Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
350.020,
350.093,
350.100,
350.151,
350.405,
350.410,
350.450,
350.465,
30 C.F.R. Parts 730-733, 735,
817.102
-.106, 917,
30 U.S.C. 1253,
1255,
1266
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in
pertinent part requires the cabinet to promulgate rules and administrative
regulations establishing performance standards for protection of people and
property, land, water and other natural resources, and aesthetic values, during
underground mining activities and for restoration and reclamation of surface
areas affected by underground mining activities. This administrative regulation
sets forth requirements for backfilling and grading of areas affected by
surface operations, including requirements for backfilling and grading of
face-up areas and other cut slopes and limited exemptions, timing of
backfilling and grading, covering coal and acid and toxic materials, and
regrading or stabilizing rills and gullies.
Section
1. Timing of Backfilling and Grading. Surface areas disturbed
incident to underground mining activities shall be backfilled and graded in
accordance with a relative time-schedule approved by the cabinet in accordance
with
405 KAR
18:020.
Section
2. General Backfilling and Grading Requirements.
(1) Except as provided in subsection (8) of
this section, all disturbed areas shall be returned to their approximate
original contour. All spoil shall be transported, placed in a controlled
manner, backfilled, compacted (where advisable to ensure stability or to
prevent leaching of toxic materials), and graded to:
(a) Eliminate all highwalls (except as
otherwise provided in Section 5 of this administrative regulation), spoil
piles, and depressions (excluding depressions and impoundments approved
pursuant to subsection (4) or (5) of this section);
(b) Ensure a long-term static factor of
safety of at least one and three-tenths (1.3) for all portions of the reclaimed
land;
(c) Achieve a postmining
slope which does not exceed the angle of repose and which does prevent
slides;
(d) Minimize erosion and
adverse effects on surface and groundwater both on and off the site;
and
(e) Support the approved
postmining land use.
(2)
Spoil, except excess spoil disposed of in accordance with
405 KAR
18:130, shall be returned to the excavated surface
areas.
(3) Disposal of coal
processing waste and underground development waste in the mined-out surface
area shall be in accordance with
405 KAR
18:140, except that a long-term static safety factor
of one and three-tenths (1.3) shall be achieved.
(4) Small depressions may be constructed on
backfilled areas, if the depressions:
(a) Are
needed to minimize erosion, conserve soil moisture, create or enhance wildlife
habitat, or promote vegetation;
(b)
Are not disapproved by the cabinet;
(c) Are not substitutes for compliance with
approximate original contour requirements;
(d) Do not adversely affect the stability of
the backfilled area; and
(e) Are
not located on steep-slope outslopes.
(5) Impoundments on backfilled areas may be
approved, if the impoundments:
(a) Meet the
applicable requirements of
405 KAR
18:060, Section 10 and
405 KAR
18:100;
(b) Are demonstrated, to the satisfaction of
the cabinet in the permit application, to have no adverse effect on the
stability of the backfilled area;
(c) Are consistent with and suitable for the
approved postmining land use;
(d)
Are specifically approved by the cabinet in the permit application;
and
(e) Are not located on
steep-slope outslopes.
(6) All underground mining activities on
slopes above twenty (20) degrees, or on lesser slopes that the cabinet defines
as steep slopes, shall comply with the requirements of
405 KAR
20:060.
(7) All final grading; preparation of
overburden before replacement of topsoil, topsoil substitutes, and topsoil
supplements; and placement of topsoil, topsoil substitutes, and topsoil
supplements shall be done along the contour to minimize subsequent erosion and
instability. If grading, preparation, or placement along the contour is
hazardous to equipment operators, then grading, preparation, or placement in a
direction other than generally parallel to the contour may be used. In all
cases, grading, preparation, and placement shall be conducted in a manner which
minimizes erosion and provides a surface for placement of topsoil, topsoil
substitutes, and topsoil supplements which will minimize slippage.
(8) The postmining slope may vary from the
approximate original contour if approval is obtained from the cabinet for:
(a) A variance from approximate original
contour requirements in accordance with
405 KAR
8:050, Section 6;
(b) Incomplete elimination of highwalls in
previously mined areas in accordance with Section 5 of this administrative
regulation; or
(c) Incomplete
elimination of face-up areas and similar cut slopes pursuant to subsection (9)
of this section.
(9)
Face-up areas and similar cut slopes created prior to the effective date of
SMCRA, as defined at Section 502(a), (b), and (c) therein, that are associated
with underground mining activities which were started prior to the effective
date of SMCRA and which have continued as existing and ongoing operations
pursuant to permits issued under the interim and permanent regulatory programs
shall be backfilled and graded in accordance with the requirements of Section 5
of this administrative regulation; except that for the purposes of this
subsection "reasonably available spoil" shall not include spoil generated by
the operation prior to the effective date of SMCRA which is not accessible and
available for use or which would cause a hazard to public safety or significant
damage to the environment if rehandled.
Section 3. Disposal of Acid-forming,
Toxic-forming, and Combustible Materials and Coverage of Coal Seams.
(1) General. Exposed coal seams, acid-forming
materials, toxic-forming materials, and combustible materials which are used,
produced, or exposed during surface coal mining and reclamation operations
shall be handled; disposed of; treated; and covered with nontoxic-forming,
nonacidforming, and noncombustible materials in a manner which:
(a) Minimizes adverse impacts on surface and
groundwater, minimizes disturbances to the hydro-logic balance, and prevents
material damage to the hydrologic balance;
(b) Ensures compliance with
405 KAR
18:060;
(c) Prevents sustained combustion;
(d) Minimizes adverse impacts on plant growth
and the approved postmining land use;
(e) Ensures that the affected area is capable
of sustaining sufficient vegetation to meet the re-vegetation requirements of
405 KAR 18:200;
and
(f) Ensures that the affected
area is capable of meeting the postmining land use requirements of
405 KAR
18:220.
(2) Coverage and treatment. All exposed coal
seams, acid-forming materials, toxic-forming materials, and combustible
materials which are used, produced, or exposed during surface coal mining and
reclamation operations shall be covered and treated as necessary to neutralize
toxicity, acidity, and combustibility, in order to ensure long-term and
short-term compliance with subsection (1) of this section.
(a) All exposed coal seams shall be covered
with a minimum of four (4) feet of nontoxic-forming, nonacid-forming, and
noncombustible materials. The cabinet shall require thicker amounts of cover,
special compaction of cover, treatment, or other measures as necessary to
ensure compliance with subsection (1) of this section and to prevent exposure
of the coal seams by erosion.
(b)
Excluding exposed coal seams, all acid-forming materials, toxic-forming
materials, and combustible materials which are used, produced, or exposed
during surface coal mining and reclamation operations shall be:
1. Selectively blended with nontoxic-forming,
nonacid-forming, and noncombustible materials; treated; or selectively handled,
or an appropriate combination of those measures shall be used, as necessary to
ensure compliance with subsection (1) of this section; and
2. Covered with a minimum of four (4) feet of
nontoxic-forming, nonacid-forming, and noncom-bustible materials. The cabinet
shall require thicker amounts of cover, special compaction of cover, treatment,
or other measures as necessary to ensure compliance with subsection (1) of this
section and to prevent exposure of the toxic-forming, acid-forming, or
combustible materials by erosion. The cabinet may approve lesser amounts of
cover, or no cover (other than topsoil, topsoil substitutes, or topsoil
supplements), if the applicant demonstrates, to the satisfaction of the cabinet
in the permit application, that the lesser amounts are sufficient to ensure
compliance with subsection (1) of this section and to maintain coverage of the
toxic-forming, acid-forming, and combustible materials;
3. If required or approved by the cabinet,
compacted and placed in an environment which minimizes the oxidation potential
of the toxic-forming materials, acid-forming materials, and combustible
materials; and
4. If required or
approved by the cabinet, disposed so as to minimize surface and groundwater
contact with acid-forming materials, toxic-forming materials, and combustible
materials. Water contact may be minimized by the encasement of those materials
in low-permeability substances and by the compaction and selective placement of
those materials in locations other than surface drainage courses, groundwater
recharge areas, or areas of significant groundwater flow. As an alternative to
minimizing contact with surface and groundwater and if feasible based on site
conditions, the cabinet may allow acid-forming materials, toxic-forming
materials, and combustible materials be placed below the permanent water
table.
(3)
The cabinet shall require measures in addition to those identified in
subsection (2) of this section if necessary to ensure protection of the
environment or the health or safety of the public.
Section 4. Regrading or Stabilizing Rills and
Gullies. Except as provided in subsections (1) and (2) of this section, if
rills or gullies deeper than nine (9) inches form in areas that have been
regraded and topsoiled, the rills and gullies shall be filled, graded, or
otherwise stabilized and the area re-seeded and replanted according to
405 KAR 18:200.
(1) Rills or gullies less than nine (9)
inches deep shall be stabilized and the area reseeded and replanted, if the
rills or gullies are disruptive to the approved postmining land use or to the
establishment of vegetation, may result in additional erosion and
sedimentation, or may cause or contribute to the violation of a water quality
standard.
(2) Rills and gullies
deeper than nine (9) inches need not be filled, regraded, and revegetated if
all of the following criteria are met:
(a)
They are incised to solid bedrock or are otherwise stable and not likely to
further erode;
(b) They are not
disruptive to the approved postmining land use or to the establishment of the
vegetative cover; and
(c) They
neither cause nor contribute to the violation of water quality
standards.
Section
5. Remining Previously Mined Areas.
(1) General requirements. Remining operations
on previously mined areas, including steep slope areas, that contain a
preexisting highwall shall comply with Sections 1 through 4 of this
administrative regulation except as provided in this section.
(2) Variances to backfilling and grading
requirements for remining operations. The requirements within Section 2(1)(a)
of this administrative regulation to completely eliminate highwalls shall apply
to remining operations, except for situations in which the volume of all
reasonably available spoil is demonstrated, to the satisfaction of the cabinet
in the permit application, to be insufficient to completely backfill and
eliminate the preexisting or modified highwall. The highwall shall be
eliminated to the maximum extent technically practicable in accordance with the
following criteria:
(a) All reasonably
available spoil shall be used to backfill the area.
(b) The backfill shall be graded to a slope
which is compatible with the approved postmining land use and which provides
adequate drainage and long-term stability (one and three-tenths (1.3) long-term
static factor of safety). The exposed coal seam shall be covered in accordance
with Section 3 of this administrative regulation.
(c) Spoil generated or handled by the
remining operation shall not be placed on the fill section of any existing or
new bench.
(d) Any highwall remnant
shall be stable and not pose a hazard to the public health and safety or to the
environment. The permittee shall demonstrate, to the satisfaction of the
cabinet in the permit application, that the postmining highwall remnant will be
stable. If the highwall remnant is determined by the cabinet to be unstable or
potentially unstable, the permittee shall perform any corrective measures
required by the cabinet to stabilize the highwall remnant.
(e) Spoil placed on the outslope during
previous mining operations shall not be disturbed if the disturbance will cause
instability of the remaining spoil or otherwise increase the hazard to the
public health or safety or to the environment.
Section 6. Temporary Storage of Materials.
(1) After excavation, materials to be used
for backfilling in compliance with this administrative regulation shall be
returned, for backfilling purposes in accordance with this administrative
regulation, to a mined-out area within the permit area or shall be temporarily
stored in designated storage areas designs of which have been provided in the
permit application and thereby approved by the cabinet.
(2) Temporary storage areas shall be designed
and constructed in accordance with the requirements of
405 KAR
18:130 or
405 KAR
18:140, depending on the type of material, except as
specified in the following:
(a) If the
temporary storage area is to exist for six (6) months or longer, the storage
area shall be protected by establishment of an effective cover of nonnoxious,
quick-growing, annual and perennial plants seeded or planted during the first
normal seeding or planting period following placement of the fill material and
resown as necessary thereafter.
(b)
Topsoil, topsoil substitute, and topsoil supplement materials to be used in
final reclamation of the temporary storage area shall either be stockpiled in
accordance with
405 KAR 18:050, Section
3(1) through (3) or temporarily redistributed on areas in accordance with
405 KAR 18:050, Section
3(4). The applicant shall submit, in the permit application, a discussion from
a qualified soil scientist or qualified agronomist which indicates, to the
satisfaction of the cabinet, that the topsoil stockpile or temporary
redistribution plan will minimize adverse effects on the quality and quantity
of the topsoil, topsoil substitute, and topsoil supplement materials.
(3) Fills designed and constructed
in accordance with this section may be retained as permanent structures if:
(a) The cabinet approves a permit revision
submitted in accordance with
405 KAR
8:010, Section 20 for retention of the fill as a
permanent structure and for the use of alternate materials to backfill areas
and return the disturbed areas to their approximate original contour, in
accordance with the requirements of this administrative regulation;
(b) Topsoil, topsoil substitute, and topsoil
supplement materials are redistributed on the fill in accordance with
405 KAR 18:050;
(c) The fill is revegetated and reclaimed in
accordance with
405 KAR 18:200,
405 KAR
18:220, and all other applicable requirements of KRS
Chapter 350 and 405 KAR; and
(d)
The borrow area or other area from which the alternate backfill material is
obtained is permitted under a valid permit from Department for Natural
Resources and is reclaimed in accordance with the requirements of KRS Chapter
350 and 405 KAR.
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100,
350.151, 350.465, 30 C.F.R. Parts 730-733, 735,
817.102
-.106, 917,
30 U.S.C. 1253,
1255,
1266