49-407. Permit to engage in surface mining; approval, modification or denial; determination and order of secretary, contents; applicant to file schedule listing notices of violation; prime farmland ar - Kansas Statutes

49-407

Chapter 49.--MINES AND MINING Article 4.--MINED-LAND CONSERVATION AND RECLAMATION

      49-407.   Permit to engage in surface mining; approval, modification ordenial; determination and order of secretary, contents; applicant to file schedulelisting notices of violation; prime farmland area, effect; informal conference;notice and hearing on final determination; conduct of hearing.(a) Upon the basis of a complete application or an amendment or renewalthereof, as required by this act and the national surface miningcontrol and reclamation act of 1977 (public law 95-87), and public notificationand opportunity for a public hearing as required by the national act,the secretary shall grant, require modification of, or deny theapplication within 60 days and notify the applicant in writing. The applicant shallhave the burden of establishing compliance with law. Within 10 daysafter granting a permit, the secretary shall notify the boardof county commissionersof the county in which the area of affected land is located and furnisha legal description of the permit area. No permit or revision shall beapproved unless the application and any other evidence referred to in thesecretary'sfindings affirmatively establishes, and the secretary determines, accordingto written findings in the secretary's order, the following:

      (1)   The application is accurate, complete, and complies with all requirementsof this act and the aforesaid national act; and

      (2)   the applicant demonstrates reclamation required by this act and theaforesaid national act can be accomplished under the reclamation plan proposed; and

      (3)   the assessment of probable cumulative impact of all anticipated miningin the area on the hydrologic balance specified in the aforesaid nationalact has been made by the department and the proposedoperation has been designedto prevent material damage to the hydrologic balance outside the permit area; and

      (4)   the area proposed to be mined is not included within an area designatedunsuitable for mining or within an area under study for such designation,pursuant to this act or the national surface mining control and reclamationact of 1977 (public law 95-87); and

      (5)   in cases involving mining of a severed mineral interest, the applicanthas furnished written consent of the surface estate owner or a conveyanceexpressly granting or reserving the right to surface extraction of coalor the applicant otherwise establishes the right to extract coal by surfacemethods under the law of Kansas.

      (b)   The applicant shall file with the application a schedule listingall notices of violations of this act or the national surface mining controland reclamation act of 1977 (public law 95-87), or any law, rule or regulationof the United States or of any department or agency in the United Statespertaining to air or water environmental protection insured by the applicantin connection with any surface coal mining operation during the three-yearperiod prior to the date of the application. The schedule alsoshall indicatethe final resolution of any such notice of violation. Where the scheduleor other information available to the department indicatesany surface coal miningoperation owned or controlled by the applicant is currently in violationof this act or such other laws referred to herein, the permit shall notbe issued until the applicant submits proof that such violation has beencorrected or is in the process of being corrected to the satisfaction ofthe agency which has jurisdiction over such violation and no permit shallbe issued to an applicant after a finding by the secretary,after opportunityfor hearing, that the applicant, or the operator specified in the application,controls or has controlled mining operations with a demonstrated patternof willful violations of this act of such nature and duration with suchresulting irreparable damage to the environment as to indicate an intentnot to comply with the provisions of this act.

      (c)   If the area proposed to be mined contains prime farmland, as determinedpursuant to the national surface mining control and reclamation act of 1977(public law 95-87), the secretary, after consultation with the UnitedStates secretary of agriculture and pursuant to national regulations, shall granta permit to mine on prime farmland if the secretary makeswritten findings thatthe operator has the technological capability to restore such mined area,within a reasonable time, to equivalent or higher levels of yield as nonminedprime farmland in the surrounding area under equivalent levels of managementand can meet the soil reconstruction standards provided by the national act.

      (d) (1)   If an informal conference has been held, the secretary shall issueand furnish to parties to the proceedings written findings granting or denyingthe application, in whole or in part, and stating reasons therefor, within30 days of the conference.

      (2)   If no informal conference is held, the secretary shallnotify the operatorwhether the application has been approved or disapproved, in whole or in part.

      (3)   If the application is approved the permit shall be issued. If disapproved,specific reasons therefor must be set forth in the notification. Within30 days after notification of thesecretary's final decision, the operatoror any party with an interest which may be adversely affected may requesta hearing on the final determination. Such hearing shall beheld within 30 days of such request, with notice being given by thesecretary to all interestedparties.

      (4)   The hearing shall be adjudicatory in nature, with a record madeof all proceedings, and no person who presided at an informal conferenceshall preside at the hearing or participate in the decision thereon or inany administrative appeal therefrom. Within 30 days after suchhearing, the secretary shall issue and furnish to parties to the proceedingwritten findings granting or denying the application, in whole or in part,and stating reasons therefor.

      (5)   Where a hearing is requested, the secretary, under conditionsthe secretary prescribes by rules and regulations,may grant appropriate temporary relief pendinga final determination, if:

      (i)   All parties have been given notice and an opportunity to be heardon the request for temporary relief;

      (ii)   the applicant for temporary relief shows there is a substantiallikelihood that the applicant will prevail on the meritsof the final determination; and

      (iii)   such relief will not adversely affect the public health or safetyor cause significant imminent environmental harm to land, air or water resources.

      (6)   In connection with any hearing, the secretary or hearingofficer may administer oaths,subpoena witnesses, or written or printed materials, compel attendance ofwitnesses, or production of materials, and take evidence including but notlimited to site inspections of the land to be affected and other surfacecoal mining operations carried on by the applicant. A verbatim record ofeach public hearing required by this act shall be made, and a transcriptmade available on the motion of any party or by order of the secretary.

      History:   L. 1968, ch. 395, § 7; L. 1978, ch. 208, § 6; L. 1979,ch. 169, § 5;L. 1988, ch. 192, § 15; July 1.