405 KAR 30:160. Data
RELATES TO: KRS
KRS 151.125, 224.033, 350.028, 350.050, 350.600
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
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
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:
parameters monitored will include: total dissolved solids or specific
conductance, total suspended solids, and temperature.
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.
parameters will include biochemical oxygen demand (BOD) and chemical oxygen
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
(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.
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.
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.
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.
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.
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
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
(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
(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;
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.
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;
(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.)