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,
30 U.S.C. 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 pursuant to the permanent regulatory program.
This administrative regulation establishes definitions for terms used in 405
KAR Chapter 20.
Section 1. Definitions.
(1) "Acid drainage" means water with a pH of
less than six and zero-tenths (6.0) and in which total acidity exceeds total
alkalinity, discharged from an active, inactive, or abandoned surface coal mine
and reclamation operation or from an area affected by surface coal mining and
reclamation operations.
(2)
"Acid-forming materials" means earth materials that contain sulfide minerals or
other materials that, if exposed to air, water, or weathering processes, form
acids that could create acid drainage.
(3) "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 or groundwater, fish, wildlife,
vegetation or other resources protected by KRS Chapter 350 could be adversely
impacted by surface coal mining and reclamation operations.
(4) "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.
(5) "Agricultural use" means the use of any
tract of land for the production of animal or vegetable life. The uses include
activities such as the pasturing, grazing, and watering of livestock, and the
cropping, cultivation, and harvesting of plants.
(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 or approval to conduct coal exploration
operations pursuant to KRS Chapter 350 and all applicable administrative
regulations.
(7) "Application"
means the documents and other information filed with the cabinet seeking
issuance of permits, revisions, amendments, renewals, and transfer, assignment,
or sale of permit rights for surface coal mining and reclamation operations or,
if required, seeking approval for coal exploration.
(8) "Approximate original contour" is defined
by
KRS
350.010.
(9) "Aquifer" means a zone, stratum, or group
of strata that can store and transmit water in sufficient quantities for
domestic, agricultural, industrial, or other beneficial use.
(10) "Auger mining" means a method of mining
coal at a cliff or highwall by drilling holes into an exposed coal seam from
the highwall and transporting the coal along an auger bit to the surface and
includes all other methods of mining in which coal is extracted from beneath
the overburden by mechanical devices located at the face of the cliff or
highwall and extending laterally into the coal seam, such as extended depth and
secondary recovery systems.
(11)
"Bond pool" or "Kentucky Bond Pool" means the voluntary alternative bonding
program established at
KRS 350.700 through
350.755.
(12) "Cabinet" is defined by
KRS
350.010.
(13) "C.F.R." means Code of Federal
Regulations.
(14) "Coal" means
combustible carbonaceous rock, classified as anthracite, bituminous,
subbituminous, or lignite by ASTM Standard D 388-77.
(15) "Coal exploration" means the field
gathering of:
(a) Surface or subsurface
geologic, physical, or chemical data by mapping, trenching, drilling,
geophysical, or other techniques necessary to determine the quality and
quantity of overburden and coal of an area; or
(b) Environmental data to establish the
conditions of an area before beginning surface coal mining and reclamation
operations pursuant to the requirements of 405 KAR Chapters 7 through 24 if the
activity could cause any disturbance of the land surface or any appreciable
effect upon land, air, water, or other environmental resources.
(16) "Coal mine waste" means coal
processing waste and underground development waste.
(17) "Coal processing plant" means a facility
where coal is subjected to chemical or physical processing or cleaning,
concentrating, crushing, sizing, screening, or other processing or preparation
including all associated support facilities including loading facilities;
storage and stockpile facilities; sheds, shops, and other buildings; water
treatment and water storage facilities; settling basins and impoundments; and
coal processing and other waste disposal areas.
(18) "Coal processing waste" means materials
that are separated from the product coal during the cleaning, concentrating, or
other processing or preparation of coal.
(19) "Collateral bond" means an indemnity
agreement in a sum certain payable to the cabinet executed by the permittee and
that is 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.
(20) "Compaction" means increasing the
density of a material by reducing the voids between the particles by mechanical
effort.
(21) "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.
(22) "Day" means calendar day unless
otherwise specified to be a working day.
(23) "Department" means the Department for
Natural Resources.
(24) "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.
(25) "Diversion" means a
channel, embankment, or other manmade structure constructed to divert water
from one (1) area to another.
(26)
"Downslope" means the land surface below the projected outcrop of the lowest
coalbed being mined along each highwall.
(27) "Embankment" means a manmade deposit of
material that is raised above the natural surface of the land and used to
contain, divert, or store water; to support roads or railways; or for other
similar purposes.
(28) "Ephemeral
stream" means a stream that flows only in direct response to precipitation in
the immediate watershed or in response to the melting of a cover of snow and
ice, and that has a channel bottom that is always above the local water
table.
(29) "Excess spoil":
(a) Means spoil disposed of in a location
other than the coal extraction area; and
(b) Does not spoil material used to achieve
the approximate original contour.
(30) "Groundwater" means subsurface water
that fills available openings in rock or soil materials to the extent that they
are considered water saturated.
(31) "Head-of-hollow fill" means a fill
structure consisting of any material, other than coal processing waste and
organic material, placed in the uppermost reaches of a hollow near the
approximate elevation of the ridgeline, where there is no significant natural
drainage area above the fill, and where the side slopes of the existing hollow
measured at the steepest point are greater than twenty (20) degrees or the
average slope of the profile of the hollow from the toe of the fill to the top
of the fill is greater than ten (10) degrees.
(32) "Highwall" means the face of exposed
overburden and coal in an open cut of a surface mining activity or for entry to
underground mining activities.
(33)
"Historically used for cropland."
(a)
"Historically used for cropland" means that lands have been used for cropland
for any five (5) years or more out of the ten (10) years immediately preceding:
1. The application; or
2. The acquisition of the land for the
purpose of conducting surface coal mining and reclamation operations.
(b) Lands meeting either paragraph
(a)1 or 2 of this subsection are considered "historically used for
cropland".
(c) In addition to the
lands covered by paragraph (a) of this subsection, other lands shall be
considered "historically used for cropland", including:
1. Lands that 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; and
2. Lands that the cabinet determines, on the
basis of additional cropland history of the surrounding lands and the lands
under consideration, are clearly cropland but fall outside the specific five
(5) years in ten (10) criterion.
(d) Acquisition includes purchase, lease, or
option of the land for the purpose of conducting or allowing through resale,
lease or option, the conduct of surface coal mining and reclamation
operations.
(34)
"Hydrologic balance" means the relationship between the quality and quantity of
water inflow to, water outflow from, and water storage in a hydrologic unit
such as a drainage basin, aquifer, soil zone, lake, or reservoir. It
encompasses the dynamic relationship between precipitation, runoff,
evaporation, and changes in ground and surface water storage.
(35) "Impoundment" means a closed basin,
naturally formed or artificially built, which is dammed or excavated for the
retention of water, sediment, or waste.
(36) "Industrial/commercial lands" means
lands used for:
(a) Extraction or
transformation of materials for fabrication of products, wholesaling of
products, or long-term storage of products, and heavy and light manufacturing
facilities; or
(b) Retail or trade
of goods or services, including hotels, motels, stores, restaurants, and other
commercial establishments.
(37) "In situ processes" means activities
conducted on the surface or underground in connection with in-place
distillation, retorting, leaching, or other chemical or physical processing of
coal. The term includes in situ gasification, in situ leaching, slurry mining,
solution mining, borehole mining, and fluid recovery mining.
(38) "Intermittent stream" means:
(a) A stream or reach of stream that drains a
watershed of one (1) square mile or more but does not flow continuously during
the calendar year; or
(b) A stream
or reach of a stream that is below the local water table for at least some part
of the year, and obtains its flow from both surface runoff and groundwater
discharge.
(39) "KAR"
means Kentucky administrative regulations.
(40) "KRS" means Kentucky Revised
Statutes.
(41) "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.
(42) "Monitoring" means
the collection of environmental data by either continuous or periodic sampling
methods.
(43) "Mulch" means
vegetation residues or other suitable materials that aid in soil stabilization
and soil moisture conservation, thus providing micro-climatic conditions
suitable for germination and growth.
(44) "Operations" is defined by
KRS
350.010.
(45) "Operator" is defined by
KRS
350.010.
(46) "OSM" means Office of Surface Mining
Reclamation and Enforcement, United States Department of the
Interior.
(47) "Outslope" means the
face of the spoil or embankment sloping downward from the highest elevation to
the toe.
(48) "Overburden" is
defined by
KRS
350.010.
(49) "Perennial stream":
(a) Means a stream or that part of a stream
that flows continuously during all of the calendar year as a result of
groundwater discharge or surface runoff; and
(b) Does not mean "intermittent stream" or
"ephemeral stream".
(50)
"Performance bond" means a surety bond, a collateral bond, or a combination
thereof, or bonds filed pursuant to the provisions of the Kentucky Bond Pool
Program (405 KAR
10:200,
KRS
350.595, and
KRS 350.700 through
350.755), 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.
(51) "Permit"
means written approval issued by the cabinet to conduct surface coal mining and
reclamation operations.
(52)
"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.
(53) "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.
(54) "Person" is defined by
KRS
350.010.
(55) "Precipitation event" means a quantity
of water resulting from drizzle, rain, snowmelt, sleet, or hail in a specified
period of time.
(56) "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" as that phrase is
defined in this section.
(57)
"Public road" means any publicly owned thoroughfare for the passage of
vehicles.
(58) "RAM" means
Reclamation Advisory Memorandum.
(59) "Reclamation" is defined by
KRS
350.010.
(60) "Recreation land" means land used for
public or private leisure-time use, including developed recreation facilities
such as parks, camps, and amusement areas, as well as areas for less intensive
uses such as hiking, canoeing, and other undeveloped recreational
uses.
(61) "Residential land" means
tracts employed for single and multiple-family housing, mobile home parks, and
other residential lodgings.
(62)
"Road":
(a) Means a surface right-of-way for
purposes of travel by land vehicles used in coal exploration or surface coal
mining and reclamation operations. A road consists of the entire area within
the right-of-way, including the roadbed, shoulders, parking and side area,
approaches, structures, ditches, surface, and contiguous appendages necessary
for the total structure. The term includes access and haul roads constructed,
used, reconstructed, improved, or maintained for use in coal exploration or
surface coal mining and reclamation operations, including use by coal hauling
vehicles leading to transfer, processing, or storage areas; and
(b) Does not mean pioneer or construction
roadways used for part of the road construction procedure and promptly replaced
by a road pursuant to 405 KAR Chapters 16 and 18 located in the identical
right-of-way as the pioneer or construction roadway. The term also excludes any
roadway within the immediate mining pit area.
(63) "Safety factor" means the ratio of the
available shear strength to the developed shear stress, or the ratio of the sum
of the resisting forces to the sum of the loading or driving forces, as
determined by accepted engineering practices.
(64) "SCS" means Soil Conservation
Service.
(65) "Sedimentation pond":
(a) Means a primary sediment control
structure designed, constructed, and maintained in accordance with
405 KAR
16:090 or
405 KAR
18:090 and that can include a barrier, dam, or
excavated depression which slows down water runoff to allow suspended solids to
settle out; and
(b) Does not mean
secondary sedimentation control structures, such as straw dikes, riprap, check
dams, mulches, dugouts, and other measures that reduce overland flow velocity,
reduce runoff volume, or trap sediment, to the extent that the secondary
sedimentation structures drain to a sedimentation pond.
(66) "Shadow area" means the surface area
overlying underground mine works and surface areas associated with auger and in
situ mining.
(67) "Slope" means
average inclination of a surface, measured from the horizontal, generally
expressed as the ratio of a unit of vertical distance to a given number of
units of horizontal distance (e.g., 1v:5h). It is also expressed as a percent
or in degrees.
(68) "Slurry mining"
means the hydraulic breakdown of subsurface coal with drill-hole equipment, and
the eduction of the resulting slurry to the surface for processing.
(69) "Soil horizons" means contrasting layers
of soil parallel or nearly parallel to the land surface. Soil horizons are
differentiated on the basis of field characteristics and laboratory data. The
four (4) master soil horizons are:
(a) "A
horizon." The uppermost mineral layer, often called the surface soil. It is the
part of the soil in which organic matter is most abundant, and leaching of
soluble or suspended particles is typically the greatest;
(b) "E horizon." The layer commonly near the
surface below an A horizon and above a B horizon. An E horizon is most commonly
differentiated from an overlying A horizon by lighter color and generally has
measurably less organic matter than the A horizon. An E horizon is most
commonly differentiated from an underlying B horizon in the same sequum by
color of higher value or lower chroma, by coarser texture, or by a combination
of these properties;
(c) "B
horizon." The layer that typically is immediately beneath the E horizon and
often called the subsoil. This middle layer commonly contains more clay, iron,
or aluminum than the A, E, or C horizons; and
(d) "C horizon." The deepest layer of soil
profile. It consists of loose material or weathered rock that is relatively
unaffected by biologic activity.
(70) "Soil survey" means a field and other
investigation, resulting in a map showing the geographic distribution of
different kinds of soils and an accompanying report that describes, classifies,
and interprets the soils for use. Soil surveys meet the standards of the
National Cooperative Soil Survey.
(71) "Spoil" means overburden and other
materials, excluding topsoil, coal mine waste, and mined coal, that are
excavated during surface coal mining and reclamation operations.
(72) "Steep slope" means any slope of more
than twenty (20) degrees.
(73)
"Substantially disturb" means, for purposes of coal exploration, to
significantly impact land or water resources by blasting; by removal of
vegetation, topsoil, or overburden; by construction of roads or other access
routes; by placement of excavated earth or waste material on the natural land
surface; or by other activities, or to remove more than twenty-five (25) tons
of coal.
(74) "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.
(75) "Surface coal mining and reclamation
operations" is defined by
KRS
350.010.
(76) "Surface coal mining operations" is
defined by
KRS
350.010.
(77) "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) .
(78) "Ton" means 2,000 pounds avoirdupois
(.90718 metric ton).
(79) "Topsoil"
means the A and E soil horizon layers of the four (4) master soil
horizons.
(80) "Toxic-forming
materials" means earth materials or wastes that, if acted upon by air, water,
weathering, or microbiological processes, are likely to produce chemical
conditions in soils or water that are detrimental to biota or uses of
water.
(81) "Toxic mine drainage"
means water that is discharged from active or abandoned mines or other areas
affected by coal exploration or surface coal mining and reclamation operations,
which contains a substance that through chemical action is likely to kill,
injure, or impair biota commonly present in the area that might be exposed to
it.
(82) "Transfer, assignment, or
sale of permit rights" means a change in ownership or other effective control
over the right to conduct surface coal mining operations under a permit issued
by the cabinet.
(83) "Underground
development waste" means waste coal, shale, claystone, siltstone, sandstone,
limestone, or similar materials that are extracted from underground workings in
connection with underground mining activities.
(84) "Underground mining activities" means a
combination of:
(a) Surface operations
incident to underground extraction of coal or in situ processing, including
construction, use, maintenance, and reclamation of roads, aboveground repair
areas, storage areas, processing areas, and shipping areas; areas upon which
are sited support facilities including hoist and ventilating ducts; areas
utilized for the disposal and storage of waste; and areas on which materials
incident to underground mining operations are placed; and
(b) Underground operations such as
underground construction, operation, and reclamation of shafts, adits,
underground support facilities; in situ processing; and underground mining,
hauling, storage, and blasting.
(85) "U.S. EPA" means United States
Environmental Protection Agency.
(86) "Water table" means the upper surface of
a zone of saturation, where the body of groundwater is not confined by an
overlying impermeable zone.
STATUTORY AUTHORITY:
KRS 350.028,
350.465,
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,
30 U.S.C. 1253,
1255,
1291