59-8-324 - State's power to acquire and reclaim land disturbed by past mining. - Tennessee Statutes

59-8-324. State's power to acquire and reclaim land disturbed by past mining.

(a)  The state of Tennessee, acting by and through the department of environment and conservation, may acquire any property, by purchase, donation, or condemnation, which is adversely affected by past coal mining practices if the commissioner determines that acquisition of such land is necessary to 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; and

     (2)  Permanent facilities such as 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 part or that public ownership is desirable to meet emergency situations and prevent recurrences of the adverse effects of coal mining practices.

(b)  Prior to the acquisition of any property pursuant to this section, using exclusively state funds, the commissioner shall extend to the owners of the property an opportunity to regrade the area affected, correct drainage problems, plant vegetative cover, and do other acts of reclamation as required by the commissioner. If the owner or owners agree in writing to perform such reclamation and, weather permitting, start such reclamation within a period of sixty (60) days, and continue to completion, the property shall not be acquired by the state.

(c)  The commissioner shall attempt to purchase any property which the commissioner has determined should be acquired for the purpose of reclamation using exclusively state funds and which the owners have not agreed to reclaim as provided for in subsection (b). Where the commissioner and the owners of the property are unable to agree upon the amount to be paid for such property, the commissioner may exercise the power of eminent domain against such property.

(d)  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 the Tennessee surface mine reclamation fund, the federal abandoned mine reclamation fund with the approval of the secretary, or from appropriations made by the general assembly for such purposes.

(e)  The commissioner, or the commissioner's agents, employees, or 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.

(f)  If the commissioner makes a finding of fact 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 commissioner, the commissioner's 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 property and advertising once in a newspaper of general circulation in the county in which the property lies, the state shall have the right to enter upon the property adversely affected by past coal mining practices, and any other property which is necessary for 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 property so entered upon shall be chargeable against such property, and shall mitigate or offset any claim or action brought by any owner of any interest in such property 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.

(g)  Title to all property acquired pursuant to this section shall be in the name of the state of Tennessee. The price paid for property acquired under this section shall reflect the market value of the property in its unreclaimed condition as adversely affected by past coal mining practices.

(h)  After the reclamation of the acquired property, the commissioner may, with the approval of the governor, where property has been reclaimed exclusively with state funds, or with the approval of the secretary, where funds from the federal abandoned mine reclamation fund have been used, transfer jurisdiction of such property or any portion thereof to any state or federal agency that can best utilize such property for public purposes. If the retention of any property is determined to be impractical, the commissioner may, with the approval of the governor and attorney general, where property has been reclaimed exclusively with state funds, or with the approval of the secretary, where funds from the federal abandoned mine reclamation fund have been used, sell such property at not less than fair market value to political subdivisions of the state or by public sale under a system of competitive bidding at not less than fair market value and under such other regulations promulgated to ensure that such lands are put to proper use consistent with local and state land use plans, if any. Such property shall be sold subject to the condition that no surface mining shall be conducted thereon at any time thereafter. The proceeds of any such sale shall be credited to the Tennessee surface mine reclamation fund provided for in § 59-8-212 if it has been reclaimed exclusively with state funds, or to the federal abandoned mine reclamation fund, if it has been reclaimed with funds from that source.

(i)  No property with respect to which a bond conditioned upon the reclamation thereof is in effect shall be acquired pursuant to the provisions of this section, nor shall any provisions of this part be construed to relieve any person from any obligation to regrade, vegetate or perform other reclamation required by law.

(j)  All acquisitions and disposals of property or any interest therein pursuant to the authority granted by this part, shall be governed by the applicable provisions of title 12, chapters 1 and 2, where not inconsistent with the federal Surface Mining Control and Reclamation Act of 1977, compiled in 30 U.S.C. §§ 1201-1328.

(k)  The commissioner, when requested after appropriate public notice, shall hold a public hearing in the county or counties in which property acquired pursuant to this section is 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 property after restoration, reclamation, abatement, control, or prevention of the adverse effects of past coal mining practices.

(l)  In addition to the authority to acquire property under the provisions of this section, the state of Tennessee, and its political subdivisions, acting by and through the department, are authorized to accept property transferred by the secretary, if the secretary determines that such transfer is an integral and necessary element of an economically feasible plan for the 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, or persons dislocated as the result of adverse effect of coal mining practices which constitute an emergency as provided in 30 U.S.C. § 1240, or persons dislocated as the result of natural disasters or catastrophic failures from any cause. Such activities shall be accomplished under such terms and conditions as the secretary 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 this part may be used to pay the actual construction costs of housing. The secretary may carry out the purposes of this subsection directly or the secretary may make grants and commitments for grants, and may advance money under such terms and conditions as the secretary may require to the state, or any department, agency, or instrumentality of the state, or any public body or nonprofit organization designated by the commissioner.

(m)  In the reclamation of property affected by surface coal mining, the commissioner may utilize any services which may be provided by other state or local agencies or by agencies of the federal government, and may compensate them for such services. The commissioner may also receive any federal funds, state funds, or any other funds for the reclamation of property affected by surface coal mining. The commissioner may cause the reclamation and revegetation work to be done by employees of the commissioner's own department or by employees of other governmental agencies or through contracts with qualified persons. Such contracts shall be awarded to the lowest and best bidder upon competitive bids after reasonable advertisement. The designees of the commissioner and any other agency and any contractor under a contract with the commissioner shall have the right of access to the property affected to carry out such reclamation. Any funds available to the commissioner and any public works program may be used and expended to reclaim any property that has been subjected to surface mining that has not been reclaimed in accordance with standards set by this part or regulations thereunder and which are not covered by bond to guarantee such reclamation.

[Acts 1980, ch. 908, § 24; 1984, ch. 837, § 3.]