by it unless the applicant has the experience required by this chapter, and has submitted proof that he or she is drug and alcohol free in accordance with KRS 351.182 and 351.183 , and has presented to the examiner at the time of registration for the examination a United States postal money order or certified check in the amount of fifty dollars ($50). All money orders or certified checks required herein shall be made payable to the State Treasurer, Frankfort, Kentucky.
All money paid to the State Treasurer for licenses and fees required by this chapter shall be for the sole use of the department and shall be in addition to any moneys appropriated by the General Assembly for the use of the department.
The department may refuse to examine any applicant who cannot readily understand the written English language or cannot express himself intelligently in English, or who is obviously intoxicated.

HISTORY: 2739-45: amend. Acts 1952, ch. 162, § 8; 1972, ch. 298, § 8; 1976 (Ex. Sess.), ch. 8, § 10; 1978, ch. 301, § 5, effective June 17, 1978; 1986, ch. 16, § 1, effective July 15, 1986; 1996, ch. 308, § 11, effective April 9, 1996; 2006, ch. 241, § 14, effective July 12, 2006; 2017 ch. 117, § 37, effective June 29, 2017.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

Research References and Practice Aids

Cross-References.

Receipts of budget units to be paid into state treasury, KRS 41.070 .

351.120. Issuance of certificates — Form and content — Classification — Duty of applicant — Drug- or alcohol-test-related suspension or revocation of certification or license — Notification of options — Reissuance after evaluation, treatment, and testing.

The commissioner shall issue a certificate to each person who possesses the qualifications required by law for mine inspector, electrical inspector, surface or underground mine safety instructor, surface mine safety analyst, assistant mine foreman, mine foreman, shotfirer, and other mining specialties as established by the department, or miner who has passed the examination given by direction of the department for that position, and who has met the requirements for drug- and alcohol-free status.
The certificate shall be in such form as the commissioner prescribes, shall be signed by the commissioner, and shall show that the holder has passed the required examination and possesses the qualifications required by law for mine inspector, electrical inspector, surface or underground mine safety instructor, surface mine safety analyst, assistant mine foreman, mine foreman, shotfirer, and other mining specialties as established by the department, or miner and is authorized to act as such.
Certificates issued to mine foremen and assistant mine foremen shall be classified as follows:
1. Mine foreman certificates, authorizing the holder to act as foreman for all classes of coal mines; and
2. Assistant mine foreman certificates, authorizing the holder to act as assistant foreman.
Any mine foreman or assistant mine foreman may act as a fire boss or mine examiner. This shall not apply to persons holding a second class mine foreman certificate issued before June 16, 1972.
The class of mine foreman’s certificate awarded shall be determined by the department according to the experience of the applicant.
No certificate shall be granted to any person who does not present to the department satisfactory evidence, in the form of affidavits, that the applicant has had the required practical experience in underground or surface coal mines. A data sheet shall be filed by each applicant showing places of employment, beginning month and year and ending month and year employed by each company and list jobs performed, showing at least the number of required years. Affidavit and data sheet forms shall be furnished by the department. The applicant also shall submit proof that he or she is drug and alcohol free. The proof shall be submitted in accordance with KRS 351.182 and 351.183 . For the purpose of this section, persons holding a four (4) year degree in mining engineering from a recognized institution shall be credited with the equivalent of two (2) years of practical experience in coal mines when applying for any mine foreman or assistant mine foreman certificate. Persons holding an associate degree in mining from a recognized institution shall be credited with the equivalent of two (2) years’ experience when applying for a mine foreman certificate and one (1) year when applying for an assistant mine foreman certificate. Persons desiring to use their mining engineering or mining technology degree as credit for practical experience toward a mine foreman or assistant mine foreman certificate shall file proof of having received their degree prior to the examination.
Applicants for an underground mine foreman certificate shall have five (5) years’ practical underground coal mining experience acquired after achieving the age of eighteen (18), with at least one (1) year of this experience acquired on an active working section of an underground mine. Applicants for an underground assistant mine foreman certificate shall have three (3) years’ practical underground experience acquired after achieving the age of eighteen (18), with at least one (1) year of this experience acquired on an active working section of an underground mine.
Applicants for surface mine foremen certification shall have three (3) years’ practical surface mine experience acquired after achieving the age of eighteen (18); for surface mine foreman certification with a specialty in coal extraction, at least one (1) year of the required practical experience shall have been acquired from direct involvement in the mining or extraction of coal at a surface mine. For a surface mine foreman certification with a specialty in postmining activities, at least one (1) year of the required experience shall have been acquired from direct involvement in the performance of such activities at a surface or underground mine, coal preparation plant, or other coal-handling facility. Notwithstanding any requirement in this subsection to the contrary, a person having three (3) years’ of underground or surface mining experience shall qualify for a surface mine foreman certification with a specialty in postmining activities if the person has documented experience of at least one (1) year in the performance of these activities. Persons holding a surface mine foreman certificate prior to July 15, 1998, are not affected by this section.
Persons possessing certificates of qualifications to act as mine inspector, mine foreman, assistant mine foreman, or fire boss prior to July 15, 1982, are not affected by this section.
When approved by the commissioner, a person who has successfully completed any mine foreman or assistant mine foreman examination and submitted proof that he or she is drug and alcohol free in accordance with KRS 351.182 and 351.183 may be granted a temporary certification that is valid only until the department acts upon his or her certification at its next regularly scheduled meeting.
A member of the supervisory personnel shall be present at the working section except in cases of emergencies at all times employees under his supervision are at the working section on coal-producing shifts.
The commissioner immediately shall suspend any certification for violation of drug- and alcohol-free status or for failure or refusal to submit to a drug and alcohol test authorized by KRS 351.182 , 351.183 , 351.184 , 351.185 , and 352.180 . The commissioner shall, by certified mail, notify the holder of the certification of his or her suspension and of the following:
1. The right to pursue one (1) of the following options:
  1. Appeal the suspension to the Mine Safety Review Commission within thirty (30) days of the notification; or
  2. Notify the commissioner of the Department for Natural Resources or the director of the Division of Mine Safety within thirty (30) days of the notification that the holder intends to be evaluated by a medical professional trained in substance treatment, to complete any prescribed treatment, and to submit an acceptable result from a drug and alcohol test as required by KRS 351.182 ;
2. Failure to file an appeal or failure to notify the commissioner of the Department for Natural Resources or the director of the Division of Mine Safety of the holder’s intent to comply with paragraph (a)2. of this subsection within thirty (30) days of the notification shall result in the revocation of all licenses and certifications issued by the Division of Mine Safety for a period of not less than three (3) years, and the holder shall remain ineligible for any other certification issued by the Division of Mine Safety during the revocation period. Certifications and licenses revoked under this paragraph may be reissued by:
  1. Compliance with all training and testing requirements;
  2. Satisfying the requirements of KRS 351.182 and 351.183 ; and
  3. Compliance with all orders of the Mine Safety Review Commission; and
3. The completion of the evaluation, treatment, and submission of an acceptable drug test pursuant to paragraph (a)2. of this subsection or the revocation described under paragraph (b) of this subsection shall be considered a first offense.
The licenses and certifications of a miner who notifies the commissioner of the Department for Natural Resources or the director of the Division of Mine Safety of his or her intent to comply with subsection (12)(a)2. of this section shall remain suspended until the miner has provided proof of the evaluation and successful completion of any prescribed treatment and has submitted a negative drug and alcohol test as required by KRS 351.182 to the division. The drug and alcohol test shall be taken no more than thirty (30) days prior to the submission of the proof required by this section. Upon receipt and review of the proof by the division, the miner’s licenses and certifications shall be restored. In the event that the miner fails to successfully complete the evaluation, treatment, and drug test within one hundred twenty (120) days of his or her notification pursuant to subsection (12)(a)2. of this section, the miner’s licenses and certifications issued by the division shall be revoked for a period prescribed under KRS 351.990(8). The one hundred twenty (120) day time period set out in this section shall be extended upon proof that the miner is complying with the recommendations of the medical professional.
If the suspension described in subsection (12) of this section occurs following the miner’s first offense as described in this section or KRS 351.184 , the notification sent to the miner shall not include the option of notifying the division of the miner’s intent to seek an evaluation and treatment. The miner shall only have the right to appeal the suspension to the Mine Safety Review Commission within thirty (30) days of notification. If the miner fails to appeal the suspension, the penalty shall be assessed according to KRS 351.990(8)(b) or (c).

HISTORY: 2737-1, 2739-38, 2739-44, 2739-45: amend. Acts 1952, ch. 162, § 9; 1972, ch. 298, § 9; 1974, ch. 386, § 65; 1976, ch. 174, § 2; 1976 (Ex. Sess.), ch. 8, §§ 1-6, 8-10; 1978, ch. 301, § 6, effective June 17, 1978; 1982, ch. 370, § 4, effective July 15, 1982; 1996, ch. 308, § 12, effective April 9, 1996; 1998, ch. 481, § 1, effective July 15, 1998; 2000, ch. 104, § 11, effective July 14, 2000; 2006, ch. 241, § 15, effective April 22, 2006; 2012, ch. 89, § 2, effective July 12, 2012; 2015 ch. 87, § 17, effective June 24, 2015; 2017 ch. 117, § 38, effective June 29, 2017.

Legislative Research Commission Notes.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

351.122. Reciprocity for miners certified in other states — Requirements — Reciprocal disciplinary action.

In lieu of an examination prescribed by law or regulation, the department may enter into a reciprocal agreement with another state regarding the certification of miners. The department may, pursuant to a reciprocal agreement, issue to any person holding a certificate issued by another state a certificate permitting him or her to perform similar tasks in the Commonwealth if:
1. The department finds that the requirements for certification in the other state are substantially equivalent to those of Kentucky;
2. The person passes only the applicable part of the examination with regard to Kentucky law which is uniquely different from the other state;
3. The person has submitted proof, in accordance with KRS 351.182 , that he or she is drug and alcohol free;
4. The person’s retraining is sufficient to meet Kentucky requirements; and
5. The person’s certification in Kentucky or in any other state has not been suspended, revoked, or probated.
Upon receipt of notice from a reciprocal state of a disciplinary action relating to any of the certifications or licenses issued to a miner who also holds corresponding licenses or certifications issued by the Division of Mine Safety, the commissioner shall impose analogous sanctions against the miner’s Kentucky licenses or certifications. These sanctions shall terminate upon proof of compliance with the orders from the reciprocal state.

HISTORY: Enact. Acts 2007, ch. 41, § 1, effective June 26, 2007; 2012, ch. 89, § 3, effective July 12, 2012; 2015 ch. 87, § 18, effective June 24, 2015; 2017 ch. 117, § 39, effective June 29, 2017.

351.125. First-aid training.

The department shall provide first-aid training incorporating all training required by the state’s approved program for emergency medical technicians or the department’s mine emergency technician program which is applicable to mines. Each candidate for certification as a mine foreman shall complete the department’s first-aid course of instruction and shall pass an examination on the course as a prerequisite for certification.

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 8, § 14; 1998, ch. 480, § 2, effective July 15, 1998; 2017 ch. 117, § 40, effective June 29, 2017.

351.127. Employment of certified emergency medical technicians or mine emergency technicians required at underground coal mine.

Certified emergency medical technicians or mine emergency technicians shall be employed at every licensed coal mine whose employees are actively engaged in the extraction, production, or preparation of coal. Persons employed as mine emergency technicians shall be trained in a manner established in an administrative regulation promulgated by the department. Persons seeking certification as a mine emergency medical technician or mine emergency technician shall be subject to the following additional requirements:
1. All persons seeking certification as a mine emergency technician shall demonstrate drug- and alcohol-free status in accordance with KRS 351.182 and 351.183 ;
2. The drug and alcohol testing for those seeking certification as mine emergency technicians shall be administered prior to the examination for the certification, in accordance with KRS 351.182 and 351.183 ; and
3. Certification as a mine emergency technician shall not be issued until the results of the drug and alcohol testing have been obtained. Notification shall be given to the person in accordance with KRS 351.184 .
These emergency medical technicians or mine emergency technicians shall be employed in the following manner:
1. At least two (2) emergency medical or mine emergency technicians shall be employed on every shift engaged in the production of coal, and at least one (1) emergency medical or mine emergency technician shall be employed on every nonproduction shift;
2. For underground mines, at least one (1) of the two (2) emergency or mine emergency technicians shall be underground at all times while miners are working in the mines. An additional emergency medical technician or mine emergency technician shall be employed for every additional fifty (50), or any portion thereof, employees per shift who are actively engaged in the extraction, production, or preparation of coal.
If these emergency medical technicians or mine emergency technicians are also employed in other capacities at the coal mine, they shall be available for quick response to emergencies and shall have available to them at all times the equipment necessary to respond to emergencies, as prescribed by the commissioner.
If the licensee selects existing employees to be trained as emergency medical technicians or mine emergency technicians, the employees selected shall be paid their regular wages during training.
Certified emergency medical technicians and mine emergency technicians shall receive annual retraining in the manner established in an administrative regulation promulgated by the department, during which they shall receive their regular wages.

History. Enact. Acts 1982, ch. 369, § 1, effective July 15, 1982; 1984, ch. 148, § 1, effective July 13, 1984; 1984, ch. 237, § 1, effective July 13, 1984; 1990, ch. 145, § 1, effective July 13, 1990; 1994, ch. 259, § 1, effective July 15, 1994; 1996, ch. 308, § 13, effective April 9, 1996; 2002, ch. 355, § 5, effective July 15, 2002; 2006, ch. 241, § 16, effective July 12, 2006; 2007, ch. 94, § 8, effective June 26, 2007.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

351.128. Underground mine employing 2 to 25 persons required to employ person with first-aid training. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 237, § 2, effective July 13, 1984) was repealed by Acts 2000, ch. 104, § 31, effective July 14, 2000.

351.129. First-aid instruction for surface coal miners — Certification — Annual retraining. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 409, § 1, effective July 15, 1988) was repealed by Acts 1994, ch. 161, § 3, effective July 15, 1994. For present law see KRS 351.1291 .

351.1291. Course of instruction for surface coal miners.

All inexperienced surface coal miners shall complete a twenty-four (24) hour course of instruction composed of sixteen (16) hours of classroom training and eight (8) hours of mine specifics that is devised or approved by the department in subjects including but not limited to: accident prevention, cutting and welding, equipment operation, fire protection, first-aid methods, ground control and transportation, handling and use of explosives, mine communications, mine electrical safety standards, mining law, including the statutory rights of miners, safety around bins and hoppers, alcohol and substance abuse education and training, and any other subjects deemed appropriate by the department. For purposes of this section, “inexperienced coal miners” means all persons who have not previously worked at least forty-five (45) days at a surface coal mine in this Commonwealth.
All surface coal miners shall complete an eight (8) hour course of annual retraining devised or approved by the department in the subjects identified in subsection (1) of this section, thirty (30) minutes of which shall be dedicated to alcohol and substance abuse education.
One (1) hour of initial substance abuse training and education shall be provided as part of the certified miner’s first annual retraining conducted in a classroom that occurs after August 1, 2006. This requirement does not apply to a certified person who received the one (1) hour initial substance abuse training and education as part of his or her forty (40) hour or twenty-four (24) hour new miner training.
In addition to the thirty (30) minutes of annual alcohol and substance abuse education required for certified miners, supervisory personnel shall be required to undergo an additional thirty (30) minutes of alcohol and substance abuse awareness training annually.
Each applicant for a certified surface miner, in addition to meeting the educational requirements of this chapter, shall pass a drug and alcohol test in accordance with KRS 351.182 and 351.183 .
The commissioner shall certify all surface coal miners who complete the courses of instruction and show proof of drug- and alcohol-free condition of certification required in this section.

History. Enact. Acts 1994, ch. 161, § 1, effective July 15, 1994; 1998, ch. 481, § 2, effective July 15, 1998; 2000, ch. 104, § 12, effective July 14, 2000; 2002, ch. 355, § 6, effective July 15, 2002; 2006, ch. 241, § 17, effective July 12, 2006.

351.130. Duplicate certificates.

If any person loses his certificate or it is destroyed which was earned under KRS 351.120 , he shall apply to the commissioner for a duplicate certificate, including with his application an affidavit stating in full how the certificate was destroyed or misplaced. If the commissioner deems it proper he shall furnish the applicant with a duplicate certificate. Any person applying for a duplicate certificate shall pay a fee of five dollars ($5) to the State Treasurer.

History. 2739-45: amend. Acts 1952, ch. 162, § 10; 1972, ch. 298, § 10.

351.140. Duties and authority of mine inspectors — Frequency of underground and surface mine inspections.

Each mine inspector shall give his entire time and attention to the duties of his office, which shall consist of the following:

Inspecting mines and aiding, under the direction of the commissioner, in carrying out and enforcing the provisions of the law relating to the inspection of mines;
Training officials and workmen in and about the mines in first aid and mine rescue methods;
Advising officials and workmen in methods pertaining to safety in all its phases and in methods pertaining to the prevention of mine fires and explosions;
Taking charge of mine rescue and recovery work whenever a mine fire, mine explosion or other serious accident occurs within his district, and the commissioner is not present, and assisting in such work in other districts when so directed by the commissioner;
Reopening mines or portions of mines that have been sealed on account of fire or any other cause, when directed by the commissioner to do so;
Inspecting each underground and surface mine in accordance with KRS 351.090(1);
It shall be permissible for a mine inspector to inspect any coal preparation plant or surface facility of any mining operation of coal including any overland coal belts; and
A mine inspector shall have the express authority to enter upon the premises of and inspect any coal mine, including any overland coal belts, at any reasonable time.

HISTORY: 2739-17, 2739-18: amend. Acts 1946, ch. 120, § 3; 1952, ch. 162, § 11; 1972, ch. 298, § 11; 1976, ch. 174, § 3; 1976 (Ex. Sess.), ch. 8, § 18; 1978, ch. 301, § 7, effective June 17, 1978; 1986, ch. 3, § 1, effective July 15, 1986; 1996, ch. 308, § 14, effective April 9, 1996; 2006, ch. 185, § 10, effective July 12, 2006; 2007, ch. 94, § 9, effective January 1, 2009; 2017 ch. 72, § 2, effective June 29, 2017.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

351.150. Reports of mine inspectors.

Each mine inspector shall each week report in writing to the commissioner of the department the number and condition of all mines inspected by him during the week.
Each mine inspector shall each week deliver to the commissioner of the department a written report showing the condition of each mine inspected by him and, at the same time, shall deliver a copy of such report to the operator or the superintendent of each mine inspected and another copy thereof to the mine committee at such mine so inspected if requested and at the same time each mine inspector shall post a copy of such inspection report on a bulletin board at a prominent place of the operating company or mine where it may conveniently be read by any of the mine employees.
Each mine inspector shall, within fifteen (15) days after the close of each calendar year, file with the commissioner a report of his proceedings during the calendar year, and give such information concerning the mines and mining conditions in his district as is appropriate and required by the commissioner.

History. 2739-18: amend. Acts 1946, ch. 120, § 4; 1972, ch. 298, § 12.

NOTES TO DECISIONS

1.Notice of Condition of Mine.

Certified copies of notices given by inspector to mine operator were competent as prima facie proof of condition of mine when accident happened. Andricus' Adm'r v. Pineville Coal Co., 121 Ky. 724 , 90 S.W. 233, 28 Ky. L. Rptr. 704 , 1906 Ky. LEXIS 251 ( Ky. 1906 ) (decided under prior law).

Certified copies of notices given by inspector to mine operator were admissible to prove unsafe condition on later date as against contention that unsafe condition in June or October did not prove unsafe condition in November when accident occurred. Andricus' Adm'r v. Pineville Coal Co., 121 Ky. 724 , 90 S.W. 233, 28 Ky. L. Rptr. 704 , 1906 Ky. LEXIS 251 ( Ky. 1906 ) (decided under prior law).

351.160. Annual report of commissioner — Record and index of inspections and reports — Certified copies.

The commissioner of the department shall annually make a report to the Governor and the Legislative Research Commission of his proceedings during the preceding calendar year. The annual report shall be prepared and printed as soon as possible after the close of the calendar year. The annual report shall cover the complete operation of the mines in this Commonwealth during the preceding calendar year, enumerating all accidents occurring in or about any such mines during that year, and giving such other information as the commissioner deems useful, and making such suggestions as he deems important as to further legislation on the subject of mining.
The commissioner shall keep and index a permanent record of all inspections made by himself and of all reports relating to inspection of mines furnished to him by mine inspectors. All such records of the department shall be public records and shall, at all times, be open to the inspection of the public, and shall be laid before the Governor or the Legislative Research Commission upon their request at any time.
The department shall furnish certified copies of any such records, when requested to do so, upon payment of such fee as is generally charged by courts of record for certified copies. Such fee shall be paid into the Treasury of the state.

History. 2739-10, 2739-11: amend. Acts 1946, ch. 120, § 5; 1972, ch. 298, § 13; 2000, ch. 104, § 13, effective July 14, 2000; 2001, ch. 149, § 10, effective March 20, 2001.

351.170. Reports of licensee — Alcohol and substance abuse reports.

All reports of any facility licensed pursuant to this chapter shall be made to the director. The licensee of each commercial coal mine shall give at the end of each calendar year accurate information, on blank forms furnished by the commissioner, as to the number of accidents that have occurred, the number of persons employed, the tons of coal mined, and any other related information that the commissioner requests.
The operator or superintendent of each licensed facility shall report, by the close of the next business day, any certified persons who:
1. Have been discharged for violation of a company’s substance or alcohol abuse policies;
2. Refused to submit to a test required by the company’s substance or alcohol abuse policies or KRS 351.182 , 351.183 , 351.184 , 351.185 , and 352.180 ; or
3. Tested positive and failed to complete an employee assistance program.

HISTORY: 2739-12, 2739-13: amend. Acts 1952, ch. 162, § 12; 1972, ch. 298, § 14; 1994, ch. 150, § 1, effective July 15, 1994; 1996, ch. 308, § 15, effective April 9, 1996; 2000, ch. 104, § 14, effective July 14, 2000; 2006, ch. 241, § 18, effective July 12, 2006; 2015 ch. 87, § 19, effective June 24, 2015.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

Opinions of Attorney General.

This section grants authority to the Commissioner that is broad enough to encompass fire boss reports and, therefore, the Commissioner can require monthly fire boss reports to be filed with the Department of Mines and Minerals. OAG 77-215 .

While the Commissioner of the Department of Mines and Minerals can require monthly fire boss reports to be filed with the Department, if the Department requires that fire boss reports be received only from mine operators of mines located below the water table, then a relationship between mine safety and the need to impose different reporting requirements on mines below the water table as a class as opposed to mines above the water table must be shown to be reasonably related to the purpose of this statute so that such regulation will not be one prohibited by Ky. Const., §§ 59 and 60 prohibiting special and local legislation. OAG 77-215 .

351.173. Notice of possibility of subsidence — Language required in deed of conveyance.

Any person may file a notice in the alphabetical cross-index in the county clerk’s office in the county where underground coal mining has occurred stating that the mineral has been extracted and that the surface overlying or adjacent to the underground workings may be subject to subsidence. The notice shall be indexed under the name of the current surface owner or lessee of record whose land overlies the underground workings, as well as that of the mineral owner and lessee, and shall be noted on the deed of conveyance in each future conveyance of both the surface and mineral estate. The language in the deed of conveyance shall state the following:
“THE COAL UNDERLYING THIS PROPERTY HAS BEEN EXTRACTED AND THE SURFACE OVERLYING OR ADJACENT TO THE UNDERGROUND WORKINGS MAY BE SUBJECT TO SUBSIDENCE. ANY STRUCTURES ERECTED HEREAFTER SHOULD BE DESIGNED AND CONSTRUCTED SO AS TO PREVENT OR MINIMIZE ANY SUBSIDENCE DAMAGE.”
The failure to include the required language in the deed shall not affect the validity of the deed as between the parties or constructive notice upon the recording of the deed.

History. Enact. Acts 1988, ch. 419, § 1, effective July 15, 1988.

351.175. Provisions concerning license to operate mine — Submissions required for license — Revocation of license.

The operation of a coal mine in Kentucky is a privilege granted by the Commonwealth of Kentucky to a licensee who satisfies the requirements of this section and demonstrates that the mine is or will be operated in a safe manner and in accordance with the laws of this Commonwealth.
Within forty-five (45) days after January 1, 1953, and of each year thereafter, the owner, operator, lessee, or licensee of each mine shall procure from the department a license to operate the mine, and the license shall not be transferable. Any owner, operator, lessee, or licensee who assumes control of a mine, opens a new mine, or reopens an abandoned mine during any calendar year shall procure a license before mining operations are begun.
The license shall be in printed form as the commissioner may prescribe and when issued shall be kept posted at a conspicuous place near the main entrance of the mine.
Requests for a license shall be made to the department and shall be accompanied by a United States postal money order or cashier’s check drawn in favor of the State Treasurer in an amount established by administrative regulations of a minimum of one hundred dollars ($100) and a maximum of fifteen hundred dollars ($1,500). The license shall be issued when the following are properly submitted to the commissioner:
1. The annual report of the licensee and the annual mine map required in KRS 351.170 and 352.450 ;
2. A certification from the commissioner of the Department of Workers’ Claims that the licensee has provided positive proof of compliance with the provisions of KRS Chapter 342;
3. A certification from the commissioner of the Department of Revenue that the licensee is not a “delinquent taxpayer” as defined in KRS Chapter 131;
4. Mine seal construction plan filed with the state and approved by MSHA;
5. Roof control plan filed with the state and approved by MSHA;
6. The ventilation plan required in KRS 352.020 ; and
7. An approved emergency action plan required by KRS 352.640 .
The department shall immediately revoke any license if the department receives:
1. Withdrawal of the certification of compliance with KRS Chapter 342 issued by the commissioner of the Department of Workers’ Claims; or
2. Notice from the commissioner of the Department of Revenue that the licensee is a “delinquent taxpayer” as defined in KRS Chapter 131.
The commissioner, the director of the Division of Mine Safety, or the mine safety specialist shall have the authority to stop production or close any mine whose operator fails to procure a license or fails to furnish a certification of workers’ compensation coverage as required under this section.
The department shall be authorized to seek injunctive relief for any violation of this section. Revocation of a license by the department shall be an administrative function of the department. Appeals from revocation by the department shall be brought in Franklin Circuit Court.
A license which has been revoked under the “delinquent taxpayer” provision shall not be reissued until a written tax clearance has been received from the commissioner of revenue.
No mine underlying a cemetery shall be licensed by the commissioner unless two-thirds (2/3) of the governing body of that cemetery vote in approval of the operation. The application for a license shall contain an affidavit setting forth the approval of the cemetery’s governing body. This subsection applies only to those cemeteries with governing bodies.

HISTORY: Enact. Acts 1952, ch. 162, § 14; 1970, ch. 79, § 1; 1972, ch. 298, § 15; 1974, ch. 258, § 2; 1976, ch. 171, § 1; 1976, ch. 220, § 1; 1978, ch. 233, § 36, effective June 17, 1978; 1978, ch. 301, § 8, effective June 17, 1978; 1980, ch. 188, § 277, effective July 15, 1980; 1984, ch. 214, § 1, effective July 13, 1984; 1987 (Ex. Sess), ch. 1, § 60, effective January 4, 1988; 1988, ch. 415, § 1, effective July 15, 1988; 1992, ch. 271, § 2, effective July 14, 1992; 1996, ch. 308, § 16, effective April 9, 1996; 2005, ch. 85, § 685, effective June 20, 2005; 2006, ch. 185, § 11, effective July 12, 2006; 2007, ch. 94, § 10, effective June 26, 2007; 2010, ch. 24, § 1900, effective July 15, 2010; 2015 ch. 87, § 20, effective June 24, 2015.

Legislative Research Commission Notes.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

NOTES TO DECISIONS

1.Constitutionality.

This statute did not violate the provision in Ky. Const., § 11 granting the defendant the right of trial by jury of the vicinage since this right did not apply to petty offenses. Commonwealth v. Sizemore, 488 S.W.2d 685, 1972 Ky. LEXIS 49 ( Ky. 1972 ).

Opinions of Attorney General.

It is apparent that the purpose of subsection (3) (see now (4)(c)) of this section is to deny a mine license to an applicant who is a “delinquent taxpayer” as defined by KRS Chapter 131; therefore, it appears that such subsection authorizes the Department of Mines and Minerals to refuse a mine license to any applicant whose license has been previously revoked because of tax delinquencies as defined in KRS 131.181 so long as those delinquencies remain unsatisfied. OAG 83-157 .

Venue for a prosecution pursuant to KRS 351.990(13) (now (5)) for mining without obtaining a mine license lies only in the county in which the illegal mine is located. OAG 83-288 .

Research References and Practice Aids

Kentucky Law Journal.

Plater, Coal Law From the Old World: A Perspective on Land Use and Environmental Regulation in the Coal Industries of the United States, Great Britain, and West Germany, 64 Ky. L.J. 473 (1975-76).

Notes, Economic, Social and Legal Aspects of Coal Transportation in Kentucky, 64 Ky. L.J. 601 (1975-76).

351.177. Special task force to investigate illegal mining — Prosecution of violators — “Illegal mining fund” established. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 371, § 1, effective July 15, 1982; 1984, ch. 225, § 1, effective July 13, 1984) was repealed by Acts 1996, ch. 308, § 50, effective April 9, 1996.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

351.180. Inspection of mine scales — Fee. [Repealed.]

Compiler’s Notes.

This section (2739-46, 2739-46a; amend. Acts 1952, ch. 162, § 13; 1972, ch. 298, § 16) was repealed by Acts 1996, ch. 308, § 50, effective April 9, 1996.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

351.182. Drug- and alcohol-free status required for miner certification — Proof — Costs of testing — Breath alcohol device at examination site — Ten-panel urine test.

All applicants for certification as new miners and all initial applicants for all other certifications provided for in this chapter shall provide proof of drug- and alcohol-free status prior to certification in accordance with the provisions of this section.
Proof of drug- and alcohol-free status shall be provided in one (1) of two (2) methods:
1. By participation in a drug and alcohol testing program offered by the division and paid for by the applicant, in accordance with this section and KRS 351.183 ; or
2. By the submission of drug and alcohol test results from other sources, as provided in KRS 351.183 (2).
If a newly certified miner gains employment in the coal industry, the initial employer shall reimburse the certified miner for the cost of one (1) drug and alcohol test required by this section and KRS 351.183 , 351.184 , and 351.185 .
If the applicant is currently certified in any category other than that for which he is applying by the division and the applicant is currently employed in the coal industry, the applicant’s employer shall reimburse the applicant for the cost of one (1) drug and alcohol test required by this section and KRS 351.183 , 351.184 , and 351.185 .
The fee charged to an applicant for the drug and alcohol tests offered by the division shall not exceed the actual cost of collection, analysis, and medical review officer (MRO) review.
The division shall provide, at each site of examinations for the certifications provided for in Chapter 351, a breath alcohol testing device and a person certified in the operation of the breath alcohol testing device. The breath alcohol test shall be administered prior to examination to determine the applicant’s alcohol-free status. The division may satisfy the requirement to furnish an alcohol testing device and certified personnel by:
1. The use of equipment and appropriately certified personnel of the division;
2. A memorandum of agreement with state or local police agencies for the provision of equipment and appropriately trained personnel at the examination site; or
3. Inclusion of breath alcohol testing as part of the contract to provide drug testing and collection services set out in KRS 351.183(1).
A breath alcohol concentration of.04 shall be the maximum acceptable level of concentration for participation in the examination and subsequent certification.
Except for an alternative testing protocol provided for post-accident victims under KRS 352.180(6) to (8), the minimum testing protocol acceptable for the establishment of drug-free status for certification under KRS Chapter 351 shall be at least a ten (10) panel urine test that shall include testing for the following substances:
1. Amphetamines;
2. Cannabanoids/THC;
3. Cocaine;
4. Opiates;
5. Phencyclidine (PCP);
6. Benzodiazepines;
7. Propoxyphene;
8. Buprenorphine;
9. Methadone;
10. Barbiturates; and
11. The remaining panels to be used in the urine test shall be set by order of the Mine Safety Review Commission no later than June 1 of each year.

HISTORY: Enact. Acts 2006, ch. 241, § 2, effective July 12, 2006; 2012, ch. 89, § 4, effective July 12, 2012; 2015 ch. 87, § 21, effective June 24, 2015; 2018 ch. 85, § 10, effective July 14, 2018.

Legislative Research Commission Notes.

(7/12/2006). 2006 Ky. Acts ch. 241, sec. 2, subsec. (7), provides: “A breath alcohol concentration of four tenths of a percent (.04) shall be the maximum acceptable level of concentration for participation in the examination and subsequent certification.” The words “four tenths of a percent” and the parentheses around “.04” were removed during codification to correct a manifest clerical error that occurred in the drafting process. Materials in the bill folder for House Bill 572 (which became 2006 Ky. Acts ch. 241) show that the bill was drafted to be an exact copy of a bill requested and later introduced as Senate Bill 201, the initial proposed draft of which provided: “A breath alcohol concentration of .04 shall be the maximum acceptable level of concentration for participation in the examination(s) and subsequent certification(s).” Materials in the bill folder for Senate Bill 201 indicate that the erroneous phrase was inserted during the drafting process to conform with the rules for cardinal numbers set forth in the Bill Drafting Manual of the Kentucky General Assembly. The Reviser of Statutes has made this correction under the authority of KRS 7.136(1).

351.183. Contracts for specimen collection and laboratory testing services — Standards, procedures, and protocol — Criteria for proof from other sources — Annual publication of certified collection and testing providers.

The division may contract with qualified companies to provide the collection of samples and administer the required drug and alcohol tests. The contract may provide that the collection of samples or testing be subcontracted, except that the contract shall require:
1. The contractor and any subcontractors to follow all standards, procedures, and protocols set forth by the United States Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA) for the collection and testing required by KRS 351.182 and this section;
2. The contractor’s or subcontractor’s drug-testing protocol shall be a ten (10) panel test described in KRS 351.182 (8) and any other test required by order of the Mine Safety Review Commission; and
3. The contractor or the subcontractor shall provide a medical review officer (MRO) who shall:
  1. Possess the ability and medical training necessary to verify positive confirmed test results and evaluate those results in relation to an applicant’s medical history or other biomedical information; and
  2. Follow all procedures outlined in the SAMHSA Medical Review Officer Manual.
The director of the Division of Mine Safety may accept proof of drug- and alcohol-free status from other sources whose tests conform to the requirements set forth in KRS 351.182(7) and (8) and in accordance with KRS 351.182(2)(b) under the following conditions:
1. An applicant shall submit a request for acceptance of his or her drug- and alcohol-free status to the director accompanied by pass/fail results of a drug and alcohol test taken within thirty (30) days prior to the request; and
2. The test results shall have been performed by laboratories certified in accordance with the National Laboratory Certification Program (NLCP) by the United States Department of Health and Human Services Administration’s SAMHSA and in accordance with subsection (1) of this section.
The division shall maintain and publish annually a list of certified specimen collection services and testing laboratories from which it will accept data.

HISTORY: Enact. Acts 2006, ch. 241, § 3, effective July 12, 2006; 2012, ch. 89, § 5, effective July 12, 2012; 2015 ch. 87, § 22, effective June 24, 2015.

Legislative Researh Commission Note.

(6/24/2015). In codifying subsection (2)(a) of this statute, the Reviser of Statutes has changed the term “executive director” to “director.” This substitution is consistent with amendments adopted in 2015 Ky. Acts ch. 87 reorganizing the Department for Natural Resources. The Reviser has made this change under the authority of KRS 7.136(2).

351.184. Division to notify applicant of test results when granting or denying certification — Notification of options — Issuance after evaluation, treatment, and testing — Right of appeal.

The results of any testing performed by the division shall be given to the applicant at the time of his or her notification of the granting or denial of certification.
Certification of an applicant shall be denied if any one (1) or more of the following occur:
1. The applicant’s positive drug test results for any of the substances either listed in KRS 351.182 (8) or otherwise required to be tested for by order of the Mine Safety Review Commission are deemed to fail by a medical review officer;
2. The applicant’s blood alcohol level is above .04 concentration at the time of testing;
3. The applicant’s test results demonstrate the submission of an adulterated specimen; or
4. The applicant refuses to submit to a drug or alcohol test as required by KRS 351.182 .
1. Any applicant who is denied certification due to the results of the drug and alcohol testing required by KRS 351.182 may:
  1. Appeal to the Mine Safety Review Commission within thirty (30) days of receiving the notification required under KRS 351.120(12); or
  2. Notify the commissioner of the Department for Natural Resources or the director of the division within thirty (30) of receiving the notification required under KRS 351.120(12) that the applicant intends to be evaluated by a medical professional trained in substance abuse treatment, to complete any prescribed treatment, and to submit an acceptable result from a drug and alcohol test as required by KRS 351.182 .
2. Failure to file an appeal or failure to notify the commissioner of the Department for Natural Resources or the director of the division of his or her intent to comply with paragraph (a)2. of this subsection within thirty (30) days of the notification shall result in the revocation of all licenses and certifications issued by the division for a period of not less than three (3) years, and the holder shall remain ineligible for any other certification issued by the division during the revocation period. Certifications and licenses revoked under this paragraph may be reissued by:
  1. Compliance with all training and testing requirements;
  2. Satisfying the requirements of KRS 351.182 and 351.183 ; and
  3. Compliance with all orders of the Mine Safety Review Commission.
3. For the purposes of this subsection, the completion of evaluation, treatment, and submission of an acceptable drug test pursuant to paragraph (a)2. of this subsection or the revocation described under paragraph (b) of this subsection shall be considered a first offense.
The licenses and certifications of a miner who notifies the commissioner of the Department for Natural Resources or the director of the division of his or her intent to comply with subsection (3)(a)2. of this section shall remain suspended until the miner has provided proof of the evaluation and successful completion of any prescribed treatment and has submitted a negative drug and alcohol test as required by KRS 351.182 to the division. The drug and alcohol test shall be taken no more than thirty (30) days prior to the submission of the proof required by this section. Upon receipt and review of the proof by the division, the miner’s licenses and certifications shall be restored. In the event that the miner fails to successfully complete the evaluation, treatment, and drug test within one hundred twenty (120) days of the notification required under KRS 351.120(12), the miner’s licenses and certifications issued by the division shall be revoked for a period prescribed under KRS 351.990(8). The one hundred twenty (120) day time period set out in this section shall be extended upon proof that the miner is complying with the recommendations of the medical professional.
If the denial described in subsection (3) of this section occurs following the miner’s first offense as described in this section or KRS 351.120 , the miner shall not have the option of notifying the division of his or her intent to comply with subsection (3)(a)2. of this section. The miner shall only have the right to appeal the denial to the Mine Safety Review Commission within thirty (30) days of notification. If the miner fails to appeal the denial, the penalty shall be assessed according to KRS 351.990(8)(b) or (c).

HISTORY: Enact. Acts 2006, ch. 241, § 4, effective July 12, 2006; 2012, ch. 89, § 6, effective July 12, 2012; 2015 ch. 87, § 23, effective June 24, 2015.

Legislative Research Commission Notes.

(7/12/2006). 2006 Ky. Acts ch. 241, sec. 4, subsec. (2)(b), provides that certification shall be denied if “[t]he applicant’s blood alcohol level is above four tenths of one percent (.04) concentration at the time of test.” The words “four tenths of one percent” and the parentheses around “.04” were removed during codification to correct a manifest clerical error that occurred in the drafting process. Materials in the bill folder for House Bill 572 (which became 2006 Ky. Acts ch. 241) show that the bill was drafted to be an exact copy of a bill requested and later introduced as Senate Bill 201, the initial proposed draft of which provided for denial of certification if “[t]he applicant’s blood alcohol level is above .04 concentration at the time of testing.” Materials in the bill folder for Senate Bill 201 indicate that the erroneous phrase was inserted during the drafting process to conform with the rules for cardinal numbers set forth in the Bill Drafting Manual of the Kentucky General Assembly. The Reviser of Statutes has made this correction under the authority of KRS 7.136(1).

351.185. Confidentiality of drug and alcohol test results — Exceptions — Use of results in criminal proceeding against applicant prohibited.

Records of drug or alcohol test results, written or otherwise, received by the division, its contractors, subcontractors, or other employees are confidential communications and exempt from disclosure under the Kentucky Open Records Act, except as follows:
1. Where release of the information is authorized solely pursuant to a written consent form signed voluntarily by the person tested. The consent form shall contain the following:
  1. The name of the person who is authorized to obtain the information;
  2. The purpose of the disclosure;
  3. The precise information to be disclosed;
  4. The duration of the consent; and
  5. The signature of the person authorizing the release of the information;
2. Where release of the information is compelled by a hearing officer or court of competent jurisdiction pursuant to an appeal taken under KRS 351.182 , 351.183 , 351.184 , 351.185 , 351.102 , 351.103 , 351.1041 , 351.106 , 351.110 , 351.120 , 351.127 , 351.1291 , 351.170 , 352.010 , 352.180 , 352.210 , and 352.390 ;
3. Where release of the information is relevant to a legal claim asserted by the applicant;
4. Where the information is used by the entity conducting drug or alcohol testing when consulting with legal counsel in connection with matters brought under or related to KRS 351.182 , 351.183 , 351.184 , 351.185 , 351.102 , 351.103 , 351.1041 , 351.106 , 351.110 , 351.120 , 351.127 , 351.1291 , 351.170 , 352.010 , 352.180 , 352.210 , and 352.390 , or in its defense of civil or administrative actions related to the testing or results; or
5. Where release of the information is deemed appropriate by the Mine Safety Review Commission or a court of competent jurisdiction in disciplinary proceeding brought under the terms of KRS 351.182, 351.183, 351.184, 351.185, 351.102, 351.103, 351.1041, 351.106, 351.110, 351.120, 351.127, 351.1291, 351.170, 352.180, 352.210, and 352.390.
Information on drug and alcohol test results for tests administered pursuant to KRS 351.182 , 351.183 , 351.184 , 351.185 , 351.102 , 351.103 , 351.1041 , 351.106 , 351.110 , 351.120 , 351.127 , 351.1291 , 351.170 , 352.010 , 352.180 , 352.210 , and 352.390 shall not be released or used in any criminal proceeding against the applicant.

HISTORY: Enact. Acts 2006, ch. 241, § 5, effective July 12, 2006; 2015 ch. 87, § 24, effective June 24, 2015.

Compiler’s Notes.

The Kentucky Open Records Act referenced in subsection (1) is codified as KRS 61.800 et seq.

351.186. Workers’ compensation premium — Credit for certified drug-free workplace program at coal mine.

Any employer who is also a licensee that has implemented a drug-free workplace program certified by the division shall be eligible to obtain a credit on the licensee’s premium for workers’ compensation insurance.
Each insurer authorized to write workers’ compensation insurance policies shall provide the credit on the workers’ compensation premium to any employer who is also a licensee for which the insurer has written a workers’ compensation policy. The credit on the workers’ compensation premium shall not:
1. Be available to those employers that are also licensees who do not maintain their drug-free workplace program for the entire workers’ compensation policy period; or
2. Apply to minimum premium policies.
The Department of Insurance shall approve workers’ compensation rating plans that give a credit on the premium for a certified drug-free workplace so long as the credit is actuarially sound. The credit shall be at least five percent (5%) unless the Department of Insurance determines that five percent (5%) is actuarially unsound.
The credit on the workers’ compensation premium may be applied by the insurer at the final audit.

HISTORY: Enact. Acts 2006, ch. 241, § 6, effective July 12, 2006; 2010, ch. 24, § 1901, effective July 15, 2010; 2015 ch. 87, § 25, effective June 24, 2015.

351.190. Mine rescue divisions and stations — Supplies and equipment.

The commissioner of the department shall partition the coal fields of the state into mine rescue divisions. In each division there shall be a station, the location of which shall be determined by the commissioner, and there shall be kept at each station apparatus, appliances, and supplies for use in the work of rescue and relief upon the occurrence of entrapments, roof falls, inundation of liquids or gases, explosions or mine fires, and for the training of officials and miners in mine rescue work. The commissioner shall provide each station and himself with the necessary instruments, appliances, apparatus, chemicals, trucks, and automobiles, and shall designate one (1) of the inspectors to have charge of each station.

History. 2739-14: amend. Acts 1972, ch. 298, § 17; 2006, ch. 185, § 12, effective July 12, 2006.

351.191. Trained mine rescue team to be available within specified driving time of each mine.

Each underground coal mine operator shall submit documentation to the commissioner that a trained mine rescue team is within sixty (60) minutes’ driving time of each of his mines. In the event that a trained mine rescue team is not available as required, the department shall provide a trained mine rescue team which would be available to the mine within sixty (60) minutes’ driving time and shall so notify in writing the appropriate official of the United States Mine Safety and Health Administration.

History. Enact. Acts 1976 (Ex. Sess.), ch. 8, § 15; 1980, ch. 150, § 1, effective July 15, 1980.

351.192. Qualified or operator-designated person performing mine rescue acts not liable for damages for such acts.

Any person who is qualified by a federal or state agency to perform mine rescue planning and recovery operations, including mine rescue instructors and mine rescue team members, and any person designated by an operator furnishing a mine rescue team to supervise, assist in planning, or provide service thereto, who in good faith performs, or fails to perform, any act or service in connection with such mine rescue planning and recovery operations shall not be liable for any civil damages as a result of any such acts or omissions.

History. Enact. Acts 1980, ch. 194, § 1, effective July 15, 1980; 2000, ch. 104, § 15, effective July 14, 2000.

351.193. Safety rights of miners — Settlement of disputes.

No miner shall be required to operate any equipment or work in any condition which he reasonably believes to be unsafe. If the miner invokes his or her safety rights under this section, the miner shall have the right to be relieved from the assignment in dispute. The employee may be assigned to correct the condition or may be assigned to other duties until such time as the condition is resolved or corrected. No other miner shall be assigned to perform this job until the condition is corrected. The miner or his authorized representative and the company shall review the condition immediately and attempt to resolve the dispute. Should the miner not have an authorized representative, he may represent himself in the dispute. If the dispute is not settled by the company and the miner or his or her authorized representative, either party reserves the right to call in the commissioner or his authorized representative immediately and the dispute shall be settled on the basis of the inspector’s finding with a written copy of his finding given to the company and the miner and his authorized representative. In the event no representative of the miner exists, the employee shall have the right to have the dispute resolved based on the inspector’s findings. No disciplinary action shall be taken against a miner by a licensee unless the miner is found by the commissioner or his authorized representative to have acted in bad faith and without good cause in making an allegation as to unsafe equipment or working conditions.

History. Enact. Acts 1982, ch. 370, § 2, effective July 15, 1982; 1994, ch. 149, § 1, effective July 15, 1994; 1996, ch. 308, § 17, effective April 9, 1996.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

Notes to Unpublished Decisions

1.Wrongful Discharge.

Unpublished decision: Where (1) a former employee asserted that he was wrongfully terminated after supplying pictures of mining equipment to another employee for the second employee’s workers’ compensation claim, (2) the former employee did not offer any argument that he was discharged for refusing to violate a law in the course of his employment, and (3) the former employee did not argue that his discharge was because he exercised a right well-established through legislation, KRS 338.121(3)(a), 338.121(3)(b), and 351.193 , which the former employee cited in support of his public-policy argument, conferred no such right. Hall v. Consol of Kentucky, 162 Fed. Appx. 587, 2006 FED App. 0063N, 2006 U.S. App. LEXIS 1711 (6th Cir. Ky. 2006 ).

351.194. Administrative hearing procedures — Hearing regarding licensee, coal operation, or other person — Order — Enforcement — Civil penalty or fine.

The Mine Safety Review Commission shall promulgate administrative regulations in accordance with KRS Chapter 13A to establish administrative hearings procedures to be followed in determining if violations of mine safety laws, including, but not limited to, violations that meet the criteria established in KRS 351.025(1) or (2), have occurred and to establish a process to review recommended orders from any hearing officers acting on behalf of the commission. The procedures shall follow the requirements of KRS Chapter 13B and this chapter.
The chair or a majority of the Mine Safety Review Commission may convene a meeting of the commission at which it shall consider whether to schedule a hearing regarding any licensee, coal operation, or other person involved in the mining of coal.
If the commission determines that there is probable cause to believe that the licensee, coal operation, or other person against whom the department has made allegations of unsafe work practices or other violation of applicable law is guilty of an alleged violation, the commission shall schedule a hearing at which the department shall offer evidence in support of the allegations made by it. The licensee, coal operation, or other person against whom the allegations are made shall be given not less than twenty (20) days’ written notice of the charges against him, together with the date, time, and place at which the charges shall be heard, and of his opportunity to be represented by counsel, produce evidence and witnesses on his behalf, and examine the evidence and documents that may be produced against him. The commission may also be represented by counsel and shall not be bound by the technical rules of evidence, but its order shall be based upon competent evidence. Any licensee or other person summoned to appear at a hearing in the manner established in this subsection may, in writing, waive the notice required to be given to him.
The commission may proceed with its hearing of charges made by the department against any licensee, coal operation, or other person who, after being duly notified in accordance with the requirements of this section, fails to appear at or participate in the hearing and who fails to assert any legitimate basis for the failure.
Within ninety (90) days after hearing, the commission shall issue an order in which it sets out its determinations concerning each matter coming before it. Copies of the order shall be provided to all parties to the hearing. The department shall carry out or enforce, as appropriate, the order of the commission, which may include, though not be limited to, the imposition of civil penalties, revocation, suspension, or probation of the mine license or the miner’s certification.
The commission may modify a civil penalty or fine established under this chapter, under criteria established by the commission by administrative regulations.
In assessing monetary penalties within the limits provided in KRS 351.025 , the commission shall consider the operator’s history of previous violations, the appropriateness of the penalty to the size of the operator charged, whether the operator was negligent, the effect on the operator’s ability to continue in business, the gravity of the violation, the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation, and whether a penalty has been imposed by the Federal Mine Safety and Health Act for a violation that arose out of the same set of facts or circumstances.
An appeal of an order of the commission shall be filed in the Franklin Circuit Court within thirty (30) days of entry of the order.

History. Enact. Acts 1996, ch. 308, § 20, effective April 9, 1996; 1998, ch. 480, § 3, effective July 15, 1998; 2001, ch. 149, § 11, effective March 20, 2001; 2007, ch. 94, § 11, effective June 26, 2007.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

351.195. Miners required to wear safety glasses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 246, § 1, effective July 13, 1990) was repealed by Acts 2000, ch. 104, § 31, effective July 14, 2000.

351.200. Division of Geology — State Geologist. [Repealed.]

Compiler’s Notes.

This section (4618-19) was repealed by Acts 1948, ch. 224, § 7, effective June 17, 1948. For present law, see KRS 151.010 to 151.040 .

351.210. Geological and other surveys — Custody of mineralogical collections. [Repealed.]

Compiler’s Notes.

This section (2007k-13) was repealed by Acts 1948, ch. 224, § 7, effective June 17, 1948. For present law, see KRS 151.010 to 151.040 .

351.220. Cooperative agreements for geological and similar surveys. [Repealed.]

Compiler’s Notes.

This section (2007k-15) was repealed by Acts 1948, ch. 224, § 7, effective June 17, 1948. For present law, see KRS 151.010 to 151.040 .

351.230. Maps and reports, distribution of. [Repealed.]

Compiler’s Notes.

This section (2007k-16) was repealed by Acts 1948, ch. 224, § 7, effective June 17, 1948. For present law, see KRS 151.010 to 151.040 .

351.240. Workmen’s Compensation. [Repealed.]

Compiler’s Notes.

This section (2739-55) was repealed by Acts 1964, ch. 192, § 27. For present law see KRS Chapter 342.

Mine Safety Analysis

351.241. Statement of General Assembly.

The General Assembly hereby finds and declares the following:

Thousands of Kentuckians enter underground mines each day to produce coal that is so vital to the economy of our nation and the well-being of its people.
The underground coal mine is a hazardous environment that constantly requires the highest degree of safety consciousness on the part of every individual.
Despite training and a variety of safety efforts, each year coal mines continue to take a heavy human toll: large numbers of miners are injured; many are left permanently disabled; and a lesser number pay the ultimate price—death.
Many activities are performed by a variety of persons; therefore, each coal miner is expected to learn and perform a large number of tasks.
Miners frequently become engaged in unfamiliar tasks when substituting for others or assisting a fellow worker.
The American zeal for work and productivity very frequently causes the miner to give second priority to normal safety measures and precautions.
Studies have demonstrated that experienced persons observing and providing on-the-job counseling to individual miners regarding their work habits can bring about a significant reduction in underground mine accidents and fatalities.

History. Enact. Acts 1976 (Ex. Sess.), ch. 3, § 1.

NOTES TO DECISIONS

1.Applicability.

351.242. Mine safety analysis program — Responsibility and powers of mine safety specialists.

There is hereby created in the department a mine safety analysis program.
Mine safety specialists employed in the department and conducting underground or surface mine safety analysis shall satisfy the applicable requirements established in KRS 351.090 .
A primary responsibility of the mine safety specialist is to prevent mine accidents and fatalities by observing and evaluating the work habits of persons involved in the direct production of coal and to contact, advise, and assist these persons in correcting their unsafe or potentially hazardous actions.
Each time a mine safety specialist enters a mine to perform mine safety analysis, he or she shall confer with the foreman as to the conditions of the mine and the work practices of the employees.
The mine safety specialist shall keep mine management, representatives of the employees, and the commissioner informed about all hazardous conditions and all matters which may improve the safety of mines.
The division shall assist the department in assessing the effectiveness of miner training programs.
The commissioner shall at his or her discretion assign mine safety specialists to all mines in the state taking into consideration such factors as the history of accidents at the mine, experience of the workforce, physical condition of the mine, and size of the mine.
The commissioner may coordinate the assignment of mine safety specialists with the appropriate federal authorities to minimize duplication of accident prevention efforts.
The commissioner shall report annually to the General Assembly and to the Governor on the effectiveness of the mine safety specialists in improving mine safety.

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 3, § 2; 1996, ch. 308, § 18, effective April 9, 1996; 1998, ch. 480, § 4, effective July 15, 1998; 2005, ch. 123, § 60, effective June 20, 2005; 2015 ch. 87, § 26, effective June 24, 2015.

Legislative Research Commission Note.

(4/9/96). The action taken with respect to this statute by 1996 Ky. Acts ch. 308 was to have become effective April 8, 1996, under Section 51 of that Act. The Act, however, did not become effective until April 9, 1996, when the Governor’s signed copy of the Act was filed with the Secretary of State.

351.243. Responsibilities and duties of mine safety analysts not to limit those provided in KRS Chapters 351 and 352 for other persons.

The responsibilities and duties assigned to the mine safety analyst shall not be construed to limit in any way the responsibilities and duties provided in KRS Chapters 351 and 352 for any other person.

History. Enact. Acts 1976 (Ex. Sess.), ch. 3, § 3.

Coal Research

351.250. Kentucky coal research board — Membership — Duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 79, § 2) was repealed by Acts 1990, ch. 325, § 37, effective July 13, 1990.

Blasting Regulations

351.310. Definitions for KRS 351.315 to 351.375.

As used in KRS 351.315 to 351.375 unless the context clearly indicates otherwise:

“Explosives” means any chemical compound or other substance or mechanical system intended for the purpose of producing an explosion, or that contains oxidizing and combustible units or other ingredients in such proportions or quantities that ignition by detonation may produce an explosion, capable of causing injury to persons or damage to property;
“Blasting operation” means the use of explosives in the surface blasting of stone, rock, ore or any other natural formation, or in any construction or demolition work, but shall not include its use in agricultural operations;
“Blaster” means a person licensed to fire or detonate explosives in blasting operations;
“Charge” means a quantity of explosive or equivalent that is to be detonated within a period of five (5) seconds;
“Subcharge” means a quantity of explosive or equivalent that is to be detonated within a period of less than eight (8) milliseconds;
“Detonation time” means the time at which the detonation is initiated;
“Department” means the Department for Natural Resources; and
“Commissioner” means the commissioner of the Department for Natural Resources.

History. Enact. Acts 1972, ch. 280, § 1; 1976, ch. 143, § 1; 2002, ch. 355, § 7, effective July 15, 2002; 2005, ch. 123, § 61, effective June 20, 2005.

351.315. Licensing of blaster — Training requirements.

No person shall detonate explosives in any blasting operation in which more than five (5) pounds of explosives or the equivalent are used in a single charge or in which less than five (5) pounds of explosives are used by a regular user, excluding blasting for agriculture and underground coal, unless he is licensed by the department. The department shall issue a license to use explosives to any person who:
1. Has worked in blasting operations for at least twenty-four (24) months under the immediate supervision of an experienced blaster or has worked in blasting operations for twelve (12) months and has completed a formal training program approved by the department; and
2. Has passed an examination prescribed by the department which shall test the examinee’s practice of blasting operations and the storage, moving, handling, and detonation of explosives.
Application for license shall be in writing upon a form furnished by the department and shall be accompanied by a photograph of the applicant. If the applicant is successful in passing the examination, a license indicating his competency to detonate explosives shall be issued upon the payment of a fee of twenty-five dollars ($25).
Any person who is a licensed blaster in another state where the qualifications prescribed at the time of licensing were, in the opinion of the commissioner, equal to those prescribed in the Commonwealth at the date of application, and where reciprocal licensing privileges satisfactory to the department are granted to licensees of the Commonwealth, may be granted a license without an examination, upon the payment of a fee.
Each blaster shall be required to renew his license every three (3) years by application to the department, which application shall be accompanied by a fee and subject to the following training requirements:
1. Each applicant for renewal of a Kentucky blaster’s license shall furnish proof that during the preceding three (3) years, the blaster annually has attended a minimum of eight (8) hours of department-approved blaster’s training. No more than four (4) hours of the annual blaster training may be attributed to attending a conference unless otherwise approved by the department; and
2. Each applicant for renewal of a limited Kentucky blaster’s license shall furnish proof that during the preceding three (3) years, the blaster has attended a minimum of four (4) hours of blaster’s training approved by the department.
The department shall not issue a blaster’s license to any person not entitled to transport or receive explosives under existing federal law, including persons who:
1. Are less than twenty-one (21) years of age; or
2. Have been convicted in any court of a crime punishable by imprisonment for a term exceeding one (1) year, unless the conviction has been specifically exempted by the United States Bureau of Alcohol, Tobacco and Firearms or its successor.
All fees provided in this section shall be set by the department by administrative regulation; however, the fee for an application shall not exceed forty dollars ($40), the fee for license renewal shall not exceed sixty dollars ($60), and the fee for reciprocal licensing shall not exceed sixty dollars ($60).
The commissioner may suspend any license for due cause, but no license may be revoked until the licensee has been granted adequate opportunity for a hearing before the cabinet’s Office of Administrative Hearings.

HISTORY: Enact. Acts 1976, ch. 143, § 2; 1978, ch. 240, § 1, effective June 17, 1978; 1996, ch. 150, § 1, effective July 15, 1996; 1996, ch. 318, § 332, effective July 15, 1996; 2000, ch. 67, § 1, effective July 14, 2000; 2006, ch. 25, § 1, effective July 12, 2006; 2010, ch. 94, § 3, effective July 15, 2010; 2018 ch. 85, § 11, effective July 14, 2018.

351.320. Detonation of explosives in blasting operations — Qualifications and licensing of blaster. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 280, § 2) was repealed by Acts 1976, ch. 143, § 14. For present law see KRS 351.315 .

351.325. Classification of blasters.

The department may institute classifications of blasters for the purpose of insuring adequate skill in different types of blasting operations. Classification will be determined by passage of a corresponding examination.

History. Enact. Acts 1976, ch. 143, § 3.

351.330. Requirements governing blasting operations.

Blasting of explosives for use in the neighborhood of any public highway, stream of water, dwelling house, public building, school, church, commercial or institutional building, pipeline, or utility shall be done in accordance with the provisions of this section, and rules and regulations promulgated by the department.
Where necessary in a blasting operation, the department may require that the operator submit a blasting plan to the department for approval.
In all blasting operations, except as hereinafter otherwise provided, the maximum peak particle velocity of the ground motion in any direction shall not exceed two (2) inches per second at the immediate location of any dwelling house, public building, school, church, commercial or institutional building, and the particle velocity at such location immediately after a period of one (1) second following the peak particle velocity produced by any charge shall not continuously exceed one-half (1/2) inch per second.
Blasting operations without instrumentation will be considered as being within the limits set forth in this subsection if such blasting operations are conducted in accordance with rules and regulations of the department establishing the maximum amount of explosives to be used in a single charge and in a single subcharge within specified distances from any location provided by subsection (1) of this section. No more than 40,000 pounds of explosives may be used in any charge except with the approval of the commissioner. Regulations promulgated by the department pursuant to this subsection shall be in such terms that compliance therewith will assure compliance with the provisions of subsection (3) of this section.
No two (2) consecutive subcharges containing the maximum permitted by the department pursuant to this subsection shall have a detonation time separated by less than eight (8) milliseconds, except that if the amount of explosive used in any subcharge is less than maximum permitted by the department pursuant to subsection (4) of this section, the time delay between detonation times may be decreased in the same ratio.
Any blasting operation may be conducted without reference to any maximum amount or period provided by or pursuant to subsection (4) of this section if the operator of such blasting operation demonstrates by instrumentation that maximum particle velocity of the ground motion in any direction does not exceed the limits provided in subsection (3) of this section.
Instruments for determining particle velocity as set forth in this subsection shall be limited to such specific types of devices as shall have been expressly approved by the department and the commissioner or his duly authorized agent may enter upon any premises for the purpose of conducting or supervising any necessary instrumentations provided by KRS 351.315 to 351.375 .
When blasting operations are contemplated which would result in ground vibrations that would have a particle velocity in any direction in excess of two (2) inches per second at the immediate location of any dwelling house, public building, school, church, commercial or institutional building, blasting operations may proceed after receiving written consent from the property owner or owners affected.
When blasting operations, other than those conducted at a fixed site as a part of any industry or business operated at such site, are to be conducted within the vicinity of a pipeline or public utility, the blaster or person in charge of the blasting operations shall take due precautionary measures for the protection of the pipeline or utility, and shall give adequate notice to the owner or his agent that such blasting operations are intended. The blaster shall be subject to regulations promulgated by the department concerning such a blasting operation.
Blasting operations near streams shall be prohibited in all cases where the effect of the blasting is liable to change the course or channel of any stream without first obtaining a permit from the department which has been approved by the Division of Water in the Energy and Environment Cabinet.
Blasting operations shall not be conducted within eight hundred (800) feet of any public highway, unless due precautionary measures are taken to safeguard the public.
Mudcapping in blasting operations shall be permitted only where it would endanger the safety of the workers to drill the rock or material to be blasted. If mudcapping is necessary, no more than ten (10) pounds of explosives shall be used for each charge.
When the use of detonating cord would cause severe air blast the department may cause all trunk lines to be covered by five (5) to six (6) inches of loose earth.
In blasting operations, flying rocks shall not be allowed to fall greater than one-half (1/2) the distance between the blast and a dwelling house, public building, school, church, or commercial or institutional building. Protective material shall be used to insure this limit.
When a blast is about to be fired, ample warning shall be given to allow all persons to retreat to a safe place, and care shall be taken to ascertain that all persons are in the clear. Each operator shall follow a definite plan of warning signals that can be clearly seen or heard by anyone in the blasting area. The operator shall inform all employees at the operation as to the established procedure.
No person shall use explosives in such manner that safety to persons or property is threatened.
The two (2)-inch-per-second maximum peak particle velocity as specified in subsections (3) and (8) of this section shall be construed as the threshold below which blasting damage is unlikely to occur. However, the department shall have the authority to promulgate regulations requiring more restrictive levels of maximum peak particle velocity when necessary to maintain consistency with federal statutes or regulations.

History. Enact. Acts 1972, ch. 280, § 3; 1976, ch. 143, § 4; 1978, ch. 337, § 1, effective June 17, 1978; 2010, ch. 24, § 1902, effective July 15, 2010.

351.335. Rules and regulations — Authority of commissioner or his representative.

The department shall have the authority for promulgating regulations concerning the manufacture, transportation, sale, storage, or use of explosives and unassembled components of explosives including, but not limited to, airblasts, preblast surveys, and blasting schedules, and the maintenance of such explosives which has a direct bearing on safety to life and property, and any other rules and regulations necessary to effectuate the provisions of KRS 351.315 to 351.375 or which are consistent with the provisions of the Federal Surface Mining Control and Reclamation Act of 1977, and amendments thereto, pertaining to blasting or explosives, or any rule or regulation promulgated thereunder pertaining to blasting or explosives. No portion of KRS 351.315 to 351.375 shall apply in any manner to the manufacture, transportation, sale, storage, possession, or use of:
1. Loaded ammunition for use in small arms or other weapons; or
2. Propellant powders for use in small arms or other weapons; or
3. Primers for small arms ammunition; or
4. Any other component part of small arms ammunition; or
5. Tools, equipment, or devices for the manufacture of small arms ammunition; or
6. Grades of blackpowder suitable primarily for use in firearms.
To promote compatible, uniform, and consistent laws and regulations concerning blasting, all local ordinances, rules, and regulations concerning blasting and explosives promulgated by units of local government within the Commonwealth shall be reviewed and approved, by the department, prior to implementation. Any not so approved shall be invalid. Any local ordinance, rule, or regulation in force on June 19, 1976, shall become invalid, null, and void one hundred twenty (120) days after June 19, 1976, unless it is submitted to the department and is approved as being consistent with the provisions of this section.
In order to carry out the purposes of KRS 351.315 to 351.375 , the commissioner or his authorized representative shall have the authority:
1. To enter without delay and advance notice any place where explosives are in use or stored or where blasting records are kept, during regular working hours and at other reasonable times in order to inspect such places, question any explosive user or seller for the purpose of ascertaining compliance or noncompliance with KRS 351.315 to 351.375 .
2. To administer oaths, take depositions, conduct hearings, take photographs, review any and all blasting records, and secure any other evidence deemed necessary to evaluate any safety hazard in KRS 351.315 to 351.375 or regulations issued pursuant thereto.
If an explosive user or seller refuses such entry, then the commissioner or his authorized representative may apply to the Franklin Circuit Court, or to the Circuit Court within the county wherein the premises to be entered are located, for an order to enforce the right of entry.
If, during the course of a lawful inspection, the commissioner or his authorized representative discovers explosives stored or kept in an unlawful manner and such unlawfully stored or kept explosives constitute an imminent and substantial danger to life or property, then the commissioner or his authorized representative may, upon proper affidavit before a magistrate with authority and jurisdiction to issue search warrants, obtain a warrant authorizing seizure of such unlawfully stored or kept explosives and thereby seize and store such explosives in a lawful and safe manner.
1. No warrant pursuant to this section shall be issued unless the commissioner or his authorized representative has made arrangements with public or private sources for the lawful and safe storage of the explosives to be seized.
2. No warrant pursuant to this section shall be issued upon an affidavit that does not aver that an arrangement has been made between the commissioner or his authorized representative and public or private sources for the lawful and safe storage of the explosives to be seized.
3. No warrant pursuant to this section shall be issued upon an affidavit that does not specifically state the place in which the explosives are to be stored in terms of city, county, street address, and name of person, company, or agency accepting the explosives for storage.
4. Any owner or person entitled to lawful possession of explosives seized pursuant to this section shall be entitled to recovery of the seized explosives upon written or verbal notification to the commissioner or his authorized representative stating his capability to lawfully and safely store the seized explosives, and upon an inspection by the commissioner or his representative of his storage facilities and methods that reveals his capability to lawfully and safely store the explosives.
5. The commissioner or his authorized representative shall make the inspection within five (5) days of receipt of said notification.
6. If the commissioner or his authorized representative receive no communication from the owner or person entitled to lawful possession of the seized explosives within thirty (30) days after the seizure of such explosives, then the commissioner or his authorized representative may dispose of the seized explosives in a safe and lawful manner.

History. Enact. Acts 1976, ch. 143, § 5; 1978, ch. 337, § 2, effective June 17, 1978.

Compiler’s Notes.

The Federal Surface Mining Control and Reclamation Act of 1977, referred to in subsection (1) of this section, is compiled as 30 USCS § 1201 et seq.

351.340. Rules and regulations — Inspections. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 280, § 4) was repealed by Acts 1976, ch. 143, § 14. For present law see KRS 351.335 .

351.345. Revocation of license — Hearing.

The commissioner, before revoking any license shall set the matter down for a hearing before the cabinet’s Office of Administrative Hearings.
No person shall blast once his license has been revoked by the department.

HISTORY: Enact. Acts 1976, ch. 143, § 9; 1980, ch. 114, § 101, effective July 15, 1980; 1996, ch. 318, § 333, effective July 15, 1996; 2018 ch. 85, § 12, effective July 14, 2018.

351.350. Citation for violation — Action against violator.

If upon inspection an authorized representative of the commissioner finds that an explosive user or seller has violated any requirement of KRS 351.315 to 351.375 , a citation shall be issued to the violator. Each citation shall describe the alleged violation, establish the time period permitted for correction by fixing a reasonable date by which the alleged violation shall be eliminated, if applicable, and propose the civil penalty to be paid. If within fifteen (15) working days from the receipt of the citation the explosive user or seller fails to notify the commissioner that he intends to contest the citation, then the citation shall be deemed a final order and not be subject to review by any court or agency.
If the explosive user or seller notifies the commissioner that he intends to challenge a citation issued under KRS 351.315 to 351.375 , then it shall be the duty of the department or the cabinet’s Office of General Counsel upon the request of the commissioner, to bring an action for the recovery of the penalties provided for herein.
It shall be the duty of the cabinet’s Office of General Counsel, upon the request of the commissioner, to bring an action for a restraining order, temporary or permanent injunction against any operator or other person violating or threatening to violate any of the provisions of KRS 351.315 to 351.375 .

HISTORY: Enact. Acts 1976, ch. 143, § 7; 2018 ch. 85, § 13, effective July 14, 2018.

351.355. Notification of accident — Investigation.

Whenever serious injury, as defined in KRS 500.080 , or loss of life occurs in a blasting operation, the blaster shall immediately give notice forthwith to the department stating the particulars of the accident. To aid in making an investigation of the accident, the commissioner may compel the attendance of witnesses and administer oaths.

History. Enact. Acts 1976, ch. 143, § 8.

351.360. Records required.

A record of each blast shall be kept. All records including seismograph reports shall be retained at least five (5) years and shall be available for inspection by the department and shall contain such data as the commissioner determines.

History. Enact. Acts 1976, ch. 143, § 9.

351.365. Supplier of explosives to keep register and to register with department.

Any person who sells, lends, or gives any explosives or blasting agents shall keep a register showing the amount sold, lent, or given, the date of the sale, loan, or gift and for what purpose it is to be used. Such person shall also be required to register with the department.

History. Enact. Acts 1976, ch. 143, § 10.

351.367. Permit to purchase, receive, or take possession of explosives — Procedures — Restrictions — Records.

No person, firm, association, or corporation shall purchase, receive, or take possession of explosives without first obtaining a permit from the department.
The application for a permit to purchase, receive, or take possession of explosives shall be on a form prescribed by the department and shall be accompanied by an application fee of twenty dollars ($20). The application shall indicate the applicant’s name, address, type of business, the location at which the explosives will be used and stor