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. 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 7.
Section 1. Definitions.
(1) "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.
(2) "Administrative hearing" means a formal
adjudicatory hearing conducted before the cabinet pursuant to
400 KAR
1:090 and
400
KAR 1:110.
(3) "Administratively complete application"
means an application for permit approval, or approval for coal exploration if
required, which the cabinet determines to contain information addressing each
application requirement of the regulatory program and to contain all
information necessary to initiate technical processing and public
review.
(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) "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.
(6) "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.
(7) "Approximate original contour" is defined
by
KRS
350.010.
(8) "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.
(9) "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,
secondary recovery systems.
(10)
"Blaster" means a person who is directly responsible for surface blasting
operations in surface coal mining and reclamation operations or coal
exploration operations.
(11)
"Cabinet" is defined by
KRS
350.010.
(12) "Cessation order" means an order for
cessation and immediate compliance and any similar order issued by OSM under
SMCRA or issued by any state pursuant to its laws or regulations under
SMCRA.
(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 under the requirements of 405 KAR Chapters 7 through 24 if the
activity could cause any disturbance of the land surface or could cause 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 waste"
means materials separated from the product coal during the cleaning,
concentrating, or other processing or preparation of coal.
(18) "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.
(19) "Cumulative measurement period" means
the period of time over which both cumulative production and cumulative revenue
are measured.
(20) "Cumulative
production" means the total tonnage of coal or other minerals extracted from a
mining area during the cumulative measurement period. The inclusion of
stockpiled coal and other mineral tonnages in this total is established in
405
KAR 7:035, Section 7.
(21) "Cumulative revenue" means the total
revenue derived from the sale of coal or other minerals and the fair market
value of coal or other minerals transferred or used, but not sold, during the
cumulative measurement period.
(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) "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.
(26) "Existing
structure" means a structure or facility used in connection with or to
facilitate surface coal mining and reclamation operations, for which
construction began prior to January 18, 1983.
(27) "Extraction of coal as an incidental
part" means the extraction of coal that is necessary to enable the construction
to be accomplished. Only that coal extracted from within the right-of-way, in
the case of a road, railroad, utility line, or similar construction, or within
the boundaries of the area directly affected by other types of
government-financed construction, could be considered incidental to that
construction. Extraction of coal outside the right-of-way or boundary of the
area directly affected by the construction is subject to the requirements of
KRS Chapter 350 and 405 KAR Chapters 7 through 24.
(28) "Final order" means final order of the
secretary, which could include findings of fact, conclusions of law, and an
order.
(29) "Government-financed
construction":
(a) Means construction funded
fifty (50) percent or more by funds appropriated from a government financing
agency's budget or obtained from general revenue bonds; and
(b) Does not mean government financing agency
guarantees, insurance, loans, funds obtained through industrial revenue bonds
or their equivalent, or in-kind payments.
(30) "Government financing agency" means a
federal, Commonwealth of Kentucky, county, municipal, or local unit of
government, or a cabinet, department, agency, or office of the unit that,
directly or through another unit of government, finances
construction.
(31) "Groundwater"
means subsurface water that fills available openings in rock or soil materials
to the extent that the materials are considered water saturated.
(32) "Hearing officer" means the individual
duly qualified and assigned as presiding officer to conduct administrative
hearings; the term includes the chief hearing officer.
(33) "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.
(34)
"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.
(35)
"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.
(36) "Hydrologic regime" means the entire
state of water movement in a given area. It is a function of the climate and
includes the phenomena by which water first occurs as atmospheric water vapor,
passes into a liquid or solid form, falls as precipitation, moves along or into
the ground surface, and returns to the atmosphere as vapor by means of
evaporation and transpiration.
(37)
"Imminent danger to the health and safety of the public" means the existence of
any condition or practice, or any violation of a permit or other requirements
of KRS Chapter 350 in a surface coal mining and reclamation operation, which
could reasonably be expected to cause substantial physical harm to persons
outside the permit area before the condition, practice, or violation can be
abated. A reasonable expectation of death or serious injury before abatement
exists if a rational person, subjected to the same condition or practice giving
rise to the peril, would avoid exposure to the danger during the time necessary
for abatement.
(38) "Impoundment"
means a closed basin, naturally formed or artificially built, which is dammed
or excavated for the retention of water, sediment, or waste.
(39) "Individual" means a natural
person.
(40) "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.
(41) "Initiating document" means a petition
for administrative hearing, an administrative complaint, a show cause order, or
any other document that commences an administrative proceeding.
(42) "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.
(43) "Interim report" means statements made
by a hearing officer in written form that are not intended to be considered by
the secretary and that are not subject to judicial review.
(44) "KAR" means Kentucky administrative
regulations.
(45) "Knowingly" means
that a person knew or had reason to know in authorizing, ordering, or carrying
out an act or omission that the act or omission constituted a violation of
SMCRA, KRS Chapter 350, 405 KAR Chapters 7 through 24, or a permit condition,
or that the act or omission constituted a failure or refusal to comply with an
order issued pursuant to SMCRA, KRS Chapter 350, or 405 KAR Chapters 7 through
24.
(46) "KRS" means Kentucky
Revised Statutes.
(47) "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
can 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.
(48) "Mining area", as
used in
405
KAR 7:035, means an individual excavation site or pit
from which coal, other minerals, and overburden are removed.
(49) "Monitoring" means the collection of
environmental data by either continuous or periodic sampling methods.
(50) "MSHA" means Mine Safety and Health
Administration.
(51) "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, which
the authorized representative deems necessary and appropriate to correct the
violations.
(52) "Office", as used
in
400 KAR
1:090 and
400
KAR 1:110, means the office of administrative
hearings.
(53) "Operations" is
defined by
KRS
350.010.
(54) "Operator" is defined by
KRS
350.010.
(55) "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.
(56) "OSM" means Office of Surface Mining
Reclamation and Enforcement, United States Department of the
Interior.
(57) "Other mineral"
means any commercially valuable substance mined for its mineral value,
excluding coal, topsoil, waste, and fill material.
(58) "Overburden" is defined by
KRS
350.010.
(59) "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.
(60) "Permit"
means written approval issued by the cabinet to conduct surface coal mining and
reclamation operations.
(61)
"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.
(62) "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.
(63) "Person" is defined by
KRS
350.010.
(64) "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".
(65) "Probable cumulative impacts" means the
expected total qualitative, and quantitative, direct and indirect effects of
surface coal mining and reclamation operations on the hydrologic
regime.
(66) "Probable hydrologic
consequences" means the projected results of proposed surface coal mining and
reclamation operations that could reasonably be expected to change the quantity
or quality of the surface and groundwater; the surface or groundwater flow,
timing, and pattern; and the stream channel conditions on the permit area,
shadow area, and adjacent areas.
(67) "Reclamation" is defined by
KRS
350.010.
(68) "Record" means the transcript of a
proceeding, if any, and rulings; and all pleadings, motions, and rulings;
documentary and physical evidence received or considered; a statement of
matters officially noticed; questions and offers of proof, objections, and
rulings thereon, proposed findings and recommended orders; and legal briefs and
orders.
(69) "Refuse pile" means a
surface deposit of coal mine waste that is not retained by an impounding
structure and does not impound water, slurry, or other liquid or semiliquid
material.
(70) "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.
(71) "SCS" means Soil Conservation
Service.
(72) "Secretary" is
defined by
KRS
350.010.
(73) "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 including a barrier, dam, or excavated
depression that 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.
(74) "Shadow area" means the surface area
overlying underground mine works and surface areas associated with auger and in
situ mining.
(75) "Significant,
imminent environmental harm" means an adverse impact on land, air, or water
resources which resources include plant and animal life.
(a) An environmental harm is imminent, if a
condition, practice, or violation exists that:
1. Is causing environmental harm;
or
2. Could reasonably be expected
to cause environmental harm at any time before the end of the reasonable
abatement time that would be set by the cabinet's authorized agents pursuant to
the provisions of KRS Chapter 350.
(b) An environmental harm is significant if
that harm is appreciable and not immediately reparable.
(76) "Small operator", as used in
405 KAR
7:080, means an operator whose combined actual and
attributed production of coal does not exceed 300,000 tons during any period of
twelve (12) consecutive months.
(77) "SMCRA" means Surface Mining Control and
Reclamation Act, 30 U.S.C. Chapter 25.
(78) "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.
(79) "Spoil" means overburden and other
materials, excluding topsoil, coal mine waste, and mined coal, that are
excavated during surface coal mining and reclamation operations.
(80) "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.
(81) "Surface blasting operations" means the
on-site storage, transportation, and use of explosives in association with coal
exploration operations, surface mining activities, and surface disturbances of
underground mining activities. The term is to be interpreted broadly and
includes activities such as the design of individual blasts, the implementation
of blast designs, the initiation of blasts, the monitoring of airblast and
ground vibration, and the use of protective measures such as access control and
warning and all-clear signals.
(82)
"Surface coal mining and reclamation operations" is defined by
KRS
350.010.
(83) "Surface coal mining operations" is
defined by
KRS
350.010.
(84) "Surface mining activities" means those
surface coal mining and reclamation operations incident to the extraction of
coal from the earth by removing the materials over a coal seam before
recovering the coal, by auger coal mining, by extraction of coal from coal
refuse piles, or by recovery of coal from slurry ponds.
(85) "Ton" means 2,000 pounds avoirdupois
(.90718 metric ton).
(86) "Topsoil"
means the A and E soil horizon layers of the four (4) master soil
horizons.
(87) "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.
(88) "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, above-ground 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.
(89) "Unwarranted failure to comply" means
the failure of the permittee due to indifference, lack of diligence, or lack of
reasonable care:
(a) To prevent the occurrence
of any violation of any applicable requirement of KRS Chapter 350, 405 KAR
Chapters 7 through 24, or permit conditions; or
(b) To abate any violation of any applicable
requirement of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit
conditions.
(90)
"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,
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