K.A.R. Agency 47 | Kan. Admin. Regs. Agency 47 — Mined-Land Conservation and Reclamation (KDHE)

Article 1 General

Kan. Admin. Regs. § 47-1-3 Communication

Each application for a surface mining permit required to be filed with the secretary shall be filed in the office of the surface mining section within the time limits for such filing. Each document so addressed or filed shall be deemed to be officially received by the secretary when actually delivered at the office of the surface mining section. Each application shall be accompanied by appropriate fees.

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History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-406; effective, E-71-4, Nov. 20, 1970; effective Jan. 1, 1972; amended May 1, 1980; amended, E-81-30, Oct. 8, 1980; amended May 1, 1981; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-1-8 Petitions to initiate rulemaking

(a) Any person may petition the secretary to initiate a proceeding for the issuance, amendment, or repeal of any regulation under the state act. Each petition shall be submitted to the chief of the surface mining section.

(b) Each petition shall contain a concise statement of the facts, technical justification, and law that requires issuance, amendment, or repeal of a regulation and shall indicate whether or not the petitioner desires a public hearing.

(c) The secretary or the secretary's designee shall determine whether or not the petition sets forth facts, technical justification, and law that provides a reasonable basis for conducting a hearing to consider issuance, amendment, or repeal of a regulation. Facts, technical justification, or law previously considered in a petition or in rulemaking on the same issue shall not provide a reasonable basis.

(d) If the secretary or secretary's designee determines that the petition has a reasonable basis, a notice shall be published seeking comments from the public on the proposed change. A public hearing, an investigation, or other necessary action may be taken by the secretary or secretary's designee to determine whether or not the petition should be granted.

(e) A written decision either granting or denying the petition shall be issued by the secretary or secretary's designee within 90 days after its receipt by the surface mining section.

(1) If the petition is granted, the rulemaking process shall be initiated by the secretary.

(2) If the petition is denied, the petitioner shall be notified in writing by the secretary, setting forth the reasons for denial.

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History

History: (Authorized by and implementing K.S.A. 49-405; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-1-9 Notice of citizen suits

(a) Each person who intends to initiate a civil action on the person's own behalf under K.S.A. 49-426(a)(2) shall give notice of this intent as follows:

(1) a copy of the notice shall be sent by certified mail to the chief of the surface mining section and the secretary;

(2) a copy of the notice shall be sent by first-class mail to the field office director of the office of surface mining, United States department of the interior; and

(3) a copy of the notice shall be sent by certified mail to the alleged violator if the complaint alleges a violation of the state act or any regulation, order, or permit issued under the state act.

(b) Service of the notice shall be complete upon receipt by the person being notified.

(1) Sufficient information to identify the provision of the state act, rule or regulation, order, or permit allegedly violated;

(2) the act or omission constituting the alleged violation;

(3) the name, address, and telephone numbers of the person or persons responsible for the alleged violation;

(4) the date, time, and location of the alleged violation;

(5) the name, address, and telephone number of the person giving notice; and

(6) the name, address, and telephone number of legal counsel, if any, of the person giving notice.

(d) Each person giving notice of an alleged failure by the secretary to perform a mandatory act or duty under the state act shall state the following to the extent known:

(1) the provision of the state act containing the mandatory act or duty allegedly not performed;

(2) sufficient information to identify the omission constituting the alleged failure to perform a mandatory act or duty;

(3) the name, address, and telephone number of the person giving notice; and

(4) the name, address, and telephone number of legal counsel, if any, of the person giving notice.

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History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-426; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-1-11 Permittee; preparation and submission of reports

The secretary or secretary's designee may require a permittee to do the following:

(a) establish and maintain appropriate records;

(b) make appropriate monthly reports;

(c) install, use, and maintain any necessary monitoring equipment or methods and evaluate the results in accordance with those methods, at the locations, intervals, and in the manner prescribed; and

(d) provide any other information relative to surface coal mining and reclamation operations that the secretary or secretary's designee deems reasonable and necessary.

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History

History: (Authorized by and implementing K.S.A. 49-405; effective May 1, 1985; amended Feb. 11, 1991; amended May 2, 1997.)

Article 2 Meaning of Terms

Kan. Admin. Regs. § 47-2-21 Employee defined

"Employee" means a person employed by the department who performs any function or duty under the state act, or a consultant who performs decision-making functions under the authority of state law or these regulations.

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History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-404; effective May 1, 1980; amended May 1, 1983; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-2-53 "Regulatory authority" or "state regulatory authority" defined

"Regulatory authority" or "state regulatory authority" means the department of health and environment, or the secretary's designee.

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History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405 and K.S.A. 49-406; effective May 1, 1980; amended, E-81-30, Oct. 8, 1980; amended May 1, 1981; amended May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997; amended July 31, 1998.)

Kan. Admin. Regs. § 47-2-53a "Regulatory program" defined

"Regulatory program" means the state act and regulations adopted by the department and approved by the United States department of interior, office of surface mining reclamation and enforcement.

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History

History: (Authorized by and implementing K.S.A. 49-405; effective May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-2-58 "Significant, imminent environmental harm to land, air or water resources" defined

A "significant, imminent environmental harm to land, air or water resources" shall include the following elements.

(a) An environmental harm is an adverse impact on land, air or water resources, including plant and animal life.

(b) An environmental harm is imminent if a condition, practice, or violation exists that is causing harm or may reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under these regulations and the state law.

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History

History: (Authorized by and implementing K.S.A. 49-405; effective May 1, 1980; amended May 2, 1997.)

Kan. Admin. Regs. § 47-2-64 "State act" defined

"State act" means the Kansas mined-land conservation and reclamation act and amendments thereto.

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History

History: (Authorized by and implementing K.S.A. 49-405, 49-406; effective May 1, 1980; amended May 2, 1997.)

Kan. Admin. Regs. § 47-2-67 "Surety bond" defined

"Surety bond" means an indemnity agreement, in a specific sum payable to the Kansas department of health and environment and executed by the permittee, which is supported by the performance guarantee of a corporation licensed to do business as a surety in the state of Kansas.

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History

History: (Authorized by and implementing K.S.A. 49-405, and K.S.A. 49-406; effective May 1, 1980; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-2-74 "Public road" defined

"Public road" means a thoroughfare open to the public that has been and is being used by the public for vehicular travel.

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History

History: (Authorized by K.S.A. 49-405, and implementing K.S.A. 49-405b; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended May 2, 1997.)

Kan. Admin. Regs. § 47-2-75 Definitions; adoption by reference

The following federal regulations, as in effect on July 1, 2012, are adopted by reference, except as otherwise specified in this regulation: (a) The section titled definitions, 30 C.F.R. 700.5, shall be altered as follows:

(1) The following text shall be deleted from the definition of "anthracite": "Notices of changes made to this publication will be periodically published by the Office of Surface Mining in the Federal Register. This ASTM standard is on file and available for inspection at the OSM Office, U.S. Department of the Interior, South Interior Building, Washington, D.C. 20240, at each OSM Regional Office, District Office and Field Office, and at the central office of the applicable State Regulatory Authority, if any. Copies of this publication may also be obtained by writing to the above locations. A copy of this publication will also be on file for public inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:

http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Incorporation by reference provisions approved by the Director of the Federal Register February 7, 1979. The Director's approval of this incorporation by reference expires on July 1, 1981."

(2) "Department" means Kansas department of health and environment.

(3) "Director" means director, office of surface mining reclamation and enforcement, in the following instances:

(A) K.A.R. 47-3-42(a)(60), adopting by reference 30 C.F.R. 785.13;

(B) K.A.R. 47-14-7(a)(1), adopting by reference 30 C.F.R. 705.4(a);

(D) K.A.R. 47-14-7(a)(4), adopting by reference 30 C.F.R. 705.13;

(E) K.A.R. 47-14-7(a)(5), adopting by reference 30 C.F.R. 705.15;

(F) K.A.R. 47-14-7(a)(8), adopting by reference 30 C.F.R. 705.19(a); and

(G) K.A.R. 47-14-7(a)(9), adopting by reference 30 C.F.R. 705.21.

(H) K.A.R. 47-15-1a(a)(2), adopting by reference 30 C.F.R. 840.14(a). All other references to "the director" shall be replaced by "the secretary of the Kansas department of health and environment."

(4) "Person" shall have the meaning specified in K.S.A. 49-403, and amendments thereto.

(5) "Regulatory authority" and "state regulatory authority" shall have the meaning specified in K.A.R. 47-2-53.

(6) "Regulatory program" shall have the meaning specified in K.A.R. 47-2-53a.

(7) "Secretary" means secretary of the Kansas department of health and environment.

(8) "Surface coal mining and reclamation operations" shall have the meaning specified in K.S.A. 49-403, and amendments thereto.

(9) "Surface coal mining operations" shall have the meaning specified in K.S.A. 49-403, and amendments thereto.

(b) The section titled "definitions," 30 C.F.R. 701.5, shall be altered as specified in this subsection.

(1)(A) "Act" shall be replaced by "state act."

(B) In the definitions of "Applicant/Violator System or AVS," "Federal Program," "State Program," and the portion of the definition for "Permittee" that states "section 523 of the Act," the word "Act" shall mean the Surface Mining Control and Reclamation Act of 1977, Pub. L. 95-87. All other references to "Act" shall mean the "state act."

(C) In the definition of "cumulative impact area," the following text shall be deleted: "and (d) all operations required to meet diligent development requirements for leased Federal coal for which there is actual mine development information available." The word "and" shall be placed immediately before subsection (c).

(D) In the definitions of "federal program" and "state program" in this subsection, "Secretary" shall mean the director, office of surface mining reclamation and enforcement. In the definition of "prime farmland" in this subsection, the term "Secretary" shall mean the secretary of agriculture. All other references to "Secretary" shall mean the secretary of the Kansas department of health and environment. In the definition of "federal program," "Director" shall mean the director, office of surface mining reclamation and enforcement.

(E) "Imminent danger to the health and safety of the public" shall have the meaning specified in K.S.A. 49-403, and amendments thereto.

(F) "Operator" shall have the meaning specified in K.S.A. 49-403, and amendments thereto.

(G) The definition of "performance bond" shall be replaced with the following:

"'Performance bond' means a surety bond, collateral bond or a combination thereof, by which a permittee assures faithful performance of all the requirements of the state act, these regulations, a state program, and the requirements of the permit and reclamation plan."

(H) "Permit" shall have the meaning specified in K.S.A. 49-403, and amendments thereto.

(I) "Permit area" shall have the meaning specified in K.S.A. 49-403, and amendments thereto.

(J) In the definition of "permittee," the phrase "by the Director pursuant to a Federal program, by the Director pursuant to a Federal lands program" shall be deleted. In the definition of "permittee," "Director" shall mean the director, office of surface mining reclamation and enforcement.

(K) "Significant, imminent environmental harm to land, air or water resources" shall have the meaning specified in K.A.R. 47-2-58.

(L) "Subchapter J of this chapter" shall be replaced by "article 8 of these regulations."

(M) "This chapter" shall be replaced by "these regulations."

(N) In the definition of "Violation, failure, or refusal," the text "(1) A failure to comply with a condition of a Federally-issued permit or of any other permit that OSM is directly enforcing under section 502 or 521 of the Act or the regulations implementing those sections" shall be replaced with the following text: "(1) A failure to comply with a condition of a permit issued by the Kansas department of health and environment under K.S.A. 49-405 and K.S.A. 49-406, and amendments thereto, or the regulations implementing those sections."

(2) The following federal definitions shall be deleted:

(A) "Agricultural activities";

(B) "alluvial valley floors";

(D) "essential hydrologic functions";

(E) "farming";

(F) "flood irrigation";

(G) "materially damage the quality and quantity of water";

(H) "special bituminous coal mines";

(I) "subirrigation";

(J) "undeveloped rangeland"; and

(K) "upland areas."

(3)(A) "Part 845 or 846 of this chapter" and "parts 724 and 846 of this chapter" shall be replaced by "K.A.R. 47-5-5a."

(B) "Parts 773, 774, and 778 of this chapter" shall be replaced by "articles 3 and 6 of these regulations and K.A.R. 47-3-42(a)(2) through (31)."

(D) "Section 502" shall be replaced by "K.S.A. 49-406, and amendments thereto."

(E) "Section 518(b) or section 703 of the Act" shall be replaced by "K.S.A. 49-405c or K.S.A. 75-2973, and amendments thereto."

(F) "Section 521 of the Act" shall be replaced by "K.S.A. 49-405, and amendments thereto."

(G) "Sections 507 and 510(c) of the Act" shall be replaced by "K.S.A. 49-406 and K.S.A. 49-407(b), and amendments thereto."

(4)(A) "30 CFR chapter VII" shall be replaced by "article 1 of these regulations."

(B) "30 CFR parts 816 and 817" shall be replaced by "K.A.R. 47-9-1(c) and (d)."

(D) "30 CFR 816.49 and 816.56, 816.133 or 817.49, 817.56, and 817.133" shall be replaced by "K.A.R. 47-9-1(c)(12), (13), and (45) or K.A.R. 47-9-1(d)(12), (13), and (43)."

(5)(A) "§761.5 of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(1)."

(B) "§773.13 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(9)."

(D) "§800.50 of this chapter" and "§800.50(d)(1) of this chapter" shall be replaced by "K.A.R. 47-8-9(a)(14)."

(E) "§843.11 of this chapter" shall be replaced by "K.A.R. 47-15-1a(a)(8)."

(F) "§843.12 of this chapter" shall be replaced by "K.A.R. 47-15-1a(a)(9)."

(G) "§§784.20 and 817.121 of this chapter" and "§§784.20 and 817.121" shall be replaced by "K.A.R. 47-10-1(a)(2)(K) and K.A.R. 47-9-1(d)(39)."

(H) "§§816.102(d) and 817.102(d) of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(35) and (d)(33)."

(1) "Act" shall be replaced by "state act."

(2) "Employee" shall have the meaning specified in K.A.R. 47-2-21.

(3) "State regulatory authority" shall have the meaning specified in K.A.R. 47-2-53.

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History

History: (Authorized by K.S.A. 49-404, K.S.A. 49-405, and K.S.A. 2018 Supp. 49-408; implementing K.S.A. 49-405 and K.S.A. 2018 Supp. 49-408; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended May 1, 1985; amended May 1, 1986; amended May 1, 1988; amended Feb. 11, 1991; amended May 2, 1997; amended July 31, 1998; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Article 3 Application for Mining Permit

Kan. Admin. Regs. § 47-3-1 Application for mining permit

Each person who conducts or expects to conduct surface or underground coal mining and reclamation operations shall file an original and three copies of a complete and accurate application for a permit for those operations with the secretary.

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History

History: (Authorized by K.S.A. 49-405 and K.S.A. 2018 Supp. 49-406; implementing K.S.A. 2018 Supp. 49-406; effective, E-71-4, Nov. 20, 1970; effective Jan. 1, 1972; amended May 1, 1975; amended May 1, 1980; amended Feb. 11, 1991; amended May 2, 1997; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-3-2 Application for mining permit; adoption by reference

(a) Each permit application submitted with a request for variances from the applicable regulations shall contain an outline of the proposed variances. The outline shall be indexed to the regulations and be placed at the beginning of the application documents.

(b) The following federal regulations as in effect on July 1, 2012 are adopted by reference, except as otherwise specified in this regulation:

(1) Format and contents, 30 C.F.R. 777.11;

(2) reporting of technical data, 30 C.F.R. 777.13;

(3) maps and plans: general requirements, 30 C.F.R. 777.14. The phrase "in accordance with §710.12 of this chapter" shall be deleted; and

(4) completeness, 30 C.F.R. 777.15.

(c) The following phrases shall be replaced with the phrases specified in this subsection wherever the phrases appear in the text of the federal regulations adopted by reference in this regulation:

(1) "This chapter" and "this subchapter" shall be replaced by "these regulations."

(2)(A) "Part 785 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(60) through (66)."

(B) "Parts 778, 779, and 780 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(21) through (59)."

(C) "Parts 778, 783, and 784 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(21) through (31) and K.A.R. 47-10-1."

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History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 2018 Supp. 49-406; effective May 1, 1980; amended May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-3-3a Application for mining permit; maps

(a) Each map, plan, and cross section required for a permit application shall be certified by a qualified, licensed engineer and shall be updated as required by the secretary or secretary's designee.

(b) Each change in a facility or feature that would be caused by the proposed mining operations shall be shown in the maps and plans accompanying the permit application.

(1) A color code, or other method approved in writing by the secretary or secretary's designee, shall be used to indicate critical features of the permit area as follows:

(A) green for areas of coal removal;

(B) red for the boundary of the land affected, including access roads and haulageways;

(D) blue for watercourses, impoundments, drainageways, and other water areas.

(2) A color code, or other method approved, in writing, by the secretary or secretary's designee, shall be used to indicate critical features of any reclamation plan as follows:

(A) green for areas of proposed grassland;

(B) red for the permit boundaries;

(D) blue for proposed water impoundment and drainage;

(E) yellow for proposed cropland; and

(F) orange for proposed woodland.

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History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-406; effective May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-3-42 Application for mining permit; adoption by reference

(a) The following federal regulations, as in effect on July 1, 2012, are adopted by reference, except for the additions and deletions specified:

(1) Applicability, 30 C.F.R. 701.11 subsections (d) and (e) only. Subsections (a), (b), (c), and (f) shall be deleted, and the word "Act" shall be replaced by "state act";

(2) public participation in permit processing, 30 C.F.R. 773.6. The phrase "developed in accordance with section 503(a)(6) or section 504(h) of the Act, or §773.5" in 30 C.F.R. 773.6(a)(3)(ii) and the sentence "The requirements of section 5 of the administrative procedure act, as amended (5 U.S.C. 554), shall not apply to the conduct of the informal conference." in 30 C.F.R. 773.6(c)(2)(iv) shall be deleted;

(3) review of permit applications, 30 C.F.R. 773.7, except that the 60-day period for decision shall be replaced by a 30-day period;

(4) general provisions for review of permit application information and entry of information into AVS, 30 C.F.R. 773.8;

(5) review of applicant and operator information, 30 C.F.R. 773.9;

(6) review of permit history, 30 C.F.R. 773.10;

(7) review of compliance history, 30 C.F.R. 773.11, except that the word "Act" shall be replaced by "state act";

(8) permit eligibility determination, 30 C.F.R. 773.12;

(9) unanticipated events or conditions at remining sites, 30 C.F.R. 773.13;

(10) eligibility for provisionally issued permits, 30 C.F.R. 773.14;

(11) written findings for permit application approval, 30 C.F.R. 773.15. In subsections (a) and (b), the word "Act" shall be replaced by "state act." The phrases "parts 764 and 769 of this chapter" and "parts 762 and 764 or 769 of this chapter" shall be replaced by "K.A.R. 47-12-4";

(12) performance bond submittal, 30 C.F.R. 773.16;

(13) permit issuance and right of renewal, 30 C.F.R. 773.19. The clause "unless the requirements of 778.17 of this chapter are met" shall be deleted;

(14) initial review and finding requirements for improvidently issued permits, 30 C.F.R. 773.21;

(15) notice requirements for improvidently issued permits, 30 C.F.R. 773.22;

(16) suspension or rescission requirements for improvidently issued permits, 30 C.F.R. 773.23;

(17) who may challenge ownership or control listings and findings, 30 C.F.R. 773.25;

(18) how to challenge an ownership or control listing or finding, 30 C.F.R. 773.26, except that in subsection (a), the phrase "as identified in the following table" and the table shall be deleted. The word "Act" shall be replaced by "state act";

(19) burden of proof for ownership or control challenges, 30 C.F.R. 773.27;

(20) written agency decision on challenges to ownership or control listings or findings, 30 C.F.R. 773.28;

(21) Certifying and updating existing permit application information, 30 C.F.R. 778.9;

(22) providing applicant and operator information, 30 C.F.R. 778.11;

(23) providing permit history information, 30 C.F.R. 778.12;

(24) providing property interest information, 30 C.F.R. 778.13;

(25) providing violation information, 30 C.F.R. 778.14;

(26) right-of-entry information, 30 C.F.R. 778.15;

(27) status of unsuitability claims, 30 C.F.R. 778.16, except that the phrase "parts 762, 764, and 769 of this chapter" shall be replaced by "K.A.R. 47-12-4";

(28) permit term, 30 C.F.R. 778.17;

(29) insurance, 30 C.F.R. 778.18;

(30) proof of publication, 30 C.F.R. 778.21;

(31) facilities or structures used in common, 30 C.F.R. 778.22;

(32) responsibilities, 30 C.F.R. 779.4. The phrase "this part" shall be replaced by "K.A.R. 47-3-42(a)(32) through (39)";

(33) general requirements, 30 C.F.R. 779.11;

(34) general environmental resources information, 30 C.F.R. 779.12;

(35) climatological information, 30 C.F.R. 779.18;

(36) vegetation information, 30 C.F.R. 779.19, except that the phrase "if required by the regulatory authority" shall be deleted;

(37) soil resources information, 30 C.F.R. 779.21;

(38) maps: general requirements, 30 C.F.R. 779.24;

(39) cross sections, maps, and plans, 30 C.F.R. 779.25;

(40) responsibilities, 30 C.F.R. 780.4. The phrase "this part" shall be replaced by "K.A.R. 47-3-42(a)(40) through (59)";

(41) operation plan: general requirements, 30 C.F.R. 780.11;

(42) operation plan: existing structures, 30 C.F.R. 780.12;

(43) operation plan: blasting, 30 C.F.R. 780.13;

(44) operation plan: maps and plans, 30 C.F.R. 780.14;

(45) air pollution control plan, 30 C.F.R. 780.15, except that the phrase "if required by the regulatory authority" shall be deleted;

(46) fish and wildlife information, 30 C.F.R. 780.16;

(47) reclamation plan: general requirements, 30 C.F.R. 780.18;

(48) hydrologic information, 30 C.F.R. 780.21;

(49) geologic information, 30 C.F.R. 780.22;

(50) reclamation plan: land use information, 30 C.F.R. 780.23;

(51) reclamation plan: siltation structures, impoundments, and refuse piles, 30 C.F.R. 780.25;

(52) reclamation plan: surface mining near underground mining, 30 C.F.R. 780.27;

(53) activities in or adjacent to perennial or intermittent streams, 30 C.F.R. 780.28;

(54) diversions, 30 C.F.R. 780.29;

(55) protection of publicly owned parks and historic places, 30 C.F.R. 780.31, except that the word "may" shall be changed to "shall";

(56) relocation or use of public roads, 30 C.F.R. 780.33;

(57) disposal of excess spoil, 30 C.F.R. 780.35;

(58) road systems, 30 C.F.R. 780.37;

(59) support facilities, 30 C.F.R. 780.38;

(60) experimental practices mining, 30 C.F.R. 785.13, except that the word "Act" shall be replaced by "state act";

(61) prime farmland, 30 C.F.R. 785.17. The last sentence in 30 C.F.R. 785.17(c)(1)(i) shall be deleted;

(62) variances for delay in contemporaneous reclamation requirement in combined surface and underground mining activities, 30 C.F.R. 785.18, except that in subsections (b)(3) and (7), the word "Act" shall be replaced by "state act";

(63) augering, 30 C.F.R. 785.20;

(64) coal preparation plants not located within the permit area of a mine, 30 C.F.R. 785.21, except that subsections (d) and (e) shall be deleted;

(65) in situ processing activities, 30 C.F.R. 785.22; and

(66) lands eligible for remining, 30 C.F.R. 785.25.

(b) The following phrases and citations shall be replaced with the phrases and citations specified in this subsection wherever the phrases and citations appear in the text of the federal regulations adopted by reference in this regulation.

(1)(A) "Act" shall be replaced by "state act."

(B) "By a reviewing administrative or judicial tribunal" shall be replaced by "by an administrative or a judicial review of an agency action concerning the aforementioned Kansas department of health and environment determination."

(C) "Central office of the applicable state regulatory authority, if any" shall be replaced by "the Kansas department of health and environment, surface mining section."

(D) "Office of hearings and appeals or its state counterpart" shall be replaced by "office of administrative hearings."

(E) "Rule 4 of the federal rules of civil procedure, or its state regulatory program counterparts" shall be replaced by "K.A.R. 47-4-14a."

(F) "Subchapter B (Interim Program Standards) of this chapter" and "subchapter B of this chapter" shall be replaced by "K.A.R. 47-9-4."

(G) "Subchapter B or K of this chapter" shall be replaced by "K.A.R. 47-9-4 or K.A.R. 47-9-1."

(H) "Subchapter J of this chapter," "subchapter J," and "part 800 of this chapter" shall be replaced by "article 8 of these regulations."

(I) "Subchapter K (Permanent Program Standards) of this chapter," "subchapter K," and "subchapter K of this chapter" shall be replaced by "K.A.R. 47-9-1."

(J) "Subchapter R of this chapter" shall be replaced by "the office."

(K) "The procedures at 43 CFR 4.1370 through 4.1377 (when OSM is the regulatory authority) or under the State regulatory program equivalent (when a State is the regulatory authority)" shall be replaced by "K.A.R. 47-4-14a."

(L) "This chapter," "this subchapter," "this part," and "subchapter G of this chapter" shall be replaced by "these regulations."

(2)(A) "Part 775 of this chapter" and "part 775 of this subchapter" shall be replaced by "K.S.A. 49-407(d), 49-416a, and 49-422a, and amendments thereto, and article 4 of these regulations."

(B) "Part 785 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(60) through (66)."

(D) "Part 823 of this chapter" and "30 CFR part 823" shall be replaced by "K.A.R. 47-9-1(f)."

(E) "Part 827 of this chapter" shall be replaced by "K.A.R. 47-9-1(g)."

(F) "Section 508 of the Act" shall be replaced by "K.S.A. 49-406, and amendments thereto."

(G) "Section 510(c) of the Act" shall be replaced by "K.S.A. 49-407(b), and amendments thereto."

(H) "Section 515 of the Act," "section 515(b) of the Act," "section 515 (b)(22) of the Act," and "sections 515 and 516 of the Act" shall be replaced by "K.S.A. 49-405a, 49-408 through 49-413, and 49-429, and amendments thereto."

(I) "Section 515(b)(16) of the Act" shall be replaced by "K.S.A. 49-429, and amendments thereto."

(3)(A) "30 CFR 773.15" and "§773.15 of this part" shall be replaced by "K.A.R. 47-3-42 (a)(11)."

(B) "30 CFR 779.24 through 779.25" shall be replaced by "K.A.R. 47-3-42(a)(38) through (39)."

(D) "30 CFR 780.16" shall be replaced by "K.A.R. 47-3-42(a)(46)."

(E) "30 CFR 780.18 through 780.37" shall be replaced by "K.A.R. 47-3-42(a)(47) through (58)."

(F) "30 CFR 816.13 through 816.15" shall be replaced by "K.A.R. 47-9-1(c)(2) through (4)."

(G) "30 CFR 816.22," "§816.22 of this chapter," and "§816.22(b) of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(5)."

(H) "30 CFR 816.43 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(8)."

(I) "30 CFR 816.59" and "§816.59 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(15)."

(J) "30 CFR 816.71-816.74" and "§§816.71 through 816.74 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(22) through (23).""

(K) "30 CFR 816.79" and "§816.79 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(24)."

(L) "30 CFR 816.89 through 816.102" shall be replaced by "K.A.R. 47-9-1(c)(29) through (35)."

(M) "30 CFR 816.95" shall be replaced by "K.A.R. 47-9-1(c)(30)."

(N) "30 CFR 816.102 through 816.107" shall be replaced by "K.A.R. 47-9-1(c)(35) through (38)."

(O) "30 CFR 816.111 through 816.116" shall be replaced by "K.A.R. 47-9-1(c)(39) through (42)."

(P) "30 CFR 816.116" shall be replaced by "K.A.R. 47-9-1(c)(42)."

(Q) "30 CFR part 819" shall be replaced by "K.A.R. 47-9-1(e)."

(R) "30 CFR part 828" shall be replaced by "K.A.R. 47-9-1(h)."

(S) "30 CFR parts 817 and 828" shall be replaced by "K.A.R. 47-9-1(d) and (h)."

(T) "43 CFR 4.1360 through 4.1369" shall be replaced by "K.A.R. 47-4-14a."

(U) "43 CFR 4.1376 or the State regulatory program equivalent" shall be replaced by "K.A.R. 47-4-14a."

(V) "43 CFR 4.1380 through 4.1387 or, when a state is the regulatory authority, the state regulatory program counterparts" shall be replaced by "K.A.R. 47-4-14a and K.S.A. 49-416a, and amendments thereto."

(4)(A) "§701.5 of this chapter" shall be replaced by "K.A.R. 47-2-75(b)."

(B) "§701.11(d)" shall be replaced by "K.A.R. 47-3-42 (a)(1)."

(D) "§761.12(d) of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(3)."

(E) "§761.14(c) of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(4)."

(F) "§761.14 or §761.15 of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(4) or (5)."

(G) "§761.16 of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(6)."

(H) "§761.17(d) of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(7)."

(I) "§762.13(c) of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(12)."

(J) "§773.6(d)(3)(ii) of this chapter," "§773.6(a)(1) of this chapter," and "§773.6 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(2)."

(K) "§773.12 of this part" and "§773.12" shall be replaced by "K.A.R. 47-3-42(a)(8)."

(L) "§773.13" and "§773.13(c)" shall be replaced by "K.A.R. 47-3-42(a)(9)."

(M) "§773.14(b) of this part" and "§§773.14(c)(1) through (4)" shall be replaced by "K.A.R. 47-3-42(a)(10)."

(N) "§773.19 of this part" shall be replaced by "K.A.R. 47-3-42(a)(13)."

(O) "§773.21(d) of this part" and "paragraphs (a) and (b) §773.21 of this part" shall be replaced by "K.A.R. 47-3-42(a)(14)."

(P) "§773.22(b) or (c) of this part" and "§773.22(e) of this part" shall be replaced by "K.A.R. 47-3-42(a)(15)."

(Q) "§773.23 of this part" shall be replaced by "K.A.R. 47-3-42(a)(16)."

(R) "§773.26(a) of this part" shall be replaced by "K.A.R. 47-3-42(a)(18)."

(S) "§773.27(b) of this part" shall be replaced by "K.A.R. 47-3-42(a)(19)."

(T) "§774.11(c) of this subchapter," "§774.11(f) of this subchapter," and "§774.11(g) of this subchapter" shall be replaced by "K.A.R. 47-6-11(a)(1)."

(U) "§774.13 of this chapter" and "§774.13" shall be replaced by "K.A.R. 47-6-2."

(V) "§774.15" shall be replaced by "K.A.R. 47-6-3."

(W) "§778.9(d) of this subchapter" shall be replaced by "K.A.R. 47-3-42(a)(21)."

(X) "§778.11 of this subchapter," "§§778.11(c)(5) and 778.11(d) of this subchapter," and "§778.11(c)(5) of this subchapter" shall be replaced by "K.A.R. 47-3-42(a)(22)."

(Y) "§778.12 of this subchapter" shall be replaced by "K.A.R. 47-3-42(a)(23)."

(Z) "§778.14 of this subchapter" shall be replaced by "K.A.R. 47-3-42(a)(25)."

(AA) "§778.15(b) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(26)."

(BB) "§779.25 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(39)."

(CC) "§780.16(b) and 816.97(a) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(46) and K.A.R. 47-9-1(c)(31)."

(DD) "§780.21(h) and 816.41(d)(1) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(48) and K.A.R. 47-9-1(c)(6)."

(EE) "§780.25 of this part" shall be replaced by "K.A.R. 47-3-42(a)(51)."

(FF) "§780.29 of this part and §816.43" shall be replaced by "K.A.R. 47-3-42(a)(54) and K.A.R. 47-9-1(c)(8)."

(GG) "§780.35 of this part" shall be replaced by "K.A.R. 47-3-42(a)(57)."

(HH) "§785.13" shall be replaced by "K.A.R. 47-3-42(a)(60)."

(II) "§785.21 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(64)."

(JJ) "§785.25 of this subchapter" and "§785.25 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(66)."

(KK) "§800.60 of this chapter" shall be replaced by "K.A.R. 47-8-9(a)(15)."

(LL) "§816.46 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(10)."

(MM) "§816.49 of this chapter" and "§816.49(a)(4)(ii) of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(12)."

(NN) "§816.57(a)(1) of this chapter," "paragraphs (b) and (c) of §816.57 of this chapter," "paragraphs (b)(2) through (b)(4) of §816.57 of this chapter," and "§816.57(a)(2) of this chapter," shall be replaced by "K.A.R. 47-9-1(c)(14)."

(OO) "§816.67" shall be replaced by "K.A.R. 47-9-1(c)(20)."

(PP) "§816.71(d) of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(22)."

(QQ) "§816.74 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(23)."

(RR) "§816.97 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(31)."

(SS) "§816.100 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(33)."

(TT) "§816.106 or §817.106 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(38) or (d)(34)."

(UU) "§816.111(d) or §817.111(d)" shall be replaced by "K.A.R. 47-9-1(c)(39) or (d)(35)."

(VV) "§816.133" and "30 CFR 816.133" shall be replaced by "K.A.R. 47-9-1(c)(45)."

(WW) "§816.150(d)(1) of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(46)."

(XX) "§816.151(b) of this chapter," "§816.151(c)(2) of this chapter," "§816.151(d)(5) of this chapter," and "§816.151(d)(6) of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(47)."

(YY) "§816.181 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(49)."

(ZZ) "§827.13 of this chapter" shall be replaced by "K.A.R. 47-9-1(g)(3)."

(AAA) "§842.16 of this chapter (when osm is the regulatory authority) or under §840.14 of this chapter (when a state is the regulatory authority)" shall be replaced by "K.A.R. 47-15-1a(a)(2)."

(BBB) "§843.12 of this chapter or the state regulatory equivalent" shall be replaced by "K.A.R. 47-15-1a(a)(9)."

(CCC) "§843.14 of this chapter, or the state regulatory program equivalent" shall be replaced by "K.A.R. 47-15-1a(a)(11)."

(DDD) "§§773.7 through 773.14 of this part" shall be replaced by "K.A.R. 47-3-42(a)(3) through (10)."

(EEE) "§§773.9 through 773.11 of this part" shall be replaced by "K.A.R. 47-3-42(a)(5) through (7)."

(FFF) "§§773.13 and 773.14 of this part" shall be replaced by "K.A.R. 47-3-42(a)(9) and (10)."

(GGG) "§§773.21 or 774.11(f) of this subchapter" shall be replaced by "K.A.R. 47-3-42(a)(14) and K.A.R. 47-6-11(a)(1)."

(HHH) "§§773.22 and 773.23 of this part" shall be replaced by "K.A.R. 47-3-42(a)(15) and (16)."

(III) "§§773.25 through 773.27 of this part" shall be replaced by "K.A.R. 47-3-42(a)(17) through (19)."

(JJJ) "§§773.26 and 773.27 of this part" shall be replaced by "K.A.R. 47-3-42(a)(18) and (19)."

(KKK) "§§773.27 and 773.28 of this part" shall be replaced by "K.A.R. 47-3-42(a)(19) and (20)."

(LLL) "§§778.11 and 778.12(c) of this subchapter" shall be replaced by "K.A.R. 47-3-42(a)(22) and (23)."

(MMM) "§§778.11 through 778.14 of this part" shall be replaced by "K.A.R. 47-3-42(a)(22) through (25)."

(NNN) "§§780.25(a)(2), 780.25(a)(3), 780.35, 816.73(c), 816.74(c), and 816.81(c) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(51) and (57) and K.A.R. 47-9-1(c)(23) and (25)."

(OOO) "§§816.41 through 816.43" shall be replaced by "K.A.R. 47-9-1(c)(6) through (8)."

(PPP) "§§816.61 through 816.68 of this chapter" shall be replaced by "K.A.R. 47-9-1 (c)(16) through (21)."

(QQQ) "§§816.81 and 816.83 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(25) and (26)."

(RRR) "§§816.81 and 816.84 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(25) and (27)."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405 and 49-427; implementing K.S.A. 49-405, K.S.A. 2018 Supp. 49-406, K.S.A. 49-407 and 49-427; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended May 1, 1985; amended May 1, 1986; amended May 1, 1988; amended Feb. 11, 1991; amended May 2, 1997; amended July 31, 1998; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Article 4 Public Hearings

Kan. Admin. Regs. § 47-4-14a Administrative hearing procedure

(a) Appeals and applications. This article and articles 5, 6, and 15 shall govern the procedure used in all administrative hearings resulting from the following actions:

(1) Petitions for review of proposed civil penalty assessments issued by the secretary;

(2) applications for review of notices of violation and orders of cessation or modification, vacation or termination of notices of violation, and orders of cessation;

(3) applications for review of the secretary's decision to disapprove, suspend, or revoke a permit;

(4) applications for temporary relief;

(5) applications for review of alleged discriminatory acts;

(6) petitions for award of costs and expenses;

(7) appeals from initial orders or decisions of presiding officers; and

(8) all other appeals and review procedures authorized by the act.

(b) Definition. As used in these regulations, the following definition shall apply: "Party" means either of the following:

(1) The person to whom an order, notice of violation, civil penalty assessment, suspension of permit, revocation of permit, or petition for award of costs and expenses is specifically directed; or

(2) a person named or allowed to intervene as a party to a state agency proceeding or allowed to intervene as a party in a proceeding.

(1) Hearing location. Hearings shall be held in the location designated by the presiding officer, giving due consideration to the convenience of the parties and their representatives and witnesses, except as otherwise provided by the state act.

(2) Document filing. All documents that are to be filed in a proceeding governed by this article shall be filed with the office of administrative hearings, a division of the Kansas department of administration, in Topeka, Kansas.

(3) Proof of service. A person who has initiated a proceeding under this regulation shall file a proof of service in the form of a registered receipt if by certified or registered mail, or acknowledgement by the party served or verified return when service is made personally. A certificate of service shall be contained in all other documents filed by a party.

(4) Filing date. The effective filing date of a notice of appeal or petition for review shall be the date of receipt by the administrative appeals section if filed personally, or the postmark date if filed by mail. The burden of establishing the date of mailing shall be on the person filing the document.

(5) Document information. All documents shall be captioned with the following information:

(A) The name of the party;

(B) the name of the facility, mine, or site to which the document pertains; and

(i) The number of the notice, order, or other agency decision or action to which the appeal pertains;

(ii) the case number assigned to the original agency action; and

(iii) any other identifying information, including permit number.

(6) Service.

(A) Copies of documents that initiate a proceeding shall be served upon all parties by registered or certified mail, return receipt requested.

(B) Copies of all subsequent documents shall be served personally or by first-class mail.

(D) If an attorney has entered an appearance on behalf of a party, thereafter service shall be made upon the attorney.

(7) Intervention. Any person may petition for leave to intervene in a proceeding. Each petition shall set out the interest of the petitioner and the manner in which the petitioner's interest is or could be affected.

(A) The presiding officer shall grant intervention if the petitioner fulfills these requirements:

(i) Had a statutory right to initiate the proceeding into which the petitioner seeks intervention; or

(ii) has an interest that is or could be adversely affected by the outcome of the proceeding.

(B) If paragraphs (c)(7)(A)(i) and (c)(7)(A)(ii) of this regulation are not applicable, the presiding officer shall consider the following to determine if intervention is appropriate:

(i) The nature of the issues;

(ii) the adequacy of the representation of petitioner's interest provided by the existing parties;

(iii) the ability of the petitioner to present relevant evidence and argument; and

(iv) the effect of intervention on the agency's implementation of its statutory duties.

(D) The presiding officer shall determine the extent and terms of limited participation by an intervenor.

(8) Voluntary dismissal. Any party who initiated a proceeding may withdraw it by moving to dismiss. The presiding officer may grant such a motion.

(9) Pleadings, motions, briefs; service. At appropriate stages of the proceeding, each party shall be given full opportunity to file pleadings, motions, and objections.

(A) Each pleading and motion shall be submitted in writing and shall state concisely the supporting grounds.

(B) Each party shall have 15 days from the date of service of the pleading in which to file a response, unless otherwise ordered by the presiding officer.

(D) Each motion shall be ruled upon expeditiously.

(E) At appropriate stages, each party shall be given full opportunity to file briefs, proposed findings of fact and conclusions of law, and proposed initial and final orders.

(F) Each document filed pursuant to this subsection shall be served on all parties by mail or any other means prescribed in this regulation.

(10) Consolidation. When pending proceedings involve a common question of fact or law, the proceedings shall be consolidated pursuant to a motion by a party or the presiding officer.

(11) Waiver of hearing. Any person entitled to a hearing may waive this right in writing. Any person required to file a responsive pleading who fails to do so by the required time may be deemed to have waived the person's right to a hearing. Unless all parties who are entitled to a hearing waive these rights or are deemed to have waived these rights, a hearing shall be held.

(d) Formal hearings. If a statute provides for a hearing in accordance with these regulations, the hearing shall be governed by this subsection.

(1) Participation and representation.

(A) Each party shall participate in the hearing in person or, if the party is a corporation or other artificial person, by a duly authorized representative.

(B) Whether or not participating in person, any party may be represented at the party's own expense by counsel or, if permitted by law, other representative.

(2) Presiding officer.

(A) An administrative hearing officer from the office of administrative hearings shall be the presiding officer.

(B) Each person serving or designated to serve alone or with others as presiding officer shall be subject to disqualification for administrative bias, prejudice, or interest.

(C) Any party may petition for the disqualification of a presiding officer promptly after receipt of notice indicating that the person will preside or promptly upon discovering facts establishing grounds for disqualification, whichever is later.

(D) Each presiding officer whose disqualification is requested shall determine whether or not to grant the petition, stating facts and reasons for the determination. If the presiding officer fails to grant a petition for disqualification, the petitioning party may file an affidavit of personal bias or disqualification with substantiating facts, and the matter of disqualification shall be determined by the secretary.

(E) If a substitute is required for a presiding officer who is disqualified or becomes unavailable for any reason, each action taken by a duly appointed substitute for a disqualified or unavailable presiding officer shall be as effective as if taken by the disqualified or unavailable presiding officer.

(3) Prehearing conference; notice. The presiding officer designated to conduct the hearing may conduct a prehearing conference. If the conference is conducted, the presiding officer for the prehearing conference shall set the time and place of the conference and give reasonable notice to all parties and to all persons who have filed written petitions to intervene in the matter.

(4) Prehearing conference. The prehearing conference notice shall include the following:

(A) The names and mailing addresses of all parties and other persons to whom notice is being given by the presiding officer;

(B) the name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the state agency;

(C) the official file or other reference number, the name of the proceeding, and a general description of the subject matter;

(D) a statement of the time, place, and nature of the prehearing conference;

(E) a statement of the legal authority and jurisdiction under which the prehearing conference and hearing are to be held;

(F) the name, official title, mailing address, and telephone number of the presiding officer for the prehearing conference;

(G) a statement that any party who fails to attend or participate in a prehearing conference, hearing, or other stage of an adjudicative proceeding shall be held in default; and

(H) a notice that may include any other matters that the presiding officer considers desirable to expedite the proceedings.

(5) Prehearing conference procedure; prehearing order.

(A) The presiding officer may conduct all or part of the prehearing conference by telephone or other electronic means if each participant in the conference has an opportunity to participate in the entire proceeding while it is taking place.

(B) The presiding officer shall conduct the prehearing conference, as shall be appropriate, to deal with matters including the following:

(i) Exploration of settlement possibilities;

(ii) preparation of stipulations;

(iii) clarification of issues;

(iv) rulings on identity and limitation of the number of witnesses;

(v) objections to proffers of evidence;

(vi) determination of the extent to which direct evidence, rebuttal evidence, or cross-examination will be presented in written form and the extent to which telephone or other electronic means will be used as a substitute for proceedings in person;

(vii) order of presentation of evidence and cross-examination;

(viii) rulings regarding issuance of subpoenas;

(ix) discovery orders and protective orders; and

(x) any other matters that will promote the orderly and prompt conduct of the hearing.

(C) The presiding officer shall issue a prehearing order incorporating the matters determined at the pre-hearing conference.

(D) If a prehearing conference is not held, the presiding officer for the hearing shall issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.

(6) Notice of administrative hearing.

(A) The time and place of the hearing shall be set by the presiding officer. Reasonable written notice at least 10 days before the hearing shall be given to all parties and to all persons who have filed written petitions to intervene in the matter. Service of notices shall be made in accordance with paragraph (d)(18) of this regulation.

(B) The notice shall include a copy of any prehearing order rendered in the matter.

(i) The names and mailing addresses of all parties and other persons to whom notice is being given by the presiding officer;

(ii) the name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the state agency;

(iii) the official file or other reference number, the name of the proceeding, and a general description of the subject matter;

(iv) the time, place, and nature of the hearing;

(v) the legal authority and jurisdiction under which the hearing is to be held;

(vi) the name, official title, mailing address, and telephone number of the presiding officer;

(vii) the issues involved and, to the extent known to the presiding officer, the matters asserted by the parties; and

(viii) a statement that any party who fails to attend or participate in a prehearing conference, hearing, or other stage of an adjudicative proceeding shall be held in default.

(D) The notice may include any other matters that the presiding officer considers desirable to expedite the proceedings.

(E) The presiding officer shall cause notice to be given to any other person entitled to notice under any other provisions of law who has not been given notice under paragraph (d)(6)(A) of this regulation, as follows:

(i) Notice under this subsection shall be given in the manner specified by these regulations or, if no such manner is specified, in a manner determined by the office of administrative hearings, a division of the Kansas department of administration.

(ii) If any person other than the agency is directed to give notice under this subsection, the agency shall require that the person furnish proof of service.

(iii) Notice under this subsection may include all types of information provided in paragraphs (d)(6)(A) through (D) of this regulation or may consist of a brief statement indicating the subject matter, parties, time, place where the hearing will be held, locations where the general public may meet for hearings that are conducted electronically, nature of the hearing, manner in which copies of the notice to the parties may be inspected and copied, and the name and telephone number of the presiding officer.

(iv) Notice of the hearing shall be posted by the department at the surface mining section office and, where practicable, shall be published in a newspaper of general circulation in the area of the mine at least seven days before the hearing.

(7) Default.

(A) If a party fails to attend or participate in a prehearing conference, hearing, or other adjudicative proceeding, the presiding officer may serve all parties with written notice of the proposed default order, including the grounds for default.

(B) Within seven days after service of a proposed default order, the party against whom the order was issued may file a written motion requesting that the proposed default order be vacated and stating the grounds relied upon. During this period, the presiding officer may adjourn the proceedings or conduct them without the participation of the defaulting party, having due regard for the interests of justice and the orderly and prompt conduct of the proceedings.

(D) Once a default order becomes effective, the presiding officer may conduct any proceedings necessary to complete the adjudication and determine all issues in the adjudication, including those affecting the defaulting party without the defaulting party's participation. In lieu of determining the issues affecting the defaulting party, the presiding officer may dismiss the party's application for an adjudicative proceeding, unless otherwise prohibited by law.

(8) Certification of interlocutory ruling. On the presiding officer's or a party's motion, a ruling may be certified to the secretary if that ruling presents a controlling question of law and if immediate appeal would materially advance the ultimate disposition of the case.

(9) Summary judgment. Any party may move for summary decision, in whole or in part, after a proceeding has begun.

(A) The moving party shall verify each allegation of fact with at least one supporting affidavit, unless reliance is upon depositions, answers to interrogatories, admissions, or documents produced upon request to verify each allegation.

(B) The presiding officer shall grant such a motion for summary judgment if the record, including pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows both of the following:

(i) There is no disputed issue as to any material fact.

(ii) The moving party is entitled to a summary decision as a matter of law.

(C) If a complete summary decision is not granted and an evidentiary hearing is necessary, the presiding officer shall, if practicable, perform the following:

(i) Examine all relevant evidence and documents in the record;

(ii) ascertain what material facts are controverted in good faith;

(iii) issue an order specifying those facts that are not substantially controverted; and

(iv) direct any further proceedings that the presiding officer determines are necessary.

(10) Proceedings. The presiding officer shall meet the following requirements:

(A) Shall regulate the proceedings;

(B) shall afford to each party the opportunity to respond, present evidence and argument, conduct cross-examination, and submit rebuttal evidence, to the extent necessary for full disclosure of all relevant facts and issues, except as restricted by a limited grant of intervention or by the prehearing order;

(C) may, and when required by statute shall, give nonparties an opportunity to present oral or written statements. When the presiding officer proposes to consider a statement by a nonparty, the following shall apply:

(i) Each party shall have an opportunity to challenge or rebut the statement; and

(ii) any party may, by motion, require the statement to be given under oath or confirmation;

(D) may conduct all or part of the hearing by telephone or other electronic means, if each participant in the hearing has an opportunity to participate in the entire proceeding;

(E) shall cause the hearing to be recorded at the state agency's expense. The state agency shall not be required, at its expense, to prepare a transcript, unless required to do so by any other provision of law. Any party, at the party's expense and subject to any reasonable conditions that the state agency may establish, may cause a person other than the state agency to prepare a transcript from the state agency's record, or cause additional recordings to be made during the hearing; and

(F) may close parts of the hearing from public observation only when a provision of the law expressly authorizes closure.

(11) Proposed findings of fact and conclusions of law. The presiding officer shall allow the parties to submit proposed findings of fact and conclusions of law with a supporting brief at a time set forth by the presiding officer.

(12) Evidence; official notice.

(A) A presiding officer shall not be bound by the statutory rules of evidence, but shall give the parties reasonable opportunity to be heard and to present evidence, and the presiding officer shall act reasonably without partiality. The presiding officer shall give effect to the rules of privilege recognized by law. Evidence shall not be excluded solely because it is hearsay.

(B) All testimony of parties and witnesses shall be made under oath or affirmation, and the presiding officer shall have the power to administer an oath or affirmation for that purpose.

(C) Statements presented by nonparties in accordance with paragraph (d)(10)(C) of this regulation shall be received as evidence.

(D) Any part of the evidence may be received in written form if doing so will expedite the hearing without substantial prejudice to the interests of any party.

(E) Documentary evidence shall be received in the form of a copy or excerpt. Upon request, parties shall be given an opportunity to compare the copy with the original, if available.

(F) Official notice shall be taken of the following:

(i) Any matter that could be judicially noticed in the courts of this state;

(ii) the record of other proceedings before the state agency;

(iii) technical or scientific matters within the state agency's specialized knowledge; and

(iv) codes of standards that have been adopted by an agency of the United States, of this state or of another state, or by a nationally recognized organization or association. Each party shall be notified before or during the hearing, or before the issuance of any initial or final order that is based in whole or in part on matters or material noticed, of the specific matters or material noticed and the source, including any staff memoranda and data. Each party shall be afforded an opportunity to contest and rebut the matters or material so noticed.

(13) Orders, initial and final.

(A) If the presiding officer is the agency head, the presiding officer shall render a final order.

(B) If the presiding officer is not the agency head, the presiding officer shall render an initial order, which shall become a final order unless reviewed in accordance with paragraph (d)(14) of this regulation.

(C) Each final order or initial order shall include, separately stated, findings of fact, conclusions of law, and policy reasons for the decision if the order is an exercise of the state agency's discretion, for all aspects of the order, including the remedy prescribed and, if applicable, the action taken on a petition for stay of effectiveness. Findings of fact, if set forth in language that is no more than mere repetition or paraphrase of the relevant provision of law, shall be accompanied by a concise and explicit statement of the underlying facts of record to support the findings. The order shall also include a statement of the available procedures and time limits for seeking reconsideration, administrative review, or other administrative relief. Each initial order shall include a statement of any circumstances under which the initial order, without further notice, may become a final order.

(D) Findings of fact shall be based exclusively upon the evidence of record in the adjudicative proceeding and on matters officially noticed in that proceeding.

(E) If a substitute presiding officer is appointed, the substitute presiding officer shall use any existing record and may conduct any further proceedings appropriate in the interests of justice.

(F) The presiding officer shall allow the parties to a proceeding to have an opportunity to submit proposed findings of fact and conclusions of law together with a supporting brief at a time designated by the presiding officer.

(G) A final order or initial order pursuant to this regulation shall be rendered in writing and served within 30 days after conclusion of the hearing or after submission of proposed findings in accordance with paragraph (d)(13)(F) of this regulation, unless this period is waived or extended with the written consent of all parties or for good cause shown.

(H) The presiding officer shall cause copies of the order to be served on each party and, if the order is an initial order, the agency head in the manner prescribed by paragraph (d)(18) of this regulation.

(14) Review of initial order; exceptions to reviewability.

(A) Upon the secretary's or secretary's designee's own motion, any initial order may be reviewed by the secretary or secretary's designee, unless paragraph (d)(14)(A)(i) or (ii) applies. If any party petitions for review of an initial order or if the law requires the review of an initial order by the secretary or secretary's designee, unless either of the following paragraphs applies:

(i) A provision of law precludes or limits review of the initial order; or

(ii) the secretary or secretary's designee determines to review some but not all issues, or not to exercise any review, or delegates the authority to review the initial order to one or more persons, unless this delegation is expressly prohibited by law, or authorizes one or more persons to review the initial order, subject to further review by the secretary or secretary's designee.

(B) A petition for review of an initial order shall be filed with the secretary or secretary's designee, or with any person designated for this purpose by regulation of the department, within 15 days after service of the initial order. If the secretary or secretary's designee on that individual's own motion decides to review an initial order, written notice of that individual's intention to review the initial order shall be given by the secretary or designee within 15 days after the initial order is issued. If the secretary or secretary's designee determines not to review an initial order in response to a petition for review, within 20 days after the filing of the petition for review, an order stating that review will not be exercised shall be served on each party by the secretary or designee.

(C) The petition for review shall state its basis. If the secretary or secretary's designee on that individual's own motion gives notice of its intent to review an initial order, the issues intended for review shall be specified by that individual.

(D) In reviewing an initial order, all the decision-making power that the secretary or secretary's designee would have had to render a final order had the secretary presided over the hearing shall be exercised by the secretary or designee, except to the extent that the issues subject to review are limited by a provision of law or by the secretary or secretary's designee upon notice to all parties.

(E) Each party shall be afforded an opportunity to present briefs and an opportunity to present oral argument by the secretary or designee.

(F) A final order disposing of the proceeding shall be rendered by the secretary or designee, or the matter shall be remanded by the secretary or designee for further proceedings with instructions to the presiding officer who rendered the initial order. When a matter is remanded, any temporary relief that is authorized and appropriate shall be ordered by the secretary or designee.

(G) A final order or an order remanding the matter for further proceedings shall be rendered in writing and served within 30 days after receipt of briefs and oral argument, unless that period is waived or extended with written consent of all parties or for good cause shown.

(H) A final order or an order remanding the matter for further proceedings under this article shall identify any difference between this order and the initial order and shall include, or incorporate by express reference to the initial order, all the matters required by paragraph (d)(13)(C) of this regulation.

(I) Copies of the final order or order remanding the matter for further proceedings shall be caused to be served on each party by the secretary or designee in the manner prescribed by paragraph (d)(18) of this regulation.

(15) Stay. A party may submit to the presiding officer or secretary or secretary's designee a petition for stay of effectiveness of an initial or final order until the time at which a petition for judicial review would no longer be timely, unless otherwise provided by statute or stated in the initial or final order. Action may be taken on the petition for stay by the presiding officer or by the secretary or designee, either before or after the effective date of the initial or final order.

(16) Reconsideration.

(A) Each party, within 15 days after service of a final order, may file a petition for reconsideration with the secretary or secretary's designee, stating the specific grounds upon which relief is requested. The filing of the petition shall not be a prerequisite for seeking administrative or judicial review.

(B) A written order denying the petition, granting the petition and dissolving or modifying the final order, or granting the petition and setting the matter for further proceedings shall be rendered by the secretary. The petition may be granted, in whole or in part, only if the secretary states, in the written order, findings of fact, conclusions of law, and policy reasons for the decision if it is an exercise of the secretary's discretion, to justify the order. The petition shall be deemed to have been denied if the secretary does not dispose of the petition within 20 days after the filing of the petition.

(C) Each order under these regulations shall be served on the parties in the manner prescribed by paragraph (d)(18) of this regulation.

(17) Orders, when effective.

(A) Unless a later date is stated in a final order or a stay is granted, each final order shall be effective upon service.

(B) Unless a later date in an initial order or a stay is granted, an initial order shall become effective and shall become the final order under these circumstances:

(i) When the initial order is served, if administrative review is unavailable;

(ii) when the secretary serves an order stating, after a petition for review has been filed, that review will not be exercised; or

(iii) when, 30 days after service of the initial order, no party has filed a petition for review by the secretary, the secretary has not given written notice of its intent to exercise review, and review by the secretary is not otherwise required by law.

(18) Service of order. Service of an order or notice shall be made upon the party and the party's attorney of record, if any, by delivering a copy of the order or notice to the person to be served or by mailing a copy of the order or notice to the person at the person's last known address. Delivering a copy of the order or notice shall mean handing the order or notice to the person or leaving the order or notice at the person's principal place of business or residence and with a person of suitable age and discretion who works or resides there. Service shall be presumed if the presiding officer, or a person directed to make service by the presiding officer, makes a written certificate of service. Service by mail shall be complete upon mailing. Whenever a party has the right or is required to perform some act or file a petition within a prescribed period after service of a notice or order and the notice or order is served by mail, three days shall be added to the prescribed period.

(19) Record.

(A) An official record of each formal hearing shall be maintained by the department.

(B) The record shall consist of only these items:

(i) The notices of all proceedings;

(ii) any prehearing order;

(iii) any motions, pleadings, briefs, petitions, requests, and intermediate rulings;

(iv) all evidence received or considered;

(v) a statement of matters officially noticed;

(vi) proffers of proof and objections and rulings on the proffers;

(vii) proposed findings, requested orders, and exceptions;

(viii) the record prepared for the presiding officer at the hearing, together with any transcript of all or part of the hearing considered before final disposition of the proceeding;

(ix) any final order, initial order, or order on reconsideration; and

(x) staff memoranda or data submitted to the presiding officer.

(C) Except to the extent that these regulations or another statute provides otherwise, the department's record, excluding matters under paragraph (d)(19)(B)(x) of this regulation, shall constitute the exclusive basis for the department's action in formal hearings and for judicial review of the department's action.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405, 49-407, and 49-416a; effective Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006.)

Kan. Admin. Regs. § 47-4-15 Administrative hearings; discovery

Discovery shall be permitted to the extent allowed by the presiding officer or as agreed to by the parties. (a) Requests for discovery shall be made in writing to the presiding officer, and a copy of each request for discovery shall be served on the party or person against whom discovery is sought. The presiding officer may specify the times during which the parties may pursue discovery and respond to discovery requests. The presiding officer may issue subpoenas, discovery orders, and protective orders in accordance with the rules of civil procedure.

(b) Subpoenas issued by the presiding officer shall be served by a person designated by the presiding officer or any other person who is not a party and is not less than 18 years of age. Service shall be in person and at the expense of the requesting party. Proof of service shall be shown by affidavit.

(c) Subpoenas and orders issued by the presiding officer shall be enforced pursuant to the provisions of the act for judicial review and civil enforcement of agency actions pursuant to K.S.A. 77-601 et seq., as amended.

(d) Discovery methods. Parties may obtain discovery by one or more of the following methods:

(1) depositions upon oral examination or upon written interrogatories;

(2) written interrogatories;

(3) production of documents or items, or permission to enter upon land or other property for inspection and other purposes; and

(4) requests for admission.

(e) Time for discovery. Following the initiation of a proceeding, the parties may initiate discovery at any time so long as it does not interfere with the conduct of the hearing.

(f) Scope of discovery.

(1) Unless otherwise limited by order of the presiding officer in accordance with these regulations, the parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible items, and the identity and location of persons having knowledge of any discoverable matter.

(2) It shall not be grounds for objection that information sought will not be admissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(3) A party may obtain discovery of documents and tangible items otherwise discoverable under subsection (f)(1) of this regulation and prepared in anticipation of or for the hearing by or for another party's representative, including a party's attorney, consultant, surety, indemnitor, insurer, or agent. This discovery shall occur only upon a showing that the party seeking discovery has substantial need of the materials for the preparation of a party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the presiding officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.

(g) Protective order. Upon motion by a party or the person from whom discovery is sought, and for good cause shown, the presiding officer may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) the discovery not be had;

(2) the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) the discovery may be had only by a method of discovery other than the method selected by the party seeking discovery;

(4) certain matters not relevant may not be inquired into, or the scope of discovery be limited to certain matters;

(5) discovery be conducted with no one present except persons designated by the presiding officer; or

(6) a trade secret or other confidential research, development, or commercial information may not be disclosed or may be disclosed only in a designated way.

(h) Sequence and timing of discovery. Unless the presiding officer upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence. The fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

(i) Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the party's response to include information thereafter acquired, except as follows.

(1) A party shall be under a duty to timely supplement the party's response with respect to any question directly addressed to the following:

(A) the identity and location of persons having knowledge of discoverable matters; or

(B) the identity of each person expected to be called as an expert witness at the hearing, the subject matter on which the expert witness is expected to testify, and the substance of the expert's testimony.

(2) A party shall timely amend a prior response if the party later obtains information upon the basis of which either condition applies:

(A) the party knows the response was incorrect when made; or

(B) the party knows that the response, though correct when made, is no longer true, and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

(3) A duty to supplement responses may be imposed by order of the presiding officer or agreement of the parties.

(j) Motion to compel discovery.

(1) If a deponent fails to answer a question propounded, or if a party upon whom a request is made pursuant to subsection (d)(3) of this regulation or a party upon whom answers to interrogatories are served fails to adequately respond or objects to the request, or any part thereof, or fails to permit inspection as requested, the discovering party may move the presiding officer for an order compelling a response or inspection in accordance with the request.

(2) The motion shall set forth the following:

(A) the nature of the questions or request;

(B) the response or objection of the party upon whom the request was served; and

(3) For purposes of this section, an evasive answer or an incomplete answer or response shall be treated as a failure to answer or respond.

(4) In ruling on a motion made pursuant to this section, the presiding officer may make such protective orders as the presiding officer is authorized to make on a motion made pursuant to K.A.R. 47-4-15(g).

(k) Failure to comply with orders compelling discovery. If a party or an officer, director, or other agent of a party fails to obey an order to provide or permit discovery, the presiding officer before whom the action is pending may make such orders in regard to the failure as are just, including the following:

(1) an order that the matters sought to be discovered or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing designated matters into evidence; or

(3) an order striking out pleadings or parts of pleadings, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of the action or proceeding, or rendering a judgment by default against the disobedient party.

(l) Depositions upon oral examination or upon written questions.

(1) Any party desiring to take the testimony of any other party or other person by deposition upon oral examination or written questions shall, without leave of the presiding officer, give reasonable notice in writing to every other party, to the person to be examined and to the presiding officer, of the following:

(A) the proposed time and place of taking the deposition;

(B) the name and address of each person to be examined, if known, or if the name is not known, a general description sufficient to identify the person or the particular group or class to which the person belongs;

(D) the name or descriptive title and address of the officer before whom the deposition is to be taken.

(2) A deposition may be taken before any officer authorized to administer oaths by the laws of the United States or by those of the place where the examination is held.

(3) The actual taking of the deposition shall proceed as follows.

(A) The deposition shall be on the record.

(B) The officer before whom the deposition is to be taken shall put the witness under oath or affirmation.

(D) Each objection made at the time of the examination shall be noted by the officer.

(E) The officer shall not rule on objections to the evidence, but evidence objected to shall be taken subject to the objections.

(4) When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature, unless examination and signature are waived by the deponent. The officer shall certify the deposition or, if the deposition is not signed by the deponent, shall certify the reasons for the failure to sign.

(5) When the deposition is to be taken on written questions, the party taking the deposition shall serve a copy of the questions, showing each question separately and consecutively numbered, on every other party with a notice stating the name and address of the person who is to answer the questions, and the name, description, title, and address of the officer before whom the questions are to be taken. Within 30 days after service, any other party may serve cross-questions. The questions, cross-questions, and answers shall be recorded and signed, and the deposition certified, as in the case of a deposition on oral examination.

(6) A deposition shall not become a part of the record in the hearing unless received in evidence. If only part of a deposition is offered in evidence by a party, any other party may introduce any other parts.

(7) A deponent whose deposition is taken and the officer taking a deposition shall be entitled to the same fees as are paid for like services in the district courts of the United States, to be paid by the party at whose request the deposition is taken.

(8) The deponent may be accompanied, represented, and advised by legal counsel.

(m) Use of depositions. At the hearing, any part or all of a deposition, so far as admissible, may be used against any party who was present or represented at the taking of the deposition, or who had reasonable notice of the deposition, in accordance with any of the following provisions.

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness.

(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or a person designated to testify on behalf of a public or private corporation, partnership, or association or governmental agency that is a party may be used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be used by a party for any purpose if the presiding officer finds that any of these conditions occur:

(A) the witness is dead;

(B) the witness is at a distance greater than 100 miles from the place of hearing, or is outside the United States, unless it appears that the absence of the witness was procured by the party offering the deposition;

(D) the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

(E) such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally at the hearing, to allow the deposition to be used.

(n) Written interrogatories to parties.

(1) Any party may serve upon any other party written interrogatories to be answered in writing by the party served, or if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish the requested information that is available to the party. A copy of the interrogatories, answers, and all related pleadings shall be served on the presiding officer and upon all parties to the proceeding.

(2) Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answer and objections shall be signed by the person making them. The party upon whom the interrogatories were served shall serve a copy of the answers and objections upon all parties to the proceeding within 30 days after service of the interrogatories, or within a shorter or longer period that the presiding officer may allow.

(3) Interrogatories may relate to any matters that can be inquired into under subsection (f) of this regulation. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact. However, the presiding officer may order that such an interrogatory need not be answered until after the completion of designated discovery or until a prehearing conference or other later time.

(o) Production of documents and items, and entry upon land for inspection and other purposes.

(1) Any party may serve on any other party a request to perform the following:

(A) produce and permit the party making the request, or a person acting on the party's behalf, to inspect and copy any designated document, or to inspect and copy, test, or sample any tangible items within the scope of subsection (f) above of this regulation, that are in the possession, custody, or control of the party upon whom the request is served; or

(B) permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property, including the air, water, and soil, or any designated object or operation on the land, within the scope of subsection (f) of this regulation.

(2) The request may be served on any party without leave of the presiding officer.

(3) The request shall fulfill these requirements:

(A) set forth the items to be inspected either by individual item or by category;

(B) describe each item or category with reasonable particularity; and

(4) The party upon whom the request is served shall serve a written response on the party submitting the request within 30 days after service of the request.

(5) The response shall state the following, with respect to each item or category:

(A) that inspection and related activities will be permitted as requested; or

(B) that objection is made in whole or in part, in which case the reasons for objection shall be stated.

(p) Request for admissions.

(1) A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the genuineness and authenticity of any relevant document described in or attached to the request, or for the admission of the truth of any specified relevant matter of fact.

(2) Each matter of which an admission is requested shall be admitted unless, within 30 days after service of the request or shorter or longer time that the presiding officer may allow, the party to whom the request is directed serves on the requesting party the following:

(A) a sworn statement denying specifically the relevant matters of which an admission is requested;

(B) a sworn statement setting forth in detail the reasons why the party can neither truthfully admit nor deny the matters; or

(C) written objections on the grounds that some or all of the matters involved are privileged or irrelevant or that the request is otherwise improper in whole or in part.

(3) An answering party shall not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.

(4) The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the presiding officer determines that an objection is justified, the presiding officer shall order that an answer be served. If the presiding officer determines that an answer does not comply with the requirements of this section, the presiding officer may order either that the matter is admitted or that an amended answer be served. The presiding officer may, in lieu of these orders, determine that final disposition of the request be made at a prehearing conference or at a designated time before hearing.

(5) Any matter admitted under this section shall be conclusively established unless the presiding officer on motion permits withdrawal or amendment of the admission.

(6) Any admission made by a party under this section shall be for the purpose of the pending action only and shall not be an admission by the party for any other purpose. The admission shall not be used against the party in any other proceeding.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; and implementing K.S.A. 49-405, 49-407, and 49-416a; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-4-16 Interim orders for temporary relief

(a) An interim order for temporary relief may be issued by the department or a presiding officer, on its own initiative or on written request, when there has been a showing of good cause. An interim order shall not be granted in permit application cases in which the relief sought is issuance of a permit that has been denied in whole or in part by the department.

(b) Unless otherwise specified by statute, an interim order for temporary relief shall be effective for 30 days at most if a hearing is not held on the merits of the issues.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405, 49-407, and 49-416a; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-4-17 Administrative hearings; award of costs and expenses

(a) Any person may file a petition for award of costs and expenses, including attorney fees, reasonably incurred as a result of that person's participation in any administrative proceeding under the state act which results in a final order being issued by the department or its presiding officer. The petition shall be filed within 45 days of receipt of the order. Failure to make a timely filing of the petition may constitute a waiver of the right to an award.

(b) A petition filed under this section shall include the name of the person from whom costs and expenses are sought, and the following shall be submitted in support of the petition:

(1) an affidavit detailing all costs and expenses, including attorney fees, incurred as a result of participation in the proceeding;

(2) receipts or other evidence of the costs and expenses; and

(3) where attorney fees are claimed, the hours expended on the case, the customary commercial rate of payment for services in the locality, and evidence of the experience, reputation, and ability of the attorney or attorneys.

(d) Appropriate costs and expenses, including attorney fees, may be awarded as follows:

(1) from the permittee, if the person initiates any administrative proceedings, or participates in the proceedings, upon a finding that a violation of the state act, of these regulations, or of the permit has occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding in which such a finding is made if the department or its presiding officer determines that the person made a substantial contribution to the full and fair determination of the issues;

(2) from the department to anyone other than the permittee or permittee's representative, if the person initiates or participates in any proceeding under the act upon a finding that the person made a substantial contribution to a full and fair determination of the issues;

(3) from the department to the permittee when the permittee demonstrates that the department issued an order of cessation, a notice of violation, or an order to show cause why a permit should not be suspended or revoked, in bad faith and for the purpose of harassing or embarrassing the permittee;

(4) to a permittee from any person when the permittee demonstrates that the person initiated a proceeding or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee; or

(5) to the department when it demonstrates that any person applied for review or participated in an administrative proceeding in bad faith and for the purpose of harassing or embarrassing the department or any person employed by the department.

(e) An award may include all costs and expenses, including attorney fees and expert witness fees, reasonably incurred as a result of initiation of or participation in a proceeding under the state act.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405, 49-407 and 49-416a; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended Feb. 11, 1991; amended May 2, 1997.)

Article 5 Civil Penalties

Kan. Admin. Regs. § 47-5-5a Civil penalties; adoption by reference

(a) Subject to the provisions of subsection (c), the following federal regulations, as in effect on July 1, 2012, are adopted by reference, except as otherwise specified:

(1) How assessments are made, 30 C.F.R. 845.11;

(2) when penalty will be assessed, 30 C.F.R. 845.12;

(3) point system for penalties, 30 C.F.R. 845.13;

(4) determination of amount of penalty, 30 C.F.R. 845.14, except that the table shall be replaced by the following table:

(5) assessment of separate violations for each day, 30 C.F.R. 845.15, except that the statement "a civil penalty of not less than $1,025 shall be assessed for each day during which such failure to abate continues" shall be replaced by "a civil penalty of not less than $750 shall be assessed for each day during which such failure to abate continues";

(6) waiver of use of formula to determine civil penalty, 30 C.F.R. 845.16;

(7) procedures for assessment of civil penalties, 30 C.F.R. 845.17;

(8) procedures for assessment conference, 30 C.F.R. 845.18. However, the following sentence shall be deleted: "The assessment conference shall not be governed by section 554 of title 5 of the United States Code, regarding requirements for formal adjudicatory hearings." The following sentence shall be added: "The conference officer shall be selected by the department";

(9) request for hearing, 30 C.F.R. 845.19. However, subsection (b) shall be replaced by the following text: "(b) The department shall hold all funds submitted under paragraph (a) of this section in escrow pending completion of the administrative and judicial review process, at which time it shall disburse them as provided in K.A.R. 47-5-16";

(10) when an individual civil penalty may be assessed, 30 C.F.R. 846.12;

(11) amount of individual civil penalty, 30 C.F.R. 846.14;

(12) procedure for assessment of individual civil penalty, 30 C.F.R. 846.17;

(13) payment of penalty, 30 C.F.R. 846.18. However, subsection (d) shall be replaced by the following text:

"(d)(1) Delinquent payment. Following the expiration of 30 days after the issuance of a final order assessing an individual civil penalty, any delinquent civil penalty shall be subject to interest at the rate established quarterly by the U.S. department of the treasury for use in applying late charges on later payments to the federal government, pursuant to the treasury financial manual 6-8020.20. The treasury current value of funds rate is published by the fiscal service in the notices section of the federal register. Interest on unpaid civil penalties will run from the date payment first was due until the date of payment. Failure to pay overdue civil penalties may result in one or more of the following actions, which are not exclusive:

"(i) Initiation of litigation;

"(ii) reporting to the internal revenue service;

"(iii) reporting to state agencies responsible for taxation;

"(iv) reporting to credit bureaus; or

"(v) referral to collection agencies.

"(2) If a civil penalty debt is greater than 91 days overdue, a six percent per annum penalty shall begin to accrue on the amount owed for fees and shall run until the date of payment. This penalty is in addition to the interest described in this regulation.

"(3) For all delinquent penalties and interest, the debtor shall be required to pay a processing and handling charge that shall be based on the following components:

"(i) For debts referred to a collection agency, the amount charged to the department by the collection agency;

"(ii) for debts processed and handled by the surface mining section, a standard amount set annually by the department based upon similar charges by collection agencies for debt collection;

"(iii) for debts referred to the office of legal services, Kansas department of health and environment, but paid before litigation, the estimated average cost to prepare the case for litigation at the time of payment;

"(iv) for debts referred to the office of legal services, Kansas department of health and environment, and litigated, the estimated cost to prepare and litigate a debt case at the time of payment;

"(v) if not otherwise provided for, all other administrative expenses associated with collection, including billing, recording payments, and follow-up actions; and

"(vi) no prejudgment interest accrues on any processing and handling charges.";

(14) general provisions, 30 C.F.R. 847.2;

(15) criminal penalties, 30 C.F.R. 847.11. However, the term "Attorney General" shall be replaced with "Kansas attorney general"; and

(16) civil actions for relief, 30 C.F.R. 847.16.

(1)(A) "Act" shall be replaced by "state act."

(B) "Director" and "director or his designee" shall be replaced by "secretary of health and environment or secretary's designee." However, in 30 C.F.R. 846.12, the word "director" shall remain unchanged.

(C) "Hearings Division, Office of Hearings and Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203 (Phone: 703-235-3800)" shall be replaced by "Office of administrative hearings."

(D) "Office," "State or field office," and "office of hearings and appeals" shall be replaced by "department."

(E) "Rule 65 of the Federal Rules of Civil Procedure" shall be replaced by "K.S.A. 60-901 et seq., and amendments thereto."

(F) "Secretary" shall be replaced by "secretary of the Kansas department of health and environment."

(2)(A) "Section 518(a) of the act" shall be replaced by "K.S.A. 49-405c(a)."

(B) "Section 518(e), 518(f), 521(a)(4), or 521(c) of the act" shall be replaced by "K.S.A. 49-405c(e), 49-405c(f), 49-405(m)(3), or 49-405(m)(4), and amendments thereto."

(C) "Section 518(e) and (g) of the act" and "section 518(e) of the Act" shall be replaced by "K.S.A. 49-405c(e) and (g), and amendments thereto."

(D) "Section 521 or 526 of the act" shall be replaced by "K.S.A. 49-405c, 49-405(m), 49-416a, and 49-422a, and amendments thereto."

(E) "Section 521(a) of the act" shall be replaced by "K.S.A. 49-405(m)(2), and amendments thereto."

(F) "Section 521(c) of the act" shall be replaced by "K.S.A. 49-405(m), and amendments thereto."

(G) "Section 525(c) of the act" shall be replaced by "K.S.A. 49-416a(c), and amendments thereto."

(H) "Section 526 of the act" and "section 526(c) of the act" shall be replaced by "K.S.A. 49-422a, and amendments thereto."

(I) "Sections 518, 521(a)(4), and 525 of the act" shall be replaced by "K.S.A. 49-405c, 49-405(m)(3), and 49-416a, and amendments thereto."

(3)(A) "30 CFR 816.11" shall be replaced by "K.A.R. 47-9-1(c)(1)."

(B) "30 CFR 843.16" shall be replaced by "K.A.R. 47-4-14a."

(C) "30 CFR 845.12, 845.13, 845.14, 845.15 and 845.16" shall be replaced by "K.A.R. 47-5-5a(a)(2), (3), (4), (5), and (6)."

(D) "30 CFR 845.12(b)" shall be replaced by "K.A.R. 47-5-5a(a)(2)."

(E) "30 CFR 845.13," "30 CFR 845.13(b)," and "§845.13(b)" shall be replaced by "K.A.R. 47-5-5a(a)(3)."

(F) "30 CFR 845.17(b)" shall be replaced by "K.A.R. 47-5-5a(a)(7)."

(G) "43 CFR 4.1300 et seq." and "rule 4 of the Federal Rules of Civil Procedure" shall be replaced by "K.A.R. 47-4-14a."

(4) "§846.12" shall be replaced by "K.A.R. 47-5-5a(a)(10)."

(c) Review of proposed assessments of civil penalties. If a request for hearing is made pursuant to paragraph (a)(9), the procedures in K.A.R. 47-4-14a and the following shall apply:

(1) Time for filing petition for a hearing.

(A)(i) If a timely request for an assessment conference has been made pursuant to paragraph (a)(8), a request for a hearing shall be made to the department within 30 days of service of notice, by the conference officer, that the conference is completed; or

(ii) a request for a hearing of a proposed assessment of a civil penalty shall be made to the department within 30 days of service of the proposed assessment.

(B) No extension of time shall be granted for filing a petition for review of a proposed assessment of a civil penalty as required by paragraph (c)(1)(A)(i) or (A)(ii). If a petition for review is not filed within the time period provided in paragraph (c)(1)(A)(i) or (A)(ii), all of the following shall apply:

(i) The appropriateness of the amount of the penalty and the fact of the violation if there is no proceeding pending under K.S.A. 49-416a, and amendments thereto, to review the notice of violation or cessation order involved shall be admitted.

(ii) The petition shall be dismissed.

(iii) The civil penalty assessed shall become a final order of the secretary.

(2) Contents of petition; payment required.

(A) The petition shall include the following:

(i) A short and plain statement indicating the reasons why either the amount of the penalty or the fact of the violation is being contested;

(ii) if the amount of penalty is being contested based upon a misapplication of the civil penalty formula, a statement indicating how the civil penalty formula in subsection (a), adopting by reference 30 C.F.R. Parts 845 and 846, was misapplied and a proposed civil penalty utilizing the civil penalty formula;

(iii) the identification by number of each violation being contested;

(iv) the identifying number of the cashier's check, certified check, bank draft, personal check, or bank money order accompanying the petition; and

(v) a request for a hearing.

(B) The petition for a hearing shall be accompanied by the following:

(i) Full payment of the proposed civil penalty in the form of a cashier's check, certified check, bank draft, personal check, or bank money order made payable to the Kansas department of health and environment, to be placed in an escrow account by the department pending final determination of the civil penalty; and

(ii) on the face of the payment, an identification by number of the violations for which payment is being tendered.

(C) As required by K.S.A. 49-405c and amendments thereto, failure to make timely payment of the proposed civil penalty in full shall result in a waiver of all legal rights to contest the violation or the amount of the penalty.

(D) No extension of time shall be granted for full payment of the proposed civil penalty. If payment is not made within the time period provided in paragraph (c)(1)(A)(i) or (A)(ii), all of the following shall apply:

(i) The appropriateness of the amount of the civil penalty, the fact of the violation, and, if there is no review proceeding, the notice of violation or cessation order involved shall be deemed admitted.

(ii) The petition shall be dismissed.

(iii) The civil penalty assessed shall become a final order of the secretary.

(3) Answer. An answer may be filed by the secretary within 30 days of service of the petition.

(4) Review of waiver determination.

(A) Within 10 days of the filing of a petition, the petitioner may move the presiding officer to review the granting or denial of a waiver of the civil penalty formula pursuant to paragraph (a)(6).

(B) The motion shall contain a statement indicating all alleged facts relevant to the granting or denial of a waiver.

(C) Review shall be limited to the written determination of the presiding officer granting or denying the waiver, the motion, and responses to the motion. The standard of review shall be abuse of discretion.

(D) If the presiding officer finds that the secretary abused the secretary's discretion in granting or denying the waiver, the presiding officer shall hold a hearing on the petition for review of the proposed assessment and make a determination pursuant to paragraph (c)(7).

(5) Burden of proof in civil penalty proceedings. In civil penalty proceedings, the following shall apply:

(A) The department shall have the burden of establishing a prima facie case regarding the fact of the violation, the amount of the civil penalty, and the ultimate burden of persuasion regarding the amount of the civil penalty.

(B) The person who petitioned for review shall have the ultimate burden of persuasion regarding the fact of the violation.

(6) Summary disposition.

(A) In a civil penalty proceeding in which the person against whom the proposed civil penalty is assessed fails to comply on time with any prehearing order of a presiding officer, the presiding officer shall issue an order to show cause for the following conditions:

(i) That person should not be deemed to have waived the person's right to a hearing.

(ii) The proceedings should not be dismissed and the assessment should become final.

(B) If the order to show cause is not satisfied as required, the presiding officer shall order the proceedings dismissed and issue a final order.

(C) If the person against whom the proposed civil penalty is assessed fails to appear at a hearing, that person shall be deemed to have waived the person's right to a hearing, and the presiding officer may assume, for purposes of the assessment, the following:

(i) The occurrence of each violation listed in the notice of violation or order; and

(ii) the truth of any facts alleged in the notice or order.

(D) In order to issue an initial order assessing the appropriate civil penalty when the person against whom the proposed civil penalty is assessed fails to appear at the hearing, a presiding officer shall either conduct an ex parte hearing or require the department to furnish proposed findings of fact and conclusions of law.

(E) Nothing in this article shall be construed to deprive the person against whom the penalty is assessed of the person's opportunity to have the department prove the violations charged in open hearing with confrontation and cross-examination of witnesses, unless that person fails to comply with a prehearing order or fails to appear at the scheduled hearing.

(7) Initial order of the presiding officer.

(A) The presiding officer shall incorporate, in the presiding officer's decision concerning the civil penalty, findings of fact on each of the four criteria in paragraph (a)(3) and conclusions of law.

(B)(i) If the presiding officer finds that a violation occurred or that the fact of violation is uncontested, the presiding officer shall establish the amount of the penalty according to the point system and conversion table specified in paragraphs (a)(3) and (4).

(ii) The presiding officer may waive the use of the point system if the presiding officer determines that a waiver would further abatement of violations of the state act, except that the point system shall not be waived for abatement of other violations of the state act.

(iii) If the presiding officer finds that no violation occurred, the presiding officer shall issue an order that the proposed assessment be returned to the petitioner.

(C) If the presiding officer finds that no violation occurred or reduces the amount of the civil penalty, the presiding officer shall order the department to remit the appropriate amount to the petitioner who made the payment within 30 days of the department's receipt of the order. If a timely petition for review of the presiding officer's decision is filed with the secretary, no amount shall be remitted to the petitioner until a final determination has been made.

(D) If the presiding officer increases the amount of the civil penalty above that of the proposed assessment, the presiding officer shall order payment of the appropriate amount within 15 days after the order increasing the civil penalty is mailed.

(8) Appeals.

(A) Any party may petition the secretary to review and reconsider the initial order of a presiding officer concerning an assessment pursuant to K.A.R. 47-4-14a.

(B) Any party may appeal the final order of the secretary pursuant to the Kansas judicial review act, K.S.A. 77-601 et seq., and amendments thereto.

***** Authenticated Kansas Administrative Regulation *****

"Points | Dollars 1 | 20 2 | 40 3 | 60 4 | 80 5 | 100 6 | 120 7 | 140 8 | 160 9 | 180 10 | 200 11 | 220 12 | 240 13 | 260 14 | 280 15 | 300 16 | 320 17 | 340 18 | 360 19 | 380 20 | 400 21 | 420 22 | 440 23 | 460 24 | 480 25 | 500 26 | 600 27 | 700 28 | 800 29 | 900 30 | 1,000 31 | 1,100 32 | 1,200 33 | 1,300 34 | 1,400 35 | 1,500 36 | 1,600 37 | 1,700 38 | 1,800 39 | 1,900 40 | 2,000 41 | 2,100 42 | 2,200 43 | 2,300 44 | 2,400 45 | 2,500 46 | 2,600 47 | 2,700 48 | 2,800 49 | 2,900 50 | 3,000 51 | 3,100 52 | 3,200 53 | 3,300 54 | 3,400 55 | 3,500 56 | 3,600 57 | 3,700 58 | 3,800 59 | 3,900 60 | 4,000 61 | 4,100 62 | 4,200 63 | 4,300 64 | 4,400 65 | 4,500 66 | 4,600 67 | 4,700 68 | 4,800 69 | 4,900 70 and above | 5,000"

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405, 49-405c, and 49-416a; effective May 1, 1985; amended Feb. 11, 1991; amended May 2, 1997; amended July 31, 1998; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-5-16 Civil penalties; final assessment and payment of civil penalty

(a) If any person to whom a notice of violation or cessation order is issued fails to request a hearing, the proposed assessment shall become a final order of the secretary. The assessment contained in the final order shall be due and payable upon expiration of the time allowed to request a hearing.

(b) If any party requests judicial review of a final order of the secretary, the proposed civil penalty assessment shall be held in escrow until completion of the review. Otherwise, subject to subsection (c) of this regulation, the escrowed funds shall be transferred to the department in payment of the civil penalty, and the escrow shall end.

(c) If the final decision in the administrative and judicial review results in an order reducing or eliminating the proposed civil penalty under these regulations, all or part of the escrowed amount shall be refunded to the person assessed within 30 days of receipt of the order and shall include any interest that has accrued from the date of payment into escrow to the date of the refund.

(d) If the review results in an order increasing the penalty, the person to whom the notice or order was issued shall pay the difference to the department within 15 days after the order is mailed to that person.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405c; effective May 1, 1984; amended May 1, 1985; amended Feb. 11, 1991; amended May 2, 1997.)

Article 6 Permit Review

Kan. Admin. Regs. § 47-6-1 Permit review

(a) Each permit issued and outstanding during the term of the permit shall be reviewed by the secretary or secretary's designee not later than the middle of that term. Reasonable revision or modification of the permit provisions may be ordered at any time to ensure compliance with the laws and regulations. A copy of the order and the written findings shall be sent to the operator. The order shall be subject to K.S.A. 49-407 and K.S.A. 49-422a, and amendments thereto.

(b) Each permit authorizing one or more variances that is issued in accordance with K.A.R. 47-3-42(a)(62) shall be reviewed not later than three years from the date of issuance.

(c) Each permit authorizing one or more experimental practices that is issued in accordance with K.A.R. 47-3-42(a)(60) shall be reviewed as specified in the permit or at least every two and a half years from the date of issuance as required by the department, in accordance with K.A.R. 47-3-42(a)(60).

(d) After the review required by this regulation or at any time, the reasonable revision of any permit may be required by the secretary, by order, in accordance with K.A.R. 47-6-2 to ensure compliance with the state act and the regulatory program.

(e) Each order of the secretary requiring revision of a permit shall be based upon written findings and shall be subject to the provisions of administrative and judicial review in K.S.A. 49-407(d), K.S.A. 49-416a, and K.S.A. 49-422a, and amendments thereto, and article 4 of these regulations. A copy of each order shall be sent to the permittee.

(f) Any permit may be suspended or revoked in accordance with articles 5 and 15 of these regulations.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405 and 49-410; implementing K.S.A. 2018 Supp. 49-406 and K.S.A. 49-410; effective May 1, 1980; amended Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-6-2 Permit revision

(a) Each application to revise an existing permit shall be submitted by the operator at least 60 days before the date on which the operator wants to have the approval of the secretary.

(b) Each application for a permit revision shall include the following:

(1) A map that meets the general map requirements of these regulations;

(2) a description of the permit revision with the technical data necessary to establish the impact and consequences of the proposed revision on the surface coal mining and reclamation operation, the environment, and public health and safety; and

(3) any additional information requested by the department.

(c) If the application for permit revision contains significant alterations or departures from the method of mining or reclamation operations covered by the original permit, the operator shall meet all the application requirements, which shall include all requests from the department for relevant information.

Whether a significant alteration or departure is involved shall be determined by the chief of the surface mining section on a case-by-case basis upon review, unless a determination is requested in writing by the operator upon or before filing the application. On receiving this request, the operator shall be advised by the chief of the surface mining section if a significant alteration or departure is involved for the purpose of submitting an application.

If the application for permit revision contains significant alterations or departures, the operator shall meet all of the requirements of K.A.R. 47-3-1 through 47-3-42, including all requests from the department for relevant information.

(d) No application for a permit revision shall be approved unless the applicant demonstrates and the regulatory authority finds that all of the following conditions are met:

(1) The reclamation required by the state act and the regulatory program can be accomplished.

(2) The applicable requirements of K.A.R. 47-3-42(a)(11) pertinent to the revision are met.

(3) The application for revision meets all requirements of the state act and the regulatory program.

(e) Each extension to the area covered by the permit, except incidental boundary revisions, shall be made through an application for a new permit.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405 and 49-410; implementing K.S.A. 2018 Supp. 49-406 and K.S.A. 49-410; effective May 1, 1980; amended Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-6-3 Permit renewals; adoption by reference

(a) The section titled "permit renewals," 30 C.F.R. 774.15, as in effect on July 1, 2012, is hereby adopted by reference, except as otherwise specified in this regulation. Subsection (c)(3) of 30 C.F.R. 774.15 shall be deleted.

(1)(A) "Act" shall be replaced by "state act."

(B) "Subchapter J of this chapter" shall be replaced by "article 8 of these regulations."

(2) "Part 775 of this chapter" shall be replaced by "K.S.A. 49-407(d), K.S.A. 49-416a, K.S.A. 49-422a, and amendments thereto, and article 4 of these regulations."

(3)(A) "§773.19" shall be replaced by "K.A.R. 47-3-42(a)(13)."

(B) "§774.13" shall be replaced by "K.A.R. 47-6-2."

(D) "§800.60 of this chapter" shall be replaced by "K.A.R. 47-8-9(a)(15)."

(E) "§§773.6 and 773.19(b) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(2) and (13)."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 2018 Supp. 49-406; effective May 1, 1980; amended, E-81-30, Oct. 8, 1980; amended May 1, 1981; amended May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-6-4 Permit transfers, assignments, and sales; adoption by reference

(a) Each application for a new permit required for a person succeeding by transfer, sale, or assignment of rights granted under a permit shall be filed with the secretary not later than 30 days after that succession is approved by the secretary.

(b) Transfer, assignment, or sale of permit rights, 30 C.F.R. 774.17, as in effect on July 1, 2012, is adopted by reference, except as otherwise indicated in this regulation.

(c) The following phrases shall be replaced with the phrases specified in this subsection wherever the phrases appear in the federal regulations adopted by reference in this regulation:

(1)(A) "Act" shall be replaced by "state act."

(B) "Subchapter J of this chapter" shall be replaced by "article 8 of these regulations."

(2) "Part 778 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(21) through (31)."

(3) "§773.12 and 773.14 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(8) and (10)."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-410; effective May 1, 1980; amended, E-81-30, Oct. 8, 1980; amended May 1, 1981; amended May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997; amended July 31, 1998; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-6-6 Permit conditions; adoption by reference

(a) The section titled "permit conditions," 30 C.F.R. 773.17, as in effect on July 1, 2012, is adopted by reference, except as otherwise specified in this regulation.

(b) The following phrases shall be replaced with the phrases specified in this subsection wherever the phrases appear in the federal regulation adopted by reference in this regulation:

(1)(A) "Act" shall be replaced by "state act."

(B) "Subchapter J of this chapter" shall be replaced by "article 8 of these regulations."

(C) "Subchapter R of this chapter" and "that subchapter" shall be replaced by "the office of surface mining reclamation and enforcement."

(2) "Parts 840 and 842" shall be replaced by "K.A.R. 47-15-1a."

(3)(A) "§701.11(d) and subchapter B or K of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(1) and either K.A.R. 47-9-4 or K.A.R. 47-9-1."

(B) "§§842.13 and 840.12 of this chapter" shall be replaced by "K.A.R. 47-15-1a(a)(4)."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 2018 Supp. 49-406; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997; amended July 31, 1998; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-6-7 Permit suspension or revocation

(a) A proceeding to suspend or revoke a permit shall begin with a show cause order issued by the secretary to the permittee. The show cause order shall set forth the following:

(1) a list of the unwarranted or willful violations that contribute to a pattern of violations;

(2) a copy of each order or notice containing one or more of the violations listed;

(3) the basis for determining the existence of a pattern of violations; and

(4) the recommendation that the permit be suspended or revoked and the length and terms of the recommended suspension.

(b) Answer. The permittee shall have 30 days after receipt of the order within which to file an answer.

(1) the reasons, in detail, why a pattern of violations does not exist or has not existed, including each reason for contesting the following:

(A) the fact of any violation alleged by the department;

(B) the willfulness of any violation; or

(2) each mitigating factor the permittee believes exists in determining the terms of the revocation or the length and terms of the suspension;

(3) any other alleged relevant facts; and

(4) whether or not a hearing on the show cause order is desired.

(d) Burden of proof in suspension or revocation proceedings. In proceedings to suspend or revoke a permit, the department shall have the burden of going forward to establish a prima facie case for suspension or revocation of the permit. The permittee shall have the ultimate burden of persuasion that the permit should not be suspended or revoked.

(e) Procedure. Except as provided for in this regulation, the procedure set forth in K.A.R. 47-4-14a(d) shall be followed.

(f) Decision by the presiding officer.

(1) After determining that a pattern of violations exists or has existed, the presiding officer shall order the permit either suspended or revoked. It shall not be required that the presiding officer find that all the violations listed in the show cause order occurred in order to establish a pattern. However, the presiding officer shall find that sufficient violations occurred in order to establish a pattern.

(2) The minimum suspension period imposed shall be three working days, except when the presiding officer finds that this would result in manifest injustice and would not further the purposes of the act. The presiding officer may impose preconditions to lifting the suspension.

(3) The decision of the presiding officer shall be issued within 20 days of the following:

(A) after the closing date of the hearing record; or

(B) after receipt of the answer, if no hearing is requested by any party and the presiding officer determines that no hearing is necessary.

(4) At any stage of a suspension or revocation proceeding, the parties may enter into a settlement, subject to the approval of the presiding officer.

(g) Summary judgment. When the permittee fails to appear at a hearing, these conditions apply:

(1) the permittee shall be deemed to have waived his right to a hearing;

(2) the presiding officer may make these assumptions for purposes of the proceeding:

(A) each violation listed in the order occurred;

(B) each violation was willfully or negligently caused by the permittee; and

(3) the presiding officer shall either conduct an ex-parte hearing or require the department to furnish proposed findings of fact and conclusions of law in order to issue an initial decision.

(h) Appeals.

(1) Any party may appeal the initial order by filing a notice of appeal with the secretary within 15 days after receipt of the order.

(2) Except as provided for in this regulation, this appeal shall follow the procedure in K.A.R. 47-4-14(a)(d)(14). The secretary shall act immediately to issue an expedited briefing schedule. The decision of the secretary shall be issued within 60 days after the date the record is closed by the secretary or, the date the answer is filed.

(3) Any further appeal from the secretary's final order shall be taken pursuant to the Kansas judicial review act, K.S.A. 77-601 et seq.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-406; effective Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-6-8 Termination of jurisdiction; adoption by reference

(a) The section titled "applicability," 30 C.F.R. 700.11, as in effect on July 1, 2012, is adopted by reference, except as otherwise specified in this regulation, and subsections (a)(1), (a)(5), and (b) of 30 C.F.R. 700.11 shall be deleted.

(b) The following phrases shall be replaced with the phrases specified in this subsection wherever the phrases appear in the federal regulation adopted by reference in this regulation:

(1)(A) "Subchapter B of this chapter" shall be replaced by "K.A.R. 47-9-4."

(B) "The State or Federal program counterpart to part 800 of this chapter" shall be replaced by "article 8 of these regulations."

(2)(A) "Part 702 of this chapter" shall be replaced by "K.A.R. 47-6-10."

(B) "Part 707 of this chapter" shall be replaced by "K.A.R. 47-6-9."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by and implementing K.S.A. 49-405; effective Feb. 11, 1991; amended May 2, 1997; amended July 31, 1998; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-6-9 Exemption for coal extraction incidental to government-financed highway or other construction; adoption by reference

(a) The following federal regulations, as in effect on July 1, 2012, are adopted by reference, except as otherwise specified in this regulation:

(1) Responsibility, 30 C.F.R. 707.4;

(2) definitions, 30 C.F.R. 707.5;

(3) applicability, 30 C.F.R. 707.11, except that the phrase "Federal or Federal lands" shall be deleted; and

(4) information to be maintained on site, 30 C.F.R. 707.12.

(1)(A) "Act" shall be replaced by "state act."

(B) "This chapter" shall be replaced by "these regulations."

(2) "30 CFR 707.12" shall be replaced by "K.A.R. 47-6-9(a)(4)."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by and implementing K.S.A. 49-405; effective Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-6-10 Exemption for coal extraction incidental to the extraction of other minerals; adoption by reference

(a) The following federal regulations, as in effect on July 1, 2012, are adopted by reference, except as otherwise specified in this regulation:

(1) Definitions, 30 C.F.R. 702.5;

(2) application requirements and procedures, 30 C.F.R. 702.11, except that subsection (b) shall be deleted. The text "after April 1, 1990, under a Federal program or on Indian lands, or after the effective date of counterpart provisions in a State program" shall be replaced by "under the state act";

(3) contents of application for exemption, 30 C.F.R. 702.12;

(4) public availability of information, 30 C.F.R. 702.13;

(5) requirements for exemption, 30 C.F.R. 702.14;

(6) conditions of exemption and right of inspection and entry, 30 C.F.R. 702.15. However, "§702.11(b) or" and "for Federal programs and on Indian lands or in accordance with counterpart provisions when included in State programs" shall be deleted;

(7) stockpiling of minerals, 30 C.F.R. 702.16;

(8) revocation and enforcement, 30 C.F.R. 702.17; and

(9) reporting requirements, 30 C.F.R. 702.18.

(1)(A) "Act" shall be replaced by "state act."

(B) "Secretary" shall be replaced by "secretary of the Kansas department of health and environment."

(C) The following text shall be replaced by "K.A.R. 47-4-14a": "43 CFR 4.1280 when OSM is the regulatory authority or under corresponding State procedures when a State is the regulatory authority" and "43 CFR 4.1280 or under corresponding State procedures."

(D) "The standards of this part for Federal programs and on Indian lands or in accordance with counterpart provisions when included in State programs" shall be replaced by "these regulations."

(2)(A) "§702.5 of this part" shall be replaced by "K.A.R. 47-6-10(a)(2)."

(B) "§702.11(e)(3)" shall be replaced by "K.A.R. 47-6-10(a)(3)."

(D) "§702.16" shall be replaced by "K.A.R. 47-6-10(a)(8)."

(E) "§702.18 of this part" and "§702.18" shall be replaced by "K.A.R. 47-6-10(a)(10)."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by and implementing K.S.A. 49-405; effective Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-6-11 Post-permit issuance requirements; adoption by reference

(a) The following federal regulations, as in effect on July 1, 2012, are adopted by reference, except as otherwise specified in this regulation:

(1) Post-permit issuance requirements for regulatory authorities and other actions based on ownership, control, and violation information, 30 C.F.R. 774.11; and

(2) post-permit issuance information requirements for permittees, 30 C.F.R. 774.12.

(1) "Regulatory authority" shall be replaced by "Kansas department of health and environment."

(2)(A) "Part 843, 846, or 847 of this chapter" shall be replaced by "K.A.R. 47-15-1a, K.A.R. 47-5-5a(a)(10) through (13), and K.A.R. 47-5-17."

(B) "Section 510(c) of the Act" shall be replaced by "K.S.A. 49-407(b), and amendments thereto."

(3) "43 CFR 4.1350 through 4.1356" shall be replaced by "article 4 of these regulations."

(4)(A) "§778.11(c) of this subchapter," "§778.11(d) of this subchapter," and "§778.11 of this subchapter" shall be replaced by "K.A.R. 47-3-42(a)(22)."

(B) "§843.11" shall be replaced by "K.A.R. 47-15-1a(a)(8)."

(D) "§§773.25, 773.26 and 773.27 of this subchapter" shall be replaced by "K.A.R. 47-3-42(a)(17), (18), and (19)."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by and implementing K.S.A. 49-405; effective Dec. 1, 2006; amended Feb. 15, 2019.)

Article 7 Coal Exploration

Kan. Admin. Regs. § 47-7-2 Coal exploration; adoption by reference

(a) The following federal regulations, as in effect on July 1, 2012, are adopted by reference, except as otherwise specified in this regulation:

(1) Notice requirements for exploration removing 250 tons of coal or less, 30 C.F.R. 772.11;

(2) permit requirements for exploration that will remove more than 250 tons of coal or that will occur on lands designated as unsuitable for surface coal mining operations, 30 C.F.R. 772.12;

(3) coal exploration compliance duties, 30 C.F.R. 772.13;

(4) commercial use or sale, 30 C.F.R. 772.14; and

(5) public availability of information, 30 C.F.R. 772.15.

(1)(A) "Subchapter F of this chapter" shall be replaced by "article 12 of these regulations."

(B) The phrase "section 518 of the Act, subchapter L of this chapter, and the applicable inspection and enforcement provisions of the regulatory program" shall be replaced by "K.S.A. 49-405c, and amendments thereto, and articles 5 and 15 of these regulations."

(C) "This part," "this part, part 815 of this chapter, and the applicable provisions of the regulatory program," and "this part, part 815 of this chapter, the regulatory program" shall be replaced by "K.A.R. 47-7-2" and "K.A.R. 47-9-1(b)."

(2)(A) "Part 775 of this chapter" shall be replaced by "K.S.A. 49-407(d), K.S.A. 49-416a, K.S.A. 49-422a, and amendments thereto, and article 4 of these regulations."

(B) "Part 815 of this chapter" shall be replaced by "K.A.R. 47-9-1(b)."

(C) "Parts 773 through 785 of this chapter" shall be replaced by "articles 3, 4, 6, and 10 of these regulations, K.S.A. 49-407(d), K.S.A. 49-416a, and K.S.A. 49-422a, and amendments thereto."

(3)(A) "§761.11 of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(2)."

(B) "§772.12" shall be replaced by "K.A.R. 47-7-2(a)(2)."

(D) "§§772.13 and 772.14" shall be replaced by "K.A.R. 47-7-2(a)(3) and (4)."

(E) "§§772.14(b) and 700.11(a)(5)" shall be replaced by "K.A.R. 47-7-2(a)(4) and K.A.R. 47-6-8."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-427; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended May 1, 1986; amended May 1, 1988; amended Feb. 11, 1991; amended May 2, 1997; amended July 31, 1998; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Article 8 Bonding Procedures

Kan. Admin. Regs. § 47-8-9 Bonding procedures; adoption by reference

(a) The following federal regulations, as in effect on July 1, 2012, are adopted by reference, except as otherwise specified in this regulation:

(1) Regulatory authority responsibilities, 30 C.F.R. 800.4, deleting subsection (d);

(2) definitions, 30 C.F.R. 800.5, deleting subsection (c);

(3) requirement to file a bond, 30 C.F.R. 800.11, deleting subsection (e);

(4) form of the performance bond, 30 C.F.R. 800.12, deleting subsection (c);

(5) period of liability, 30 C.F.R. 800.13;

(6) determination of bond amount, 30 C.F.R. 800.14;

(7) adjustment of amount, 30 C.F.R. 800.15;

(8) general terms and conditions of bond, 30 C.F.R. 800.16;

(9) bonding requirements for underground coal mines and long-term coal-related surface facilities and structures, 30 C.F.R. 800.17;

(10) surety bonds, 30 C.F.R. 800.20;

(11) collateral bonds, 30 C.F.R. 800.21;

(12) replacement of bonds, 30 C.F.R. 800.30;

(13) requirement to release performance bonds, 30 C.F.R. 800.40;

(14) forfeiture of bonds, 30 C.F.R. 800.50; and

(15) terms and conditions for liability insurance, 30 C.F.R. 800.60, deleting subsection (d).

(1)(A) "Act" shall be replaced by "state act."

(B) "Application" shall be replaced by "complete and accurate application."

(D) "This chapter" and "subchapter G of this chapter" shall be replaced by "these regulations."

(E) "This subchapter" shall be replaced by "article 8 of these regulations."

(F) "(Under parts 780 and 784 of this chapter)" shall be replaced by "[under K.A.R. 47-3-42(a)(40) through (59), and K.A.R. 47-10-1]."

(2)(A) "Part 823 of this chapter" shall be replaced by "K.A.R. 47-9-1(f)."

(B) "Section 507(b)(16) of the act" shall be replaced by "K.S.A. 49-407(c), and amendments thereto."

(C) "Section 513(b) of the act" shall be replaced by "K.S.A. 49-407(d), and amendments thereto, and the regulations promulgated thereunder."

(D) "Section 515 of the act" and "section 515(b)(10) of the act" shall be replaced by "K.S.A. 49-405a, K.S.A. 49-408 through K.S.A. 49-413, K.S.A. 49-429, and amendments thereto, and the regulations promulgated thereunder."

(3)(A) "§800.11(b)" shall be replaced by "K.A.R. 47-8-9(a)(3)."

(B) "§800.13" shall be replaced by "K.A.R. 47-8-9(a)(5)."

(D) "§800.15" shall be replaced by "K.A.R. 47-8-9(a)(7)."

(E) "§800.16(e)(2)" shall be replaced by "K.A.R. 47-8-9(a)(8)."

(F) "§800.17(b)(3)" shall be replaced by "K.A.R. 47-8-9(a)(9)."

(G) "§800.21(f)" shall be replaced by "K.A.R. 47-8-9(a)(11)."

(H) "§800.40," "§800.40(c)(2)," "§800.40(f) and (h)," and "§800.40(a)(2)" shall be replaced by "K.A.R. 47-8-9(a)(13)."

(I) "§800.50" shall be replaced by "K.A.R. 47-8-9(a)(14)."

(J) "§800.60" shall be replaced by "K.A.R. 47-8-9(a)(15)."

(K) "§816.116 or §817.116 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(42) or K.A.R. 47-9-1(d)(38)."

(L) "§816.132 or §817.132 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(44) or K.A.R. 47-9-1(d)(42)."

(M) "§816.133 or §817.133 of this chapter" and "§§816.133(c) and 817.133(c)" shall be replaced by "K.A.R. 47-9-1(c)(45) or K.A.R. 47-9-1(d)(43)."

(N) "§817.121(c) of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(39)."

(O) "§§800.14 and 800.15" shall be replaced by "K.A.R. 47-8-9(a)(6) and (7)."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 2018 Supp. 49-406, K.S.A. 49-407, and K.S.A. 49-429; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended May 1, 1985; amended May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997; amended July 31, 1998; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-8-11 Use of forfeited bond funds

Funds collected from any bond forfeiture may only be used to perform the following:

(a) complete the reclamation plan on the permit area on which bond was made for the surface mining operation for coal; and

(b) cover associated administrative expenses.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-420; effective May 1, 1983; amended Feb. 11, 1991; amended May 2, 1997.)

Article 9 Performance Standards

Kan. Admin. Regs. § 47-9-1 Adoption by reference

(a) The following portions of the "permanent program performance standards—general provisions," 30 C.F.R. Part 810, as in effect on July 1, 2012, are hereby adopted by reference, except as specified in this subsection:

(1) Responsibility, 30 C.F.R. 810.4, except that subsection (a) shall be deleted; and

(2) applicability, 30 C.F.R. 810.11.

(b) The following portions of the "permanent program performance standards—coal exploration," 30 C.F.R. Part 815, as in effect on July 1, 2012, are hereby adopted by reference:

(1) Required documents, 30 C.F.R. 815.13; and

(2) performance standards for coal exploration, 30 C.F.R. 815.15.

(c) The following portions of the "permanent program standards—surface mining activities," 30 C.F.R. Part 816, as in effect on July 1, 2012, are hereby adopted by reference, except as specified in this subsection:

(1) Signs and markers, 30 C.F.R. 816.11. A subsection (g) shall be added to 30 C.F.R. 816.11 that reads as follows: "Increment boundary markers. As deemed necessary by the secretary or secretary's designee to ensure the public health and safety, protect the environment, and ascertain increment boundaries, increment boundary markers shall be placed on each portion of a permit area on which a performance bond or other equivalent guarantee was or will be posted as provided by K.S.A. 49-406, and amendments thereto";

(2) casing and sealing of drilled holes: general requirements, 30 C.F.R. 816.13;

(3) casing and sealing of drilled holes: temporary, 30 C.F.R. 816.14;

(4) casing and sealing of drilled holes: permanent, 30 C.F.R. 816.15;

(5) topsoil and subsoil, 30 C.F.R. 816.22. The first paragraph of subsection (d)(1) of 30 C.F.R. 816.22 shall be replaced by the following:

"Absent an approved schedule, topsoil and subsoil materials removed under paragraph (a) of this section shall be redistributed within 120 days following rough backfilling and grading in a manner that complies with the following:";

(6) hydrologic-balance protection, 30 C.F.R. 816.41;

(7) hydrologic balance: water quality standards and effluent limitations, 30 C.F.R. 816.42;

(8) diversions, 30 C.F.R. 816.43;

(9) hydrologic balance: sediment control measures, 30 C.F.R. 816.45;

(10) hydrologic balance: siltation structures, 30 C.F.R. 816.46;

(11) hydrologic balance: discharge structures, 30 C.F.R. 816.47;

(12) impoundments, 30 C.F.R. 816.49;

(13) postmining rehabilitation of sedimentation ponds, diversions, impoundments, and treatment facilities, 30 C.F.R. 816.56;

(14) hydrologic balance: activities in or adjacent to perennial or intermittent streams, 30 C.F.R. 816.57, except that in the first sentence of subsection (c), the text "comply with paragraphs (b)(10)(B)(i) and (b)(24) of section 515 of the act and the regulations implementing those provisions of the act, including" shall be replaced by the following: "conduct surface coal mining operations so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow, or runoff outside the permit area, but in no event shall contributions be in excess of requirements set by applicable state or federal law, minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, achieve enhancement of such resources where practicable, and comply with the following:";

(15) coal recovery, 30 C.F.R. 816.59;

(16) use of explosives: general requirements, 30 C.F.R. 816.61, except that subsection (c)(1) shall be replaced by the following:

"All blasting operations within the state shall be conducted under the direction of a Kansas-certified blaster";

(17) use of explosives: preblasting survey, 30 C.F.R. 816.62;

(18) use of explosives: blasting schedule, 30 C.F.R. 816.64;

(19) use of explosives: blasting signs, warnings, and access control, 30 C.F.R.816.66;

(20) use of explosives: control of adverse effects, 30 C.F.R. 816.67;

(21) use of explosives: records of blasting operations, 30 C.F.R. 816.68;

(22) disposal of excess spoil: general requirements, 30 C.F.R. 816.71, in (h)(3)(ii) deleting the phrase "in accordance with §816.73";

(23) disposal of excess spoil: preexisting benches, 30 C.F.R. 816.74;

(24) protection of underground mining, 30 C.F.R. 816.79;

(25) coal mine waste: general requirements, 30 C.F.R. 816.81;

(26) coal mine waste: refuse piles, 30 C.F.R. 816.83;

(27) coal mine waste: impounding structures, 30 C.F.R. 816.84;

(28) coal mine waste: burning and burned waste utilization, 30 C.F.R. 816.87;

(29) disposal of noncoal mine wastes, 30 C.F.R. 816.89;

(30) stabilization of surface areas, 30 C.F.R. 816.95;

(31) protection of fish, wildlife, and related environmental values, 30 C.F.R. 816.97;

(32) slides and other damage, 30 C.F.R. 816.99;

(33) contemporaneous reclamation, 30 C.F.R. 816.100;

(34) backfilling and grading: time and distance requirements, 30 C.F.R. 816.101. This section shall be replaced by the following text:

"(a) Except as provided in paragraph (b) of this section, rough backfilling and grading for surface mining activities shall be completed according to one of the following schedules:

"(1) Contour mining. Within 60 days or 1,500 linear feet following coal removal;

"(2) area mining. Within 180 days following coal removal, and not more than four spoil ridges behind the active pit being worked, the spoil from the active pit constituting the first ridge; or

"(3) other surface mining methods. In accordance with the schedule established by the department.

"(b) The time allowed for rough backfilling and grading for the entire permit area or for a specific portion of the permit area may be extended by the department if the permittee demonstrates, in accordance with K.A.R. 47-3-42(a)(47), adopting by reference 30 CFR 780.18(b)(3), that additional time is necessary";

(35) backfilling and grading: general requirements, 30 C.F.R. 816.102, deleting subsections (k)(3)(i) and (ii);

(36) backfilling and grading: thin overburden, 30 C.F.R. 816.104;

(37) backfilling and grading: thick overburden, 30 C.F.R. 816.105;

(38) backfilling and grading: previously mined areas, 30 C.F.R. 816.106;

(39) revegetation: general requirements, 30 C.F.R. 816.111;

(40) revegetation: timing, 30 C.F.R. 816.113;

(41) revegetation: mulching and other soil stabilizing practices, 30 C.F.R. 816.114;

(42) revegetation: standards for success, 30 C.F.R. 816.116. A subsection (i) shall be added to 816.116(c)(4), and a subsection (3) shall be added to 816.116(a):

(A) Subsection (c)(4)(i) shall read as follows: "(i) The regulatory authority may allow 90 days after the issuance of a notice of violation for the repair of any rills or gullies, or both, that may occur. If the rills or gullies, or both, are repaired using normal husbandry practices, approved by the department in consultation with the state conservationist or the state conservationist's designated representative and the repairs are approved by the department, the period of responsibility shall not be restarted. The normal husbandry practices used to repair gullies shall be approved in advance by the United States department of interior, office of surface mining reclamation and enforcement. If the rills or gullies, or both, are not repaired and approved within 90 days or if augmented seeding, fertilization, or irrigation was utilized to do the repairs, the regulatory authority will restart the period of liability, effective from the date the repair was completed and approved by the department."

(B) Subsection (a)(3) shall read as follows: "(3) Data being used for bond release shall be submitted to the department annually. This shall include data for the last augmented seeding, which shall start the extended liability period. The following timetable for submissions shall be followed:

"(i) The planting reports, including soil tests, shall be submitted by March 31 of the year following the year in which the soil tests were performed;

"(ii) the production and ground cover data shall be submitted within 30 days of the date that the production and ground cover were sampled. Ground cover shall include species identification. Raw field data may be submitted at this time to fulfill this requirement. The tabulated results shall then be submitted by March 31 of the following year; and

"(iii) all data shall be clearly identified as to the bond release management area that it represents.";

(43) cessation of operations: temporary, 30 C.F.R. 816.131;

(44) cessation of operations: permanent, 30 C.F.R. 816.132;

(45) postmining land use, 30 C.F.R. 816.133, deleting subsection (d)(1) and replacing the term "Act" with "state act";

(46) roads: general, 30 C.F.R. 816.150;

(47) primary roads, 30 C.F.R. 816.151;

(48) utility installations, 30 C.F.R. 816.180;

(49) support facilities, 30 C.F.R. 816.181; and

(50) interpretative rules related to general performance standards, 30 C.F.R. 816.200.

(d) The following portions of the "permanent program performance standards—underground mining activities," 30 C.F.R. Part 817, as in effect on July 1, 2012, are hereby adopted by reference, except as specified in this subsection:

(1) Signs and markers, 30 C.F.R. 817.11. A subsection (g) shall be added: "(g) Increment boundary markers. Increment boundary markers shall be placed on each portion of a permit area on which a performance bond or other equivalent guarantee was or will be posted as provided by K.S.A. 49-406(h), and amendments thereto";

(2) casing and sealing of exposed underground openings: general requirements, 30 C.F.R. 817.13;

(3) casing and sealing of underground openings: temporary, 30 C.F.R. 817.14;

(4) casing and sealing of underground openings: permanent, 30 C.F.R. 817.15;

(5) topsoil and subsoil, 30 C.F.R. 817.22;

(6) hydrologic-balance protection, 30 C.F.R. 817.41;

(7) hydrologic balance: water quality standards and effluent limitations, 30 C.F.R. 817.42;

(8) diversions, 30 C.F.R. 817.43;

(9) hydrologic balance: sediment control measures, 30 C.F.R. 817.45;

(10) hydrologic balance: siltation structures, 30 C.F.R. 817.46;

(11) hydrologic balance: discharge structures, 30 C.F.R. 817.47;

(12) impoundments, 30 C.F.R. 817.49;

(13) postmining rehabilitation of sedimentation ponds, diversions, impoundments, and treatment facilities, 30 C.F.R. 817.56;

(14) hydrologic balance: surface activities in or adjacent to perennial or intermittent streams, 30 C.F.R. 817.57, except that in the first sentence of subsection (c), the text "comply with paragraphs (b)(9)(B) and (b)(11) of section 516 of the act and the regulations implementing those provisions of the act, including" shall be replaced by the following: "conduct surface coal mining operations so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow, or runoff outside the permit area, but in no event shall contributions be in excess of requirements set by applicable state or federal law, minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, achieve enhancement of such resources where practicable, and comply with the following:";

(15) coal recovery, 30 C.F.R. 817.59;

(16) use of explosives: general requirements, 30 C.F.R. 817.61, except that subsection (c)(1) of 30 C.F.R. 817.61 shall be replaced by the following:

"All blasting operations within the state shall be conducted under the direction of a Kansas-certified blaster";

(17) use of explosives: preblasting survey, 30 C.F.R. 817.62;

(18) use of explosives: general performance standards, 30 C.F.R. 817.64;

(19) use of explosives: blasting signs, warnings, and access control, 30 C.F.R. 817.66;

(20) use of explosives: control of adverse effects, 30 C.F.R. 817.67;

(21) use of explosives: records of blasting operations, 30 C.F.R. 817.68;

(22) disposal of excess spoil: general requirements, 30 C.F.R. 817.71, deleting the phrase "in accordance with §817.73";

(23) disposal of excess spoil: preexisting benches, 30 C.F.R. 817.74;

(24) coal mine waste: general requirements, 30 C.F.R. 817.81;

(25) coal mine waste: refuse piles, 30 C.F.R. 817.83;

(26) coal mine waste: impounding structures, 30 C.F.R. 817.84;

(27) coal mine waste: burning and burned waste utilization, 30 C.F.R. 817.87;

(28) disposal of noncoal mine wastes, 30 C.F.R. 817.89;

(29) stabilization of surface areas, 30 C.F.R. 817.95;

(30) protection of fish, wildlife, and related environmental values, 30 C.F.R. 817.97;

(31) slides and other damage, 30 C.F.R. 817.99;

(32) contemporaneous reclamation, 30 C.F.R. 817.100;

(33) backfilling and grading: general requirements, 30 C.F.R. 817.102, deleting subsection (k)(1);

(34) backfilling and grading: previously mined areas, 30 C.F.R. 817.106;

(35) revegetation: general requirements, 30 C.F.R. 817.111;

(36) revegetation: timing, 30 C.F.R. 817.113;

(37) revegetation: mulching and other soil stabilizing practices, 30 C.F.R. 817.114;

(38) revegetation: standards for success, 30 C.F.R. 817.116. A subsection (3) shall be added to 817.116(a). Subsection (a)(3) shall read as follows: "(3) Data being used for bond release shall be submitted to the department annually. This shall include data for the last augmented seeding, which shall start the extended liability period. The following timetable for submissions shall be followed:

"(i) The planting reports, including soil tests, shall be submitted by March 31 of the year following the year in which the soil tests were performed;

"(ii) The production and ground cover data shall be submitted within 30 days of the date that the production and ground cover were sampled. Ground cover shall include species identification. Raw field data may be submitted at this time to fulfill this requirement. The tabulated results shall then be submitted by March 31 of the following year; and

"(iii) All data shall be clearly identified as to the bond release management area that it represents.";

(39) subsidence control, 30 C.F.R. 817.121, except that 30 C.F.R. 817.121(c)(4)(i)-(iv) shall be deleted;

(40) subsidence control: public notice, 30 C.F.R. 817.122;

(41) cessation of operations: temporary, 30 C.F.R. 817.131;

(42) cessation of operations: permanent, 30 C.F.R. 817.132;

(43) postmining land use, 30 C.F.R. 817.133, deleting subsection (d)(1) and replacing the term "Act" with "state act";

(44) roads: general, 30 C.F.R. 817.150;

(45) primary roads, 30 C.F.R. 817.151;

(46) utility installations, 30 C.F.R. 817.180;

(47) support facilities, 30 C.F.R. 817.181; and

(48) interpretative rules related to general performance standards, 30 C.F.R. 817.200. The phrase "Office of Surface Mining Reclamation and Enforcement" shall be replaced by "Kansas department of health and environment."

(e) The following portions of the "special permanent program performance standards—auger mining," 30 C.F.R. Part 819, as in effect on July 1, 2012, are hereby adopted by reference:

(1) Auger mining: general, 30 C.F.R. 819.11;

(2) auger mining: coal recovery, 30 C.F.R. 819.13;

(3) auger mining: hydrologic balance, 30 C.F.R. 819.15;

(4) auger mining: subsidence protection, 30 C.F.R. 819.17;

(5) auger mining: backfilling and grading, 30 C.F.R. 819.19; and

(6) auger mining: protection of underground mining, 30 C.F.R. 819.21.

(f) The following portions of the "special permanent program performance standards—operations on prime farmland," 30 C.F.R. Part 823, as in effect on July 1, 2012, are hereby adopted by reference, except as specified in this subsection:

(1) Responsibilities, 30 C.F.R. 823.4;

(2) applicability, 30 C.F.R. 823.11, deleting subsection (a);

(3) soil removal and stockpiling, 30 C.F.R. 823.12;

(4) soil replacement, 30 C.F.R. 823.14; and

(5) revegetation and restoration of soil productivity, 30 C.F.R. 823.15.

(g) The following portions of the "permanent program performance standards—coal preparation plants not located within the permit area of a mine," 30 C.F.R. Part 827, as in effect on July 1, 2012, are hereby adopted by reference:

(1) General requirements, 30 C.F.R. 827.11;

(2) coal preparation plants: performance standards, 30 C.F.R. 827.12; and

(3) coal preparation plants: interim performance standards, 30 C.F.R. 827.13.

(h) The following portions of the "special permanent program performance standards—in situ processing," 30 C.F.R. Part 828, as in effect on July 1, 2012, are hereby adopted by reference:

(1) In situ processing: performance standards, 30 C.F.R. 828.11; and

(2) in situ processing: monitoring, 30 C.F.R. 828.12.

(i) The following phrases and citations shall be replaced with the phrases and citations specified in this subsection wherever the phrases and citations appear in the text of the federal regulations adopted by reference in this regulation:

(1)(A) "Director" shall be replaced by "secretary."

(B) "Every state program," "every regulatory program," and "the applicable regulatory program" shall be replaced by "the regulatory program."

(D) "Subchapter J of this chapter" shall be replaced by "article 8 of these regulations."

(E) "This chapter," "subchapter," and "this section" shall be replaced by "these regulations."

(F) "This part" shall be replaced by "K.A.R. 47-9-1."

(G) "This title" shall be replaced by "the 30 CFR."

(2)(A) "Part 815" shall be replaced by "K.A.R. 47-9-1(b)."

(B) "Part 816 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)."

(D) "Part 817," "part 817 of this chapter," and "30 CFR 817" shall be replaced by "K.A.R. 47-9-1(d)."

(E) "Part 823 of this chapter" shall be replaced by "K.A.R. 47-9-1(f)."

(F) "Parts 816 and 817" shall be replaced by "K.A.R. 47-9-1(c) and (d)."

(G) "Parts 818 through 828" shall be replaced by "K.A.R. 47-9-1(e) through (h)."

(H) "Section 816.150" shall be replaced by "K.A.R. 47-9-1(c)(46)."

(I) "Sections 817.61-817.68" shall be replaced by "K.A.R. 47-9-1(d)(16)-(21)."

(3)(A) "30 CFR part 773 and 775" shall be replaced by "K.A.R. 47-3-42(a)(2) through (20), and K.S.A. 49-407(d), 49-416a, 49-422a, and amendments thereto, and article 4 of these regulations."

(B) "30 CFR 784.15(a)(2)" shall be replaced by "K.A.R. 47-10-1(a)(2)(F)."

(D) "30 CFR 817.133," "§817.133," and "30 CFR 817.133(a)" shall be replaced by "K.A.R. 47-9-1(d)(43)."

(4)(A) "§701.5 of this chapter" shall be replaced by "K.A.R. 47-2-75(b)."

(B) "§732.17 of this chapter" shall be replaced by "30 C.F.R. 732.17."

(D) "§773.15(m) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(11)."

(E) "§774.13 of this chapter" and "30 CFR 774.13" shall be replaced by "K.A.R. 47-6-2."

(F) "§780.13 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(43)."

(G) "§780.21(h) of this chapter," "§780.21(i) of this chapter," and "§780.21(j) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(48)."

(H) "§780.25 of this chapter," "§780.25(a) of this chapter," and "§780.25(c)(3)" shall be replaced by "K.A.R. 47-3-42(a)(51)."

(I) "§780.28(d) of this chapter or §816.43(b)(1) of this part" shall be replaced by "K.A.R. 47-3-42(a)(53) or K.A.R. 47-9-1(c)(8)."

(J) "§780.28(e) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(53)."

(K) "§780.35(c) of this chapter" shall be replaced by "K.A.R. 47-3-42(c)(57)."

(L) "§780.37(c) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(58)."

(M) "§784.14(g) of this chapter," "§784.14(h) of this chapter," and "§784.14(i) of this chapter" shall be replaced by "K.A.R. 47-10-1(a)(2)(E)."

(N) "§784.16(a) of this chapter" and "§784.16(c)(3)" shall be replaced by "K.A.R. 47-10-1(a)(2)(G)."

(O) "§784.19 of this chapter" shall be replaced by "K.A.R. 47-10-1(a)(2)(J)."

(P) "§784.20 of this chapter" and "§784.20(a) of this chapter" shall be replaced by "K.A.R. 47-10-1(a)(2)(K)."

(Q) "§784.24(c)" shall be replaced by "K.A.R. 47-10-1(a)(2)(O)."

(R) "§784.25 of this chapter" shall be replaced by "K.A.R. 47-10-1(a)(2)(P)."

(S) "§784.28(d) of this chapter and §817.43(b)(1) of this part" shall be replaced by "K.A.R. 47-10-1(a)(2)(R) and K.A.R. 47-9-1(d)(8)."

(T) "§784.28(e) of this chapter" shall be replaced by "K.A.R. 47-10-1(a)(2)(R)."

(U) "§785.17 and subchapter J of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(61) and article 8 of these regulations."

(V) "§785.17(a) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(61)."

(W) "§785.18 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(62)."

(X) "§785.21 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(64)."

(Y) "§800.40(c)(2) of this chapter" shall be replaced by "K.A.R. 47-8-9(a)(13)."

(Z) "§816.11" and "§816.11 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(1)."

(AA) "§816.13" shall be replaced by "K.A.R. 47-9-1(c)(2)."

(BB) "§816.22," "§816.22 of this chapter," "§816.22 of this part," "§816.22(b) of this part," "§816.22(e)," "30 CFR 816.22(e)(1)(i)," and "30 CFR 816.22(e)(1)(ii)" shall be replaced by "K.A.R. 47-9-1(c)(5)."

(CC) "§816.22 or §817.22 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(5) or K.A.R. 47-9-1(d)(5)."

(DD) "§816.41 of this part," "§816.41," "§§816.41(d)(1) of this part," and "§816.41(i)" shall be replaced by "K.A.R. 47-9-1(c)(6)."

(EE) "§§816.41(b), 816.41(f), and 816.102(e) of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(6) and (35)."

(FF) "§816.42" shall be replaced by "K.A.R. 47-9-1(c)(7)."

(GG) "§816.43 of this chapter," "§816.43(b) of this part," and "816.43" shall be replaced by "K.A.R. 47-9-1(c)(8)."

(HH) "§816.45 through 816.47 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(9) through (11)."

(II) "§816.45(a) of this part" and "§816.45(a)" shall be replaced by "K.A.R. 47-9-1(c)(9)."

(JJ) "§816.46" shall be replaced by "K.A.R. 47-9-1(c)(10)."

(KK) "§816.49 of this chapter," "§816.49(b) of this part," and "§816.49(a)(9)" shall be replaced by "K.A.R. 47-9-1(c)(12)."

(LL) "§816.56 of this part" shall be replaced by "K.A.R. 47-9-1(c)(13)."

(MM) "§816.59 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(15)."

(NN) "§816.64" shall be replaced by "K.A.R. 47-9-1(c)(18)."

(OO) "§816.66(c)" shall be replaced by "K.A.R. 47-9-1(c)(19)."

(PP) "§816.67" and "§816.67(e)" shall be replaced by "K.A.R. 47-9-1(c)(20)."

(QQ) "§816.68(p)" shall be replaced by "K.A.R. 47-9-1(c)(21)."

(RR) "§816.71," "§816.71 of this part," and "§816.71(f)(3)" shall be replaced by "K.A.R. 47-9-1(c)(22)."

(SS) "§816.79 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(24)."

(TT) "§816.81" shall be replaced by "K.A.R. 47-9-1(c)(25)."

(UU) "§816.83" shall be replaced by "K.A.R. 47-9-1(c)(26)."

(VV) "§816.84 of this chapter" and "§816.84" shall be replaced by "K.A.R. 47-9-1(c)(27)."

(WW) "§816.95 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(30)."

(XX) "§816.97 of this chapter," "§816.97(a) of this part," and "§816.97(f) of this part" shall be replaced by "K.A.R. 47-9-1(c)(31)."

(YY) "§816.102," "§§816.102(c), (e) through (h), and (j)," "§§816.102(a)(2) through (j) of this part," and "§816.102(a)(1) and (2)" shall be replaced by "K.A.R. 47-9-1(c)(35)."

(ZZ) "§816.104" shall be replaced by "K.A.R. 47-9-1(c)(36)."

(AAA) "§816.105" shall be replaced by "K.A.R. 47-9-1(c)(37)."

(BBB) "§816.106" shall be replaced by "K.A.R. 47-9-1(c)(38)."

(CCC) "§816.111" and "§816.111(b)" shall be replaced by "K.A.R. 47-9-1(c)(39)."

(DDD) "§816.181 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(49)."

(EEE) "§817.11" shall be replaced by "K.A.R. 47-9-1(d)(1)."

(FFF) "§817.13" shall be replaced by "K.A.R. 47-9-1(d)(2)."

(GGG) "§817.22," "§817.22 of this chapter," "§817.22 of this part," and "§817.22(b) of this part" shall be replaced by "K.A.R. 47-9-1(d)(5)."

(HHH) "§817.41 of this part," "§817.41," "§817.41(d)(1) of this part," "§817.41(h)," and "§817.41(j)" shall be replaced by "K.A.R. 47-9-1(d)(6)."

(III) "§817.42" shall be replaced by "K.A.R. 47-9-1(d)(7)."

(JJJ) "§817.43" and "§817.43(b) of this part" shall be replaced by "K.A.R. 47-9-1(d)(8)."

(KKK) "§817.45(a) of this part" shall be replaced by "K.A.R. 47-9-1(d)(9)."

(LLL) "§817.46" shall be replaced by "K.A.R. 47-9-1(d)(10)."

(MMM) "§817.49 of this chapter," "§817.49(a)(9)," "§817.49(b) of this part," and "§817.49(a) and (c)" shall be replaced by "K.A.R. 47-9-1(d)(12)."

(NNN) "§817.56 of this part" shall be replaced by "K.A.R. 47-9-1(d)(13)."

(OOO) "§817.64(a)" shall be replaced by "K.A.R. 47-9-1(d)(18)."

(PPP) "§817.66(c)" shall be replaced by "K.A.R. 47-9-1(d)(19)."

(QQQ) "§817.67" and "§817.67(e)" shall be replaced by "K.A.R. 47-9-1(d)(20)."

(RRR) "§817.68(p)" shall be replaced by "K.A.R. 47-9-1(d)(21)."

(SSS) "§817.71," "paragraphs (a) and (f) of §817.71 of this part," and "§817.71(f)(3)" shall be replaced by "K.A.R. 47-9-1(d)(22)."

(TTT) "§817.81" shall be replaced by "K.A.R. 47-9-1(d)(24)."

(UUU) "§817.83" shall be replaced by "K.A.R. 47-9-1(d)(25)."

(VVV) "§817.84 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(26)."

(WWW) "§817.97(a) of this part" and "§817.97(f) of this part" shall be replaced by "K.A.R. 47-9-1(d)(30)."

(XXX) "§817.102," "§817.102(c), (e) through (h), and (j)," and "§817.102(a)(1) and (2)" shall be replaced by "K.A.R. 47-9-1(d)(33)."

(YYY) "§817.106" shall be replaced by "K.A.R. 47-9-1(d)(34)."

(ZZZ) "§817.111" and "§817.111(b)" shall be replaced by "K.A.R. 47-9-1(d)(35)."

(AAAA) "§817.116" shall be replaced by "K.A.R. 47-9-1(d)(38)."

(BBBB) "§817.121(a) and (c) of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(39)."

(CCCC) "§817.150" shall be replaced by "K.A.R. 47-9-1(d)(44)."

(DDDD) "§823.12(c)(2)" and "§823.12(c)(1)" shall be replaced by "K.A.R. 47-9-1(f)(3)."

(EEEE) "§823.14(b)" shall be replaced by "K.A.R. 47-9-1(f)(4)."

(FFFF) "§827.12" shall be replaced by "K.A.R. 47-9-1(g)(2)."

(GGGG) "§827.13 of this part" shall be replaced by "K.A.R. 47-9-1(g)(3)."

(HHHH) "§§773.17(e) and 784.14(g) of this chapter" shall be replaced by "K.A.R. 47-6-6(a) and K.A.R. 47-10-1(a)(2)(E)."

(IIII) "§§773.17(e) and 780.21(h) of this chapter" shall be replaced by "K.A.R. 47-6-6(a) and K.A.R. 47-3-42(a)(48)."

(JJJJ) "§§780.21 and 780.22 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(48) and (49)."

(KKKK) "§§780.21 and 784.14 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(48) and K.A.R. 47-10-1(a)(2)(E)."

(LLLL) "§§780.21 and 784.22 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(48) and K.A.R. 47-10-1(a)(2)(M)."

(MMMM) "§§780.28 and 816.57 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(53) and K.A.R. 47-9-1(c)(14)."

(NNNN) "§§784.28 and 817.57 of this chapter" shall be replaced by "K.A.R. 47-10-1 (a)(2)(R) and K.A.R. 47-9-1(d)(14)."

(OOOO) "§§816.13 through 816.15 of this chapter" and "§§816.13 to 816.15" shall be replaced by "K.A.R. 47-9-1(c)(2) through (4)."

(PPPP) "§§816.22, 816.100, 816.102, 816.104, 816.106, 816.111, 816.113, 816.114, 816.116, and 816.133 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(5), (33), (35), (36), (38), (39), (40), (41), (42), and (45)."

(QQQQ) "§§816.22 and 816.111 through 816.116 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(5) and (39) through (42)."

(RRRR) "§§816.41 and 816.42 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(6) and (7)."

(SSSS) "§§816.41 through 816.43 and 816.57 of this chapter" and "§816.41 through 816.43 and 816.57 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(6) through (8) and (14)."

(TTTT) "§§816.41 through 816.49 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(6) through (12)."

(UUUU) "§§816.49 and 816.56" and "§§816.49 and 816.56 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(12) and (13)."

(VVVV) "§§816.71 through 816.74," "§§816.71 through 816.74 of this part," and "§§816.71-816.74 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(22) through (23)."

(WWWW) "§§816.81 and 816.83" shall be replaced by "K.A.R. 47-9-1(c)(25) and (26)."

(XXXX) "§§816.81, 816.83, 816.84, 816.87, 816.89, and 816.71 through 816.74 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(22), (23), (25), (26), (27), (28), and (29)."

(YYYY) "§§816.81(a), 816.83(a), and 816.84 of this part" shall be replaced by "K.A.R. 47-9-1(c)(25), (26), and (27)."

(ZZZZ) "§§816.102 and 816.104 through 816.106 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(35) and (36) through (38)."

(AAAAA) "§§816.102 through 816.107 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(35) through (38)."

(BBBBB) "§§816.111, 816.113, 816.114, and 816.116 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(39), (40), (41), and (42)."

(CCCCC) "§§816.111 through 816.116 of this chapter" and "§§816.111 through 816.116" shall be replaced by "K.A.R. 47-9-1(c)(39) through (42)."

(DDDDD) "§§816.131 and 816.132 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(43) and (44)."

(EEEEE) "§§816.150 and 816.151 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(46) and (47)."

(FFFFF) "§§816.150, 816.151, and 816.181 of this part" shall be replaced by "K.A.R. 47-9-1(c)(46), (47), and (49)."

(GGGGG) "§§816.150(b) through (f), 816.180, and 816.181 of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(46), (48), and (49)."

(HHHHH) "§§817.13 and 817.15" shall be replaced by "K.A.R. 47-9-1(d)(2) and (4)."

(IIIII) "§§817.13 to 817.15" shall be replaced by "K.A.R. 47-9-1(d)(2) to (4)."

(JJJJJ) "§§817.22 and 817.111 through 817.116 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(5) and (35) through (38)."

(KKKKK) "§§817.41 through 817.43 and 817.57 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(6) through (8) and (14)."

(LLLLL) "§§817.49 and 817.56" shall be replaced by "K.A.R. 47-9-1(d)(12) and (13)."

(MMMMM) "§§817.71 through 817.74" and "§§817.71 through 817.74 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(22) and (23)."

(NNNNN) "§§817.81 and 817.83" shall be replaced by "K.A.R. 47-9-1(d)(24) and (25)."

(OOOOO) "§§817.81(a), 817.83(a), and 817.84 of this part" shall be replaced by "K.A.R. 47-9-1(d)(24), (25), and (26)."

(PPPPP) "§§817.102 through 817.107 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(33) and (34)."

(QQQQQ) "§§817.111, 817.113, 817.114, and 817.116 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(35), (36), (37), and (38)."

(RRRRR) "§§817.111 through 817.116 of this chapter" and "§§817.111 through 817.116" shall be replaced by "K.A.R. 47-9-1(d)(35) through (38)."

(SSSSS) "§§817.150, 817.151, and 817.181 of this part" shall be replaced by "K.A.R. 47-9-1(d)(44), (45), and (47)."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405, K.S.A. 2018 Supp. 49-408, and K.S.A. 49-409, 49-411, 49-413, 49-415, and 49-429; effective May 1, 1980; amended, E-81-30, Oct. 8, 1980; amended May 1, 1981; amended May 1, 1985; amended May 1, 1986; amended May 1, 1988; amended Feb. 11, 1991; amended May 2, 1997; amended July 31, 1998; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-9-2 Revegetation

The permittee may be requested by the secretary or secretary's designee to cut the vegetative cover, remove rocks that are nine inches or larger, or carry out any other measures that promote the control and revegetation of the permit area, consistent with the approved postmining land use.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-409; effective May 1, 1985; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-9-4 Interim performance standards; adoption by reference

(a) The following regulations as in effect on July 1, 2012 are adopted by reference, except as specified in this regulation:

(1) Definitions, 30 C.F.R. 710.5;

(2) applicability, 30 C.F.R. 710.11(a), deleting subsection (a)(1) and the phrase "except as provided in §710.12 of this part";

(3) signs and markers, 30 C.F.R. 715.12;

(4) postmining use of land, 30 C.F.R. 715.13, deleting the second sentence in (d);

(5) backfilling and grading, 30 C.F.R. 715.14, deleting subsections (b)(3) and (c);

(6) disposal of excess spoil, 30 C.F.R. 715.15, deleting subsection (c);

(7) topsoil handling, 30 C.F.R. 715.16;

(8) protection of the hydrologic system, 30 C.F.R. 715.17, deleting subsection (j);

(9) dams constructed of or impounding waste material, 30 C.F.R. 715.18;

(10) revegetation, 30 C.F.R. 715.20;

(11) interpretative rules related to general performance standards, 30 C.F.R. 715.200; and

(12) prime farmland, 30 C.F.R. 716.7.

(b) The following phrases and citations shall be replaced with the phrases and citations specified in this subsection wherever the phrases and citations appear in the federal regulations adopted by reference in this regulation:

(1)(A) "Act" shall be replaced by "state act."

(B) "Subchapter B of this chapter" shall be replaced by "K.A.R. 47-9-4."

(D) "This part," "§716.2 of this chapter," "part 715 of this chapter," "this section," and "this chapter" shall be replaced by "these regulations."

(2)(A) "§715.12" shall be replaced by "K.A.R. 47-9-4(a)(3)."

(B) "§715.13" shall be replaced by "K.A.R. 47-9-4(a)(4)."

(D) "§715.15 of this part" shall be replaced by "K.A.R. 47-9-4(a)(6)."

(E) "§715.16," "§715.16(c)," "§715.16(a)(4)," and "30 CFR 715.16(a)(4)(i)" shall be replaced by "K.A.R. 47-9-4(a)(7)."

(F) "§715.17," "§715.17 of this part," "§715.17(a)," and "§715.17(c)" shall be replaced by "K.A.R. 47-9-4(a)(8)."

(G) "§715.18" shall be replaced by "K.A.R. 47-9-4(a)(9)."

(H) "§715.20" and "§715.20(g)" shall be replaced by "K.A.R. 47-9-4(a)(10)."

(I) "§716.7" shall be replaced by "K.A.R. 47-9-4(a)(12)."

(J) "§§715.13 and 715.14" shall be replaced by "K.A.R. 47-9-4(a)(4) and (5)."

(K) "§§715.14 and 715.20" shall be replaced by "K.A.R. 47-9-4(a)(5) and (10)."

(L) "§§715.14, 715.16, and 715.20" shall be replaced by "K.A.R. 47-9-4(a)(5), (7), and (10)."

(c) Each operator shall comply with the interim performance standards in an interim permit area, unless the secretary has approved, in writing, that operator's request to adhere to an applicable permanent program performance standard or other applicable substantive regulation.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by and implementing K.S.A. 49-405; effective May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Article 10 Underground Mining

Kan. Admin. Regs. § 47-10-1 Adoption by reference; underground mining

(a) The following federal regulations, as in effect on July 1, 2012, are adopted by reference, except as otherwise specified in this regulation:

(1) Underground mining permit applications—minimum requirements for information on environmental resources, 30 C.F.R. Part 783:

(A) Responsibilities, 30 C.F.R. 783.4;

(B) general requirements, 30 C.F.R. 783.11;

(D) climatological information, 30 C.F.R. 783.18;

(E) vegetation information, 30 C.F.R. 783.19;

(F) soil resources information, 30 C.F.R. 783.21;

(G) maps: general requirements, 30 C.F.R. 783.24; and

(H) cross sections, maps, and plans, 30 C.F.R. 783.25;

(2) underground mining permit applications—minimum requirements for reclamation and operation plan, 30 C.F.R. Part 784:

(A) Responsibilities, 30 C.F.R. 784.4;

(B) operation plan: general requirements, 30 C.F.R. 784.11;

(D) reclamation plan: general requirements, 30 C.F.R. 784.13;

(E) hydrologic information, 30 C.F.R. 784.14;

(F) reclamation plan: land use information, 30 C.F.R. 784.15;

(G) reclamation plan: siltation structures, impoundments, and refuse piles, 30 C.F.R. 784.16;

(H) protection of publicly owned parks and historic places, 30 C.F.R. 784.17;

(I) relocation or use of public roads, 30 C.F.R. 784.18;

(J) disposal of excess spoil, 30 C.F.R. 784.19;

(K) subsidence control plan, 30 C.F.R. 784.20, deleting the phrase "as described in §817.121(c)(4) of this chapter";

(L) fish and wildlife information, 30 C.F.R. 784.21;

(M) geologic information, 30 C.F.R. 784.22;

(N) operation plan: maps and plans, 30 C.F.R. 784.23;

(O) road systems, 30 C.F.R. 784.24;

(P) return of coal processing waste to abandoned underground workings, 30 C.F.R. 784.25;

(Q) air pollution control plan, 30 C.F.R. 784.26;

(R) surface activities in or adjacent to perennial or intermittent streams, 30 C.F.R. 784.28;

(S) diversions, 30 C.F.R. 784.29;

(T) support facilities, 30 C.F.R. 784.30; and

(U) interpretive rules related to general performance standards, 30 C.F.R. 784.200, except that "office of surface mining reclamation and enforcement" shall be replaced by "Kansas department of health and environment."

(1)(A) "Paragraphs (b)(2) through (b)(4) of §817.57 of this chapter," "paragraphs (b) and (c) of §817.57 of this chapter," "§817.57(a)(1) of this chapter," "§817.57(a)(2) of this chapter," and "§817.57(a)(2) of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(14)."

(B) "Subchapter B (Interim Program Standards) of this chapter" shall be replaced by "K.A.R. 47-9-4."

(D) "Subchapter K of this chapter" and "subchapter K (Permanent Program Standards) of this chapter" shall be replaced by "K.A.R. 47-9-1."

(E) "This chapter," "this section," "subchapter," "subchapter G of this chapter," and "this part" shall be replaced by "these regulations."

(F) "This title" shall be replaced by "the 30 CFR."

(2)(A) "Part 784 of this chapter" shall be replaced by "K.A.R. 47-10-1(a)(2)."

(B) "Part 817 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)."

(3)(A) "30 CFR Parts 773 and 775" shall be replaced by "K.A.R. 47-3-42(a)(2) through (20), K.A.R. 47-6-6, K.S.A. 49-407(d), K.S.A. 49-416a, and K.S.A. 49-422a, and amendments thereto, and article 4 of these regulations."

(B) "30 CFR 783.24 and 783.25" shall be replaced by "K.A.R. 47-10-1(a)(1)(G) and (H)."

(D) "30 CFR 784.16 of this part" shall be replaced by "K.A.R. 47-10-1(a)(2)(G)."

(E) "30 CFR 784.19 of this part" shall be replaced by "K.A.R. 47-10-1(a)(2)(J)."

(F) "30 CFR 784.21" shall be replaced by "K.A.R. 47-10-1(a)(2)(L)."

(G) "30 CFR 817.13-817.15" shall be replaced by "K.A.R. 47-9-1(d)(2) and (4)."

(H) "30 CFR 817.22," "§817.22 of the chapter," and "§817.22(b) of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(5)."

(I) "30 CFR 817.59" and "§817.59 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(15)."

(J) "30 CFR 817.81(f)" shall be replaced by "K.A.R. 47-9-1(d)(24)."

(K) "30 CFR 817.89 and 817.102" shall be replaced by "K.A.R. 47-9-1(d)(28) and (33)."

(L) "30 CFR 817.95" shall be replaced by "K.A.R. 47-9-1(d)(29)."

(M) "30 CFR 817.102 through 817.107" shall be replaced by "K.A.R. 47-9-1(d)(33) and (34)."

(N) "30 CFR 817.111 through 817.116" shall be replaced by "K.A.R. 47-9-1(d)(35) through (38)."

(O) "30 CFR 817.116" shall be replaced by "K.A.R. 47-9-1(d)(38)."

(4)(A) "§701.5 of this chapter" shall be replaced by "K.A.R. 47-2-75(b)."

(B) "§761.14 of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(4)."

(D) "§761.17(d) of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(7)."

(E) "§774.13" shall be replaced by "K.A.R. 47-6-2."

(F) "§783.25 of this chapter" shall be replaced by "K.A.R. 47-10-1(a)(1)(H)."

(G) "§784.15" and "§784.15(a)(2)" shall be replaced by "K.A.R. 47-10-1(a)(2)(F)."

(H) "§784.20" shall be replaced by "K.A.R. 47-10-1(a)(2)(K)."

(I) "§784.29 of this part and §817.43 of this chapter" shall be replaced by "K.A.R. 47-10-1(a)(2)(S) and K.A.R. 47-9-1(d)(8)."

(J) "§785.21 of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(64)."

(K) "§817.43 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(8)."

(L) "§817.46 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(10)."

(M) "§817.49 of this chapter," "paragraphs (a) and (c) of §817.49 of this chapter," and "§817.49(a)(4)(ii) of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(12)."

(N) "§817.71(d) of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(22)."

(O) "§817.74 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(23)."

(P) "§817.97 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(30)."

(Q) "§817.121(c) of this chapter" and "§817.121 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(39)."

(R) "§817.133," "30 CFR 817.133," and "§817.133(a)" shall be replaced by "K.A.R. 47-9-1(d)(43)."

(S) "§817.150(d)(1) of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(44)."

(T) "§817.151(c)(2) of this chapter," "§817.151(d)(5) of this chapter," "§817.151(d)(6) of this chapter," and "§817.151(b) of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(45)."

(U) "§817.181 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(47)."

(V) "§§784.14(g) and 817.41(d)(1) of this chapter" shall be replaced by "K.A.R. 47-10-1(a)(2)(E) and K.A.R. 47-9-1(d)(6)."

(W) "§§784.16(a)(2), 784.16(a)(3), 784.19, 817.73(c), 817.74(c), and 817.81(c) of this chapter" shall be replaced by "K.A.R. 47-10-1(a)(2)(G) and (J), and K.A.R. 47-9-1(d)(22), (23), and (24)."

(X) "§§784.21(b) and 817.97(a) of this chapter" shall be replaced by "K.A.R. 47-10-1 (a)(2)(L) and K.A.R. 47-9-1(d)(30)."

(Y) "§§817.41 to 817.43" shall be replaced by "K.A.R. 47-9-1(d)(6) through (8)."

(Z) "§§817.41(j) and 817.121(c) of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(6) and (39)."

(AA) "§§817.71 through 817.74" shall be replaced by "K.A.R. 47-9-1(d)(22) and (23)."

(BB) "§§817.81 and 817.83 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(24) and (25)."

(CC) "§§817.81 and 817.84 of this chapter" shall be replaced by "K.A.R. 47-9-1(d)(24) and (26)."

(DD) "§§817.81 through 817.84 of this chapter" and "30 CFR 817.81 through 817.84" shall be replaced by "K.A.R. 47-9-1(d)(24) through (26)."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-429; effective May 1, 1980; amended, E-81-30, Oct. 8, 1980; amended May 1, 1981; amended May 1, 1986; amended May 1, 1988; amended Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Article 11 Small Operator Assistance Program

Kan. Admin. Regs. § 47-11-8 Small operator assistance program; adoption by reference

(a) The following federal regulations, as in effect on July 1, 2012, are adopted by reference, except as otherwise specified in this regulation:

(1) Definitions, 30 C.F.R. 795.3;

(2) eligibility for assistance, 30 C.F.R. 795.6, deleting subsection (b);

(3) filing for assistance, 30 C.F.R. 795.7;

(4) application approval and notice, 30 C.F.R. 795.8;

(5) program services and data requirements, 30 C.F.R. 795.9;

(6) qualified laboratories, 30 C.F.R. 795.10;

(7) assistance funding, 30 C.F.R. 795.11; and

(8) applicant liability, 30 C.F.R. 795.12.

(1)(A) "Act" shall be replaced by "state act."

(B) "This chapter" and "this section" shall be replaced by "these regulations."

(2)(A) "§773.6(d) of this chapter" shall be replaced by "K.A.R. 47-3-42 (a)(2)."

(B) "§780.13" shall be replaced by "K.A.R. 47-3-42(a)(43)."

(D) "§795.9" and "§795.9(b)" shall be replaced by "K.A.R. 47-11-8(a)(5)."

(E) "§795.10" shall be replaced by "K.A.R. 47-11-8(a)(6)."

(F) "§§779.12(b) and 783.12(b) and §§780.31 and 784.17" shall be replaced by "K.A.R. 47-3-42(a)(34) and K.A.R. 47-10-1(a)(1)(C) and K.A.R. 47-3-42(a)(55) and K.A.R. 47-10-1(a)(2)(H)."

(G) "§§779.25 and 783.25" shall be replaced by "K.A.R. 47-3-42(a)(39) and K.A.R. 47-10-1(a)(1)(H)."

(H) "§§780.16 and 784.21" shall be replaced by "K.A.R. 47-3-42(a)(46) and K.A.R. 47-10-1(a)(2)(L)."

(I) "§§780.21, 780.22, 784.14, and 784.22" shall be replaced by "K.A.R. 47-3-42(a)(48) and (49), and K.A.R. 47-10-1(a)(2)(E) and (M)."

(J) "§§780.21(f), 784.14(e)" shall be replaced by "K.A.R. 47-3-42(a)(48) and K.A.R. 47-10-1(a)(2)(E)."

(K) "§§780.22(b) and 784.22(b)" shall be replaced by "K.A.R. 47-3-42(a)(49) and K.A.R. 47-10-1(a)(2)(M)."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 2018 Supp. 49-406; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Article 12 Lands Unsuitable for Surface Mining

Kan. Admin. Regs. § 47-12-4 Lands unsuitable for surface mining; adoption by reference

(a) The following federal regulations, as in effect on July 1, 2012, are adopted by reference, except as otherwise specified in this regulation:

(1) Definitions, 30 C.F.R. 761.5, except that the statement "we, us, and our refer to the office of surface mining reclamation and enforcement" shall be replaced by " 'we,' 'us,' and 'our' refer to the Kansas department of health and environment" and the phrase "or its State program counterpart" shall be deleted;

(2) areas where surface coal mining operations are prohibited or limited, 30 C.F.R. 761.11, deleting subsection (b);

(3) exception for existing operations, 30 C.F.R. 761.12, deleting subsection (b);

(4) procedures for relocating or closing a public road or waiving the prohibition on surface coal mining operations within the buffer zone of a public road, 30 C.F.R. 761.14;

(5) procedures for waiving the prohibition on surface coal mining operations within the buffer zone of an occupied dwelling, 30 C.F.R. 761.15;

(6) submission and processing of requests for valid existing rights determinations, 30 C.F.R. 761.16;

(7) regulatory authority obligations at time of permit application review, 30 C.F.R. 761.17;

(8) interpretive rule related to subsidence due to underground coal mining in areas designated by act of congress, 30 C.F.R. 761.200;

(9) definitions, 30 C.F.R. 762.5;

(10) criteria for designating lands as unsuitable, 30 C.F.R. 762.11;

(11) additional criteria, 30 C.F.R. 762.12. "Secretary" shall mean the "secretary of the United States department of interior" and "subchapter C of this chapter" shall mean "30 C.F.R. Parts 730, 731, 732, 733, 735, and 736";

(12) land exempt from designation as unsuitable for surface coal mining operations, 30 C.F.R. 762.13;

(13) applicability to lands designated as unsuitable by congress, 30 C.F.R. 762.14;

(14) exploration on land designated as unsuitable for surface coal mining operations, 30 C.F.R. 762.15;

(15) petitions, 30 C.F.R. 764.13;

(16) initial processing, recordkeeping, and notification requirements, 30 C.F.R. 764.15;

(17) hearing requirements, 30 C.F.R. 764.17;

(18) decision, 30 C.F.R. 764.19;

(19) data base and inventory system requirements, 30 C.F.R. 764.21;

(20) public information, 30 C.F.R. 764.23; and

(21) regulatory authority responsibility for implementation, 30 C.F.R. 764.25.

(1)(A) "Act" shall be replaced by "state act."

(B) "Federal Register" shall be replaced by "Kansas Register."

(D) "Subchapter G of this chapter" shall be replaced by "K.A.R. 47-3-42, K.A.R. 47-6-2, K.A.R. 47-6-3, K.A.R. 47-6-4, and K.A.R. 47-7-2."

(E) "This chapter" shall be replaced by "these regulations."

(F) "This part" and "this subchapter" shall be replaced by "K.A.R. 47-12-4."

(2)(A) "Part 761, 762, or 764 of this chapter" shall be replaced by "K.A.R. 47-12-4."

(B) "Part 772 of this chapter" shall be replaced by "K.A.R. 47-7-2."

(C) "Section 522 of the Act" and "section 522(e) of the Act" shall be replaced by "K.S.A. 49-405b, and amendments thereto."

(D) "Section 526(e) of the Act and §775.13 of this chapter" shall be replaced by "K.S.A. 49-422a and K.S.A. 49-426, and amendments thereto."

(E) "Section 701(28) of the act" shall be replaced by "K.S.A. 49-403(r), and amendments thereto."

(F) "Section 701(28) of the Act and §700.5 of this chapter" shall be replaced by "K.S.A. 49-403(r), and amendments thereto, and K.A.R. 47-2-75(a)."

(G) "Parts 764 and 769 of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(15) through (21)."

(H) "Sections 522(a)(2) and (3) of the Act" shall be replaced by "K.S.A. 49-405b(a)(1) and (2), and amendments thereto."

(3)(A) "30 U.S.C. 1272(e) and §761.11" shall be replaced by "K.S.A. 49-405b and 49-406(f), and amendments thereto, and K.A.R. 47-12-4(a)(2)."

(B) "30 U.S.C. 1272(e) or §761.11" shall be replaced by "K.S.A. 49-405b and 49-406(f), and amendments thereto, or K.A.R. 47-12-4(a)(2)."

(4)(A) "§700.5 of this chapter" shall be replaced by "K.A.R. 47-2-75(a)."

(B) "§761.5," "paragraph (a) of the definition of valid existing rights in §761.5," "paragraph (b) of the definition of valid existing rights in §761.5," "paragraph (b)(1) of the definition of valid existing rights in §761.5," "paragraph (c)(2) of the definition of valid existing rights in §761.5," "paragraphs (a), (c)(1) and (c)(2) of the definition of valid existing rights in §761.5," "paragraphs (b), (c)(1) and (c)(2) of the definition of valid existing rights in §761.5," and "paragraphs (c)(1) through (c)(3) of the definition of valid existing rights in §761.5" shall be replaced by "the definition of valid existing rights in K.A.R. 47-12-4(a)(1)."

(C) "§761.11," "§761.11 of this chapter," "§761.11(d)(1)," "§761.11(e)(2)," "§761.11(a) or (b)," "§761.11(c)," "§761.11(a)," and "§761.11(f) or (g)" shall be replaced by "K.A.R. 47-12-4(a)(2)."

(D) "§761.11 and 30 U.S.C. 1272(e)" shall be replaced by "K.A.R. 47-12-4(a)(2) and K.S.A. 49-405b and 49-406(f), and amendments thereto."

(E) "§761.12" shall be replaced by "K.A.R. 47-12-4(a)(3)."

(F) "§761.14" shall be replaced by "K.A.R. 47-12-4(a)(4)."

(G) "§761.15" shall be replaced by "K.A.R. 47-12-4(a)(5)."

(H) "§761.16" shall be replaced by "K.A.R. 47-12-4(a)(6)."

(I) "§761.17(d)" shall be replaced by "K.A.R. 47-12-4(a)(7)."

(J) "§762.11(b) of this chapter," "§762.11(a) of this chapter," and "§762.11 of this chapter" shall be replaced by "K.A.R. 47-12-4(a)(10)."

(K) "§764.13(b) or (c)" and "§764.13(a)" shall be replaced by "K.A.R. 47-12-4(a)(15)."

(L) "§764.17" and "§764.17(e)" shall be replaced by "K.A.R. 47-12-4(a)(17)."

(M) "§764.21" shall be replaced by "K.A.R. 47-12-4(a)(19)."

(N) "§773.13(d) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(9)."

(O) "§779.24(c) or §783.24(c) of this chapter" shall be replaced by "K.A.R. 47-3-42(a)(38) or K.A.R. 47-10-1(a)(1)(G)."

(P) "§840.14 or §842.16 of this chapter" shall be replaced by "K.A.R. 47-15-1a(a)(2)."

(Q) "§§761.13 through 761.15" shall be replaced by "K.A.R. 47-12-4(a)(4) and (5)."

(R) "§§775.11 and 775.13 of this chapter" shall be replaced by "K.S.A. 49-407(d), K.S.A. 49-416a, K.S.A. 49-422a, and amendments thereto, and article 4 of these regulations."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405b, K.S.A. 2018 Supp. 49-422a, and K.S.A. 49-426; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended May 1, 1986; amended May 1, 1988; amended Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Article 13 Training, Certification, and Responsibilities of Blasters and Operators

Kan. Admin. Regs. § 47-13-4 Training and certification of blasters; adoption by reference

(a) The following portions of the "permanent regulatory program requirements—standards for certification of blasters," 30 C.F.R. part 850, as in effect on July 1, 2012, are hereby adopted by reference, except as specified in this regulation:

(1) Definition, 30 C.F.R. 850.5;

(2) training, 30 C.F.R. 850.13;

(3) examination, 30 C.F.R. 850.14, except that for the purposes of this section only, the term "regulatory authority" shall be replaced by "secretary-approved blaster training program director"; and

(4) certification, 30 C.F.R. 850.15, except that for the purposes of 30 C.F.R. 850.15(a) only, "regulatory authority" shall be replaced by "state fire marshal."

(b) The following phrase and citation shall be replaced with the phrase and citation specified in this subsection wherever the phrase and citation appear in the text of the federal regulations adopted by reference in this regulation:

(1) "This part" shall be replaced by "these regulations."

(2) "§850.13(b)" shall be replaced by "K.A.R. 47-13-4(a)(2)."

(c) The term "secretary-approved blaster training program director" shall mean the person who is in charge of a given blaster training program that has been specifically approved by the secretary as being in accordance with the state act, these regulations, and the state program.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by and implementing K.S.A. 49-405 and 49-405a; effective May 1, 1985; amended Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-13-5 Responsibilities of operators and blasters-in-charge

(a) Each operator shall perform the following:

(1) designate a blaster-in-charge for each blast to be detonated in surface coal mining and reclamation operations;

(2) ensure that the designated blaster-in-charge is properly certified;

(3) ensure that each employee who performs blasting tasks under the supervision of a blaster-in-charge has adequate training;

(4) limit the size of a blasting crew to 12 persons, supervised by a blaster-in-charge who is continuously and readily accessible to crew members in preparing and executing a blast. A larger blasting crew may be approved by the secretary if these conditions exist:

(A) unusual circumstances or mining methods are involved; and

(B) the operator ensures that the blaster-in-charge can perform the following:

(i) provide adequate, direct supervision to crew members;

(ii) remain in control of blast design, preparation, and execution; and

(iii) assure that blasting complies with the applicable regulations; and

(5) ensure that each blaster-in-charge shall supervise no more than one crew at any given time.

(b) Each blaster-in-charge shall fulfill these requirements:

(1) be certified by the state fire marshal for each blasting operation conducted in the state of Kansas;

(2) ensure that blast design and execution meet the applicable standards;

(3) directly supervise blast preparation and execution at the blast site to ensure that such standards are met;

(4) be present at the site when the blast is detonated;

(5) ensure that each member of each blasting crew has adequate training to perform assigned tasks in compliance with the applicable standards; and

(6) limit to 12 the number of persons being supervised at any given time in preparing and executing a blast at one operational pit at the site.

(c) After instructions from the blaster-in-charge and under the direct supervision of the blaster-in-charge, members of the blasting crew may engage in these activities:

(1) perform general blasting operations;

(2) load and unload explosives for use in blasting;

(3) transport explosives at or near the job site;

(4) load explosives into drill holes; and

(5) stem or otherwise prepare explosives for detonation.

(d) The blaster-in-charge shall retain full responsibility for all blasting and for the use of explosives. These responsibilities shall include the following:

(1) keeping blasting logs and records;

(2) supervising the blasting-related activities of the workers over which the supervisor is in charge; and

(3) ensuring that each person under the supervisor's charge has the training necessary to perform the person's assigned tasks safely and in accordance with the applicable regulations.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405 and 49-405a; implementing K.S.A. 49-405; effective May 1, 1985; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-13-6 Training

(a) Each person seeking a blaster certification pursuant to K.A.R. 47-13-4 shall document successful completion of a department-approved blaster training program.

(b) Proof of completion of an approved blaster training program shall be filed with an applicant's application for certification by the state fire marshal.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by and implementing K.S.A. 49-405 and 49-405a; effective May 1, 1985; amended Feb. 11, 1991; amended May 2, 1997.)

Article 14 Employee Financial Interests

Kan. Admin. Regs. § 47-14-7 Employee financial interest; adoption by reference

(a) The following federal regulations, as in effect on July 1, 2012, are adopted by reference, except as otherwise specified in this regulation:

(1) Responsibility, 30 C.F.R. 705.4(a) and (c), deleting subsection (b);

(2) penalties, 30 C.F.R. 705.6(b), deleting subsection (a);

(3) who shall file, 30 C.F.R. 705.11(a), (b), (c), and (d), deleting subsection (e);

(4) when to file, 30 C.F.R. 705.13;

(5) where to file, 30 C.F.R. 705.15;

(6) what to report, 30 C.F.R. 705.17;

(7) gifts and gratuities, 30 C.F.R. 705.18;

(8) resolving prohibited interests, 30 C.F.R. 705.19(a), deleting subsection (b); and

(9) appeals procedures, 30 C.F.R. 705.21.

(1)(A) "Act" shall be replaced by the term "state act," except in 30 C.F.R. 705.6(b), where the term "Act" shall mean "the surface mining control and reclamation act of 1977, Pub. L. 95-87."

(B) "Head of each State Regulatory Authority" and "Head of the State Regulatory Authority" shall be replaced by the term "secretary of the Kansas department of health and environment."

(2) "Section 517(g) of the Act" and "section 517(g)" shall be replaced by "K.S.A. 49-404, and amendments thereto."

(3)(A) "§705.6(a)" shall be replaced by "K.S.A. 49-404."

(B) "§705.11" and "§705.11(b), (c), and (d)" shall be replaced by "K.A.R. 47-14-7(a)(3)."

(D) "§705.19" shall be replaced by "K.A.R. 47-14-7(a)(8)."

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History

History: (Authorized by K.S.A. 49-404; implementing K.S.A. 49-405; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Article 15 Inspections and Enforcement

Kan. Admin. Regs. § 47-15-1a Inspection and enforcement; adoption by reference

(a) The following regulations as in effect on July 1, 2012 are adopted by reference, except as otherwise specified in this regulation:

(1) Inspections by state regulatory authority, 30 C.F.R. 840.11;

(2) availability of records, 30 C.F.R. 840.14;

(3) definitions, 30 C.F.R. 843.5;

(4) right of entry, 30 C.F.R. 840.12;

(5) compliance conference, 30 C.F.R. 840.16;

(6) review of adequacy and completeness of inspections, 30 C.F.R. 842.14, except that "director or his or her designee" shall be replaced by "secretary or secretary's designee";

(7) review of decision not to inspect or enforce, 30 C.F.R. 842.15, except that "OSM" shall be replaced with "Kansas department of health and environment";

(8) cessation orders, 30 C.F.R. 843.11;

(9) notices of violations, 30 C.F.R. 843.12, except for the following:

(A) In subsection (a) of 30 C.F.R. 843.12, the following phrase shall be deleted: "carried out during the enforcement of a federal program or federal lands program or during federal enforcement of a state program under sections 504(b) or 521(b) of the act and part 733 of this chapter"; and

(B) paragraph (a)(2) of 30 C.F.R. 843.12 shall be deleted;

(10) suspension or revocation of permits: pattern of violations, 30 C.F.R. 843.13, except that the phrase "or a federal lands program" in paragraph (a)(4)(i)(A) of 30 C.F.R. 843.13 shall be deleted, and paragraphs (a)(4)(i)(B) and (C) of 30 C.F.R. 843.13 shall be deleted;

(11) service of notices of violation, cessation orders, and show cause orders, 30 C.F.R. 843.14, except that the first sentence in subsection (c) shall be deleted and, in the second sentence, the word "office" shall be replaced with "Kansas department of health and environment";

(12) informal public hearing, 30 C.F.R. 843.15. However, the following sentence in subsection (e) shall be deleted: "Section 554 of title 5 of the United States code, regarding requirements for formal adjudicatory hearings, shall not govern public hearings";

(13) formal review of citations, 30 C.F.R. 843.16;

(14) inability to comply, 30 C.F.R. 843.18; and

(15) compliance conference, 30 C.F.R. 843.20.

(1)(A) "Act" shall be replaced by "state act."

(B) "Director" shall be replaced by "director of OSM."

(D) "Freedom of Information Act or other Federal law" shall be replaced by "Kansas Open Records Act or other State law."

(E) "Office" shall be replaced by "secretary or secretary's designee."

(F) "Office of hearings and appeals" shall be replaced by "department."

(G) "Office of Surface Mining" shall be replaced by "Kansas department of health and environment."

(H) "Rule 4 of the Federal Rules of Civil Procedure" shall be replaced by "K.A.R. 47-4-14a."

(I) "Secretary" shall be replaced by "secretary of KDHE."

(J) "This chapter," "this part," and "this section" shall be replaced by "these regulations."

(2)(A) "Section 517 of the Act and §840.11" shall be replaced by "K.S.A. 49-404, K.S.A. 49-405, and K.S.A. 49-405d, and amendments thereto, and K.A.R. 47-15-1a(a)(1)."

(B) "Section 517 of the Act and §842.11" shall be replaced by "K.S.A. 49-404, K.S.A. 49-405, and K.S.A. 49-405d, and amendments thereto."

(C) "Section 518(b), 521(a)(4), or 525 of the Act" shall be replaced by "K.S.A. 49-405c(b), K.S.A. 49-405(m)(3), or K.S.A. 49-416a and amendments thereto."

(D) "Section 518(e), 518(f), 521(a)(4), or 521(c) of the Act or their regulatory program counterparts" shall be replaced by "K.S.A. 49-405c(e) and (f) and K.S.A. 49-405(m), and amendments thereto."

(E) "Section 520 of the Act" shall be replaced by "K.S.A. 49-426, and amendments thereto."

(F) "Section 521(a)(2) of the Act" shall be replaced by "K.S.A. 49-405(m)(1), and amendments thereto."

(G) "Section 521(a)(5) of the Act and §843.15" shall be replaced by "K.S.A. 49-405(m)(4), and amendments thereto, and K.A.R. 47-15-1a(a)(12)."

(H) "Section 525 of the Act" shall be replaced by "K.S.A. 49-416a, and amendments thereto."

(3)(A) "30 CFR Part 845" and "part 845 of this chapter" shall be replaced by "article 5 of these regulations."

(B) "43 CFR part 4" shall be replaced by "K.A.R. 47-4-14a."

(4)(A) "§701.5 of this chapter" shall be replaced by "K.A.R. 47-2-75(b)."

(B) "§772.15 and 773.6(d) of this chapter" shall be replaced by "K.A.R. 47-7-2(a)(5) and K.A.R. 47-3-42(a)(2)."

(D) "§816.131(b) or §817.131(b) of this chapter" shall be replaced by "K.A.R. 47-9-1(c)(43) or (d)(41)."

(E) "§842.12" shall be replaced by "K.A.R. 47-15-7 and K.A.R. 47-15-8."

(F) "§843.11" and "§843.11(b)" shall be replaced by "K.A.R. 47-15-1a(a)(8)."

(G) "§843.11 or §843.12" shall be replaced by "K.A.R. 47-15-1a(a)(8) and (9)."

(H) "§843.12(a)" and "§843.12(c) and (f)" shall be replaced by "K.A.R. 47-15-1a(a)(9)."

(I) "§843.13(c)" shall be replaced by "K.A.R. 47-15-1a(a)(10)."

(J) "§845.15(b)(2) of this chapter" shall be replaced by "K.A.R. 47-5-5a(a)(5)."

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History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-404, 49-405, 49-405c, and 49-405d, K.S.A. 2018 Supp. 49-406, K.S.A. 49-416, 49-416a, and 49-427; effective May 1, 1985; amended May 1, 1986; amended Feb. 11, 1991; amended May 2, 1997; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-15-3 Lack of information; inability to comply

(a) A notice of violation, cessation order, show cause order, or order revoking or suspending a permit shall not be vacated because it is subsequently determined that the secretary did not have information sufficient to justify an inspection.

(b) A notice of violation or cessation order shall not be vacated because of inability to comply.

(d) Unless caused by lack of diligence, inability to comply may be considered only in mitigation of the amount of the civil penalty and the duration of the suspension of a permit.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405, 49-405c; implementing K.S.A. 49-405 and 49-405c; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-15-4 Injunctive relief

The attorney general may be requested by the secretary to institute any civil action for relief, including a permanent or temporary injunction, and a restraining order or any other order, whenever, in violation of the state act, these regulations, or any condition of an exploration approval or permit, anyone does the following:

(a) violates, fails to comply with, or refuses to comply with any order or decision of the secretary or secretary's designee;

(b) interferes with, hinders, or delays the secretary or secretary's designee in carrying out provisions of the state act or these regulations; or

(1) admit the secretary or secretary's designee to a mine;

(2) permit inspection of a mine by the secretary or secretary's designee;

(3) furnish any required information or report;

(4) permit access to or copying of any required records; or

(5) permit inspection of monitoring equipment.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by and implementing K.S.A. 49-405; effective, E-81-30, Oct. 8, 1980; effective May 1, 1981; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-15-7 State inspections

(a) Inspection of surface coal mining and reclamation operations shall be conducted by the secretary or secretary's designee as necessary to determine whether or not the permittee has complied with any notice of violation or cessation order issued during an inspection authorized under this regulation.

(b) A state inspection shall be conducted immediately by the secretary or secretary's designee to enforce any requirement of the state act, these regulations, the regulatory program, or any condition of a permit or an exploration approval.

(c) Appropriate action to have the violation abated shall be taken by the secretary or secretary's designee when, on the basis of information available to the department other than information resulting from a previous state inspection, the secretary or secretary's designee has reason to believe that either of the following has occurred:

(1) the permittee has violated the state act, these regulations, the regulatory program, or any condition of a permit or an exploration approval; or

(2) any condition, practice, or violation creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause a significant, imminent environmental harm to land, air, or water resources.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405, 49-405d; effective May 1, 1984; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-15-8 Citizen's requests for state inspections

(a) Any person may request a state inspection under K.A.R. 47-15-7(b) by furnishing the secretary or secretary's designee with a signed, written statement or an oral report followed by a signed, written statement. The statement shall include the following:

(1) the reasons that the person believes a violation, condition, or practice referred to in K.A.R. 47-15-7(b) exists; and

(2) a phone number and address at which the person can be contacted.

(b) Upon request by the person, the identity of any person supplying information to the secretary or secretary's designee relating to a possible violation or imminent danger or harm shall remain confidential, unless that person accompanies the inspector on the inspection.

(c) If a state inspection is conducted as a result of information provided to the secretary or secretary's designee as described in subsection (a) of this regulation, the person requesting the inspection shall be notified as far in advance as practicable as to when the inspection will occur. The person may accompany the secretary or secretary's designee. During the inspection, the person shall have a right of entry to, upon, and through the coal exploration or surface coal mining and reclamation operation about which that person supplied information. However, the person shall be in the presence of and under the control, direction, and supervision of the secretary or secretary's designee while on the mine property. This right of entry shall not include a right to enter buildings without consent of the person in control of the building or without a search warrant.

(d) Within 10 days after the state inspection or, if there is no inspection, within 15 days after receipt of the person's written statement, the secretary or secretary's designee shall send the person the following:

(1)(A) If an inspection was conducted, a description of the enforcement action taken. This description may consist of copies of the state inspection report and of all notices of violation and cessation orders issued as a result of the inspection or an explanation as to why no enforcement action was taken; or

(B) if no state inspection was conducted, an explanation of the reason why an inspection was not considered to be necessary; and

(2) an explanation of the person's right, if any, to informal review of the action or inaction of the secretary or secretary's designee under K.A.R. 47-15-1a(a)(6).

(e) Copies of all materials in paragraphs (d)(1) and (d)(2) of this regulation shall be given by the secretary or secretary's designee to the person alleged to be in violation within the time limits specified in those paragraphs. However, the name of the person requesting the inspection shall be removed unless disclosure of the person's identity is permitted under subsection (b) of this regulation.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405, 49-405d; effective May 1, 1984; amended May 1, 1985; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-15-15 Service of notices of violations and cessation orders

(a) Promptly after issuance, each notice of violation or cessation order shall be served on the person to whom it is directed or to that person's designated agent, as follows:

(1)(A) A copy of each notice of violation or cessation order may be tendered, at the coal exploration or surface coal mining and reclamation operation, to the designated agent or to the individual who, based upon reasonable inquiry by the authorized representative, appears to be in charge of the coal exploration or surface coal mining and reclamation operation referred to in the notice or order.

(B) If no one in charge can be found, the copy may be tendered to any individual at the site who appears to be an employee or agent of the person to whom the notice or order is issued.

(C) Service shall be complete upon tender of the notice or order and shall not be deemed incomplete because of refusal to accept.

(2)(A) In the alternative, service may be made by sending a copy of the notice or order by certified mail or by delivering the copy by hand to the person to whom it is issued or to the person's designated agent.

(B) Service shall be complete upon tender of the notice or order or upon certified mailing of the notice or order, and service shall not be deemed incomplete because of refusal to accept.

(b) A show cause order may be served on the person to whom it is issued in either manner provided in subsection (a) of this regulation.

(c) A person shall make any designation of an agent for service of notices and orders in writing and to the secretary or secretary's designee.

(d) The secretary or secretary's designee may furnish copies to any person having an interest in the coal exploration, surface coal mining and reclamation operation, or the permit area, including the owner of the fee, a corporate officer of the permittee or entity conducting coal exploration, or the bonding company.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405, 49-405d; effective May 1, 1984; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-15-17 Maintenance of permit areas

The permittee shall be required by the secretary or the secretary's designee to cut vegetative growth, if necessary to facilitate inspection of each permit area in order to insure compliance with the state act and regulations.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-405, 49-405d; effective May 1, 1985; amended Feb. 11, 1991; amended May 2, 1997.)

Article 16 Reclamation

Kan. Admin. Regs. § 47-16-1 Eligible lands and water

(a) Coal mined lands and associated waters shall be eligible for reclamation activities if these conditions are met:

(1) they were mined or affected by mining processes;

(2) they were mined before August 3, 1977, and were left or abandoned in an unreclaimed or inadequately reclaimed condition; and

(3) there is no continuing responsibility for reclamation by the operator, permittee, or agent of the permittee under statutes of the state or federal government or a result of bond forfeiture. Bond forfeiture shall render lands or water ineligible only if the amount forfeited is sufficient to pay the total cost of the necessary reclamation.

(b) Lands and water that were mined or affected by mining for minerals and materials other than coal shall be eligible for reclamation activities if all reclamation with respect to abandoned coal mine land and water has been accomplished within the state.

(c) "Left or abandoned in an unreclaimed or inadequately reclaimed condition" means land and water that meet the following conditions:

(1) were mined or affected by such mining, wastebanks, processing, or other mining processes before August 3, 1977, and on which all mining has ceased;

(2) continue, in their present condition, to substantially degrade the quality of the environment, prevent or damage the beneficial use of land or water resources, or endanger the health and safety of the public; and

(3) are not subject to any continuing reclamation responsibility under state or federal laws.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-428; effective May 1, 1983; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-16-2 Reclamation project evaluation

Proposed reclamation projects and completed reclamation work shall be evaluated using the factors stated in this section to determine whether or not proposed reclamation will be undertaken and to assign priorities to proposals intended to meet the objectives of K.S.A. 49-428. Completed reclamation shall be evaluated using the following factors to identify conditions that should be avoided, corrected, or improved in plans for future reclamation work:

(a) the need for reclamation work to accomplish one or more specific objectives stated in K.S.A. 49-428;

(b) the availability of technology to accomplish the reclamation work with reasonable assurance of success. In the case of research and demonstration projects, the research capability and plans shall provide reasonable assurance of beneficial results without residual adverse impacts;

(1) protection of human life, health, or safety;

(2) protection of the environment, including air and water quality, fish and wildlife, plant habitat, visual beauty, historic, cultural or recreation resources, and abatement of erosion sedimentation;

(3) protection of public or private property;

(4) improvement of environmental conditions that may be considered to generally enhance the quality of human life;

(5) improvement of natural resource use, including:

(A) increasing productivity capability of the land;

(B) enhancing the use of surrounding lands consistent with existing land use plans;

(D) providing for residential, commercial, or industrial developments consistent with the needs and plans of the community in which the site is located; and

(6) technologies that can be used to reclaim areas disturbed by mining;

(d) any additional adverse impacts to people or the environment during or after reclamation and of uncorrected conditions, if any, that will continue to exist after reclamation;

(e) the costs of reclamation. Consideration shall be given to both the economy and efficiency of the reclamation work and to the results obtained or expected as a result of reclamation;

(f) any additional coal or other mineral or material resources within the project area when either of the following conditions exists:

(1) a reasonable probability that the desired reclamation could be accomplished in conjunction with future mining; or

(2) a need to assure that the resource is not lost as a result of reclamation and the benefits of reclamation are not negated by subsequent, essential resource recovery operations;

(g) compatibility of post-reclamation land uses with the following:

(1) land uses in the surrounding area;

(2) applicable state, regional, and local land use plans and laws; and

(3) the needs and desires of the community where the project is located; and

(h) the probability that post-reclamation management, maintenance and control of the area will be consistent with the reclamation completed.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-428; effective May 1, 1983; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-16-3 Consent to entry

(a) All reasonable actions that are necessary to obtain prior written consent from the owner of record of the land or property to be entered shall be taken by the secretary or secretary's designee.

(b) The consent shall consist of a signed statement by the owner or the owner's authorized agent that shall include the following:

(1) a legal description of the land to be entered;

(2) the nature of work to be performed on the lands; and

(3) any special conditions for entry.

(c) This statement shall not include any commitment by the secretary to perform reclamation work or compensate the owner for entry.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-432; effective May 1, 1983; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-16-4 Entry for study or exploration

(a) Any property may be entered by the secretary or secretary's designee for the purpose of conducting studies or exploratory work to determine the following:

(1) the existence of adverse effects of past coal mining practices; and

(2) the feasibility of restoration, reclamation, abatement, control, or prevention of adverse effects.

(b) If the owner will not give consent to entry, notice shall be given to the owner in writing of the secretary's intent to enter for purposes of study and exploration to determine the existence of adverse effects of past coal mining practices that may be harmful to the public health, safety, or general welfare. The notice shall be provided by mail, return receipt requested, to the owner, if known, and shall include a statement of the reasons why entry is believed necessary. If the owner is not known, or the current mailing address of the owner is not known, or if the owner is not readily available, the notice shall be posted in one or more places on the property to be entered where it is readily visible to the public. In addition, the notice shall be published once in a newspaper of general circulation in the locality in which the land is located. Notice shall be given at least 30 days before entry.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-432; effective May 1, 1983; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-16-5 Entry and consent to reclaim

(a) Notice shall be given of the secretary's intent to enter for purposes of conducting reclamation at least 30 days before entry upon the property. The notice shall be in writing and shall be mailed, return receipt requested, to the owner, if known, with a copy of the findings required by K.S.A. 49-432. If the owner is not known, or if the current mailing address of the owner is not known, notice shall be posted in one or more places on the property to be entered where it is readily visible to the public. In addition, the notice shall be published once in a newspaper of general circulation in the locality in which the land is located. The notice shall include a statement of where the findings required by K.S.A. 49-432 may be inspected or obtained.

(b) Any land where an emergency exists and on any other land necessary to gain access to the land where an emergency exists may be entered by the secretary to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices and to do all things necessary to protect the public health, safety, or general welfare.

(1) Before entry a written finding shall be made by the secretary with reasons supporting the following conclusions:

(A) an emergency exists constituting a danger to the public health, safety, or general welfare; and

(B) no other person or agency will act expeditiously to restore, reclaim, abate, control, or prevent the adverse effects of coal mining practices.

(2) Notice to the owner shall not be required before entry for emergency reclamation. Reasonable efforts to notify the owner and obtain prior consent shall be made by the secretary. These efforts shall be consistent with the existing emergency conditions. Proper written notice shall be given to the owner as soon after entry as practical.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-432; effective May 1, 1983; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-16-6 Liens

(a) A lien may be placed by the secretary on land reclaimed if the reclamation results in a significant increase in the fair market value based on the pre- and post-reclamation appraisals, except that the lien may be waived by the secretary or the secretary's designee if at least one of the following conditions is met:

(1) The lien amount would be less than the cost of filing the lien.

(2) The reclamation work primarily improves the health, safety, or condition of the environment of the community or area affected.

(3) The reclamation is necessitated by an unforeseen occurrence, and the work performed to restore the land will not significantly increase the market value of the land as it existed immediately before the occurrence.

(b) A lien shall not be placed against land reclaimed if the current owner of the property acquired title before May 2, 1977 and did not consent to, participate in, or exercise control over the mining operation that caused or contributed to the unreclaimed conditions.

(c) If a lien is to be filed, within six months after completion of the reclamation work, a statement shall be filed by the secretary in the office having responsibility under applicable law for recording judgments and placing liens against land. The statement shall include the following:

(1) An account of monies expended for the reclamation work; and

(2) a notarized summary of the appraisal report.

(d) The increase in the appraised value of the property shall constitute the amount of the lien recorded and shall have priority second only to a real estate tax lien. The landowner shall be afforded the following:

(1) Notified before the time of filing the lien of the amount of the proposed lien; and

(2) allowed a reasonable time to pay that amount in lieu of filing the lien.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-428; effective May 1, 1983; amended Feb. 11, 1991; amended May 2, 1997; amended July 31, 1998; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-16-7 Appraisals

(a) In order for a lien to be filed under K.A.R. 47-16-6, the following procedures shall be followed. (a) A notarized appraisal of the fair market value of the land shall be obtained from an independent, professional appraiser before any reclamation activities are started.

(b) A second, notarized appraisal of the fair market value of the land shall be obtained after all reclamation activities have been completed.

(c) The landowner shall receive a statement of any increase in market value, an itemized statement of reclamation expenses, and a notice that a lien will be filed against the property.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-428; effective May 1, 1983; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-16-8 Satisfaction of liens

(a) A lien shall be satisfied to the extent of the value of the consideration received, at the time of transfer of ownership. Any unsatisfied portion shall remain as a lien on the property and shall be satisfied in accordance with this subsection.

(b) Liens shall be maintained or renewed by the secretary from time to time as may be required.

(c) Monies derived from the satisfaction of liens established under this subsection shall be deposited in the state abandoned mined-land fund.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-428; effective May 1, 1983; amended Feb. 11, 1991; amended May 2, 1997.)

Kan. Admin. Regs. § 47-16-9 Contractor responsibility

(a) Each successful bidder for an abandoned mined-land reclamation project contract shall be eligible under 30 C.F.R. 773.12(a), as adopted by reference in K.A.R. 47-3-42(a)(8), at the time of contract award to receive a permit or conditional permit to conduct surface coal mining operations.

(b) Before any contract may be awarded to a bidder, that bidder's eligibility shall be confirmed by the office of surface mining's automated applicant violator system.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-428; effective May 2, 1997; amended July 31, 1998; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-16-10 Exclusion of certain noncoal reclamation sites

(a) Money from the abandoned mined-land fund shall not be used for either of the following:

(1) The reclamation of sites and areas designated for remedial action pursuant to the uranium mill tailings radiation control act of 1978, 42 U.S.C. 7901 et seq. as amended; or

(2) sites listed for remedial action pursuant to the comprehensive environmental response compensation and liability act of 1980, 42 U.S.C. 9601 et seq. as amended.

(b)(1) Each successful bidder for an abandoned mined-land contract for noncoal reclamation shall be eligible under 30 C.F.R. 773.12(a), as adopted by reference in K.A.R. 47-3-42(a)(8), at the time of contract award to receive a permit or conditional permit to conduct surface coal mining operations.

(2) Bidder eligibility shall be confirmed by the office of surface mining's automated applicant violator system for each contract to be awarded.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-428; effective May 2, 1997; amended July 31, 1998; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-16-11 Reports

For each grant, cooperative agreement, or both, any reports required by the office of surface mining reclamation and enforcement shall be submitted by the department either semiannually or annually, according to OSM requirements, to the office of surface mining reclamation and enforcement.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-428; effective May 2, 1997; amended July 31, 1998.)

Kan. Admin. Regs. § 47-16-12 Surface mining section's procedures for reclamation projects receiving less than 50 percent government funding

30 C.F.R. 874.17, as in effect on July 1, 2012, is adopted by reference, except that the following terms shall be replaced with the terms specified:

(a) "Title V" and "Title V of SMCRA" shall be replaced by "K.S.A. 49-401 et seq."

(b) "Part 707 of this chapter" and "the part 707 exemption or counterpart State/Indian Tribe laws and regulations" shall be replaced by "K.A.R. 47-6-9."

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-428; amended Dec. 1, 2006; amended Feb. 15, 2019.)

Kan. Admin. Regs. § 47-16-13 Reclamation of non-coal-mined lands and associated waters

(a) Non-coal-mined lands and associated waters shall be eligible for reclamation if all of the following conditions are met:

(1) The lands and waters were mined or affected by mining processes.

(2) The lands and waters were left or abandoned in an unreclaimed or inadequately reclaimed condition before August 3, 1977.

(3) There is no ongoing responsibility for reclamation by the operator, permittee, or agent of the permittee under state or federal statutes or by the state as a result of bond forfeiture. Bond forfeiture shall render the lands and waters ineligible if the amount forfeited is sufficient to pay the total cost of necessary reclamation. If the forfeited bond is insufficient to pay the total cost of reclamation, moneys sufficient to complete the reclamation may be used from the abandoned mined-land fund.

(4) The reclamation has been requested by the governor.

(5) The reclamation is necessary to protect public health, safety, general welfare, and property from extreme danger of adverse effects of non-coal-mining practices.

(b) Each successful bidder for a contract for a non-coal-reclamation project under this regulation shall be eligible under 30 C.F.R. 773.12, as adopted by reference in K.A.R. 47-3-42, at the time of contract award to receive a permit or conditional permit to conduct surface coal mining operations.

***** Authenticated Kansas Administrative Regulation *****

History

History: (Authorized by K.S.A. 49-405; implementing K.S.A. 49-428; effective Feb. 15, 2019.)