405 KAR 30:160. Data

requirements.

 

      RELATES TO: KRS

350.600

      STATUTORY AUTHORITY:

KRS 151.125, 224.033, 350.028, 350.050, 350.600

      NECESSITY, FUNCTION,

AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection

Cabinet to develop administrative regulations for oil shale operations to

minimize and prevent their adverse effects on the citizens and the environment

of the Commonwealth. This administrative regulation sets forth various data

collection requirements.

 

      Section 1. General.

This administrative regulation applies to any person who engages in an oil

shale operation with the exception of exploration operations. The extent and

duration of data collection will be determined by the cabinet. Such

determination will be made based on the proposed activity by the applicant and

its potential for adverse environmental impacts on the area to be affected by

such activity.

 

      Section 2. Baseline

and Background Data Requirements. (1) Any permit applicant shall submit with

the application as determined by the cabinet data collected on the following

environmental parameters: air quality and climatology, water quality, water

quantity, aquatic flora and fauna, terrestrial flora and fauna, and historic,

geologic, pedologic, and archaeological features. In the design and operation

of the baseline data collection and monitoring programs, the permittee shall

strive to collect data for the greatest period of time practicable as approved

by the cabinet with emphasis on acquisition of quality data. The permittee

shall establish and implement a quality assurance program approved by the

cabinet to assure high quality data collection. This quality assurance program

shall include but not be limited to: quality control by standard reference

materials such as those available through the National Bureau of Standards;

data validation through established criteria of acceptability; method and

frequency of calibration and maintenance; and testing programs to identify and

quantify data anomalies.

      (2) Air quality and

climatology monitoring by the applicant shall be in accordance with KRS Chapter

224 and the administrative regulations promulgated pursuant thereto.

      (3) Surface water

monitoring by the applicant shall include monitoring sites established on major

streams, upstream and downstream from anticipated sources of pollution

including adjacent impacted tributaries. Seasonal sampling (winter, spring,

summer, and fall) is required with a minimum of six (6) samples taken in each

affected perennial stream per year. A minimum of two (2) samples shall be taken

during high flow and a minimum of two (2) samples shall be taken during low

flow. Sampling for metals, organic compounds, and water quality assessment

shall be performed during low flow periods. Sampling of intermittent streams

shall be during the maximum flow regime. The sampling parameters for intermittent

streams shall be recommended by the applicant and approved by the cabinet. All

sampling shall be performed by qualified personnel and the analyses performed

by a qualified laboratory. The number and location of sampling sites shall be

recommended by the applicant for approval by the cabinet.

      (4) Water sampling

parameters shall include but not be limited to the following:

      (a) Physical

parameters monitored will include: total dissolved solids or specific

conductance, total suspended solids, and temperature.

      (b) Chemical

parameters will include ph, acidity, alkalinity, sulfate, iron, manganese,

silver, arsenic, barium, cadmium, chromium, mercury, lead, selenium, nickel, molybdenum,

vanadium, boron, fluorine, copper, total organic carbon (TOC), total phenols,

inorganic carbon, cyanides, sulfides, ammonia, and thiocyanates.

      (c) Biological

parameters will include biochemical oxygen demand (BOD) and chemical oxygen

demand (COD).

      (d) Radiological

parameters will include gross alpha (once in high flow and once in low flow)

and further testing as prescribed by the Environmental and Public Protection

Cabinet if radioactivity is found.

      (e) All chemicals

and their by-products that will be involved in processing the shale will be

identified by the applicant. The applicant shall recommend a monitoring plan

for approval by the cabinet.

      (5) Groundwater will

be monitored for the same parameters as surface water with the exceptions of biochemical

oxygen demand (BOD), chemical oxygen demand (COD) and dissolved oxygen (DO).

Sampling will be performed on a biannual basis during periods of surface high

flow and low flow regimes and accomplished by using test wells whose number and

location will be determined by the site plan. The wells will be placed after

the submission of the site plan and prior to the start-up of the operation.

      (6) Water quantity

will be assessed during minimum, maximum, and average discharge conditions to

identify critical low flow and peak discharge rates of streams to identify

seasonal variations.

      (7) Aquatic flora

and fauna will be sampled at a minimum of five (5) stations. These stations

will include at least one (1) above the point source, one (1) at the point

source, at least one (1) in the same stream below the point source and one (1)

in the next order higher stream below the point source. The location of these

stations and the duration of the data collection shall be recommended by the

applicant for approval by the cabinet.

      (a) Invertebrates

will be sampled for qualitatively using a minimum of three (3) surber samples

or three (3) samples collected using an equivalent methodology at a riffle at

each station. If no riffles exist in the stream, then the pool at each station

should be sampled by dredge.

      (b) Fishes will be

qualitatively sampled for at a pool and riffle at each station using small mesh

minnow seines and portable electroshockers. For streams which contain pools

with water depths greater than four (4) feet, this data will be supplemented by

using gill or trammel nets.

      (c) Aquatic

macroflora will be qualitatively sampled along the stream between the upstream

and downstream stations.

      (d) Sampling and

identification will be performed by qualified personnel acceptable to the Environmental

and Public Protection Cabinet. The specimens will be identified at the

collection site if possible and returned to place of capture unless record of

species existence or further identification is needed whereupon the specimens

will be deposited in a university museum or herbarium in the state.

      (8) Terrestrial

flora and fauna will be qualitatively sampled for species composition. The

duration of data collection shall be recommended by the application for

approval by the cabinet.

      (a) Plant

communities will be sampled to include canopy understory and ground cover.

General age characteristics of forest communities will be assessed by either

coring (preferably) or measuring the diameter breast high of three (3) of the

largest trees and five (5) of the average size trees.

      (b) Existing

agencies should be utilized to determine if any federally listed, proposed or

under review threatened or endangered plant or animal species are known on the

proposed permit site or its vicinity and search shall be conducted for any

species which could occur there. This search should take place at the peak

flowering or activity season for each species which may be involved.

      (c) Mammals should

be sampled by randomly selecting three (3) plots per habitat type and trapping

for four (4) nights with twenty-five (25) traps regularly placed in each plot.

The plots should be selected from a grid based on twenty-five (25) x

twenty-five (25) meters. The results should be reported in number of specimens

per species per plot per season. Equivalent sampling techniques may be approved

by the cabinet.

      (d) Bird species

should be observed for one (1) hour periods in early morning, midday, and late

afternoon or early evening. The observations should take place within areas

representative of each distinct habitat type. The results should be reported as

number of individuals per species per unit time per season.

      (e) Reptiles and

amphibians should be searched for within areas representative of each distinct

habitat type. The results should be reported in the same manner as the bird

data.

      (f) Wetlands,

critical habitats and ecological areas which are off site but could be affected

by the mining or processing should be identified.

      (g) The data should

be collected by qualified personnel acceptable to the Environmental and Public

Protection Cabinet.

      (h) All specimens of

flora and fauna should be deposited at a university museum or herbarium in the

state, in accordance with this administrative regulation.

      (9) The following geologic

and hydrologic data shall be submitted to the cabinet:

      (a) Each application

shall contain a description of the geology and hydrology of lands within the

proposed permit area and adjacent areas. The description shall include

information on the characteristics of surface and groundwaters within these

areas, and any water which will flow into or receive discharges of water from

these areas.

      (b) Hydrologic data

including water quality and quantity, and geologic data related to hydrology of

areas outside the permit area and within the adjacent areas shall be submitted

to the cabinet. This data may be obtained from appropriate federal or state

agencies. If the cabinet determines that this data is not sufficient, the

applicant will be required to collect such additional data as determined by the

cabinet and submit it as part of the permit application.

      (c) Geologic data

shall include a general statement of the geology within the proposed permit

area and adjacent areas down to and including the first aquifer which may be

affected below the lowest oil shale stratum to be mined.

      (d) Test borings or

core samples from the proposed permit area shall be collected and analyzed down

to and including the stratum immediately below the lowest oil shale stratum to

be mined, to provide the following data:

      1. Location of

subsurface water, if encountered;

      2. Logs of drill

holes showing the lithologic characteristics and thickness of each stratum and

each oil shale stratum;

      3. Physical

properties of each stratum within the overburden;

      4. Chemical analyses

of each stratum within the overburden, and including the stratum immediately

below the lowest oil shale stratum to be mined to identify, at a minimum, those

horizons which contain potential acid-forming, toxic-forming, or alkalinity

producing materials; and,

      5. Analyses of the

oil shale stratum including, but not limited to, an analysis of the total

sulfur and pyritic sulfur content.

      (e) If required by

the cabinet, geologic data shall be collected and analyzed to greater depths

within the proposed permit area and adjacent areas to provide for evaluation of

the impact of the proposed activities on the hydrologic balance.

      (10) Historical,

pedological, and archaeological data should be gathered from the appropriate

agencies. Where insufficient data exists, the cabinet may require the applicant

to collect such data. Where no archaeological information exists, a survey or

prediction analysis should be done in accordance with current methods used by

the Kentucky Heritage Council and the Office of State Archaeology.

 

      Section 3. Technical

and Engineering Data Requirements. (1) As determined by the applicant and

approved by the cabinet, sampling and monitoring locations used in the

collection of baseline data shall be operated by the applicant during the

active life of the operation and thereafter as deemed necessary to assess the

environmental impacts of the operation.

      (2) The cabinet

shall have the power to require the applicant to collect any technical or

engineering data related to a specific oil shale operation as the cabinet deems

necessary to assess the impacts of such activities on the environment and

natural resources of the affected area. The parameters to be monitored and the

method of monitoring shall be determined on a case-by-case basis.

      (3) Data and

information required in this section shall be subject to the provisions of 405

KAR 30:150 relating to confidentiality.

 

      Section 4. Variance

Procedures. (1) The cabinet may authorize in writing such exceptions and variances

to the requirements of this administrative regulation as the cabinet may deem

necessary to reasonably and properly address site specific conditions. A

written finding shall be made by the cabinet that the public and the

environment will, in the administration of this variance, be provided adequate

protection consistent with the purposes of KRS 350.600. The permittee shall

publish a Notice of Intention to Request a Variance.

      (2) Publication of

notice of intention to request a variance. An applicant for a variance shall

place an advertisement in the newspaper of largest bona fide circulation,

according to the definition of KRS 424.110 to 424.120, in the county or

counties wherein the proposed oil shale operation is to be located. The

advertisement shall be published at least once each week for four (4)

consecutive weeks with the first advertisement to be published not less than

ten (10) nor more than thirty (30) days prior to the filing of the variance

application with the cabinet. The public notice of intention to file an

application for a variance shall be entitled "Notice of Intention to File

for a Variance from Kentucky Oil Shale Mining Administrative Regulations"

and shall be in a manner and form prescribed by the cabinet and shall include,

but not be limited to the following:

      (a) The name and

address of the applicant;

      (b) The permit or

permit application number;

      (c) The location of

the permit or proposed permit area;

      (d) A brief

description of the kind of variance proposed together with a statement of the

amount of acreage affected by the proposed variance and the number of the

cabinet administrative regulation from which a variance is being sought;

      (e) The address of

the cabinet to which interested persons may submit written comments on the variance;

and

      (f) The location

where a copy of the variance application is available for public inspection.

      (3) The applicant

for a variance shall establish the date and place at which the "Notice of

Intention to File for a Variance from Kentucky Oil Shale Mining Administrative

Regulations" was published by attaching to his application an affidavit

from the publishing newspaper certifying the time, place, and content of the

published notices. The applicant shall make a full copy of the complete application

for a variance available for the public to inspect and copy. This shall be done

by filing a copy of the variance submitted to the cabinet at the courthouse of

the county or counties where the mining is proposed to occur. Any person with

an interest which is or may be adversely affected shall have the right to file

with the cabinet written comments on the application for a variance within

thirty (30) days of the final publication in the newspaper.

      (4) If the data

requirements listed in this administrative regulation duplicate regulation

requirements of other federal or state permits, a completed copy of the

reporting form supplied to meet the requirements of the federal or state permit

may be submitted to the cabinet to replace the duplicated portions of this administrative

regulation. The submission of this data will satisfy the requirements of the

duplicated portions of this administrative regulation, provided the applicant

has requested such in writing and the cabinet has approved the request. The

applicant's request for exception of duplicated requirements will not be

subject to the requirement to publish a Notice of Intention to Request a

Variance. (9 Ky.R. 983; Am. 10 Ky.R. 286; 757; eff. 11-2-83; TAm eff. 8-9-2008.)