KRS 350.093: Time and distance limits on reclamation efforts -- Deferments -- Drift or

other underground mining -- Variances -- Release of bond.

(1) 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 co mpleted 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.

(2) (a) 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.

(b) Application for a deferment pursuant to this section shall be in the form

prescribed by the cabin et. 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 e xpiration 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 t he event of

forfeiture.

(3) 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 use d 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 locat ions

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.

(4) 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 th is

chapter. These bond releases shall be made in accordance with the following

schedule:

(a) 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.

(b) 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 sha ll 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 o f 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 rel ease 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.

(c) 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.

(5) 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.

(a) A permittee shall have the ri ght 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 r elease 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.

(b) 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.

(c) 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 to ok 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.

(d) Upon the filing of an application for bond rele ase 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.

(6) 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.

(7) 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.

(8) 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 an d 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 pr ovisions

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 ha ve 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.

(9) 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.

(10) 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.