405 KAR 8:030. Surface coal mining
permits.
RELATES
TO: KRS 350.060, 350.465, 7 C.F.R. Part 657, 30 C.F.R. Parts 77.216-1,
77.216-2, 730-733, 735, 773.13(a), 778-780, 785.17(b), (d), 917, 40 C.F.R.
Parts 136, 434, 16 U.S.C. 1276(a), 1531 – 1544, 30 U.S.C. 1253, 1255, 1257,
1258, 1267
STATUTORY
AUTHORITY: KRS 350.020, 350.028, 350.060, 350.465, 7 C.F.R. Part 657, 30 C.F.R.
Parts 77.216-1, 77.216-2, 730-733, 735, 773.13(a), 778-780, 785.17(b), (d),
917, 40 C.F.R. Parts 136, 434, 16 U.S.C. 1276(a), 1531 – 1544, 30 U.S.C. 1253,
1255, 1257, 1258, 1267
NECESSITY,
FUNCTION, AND CONFORMITY: KRS 350.028(1), (5), 350.060(13), and 350.465(2)
authorize the cabinet to promulgate administrative regulations relating to
surface and underground coal mining operations. This administrative regulation
establishes requirements for granting a surface coal mining permit. This
administrative regulation differs from 30 C.F.R. 780.25. Section 34(3) and (5)
of this administrative regulation require that the permit applicant submit to
the cabinet after approval by the Mine Safety and Health Administration (MSHA),
a:
(1)
Copy of the final approved design plans for impounding structures;
(2)
Copy of all correspondence with MSHA;
(3)
Copy of technical support documents requested by MSHA; and
(4)
Notarized statement by the applicant that the copy submitted to the cabinet is
a complete and correct copy of the final plan approved by MSHA.
Section
1. General. (1) This administrative regulation applies to any person who
applies for a permit to conduct surface mining activities.
(2)
The requirements set forth in this administrative regulation specifically for
applications for permits to conduct surface mining activities are in addition
to the requirements applicable to all applications for permits to conduct
surface coal mining and reclamation operations as set forth in 405 KAR 8:010.
(3)
This administrative regulation sets forth information required to be contained
in each application for a permit to conduct surface mining activities, including:
(a)
Legal, financial, compliance, and related information;
(b)
Environmental resources information; and
(c)
Mining and reclamation plan information.
Section
2. Identification of Interests. (1) An application shall contain the following
information, except that the submission of a Social Security number shall be
voluntary:
(a)
A statement identifying if the applicant is a corporation, partnership, single
proprietorship, association, or other business entity;
(b)
The name, address, telephone number and, as applicable, Social Security number,
and employer identification number of the:
1.
Applicant;
2.
Applicant's resident agent; and
3.
Person who will pay the abandoned mine land reclamation fee;
(c)
For each person who owns or controls the applicant:
1.
The person's name, address, Social Security number, and employer identification
number;
2.
The person's ownership or control relationship to the applicant, including
percentage of ownership and location in organizational structure;
3.
The title of the person's position, date position was assumed, and when
submitted under 405 KAR 8:010, Section 18(5) date of departure from the
position;
4.
Each additional name and identifying number, including employer identification
number, federal or state permit number, and MSHA number with date of issuance,
under which the person owns or controls, or previously owned or controlled, a
surface coal mining and reclamation operation in the United States within the
five (5) years preceding the date of the application; and
5.
The application number or other identifier of, and the regulatory authority
for, any other pending surface coal mining operation permit application filed
by the person in any state in the United States;
(d)
For any surface coal mining operation owned or controlled by either the
applicant or by any person who owns or controls the applicant, the operation's:
1.
Name, address, identifying numbers, including employer identification number,
federal or state permit number, and MSHA number, the date of issuance of the
MSHA number, and the regulatory authority; and
2.
Ownership or control relationship to the applicant, including percentage of
ownership and location in organizational structure;
(e)
The names and addresses of:
1.
Every legal or equitable owner of record of the property to be mined;
2.
The holders of record of any leasehold interest in the property to be mined;
and
3.
Any purchaser of record, under a real estate contract, of the property to be
mined;
(f)
The names and addresses of the owners of record of all surface and subsurface
areas contiguous to any part of the proposed permit area;
(g)
The name of the proposed mine and all MSHA identification numbers that have
been assigned for the mine and all mine associated structures that require MSHA
approval;
(h)
Proof, such as a power of attorney or a resolution of the board of directors,
that the individual signing the application has the power to represent the
applicant in the permit matter; and
(i)
A statement of all lands, interests in lands, options, or pending bids on
interests held or made by the applicant for lands that are contiguous to the area
to be covered by the permit.
(2)
After an applicant has been notified that his or her application has been
approved, but before the permit is issued, the applicant shall, as applicable,
update, correct, or indicate that no change has occurred in the information
previously submitted under subsection (1)(a) through (d) of this section.
(3)
The permittee shall, in writing, inform the cabinet of any change of the
permittee's address immediately if changed at any point prior to final bond
release.
(4)
The permittee shall submit updates of the information established in paragraphs
(a) through (c) of this subsection in writing to the cabinet within thirty (30)
days of the effective date of any change. An update shall be submitted for any
changes that occur at any point prior to final bond release. Failure to submit
updated information shall constitute a violation of KRS Chapter 350 only upon
the permittee's refusal or failure to timely submit the information to the cabinet
upon request. After the permittee's refusal or failure to timely submit the
information to the cabinet upon request, the cabinet may suspend the permit
after opportunity for hearing pending compliance with this subsection:
(a)
The names and addresses of every officer, partner, director, or person
performing a function similar to a director of the permittee;
(b)
The names and addresses of principal shareholders; and
(c)
If the permittee or other persons specified in this subsection are subject to
any of the provisions of KRS 350.130(3).
Section
3. Violation Information. (1) Each application shall contain:
(a)
A statement identifying if the applicant or any subsidiary, affiliate, or
persons controlled by or under common control with the applicant has:
1.
Had a coal mining permit of the United States or any state suspended or revoked
in the five (5) years preceding the date of submission of the application; or
2.
Forfeited a coal mining performance bond or similar security deposited in lieu
of bond;
(b)
If any suspension, revocation, or forfeiture as established in paragraph (a) of
this subsection has occurred, a statement of the facts involved, including:
1.
Identification number and date of issuance of the permit, and date and amount
of bond or similar security;
2.)
Identification of the authority that suspended or revoked the permit or
forfeited the bond and the stated reasons for that action;
3.
The current status of the permit, bond, or similar security involved;
4.
The date, location, and type of any administrative or judicial proceedings
initiated concerning the suspension, revocation, or forfeiture; and
5.
The current status of these proceedings; and
(c)
For any violation of a provision of SMCRA, federal regulations enacted pursuant
to SMCRA, KRS Chapter 350 and administrative regulations adopted pursuant
thereto, any other state's laws or regulations under SMCRA, any federal law,
rule, or regulation pertaining to air or water environmental protection, or any
Kentucky or other state's law, rule, or regulation enacted pursuant to federal
law, rule, or regulation pertaining to air or water environmental protection
incurred in connection with any surface coal mining operation, a list of all
violation notices received by the applicant during the three (3) year period
preceding the application date, and a list of all unabated cessation orders and
unabated air and water quality violation notices received prior to the date of
the application by any surface coal mining and reclamation operation owned or
controlled by either the applicant or by any person who owns or controls the applicant.
For each violation notice or cessation order reported, the lists shall include the
following information, as applicable:
1.
Any identifying numbers for the operation, including the federal or state
permit number and MSHA number; the dates of issuance of the violation notice
and MSHA number; the name of the person to whom the violation notice was
issued; and the name of the issuing regulatory authority, department, or
agency;
2.
A brief description of the particular violation alleged in the notice;
3.
The final resolution of each violation notice, if any; and
4.
For each violation notice that has not been finally resolved:
a.
The date, location, and type of any administrative or judicial proceedings
initiated concerning the violation, including proceedings initiated by any
person identified in this subsection to obtain administrative or judicial
review of the violation;
b.
The current status of the proceedings and of the violation notice; and
c.
The actions, if any, taken or being taken by any person identified in this subsection
to abate the violation.
(2)
After an applicant has been notified that his or her application has been
approved, but before the permit is issued, if necessary, the applicant shall update
the application to indicate what change, if any, has occurred in the
information previously submitted under subsection (1) of this section.
(3)
Upon request by a small operator, the cabinet shall provide to the small
operator, with regard to persons under subsection (1) of this section who are
identified by the small operator, the compliance information required by this
section regarding suspension and revocation of permits and forfeiture of bonds
under KRS Chapter 350, and information pertaining to violations of KRS Chapter
350 and administrative regulations promulgated thereunder.
Section
4. Right of Entry and Right to Surface Mine. (1) Each application shall contain
a description of the documents upon which the applicant bases his or her legal
right to enter and begin surface mining activities in the permit area and if
that right is the subject of pending litigation. The description shall identify
those documents by type and date of execution, identify the specific lands to
which the document pertains, and explain the legal rights claimed by the applicant.
(2)
If the private mineral estate to be mined has been severed from the private
surface estate, the application shall contain:
(a)
A copy of the written consent of the surface owner for the extraction of coal
by surface mining methods;
(b)
A copy of the conveyance that expressly grants or reserves the right to extract
coal by surface mining methods; or
(c)
If the conveyance does not expressly grant the right to extract the coal by
surface mining methods, documentation that under applicable state law, the
applicant has the legal authority to extract coal by those methods.
(3)
Nothing in this section shall be construed to authorize the cabinet to
adjudicate property rights disputes.
Section
5. Relationship to Areas Designated Unsuitable for Mining. (1) Each application
shall contain a statement of available information identifying if the proposed
permit area is within an area designated unsuitable for surface mining
activities under 405 KAR Chapter 24 or under study for designation in an
administrative proceeding under that chapter.
(2)
If an applicant claims the exemption in 405 KAR 8:010, Section 14(4)(b), the
application shall contain information supporting the applicant's assertion that
the applicant made substantial legal and financial commitments before January
4, 1977, concerning the proposed surface mining activities.
(3)
If an applicant proposes to conduct surface mining activities within 300 feet
of an occupied dwelling, the application shall contain the waiver of the owner
of the dwelling as required in 405 KAR 24:040, Section 2(5).
(4)
If the applicant proposes to conduct surface mining activities within 100 feet
of a public road, the requirements of 405 KAR 24:040, Section 2(6) shall be
met.
Section
6. Permit Term Information. (1) Each application shall state the anticipated or
actual starting and termination date of each phase of the surface mining
activities and the anticipated number of acres of land to be affected for each
phase of mining and over the total life of the permit.
(2)
If the applicant proposes to conduct the surface mining activities in excess of
five (5) years, the application shall contain the information needed for the
showing required under 405 KAR 8:010, Section 17(1).
Section
7. Personal Injury and Property Damage Insurance Information. Each permit
application shall contain a certificate of liability insurance according to 405
KAR 10:030, Section 4.
Section
8. Identification of Other Licenses and Permits. Each application shall contain
a list of all other licenses and permits needed by the applicant to conduct the
proposed surface mining activities. This list shall identify each license and
permit by:
(1)
Type of permit or license;
(2)
Name and address of issuing authority;
(3)
Identification numbers of applications for those permits or licenses or, if
issued, the identification numbers of the permits or licenses; and
(4)
If a decision has been made, the date of approval or disapproval by each
issuing authority.
Section
9. Identification of Location of Public Office for Filing of Application. Each
application shall identify, by name and address, the appropriate regional
office of the cabinet where the applicant will file a copy of the entire
application for public inspection under 405 KAR 8:010, Section 8(8).
Section
10. Newspaper Advertisement and Proof of Publication. A copy of the newspaper
advertisement of the application for a permit, major revision, amendment,
transfer, or renewal of a permit and proof of publication of the advertisement,
which is acceptable to the cabinet, shall be filed with the cabinet and made a
part of the application, not later than fifteen (15) days after the last date
of publication required under 405 KAR 8:010, Section 8(2).
Section
11. Environmental Resources Information. (1) Each permit application shall
include a description of the existing environmental resources within the
proposed permit area and adjacent areas as required by Sections 11 through 23
of this administrative regulation. The description required by this
administrative regulation may, where appropriate, be based upon published texts
or other public documents together with reasonable extrapolations from specific
data available from existing permit areas or other appropriate areas.
(2)(a)
Each application shall describe and identify the nature of cultural, historic,
and archaeological resources listed or eligible for listing on the National
Register of Historic Places and known archaeological sites within the proposed
permit area and adjacent areas. The description shall be based on all available
information, including information from the state Historic Preservation Officer
and from local archaeological, historical, and cultural preservation agencies.
(b)
According to historical databases, the cabinet may require the applicant to
identify and evaluate important historic and archaeological resources that may
be eligible for listing on the National Register of Historic Places, through
collection of additional information, field investigations, or other appropriate
analyses.
Section
12. General Requirements for Baseline Geologic and Hydrologic Information. (1)
The application shall contain baseline geologic and hydrologic information that
has been collected, analyzed, and submitted in the detail and manner sufficient
to:
(a)
Identify and describe protective measures pursuant to Section 32(1) of this
administrative regulation that will be implemented during the mining and
reclamation process to assure protection of the hydrologic balance or to
demonstrate that protection of the hydrologic balance can be assured without
the design and installation of protective measures, and to design necessary
protective measures pursuant to Section 32(2) of this administrative regulation;
(b)
Determine the probable hydrologic consequences of the mining and reclamation
operations upon the hydrologic balance in the permit area and adjacent area
pursuant to Section 32(3) of this administrative regulation so that an
assessment can be made by the cabinet pursuant to 405 KAR 8:010, Section 14(3)
of the probable cumulative impacts of all anticipated mining on the hydrologic
balance in the cumulative impact area;
(c)
Determine pursuant to 405 KAR 8:010, Section 14(2) and (3) if reclamation as
required by 405 KAR can be accomplished and if the proposed operation has been
designed to prevent material damage to the hydrologic balance; and
(d)
Design surface and groundwater monitoring systems pursuant to Section 32(4) of
this administrative regulation for the during-mining and postmining time period
which, together with the baseline data collected under Sections 14(1) and 15(1)
of this administrative regulation, shall demonstrate if the mining operation is
meeting applicable effluent limitations and stream standards and protecting the
hydrologic balance.
(2)(a)
Geologic and hydrologic information pertaining to the area outside the permit
and adjacent area but within the cumulative impact assessment area shall be
provided to the applicant by the cabinet if this information is:
1.
Needed in preparing the cumulative impact assessment; and
2.
Available from an appropriate federal or state agency.
(b)
If this information is needed by the cabinet for conducting the cumulative
impact assessment and is not available from a federal or state agency, the
applicant may gather and submit this information to the cabinet as part of the
permit application.
(3)
Interpolation, modeling, correlation, or other statistical methods, and other
data extrapolation techniques may be used if the applicant can demonstrate that
the data extrapolation techniques are valid and that information obtained
through the techniques meets the requirements of subsection (1) of this
section.
(4)
Water quality analysis and sampling required by this chapter shall be conducted
according to:
(a)
Standard Methods for the Examination of Water and Wastewater (14th Edition); or
(b)
40 C.F.R. Parts 136 and 434.
Section
13. Baseline Geologic Information. (1) The application shall contain baseline
geologic information collected from the permit area that shall meet the
requirements of Section 12(1) of this administrative regulation and shall
include at a minimum:
(a)
The results of samples obtained from continuous cores; drill cuttings; channel
cuttings from fresh, unweathered, rock outcrops; or other rock or soil material
which has been collected using acceptable sampling techniques.
1.
The vertical extent of sampling shall include those strata from the surface
down to and including the stratum immediately below the lowest coal seam to be
mined.
2.
Where aquifers located within the permit area underlie the lowest coal seam to
be mined and these aquifers may be adversely affected by the mining operation,
the vertical extent of sampling shall also include those strata from the lowest
coal seam to be mined down to and including the aquifers.
3.
The area and vertical density of sampling shall, at a minimum, be sufficient to
determine the distribution of strata that have a potential to produce acid
drainage and to determine the area and vertical extent of aquifers that may be
adversely affected.
4.
If the vertical extent, and the area and vertical density of sampling specified
in subparagraphs 1 through 3 of this paragraph are not sufficient to locate
suitable strata for use as a topsoil substitute, or for other required design
or analysis, additional sampling shall be conducted as necessary to furnish
adequate geologic information;
(b)
Chemical analyses including maximum potential acidity and neutralization
potential of each overburden stratum and the stratum immediately below the
lowest coal seam to be mined, to identify those strata which have a potential
to produce acid or toxic drainage; and
(c)
Chemical analyses of the coal seam to be mined to determine the potential to
produce acid or toxic drainage, including the parameters of total sulfur and
pyritic sulfur; except that the cabinet shall not require an analysis for
pyritic sulfur if the applicant can demonstrate that an analysis for total
sulfur provides adequate information to assure protection of the hydrologic
balance.
(2)
Collection of geologic information from the permit area as required in this
subsection may be waived in whole or in part if:
1.
The applicant can demonstrate through geologic correlation or other procedures
that information collected from outside the permit area is representative of
the permit area and is sufficient to meet the requirements of Section 12(1) of
this administrative regulation; or
2.
Other information equivalent to that required by this subsection is available
to the cabinet and is made a part of the permit application; and
3.
The cabinet provides a written statement granting a waiver.
(3)
The application shall contain a description of the geology of the proposed
permit area and adjacent area that shall meet the requirements of Section 12(1)
of this administrative regulation and be based on the information required in
subsection (1) of this section or other appropriate geologic information. The
description shall include, at a minimum, geologic logs, cross-sections, fence
diagrams, or other appropriate illustrations and written descriptions depicting:
(a)
Within the permit area:
1.
The structural geology and lithology of overburden strata and the stratum
immediately below the lowest coal seam to be mined;
2.
The thickness and chemical characteristics of each overburden stratum and the
stratum immediately below the lowest coal seam to be mined; and
3.
Where aquifers may be adversely affected by the mining operation, the
structural geology, lithology, thickness, and area extent of the aquifers; and
structural geology and lithology of strata, and thickness of each stratum, from
the surface down to the aquifers; and
(b)
Within the adjacent area, the approximate area extent and approximate thickness
of aquifers that may be adversely affected by the mining operation.
(4)
If necessary to assure adequate reclamation and protection of the hydrologic
balance, the cabinet shall require geologic information and description in
addition to that required by subsections (1) and (2) of this section including
leaching tests of material from strata that may be disturbed by the operation
to determine the potential for the operation to produce drainage with elevated
levels of acidity, sulfate, and total dissolved solids, and the collection of
information to greater depths within the proposed permit area or the collection
of information for areas outside the proposed permit area.
Section
14. Baseline Groundwater Information. (1) The application shall contain
baseline groundwater information for the permit area and adjacent area that
shall be collected and submitted in a manner adequate to meet the requirements
of Section 12(1) of this administrative regulation.
(2)
Groundwater information shall include an inventory of wells, springs,
underground mines, or other similar groundwater supply facilities currently
being used, have been used in the past, or have a potential to be used for
domestic, agricultural, industrial, or other beneficial purpose. The inventory
shall include the location, ownership, type of usage, and if possible, other
relevant information such as the depth and diameter of wells and approximate
rate of usage, pumpage, or discharge from wells, springs, and other groundwater
supply facilities.
(3)
Groundwater information shall include seasonal groundwater quantity and quality
data collected from monitoring wells, springs, underground mines, or other
appropriate groundwater monitoring facilities, at a sufficient number of
monitoring locations with adequate area distribution to meet the requirements
of Section 12(1) of this administrative regulation. Seasonal groundwater
quantity and quality data shall be provided for each water transmitting zone
above, and potentially impacted water transmitting zone below, the lowest coal
seam to be mined including at a minimum:
(a)
Groundwater levels; and
(b)
Total dissolved solids, or specific conductance corrected to twenty-five (25)
degrees C, pH, dissolved iron, dissolved manganese, acidity, alkalinity, and
sulfate. For data collected prior to August 13, 1985, total iron and total
manganese may be substituted for dissolved iron and dissolved manganese.
(4)
The groundwater information described in subsection (3) of this section shall
be required in whole or in part for coal seams if the coal seams to be mined
are serving as water supply sources or are otherwise significant in protecting
the hydrologic balance.
(5)
If additional information is needed to assess the need for protective measures,
to design protective measures, to determine the probable hydrologic
consequences of mining, or to conduct the cumulative impact assessment, the
cabinet shall require groundwater information in addition to that described in
subsections (2), (3), and (4) of this section including information pertaining
to aquifer storage, yield, discharge, recharge capacity, and additional water
quality parameters.
Section
15. Baseline Surface Water Information. (1) The application shall contain
baseline surface water information for the permit area and adjacent area that
shall be collected and submitted in a manner adequate to meet the requirements
of Section 12(1) of this administrative regulation.
(2)
Surface water information shall include an inventory of all streams, lakes,
impoundments, or other surface water bodies in the permit and adjacent area that
are currently being used for domestic, agricultural, industrial, or other
beneficial purpose. The inventory shall include the name of the surface water
body being used as a water supply source; the location, drainage area,
ownership, and type of usage for the withdrawal; and if possible other relevant
information such as the rate of withdrawal and seasonal variation.
(3)
Surface water information shall include:
(a)
The name, location, and ownership if appropriate, of all streams, lakes,
impoundments, and other surface water bodies that receive run-off from
watersheds that will be disturbed by the operation; and
(b)
The location and description of any existing facilities located in watersheds that
will be disturbed by the mining operation and may contribute to surface water
pollution, such as existing or abandoned mining operations, oil wells, logging
operations, or other similar facilities, including the location of any
discharges that may be flowing from the facilities.
(4)
Surface water information shall include seasonal quantity and quality data
collected from a sufficient number of watersheds that will be disturbed by the
operation with adequate area distribution to meet the requirements of Section
12(1) of this administrative regulation and include at a minimum:
(a)
Flow rates; and
(b)
Total dissolved solids, or specific conductance corrected to twenty-five (25)
degrees C, total suspended solids, pH, total iron, total manganese, acidity,
alkalinity, and sulfate.
(5)
If additional information is needed to assess the need for protective measures,
to design protective measures, to determine the probable hydrologic
consequences of mining, or to conduct the cumulative impact assessment, the
cabinet shall require surface water information in addition to that established
in subsections (2), (3), and (4) of this section, including information pertaining
to flood flows and additional water quality parameters.
Section
16. Alternative Water Supply Information. If the determination of probable
hydrologic consequences required under Section 32 of this administrative
regulation indicates that the proposed surface mining activities may
proximately result in contamination, diminution, or interruption of an
underground or surface source of water within the proposed permit area or
adjacent area used for domestic, agricultural, industrial, or other legitimate
use, then the application shall identify and describe the adequacy and
suitability of the alternative sources of water supply that could be developed
for existing premining uses and approved postmining land uses.
Section
17. Climatological Information. (1) Upon cabinet request, the application shall
contain a statement of the climatological factors that are representative of
the proposed permit area, including:
(a)
The average seasonal precipitation;
(b)
The average direction and velocity of prevailing winds; and
(c)
Seasonal temperature ranges.
(2)
The cabinet shall request additional data if necessary to ensure compliance
with the requirements of this chapter.
Section
18. Soil Resources Information. (1) If soil survey information for the proposed
permit area is available from SCS, the application shall include this
information as a part of the description of premining land use capability and
productivity required by Section 22(1)(b) of this administrative regulation.
(2)
Where the applicant proposes to use selected overburden materials as a
supplement or substitute for topsoil, the application shall provide results of
analyses, trials, and tests as required under 405 KAR 16:050, Section 2(5).
Section
19. Vegetation Information. (1) The permit application shall contain a map that
delineates existing vegetative types and a description of the plant communities
within the proposed permit area and within any proposed reference area. This
description shall include information adequate to predict the potential for
reestablishing vegetation.
(2)
If a map or aerial photograph is required, sufficient adjacent areas shall be
included to allow evaluation of vegetation as important habitat for fish and
wildlife.
Section
20. Fish and Wildlife Resources Information. (1) Each application shall include
fish and wildlife resource information for the permit area and adjacent area.
The scope and level of detail for this information shall be determined by the
cabinet in consultation with the Kentucky Department of Fish and Wildlife
Resources and the U.S. Department of the Interior, Fish and Wildlife Service,
and shall be sufficient to design the protection and enhancement plan required
under Section 36 of this administrative regulation.
(2)
Site-specific resource information necessary to address the respective species
or habitats shall be required if the permit area or adjacent area is likely to
include:
(a)
Listed or proposed endangered or threatened species of plants or animals or
their critical habitats listed by the Secretary of the Interior under the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 – 1544), or those
species or habitats protected by similar state statutes;
(b)
Habitats of unusually high value for fish and wildlife such as important
streams, wetlands, riparian areas, cliffs supporting raptors, areas offering
special shelter or protection, migration routes, or reproduction and wintering
areas; or
(c)
Other species or habitats identified through agency consultation as requiring
special protection under state or federal law.
(3)
Wetland delineations shall be conducted in accordance with:
(a)
The Corps of Engineers Wetlands Delineation Manual;
(b)
U. S. Army Corps of Engineers Regulatory Guidance Letter No. 90-7;
(c)
National Lists of Plant Species that Occur in Wetlands and Biological Reports
and Summary; and
(d)
List of Hydric Soils of the United States, All Kentucky Counties.
(4)
Upon request, the cabinet shall provide the resource information required under
this section to the U.S. Department of the Interior, Fish and Wildlife Service
regional or field office for their review. This information shall be provided
within ten (10) days of receipt of the request from the Service.
(5)(a)
Fish and wildlife resource information shall be required for amendments and
revisions that:
1.
Propose extension into a wetland;
2.
Propose significant disturbance in a new watershed in which the permit area or
adjacent area includes an important stream;
3.
Seek to obtain a stream buffer zone variance under 405 KAR 16:060, Section 11,
or seek to modify an existing stream buffer zone variance;
4.
Propose extension of the permit boundary that involves a new surface
disturbance of five (5) acres or more; or
5.
Involve new permit or adjacent areas likely to contain, or that could
reasonably be expected to contain, a state or federal endangered or threatened
species or its critical habitat.
(b)
For other amendments and revisions, a determination of if fish and wildlife
information is necessary, and the scope of information needed, shall be made on
a case-by-case basis in consultation with Kentucky Department of Fish and
Wildlife Resources and U.S. Fish and Wildlife.
(6)
This section shall apply to applications for permits, amendments and revisions
submitted to the cabinet on or after November 17, 1992.
Section
21. Prime Farmland Investigation. (1) The applicant shall before making
application investigate the proposed permit area to determine if lands within
the area may be prime farmland.
(2)
Land shall not be considered prime farmland if the applicant can demonstrate
one (1) of the following:
(a)
The land has not been historically used as cropland;
(b)
The slope of the land is ten (10) percent or greater;
(c)
Other relevant factors exist, which would preclude the soils from being defined
as prime farmland according to 7 C.F.R. 657, such as a very rocky surface, or
the land is flooded during the growing season more often than once in two (2)
years, and the flooding has reduced crop yields; or
(d)
On the basis of a soil survey of lands within the permit area, there are no
soil map units that have been designated prime farmland by the U.S. SCS.
(3)
If the investigation establishes that the lands are not prime farmland, the
applicant shall submit with the permit application a request for a negative
determination and results of the investigation that show that the land for
which the negative determination is being sought meets one (1) of the criteria
of subsection (2) of this section.
(4)
If the investigation indicates that lands within the proposed permit area may
be prime farmlands, the applicant shall contact the U.S. SCS to determine if a
soil survey exists for those lands and if the applicable soil map units have
been designated as prime farmlands. If no soil survey has been made for the
lands within the proposed permit area, the applicant shall request the SCS to
conduct a soil survey.
(a)
If a soil survey of lands within the proposed permit area contains soil map
units designated as prime farmlands, the applicant shall submit an application,
in accordance with 405 KAR 8:050, Section 3 for the designated land.
(b)
If a soil survey for lands within the proposed permit area contains no soil map
units designated as prime farmland after review by the U.S. SCS, the applicant
shall submit with the permit application a request for negative determination
under subsection (2)(d) of this section for the nondesignated land.
(5)
The cabinet shall decide to grant or deny a negative determination based upon
documentation provided by the applicant and any other pertinent information,
such as cropping history, available to the cabinet from other sources.
(6)
The cabinet shall consult with the SCS in deciding on a request for negative
determination under subsection (2)(c) of this section.
(7)
The cabinet shall examine any records on crop history available from the
Agriculture Stabilization and Conservation Service when deciding on a request for
negative determination under subsection (2)(a) of this section.
Section
22. Land-use Information. (1) The application shall contain a statement of the
condition, capability, and productivity of the land within the proposed permit
area, including:
(a)
A map and supporting narrative of the uses of the land existing when the
application is filed. If the premining use of the land was changed within five
(5) years before the date of application, the historic use of the land shall
also be described; and
(b)
A narrative of land use capability and productivity, which analyzes the
land-use description in conjunction with other environmental resources
information required under this administrative regulation. The narrative shall
provide analyses of:
1.
The capability of the land before any mining to support a variety of uses,
giving consideration to soil and foundation characteristics, topography,
vegetative cover, and the hydrology of the proposed permit area; and
2.
The productivity of the proposed permit area before mining, expressed as
average yield of food, fiber, forage, or wood products from the lands obtained
under high levels of management. The productivity shall be determined by yield
data or estimates for similar sites based on current data from the U.S.
Department of Agriculture, state agricultural universities, or appropriate
state natural resource or agricultural agencies.
(2)
The application shall state if the proposed permit area has been previously
mined, and, if so and, if available, the:
(a)
Type of mining method used;
(b)
Coal seams or other mineral strata mined;
(c)
Extent of coal or other minerals removed;
(d)
Approximate dates of past mining; and
(e)
Uses of the land preceding mining.
(3)
The application shall contain a description of the existing land uses and local
government land use classifications, if any, of the proposed permit area and
adjacent areas.
(4)
The application shall contain a description identifying the extent to which
cities, towns, and municipalities, or parts thereof, are located within the
proposed permit area.
Section
23. Maps and Drawings. (1) The permit application shall include a map or maps
showing:
(a)
The boundaries of all subareas proposed to be affected over the estimated total
life of the proposed surface mining activities, with a description of the size,
sequence, and timing of the surface mining operations for which it is
anticipated that additional permits will be sought;
(b)
Any land within the proposed permit area and adjacent area within the boundaries
of any units of the National System of Trails or the Wild and Scenic Rivers
System, including study rivers designated under Section 5(a) of the Wild and
Scenic Rivers Act (16 U.S.C. 1276(a)), or which is within the boundaries of a
wild river established pursuant to KRS Chapter 146;
(c)
The boundaries of any public park and locations of any cultural or historical
resources listed on or eligible for listing on the National Register of
Historic Places and known archaeological sites within the permit area and
adjacent areas;
(d)
The locations of water supply intakes for current users of surface water within
a hydrologic area defined by the cabinet, and those surface waters that will
receive discharges from affected areas in the proposed permit area;
(e)
All boundaries of lands and names of present owners of record of those lands,
both surface and subsurface, included in or contiguous to the permit area;
(f)
The boundaries of land within the proposed permit area upon which the applicant
has the legal right to enter and begin surface mining activities;
(g)
The location of surface and subsurface manmade features within, passing
through, or passing over the proposed permit area, including major electric
transmission lines, pipelines, and agricultural drainage tile fields;
(h)
The location and boundaries of any proposed reference areas for determining the
success of revegetation for the permit area;
(i)
The location of all buildings on and within 1,000 feet of the proposed permit
area, with identification of the current use of the buildings;
(j)
Each public road located in or within 100 feet of the proposed permit area;
(k)
Each cemetery that is located in or within 100 feet of the proposed permit
area; and
(l)
Other relevant information required by 30 C.F.R. 779.24(l).
(2)
The application shall include drawings, cross sections, and maps showing:
(a)
Elevations and locations of test borings and core samplings;
(b)
Elevations and locations of monitoring stations or other sampling points in the
permit area and adjacent areas used to gather data on water quality and
quantity, fish and wildlife, and air quality, if required, in preparation of
the application, or which will be used for this data gathering during the term
of the permit;
(c)
Nature, depth, and thickness of the coal seams to be mined, any coal or rider
seams above the seam to be mined, each stratum of the overburden, and the
stratum immediately below the lowest coal seam to be mined, for the permit
area;
(d)
All coal crop lines and the strike and dip of the coal to be mined within the
proposed permit area;
(e)
Location and extent of known workings of active, inactive, or abandoned
underground mines, including mine openings to the surface within the proposed
permit area and adjacent areas;
(f)
Location and extent of subsurface water, if encountered, within the proposed
permit area or adjacent areas;
(g)
Location of surface water bodies such as streams, lakes, ponds, springs,
constructed or natural drainage patterns, and irrigation ditches within the
proposed permit area and adjacent areas;
(h)
Location and extent of existing or previously surface-mined areas within the
proposed permit area;
(i)
Location, and depth if available, of gas and oil wells within the proposed
permit area and water wells in the permit area and adjacent areas;
(j)
Location and dimensions of existing areas of spoil, waste, and noncoal waste
disposal, dams, embankments, other impoundments, and water treatment and air
pollution control facilities within the proposed permit area; and
(k)
Sufficient slope measurements to adequately represent the existing land surface
configuration of the proposed permit area, measured and recorded according to
the requirements established in subparagraphs 1. through 3. of this paragraph.
1.
Each measurement shall consist of an angle of inclination along the prevailing
slope extending 100 linear feet above and below or beyond the coal outcrop or
the area to be disturbed or, if impractical, at locations and in a manner sufficient
to demonstrate that the surface coal mining and reclamation operations, as required
by KRS Chapter 350 and 405 KAR Chapters 7 through 24, can be feasibly
accomplished in accordance with the mining and reclamation plan.
2.
Where the area has been previously mined, the measurements shall extend at
least 100 feet beyond the limits of mining disturbances, or any other distance
representative of the premining configuration of the land.
3.
Slope measurements shall take in account natural variations in slope, to
provide accurate representation of the range of natural slopes and reflect
geomorphic differences of the area to be disturbed.
(3)
The permit application shall include the map information specified in Sections
22(1)(a), 24(3), 24(4)(c), 24(4)(h), 27(1), 28(1), 31, 32, 33, 34, and 38 of
this administrative regulation, and 405 KAR 8:010, Section 5(6).
(4)
Maps, drawings, and cross-sections included in a permit application that are
required by this section shall be prepared by or under the direction of and
certified by a qualified registered professional engineer, and shall be updated
as required by the cabinet if there is a material change. The qualified
registered professional engineer shall not be required to certify true
ownership of property.
Section
24. Mining and Reclamation Plan; General Requirements. (1) Each application
shall contain a detailed mining and reclamation plan (MRP) for the proposed
permit area as set forth in this section through Section 38 of this
administrative regulation, showing how the applicant will comply with KRS
Chapter 350 and 405 KAR Chapters 16 through 20.
(2)
Each application shall contain a description of the mining operations proposed
to be conducted within the proposed permit area, including, at a minimum a
narrative:
(a)
Description of the type and method of coal mining procedures and proposed
engineering techniques, anticipated annual and total production of coal, by
tonnage, and the major equipment to be used for all aspects of those
operations; and
(b)
Explaining the construction, modification, use, maintenance, and removal of the
following facilities (unless retention of the facilities is to be approved as
necessary for postmining land use as specified in 405 KAR 16:210):
1.
Dams, embankments, and other impoundments;
2.
Overburden and topsoil handling and storage areas and structures;
3.
Coal removal, handling, storage, cleaning, and transportation areas and
structures;
4.
Spoil, coal processing waste, and noncoal waste removal, handling, storage,
transportation, and disposal areas and structures;
5.
Mine facilities; and
6.
Water and air pollution control facilities.
(3)
Each application shall contain plans and maps of the proposed permit area and
adjacent areas pursuant to paragraphs (a) through (c) of this subsection.
(a)
The plans and maps shall show the lands proposed to be affected throughout the
operation and any change in a facility or feature to be caused by the proposed
operations, if the facility or feature was shown under Section 23 of this
administrative regulation.
(b)
The following shall be shown for the proposed permit area:
1.
Buildings, utility corridors, and facilities to be used;
2.
The area of land to be affected within the proposed permit area, according to
the sequence of mining and reclamation;
3.
Each area of land for which a performance bond or other equivalent guarantee
will be posted under 405 KAR Chapter 10;
4.
Each coal storage, cleaning, and loading area;
5.
Each topsoil, spoil, coal waste, and noncoal waste storage area;
6.
Each water diversion, collection, conveyance, treatment, storage, and discharge
facility to be used;
7.
Each air pollution collection and control facility;
8.
Each source of waste and each waste disposal facility relating to coal
processing or pollution control;
9.
Each facility to be used to protect and enhance fish and wildlife and related
environmental values;
10.
Each explosive storage and handling facility; and
11.
Location of each sedimentation pond, permanent water impoundment, coal
processing waste bank, and coal processing waste dam and embankment, in
accordance with Section 34 of this administrative regulation, and fill area for
the disposal of excess spoil in accordance with Section 27 of this
administrative regulation.
(c)
Plans, maps, and drawings required under this section shall be prepared by, or
under the direction of, and certified by a qualified registered professional
engineer.
(4)
Each plan shall contain the following information for the proposed permit area:
(a)
A projected timetable for the completion of each major step in the mining and
reclamation plan;
(b)
A detailed estimate of the cost of reclamation of the proposed operations
required to be covered by a performance bond under 405 KAR Chapter 10, with
supporting calculations for the estimates;
(c)
A plan for backfilling, soil stabilization, compacting, and grading, with
contour maps or cross-sections that show the anticipated final surface
configuration of the proposed permit area, in accordance with 405 KAR 16:190;
(d)
A plan for removal, storage, and redistribution of topsoil, subsoil, and other
material to meet the requirements of 405 KAR 16:050 including a demonstration
of suitability of any proposed topsoil substitutes or supplements;
(e)
A plan for revegetation as required in 405 KAR 16:200, including descriptions
of the: schedule of revegetation; species and amounts per acre of seeds and
seedlings to be used; methods to be used in planting and seeding; mulching
techniques; irrigation, if appropriate; pest and disease control measures, if
any; and measures proposed to be used to determine the success of revegetation
as required in 405 KAR 16:200, Section 6; and a soil testing plan for
evaluation of the results of topsoil handling and reclamation procedures
related to revegetation;
(f)
A description of the measures to be used to maximize the use and conservation
of the coal resource as required in 405 KAR 16:010, Section 2;
(g)
A description of measures to be employed to ensure that all debris,
acid-forming and toxic-forming materials, and materials constituting a fire
hazard are disposed of in accordance with 405 KAR 16:150 and 16:190, Section 3,
and a description of the contingency plans that have been developed to preclude
sustained combustion of the materials;
(h)
A description, including appropriate maps and drawings, of the measures to be
used to seal or manage mine openings, and to plug, case, or manage exploration
holes, other bore holes, wells, and other openings within the proposed permit
area, in accordance with 405 KAR 16:040; and
(i)
A description of steps to be taken to comply with the requirements of the Clean
Air Act (42 U.S.C. Chapter 85), the Clean Water Act (33 U.S.C. Chapter 26), and
other applicable air and water quality laws and regulations and health and safety
standards. This description shall, at a minimum, consist of identification of
permits or approvals required by these laws and regulations which the applicant
either has obtained, has applied for, or intends to apply for.
Section
25. MRP; Existing Structures. (1) Each application shall contain a description
of each existing structure proposed to be used in connection with or to
facilitate the surface coal mining and reclamation operation. The description
shall include:
(a)
Location;
(b)
Plans of the structure that describe the structure’s current condition;
(c)
Approximate dates on which construction of the existing structure was begun and
completed; and
(d)
A showing, including relevant monitoring data or other evidence, of if the
structure meets the performance standards of 405 KAR Chapters 16 through 20 or,
if the structure does not meet those performance standards, a showing of if the
structure meets the performance standards of the interim performance standards
of 405 KAR Chapter 1.
(2)
Each application shall contain a compliance plan for each existing structure
proposed to be modified or reconstructed for use in connection with or to
facilitate the surface coal mining and reclamation operation. The compliance
plan shall include:
(a)
Design specifications for the modification or reconstruction of the structure
to meet the performance standards of 405 KAR Chapters 16 through 20;
(b)
A construction schedule that shows dates for beginning and completing interim
steps and final reconstruction;
(c)
Provisions for monitoring the structure to ensure that the performance
standards of 405 KAR Chapters 16 through 20 are met; and
(d)
A showing that the risk of harm to the environment or to public health or
safety will not be significant during the period of modification or
reconstruction.
Section
26. MRP; Blasting. (1) Each application shall contain a blasting plan for the
proposed permit area explaining how the applicant intends to comply with the
requirements of 405 KAR 16:120. This plan shall include, at a minimum,
information setting forth the limitations the permittee shall meet with regard
to:
(a)
Ground vibration and airblast;
(b)
The bases for the ground vibration and airblast limitations; and
(c)
The methods to be applied in controlling the adverse effects of blasting
operations.
(2)
Each application shall contain a description of the systems to be used to
monitor compliance with the standards for ground vibration and airblast
including identification of the types, capabilities, and sensitivities of blast
monitoring equipment and identification of the monitoring procedures and
locations.
(3)
Blasting operations within 500 feet of active underground mines shall require
approval of the cabinet, MSHA, and the Office of Mine Safety and Licensing.
Section
27. MRP; Disposal of Excess Spoil. (1) Each application shall contain
descriptions, including appropriate maps and cross-section drawings, of the
proposed disposal site and design of the spoil disposal structures according to
405 KAR 16:130. These plans shall describe the geotechnical investigation,
design, construction, operation, maintenance, and removal if appropriate, of
the site and structures.
(2)
Each application shall contain the results of a geotechnical investigation of
the proposed disposal site, including:
(a)
The character of bedrock and any adverse geologic conditions in the disposal
area;
(b)
A survey identifying all springs, seepage, and groundwater flow observed or
anticipated during wet periods in the area of the disposal site;
(c)
An assessment of the potential effects of subsidence of the subsurface strata
due to past and future mining operations;
(d)
A technical description of the rock materials to be utilized in the
construction of those disposal structures containing rock chimney cores or
underlain by a rock drainage blanket; and
(e)
A stability analysis including strength parameters, pore pressures, and
long-term seepage conditions. These data shall be accompanied by a description
of all engineering design assumptions and calculations and the alternatives
considered in selecting the specific design specifications and methods.
(3)
If, under 405 KAR 16:130, Section 1(4), rock toe buttresses or key way cuts are
required, the application shall include:
(a)
The number, location, and depth of borings or test pits that shall be
determined with respect to the size of the spoil disposal structure and
subsurface conditions; and
(b)
Engineering specifications utilized to design the rock toe buttresses or key
way cuts that shall be determined in accordance with subsection (2)(e) of this
section.
Section
28. MRP; Transportation Facilities. (1) Each application shall contain a
transportation facilities plan including a description of each road, conveyor,
or rail system to be constructed, used, or maintained within the proposed
permit area. The description shall include a map, appropriate cross-sections,
and:
(a)
Specifications for each road width, road gradient, road surface, road cut, fill
embankment, culvert, bridge, drainage ditch, and drainage structure;
(b)
A report of appropriate geotechnical analysis, if approval of the cabinet is
required for alternative specifications, or for steep cut slopes under 405 KAR
16:220;
(c)
A description of measures to be taken to obtain approval of the cabinet for
alteration or relocation of a natural drainageway under 405 KAR 16:220; and
(d)
A description of measures, other than use of a rock headwall, to be taken to
protect the inlet end of a ditch relief culvert, for approval by the cabinet
under 405 KAR 16:220.
(2)
Each plan shall contain a general description of each road, conveyor, or rail
system to be constructed, used, or maintained within the proposed permit area.
Section
29. MRP; Surface Mining Near Underground Mining. For surface mining activities
within the proposed permit area to be conducted within 500 feet of an
underground mine, the application shall describe the measures to be used to
comply with 405 KAR 16:010, Section 3.
Section
30. MRP; Protection of Public Parks and Historic Places. (1) For any
publicly-owned parks or any places listed on the National Register of Historic
Places that may be adversely affected by the proposed operations, each plan
shall describe the measures to be used to prevent adverse impact or, if valid
existing rights exist or joint agency approval is to be obtained under 405 KAR
24:040, Section 2(4), to minimize adverse impacts.
(2)
The cabinet may, pursuant to 30 C.F.R. 780.31, require the applicant to protect
historic or archaeological properties listed or eligible for listing on the
National Register of Historic Places through appropriate mitigation and
treatment measures. These measures need not be completed prior to permit
issuance, but shall be completed before the properties are affected by surface
mining activities.
Section
31. MRP; Protection of Public Roads. Each application shall describe, with
appropriate maps and drawings, the measures to be used to ensure that the
interests of the public and landowners affected are protected if, under 405 KAR
24:040, Section 2(6), the applicant seeks to have the cabinet approve:
(1)
Conducting the proposed surface mining activities within 100 feet of the
right-of-way line of any public road, except where mine access or haul roads
join that right-of-way; or
(2)
Relocating a public road.
Section
32. MRP; Protection of the Hydrologic Balance. (1) Each application shall
contain a description, as set forth in this subsection, of the measures to be
taken to minimize disturbances to the hydrologic balance within the permit area
and adjacent area and to prevent material damage to the hydrologic balance
outside the permit area.
(a)
The description shall be based upon the baseline geologic, hydrologic, and
other information required by Sections 12 through 16 of this administrative
regulation and other appropriate information, shall be specific to local
hydrologic conditions.
(b)
The description shall identify the protective measures to be taken to enable
the operation to meet, at a minimum, each of the hydrologic requirements
referenced in this paragraph, or shall demonstrate that protective measures are
not necessary for the operation to:
1.
Meet applicable water quality statutes, administrative regulations, standards,
and effluent limitations as required by 405 KAR 16:060, Section 1(3);
2.
Avoid acid or toxic drainage as required by 405 KAR 16:060, Sections 4, 5, and
6;
3.
Control the discharge of sediment to streams located outside the permit area as
required by 405 KAR 16:060, Section 2;
4.
Control the drainage and discharge of water within the permit area as required
by 405 KAR 16:060, Sections 1(4), 3, 9, and 12, and 405 KAR 16:080;
5.
Restore the approximate premining recharge capacity of the permit area as
required by 405 KAR 16:060, Section 5; and
6.
Protect or replace the water supply of present users as required by 405 KAR
16:060, Section 8.
(c)
The cabinet may require that the description include protective measures in
addition to those identified under paragraph (b) of this subsection, if additional
measures are needed to protect the hydrologic balance in accordance with 405
KAR 16:060.
(2)
Each application shall include the design of any necessary protective measures
identified under subsection (1) of this section. The design shall be prepared
in a manner and detail acceptable to the cabinet including, as appropriate,
calculations, maps, drawings, and written explanations as necessary to document
the design.
(3)
Each application shall include a determination of the probable hydrologic consequences
of the mining and reclamation operations for the permit area and adjacent area.
(a)
The determination shall be based upon the baseline geologic, hydrologic, and
other information required by Sections 12 through 16 of this administrative
regulation and other appropriate information, and may include information
statistically representative of the site.
(b)
The determination shall be completed according to the parameters and in the
detail necessary to enable the cabinet to prepare a cumulative impact
assessment, and shall take into account the anticipated effects of protective
measures required by this chapter.
(c)
For surface water systems, the determination shall, at a minimum, include
probable impacts on:
1.
Peak discharge rates, emphasizing the potential for flooding;
2.
Settleable solids at peak discharge;
3.
Low-flow discharge rates, emphasizing the potential for water supply
diminution;
4.
Suspended solids at low flow; and
5.
pH, at low flow, emphasizing the potential for acid drainage conditions,
including depressed levels of alkalinity and elevated levels of iron,
manganese, acidity, sulfate, and total dissolved solids or specific
conductance, which are generally associated with acid drainage conditions.
(d)
For groundwater systems, the determination shall, at a minimum, include
probable impacts on:
1.
Water quantity, emphasizing water levels and the potential for water supply
diminution for existing users, and dewatering of aquifers that are not
currently being used for water supply but have the potential to be developed as
a water supply source; and.
2.
pH, emphasizing the potential for acid drainage conditions, including depressed
levels of alkalinity and elevated levels of iron, manganese, acidity, sulfate,
and total dissolved solids or specific conductance, which are generally
associated with acid drainage conditions.
(e)
The determination shall include a finding on if the proposed surface mining
activities may proximately result in contamination, diminution, or interruption
of an underground or surface source of water within the permit area or adjacent
areas that is used for domestic, agricultural, industrial, or other legitimate
use upon application.
(f)
An application for a major revision to a permit shall be reviewed by the cabinet
to determine if a new or updated determination of the probable hydrologic
consequences shall be required.
(4)(a)
The application shall include a plan for the collection, recording, and
reporting of groundwater and surface water quantity and quality data to monitor
the effects of the mining and reclamation operations on the hydrologic balance,
according to 405 KAR 16:110.
(b)
The monitoring plan shall be based on the geologic and hydrologic baseline
information, the mining and reclamation plan, and the determination of probable
hydrologic consequences; and shall:
1.
Identify the quantity and quality parameters to be monitored, sampling
frequency, and monitoring site locations; and
2.
Describe how the data may be used to determine the impacts of the operation on
the hydrologic balance.
(5)
An application for a major revision to a permit shall be reviewed by the
cabinet to determine if a new or updated cumulative hydrologic impact
assessment shall be made.
Section
33. MRP; Diversions. Each application shall contain descriptions, including
maps and cross-sections, of stream channel diversions and other diversions to
be constructed within the proposed permit area to achieve compliance with 405
KAR 16:080.
Section
34. MRP; Impoundments and Embankments. (1) General. Each application shall
include detailed design plans for each proposed sedimentation pond, water
impoundment, and coal mine waste bank, dam, or embankment within the proposed
permit area. Each plan shall:
(a)
Be prepared by, or under the direction of, and certified by a qualified
registered professional engineer;
(b)
Contain a description, map, and appropriate cross-sections and drawings of the
structure and its location;
(c)
Contain all hydrologic and geologic information and computations necessary to
demonstrate compliance with the design and performance standards of 405 KAR
Chapter 16 and all information utilized by the applicant to determine the
probable hydrologic consequences of the mining operations under Section 32(3)
of this administrative regulation;
(d)
Contain an assessment of the potential effect on the structure from subsidence
of the subsurface strata resulting from past underground mining operations if
underground mining has occurred;
(e)
Include any geotechnical investigation, design, and construction requirements
for the structure;
(f)
Describe the operation and maintenance requirements for each structure; and
(g)
Describe the timetable and plans to remove each structure, if appropriate.
(2)
Sedimentation ponds. Sedimentation ponds, whether temporary or permanent, shall
be designed in compliance with the requirements of 405 KAR 16:090 and 16.100.
(3)
Permanent and temporary impoundments. Permanent and temporary impoundments
shall be designed to comply with the requirements of 405 KAR 16:100. Each plan
for an impoundment meeting the size or other criteria of MSHA, 30 C.F.R.
77.216(a), shall comply with the requirements of 30 C.F.R. 77.216-1 and
77.216-2. The plan required to be submitted to the district manager of MSHA
under 30 C.F.R. 77.216 shall be submitted to the cabinet as part of the permit
application. After the plan has been approved by MSHA, the applicant shall
submit to the cabinet a copy of the final approved plan, a copy of all
correspondence from MSHA regarding the plan, a copy of any technical support
documents requested by MSHA during its review, and a notarized statement by the
applicant that the copy submitted to the cabinet is a complete and correct copy
of the final plan approved by MSHA.
(4)
Coal mine waste banks. Coal mine waste banks shall be designed to comply with
the requirements of 405 KAR 16:140.
(5)
Coal mine waste dams and embankments. Coal mine waste dams and embankments
shall be designed to comply with the requirements of 405 KAR 16:100 and 16:160.
The plan for an impounding structure that is required to be submitted to the
district manager of MSHA under 30 C.F.R. 77.216 shall be submitted to the
cabinet as part of the permit application. After the plan has been approved by
MSHA, the applicant shall submit to the cabinet a copy of the final approved
plan, a copy of all correspondence from MSHA regarding the plan, a copy of any
technical support documents requested by MSHA during its review, and a
notarized statement by the applicant that the copy submitted to the cabinet is
a complete and correct copy of the final plan approved by MSHA. Each plan shall
comply with the requirements of MSHA, 30 C.F.R. 77.216-1 and 77.216-2, and
shall contain the results of a geotechnical investigation of the proposed dam
or embankment foundation area, to determine the structural competence of the
foundation that will support the proposed dam or embankment structure and the
impounded material. The geotechnical investigation shall be planned and supervised
by an engineer or engineering geologist, according to:
(a)
The number, location, and depth of borings and test pits determined using
current prudent engineering practice for the size of the dam or embankment,
quantity or material to be impounded, and subsurface conditions;
(b)
The character of the overburden and bedrock, the proposed abutment sites, and
any adverse geotechnical conditions that may affect the particular dam,
embankment, or reservoir site;
(c)
All springs, seepage, and groundwater flow observed or anticipated during wet
periods in the area of the proposed dam or embankment shall be identified on
each plan; and
(d)
Consideration of the possibility of mud flows, rock-debris falls, or other
landslides into the dam, embankment, or impounded material.
(6)
If the structure is Class B-moderate hazard or Class C-high hazard under 405
KAR 7:040, Section 5, and 401 KAR 4:030, or if the structure meets the size or
other criteria of MSHA, 30 C.F.R. 77.216(a), each plan under subsections (2),
(3), and (5) of this section shall include a stability analysis of the
structure. The stability analysis shall include strength parameters, pore
pressures, and long-term seepage conditions. The plan shall also contain a
description of each engineering design assumption and calculation with a
discussion of each alternative considered in selecting the specific design
parameters and construction methods.
Section
35. MRP; Air Pollution Control. For all surface mining activity, the
application shall contain an air pollution control plan that includes:
(1)
An air quality monitoring program, if required by the cabinet, to provide
sufficient data to evaluate the effectiveness of the fugitive dust control
practices under subsection (2) of this section to comply with applicable
federal and state air quality standards; and
(2)
A plan for fugitive dust control practices, as required under 405 KAR 16:170.
Section
36. MRP; Fish and Wildlife Protection and Enhancement. (1) Each application
shall include a description of how, to the extent possible using the best
technology currently available, the permittee will minimize disturbances and
adverse impacts on fish and wildlife and related environmental values,
including compliance with the Endangered Species Act, during the surface coal
mining and reclamation operations, and how enhancement of these resources will
be achieved as practicable.
(2)
This description shall:
(a)
Apply, at a minimum, to species and habitats identified under Section 20 of
this administrative regulation;
(b)
Include protective measures that will be used during the active mining phase of
operation. Protective measures may include the establishment of buffer zones,
the selective location and special design of haul roads and powerlines, and the
monitoring of surface water quality and quantity; and
(c)
Include enhancement measures that will be used during the reclamation and
postmining phase of operation to develop aquatic and terrestrial habitat.
Enhancement measures may include restoration of streams and other wetlands,
retention of ponds and impoundments, establishment of vegetation for wildlife
food and cover, and the replacement of perches and nest boxes. If the plan does
not include enhancement measures, a statement shall be given explaining why
enhancement is not practicable.
(3)
Upon request, the cabinet shall provide the protection and enhancement plan
required under this section to the U.S. Department of the Interior, Fish and
Wildlife Service regional or field office for their review. This information
shall be provided within ten (10) days of receipt of the request from the
Service.
(4)(a)
A fish and wildlife protection and enhancement plan shall be required for
amendments and revisions that:
1.
Propose extension into a wetland;
2.
Propose significant disturbance in a new watershed in which the permit area or
adjacent area includes an important stream;
3.
Seek to obtain a stream buffer zone variance under 405 KAR 16:060, Section 11,
or seek to modify an existing stream buffer zone variance;
4.
Propose extension of the permit boundary that involves a new surface
disturbance of five (5) acres or more; or
5.
Involve new permit or adjacent areas likely to contain, or that could
reasonably be expected to contain, a state or federal endangered or threatened
species or its critical habitat.
(b)
For other amendments and revisions, a determination of if a protection and
enhancement plan is necessary shall be made on a case-by-case basis in
consultation with Kentucky Department of Fish and Wildlife Resources and U.S. Fish
and Wildlife.
(5)
This section shall apply to applications for permits, amendments and revisions
submitted to the cabinet on or after November 17, 1992.
Section
37. MRP; Postmining Land Use. (1) Each plan shall contain a description of the
proposed land use or uses following reclamation of the land within the proposed
permit area, including:
(a)
A discussion of the utility and capacity of the reclaimed land to support a
variety of alternative uses, and the relationship of the proposed use to existing
land use policies and plans;
(b)
A discussion of how the proposed postmining land use is to be achieved and the
necessary support activities that may be needed to achieve the proposed land
use, including management practices to be conducted during the liability period
for the commercial forest land, cropland (including hayland), and pastureland
land uses;
(c)
If a land use different from the premining land use is proposed, all supporting
documentation required for approval of the proposed alternative use under 405
KAR 16:210;
(d)
A discussion of the consideration that has been given to making all of the
proposed surface mining activities consistent with surface owner plans and
applicable state and local land use plans and programs; and
(e)
A copy of the comments concerning the proposed use from the legal or equitable
owner of record of the surface of the proposed permit area and the state and
local government agencies, if any, which would have to initiate, implement,
approve, or authorize the proposed use of the land following reclamation.
(2)
Approval of the initial postmining land use plan pursuant to this section,
shall not preclude subsequent consideration and approval of a revised
postmining land use plan in accordance with the applicable requirements of 405
KAR Chapters 7 through 24.
Section
38. Incorporation by Reference. (1) The following material is incorporated by
reference:
(a)
"Standard Methods for the Examination of Water and Wastewater", (14th
Edition, 1975), American Public Health Association, American Water Works
Association, and Water Pollution Control Federation;
(b)
"Corps of Engineers Wetlands Delineation Manual", (January, 1987
Edition), U. S. Army Corps of Engineers;
(c)
"U. S. Army Corps of Engineers Regulatory Guidance Letter No. 90-7",
(September 26, 1990), U. S. Army Corps of Engineers;
(d)
"National Lists of Plant Species that Occur in Wetlands and Biological
Reports and Summary", (May, 1988 Edition), Fish and Wildlife Service, U.
S. Department of the Interior; and
(e)
"List of Hydric Soils of the United States, All Kentucky Counties",
(December, 1991 Edition), Soil Conservation Service, U. S. Department of
Agriculture;
(2)
This material may be inspected, copied, or obtained at the Department for
Natural Resources, #2 Hudson Hollow, Frankfort, Kentucky 40601, Monday through
Friday, 8 a.m. to 4:30 p.m. (8 Ky.R. 1494; eff. 1-6-83; Am. 10 Ky.R. 796; eff.
4-23-84; 11 Ky.R. 1803; 12 Ky.R. 158; eff. 8-13-85; 900; 1288; eff. 2-4-86; 15
Ky.R. 1870; eff. 6-28-89; 17 Ky.R. 2800; 3389; eff. 5-22-91; 18 Ky.R. 2992;
3450; 19 Ky.R. 24; eff. 6-24-92; 24 Ky.R. 675; 1313; 2628; eff. 6-10-98; TAm
eff. 8-9-2007; 41 Ky.R. 567; 1078; 1314; eff. 1-5-2015.)
