§ 15-58-404 - Abatement of adverse effects -- Lien.
15-58-404. Abatement of adverse effects -- Lien.
(a) If the Director of the Arkansas Department of Environmental Quality or his or her authorized representative, pursuant to the state abandoned mine reclamation program, makes a finding of fact that:
(1) Land or water resources have been adversely affected by past coal mining practices; and
(2) The adverse effects are at a state where, in the public interest, action to restore, reclaim, abate, control, or prevent should be taken; and
(3) (A) The owners of the land or water resources where entry must be made to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices are not known, or readily available; or
(B) The owners will not give permission for the state or political subdivisions of the state, or their agents, employees, or contractors to enter upon such property to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices;
then, upon giving notice by mail to the owners, if known, or if not known, by posting notice upon the premises and advertising once in a newspaper of general circulation in the county in which the land lies, the director or his or her authorized representative shall have the right to enter upon the property adversely affected by past coal mining practice and any other property to have access to the property to do all things necessary or expedient to restore, reclaim, abate, control, or prevent adverse effects. The entry shall be construed as an exercise of the police power for the protection of public health, safety, and general welfare and shall not be construed as an act of condemnation of property nor of trespass thereon. The moneys expended for the work and the benefits accruing to any premises so entered upon shall be chargeable against the land and shall mitigate or offset any claim in or any action brought by any owner of any interest in the premises for any alleged damages by virtue of the entry. However, this provision is not intended to create new rights of action or eliminate existing immunities.
(b) There shall exist a lien against the property so reclaimed if the moneys expended for reclamation shall result in a significant increase in property value. The lien shall be effective upon the filing by the director of a notice of lien with the circuit clerk of the county in which the land is located, and in accordance with the regulations issued by the Arkansas Pollution Control and Ecology Commission, but the notice shall constitute a lien upon the land as of the date of the expenditure of the moneys and shall have priority as a lien second only to the lien of real estate taxes imposed upon the land.
(c) The lien obtained pursuant to this section shall not exceed the amount determined by an independent appraisal to be the increase in the market value of the land as a result of the reclamation undertaken. The commission by regulations shall establish procedures for determining the amount of the lien. The landowner or any parties aggrieved by the decision determining the amount of the lien may request an adjudicatory hearing before the commission pursuant to 15-58-209 -- 15-58-211.
(d) No lien shall be filed against the property of any person, in accordance with this subsection, who owned the surface prior to May 2, 1977, and who neither consented to, participated in, nor exercised control over the mining operation which necessitated the reclamation performed hereunder.