405 KAR 8:001. Definitions for 405 KAR
Chapter 8.
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
STATUTORY AUTHORITY: KRS 350.028(1), (5),
350.465, 7 C.F.R. Part 657, 30 C.F.R. Parts 730-733, 735, 917, 30 U.S.C. 1253,
1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS
350.028(1) and (5) and 350.465(2) authorize the cabinet to promulgate administrative
regulations relating to surface and underground coal mining operations. This
administrative regulation defines terms used in 405 KAR Chapter 8.
Section 1. Definitions. (1) "Acid
drainage" means water with a pH of less than six (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 which,
if exposed to air, water, or weathering processes, form acids that may create
acid drainage.
(3) "Acquisition" means
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.
(4) "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 may
be adversely impacted by surface coal mining and reclamation operations.
(5) "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.
(6) "Affected area" means any
land or water area which is used to facilitate, or is physically altered by,
surface coal mining and reclamation operations. The affected area includes the
disturbed area; any area upon which surface coal mining and reclamation
operations are conducted; any adjacent lands the use of which is incidental to
surface coal mining and reclamation operations; 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 provided in this definition;
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, shipping areas; 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; and the area
located above underground workings associated with underground mining
activities, auger mining, or in situ mining. The affected area shall include
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:
(a) Was designated as a public road
pursuant to the laws of the jurisdiction in which it is located;
(b) Is maintained with public funds, and
constructed in a manner similar to other public roads of the same
classification within the jurisdiction; and
(c) There is substantial (more than
incidental) public use.
(7) "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 regulations.
(8) "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.
(9) "Approximate original
contour" is defined in KRS 350.010.
(10) "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.
(11) "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 shall also include 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.
(12) "Best technology currently
available" means equipment, devices, systems, methods, or techniques which
will prevent, to the extent possible, additional contributions of suspended
solids to stream flow or runoff outside the permit area and minimize, to the
extent possible, disturbances and adverse impacts on fish, wildlife, and
related environmental values, and achieve enhancement of those resources where
practicable. The term includes equipment, devices, systems, methods, or
techniques which are currently available anywhere as determined by the cabinet,
even if they are not in routine use. The term includes, but is not limited to,
construction practices, siting requirements, vegetative selection and planting
requirements, animal stocking requirements, scheduling of activities and design
of sedimentation ponds in accordance with 405 KAR Chapters 16 and 18. The
cabinet shall have the discretion to determine the best technology currently
available on a case-by-case basis, as authorized by KRS Chapter 350 and 405 KAR
Chapters 7 through 24.
(13) "Cabinet" is defined in
KRS 350.010.
(14) "Cemetery" means any area
where human bodies are interred.
(15) "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.
(16) "C.F.R." means Code of
Federal Regulations.
(17) "Coal" means combustible
carbonaceous rock, classified as anthracite, bituminous, subbituminous, or
lignite by ASTM Standard D 388-77.
(18) "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 may cause any disturbance of the land surface or may cause any appreciable
effect upon land, air, water, or other environmental resources.
(19) "Coal mine waste" means
coal processing waste and underground development waste.
(20) "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.
(21) "Coal processing waste"
means materials which are separated from the product coal during the cleaning,
concentrating, or other processing or preparation of coal.
(22) "Collateral bond" means an
indemnity agreement in a sum certain payable to the cabinet executed by the
permittee and which 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.
(23) "Combustible material"
means organic material that is capable of burning, either by fire or through
oxidation, accompanied by the evolution of heat and a significant temperature
rise.
(24) "Community or institutional
building" means a structure, other than a public building or occupied
dwelling, that is used:
(a) For meetings, gatherings, or
functions of:
1. A local civic organization; or
2. Other community group;
(b) As a facility for the following
purposes:
1. Educational;
2. Cultural;
3. Historic;
4. Religious;
5. Scientific; or
6. Correctional;
(c) As a mental or physical health care
facility;
(d) To supply water;
(e) To generate power;
(f) To treat sewage; or
(g) For another public service.
(25) "Compaction" means
increasing the density of a material by reducing the voids between the
particles by mechanical effort.
(26) "Complete and accurate
application" means an application for permit approval, or approval for
coal exploration if required, which the cabinet determines to contain all
information required under, and necessary to comply with, KRS Chapter 350 and
405 KAR Chapters 7 through 24, in order to make decisions concerning its
administrative and technical acceptability and whether a permit or exploration
approval may be issued.
(27) "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.
(28) "Cumulative impact area"
means the area, including the permit area, within which impacts resulting from
the proposed operation may interact with the impacts of all anticipated mining
on surface and groundwater systems. Anticipated mining shall include, at a
minimum, the entire projected lives through bond release of:
(a) The proposed operation;
(b) All existing operations;
(c) Any operation for which a permit
application has been submitted to the cabinet; and
(d) All operations required to meet
diligent development requirements for leased federal coal for which there is
actual mine development information available.
(29) "Day" means calendar day
unless otherwise specified to be a working day.
(30) "Department" means the
Department for Natural Resources.
(31) "Developed water resources
land" means land used for storing water for beneficial uses such as
stockponds, irrigation, fire protection, flood control, and water supply.
(32) "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.
(33) "Diversion" means a
channel, embankment, or other manmade structure constructed to divert water
from one (1) area to another.
(34) "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.
(35) "Ephemeral stream" means a
stream which 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 which
has a channel bottom that is always above the local water table.
(36) "Excess spoil" means spoil
disposed of in a location other than the coal extraction area, except that
spoil material used to achieve the approximate original contour shall not be
considered excess spoil.
(37) "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.
(38) "Federal lands" means any
lands, including mineral interests, owned by the United States, without regard
to how the United States acquired ownership of the lands or which agency
manages the lands. It does not include Indian lands.
(39) "Forest land" means land
used or managed for the long-term production of wood, wood fiber, or wood
derived products.
(40) "Fugitive dust" means that
particulate matter which becomes airborne due to wind erosion from exposed
surfaces.
(41) "General area" means, with
respect to hydrology, the topographic and groundwater basin surrounding a
permit area which is of sufficient size, including areal extent and depth, to
include one (1) or more watersheds containing perennial streams and groundwater
zones and to allow assessment of the probable cumulative impacts on the quality
and quantity of surface and groundwater systems in the basins.
(42) "Ground cover" means the
area of ground covered by the combined aerial parts of vegetation and litter
produced and distributed naturally and seasonally on site, expressed as a
percentage of the total area of measurement.
(43) "Groundwater" means
subsurface water that fills available openings in rock or soil materials to the
extent that they are considered water saturated.
(44) "Growing season" means the
period during a one (1) year cycle, from the last killing frost in the spring
to the first killing frost in the fall, in which climatic conditions are favorable
for plant growth. In Kentucky, this period normally extends from mid-April to
mid-October.
(45) "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.
(46) "Historically used for
cropland" means land that:
(a) Has been used for cropland for any of
five (5) years or more of the ten (10) years immediately preceding the:
1. Application; or
2. Acquisition of the land for the
purpose of conducting a surface coal mining and reclamation operation;
(b) Would likely have been used for
cropland for any five (5) of the ten (10) years immediately preceding the
acquisition or application, but for some fact of ownership or control of the
land unrelated to the productivity of the land;
(c) Falls outside the five (5) of ten
(10) years criteria, but the cabinet determines is clearly cropland on the
basis of additional cropland history of:
1. Surrounding land; and
2. The land under consideration.
(47) "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.
(48) "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.
(49) "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.
(50) "Impounding structure"
means a dam, embankment or other structure used to impound water, slurry, or
other liquid or semiliquid material.
(51) "Impoundment" means a water,
sediment, slurry or other liquid or semiliquid holding structure or depression,
either naturally formed or artificially built.
(52) "Incidental boundary
revision" means an extension to a permit area that is necessary for
reasons unforeseen when the original permit application was prepared and that
is small in relation to the original or amended permit area.
(53) "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.
(b) Retail or trade of goods or services,
including hotels, motels, stores, restaurants, and other commercial establishments.
(54) "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, but is not limited to, in situ gasification, in situ
leaching, slurry mining, solution mining, borehole mining, and fluid recovery
mining.
(55) "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.
(56) "Irreparable damage to the
environment" means any damage to the environment, in violation of SMCRA,
KRS Chapter 350, or 405 KAR Chapters 7 through 24, that cannot be corrected by
actions of the applicant.
(57) "KAR" means Kentucky administrative regulations.
(58) "KRS" means Kentucky
Revised Statutes.
(59) "Land use" means specific
functions, uses, or management-related activities of an area, and may be
identified in combination when joint or seasonal uses occur and may 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.
(60) "Material damage", as used
in 405 KAR 8:040, Section 26 means:
(a) Any functional impairment of surface
lands, features, structures or facilities;
(b) Any physical change that has a
significant adverse impact on the affected land's capability to support any
current or reasonably foreseeable uses or causes significant loss in production
or income; or
(c) Any significant change in the
condition, appearance or utility of any structure or facility from its presubsidence
condition.
(61) "Monitoring" means the
collection of environmental data by either continuous or periodic sampling methods.
(62) "MRP" means mining and
reclamation plan.
(63) "MSHA" means Mine Safety
and Health Administration.
(64) "Mulch" means vegetation
residues or other suitable materials that aid in soil stabilization and soil
moisture conservation, thus providing microclimatic conditions suitable for
germination and growth.
(65) "Noncommercial building"
means any building, other than an occupied residential dwelling, that, at the
time the subsidence occurs, is used on a regular or temporary basis as a public
building or community or institutional building. Any building used only for
commercial agricultural, industrial, retail or other commercial enterprises is
excluded.
(66) "Notice of noncompliance and
order for remedial measures" means a written document and order prepared
by an authorized representative of the cabinet which sets forth with
specificity the violations of KRS Chapter 350, 405 KAR Chapters 7 through 24,
or permit conditions which the authorized representative of the cabinet
determines to have occurred based upon his 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.
(67) "Notice of violation"
means any written notification from a governmental entity of a violation of law
or regulation, whether by letter, memorandum, legal or administrative pleading,
or other written communication. This shall include a notice of noncompliance
and order for remedial measures.
(68) "Occupied dwelling" means
any building that is currently being used on a regular or temporary basis for
human habitation.
(69) "Occupied residential dwelling
and structures related thereto" means, for purposes of 405 KAR 8:040,
Section 26, and 405 KAR 18:210, any building or other structure that, at the
time the subsidence occurs, is used either temporarily, occasionally,
seasonally, or permanently for human habitation. This term also includes any
building, structure or facility installed on, above or below, or a combination
thereof, the land surface if that building, structure or facility is adjunct to
or used in connection with an occupied residential dwelling. Examples of these
structures include, but are not limited to, garages; storage sheds and barns;
greenhouses and related buildings; utilities and cables; fences and other
enclosures; retaining walls; paved or improved patios, walks and driveways;
septic sewage treatment facilities; and lot drainage and lawn and garden
irrigation systems. Any structure used only for commercial agricultural,
industrial, retail or other commercial purposes is excluded.
(70) "Operations" is defined in
KRS 350.010.
(71) "Operator" is defined in
KRS 350.010.
(72) "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 which:
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.
(73) "OSM" means Office of
Surface Mining Reclamation and Enforcement, United States Department of the
Interior.
(74) "Other mineral" means any
commercially valuable substance mined for its mineral value, excluding coal,
topsoil, waste, and fill material.
(75) "Overburden" is defined in
KRS 350.010.
(76) "Owned or controlled" and
"owns or controls" mean any one (1) or a combination of the
relationships specified in paragraphs (a) and (b) of this subsection:
(a)1. Being a permittee of a surface coal
mining operation;
2. Based on instruments of ownership or
voting securities, owning of record in excess of fifty (50) percent of an
entity; or
3. Having any other relationship that
gives one (1) person authority directly or indirectly to determine the manner
in which an applicant, an operator, or other entity conducts surface coal
mining operations.
(b) The following relationships are
presumed to constitute ownership or control unless a person can demonstrate
that the person subject to the presumption does not in fact have the authority
directly or indirectly to determine the manner in which the relevant surface
coal mining operation is conducted:
1. Being an officer or director of an
entity;
2. Being the operator of a surface coal
mining operation;
3. Having the ability to commit the
financial or real property assets or working resources of an entity;
4. Being a general partner in a
partnership;
5. Based on the instruments of ownership
or the voting securities of a corporate entity, owning of record ten (10)
through fifty (50) percent of the entity; or
6. Owning or controlling coal to be mined
by another person under a lease, sublease, or other contract and having the
right to receive the coal after mining or having authority to determine the
manner in which that person or another person conducts a surface coal mining operation.
(77) "Pastureland" means land
used primarily for the long-term production of adapted, domesticated forage
plants to be grazed by livestock or occasionally cut and cured for livestock
feed.
(78) "Perennial stream" 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. The term
does not include "intermittent stream" or "ephemeral
stream."
(79) "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.
(80) "Permanent diversion"
means a diversion remaining after surface coal mining and reclamation
operations are completed which has been approved for retention by the cabinet
and other appropriate Kentucky and federal agencies.
(81) "Permit" means written
approval issued by the cabinet to conduct surface coal mining and reclamation
operations.
(82) "Permit area" means the
area of land and water within boundaries designated in the approved permit
application, which shall include, at a minimum, all areas which are or will be
affected by surface coal mining and reclamation operations under that permit.
(83) "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.
(84) "Person" is defined in KRS
350.010.
(85) "Person having an interest
which is or may be adversely affected" or "person with a valid legal
interest" shall include any person:
(a) Who uses any resource of economic,
recreational, aesthetic, or environmental value that may be adversely affected
by coal exploration or surface coal mining and reclamation operations, or by
any related action of the cabinet; or
(b) Whose property is or may be adversely
affected by coal exploration or surface coal mining and reclamation operations,
or by any related action of the cabinet.
(86) "Previously mined area"
means land that was affected by coal mining operations conducted prior to
August 3, 1977, that has not been reclaimed to the standards of this title.
(87) "Prime farmland" means
those lands which are defined by the Secretary of Agriculture in 7 C.F.R. 657
and which have been "historically used for cropland" as that phrase
is defined above.
(88) "Principal shareholder"
means any person who is the record or beneficial owner of ten (10) percent or
more of any class of voting stock of the applicant.
(89) "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.
(90) "Probable hydrologic
consequences" means the projected results of proposed surface coal mining
and reclamation operations which may 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
and adjacent areas.
(91) "Property to be mined"
means both the surface and mineral estates on and underneath lands which are
within the permit area.
(92) "Public building" means
any structure that is owned or leased, and principally used by a governmental
agency for public business or meetings.
(93) "Publicly-owned park"
means a public park that is owned by a federal, state, or local governmental
entity.
(94) "Public office" means a
facility under the direction and control of a governmental entity which is open
to public access on a regular basis during reasonable business hours.
(95) "Public park" means an
area dedicated or designated by any federal, state, or local agency primarily
for public recreational use, despite whether the use is limited to certain
times or days. It includes any land leased, reserved, or held open to the
public because of that use.
(96) "Public road" means any
publicly owned thoroughfare for the passage of vehicles.
(97) "Recharge capacity" means
the ability of the soils and underlying materials to allow precipitation and
runoff to infiltrate and reach the zone of saturation.
(98) "Reclamation" is defined
in KRS 350.010.
(99) "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.
(100) "Reference area" means a
land unit maintained under appropriate management for the purpose of measuring
vegetative ground cover, productivity, and plant species diversity that are
produced naturally or by crop production methods approved by the cabinet.
(101) "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.
(102) "Remining" means
conducting surface coal mining and reclamation operations which affect
previously mined areas.
(103) "Renewable resource
lands."
(a) As used in 405 KAR Chapter 24,
"renewable resource lands" means geographic areas which contribute
significantly to the long-range productivity of water supplies or of food or
fiber products, these lands to include aquifers and aquifer recharge areas.
(b) As used in 405 KAR 8:040, Section 26,
"renewable resource lands" means aquifers and areas for the recharge
of aquifers and other underground waters, areas for agricultural or
silvicultural production of food and fiber, and grazing lands.
(104) "Residential land" means
tracts employed for single and multiple-family housing, mobile home parks, and
other residential lodgings.
(105) "Road" 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. The
term does not include 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.
(106) "SCS" means Soil
Conservation Service.
(107) "Secretary" is defined in
KRS 350.010.
(108) "Sedimentation pond"
means a primary sediment control structure:
(a) Designed, constructed, or maintained
pursuant to 405 KAR 16:090 or 405 KAR 18:090;
(b) That may include a barrier, dam, or
excavated depression to:
1. Slow water runoff; and
2. Allow suspended solids to settle out;
and
(c) That shall not include secondary
sedimentation control structures, including a straw dike, riprap, check dam,
mulch, dugout, or other measure that reduces overland flow velocity, reduces
runoff volume, or trap sediment, to the extent that the secondary sedimentation
structure drains into a sedimentation pond.
(109) "Significant, imminent
environmental harm" means an adverse impact on land, air, or water
resources which resources include, but are not limited to, plant and animal
life as further defined in this subsection.
(a) An environmental harm is imminent, if
a condition, practice, or violation exists which:
1. Is causing environmental harm; or
2. May 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.
(110) "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 may also be expressed as a percent or in
degrees.
(111) "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.
(112) "Small operator", as used
in 405 KAR 8:030, Section 3(5) and 405 KAR 8:040, Section 3(5), is defined at
KRS 350.450(4)(c).
(113) "SMCRA" means Surface
Mining Control and Reclamation Act of 1977 (PL 95-87), as amended.
(114) "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.
(d) "C horizon." The deepest
layer of soil profile. It consists of loose material or weathered rock that is
relatively unaffected by biologic activity.
(115) "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 shall
meet the standards of the National Cooperative Soil Survey.
(116) "Spoil" means overburden
and other materials, excluding topsoil, coal mine waste, and mined coal, that
are excavated during surface coal mining and reclamation operations.
(117) "Stabilize" means to
control movement of soil, spoil piles, or areas of disturbed earth by modifying
the geometry of the mass, or by otherwise modifying physical or chemical
properties, such as by providing a protective surface coating.
(118) "Steep slope" means any
slope of more than twenty (20) degrees.
(119)(a) "Substantial legal and
financial commitments" means significant investments, that have been made
on the basis of a long-term coal contract, consisting of actual expenditures of
substantial monies or execution of valid and binding contracts involving substantial
monies for such things as power plants; railroads; coal handling, preparation,
extraction, and storage facilities; and other capital-intensive activities such
as:
1. Improvement or modification of coal
lands within, for access to, or in support of surface coal mining and
reclamation operations in the petitioned area;
2. Acquisition of capital equipment for
use in, for access to, or for use in support of surface coal mining and
reclamation operations in the petitioned area; and
3. Exploration, mapping, surveying, and
geological work, as well as expenditures of engineering and legal fees,
associated with the acquisition of the property or preparation of an
application to conduct surface coal mining and reclamation operations in the
petitioned area.
(b) The costs of acquiring the coal in
place or the right to mine such coal are not sufficient to constitute a
substantial legal and financial commitment in the absence of other investments
as described in paragraph (a) of this subsection.
(120) "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.
(121) "Successor in interest"
means any person who succeeds to rights granted under a permit, by transfer,
assignment, or sale of those rights.
(122) "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.
(123) "Surface coal mining and reclamation
operations" is defined in KRS 350.010.
(124) "Surface coal mining
operations" is defined in KRS 350.010.
(125) "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.
(126) "Suspended solids" or
nonfilterable residue, expressed as milligrams per liter, means organic or
inorganic materials carried or held in suspension in water which 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).
(127) "Temporary diversion"
means a diversion of a stream or overland flow which is used during coal
exploration or surface coal mining and reclamation operations and not approved
by the cabinet to remain after reclamation as part of the approved postmining
land use.
(128) "Ton" means 2000 pounds
avoirdupois (.90718 metric ton).
(129) "Topsoil" means the A and
E soil horizon layers of the four (4) master soil horizons.
(130) "Toxic-forming materials"
means earth materials or wastes which, 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.
(131) "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.
(132) "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.
(133) "TRM" means Technical
Reclamation Memorandum.
(134) "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.
(135) "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.
(136) "USDA" means United
States Department of Agriculture.
(137) "U.S. EPA" means United
States Environmental Protection Agency (133) "USGS" means United
States Geological Survey.
(138) "USGS" means United
States Geological Survey.
(139) "Valid existing rights"
means:
(a) Except for haul roads, property
rights in existence on August 3, 1977, that were created by a legally binding
conveyance, lease, contract or other instrument which authorizes the applicant
to produce coal and the person proposing to conduct a surface coal mining operation
on the lands either:
1. Had been validly issued or had made a
good faith effort to obtain, on or before August 3, 1977, all state and federal
permits necessary to conduct surface coal mining operations on those lands,
application for the permits being deemed to constitute good faith efforts to
obtain the permits; or
2. Can demonstrate to the cabinet that
the coal is both needed for, and immediately adjacent to, an ongoing surface
coal mining operation for which all permits were obtained prior to August 3,
1977.
(b) For haul roads:
1. A recorded right-of-way, recorded
easement, or a permit for coal haul road recorded as of August 3, 1977; or
2. Any other road in existence as of
August 3, 1977.
(c) Valid existing rights does not mean
the mere expectation of a right to conduct surface coal mining operations or
the right to conduct underground coal mining.
(140) "Water transmitting zone"
means a body of consolidated or unconsolidated rocks which, due to their
greater primary or secondary permeability relative to the surrounding rocks,
can reasonably be considered to function as a single hydraulic medium for the
flow of groundwater.
(141) "Wetland" means land that
has a predominance of hydric soils and that is inundated or saturated by
surface or groundwater at a frequency and duration sufficient to support, and
that under normal circumstances does support, a prevalence of hydrophytic
vegetation typically adapted for life in saturated soil conditions.
(a) "Hydric soil" means soil
that, in its undrained condition, is saturated, flooded, or ponded long enough
during a growing season to develop an anaerobic condition that supports the
growth and regeneration of hydrophytic vegetation.
(b) "Hydrophytic vegetation"
means a plant growing in:
1. Water; or
2. A substrate that is at least periodically
deficient in oxygen during a growing season as a result of excessive water
content.
(142) "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.
Section 2. Incorporation by Reference.
(1) "ASTM Standard D 388-77, Standard Specification for Classification of
Coals by Rank", (1977), American Society for Testing and Materials, is
incorporated by reference.
(2) It may be inspected, copied, or
obtained at the Department for Natural Resources, 2 Hudson Hollow, Frankfort,
Kentucky 40601-4321, Monday through Friday, 8 a.m. to 4:30 p.m. (18 Ky.R. 2460;
Am. 2837; eff. 4-3-92; 19 Ky.R. 467; 1360; eff. 11-23-92; 24 Ky.R. 667; 2622;
eff. 6-10-98; TAm eff. 8-9-2007.)
