Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS Chapter 350, 7 C.F.R. Part 657,
30
C.F.R. Parts 700.5,
701.5,
707.5, 730-733, 735,
761.5,
762.5,
773.5,
800.5,
843.5, 917, 40 C.F.R.
Part 136, 30 U.S.C. Chapter 25, 1253, 1255, 1291
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires
the cabinet to promulgate administrative regulations pertaining to surface coal
mining and reclamation operations under the permanent regulatory program. This
administrative regulation establishes definitions for terms used in 405 KAR
Chapter 10.
Section 1. Definitions.
(1) "Acquisition" means the purchase, lease,
or option on the land for the purpose of conducting or allowing through resale,
lease, or option the action of conducting surface coal mining and reclamation
operations.
(2) "Active acre":
(a) Means an acre of land or fraction
thereof, permitted and bonded for surface disturbance pursuant to a surface
coal mining permit as of July 1, 2013; and
(b) Does not mean:
1. Acreage contained in a permit for which
the entire permit has not been initially disturbed by the permittee after
permit issuance;
2. Acreage
contained in a permit, or increment thereof, that has completed initial
reclamation and received a minimum of a Phase 1 bond release; or
3. Undisturbed acreage completely released
from liability as a result of a bond release or bond reduction.
(3) "Actuarial
soundness" is defined by
KRS
350.500(1).
(4) "Adjacent area" means land located
outside the affected area or permit area, depending on the context in which
"adjacent area" is used, where air, surface, surface water, groundwater, fish,
wildlife, vegetation, or other resources protected by KRS Chapter 350 could be
adversely impacted by surface coal mining and reclamation operations.
(5) "Affected area" means any land or water
area that is used to facilitate, or is physically altered by, surface coal
mining and reclamation operations. The affected area includes:
(a) The disturbed area;
(b) Any area upon which surface coal mining
and reclamation operations are conducted;
(c) Any adjacent lands the use of which is
incidental to surface coal mining and reclamation operations;
(d) All areas covered by new or existing
roads used to gain access to, or for hauling coal to or from, surface coal
mining and reclamation operations, except as established in this
definition;
(e) Any area covered by
surface excavations, workings, impoundments, dams, ventilation shafts,
entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm
banks, tailings, holes or depressions, repair areas, storage areas, or shipping
areas;
(f) Any areas upon which are
sited structures, facilities, or other property or material on the surface
resulting from, or incident to, surface coal mining and reclamation
operations;
(g) The area located
above underground workings associated with underground mining
activities;
(h) Auger mining or in
situ mining; and
(i) Every road
used for the purposes of access to, or for hauling coal to or from, surface
coal mining and reclamation operations, unless the road:
1. Was designated as a public road pursuant
to the laws of the jurisdiction in which it is located;
2. Is maintained with public funds and
constructed in a manner similar to other public roads of the same
classification within the jurisdiction; and
3. There is substantial (more than
incidental) public use.
(6) "Applicant" means any person seeking a
permit, permit revision, permit amendment, permit renewal or transfer,
assignment, or sale of permit rights from the cabinet to conduct surface coal
mining and reclamation operations pursuant to KRS Chapter 350 and 405 KAR
Chapters 7 through 24.
(7)
"Cabinet" is defined by
KRS
350.010(10).
(8) "C.F.R." means Code of Federal
Regulations.
(9) "Coal" means
combustible carbonaceous rock, classified as anthracite, bituminous,
sub-bituminous, or lignite by ASTM Standard D 388-77.
(10) "Coal mined and sold" means coal severed
or removed as a result of surface coal mining operations and subsequently sold,
transferred, or used by the permittee or operator.
(11) "Collateral bond" means an indemnity
agreement in a sum certain payable to the cabinet executed by the permittee and
supported by the deposit with the cabinet of cash, negotiable certificates of
deposit, or an irrevocable letter of credit of any bank organized and
authorized to transact business in the United States.
(12) "Cropland" means land used for the
production of adapted crops for harvest, alone or in a rotation with grasses
and legumes, and includes row crops, small grain crops, hay crops, nursery
crops, orchard crops, and other similar specialty crops.
(13) "Day" means calendar day unless
otherwise specified to be a working day.
(14) "Department" means the Department for
Natural Resources.
(15) "Disturbed
area" means an area where vegetation, topsoil, or overburden is removed or upon
which topsoil, spoil, coal processing waste, underground development waste, or
noncoal waste is placed by surface coal mining operations. Those areas are
classified as "disturbed" until reclamation is complete and the performance
bond or other assurance of performance required by 405 KAR Chapter 10 is
released.
(16) "Dormancy fee" means
the annual fee established in
KRS
350.518(2)(f).
(17) "FDIC" means Federal Deposit Insurance
Corporation.
(18) "Federal lands":
(a) Means any lands, including mineral
interests, owned by the United States, without regard to how the United States
acquired ownership of the lands or which agency manages the lands;
and
(b) Does not mean Indian
lands.
(19) "Final
disposition" means the status of an enforcement action taken by the cabinet
pursuant to KRS Chapter 350 for which a final secretary's order has been
entered and the time for appeal has expired or all appeals have been exhausted,
or an agreed order has been entered.
(20) "FSLIC" means Federal Savings and Loan
Insurance Corporation.
(21)
"Full-cost bonding" means performance bonds that have been submitted by a
permittee for surface coal mining operation permits in lieu of participation
and membership in the Kentucky Reclamation Guaranty Fund.
(22) "Historically used for cropland" means
land that:
(a) Has been used for cropland for
any five (5) years or more out of the ten (10) years immediately preceding the:
1. Application; or
2. Acquisition of the land for the purpose of
conducting surface coal mining and reclamation operations;
(b) Would likely have been used as cropland
for any five (5) out of the last ten (10) years immediately preceding the
acquisition or the application but for some fact of ownership or control of the
land unrelated to the productivity of the land; or
(c) The cabinet determines, on the basis of
additional cropland history of the surrounding land and the land under
consideration, are clearly cropland but fall outside the specific five (5)
years in ten (10) criterion.
(23) "Impoundment" means a closed basin,
naturally formed or artificially built, which is dammed or excavated for the
retention of water, sediment, or waste.
(24) "KRGF" means the Kentucky Reclamation
Guaranty Fund.
(25) "Land use"
means specific functions, uses, or management-related activities of an area,
and could be identified in combination when joint or seasonal uses occur and
could include land used for support facilities that are an integral part of the
use. In some instances, a specific use can be identified without active
management.
(26) "Long term
treatment" means the use of any active or passive water treatment necessary to
meet water quality effluent standards at the time a permit or any affected
permit increment attains phase one (1) bond release standards as determined by
the cabinet pursuant to
405
KAR 10:040.
(27) "Member" means a permittee in the
Kentucky Reclamation Guaranty Fund.
(28) "Non-production fee" means the annual
fee established in
KRS
350.518(2)(e).
(29) "Notice of noncompliance and order for
remedial measures" means a written document and order prepared by an authorized
representative of the cabinet that establishes with specificity the violations
of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit conditions that
the authorized representative of the cabinet determines to have occurred based
upon an inspection, and the necessary remedial actions, if any, and the time
schedule for completion thereof, necessary and appropriate to correct the
violations.
(30) "Operations" is
defined by
KRS
350.010(6).
(31) "Operator" is defined by
KRS
350.010(8).
(32) "Opt-out" means the decision by a
permittee to not participate in the KRGF and to provide full-cost bonding
pursuant to
405 KAR
10:080.
(33) "Order for cessation and immediate
compliance" means a written document and order issued by an authorized
representative of the cabinet when:
(a) A
person to whom a notice of noncompliance and order for remedial measures was
issued has failed, as determined by a cabinet inspection, to comply with the
terms of the notice of noncompliance and order for remedial measures within the
time limits set therein, or as subsequently extended; or
(b) The authorized representative finds, on
the basis of a cabinet inspection, any condition or practice or any violation
of KRS Chapter 350, 405 KAR Chapters 7 through 24, or any condition of a permit
or exploration approval that:
1. Creates an
imminent danger to the health or safety of the public; or
2. Is causing or can reasonably be expected
to cause significant, imminent environmental harm to land, air, or water
resources.
(34) "ORGF" means the Office of the
Reclamation Guaranty Fund.
(35)
"Owned or controlled" and "owns or controls" mean any one (1) or a combination
of the relationships established in paragraphs (a) and (b) of this definition:
(a)
1.
Being a permittee of a surface coal mining operation;
2. Based on instruments of ownership or
voting securities, owning of record in excess of fifty (50) percent of an
entity; or
3. Having any other
relationship that gives one (1) person authority directly or indirectly to
determine the manner in which an applicant, an operator, or other entity
conducts surface coal mining operations; and
(b) One (1) of the following relationships,
which constitutes ownership or control unless a person demonstrates that the
person subject to the presumption does not in fact have the authority directly
or indirectly to determine the manner in which the relevant surface coal mining
operation is conducted:
1. Being an officer
or director of an entity;
2. Being
the operator of a surface coal mining operation;
3. Having the ability to commit the financial
or real property assets or working resources of an entity;
4. Being a general partner in a
partnership;
5. Based on the
instruments of ownership or the voting securities of a corporate entity, owning
of record ten (10) through fifty (50) percent of the entity; or
6. Owning or controlling coal to be mined by
another person under a lease, sublease, or other contract and having the right
to receive the coal after mining or having authority to determine the manner in
which that person or another person conducts a surface coal mining
operation.
(36) "Performance bond" means a surety bond,
a collateral bond, or a combination thereof, or bonds filed pursuant to the
provisions of the Kentucky Reclamation Guaranty Fund (405 KAR
10:070,
KRS
350.595, and
350.500
- 350.521), by which a permittee assures faithful performance of all the
requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the
requirements of the permit and reclamation plan.
(37) "Permit" means written approval issued
by the cabinet to conduct surface coal mining and reclamation
operations.
(38) "Permit area"
means the area of land, indicated on the approved map submitted by the
permittee with an application, required to be covered by the permittee's
performance bond pursuant to 405 KAR Chapter 10 and that includes the area of
land upon which the permittee proposes to conduct surface coal mining and
reclamation operations pursuant to the permit, including all disturbed areas.
Areas adequately bonded under another valid permit, pursuant to 405 KAR Chapter
10, could be excluded from the permit area.
(39) "Permittee" means an operator or a
person holding or required by KRS Chapter 350 or 405 KAR Chapters 7 through 24
to hold a permit to conduct surface coal mining and reclamation operations
during the permit term and until all reclamation obligations imposed by KRS
Chapter 350 and 405 KAR Chapters 7 through 24 are satisfied.
(40) "Person" is defined by
KRS
350.010(9).
(41) "Person having an interest that is or
may be adversely affected" or "person with a valid legal interest" includes any
person:
(a) Who uses any resource of economic,
recreational, aesthetic, or environmental value that could be adversely
affected by coal exploration or surface coal mining and reclamation operations,
or by any related action of the cabinet; or
(b) Whose property is or could be adversely
affected by coal exploration or surface coal mining and reclamation operations,
or by any related action of the cabinet.
(42) "Prime farmland" means those lands
defined by the Secretary of Agriculture in 7 C.F.R. 657 and that have been
"historically used for cropland".
(43) "Reclamation" is defined by
KRS
350.010(12).
(44) "Secretary" is defined by
KRS
350.010(11).
(45) "SMCRA" means Surface Mining Control and
Reclamation Act, 30 U.S.C. Chapter 25 of 1977 ( PL 95-87 ), as
amended.
(46) "Surety bond" means
an indemnity agreement in a sum certain, payable to the cabinet and executed by
the permittee, which is supported by the performance guarantee of a corporation
licensed to do business as a surety in the Commonwealth of Kentucky.
(47) "Surface coal mining and reclamation
operations" is defined by
KRS
350.010(3).
(48) "Surface coal mining operations" is
defined by
KRS
350.010(1).
(49) "Suspended solids" or nonfilterable
residue, expressed as milligrams per liter, means organic or inorganic
materials carried or held in suspension in water that are retained by a
standard glass fiber filter in the procedure outlined by the U.S. EPA's
regulations for waste water and analyses (40 C.F.R. 136) .
(50) "Ton" means 2,000 pounds avoirdupois
(.90718 metric ton).
(51) "Topsoil"
means the A and E soil horizon layers of the four (4) master soil
horizons.
(52) "U.S. EPA" means
United States Environmental Protection Agency.
(53) "Voluntary Bond Pool" is defined by
KRS
350.500(5).
(54) "Willfully" and "willful violation" mean
that a person acted either intentionally, voluntarily, or consciously, and with
intentional disregard or plain indifference to legal requirements, in
authorizing, ordering, or carrying out an act or omission that constituted a
violation of SMCRA, KRS Chapter 350, 405 KAR Chapters 7 through 24, or a permit
condition, or that constituted a failure or refusal to comply with an order
issued pursuant to SMCRA, KRS Chapter 350, or 405 KAR Chapters 7 through
24.
STATUTORY AUTHORITY:
KRS 350.028,
350.465,
350.500
- 350.521, 7 C.F.R. Part 657,
30
C.F.R. Parts 700.5,
701.5,
707.5, 730-733, 735,
761.5,
762.5,
773.5,
800.5,
843.5, 917, 40 C.F.R.
Part 136,
30 U.S.C. 1253,
1255,
1291