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.)