KRS 350.570: Right of cabinet to enter upon land for reclamation purposes -- Acquisition

and disposal of land by Commonwealth.

(1) If the cabinet makes a finding of fact pursuant to the Abandoned Mine Lands

Program that:

(a) Land or water resources have been adver sely affected by past coal mining

practices; and

(b) The adverse effects are at a stage where, in the public interest, action to

restore, reclaim, abate, control, or prevent should be taken; and

(c) The owners of the land or water resources where entry mus t be made to

restore, reclaim, abate, control, or prevent the adverse effects of past coal

mining practices are not known or readily available; or

(d) The owners will not give permission for the United States, the

Commonwealth, political subdivisions, or t heir 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 noti ce 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.

(2) 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.

(3) 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:

(a) The acquired land, after restoration, reclamation, abatement, control, or

prevention of the advers e effects of past coal mining practices, will serve

recreation and historic purposes, conservation and reclamation purposes, or

provide open space benefits; or

(b) Permanent facilities such as a treatment plant or a relocated stream channel

will be constru cted on the land for the restoration, reclamation, abatement,

control, or prevention of the adverse effects of past coal mining practices; or

(c) 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.

(4) 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).

(5) 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 agen cies or the federal

government, and may compensate them for such services.

(6) 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 ma y 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.

(7) Where land acquired pursuant to this section is deemed t o 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 appropri ate 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.

(8) In addition to the authority to ac quire 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 3 50.585, 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 t he 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.

(9) 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.