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405 Kar 7:001. Definitions For 405 Kar Chapter 7


Published: 2015

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      405 KAR 7:001. Definitions for 405 KAR

Chapter 7.

 

      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 Chapter 13A,

350.028, 350.465, 7 C.F.R. Part 657, 30 C.F.R. Parts 700.5, 701.5, 707.5,

730-733, 735, 761.5, 762.5, 773.5, 800.5, 843.5, 917, 30 U.S.C. 1253, 1255,

1291

      NECESSITY, FUNCTION, AND CONFORMITY: KRS

Chapter 350 in pertinent part requires the cabinet to promulgate rules and

administrative regulations pertaining to surface coal mining and reclamation

operations under the permanent regulatory program. This administrative

regulation provides for the defining of certain essential terms used in 405 KAR

Chapter 7.

 

      Section 1. Definitions. (1)

"Adjacent area" means land located outside the affected area or

permit area, depending on the context in which "adjacent area" is

used, where air, surface or groundwater, fish, wildlife, vegetation or other

resources protected by KRS Chapter 350 may be adversely impacted by surface

coal mining and reclamation operations.

      (2) "Administrative hearing"

means a formal adjudicatory hearing conducted pursuant to 405 KAR 7:091 and 405

KAR 7:092 before the cabinet.

      (3) "Administratively complete

application" means an application for permit approval, or approval for

coal exploration if required, which the cabinet determines to contain

information addressing each application requirement of the regulatory program

and to contain all information necessary to initiate technical processing and

public review.

      (4) "Affected area" means any

land or water area 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.

      (5) "Applicant" means any

person seeking a permit, permit revision, permit amendment, permit renewal, or

transfer, assignment, or sale of permit rights from the cabinet to conduct

surface coal mining and reclamation operations or approval to conduct coal

exploration operations pursuant to KRS Chapter 350 and all applicable administrative

regulations.

      (6) "Application" means the

documents and other information filed with the cabinet seeking issuance of

permits; revisions; amendments; renewals; and transfer, assignment or sale of

permit rights for surface coal mining and reclamation operations or, if required,

seeking approval for coal exploration.

      (7) "Approximate original

contour" is defined in KRS 350.010.

      (8) "Aquifer" means a zone,

stratum, or group of strata that can store and transmit water in sufficient

quantities for domestic, agricultural, industrial, or other beneficial use.

      (9) "Auger mining" means a

method of mining coal at a cliff or highwall by drilling holes into an exposed

coal seam from the highwall and transporting the coal along an auger bit to the

surface and 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.

      (10) "Blaster" means a person

who is directly responsible for surface blasting operations in surface coal

mining and reclamation operations or coal exploration operations.

      (11) "Cabinet" is defined in

KRS 350.010.

      (12) "Cessation order" means an

order for cessation and immediate compliance and any similar order issued by

OSM under SMCRA or issued by any state pursuant to its laws or regulations

under SMCRA.

      (13) "C.F.R." means Code of

Federal Regulations.

      (14) "Coal" means combustible

carbonaceous rock, classified as anthracite, bituminous, subbituminous, or

lignite by ASTM Standard D 388-77.

      (15) "Coal exploration" means

the field gathering of:

      (a) Surface or subsurface geologic,

physical, or chemical data by mapping, trenching, drilling, geophysical, or

other techniques necessary to determine the quality and quantity of overburden

and coal of an area; or

      (b) Environmental data to establish the

conditions of an area before beginning surface coal mining and reclamation

operations under the requirements of 405 KAR Chapters 7 through 24 if the

activity may cause any disturbance of the land surface or may cause any appreciable

effect upon land, air, water, or other environmental resources.

      (16) "Coal mine waste" means

coal processing waste and underground development waste.

      (17) "Coal processing waste"

means materials which are separated from the product coal during the cleaning,

concentrating, or other processing or preparation of coal.

      (18) "Collateral bond" means an

indemnity agreement in a sum certain payable to the cabinet executed by the

permittee and 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.

      (19) "Cumulative measurement

period" means the period of time over which both cumulative production and

cumulative revenue are measured.

      (20) "Cumulative production"

means the total tonnage of coal or other minerals extracted from a mining area

during the cumulative measurement period. The inclusion of stockpiled coal and

other mineral tonnages in this total shall be governed by Section 7 of 405 KAR

7:035.

      (21) "Cumulative revenue" means

the total revenue derived from the sale of coal or other minerals and the fair

market value of coal or other minerals transferred or used, but not sold,

during the cumulative measurement period.

      (22) "Day" means calendar day

unless otherwise specified to be a working day.

      (23) "Department" means the

Department for Natural Resources.

      (24) "Disturbed area" means an

area where vegetation, topsoil, or overburden is removed or upon which topsoil,

spoil, coal processing waste, underground development waste, or noncoal waste

is placed by surface coal mining operations. Those areas are classified as

"disturbed" until reclamation is complete and the performance bond or

other assurance of performance required by 405 KAR Chapter 10 is released.

      (25) "Embankment" means a

manmade deposit of material that is raised above the natural surface of the

land and used to contain, divert, or store water; to support roads or railways;

or for other similar purposes.

      (26) "Existing structure" means

a structure or facility used in connection with or to facilitate surface coal

mining and reclamation operations, for which construction began prior to

January 18, 1983.

      (27) "Extraction of coal as an

incidental part" means the extraction of coal which is necessary to enable

the construction to be accomplished. Only that coal extracted from within the

right-of-way, in the case of a road, railroad, utility line, or similar

construction, or within the boundaries of the area directly affected by other

types of government-financed construction, may be considered incidental to that

construction. Extraction of coal outside the right-of-way or boundary of the

area directly affected by the construction shall be subject to the requirements

of KRS Chapter 350 and 405 KAR Chapters 7 through 24.

      (28) "Final order" means final

order of the secretary, which may include findings of fact, conclusions of law,

and an order.

      (29) "Government-financed

construction" means construction funded fifty (50) percent or more by

funds appropriated from a government financing agency's budget or obtained from

general revenue bonds, but shall not mean government financing agency

guarantees, insurance, loans, funds obtained through industrial revenue bonds

or their equivalent, or in-kind payments.

      (30) "Government financing

agency" means a federal, Commonwealth of Kentucky, county, municipal, or

local unit of government, or a cabinet, department, agency, or office of the

unit which, directly or through another unit of government, finances construction.

      (31) "Groundwater" means

subsurface water that fills available openings in rock or soil materials to the

extent that they are considered water saturated.

      (32) "Hearing officer" means

the individual duly qualified and assigned as presiding officer to conduct

administrative hearings; the term includes the chief hearing officer.

      (33) "Highwall" means the face

of exposed overburden and coal in an open cut of a surface mining activity or

for entry to underground mining activities.

      (34) "Historically used for

cropland."

      (a) "Historically used for

cropland" means that lands have been used for cropland for any five (5)

years or more out of the ten (10) years immediately preceding:

      1. The application; or

      2. The acquisition of the land for the

purpose of conducting surface coal mining and reclamation operations.

      (b) Lands meeting either paragraph (a)1

or 2 of this subsection shall be considered "historically used for

cropland".

      (c) In addition to the lands covered by

paragraph (a) of this subsection, other lands shall be considered

"historically used for cropland" as described below:

      1. Lands that would likely have been used

as cropland for any five (5) out of the last ten (10) years immediately

preceding the acquisition or the application but for some fact of ownership or

control of the land unrelated to the productivity of the land; and

      2. Lands that the cabinet determines, on

the basis of additional cropland history of the surrounding lands and the lands

under consideration, are clearly cropland but fall outside the specific five

(5) years in ten (10) criterion.

      (d) Acquisition includes purchase, lease,

or option of the land for the purpose of conducting or allowing through resale,

lease or option, the conduct of surface coal mining and reclamation operations.

      (35) "Hydrologic balance" means

the relationship between the quality and quantity of water inflow to, water

outflow from, and water storage in a hydrologic unit such as a drainage basin,

aquifer, soil zone, lake, or reservoir. It encompasses the dynamic relationship

between precipitation, runoff, evaporation, and changes in ground and surface

water storage.

      (36) "Hydrologic regime" means

the entire state of water movement in a given area. It is a function of the

climate and includes the phenomena by which water first occurs as atmospheric

water vapor, passes into a liquid or solid form, falls as precipitation, moves

along or into the ground surface, and returns to the atmosphere as vapor by

means of evaporation and transpiration.

      (37) "Imminent danger to the health

and safety of the public" means the existence of any condition or practice,

or any violation of a permit or other requirements of KRS Chapter 350 in a

surface coal mining and reclamation operation, which could reasonably be expected

to cause substantial physical harm to persons outside the permit area before

the condition, practice, or violation can be abated. A reasonable expectation

of death or serious injury before abatement exists if a rational person,

subjected to the same condition or practice giving rise to the peril, would

avoid exposure to the danger during the time necessary for abatement.

      (38) "Impoundment" means a

closed basin, naturally formed or artificially built, which is dammed or

excavated for the retention of water, sediment, or waste.

      (39) "Individual", as used in

405 KAR 7:091 and 7:092, means a natural person.

      (40) "Industrial/commercial

lands" means lands used for:

      (a) Extraction or transformation of

materials for fabrication of products, wholesaling of products, or long-term

storage of products, and heavy and light manufacturing facilities.

      (b) Retail or trade of goods or services,

including hotels, motels, stores, restaurants, and other commercial

establishments.

      (41) "Initiating document"

means a petition for administrative hearing, an administrative complaint, a

show cause order, or any other document which commences an administrative

proceeding.

      (42) "In situ processes" means

activities conducted on the surface or underground in connection with in-place

distillation, retorting, leaching, or other chemical or physical processing of

coal. The term includes, but is not limited to, in situ gasification, in situ

leaching, slurry mining, solution mining, borehole mining, and fluid recovery

mining.

      (43) "Interim report" means

statements made by a hearing officer in written form which are not intended to

be considered by the secretary and which are not subject to judicial review.

      (44) "KAR" means Kentucky

administrative regulations.

      (45) "Knowingly" means that a

person knew or had reason to know in authorizing, ordering, or carrying out an

act or omission that the act or omission constituted a violation of SMCRA, KRS

Chapter 350, 405 KAR Chapters 7 through 24, or a permit condition, or that the

act or omission constituted a failure or refusal to comply with an order issued

pursuant to SMCRA, KRS Chapter 350, or 405 KAR Chapters 7 through 24.

      (46) "KRS" means Kentucky

Revised Statutes.

      (47) "Land use" means specific

functions, uses, or management-related activities of an area, and 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.

      (48) "Mining area", as used in

405 KAR 7:035, means an individual excavation site or pit from which coal,

other minerals, and overburden are removed.

      (49) "Monitoring" means the

collection of environmental data by either continuous or periodic sampling

methods.

      (50) "MSHA" means Mine Safety

and Health Administration.

      (51) "Notice of noncompliance and

order for remedial measures" means a written document and order prepared

by an authorized representative of the cabinet 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.

      (52) "Office", as used in 405

KAR 7:091 and 7:092, means the office of administrative hearings.

      (53) "Operations" is defined in

KRS 350.010.

      (54) "Operator" is defined in

KRS 350.010.

      (55) "Order for cessation and

immediate compliance" means a written document and order issued by an

authorized representative of the cabinet when:

      (a) A person to whom a notice of

noncompliance and order for remedial measures was issued has failed, as

determined by a cabinet inspection, to comply with the terms of the notice of

noncompliance and order for remedial measures within the time limits set

therein, or as subsequently extended; or

      (b) The authorized representative finds,

on the basis of a cabinet inspection, any condition or practice or any

violation of KRS Chapter 350, 405 KAR Chapters 7 through 24, or any condition

of a permit or exploration approval 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.

      (56) "OSM" means Office of

Surface Mining Reclamation and Enforcement, United States Department of the

Interior.

      (57) "Other mineral" means any

commercially valuable substance mined for its mineral value, excluding coal,

topsoil, waste, and fill material.

      (58) "Overburden" is defined in

KRS 350.010.

      (59) "Performance bond" means a

surety bond, a collateral bond, or a combination thereof, or bonds filed

pursuant to the provisions of the Kentucky Bond Pool Program (405 KAR 10:200,

KRS 350.595, and KRS 350.700 through 350.755), by which a permittee assures

faithful performance of all the requirements of KRS Chapter 350, 405 KAR

Chapters 7 through 24, and the requirements of the permit and reclamation plan.

      (60) "Permit" means written

approval issued by the cabinet to conduct surface coal mining and reclamation

operations.

      (61) "Permit area" means the

area of land 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.

      (62) "Permittee" means an

operator or a person holding or required by KRS Chapter 350 or 405 KAR Chapters

7 through 24 to hold a permit to conduct surface coal mining and reclamation

operations during the permit term and until all reclamation obligations imposed

by KRS Chapter 350 and 405 KAR Chapters 7 through 24 are satisfied.

      (63) "Person" is defined in KRS

350.010.

      (64) "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.

      (65) "Probable cumulative

impacts" means the expected total qualitative, and quantitative, direct

and indirect effects of surface coal mining and reclamation operations on the

hydrologic regime.

      (66) "Probable hydrologic

consequences" means the projected results of proposed surface coal mining

and reclamation operations 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.

      (67) "Reclamation" is defined

in KRS 350.010.

      (68) "Record" means the

transcript of a proceeding, if any, and rulings; and all pleadings, motions,

and rulings; documentary and physical evidence received or considered; a

statement of matters officially noticed; questions and offers of proof,

objections, and rulings thereon, proposed findings and recommended orders; and

legal briefs and orders.

      (69) "Refuse pile" means a

surface deposit of coal mine waste that is not retained by an impounding

structure and does not impound water, slurry, or other liquid or semiliquid

material.

      (70) "Road" 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.

      (71) "SCS" means Soil

Conservation Service.

      (72) "Secretary" is defined in

KRS 350.010.

      (73) "Sedimentation pond" means

a primary sediment control structure designed, constructed, and maintained in

accordance with 405 KAR 16:090 or 405 KAR 18:090 and including but not limited

to a barrier, dam, or excavated depression which slows down water runoff to

allow suspended solids to settle out. A sedimentation pond shall not include

secondary sedimentation control structures, such as straw dikes, riprap, check

dams, mulches, dugouts, and other measures that reduce overland flow velocity,

reduce runoff volume, or trap sediment, to the extent that the secondary

sedimentation structures drain to a sedimentation pond.

      (74) "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.

      (75) "Small operator", as used

in 405 KAR 7:080, means an operator whose combined actual and attributed

production of coal does not exceed 300,000 tons during any period of twelve

(12) consecutive months.

      (76) "SMCRA" means Surface

Mining Control and Reclamation Act of 1977 (PL 95-87), as amended.

      (77) "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.

      (78) "Spoil" means overburden

and other materials, excluding topsoil, coal mine waste, and mined coal, that

are excavated during surface coal mining and reclamation operations.

      (79) "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.

      (80) "Surface blasting

operations" means the on-site storage, transportation, and use of

explosives in association with coal exploration operations, surface mining

activities, and surface disturbances of underground mining activities. The term

shall be interpreted broadly and shall encompass activities including, but not

limited to, the design of individual blasts, the implementation of blast

designs, the initiation of blasts, the monitoring of airblast and ground

vibration, and the use of protective measures such as access control and

warning and all-clear signals.

      (81) "Surface coal mining and

reclamation operations" is defined in KRS 350.010.

      (82) "Surface coal mining

operations" is defined in KRS 350.010.

      (83) "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.

      (84) "Ton" means 2000 pounds

avoirdupois (.90718 metric ton).

      (85) "Topsoil" means the A and E soil

horizon layers of the four (4) master soil horizons.

      (86) "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.

      (87) "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.

      (88) "Unwarranted failure to

comply" means the failure of the permittee due to indifference, lack of

diligence, or lack of reasonable care:

      (a) To prevent the occurrence of any

violation of any applicable requirement of KRS Chapter 350, 405 KAR Chapters 7

through 24, or permit conditions; or

      (b) To abate any violation of any

applicable requirement of KRS Chapter 350, 405 KAR Chapters 7 through 24, or

permit conditions.

      (89) "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. (18 Ky.R. 2453; Am. 2834; eff. 4-3-92; 19

Ky.R. 460; 925; 1345; eff. 11-23-92; TAm eff. 8-9-2007.)