Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
350.093,
350.095,
350.100,
350.151,
350.405,
350.410,
350.420,
350.435,
350.465,
30 C.F.R. Parts 730-733, 735,
817.111-817.116,
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 revegetation of areas affected by surface
operations and facilities of underground mining activities, including
requirements for temporary and permanent vegetative cover, use of introduced
species, timing of revegetation, mulching and other soil stabilizing practices,
standards for measuring revegetation success, and reporting
requirements.
Section 1. General
Requirements.
(1)
(a) Each permittee shall establish on all
areas affected by surface operations and facilities a diverse, effective, and
permanent vegetative cover that meets the requirements of this administrative
regulation and the revegetation provisions of
405
KAR 18:180, and that supports the approved postmining
land use.
(b) For prime farmland
areas, the requirements of
405 KAR 20:040
shall apply in lieu of the productivity standards of this administrative
regulation unless those areas are exempted by
405 KAR
8:050, Section 3, in which case the productivity
standards of this administrative regulation shall apply.
(2) All revegetation shall be in compliance
with the plan submitted under
405 KAR
8:040, Sections 24(4) and 37, as approved by the
cabinet, and shall be carried out in a manner that encourages a prompt
vegetative cover and recovery of productivity levels compatible with the
approved postmining land use.
(3)
If the approved postmining land use is not cropland or pastureland, all
disturbed land except water areas, rock areas such as those used for drainage
control and wildlife enhancement, and surface areas of roads that are approved
as a part of the postmining land use or uses shall be seeded or planted to
achieve a permanent vegetative cover of the same seasonal variety native to the
region that is capable of soil stabilization, self-regeneration, and plant
succession. The vegetative cover shall be considered of the same seasonal
variety if it consists of a mixture of species of equal or superior utility for
the approved postmining land use, when compared with the utility of naturally
occurring vegetation during each season of the year.
(4) If the postmining land use is cropland or
pastureland, establishment of crops or pasture species normally grown in the
mine vicinity and normal husbandry practices, and compliance with
405
KAR 18:180, Section 3(2) for cropland, will meet the
requirements of subsection (1)(a) of this section.
(5)
(a)
Plant species used for revegetation shall be compatible with the plant and
animal species of the area, and shall meet the requirements of applicable state
and federal laws or regulations for seeds, poisonous and noxious plants, and
introduced species.
(b) Except for
cropland, selection of species, distribution patterns, seeding rates, and
planting arrangements shall be approved case-by-case by the cabinet based upon
this administrative regulation and TRM #21, "Plant Species, Distribution
Patterns, Seeding Rates, and Planting Arrangements for Revegetation of Mined
Lands", Kentucky Department of Fish and Wildlife Resources, Kentucky Department
of Natural Resources, Division of Forestry, and Kentucky Department for Surface
Mining Reclamation and Enforcement (January 6, 1995). This document is
incorporated by reference. It may be reviewed, copied, or obtained at the
Department for Natural Resources, 300 Sower Boulevard, Frankfort, Kentucky
40601, Monday through Friday, 8 a.m. to 4:30 p.m. Two (2) or more permanent
legume species and two (2) or more permanent grasses shall be established on
pastureland unless fewer species are approved by the cabinet based on a pasture
management plan specifically tailored to the species mix.
(6) Subject to the approval of the cabinet,
small incidental areas related to the fulfillment of the postmining land use
may be exempted from the revegetation standards if no adverse environmental
impact will occur if the exemption is granted.
(7) The extended liability period under the
performance bond requirements of 405 KAR Chapter 10 shall begin after the last
time of augmented seeding, fertilizing, irrigating, or other related work, and
shall continue for not less than five (5) years; except:
(a) Discrete areas of 0.25 acre or less
needing reseeding due to circumstances specified in sub-paragraphs 1 through 5
of this paragraph may be reseeded (including reliming, refertilizing, and
remulching) without restarting the five (5) year liability period. The total
acreage of these areas re-seeded during the liability period shall not exceed
three (3) percent of the acreage affected by surface operations and facilities.
This paragraph shall only apply to:
1.
Reseeding associated with repair of rills and gullies;
2. Reseeding areas where vegetation was
disturbed by vehicular traffic not under the control of the
permittee;
3. Reseeding areas where
vegetation was disturbed by the installation or removal of oil and gas wells or
utility lines;
4. Reseeding areas
where there was poor seed germination of the initial seeding; and
5. Reseeding areas where vegetation was
unavoidably disturbed in the course of conducting some other necessary
reclamation activity.
(b) Liming, fertilizing, mulching, seeding,
or stocking of haul roads, locations where sedimentation ponds and off-site
temporary diversions that divert water to or away from sedimentation ponds have
been removed, and locations where collected sediment and embankment material
from sedimentation pond removal have been disposed shall not restart the five
(5) year liability period. Vegetation established in these areas shall be in
place for at least two (2) years before Phase III bond release;
(c) For cropland, the five (5) year liability
period shall commence at the date of initial planting for the long-term
intensive agricultural postmining land use;
(d) Irrigating, reliming, and refertilizing
cropland and pastureland; reseeding cropland; and renovating pastureland by
overseeding with legumes after Phase II bond release and after three (3) years
from the initial seeding shall be considered normal husbandry practices and
shall not restart the liability period, if the amount and frequency of these
practices do not exceed normal agricultural practices used on unmined land
within the region; and
(e) Other
normal husbandry practices that may be conducted without restarting the
liability period are disease, pest, and vermin control; pruning; and
transplanting and replanting of trees and shrubs in accordance with Section 6
of this administrative regulation.
(8) For pastureland, and for cropland except
prime farmland subject to
405 KAR 20:040,
ground cover and productivity success standards shall be met during the growing
seasons of any two (2) years of the liability period except the first year; and
areas approved for other uses shall equal or exceed the applicable success
standards during the growing season of the last year of the liability
period.
Section 2. Use
of Introduced Species. Introduced species may be substituted for native species
only if approved by the cabinet under the following conditions:
(1) The species shall meet the applicable
requirements of Section 1(2), (3), (4), and (5) of this administrative
regulation.
(2)
(a) Appropriate field trials or other studies
shall be conducted or published literature shall be submitted to demonstrate to
the satisfaction of the cabinet that proposed, unproven, introduced species are
desirable and are necessary for achieving the postmining land use; or
(b) The species are necessary to achieve a
quick, temporary, and stabilizing cover that aids in controlling erosion; and
measures to establish permanent vegetation are included in the approved plans
submitted under
405 KAR
8:040, Sections 24(4)(e) and 37.
Section 3. Timing. Seeding and
planting of disturbed areas with permanent species shall be conducted no later
than during the first normal period for favorable planting conditions after
final preparation. The normal period for favorable planting shall be that
planting time generally accepted locally, or as approved by the cabinet in the
permit, for the type of plant materials selected. In accordance with Section 4
of this administrative regulation and
405 KAR
18:020, a disturbed area shall be seeded and mulched,
as contemporaneously as practicable with the completion of backfilling and
grading, to establish a temporary cover of small grains, grasses, or legumes
until a permanent cover is established.
Section
4. Soil Amendments and Stabilization.
(1) Nutrients and soil amendments shall be
applied to regraded areas in accordance with
405 KAR 18:050, Section
5.
(2) Suitable mulch or other soil
stabilizing practices shall be used in addition to temporary cover on all
regraded and topsoiled areas to control erosion, promote germination of seeds,
and increase the moisture retention capacity of the soil. The cabinet may, on a
case-by-case basis, waive the requirement for mulch if the cabinet finds, based
on seasonal, soil, and slope factors, that the temporary vegetative cover will
achieve proper erosion control until a permanent cover is established, except
that no waiver shall be granted for any area having a slope greater than ten
(10) percent.
(3) For areas within
the area affected by surface operations and facilities to be used as cropland,
the area shall be seeded or planted in order to maintain a vegetative cover
effective in controlling erosion until the permittee chooses to grow
crops.
Section 5.
Success Standards for Ground Cover and Productivity.
(1) Determination of success of ground cover
and productivity may be made on the basis of reference areas from unmined lands
in the vicinity of the operation, where applicable, or by application of the
specific ground cover and productivity standards of this section (tree and
shrub stocking standards are set forth in Section 6 of this administrative
regulation).
(2)
(a) For an approved postmining land use of
pastureland or cropland used for the production of hay (except prime farmland
subject to
405 KAR 20:040) ;
1. Ground cover (percent) and productivity
(tons of forage per acre) shall be at least ninety (90) percent of that of an
approved reference area with a statistical confidence of ninety (90) percent;
or
2. Ground cover shall be at
least ninety (90) percent, and productivity shall be at least ninety (90)
percent of the average yield for that hay in the county in the three (3) years
prior to the year of measurement, as determined from "Kentucky Agricultural
Statistics 1989-1990", "Kentucky Agricultural Statistics 1990-1991", "Kentucky
Agricultural Statistics 1991-1992", "Kentucky Agricultural Statistics
1992-1993", and "Kentucky Agricultural Statistics 1993-1994", with a
statistical confidence of ninety (90) percent.
3. "Kentucky Agricultural Statistics
1989-1990", "Kentucky Agricultural Statistics 1990-1991", "Kentucky
Agricultural Statistics 1991-1992", "Kentucky Agricultural Statistics
1992-1993", and "Kentucky Agricultural Statistics 1993-1994", Kentucky
Agricultural Statistics Service, Kentucky Department of Agriculture, and
National Agricultural Statistics Service, United States Department of
Agriculture, are incorporated by reference. These documents may be reviewed,
copied, or obtained at the Department for National Resources, 300 Sower
Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. through
4:30 p.m.
(b) For areas
within the area affected by surface operations and facilities where row crops
will be planted (except prime farmland subject to
405 KAR 20:040) :
1. Ground cover on any area not planted in
row crops shall be at least ninety (90) percent with a statistical confidence
of ninety (90) percent; and
2. Crop
production shall be at least ninety (90) percent of that of an approved
reference area or at least ninety (90) percent of the average yield for the
crop in the county in the three (3) years prior to the year of measurement, as
determined from "Kentucky Agricultural Statistics 1989-1990", "Kentucky
Agricultural Statistics 1990-1991", "Kentucky Agricultural Statistics
1991-1992", "Kentucky Agricultural Statistics 1992-1993", and "Kentucky
Agricultural Statistics 1993-1994", with a statistical confidence of ninety
(90) percent.
(c) Forest
land, or other areas within the area affected by surface operations and
facilities where woody plants are stocked, shall have at least eighty (80)
percent ground cover with a statistical confidence of ninety (90) percent, with
no sign of significant erosion as set forth in
405 KAR
18:190, Section 4.
(d) For all other land uses, ground cover
shall be at least eighty (80) percent with a statistical confidence of ninety
(90) percent, with no sign of significant erosion as set forth in
405 KAR
18:190, Section 4.
(e) For all land uses other than cropland
planted in row crops, at Phase III bond release there shall be no discrete bare
area or sparsely covered (less than fifty (50) percent ground cover) area
greater than 0.25 acre in size.
(3) For previously mined areas that were not
reclaimed to the requirements of 405 KAR Chapters 16 through 20, the ground
cover of living plants shall not be less than the ground cover existing before
the redisturbance and shall be at least eighty (80) percent with a statistical
confidence of ninety (90) percent, with no sign of significant erosion as set
forth in
405 KAR
18:190, Section 4.
Section 6. Tree and Shrub Stocking. This
section sets forth stocking standards and criteria for counting woody plants
for measuring stocking success, and shall apply in addition to Section 5 of
this administrative regulation, where the approved postmining land use or the
approved fish and wildlife protection and enhancement plan requires the
planting of trees or shrubs.
(1) If forest
land is the approved postmining land use, a minimum stocking density of 300
trees or trees and shrubs per acre determined with a statistical confidence of
ninety (90) percent, with tree (not shrub) species comprising at least
seventy-five (75) percent of the total stock, shall be achieved on at least
seventy (70) percent of the area stocked.
(a)
For noncommercial (unmanaged) forest land, at least four (4) species of trees
or trees and shrubs shall be planted in a mixed distribution pattern with each
of the four (4) species comprising at least ten (10) percent of the total
stock; however, none of the species shall comprise more than fifty (50) percent
of the total stock
(b) For
commercial (managed) forest land, at least seventy-five (75) percent of the
total stock shall be tree (not shrub) species providing good to excellent
commercial value. The species shall be selected from those listed in TRM #21,
except the cabinet may approve other species on a case-by-case basis.
(2) For other postmining land
uses:
(a) If fish and wildlife is the
postmining land use, at least thirty (30) percent of the area shall be planted
in multiple rows or plots of trees or shrubs.
(b) For subareas within the area affected by
surface operations and facilities where trees or shrubs will be planted for the
purpose of creating wildlife habitat (either for a fish and wildlife
post-mining land use or for fish and wildlife enhancement of other postmining
land uses):
1. The stocking density of woody
plants shall be at least 300 plants per acre, including volunteers. At least
four (4) species of trees or shrubs listed in Appendix A of TRM #21, including
at least one (1) hard mast species, one (1) conifer species, and two (2) soft
mast or shrub species, shall be present and the stocking densities of these
species shall be at least ninety (90) hard mast plants per acre, thirty (30)
conifer plants per acre, and thirty (30) plants per acre for each of the two
(2) soft mast or shrub species. Stocking densities shall be determined with a
statistical confidence of ninety (90) percent.
2. In place of the requirements of
subparagraph 1 of this paragraph the cabinet may, if requested by the
applicant, approve stocking densities and woody plant species that are
recommended by the Kentucky Department of Fish and Wildlife Resources for the
permit area based upon site-specific considerations, except the stocking
density of recommended species shall be at least 150 woody plants per acre,
including volunteers. Stocking densities shall be determined with a statistical
confidence of ninety (90) percent.
3. Tree and shrub species shall be selected,
grouped, and distributed in a manner which optimizes edge effect, cover, and
food for wildlife.
4. This
amendment to this paragraph shall apply to original applications for permits
and applications for permit amendments submitted after the effective date of
this amendment. Permits issued or applications submitted prior to the effective
date of this amendment may be revised to comply fully with this
paragraph.
(c) For
subareas within the area affected by surface operations and facilities where
trees and shrubs will be planted for the purposes of creating recreation areas,
green belts, fence rows, wood-lots, or shelter belts for wildlife, or otherwise
facilitating the postmining land use, the minimum stocking density shall be 300
woody plants per acre, unless a lesser density is approved by the cabinet based
on site-specific considerations.
(3) For determining tree or shrub stocking
success for areas within the area affected by surface operations and facilities
to be stocked with woody plants, the following criteria shall apply:
(a) At Phase II bond release, each tree or
shrub counted shall be alive and healthy and shall have been in place for not
less than one (1) growing season. At Phase III bond release, each tree or shrub
counted shall be alive and healthy and shall have been in place for not less
than two (2) growing seasons:
(b)
At Phase III bond release each tree or shrub counted shall have at least
one-third (1/3) of its height in live crown;
(c) At Phase III bond release, only woody
plants over one (1) foot in height shall be counted, and if multiple stems
occur on the same plant, only the tallest stem shall be counted;
(d) Up to a cumulative twenty (20) percent of
the woody plants needed to meet the approved stocking may be replanted during
the liability period without restarting the liability period;
(e) At Phase III bond release, at least
eighty (80) percent of the trees and shrubs used to determine success shall
have been in place for three (3) years or more;
(f) Volunteer plants that meet all applicable
requirements of this administrative regulation may be counted; and
(g) Portions of the site occupied by approved
rock areas, brush piles, permanent impoundments, permanent roads, and surface
drainageways shall be excluded from the stocking success
determinations.
Section
7. Use of Reference Areas.
(1)
Access.
(a) If the reference area is not under
the control of the permittee, there shall be a written agreement between the
permittee and the landowner specifying that the area may be used for the
purposes of a reference area;
(b)
The agreement shall also specify that representatives of the cabinet and OSM
have right of entry for the purpose of observing and measuring vegetation;
and
(c) The agreement shall be
effective until final bond release on the permit area, and a copy of the
agreement shall be submitted in the permit application.
(2) Selection and management.
(a) Reference areas shall be:
1. Located in unmined areas;
2. Of sufficient area to allow meaningful
vegetation measurements and comparisons with the area affected by surface
operations and facilities;
3. As
close to the area affected by surface operations and facilities as
practicable;
4. Representative of
the geology, soil, and slope of the area affected by surface operations and
facilities, and have the same vegetative type or crops proposed for the
postmining land use; and
5.
Delineated on the vegetation map pursuant to
405 KAR
8:040, Section 19 or on another appropriate
map.
(b) Management of
the reference area shall be comparable to that which is required for the
approved land use of the area affected by surface operations and
facilities.
Section
8. Planting Report.
(1) Prior to
or simultaneously with the submittal of an application for Phase I bond release
on an area, the permittee shall file a certified planting report with the
cabinet, on a form prescribed and furnished by the cabinet, giving the
following information:
(a) Identification of
the operation;
(b) The type of
planting or seeding, including mixtures and amounts;
(c) The date of planting or
seeding;
(d) The area of land
planted or seeded; and
(e) Any
other relevant information that the cabinet requires.
(2) A planting report as described in
subsection (1) of this section shall also be submitted to the cabinet if any
augmentive reseeding or replanting, or other augmentive work, is performed
within the area affected by surface operations and facilities.
Section 9. Measurement of
Vegetation Success.
(1) Ground cover and tree
and shrub stocking shall be measured using the techniques outlined in TRM #19.
TRM #19, "Field Sampling Techniques for Determining Ground Cover, Productivity,
and Stocking Success of Reclaimed Surface Mined Lands", Department for Natural
Resources, June 28, 1991, is incorporated by reference. It may be reviewed,
copied, or obtained at the Department for Natural Resources, 300 Sower
Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30
p.m.
(2) Productivity for
pastureland and cropland shall be measured by either:
(a) The techniques established in TRM #19 or
alternatives approved under subsection (3) of this section;
(b) Harvesting and weighing the entire crop
or forage by the permittee to determine total yield from the entire surface
operations and facilities area or the entire portion designated as cropland
(including prime farmland) or pastureland. Representative samples shall be
taken to determine moisture content. Procedures for determining total yields
under this option shall be approved in advance by the cabinet.
(3) The cabinet may approve
alternative sampling and measurement techniques for productivity determinations
in addition to those established by TRM #19 if:
(a) A complete description and justification
of the methodology is submitted to the cabinet;
(b) The cabinet determines that use of the
methodology would provide substantial benefit to the user in terms of cost,
efficiency, or accuracy of measuring productivity;
(c) The methodology is determined by the
cabinet to be procedurally and statistically valid and in compliance with this
administrative regulation;
(d)
Methodologies used for prime farmland shall be approved in consultation with
SCS; and
(e) Alternative
methodologies shall not be used unless they are approved by OSM.
(4) Measurements of ground cover,
tree and shrub stocking, and productivity for Phase II and Phase III bond
release shall be made by the cabinet, except the permittee may measure
productivity.
(a) If the permittee intends to
measure productivity, he shall notify the department's appropriate regional
office of the measurement dates in order to provide the opportunity for cabinet
personnel to observe the measurements. This notification shall be provided in
writing at least thirty (30) days prior to the anticipated measurement dates
and shall be provided by telephone or in person within two (2) days prior to
the measurement dates.
(b) If the
permittee measures productivity, he shall ensure that the measurements are made
by qualified persons.
(c) The
cabinet may make measurements or take other appropriate action as deemed
necessary to verify measurements made by the permittee.
(5) All crop and forage yields shall be
adjusted to standard moisture content: fifteen (15) percent for pasture and
hay, fifteen and five-tenths (15.5) percent for corn, and twelve and five-
tenths (12.5) percent for soybeans and wheat.
(6) Whether measured by the cabinet or the
permittee, vegetation success shall be measured prior to the submittal of an
application for a Phase II or Phase III bond release.
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100,
350.151, 350.465, 30 C.F.R. Parts 730-733, 735,
817.111-817.116,
917,
30 U.S.C. 1253,
1255,
1266