RELATES TO: KRS 350.010(2), 350.130, 350.240, 350.300
STATUTORY AUTHORITY: KRS 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028 authorizes the Energy and Environment Cabinet to promulgate administrative regulations pertaining to noncoal mineral operations to minimize their adverse effects on the citizens and the environment of the commonwealth. KRS 350.029 authorizes the cabinet to promulgate reasonable administrative regulations to establish effective programs for the control of surface soil disturbance in connection with mining as defined by the Interstate Mining Compact. KRS 350.240 authorizes the cabinet to promulgate reasonable administrative regulations for the reclamation of land disturbed or removed in the mining of clay. KRS 350.300 authorizes the cabinet to formulate and establish an effective program and standards for the conservation and use of mined land. This administrative regulation specifies information to be submitted by the applicant relating to legal status, financial information, general site information, map requirements, cultural and environmental resource information, and mining and reclamation plans. This administrative regulation also addresses the waivers and approvals necessary to conduct noncoal mineral operations, including those of other agencies, and establishes provisions concerning review of permits and other permit related procedural matters.
Section 1. General. (1) This administrative regulation shall pertain to a person who applies for a permit to conduct mineral operations.
(2) Preliminary permit requirements.
(a) A person or mineral operator desiring a permit shall submit a preliminary map at a scale one (1) inch equals 400 feet or 500 feet, marked to show the proposed permit area and adjacent areas, including location of access roads, spoil or waste areas, and sedimentation ponds.
(b) Personnel of the cabinet shall conduct, within fifteen (15) working days after filing, an on-site investigation of the area with appropriate persons including appropriate representatives of the applicant.
(3) Permanent permit requirements. An original and two (2) complete, separately bound and distinct copies of the application shall be submitted to the cabinet, at the Department for Natural Resources, Division of Mine Reclamation and Enforcement, Noncoal Review Branch, 300 Sower Boulevard, Frankfort, KY 40601, or at one (1) of the following regional offices:
(a) London Regional Office, Regional State Office Building, 85 State Police Road, London, Kentucky 40741-9011;
(b) Madisonville Regional Office, 625 Hospital Drive, Madisonville, Kentucky 42431-1683;
(c) Middlesboro Regional Office, 1804 East Cumberland Avenue, Middlesboro, Kentucky 40965-1229;
(d) Pikeville Regional Office, 121 Mays Branch Road, Pikeville, Kentucky 41501-9331; or
(e) Prestonsburg Regional Office, 3140 South Lake Drive, Suite 6, Prestonsburg, Kentucky 41653-1410.
Section 2. Identification of Interests. (1) Each permit application shall contain the names and addresses of:
(a) The applicant, including phone number;
(b) The registered agent for service of process, if applicable, including phone number;
(c) Owners, partners, or if a corporation, officers or stockholders owning ten (10) percent or more stock;
(d) The project engineer, along with registration number and name of associated firm;
(e) The company and engineer to which correspondence concerning the subject permit shall be addressed;
(f) Surface owners of record within the area proposed for mining, including areas overlying underground workings;
(g) Mineral owners of record within the area proposed for mining, including areas overlying underground workings; and
(h) Surface owners of record within 500 feet of the proposed permit boundary and areas overlying underground workings.
(2) If the company has undergone a name change or changes during the previous five (5) years, the applicant shall list the names.
(3) The legal structure of the applicant shall be specified.
(4) If the business is owned by an individual or is a partnership, and is performed under an assumed name, the applicant shall specify the county and state where the name is registered.
(5) The applicant shall list previous Kentucky permits held by the applicant or an individual, partnership, or corporation associated with the applicant.
(6) The applicant shall provide the name of the contact person at the site, including phone number.
(7) The applicant shall specify the type of application, along with the permit number.
Section 3. Bond Information. (1) If bond is required pursuant to 405 KAR 5:082, the following information shall be provided in the permit application:
(a) The bond amount per acre;
(b) The total amount of bond; and
(c) The bond type.
(2) If a surety is used, the applicant shall provide the bond number and surety.
(3) If a certificate of deposit is used, the applicant shall provide the bank name and CD number.
(4) If a letter of credit is used, the applicant shall provide the bank name and letter of credit number.
Section 4. Equipment Inventory. The permit application shall contain a list of all equipment, model numbers, and condition of the equipment proposed to be used for removing overburden and reclaiming the affected area of the proposed mineral operation.
Section 5. Waivers and Approvals. (1) If blasting will occur within 300 feet of an occupied dwelling or if mineral extraction will occur within 100 feet of an occupied dwelling, the permit application shall contain a waiver from the owner, acknowledging approval of the activity.
(2) Except where mine access roads or haul roads join the right-of-way, if the proposed mineral operation will occur within 100 feet of the right-of-way of a public road, or if relocation of a public road is proposed, the permit application shall contain proof of notification to and required approvals from the appropriate agency or local government with jurisdiction over the road.
(3) If a permanent pond other than a final pit impoundment with no embankment is proposed, approval from the landowner for the structure and a written acknowledgment from the landowner that the mineral permittee shall not have continuing maintenance responsibility after permit release shall be required.
(4) If relocation, channelization, or other significant disturbance to an intermittent or perennial stream is proposed, or if the proposed mineral operation will occur within, or in any way impact, a floodplain, wetland, or other water of the commonwealth, the applicant shall obtain the appropriate permits and approvals from the United States Army Corps of Engineers and the Kentucky Division of Water. Approval shall also be required by the cabinet for disturbances within 100 feet of an intermittent or perennial stream.
(5) If a sedimentation pond or other point source discharge is proposed, a KPDES permit from the Kentucky Division of Water shall be required.
(6) If water withdrawal is proposed, a Water Withdrawal Permit shall be obtained from the Kentucky Division of Water.
(7) If there are local zoning regulations, the applicant shall state this in the application to the Division of Mine Reclamation and Enforcement.
(8) If applicable, approval from the owner of the utilities and facilities as provided in 405 KAR 5:015, Section 4(6) shall be required.
Section 6. Right to Mine. The permit application shall contain a signed statement by the applicant attesting that the applicant has the legal right to mine, along with the appropriate date.
Section 7. Verification of Application. The permit application shall contain a statement, signed by the applicant, acknowledging that all statements and representations, made in the application, are true and correct.
Section 8. Map Requirements. The permit application shall include original and two (2) copies of a section of the appropriate United States Geological Survey Topographical Map or an equivalent format which shall:
(1) Delineate the proposed permit area and areas, if applicable overlying proposed underground workings;
(2) Be of a scale of not more than one (1) inch to 400 feet;
(3) Show all other mine operations within 500 feet of the proposed permit boundaries and proposed underground workings, including those within the proposed permit boundaries;
(4) Delineate the property boundaries of all landowners within the proposed permit area and areas overlying proposed underground workings and all landowners within 500 feet of the proposed permit boundary and areas overlying proposed underground workings, along with the names of all the landowners;
(5) Delineate all proposed access roads onto the proposed mineral operation;
(6) Show the site slope;
(7) Show the name and location of all streams, rivers, lakes, outstanding resource waters pursuant to 401 KAR 10:031, or other public water bodies; proposed stream buffer zones; roads, cemeteries, houses, churches, schools and other public buildings; oil and gas wells; public properties such as, parks, Wildlife Management Areas, and nature preserves, and utility lines on the area to be affected, and within 1,000 feet of the proposed permit boundary;
(8) Locate sites listed on the National Register of Historic Places and known archaeological sites;
(9) Delineate wetlands that may be affected by the proposed mineral operation;
(10) Show the drainage pattern on and away from the area to be affected, including the direction of flow, proposed constructed drainways, natural drainways to be used for drainage, and the streams or tributaries to receive discharges from the proposed mineral operation;
(11) Show proposed pit area, sediment structures, storage areas, and other facilities and features related to the mineral operation;
(12) Provide a north point arrow;
(13) Contain a legend, which shall:
(a) Provide the company name;
(b) Provide the application number;
(c) Provide the county and quadrangle names;
(d) Provide the site coordinates;
(e) Provide the site address;
(f) Provide the map scale and contour interval;
(g) Provide a description of the site location including:
1. The nearest stream; and
2. The distance and direction from the nearest road intersection or town;
(h) Identify each insignia, symbol, number, or letter used to designate features, facilities, or areas;
(i) Provide acreage breakdowns of the various mineral operation features and facilities including, pit areas, storage areas, sediment structures, access roads, and the total number of acres of area to be affected; and
(j) Specify the deposit to be mined; and
(14) Provide a signed, notarized statement that the map has been prepared and certified by a professional engineer, registered pursuant to the provisions of KRS Chapter 322. This statement shall read, "I, the undersigned, hereby certify that this map is correct, and shows to the best of my knowledge and belief all the information required by the mineral operation laws and administrative regulations of the state". This statement shall include:
(a) The engineer's registration number; and
(b) The date on which the map was prepared.
Section 9. General Site Information. The permit application shall contain the following general site information:
(1) Location of the mineral operation to include:
(a) Latitude and longitude;
(b) The nearest community;
(c) The name of the nearest stream;
(d) The nearest public road intersection; and
(e) The name of the United States Geological Survey quadrangle or quadrangles, in which the proposed mineral operation will occur;
(2) A county by county list of the types of disturbances planned, accompanied by the acreage to be involved with each disturbance;
(3) Specification of the mineral to be extracted;
(4) Specification of the major watershed or watersheds, which will be affected, by the proposed mineral operation;
(5) Specification if active discharges exist that may affect the proposed mineral operation. If so, provide the following information:
(a) The pH of the discharge; and
(b) The source of the discharge;
(6) Specification if underground workings will be encountered, and the distance, in feet, to the nearest active deep mine; and
(7) Specification of the types of disturbances planned for the proposed mineral operation.
Section 10. Cultural Resource Information. The applicant shall specify if sites listed on the National Register of Historic Places or known archaeological sites exist within, or adjacent to, the proposed permit boundary.
Section 11. Environmental Resources Information. (1) The applicant shall indicate if there are Wildlife Management Areas, wildlife refuges, nature preserves, state or national parks, state or national forests, or similar public lands within the vicinity of the proposed mineral operation. If these lands exist, the applicant shall delineate them on the map.
(2) The applicant shall indicate if disturbances within the channel of, or within 100 feet of, an intermittent or perennial stream are proposed.
(3) The applicant shall indicate if there are outstanding resource waters, pursuant to 401 KAR 10:031, within the vicinity of the proposed mineral operation. If so, the applicant shall delineate these waters on the map.
Section 12. Surface Water Quantity and Quality Protection Plan. The permit application shall contain a surface water quantity and quality protection plan, which shall demonstrate to the satisfaction of the cabinet compliance with 405 KAR 5:050 and 405 KAR 5:055, and shall include the following information:
(1) The number of sedimentation ponds proposed, accompanied by designs, drawings, and specifications for each structure to include:
(a) The structure number;
(b) The number of acres to be disturbed within the drainage area;
(c) The number of acres in the drainage area;
(d) Sediment storage capacity;
(e) Storage capacity at the principal spillway;
(f) Storage capacity at the emergency spillway;
(g) Spillway capacities;
(h) Structure height measured from the downstream toe; and
(i) All other engineering designs, dimensions, and calculations required to demonstrate compliance with 405 KAR 5:050 and 5:055.
(2) If sediment removal becomes necessary, the permit application shall contain a description of how sediment shall be removed and disposed.
(3) The applicant shall state if any permanent sedimentation ponds are proposed.
(4) The permit application shall contain descriptions, designs, diagrams, figures, and calculations as necessary to adequately explain and illustrate all other sediment control structures.
(5) The permit application shall contain descriptions, designs, diagrams, figures, and calculations as necessary to adequately explain and illustrate other methods proposed for protecting surface waters.
Section 13. Permanent and Temporary Impoundments. If an impoundment is part of the plan of reclamation or method of mineral operation, the permit application shall contain detailed designs and specifications for the impoundment that demonstrates compliance with 405 KAR 5:055.
Section 14. Spoil Handling Plan. The permit application shall contain or be accompanied by a plan for the handling and disposal of spoil, in excess of that involved with backfilling and grading, which shall demonstrate to the satisfaction of the cabinet, compliance with the requirements of 405 KAR 5:062.
Section 15. Toxic Materials Handling Plan. The permit application shall contain, or be accompanied by, a plan for the handling of acid-forming or toxic-forming materials, waste materials, or other unstable materials that shall demonstrate, to the satisfaction of the cabinet, compliance with the requirements of 405 KAR 5:062.
Section 16. Backfilling and Grading Plan. The permit application shall contain, or be accompanied by, a plan for backfilling and grading, which shall demonstrate to the satisfaction of the cabinet, compliance with the requirements of 405 KAR 5:062.
Section 17. Topsoil Handling and Restoration Plan. The permit application shall contain, or be accompanied by, a plan for the handling and restoration of topsoil, which shall demonstrate to the satisfaction of the cabinet, compliance with the requirements of 405 KAR 5:062.
Section 18. Land Use Plan. (1) The permit application shall contain a land use plan, which demonstrates compliance with 405 KAR 5:065, and is consistent with 405 KAR 5:070, that:
(a) Specifies the premining use or uses within, and adjacent to, the proposed permit boundary;
(b) Specifies the intended postmining land use for the proposed permit area; and
(c) If the postmining land use is different from the premining land use, shall provide a discussion justifying the change.
(2) The land uses are listed at 405 KAR 5:065, and are defined in 405 KAR 5:002.
Section 19. Revegetation Plan. The permit application shall contain a revegetation plan which shall demonstrate, to the satisfaction of the cabinet, compliance with the requirements of 405 KAR 5:070, and is consistent with 405 KAR 5:065 and that provides the following information:
(1) Identification of the material that will be redistributed on the regraded area as a plant growth medium;
(2) Permanent grass species, permanent legume species, and quick cover species to be seeded during revegetation, along with their application rates (pounds/acre);
(3) Tree and shrub species to be planted during revegetation, along with their stocking rates (number/acre); and
(4) The type of mulch to be used, along with the mulching rate (pounds or tons/acre), or other soil stabilization practices to be incorporated.
Section 20. Designs and Attachments. (1) The permit application shall be accompanied by appropriate descriptions, designs, diagrams, figures, and calculations as necessary to adequately explain and illustrate proposed sediment control structures, as required under Sections 12 and 13 of this administrative regulation; spoil disposal fills; access and haul roads; stream crossings; and ditches.
(2) Access and haul road designs shall conform to the specifications established in 405 KAR 5:040.
(3) The designs and plans shall demonstrate, to the satisfaction of the cabinet, compliance with all pertinent requirements of 405 KAR Chapter 5, and shall be certified by a Kentucky-registered professional engineer.
Section 21. Newspaper Advertisement: Publication of Notice of Intention to Mine. (1) An applicant for a new permit required pursuant to KRS Chapter 350, shall publish at least once, a public notice of the application for that permit.
(a) The publication shall be made by advertisement in the newspaper of largest bona fide circulation, in the county where the proposed mining site is located.
(b) If the proposed mining site is in more than one (1) county, publication shall be required in the newspaper of largest bona fide circulation in each county.
(2) The publication shall be made not less than ten (10) nor more than thirty (30) days prior to the filing of the permit application with the department.
(3) The public notice of the intention to file an application shall be entitled, "Notice of Intention to Mine Noncoal Minerals", and may be in a manner and form prescribed by the department and shall include at a minimum the following:
(a) Name and address of the applicant;
(b) Permit application number;
(c) The location of the proposed mining site; and
(d) A brief description of the kind of mining activity proposed, together with a statement of the amount of acreage affected by the proposed mineral operations.
(4) The applicant for a new permit required by KRS Chapter 350 shall establish the date and place that the "Notice of Intention to Mine Noncoal Minerals" was published, by attaching to the application proof of the time, place, and content of the published notice.
Section 22. Permit Revisions. A revision to a permit shall be obtained if the mineral permittee desires to modify the mineral operations or make changes to the original permit that does not involve increased acreage. The following stipulations shall apply to permit revisions:
(1) The application for revision shall be filed with the cabinet and approved prior to the date on which the mineral permittee expects to revise the mineral operation;
(2) The term of a permit shall remain unchanged by a revision; and
(3) The application for revision shall be submitted using the "Application for Surface Disturbance Mining Permit Noncoal Mining", Form NCR-2.
Section 23. Permit Amendments. Upon application by the mineral permittee, the cabinet may amend a valid existing permit, so as to increase the permitted area to be affected by mineral operations under the permit. Applications for amendment may be filed at any time during the term of the permit.
(1) The mineral permittee shall file an application in the same form and with the same content as required for an original permit pursuant to this administrative regulation.
(2) The mineral permittee may need to file a supplemental bond with the cabinet in an amount to be determined, as provided under 405 KAR 5:082, for each additional acre or fraction of an acre.
Section 24. Permit Renewals. A valid permit issued pursuant to 405 KAR Chapter 5 shall carry with it, the right of successive renewal upon expiration of the term of the permit. Successive renewal shall be allowed only for those areas specifically within the boundaries of the existing permit.
(1) An application for renewal of a permit shall be filed with the cabinet at least sixty (60) days prior to the expiration date of the permit.
(2) If an application for renewal of a valid existing permit includes a proposal to extend the mineral operation beyond the boundaries authorized pursuant to the existing permit, the portion of the application that addresses a new land area shall be subject to all requirements of 405 KAR Chapter 5, and a new original permit application shall be required for these areas.
(3) The permit renewal shall be issued if the following requirements are met:
(a) The application for renewal shall be submitted using the "Application for Surface Disturbance Mining Permit Noncoal Mining", Form NCR-2;
(b) The mineral permittee shall submit all revised or updated information required by the cabinet, including at a minimum:
1. An updated operational plan current to the date of request for renewal; and
2. Specification of the status and extent of all mineral operations on the existing permit area;
(c) The present mineral operation is in compliance with KRS Chapter 350 and 405 KAR Chapter 5; and
(d) The mineral permittee shall provide additional bond required in accordance with 405 KAR 5:082.
Section 25. Permit Succession. (1) There shall not be succession on the permitted area without the prior written approval of the cabinet.
(2) The initial mineral permittee shall notify the cabinet, in writing, of a proposed succession.
(3) The cabinet may release the first mineral operator from reclamation responsibility pursuant to 405 KAR Chapter 5 as to that particular mineral operation, except that:
(a) There shall not be release until the successive mineral operator has been issued a permit and has otherwise complied with the requirements of 405 KAR Chapter 5; and
(b) The successor shall immediately assume, as a part of his obligation pursuant to 405 KAR Chapter 5, all liability for the reclamation of the area affected by the former permitted mineral operation.
(4) If the cabinet has given its prior written approval to the succession, a successor in interest to a mineral permittee who applies for a successor permit within thirty (30) days of succeeding to the interest, and who obtains immediate bond coverage at least equivalent to the amount of the bond of the original mineral permittee, may continue mineral operations according to the approved permit plan of the original mineral permittee until the successor's application is granted or denied.
(5) The bond coverage provided by the successor in interest shall take effect immediately upon the commencement of mineral operations by the successor.
Section 26. Review of Permits. (1) Within thirty (30) working days of receiving the permit application, the cabinet shall make one (1) of three (3) decisions:
(a) To technically withdraw the permit application;
(b) To deny the permit application; or
(c) To approve the permit application.
(2) If the permit application is technically withdrawn or denied, the thirty (30) working day period shall be stopped on the date of this decision.
(3) The time period shall restart on the date the permit application is returned with deficiencies corrected.
(4) If the application is not approved, the cabinet shall state the reasons, in writing, for which the application is not approved; and the cabinet may propose modifications, delete areas, or reject the entire application.
(5) If the mineral permittee disagrees with the decision of the cabinet he or she may, by written notice, request a hearing by the cabinet, pursuant to 405 KAR 5:095.
(6) The cabinet shall notify the applicant by registered mail within twenty (20) days after a decision is made.
Section 27. Criteria for Permit Approval and Denial. An application for a permit and mineral operation shall not be approved unless the application affirmatively demonstrates and the cabinet determines on the basis of information stated in the application, and other available pertinent information, that:
(1) The permit application is accurate, complete, and that the applicant has complied with all requirements of 405 KAR Chapter 5;
(2) The mineral operation proposed can be carried out under the method of mineral operation outlined in the permit application in a manner that will satisfy all requirements of 405 KAR Chapter 5;
(3) The proposed mineral operation shall not constitute a hazard to, or do physical damage to life, to an occupied dwelling, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, other public property, or to members of the public or their real and personal property.
(a) All necessary measures shall be included in the method of mineral operation in order to eliminate the hazard or damage.
(b) If it is not technologically feasible to eliminate the hazard or damage by adopting specifications in the method of mineral operation, then that part of the mineral operation that constitutes the cause of the hazard or damage shall be deleted from the application and mineral operation;
(4) The proposed mineral operation shall not adversely affect natural hazard lands or a wild river established pursuant to KRS Chapter 146;
(5) The proposed mineral operation shall not be inconsistent with other mineral operations anticipated in areas adjacent to the proposed permit area; and
(6) The proposed permit area is:
(a) Not included within the boundaries of the National Park System, the National Wildlife Refuge System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1276(a)), and the National Recreation Areas designated by Act of Congress;
(b) Not included within 300 feet, measured horizontally, of a public park, public building, school, church, community, or institutional building;
(c) Not included within 100 feet, measured horizontally, of a cemetery, and access to be provided to a cemetery at all times;
(d) Not within 100 feet, measured horizontally, of the outside right-of-way line of a public road, except:
1. Where mine access roads or haul roads join the right-of-way; or
2. Where the cabinet allows the roads to be relocated or allows disturbances within 100 feet of the roads, once the applicant has obtained necessary approval from the governmental authority with jurisdiction over the public road, as required under Section 5 of this administrative regulation; and if after public notice and opportunity for public hearing a written finding is made, by the cabinet, that the interest of the public and the landowners affected thereby shall be protected;
(e) Not within the distances specified in Section 5 of this administrative regulation, measured horizontally, of an occupied dwelling unless the applicant submits with the permit application a written affidavit from the owner of the dwelling specifying an allowance, as required by Section 5 of this administrative regulation.
1. This waiver shall be knowingly and intelligently executed, and be separate from a lease or deed, unless the lease or deed contains an explicit waiver.
2.a. A waiver obtained from previous owners shall remain effective for subsequent owners who had actual or constructive knowledge of the existing waiver when the dwelling was purchased.
b. A subsequent owner shall be deemed to have constructive knowledge if the waiver has been properly filed in public property records pursuant to KRS 382.110 or if the mining has proceeded to within the distance limit prior to the date of purchase; and
(f) Not within 100 feet of an intermittent or perennial stream unless appropriate permits and approvals, required pursuant to Section 5 of this administrative regulation, have been obtained authorizing mineral operations at a closer distance to, or through, the stream. The authorization shall not be given unless the applicant demonstrates to the satisfaction of the cabinet that the authorization is environmentally sound and that KRS Chapter 350 and 405 KAR Chapter 5 have been satisfied.
Section 28. Permit Conditions; Permit Term. (1) Permits issued by the cabinet may contain certain conditions necessary to ensure that the mineral operation shall be conducted in compliance with KRS Chapter 350 and 405 KAR Chapter 5.
(2) All mineral operations shall be conducted in accordance with KRS Chapter 350 and 405 KAR Chapter 5 and conditions of the permit.
(3) Each permit shall be issued for a fixed term not to exceed five (5) years.
Section 29. Denial of a Permit for Past Violations. (1) A mineral operator or person whose permit has been revoked or suspended shall not be eligible to receive another permit or begin another mineral operation, or be eligible to have suspended permits or mineral operations reinstated until he has complied with all applicable requirements of KRS Chapter 350 and 405 KAR Chapter 5 with respect to all permits issued him.
(2) A mineral operator or person whose surface coal mining operation permit has been revoked or suspended shall not be eligible to receive another permit or begin another mineral operation, or be eligible to have suspended permits or mineral operations reinstated until he has complied with all applicable requirements of KRS Chapter 350, 405 KAR Chapters 1, 3, and 7 through 24 with respect to all surface coal mining operation permits issued him.
(3) A mineral operator or person who has forfeited any bond filed with the cabinet for a mineral operation or a surface coal mining operation shall not be eligible to receive another permit or begin another mineral operation unless:
(a) The land for which the bond was forfeited has been reclaimed without cost to the state; or
(b) The mineral operator or person has paid a sum determined by the cabinet after the Division of Abandoned Mine Lands has prepared an estimate of the cost to reclaim the lands, based upon site specific conditions.
(4) If the applicant, mineral operator, a subcontractor, or a person acting on behalf of the applicant has either conducted activities with a demonstrated pattern of willful violations of 405 KAR Chapter 5, or has repeatedly been in noncompliance of this chapter, then the permit application shall be denied. A mineral permittee shall not be relieved of responsibility with respect to a permit issued to him.
(5) If the cabinet determines that an activity of the applicant regulated pursuant to 405 KAR Chapter 5 is currently in violation of KRS Chapters 149, 151, 224, 350 through 354, 400 KAR Chapters 1 through 3, 401 KAR Chapters 4 through 100, 402 KAR Chapter 3, or 405 KAR Chapters 1 through 30, then the cabinet shall require the applicant, before the issuance of the permit, to either:
(a) Submit proof that can be substantiated by the cabinet that the violation has been corrected, or is in the process of being corrected in good faith; or
(b) Establish, by proof that can be substantiated by the cabinet, that the applicant has filed and is presently pursuing, a good faith administrative or judicial appeal to contest the validity of the violation.
(6) If the applicant submits the proof specified pursuant to subsection (5) of this section, then the cabinet may issue the permit with an appropriate condition that either the reclamation work be continued in good faith until completion or that if the applicant loses his action contesting the violation that the violation be corrected within a specified time. Failure to comply with a condition shall be grounds for revocation of the permit.
(7) If the applicant disagrees with the cabinet's determination pursuant to this section, then he or she has the right to request an administrative hearing pursuant to 405 KAR 5:095.
Section 30. Permit Conference and Public Comment. (1) Procedures for requests. A person whose interests are or may be adversely affected by the issuance of the application, including the officer or head of any federal, state or local government agency or authority, may request that the cabinet hold an informal conference on an application for a permit. The request shall:
(a) Briefly summarize the issues to be raised by the requester at the conference; and
(b) Be filed with the cabinet within fifteen (15) days of the newspaper advertisement.
(2)(a) The conference shall be held at the Division of Mine Reclamation and Enforcement.
(b) The conference shall be held within fifteen (15) days of the date of the request. The date, time, and location of the conference shall be sent to the applicant and parties requesting the conference.
(c) The conference shall be conducted by a representative of the cabinet who shall accept oral or written statements and other relevant information from a party to the conference.
(d) If all parties requesting the conference stipulate agreement before the requested conference and withdraw their requests, the conference shall not be held.
(e) All comments and evidence shall be taken into consideration by the Division of Mine Reclamation and Enforcement in Frankfort before a final decision is made on the disposition of the application.
(f) The record shall be maintained and shall be accessible to the parties during the life of the mineral operation.
(3) A person whose interests are or may be adversely affected by the issuance of the application, including the officer or head of a federal, state, or local government agency or authority, may submit written comments to the cabinet.
Section 31. Existing Mineral Operations. (1) Existing mineral operations that were not permitted or regulated prior to February 1995 shall obtain a permit within 180 days of February 1995.
(2) The cabinet may grant limited variances from the distance limitations of Section 27(6) of this administrative regulation if an existing disturbance within those limits was made prior to February 1995 by an existing mineral operation that was not permitted or regulated prior to February 1995. These variances shall only be granted if practical and reasonable remedial compliance measures cannot be identified.
(3) The distance limitations of Section 27(6) of this administrative regulation shall not apply if lesser distance limitations have been approved in a valid permit issued prior to February 1995. The distance limitations established in those permits shall continue to apply.
Section 32. Incorporation by Reference. (1) "Application for Surface Disturbance Mining Permit Noncoal Mining, NCR-2", March, 1990, is incorporated by reference.
(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Natural Resources, #2 Hudson Hollow, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. (30 Ky.R. 2424; eff. 8-26-2004; 39 Ky.R. 1310; 1687; eff. 3-8-2013; TAm eff. 7-6-2016.)