405 KAR 16:001. Definitions for 405 KAR
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, 917c, 30 U.S.C. 1253, 1255, 1291
STATUTORY AUTHORITY: KRS 350.028(1), (5),
350.465, 30 C.F.R. Parts 730-733, 735, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS
350.028(1), (5) and 350.465(2) authorize the cabinet to promulgate
administrative regulations relating to surface and underground coal mining operations.
This administrative regulation defines terms used in 405 KAR Chapter 16.
Section 1. Definitions. (1) "Acid
drainage" means water with a pH of less than six (6.0) and in which total
acidity exceeds total alkalinity, discharged from an active, inactive, or
abandoned surface coal mine and reclamation operation or from an area affected
by surface coal mining and reclamation operations.
(2) "Acid-forming materials"
means earth materials that contain sulfide minerals or other materials which,
if exposed to air, water, or weathering processes, form acids that may create
(3) "Acquisition" means
purchase, lease, or option of the land for the purpose of conducting or
allowing through resale, lease, or option, the conduct of surface coal mining
and reclamation operations.
(4) "Adjacent area" means land
located outside the affected area or permit area, depending on the context in
which "adjacent area" is used, where air, surface or groundwater,
fish, wildlife, vegetation or other resources protected by KRS Chapter 350 may
be adversely impacted by surface coal mining and reclamation operations.
(5) "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.
(6) "Applicant" means any
person(s) 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
(7) "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.
(8) "Approximate original
contour" is defined in KRS 350.010.
(9) "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.
(10) "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.
(11) "Best technology currently
available" means equipment, devices, systems, methods, or techniques which
will prevent, to the extent possible, additional contributions of suspended
solids to stream flow or runoff outside the permit area and minimize, to the
extent possible, disturbances and adverse impacts on fish, wildlife, and
related environmental values, and achieve enhancement of those resources where
practicable. The term includes equipment, devices, systems, methods, or
techniques which are currently available anywhere as determined by the cabinet,
even if they are not in routine use. The term includes, but is not limited to,
construction practices, siting requirements, vegetative selection and planting
requirements, animal stocking requirements, scheduling of activities and design
of sedimentation ponds in accordance with 405 KAR Chapters 16 and 18. The
cabinet shall have the discretion to determine the best technology currently
available on a case-by-case basis, as authorized by KRS Chapter 350 and 405 KAR
Chapters 7 through 24.
(12) "Blaster" means a person
who is directly responsible for surface blasting operations in surface coal
mining and reclamation operations or coal exploration operations.
(13) "Bond pool" or
"Kentucky Bond Pool" means the voluntary alternative bonding program
established at KRS 350.700 through 350.755.
(14) "Cabinet" is defined in
(15) "C.F.R." means Code of
(16) "Coal" means combustible
carbonaceous rock, classified as anthracite, bituminous, subbituminous, or
lignite by ASTM Standard D 388-77.
(17) "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.
(18) "Coal mine waste" means
coal processing waste and underground development waste.
(19) "Coal processing waste"
means materials which are separated from the product coal during the cleaning,
concentrating, or other processing or preparation of coal.
(20) "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.
(21) "Combustible material"
means organic material that is capable of burning, either by fire or through
oxidation, accompanied by the evolution of heat and a significant temperature
(22) "Compaction" means
increasing the density of a material by reducing the voids between the
particles by mechanical effort.
(23) "Cropland" means land used
for the production of adapted crops for harvest, alone or in a rotation with
grasses and legumes, and includes row crops, small grain crops, hay crops,
nursery crops, orchard crops, and other similar specialty crops.
(24) "Cumulative impact area"
means the area, including the permit area, within which impacts resulting from
the proposed operation may interact with the impacts of all anticipated mining
on surface and groundwater systems. Anticipated mining shall include, at a
minimum, the entire projected lives through bond release of:
(a) The proposed operation;
(b) All existing operations;
(c) Any operation for which a permit
application has been submitted to the cabinet; and
(d) All operations required to meet
diligent development requirements for leased federal coal for which there is
actual mine development information available.
(25) "Day" means calendar day
unless otherwise specified to be a working day.
(26) "dB" means decibels.
(27) "Department" means the
Department for Natural Resources.
(28) "Developed water resources
land" means land used for storing water for beneficial uses such as
stockponds, irrigation, fire protection, flood control, and water supply.
(29) "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.
(30) "Diversion" means a
channel, embankment, or other manmade structure constructed to divert water
from one (1) area to another.
(31) "Downslope" means the land
surface below the projected outcrop of the lowest coalbed being mined along
(32) "Durable rock" means rock
(a) Does not slake in water;
(b) Is not reasonably expected to degrade
to a size or condition that will block, cause failure of, impair, or restrict
the effectiveness of the internal drainage system; and
(c) Has been demonstrated to have a slake
durability index value of ninety (90) or greater as determined by:
1. The "Method of Determination of
Slake Durability Index (Kentucky Method 64-513-79)"; or
2. A test method that yields an
equivalent measure of durability based upon correlation of results with
Kentucky Method 64-513-79.
(33) "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.
(34) "Ephemeral stream" means a
stream which flows only in direct response to precipitation in the immediate
watershed or in response to the melting of a cover of snow and ice, and which
has a channel bottom that is always above the local water table.
(35) "Excess spoil" means spoil
disposed of in a location other than the coal extraction area, except that
spoil material used to achieve the approximate original contour shall not be
considered excess spoil.
(36) "Fish and wildlife land
use", as used in 405 KAR 16:210 and in similar situations when referring
to a premining or postmining land use, means land dedicated wholly or partially
to the production, protection, or management of fish or wildlife. Areas
considered as having the fish and wildlife land use are typically characterized
by a diversity of habitats in which use by wildlife is the dominant
characteristic, whether actively managed or not.
(37) "Forest land" means land
used or managed for the long term production of wood, wood fiber, or wood
(38) "Fugitive dust" means that
particulate matter which becomes airborne due to wind erosion from exposed
(39) "Ground cover" means the
area of ground covered by the combined aerial parts of vegetation and litter
produced and distributed naturally and seasonally on site, expressed as a
percentage of the total area of measurement.
(40) "Groundwater" means
subsurface water that fills available openings in rock or soil materials to the
extent that they are considered water saturated.
(41) "Growing season" means the
period during a one (1) year cycle, from the last killing frost in the spring
to the first killing frost in the fall, in which climatic conditions are
favorable for plant growth. In Kentucky, this period normally extends from
mid-April to mid-October.
(42) "Head-of-hollow fill"
means a fill structure consisting of any material, other than coal processing
waste and organic material, placed in the uppermost reaches of a hollow near
the approximate elevation of the ridgeline, where there is no significant
natural drainage area above the fill, and where the side slopes of the existing
hollow measured at the steepest point are greater than twenty (20) degrees or
the average slope of the profile of the hollow from the toe of the fill to the
top of the fill is greater than ten (10) degrees.
(43) "Higher or better uses"
means postmining land uses that have a higher economic value or nonmonetary
benefit to the landowner or the community than the premining land uses.
(44) "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.
(45) "Highwall remnant" means
that portion of highwall that remains after backfilling and grading of a
remining permit area.
(46) "Historically used for
cropland" means land that:
(a) Has been used for cropland for any of
five (5) years or more of the ten (10) years immediately preceding the:
1. Application; or
2. Acquisition of the land for the
purpose of conducting a surface coal mining and reclamation operation;
(b) Would likely have been used for
cropland for any five (5) of the ten (10) years immediately preceding the
acquisition or application, but for some fact of ownership or control of the
land unrelated to the productivity of the land;
(c) Falls outside the five (5) of ten
(10) years criteria, but the cabinet determines is clearly cropland on the
basis of additional cropland history of:
1. Surrounding land; and
2. The land under consideration.
(47) "Hydrologic balance" means
the relationship between the quality and quantity of water inflow to, water
outflow from, and water storage in a hydrologic unit such as a drainage basin,
aquifer, soil zone, lake, or reservoir. It encompasses the dynamic relationship
between precipitation, runoff, evaporation, and changes in ground and surface
(48) "Hz" means hertz.
(49) "Imminent danger to the health
and safety of the public" means the existence of any condition or
practice, or any violation of a permit or other requirements of KRS Chapter 350
in a surface coal mining and reclamation operation, which could reasonably be expected
to cause substantial physical harm to persons outside the permit area before
the condition, practice, or violation can be abated. A reasonable expectation
of death or serious injury before abatement exists if a rational person,
subjected to the same condition or practice giving rise to the peril, would
avoid exposure to the danger during the time necessary for abatement.
(50) "Impounding structure"
means a dam, embankment or other structure used to impound water, slurry, or
other liquid or semiliquid material.
(51) "Impoundment" means a
water, sediment, slurry or other liquid or semiliquid holding structure or
depression, either naturally formed or artificially built.
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
(53) "In situ process" means:
(a) In situ gasification;
(b) In situ leaching;
(c) Slurry mining;
(d) Solution mining;
(e) Borehole mining;
(f) Fluid recovery mining; or
(g) Another activity conducted on the
surface or underground in connection with:
1. In-place distillation;
3. Leaching; or
4. Chemical or physical processing of
(54) "Intermittent stream"
(a) A stream or reach of stream that
drains a watershed of one (1) square mile or more but does not flow
continuously during the calendar year; or
(b) A stream or reach of a stream that is
below the local water table for at least some part of the year, and obtains its
flow from both surface runoff and groundwater discharge.
(55) "KAR" means Kentucky administrative regulations.
(56) "KPDES" means Kentucky
Pollutant Discharge Elimination System.
(57) "KRS" means Kentucky
(58) "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.
(59) "Modified highwall" means
(a) The highwall resulting from remining
where the preexisting highwall face is removed; or
(b) The highwall resulting from remining
where the preexisting highwall is vertically enlarged.
(60) "Monitoring" means the
collection of environmental data by either continuous or periodic sampling
(61) "MRP" means mining and
(62) "MSHA" means Mine Safety
and Health Administration.
(63) "Mulch" means vegetation
residues or other suitable materials that aid in soil stabilization and soil
moisture conservation, thus providing microclimatic conditions suitable for
germination and growth.
(64) "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
(65) "Operations" is defined in
(66) "Operator" is defined in
(67) "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
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
(68) "OSM" means Office of
Surface Mining Reclamation and Enforcement, United States Department of the
(69) "Other treatment
facilities" means any chemical treatments, such as flocculation or
neutralization, or mechanical structures, such as clarifiers or precipitators,
that have a point source discharge and are utilized:
(a) To prevent additional contributions
of dissolved or suspended solids to streamflow or runoff outside the permit
(b) To comply with 405 KAR 16:070.
(70) "Outslope" means the face
of the spoil or embankment sloping downward from the highest elevation to the
(71) "Overburden" is defined in
(72) "Pastureland" means land
used primarily for the long-term production of adapted, domesticated forage
plants to be grazed by livestock or occasionally cut and cured for livestock
(73) "Perennial stream" means a
stream or that part of a stream that flows continuously during all of the
calendar year as a result of groundwater discharge or surface runoff. The term
does not include "intermittent stream" or "ephemeral stream."
(74) "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.
(75) "Permanent diversion"
means a diversion remaining after surface coal mining and reclamation
operations are completed which has been approved for retention by the cabinet
and other appropriate Kentucky and federal agencies.
(76) "Permit" means written
approval issued by the cabinet to conduct surface coal mining and reclamation
(77) "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.
(78) "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.
(79) "Person" is defined in KRS
(80) "Precipitation event"
means a quantity of water resulting from drizzle, rain, snowmelt, sleet, or
hail in a specified period of time.
(81) "Previously mined area"
means land that was affected by coal mining operations conducted prior to
August 3, 1977, that has not been reclaimed to the standards of this title.
(82) "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.
(83) "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.
(84) "Public building" means
any structure that is owned or leased, and principally used by a governmental
agency for public business or meetings.
(85) "Public road" means any
publicly owned thoroughfare for the passage of vehicles.
(86) "RAM" means Reclamation
(87) "Reasonably available
spoil" means spoil and suitable coal mine waste material generated by the
remining operation and other spoil or suitable coal mine waste material located
in the permit area that is accessible and available for use and that when rehandled
will not cause a hazard to public safety or significant damage to the environment.
For this purpose, the permit area shall include all spoil of this nature
located in the immediate vicinity of the mining operation.
(88) "Recharge capacity" means
the ability of the soils and underlying materials to allow precipitation and
runoff to infiltrate and reach the zone of saturation.
(89) "Reclamation" is defined
in KRS 350.010.
(90) "Recreation land" means
land used for public or private leisure-time use, including developed
recreation facilities such as parks, camps, and amusement areas, as well as
areas for less intensive uses such as hiking, canoeing, and other undeveloped
(91) "Reference area" means a
land unit maintained under appropriate management for the purpose of measuring
vegetative ground cover, productivity, and plant species diversity that are
produced naturally or by crop production methods approved by the cabinet.
(92) "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
(93) "Remining" means
conducting surface coal mining and reclamation operations which affect
previously mined areas.
(94) "Residential land" means
tracts employed for single and multiple-family housing, mobile home parks, and
other residential lodgings.
(95) "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.
(96) "Safety factor" means the
ratio of the available shear strength to the developed shear stress, or the
ratio of the sum of the resisting forces to the sum of the loading or driving
forces, as determined by accepted engineering practices.
(97) "SCS" means Soil
(98) "Sedimentation pond" means
a primary sediment control structure:
(a) Designed, constructed, or maintained
pursuant to 405 KAR 16:090 or 405 KAR 18:090;
(b) That may include a barrier, dam, or
excavated depression to:
1. Slow water runoff; and
2. Allow suspended solids to settle out;
(c) That shall not include secondary
sedimentation control structures, including a straw dike, riprap, check dam,
mulch, dugout, or other measure that reduces overland flow velocity, reduces
runoff volume, or trap sediment, to the extent that the secondary sedimentation
structure drains into a sedimentation pond.
(99) "Significant, imminent
environmental harm" means an adverse impact on land, air, or water
resources which resources include plant and animal life as further defined in
(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.
(100) "Slope" means average
inclination of a surface, measured from the horizontal, generally expressed as
the ratio of a unit of vertical distance to a given number of units of
horizontal distance (e.g., 1v:5h). It may also be expressed as a percent or in
(101) "Slurry mining" means the
hydraulic breakdown of subsurface coal with drill-hole equipment, and the
eduction of the resulting slurry to the surface for processing.
(102) "SMCRA" means Surface
Mining Control and Reclamation Act of 1977 (PL 95-87), as amended.
(103) "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.
(104) "Spoil" means overburden
and other materials, excluding topsoil, coal mine waste, and mined coal, that
are excavated during surface coal mining and reclamation operations.
(105) "Stabilize" means to
control movement of soil, spoil piles, or areas of disturbed earth by modifying
the geometry of the mass, or by otherwise modifying physical or chemical
properties, such as by providing a protective surface coating.
(106) "Steep slope" means any
slope of more than twenty (20) degrees.
(107) "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.
(108) "Surface blasting
(a) Means the on-site storage,
transportation, and use of explosives in association with:
1. A coal exploration operation;
2. Surface mining activities; or
3. A surface disturbance of underground
mining activities; and
(b) Includes the following activities:
1. Design of an individual blast;
2. Implementation of a blast design;
3. Initiation of a blast;
4. Monitoring of an airblast and ground
5. Use of access control, warning and
all-clear signals, and similar protective measures.
(109) "Surface coal mining and
reclamation operations" is defined in KRS 350.010.
(110) "Surface coal mining
operations" is defined in KRS 350.010.
(111) "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.
(112) "Suspended solids" or
nonfilterable residue, expressed as milligrams per liter, means organic or
inorganic materials carried or held in suspension in water which are retained
by a standard glass fiber filter in the procedure outlined by the U.S. EPA's
regulations for waste water and analyses (40 C.F.R. 136).
(113) "Temporary diversion"
means a diversion of a stream or overland flow which is used during coal
exploration or surface coal mining and reclamation operations and not approved
by the cabinet to remain after reclamation as part of the approved postmining
(114) "Ton" means 2000 pounds
avoirdupois (.90718 metric ton).
(115) "Topsoil" means the A and
E soil horizon layers of the four (4) master soil horizons.
(116) "Toxic-forming materials"
means earth materials or wastes which, if acted upon by air, water, weathering,
or microbiological processes, are likely to produce chemical conditions in
soils or water that are detrimental to biota or uses of water.
(117) "Toxic mine drainage"
means water that is discharged from active or abandoned mines or other areas
affected by coal exploration or surface coal mining and reclamation operations,
which contains a substance that through chemical action is likely to kill,
injure, or impair biota commonly present in the area that might be exposed to
(118) "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.
(119) "TRM" means Technical
(120) "Underground development
waste" means waste coal, shale, claystone, siltstone, sandstone,
limestone, or similar materials that are extracted from underground workings in
connection with underground mining activities.
(121) "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, aboveground 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.
(122) "Undeveloped land or no
current use or land management" means land that is undeveloped or, if
previously developed, land that has been allowed to return naturally to an undeveloped
state or has been allowed to return to forest through natural succession.
(123) "U.S. EPA" means United
States Environmental Protection Agency.
(124) "Valley fill" means a
fill structure consisting of any material other than coal waste and organic
material that is placed in a valley where side slopes of the existing valley
measured at the steepest point are greater than twenty (20) degrees or the
average slope of the profile of the valley from the toe of the fill to the top
of the fill is greater than ten (10) degrees.
(125) "Valuable environmental
(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. Sec. 1531 et seq.), or those species or habitats protected
by similar state statutes; and
(b) Habitats of unusually high value for
fish and wildlife, as determined by the cabinet in consultation with state and
federal agencies with responsibilities for fish and wildlife.
(126) "Water table" means the
upper surface of a zone of saturation, where the body of groundwater is not
confined by an overlying impermeable zone.
(127) "Water transmitting zone"
means a body of consolidated or unconsolidated rocks which, due to their
greater primary or secondary permeability relative to the surrounding rocks,
can reasonably be considered to function as a single hydraulic medium for the
flow of groundwater.
(128) "Wetland" means land that
has a predominance of hydric soils and that is inundated or saturated by
surface or groundwater at a frequency and duration sufficient to support, and
that under normal circumstances does support, a prevalence of hydrophytic
vegetation typically adapted for life in saturated soil conditions.
(a) "Hydric soil" means soil
that, in its undrained condition, is saturated, flooded, or ponded long enough
during a growing season to develop an anaerobic condition that supports the
growth and regeneration of hydrophytic vegetation.
(b) "Hydrophytic vegetation"
means a plant growing in:
1. Water; or
2. A substrate that is at least
periodically deficient in oxygen during a growing season as a result of
excessive water content.
Section 2. Incorporation by Reference. (1)
The following material is incorporated by reference:
(a) "ASTM Standard D 388-77,
Standard Specification for Classification of Coals by Rank", (1977),
American Society for Testing and Materials, is incorporated by reference;
(b) "Method for Determination of
Slake Durability Index, Kentucky Method 64-513-79", (1979), Kentucky
Department of Transportation.
(2) It may be inspected, copied, or
obtained at the Department for Natural Resources, 2 Hudson Hollow, Frankfort,
Kentucky 40601-4321, Monday through Friday, 8 a.m. to 4:30 p.m. (18 Ky.R. 2475; Am.
2844; eff. 4-3-92; 24 Ky.R. 704; 2652; eff. 6-10-98; TAm eff. 8-9-2007.)