Kentucky Administrative Regulations › Title 405 - ENERGY AND ENVIRONMENT CABINET - DEPARTMENT FOR NATURAL RESOURCES › Chapter 8 - Permits › Section 405 KAR 8:001 - Definitions for 405 KAR Chapter 8

Current through Register Vol. 51, No. 1, July 1, 2024
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. Chapter 25,
				1253,
				1255,
				1291
NECESSITY, FUNCTION, AND CONFORMITY:
				KRS 350.028(1) and
				(5) and
				350.465(2)
				authorize the cabinet to promulgate administrative regulations relating to
				surface and underground coal mining operations. This administrative regulation
				defines terms used in 405 KAR Chapter 8.
Section
			 1. Definitions.
(1) "Acid
			 drainage" means water with a pH of less than six and zero-tenths (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 that, if exposed to
			 air, water, or weathering processes, form acids that could create acid
			 drainage.
(3) "Acquisition" means
			 purchase, lease, or option of the land for the purpose of conducting or
			 allowing through resale, lease, or option, the conduct of surface coal mining
			 and reclamation operations.
(4)
			 "Adjacent area" means land located outside the affected area or permit area,
			 depending on the context in which "adjacent area" is used, where air, surface
			 or groundwater, fish, wildlife, vegetation, or other resources protected by KRS
			 Chapter 350 could be adversely impacted by surface coal mining and reclamation
			 operations.
(5) "Administratively
			 complete application" means an application for permit approval, or approval for
			 coal exploration if required, which the cabinet determines to contain
			 information addressing each application requirement of the regulatory program
			 and to contain all information necessary to initiate technical processing and
			 public review.
(6) "Affected area"
			 means any land or water area that is used to facilitate, or is physically
			 altered by, surface coal mining and reclamation operations. The affected area
			 includes:
(a) The disturbed area;
(b) Any area upon which surface coal mining
			 and reclamation operations are conducted;
(c) Any adjacent lands the use of which is
			 incidental to surface coal mining and reclamation operations;
(d) 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 established in this
			 definition;
(e) 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, or shipping
			 areas;
(f) 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;
(g) The area located
			 above underground workings associated with underground mining
			 activities;
(h) Auger mining or in
			 situ mining; and
(i) 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:
1. Was designated as a public road pursuant
			 to the laws of the jurisdiction in which it is located;
2. Is maintained with public funds and
			 constructed in a manner similar to other public roads of the same
			 classification within the jurisdiction; and
3. There is substantial (more than
			 incidental) public use.
(7) "Applicant" means any person seeking a
			 permit, permit revision, permit amendment, permit renewal, or transfer,
			 assignment, or sale of permit rights from the cabinet to conduct surface coal
			 mining and reclamation operations or approval to conduct coal exploration
			 operations pursuant to KRS Chapter 350 and 405 KAR Chapter 24.
(8) "Application" means the documents and
			 other information filed with the cabinet seeking issuance of permits,
			 revisions, amendments, renewals, and transfer, assignment or sale of permit
			 rights for surface coal mining and reclamation operations or, if required,
			 seeking approval for coal exploration.
(9) "Approximate original contour" is defined
			 by
			 KRS
			 350.010.
(10) "Aquifer" means a zone, stratum, or
			 group of strata that can store and transmit water in sufficient quantities for
			 domestic, agricultural, industrial, or other beneficial use.
(11) "Auger mining" means a method of mining
			 coal at a cliff or highwall by drilling holes into an exposed coal seam from
			 the highwall and transporting the coal along an auger bit to the surface and
			 shall also include all other methods of mining in which coal is extracted from
			 beneath the overburden by mechanical devices located at the face of the cliff
			 or highwall and extending laterally into the coal seam, such as extended depth
			 and secondary recovery systems.
(12) "Best technology currently available"
			 means equipment, devices, systems, methods, or techniques;
(a) That 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 if practicable;
(b) That are currently available anywhere as
			 determined by the cabinet, even if not in routine use; and
(c) includes 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, as authorized
			 by KRS Chapter 350 and 405 KAR Chapters 7 through 24.
(13) "Cabinet" is defined by
			 KRS
			 350.010.
(14) "Cemetery" means any area where human
			 bodies are interred.
(15)
			 "Cessation order" means an order for cessation and immediate compliance and any
			 similar order issued by OSM under SMCRA or issued by any state pursuant to its
			 laws or regulations under SMCRA.
(16) "C.F.R." means Code of Federal
			 Regulations.
(17) "Coal" means
			 combustible carbonaceous rock, classified as anthracite, bituminous,
			 subbituminous, or lignite by ASTM Standard D 388-77.
(18) "Coal exploration" means the field
			 gathering of:
(a) Surface or subsurface
			 geologic, physical, or chemical data by mapping, trenching, drilling,
			 geophysical, or other techniques necessary to determine the quality and
			 quantity of overburden and coal of an area; or
(b) Environmental data to establish the
			 conditions of an area before beginning surface coal mining and reclamation
			 operations pursuant to the requirements of 405 KAR Chapters 7 through 24 if the
			 activity could cause any disturbance of the land surface or any appreciable
			 effect upon land, air, water, or other environmental resources.
(19) "Coal mine waste" means coal
			 processing waste and underground development waste.
(20) "Coal processing plant" means a facility
			 where coal is subjected to chemical or physical processing or cleaning,
			 concentrating, crushing, sizing, screening, or other processing or preparation
			 including all associated support facilities including loading facilities;
			 storage and stockpile facilities; sheds, shops, and other buildings; water
			 treatment and water storage facilities; settling basins and impoundments; and
			 coal processing and other waste disposal areas.
(21) "Coal processing waste" means materials
			 separated from the product coal during the cleaning, concentrating, or other
			 processing or preparation of coal.
(22) "Collateral bond" means an indemnity
			 agreement in a sum certain payable to the cabinet executed by the permittee and
			 that is supported by the deposit with the cabinet of cash, negotiable
			 certificates of deposit, or an irrevocable letter of credit of any bank
			 organized and authorized to transact business in the United States.
(23) "Combustible material" means organic
			 material that is capable of burning, either by fire or through oxidation,
			 accompanied by the evolution of heat and a significant temperature
			 rise.
(24) "Community or
			 institutional building" means a structure, other than a public building or
			 occupied dwelling, that is used:
(a) For
			 meetings, gatherings, or functions of:
1. A
			 local civic organization; or
2.
			 Other community group;
(b) As a facility for the following purposes:
1. Educational;
2. Cultural;
3. Historic;
4. Religious;
5. Scientific; or
6. Correctional;
(c) As a mental or physical health care
			 facility;
(d) To supply
			 water;
(e) To generate
			 power;
(f) To treat sewage;
			 or
(g) For another public
			 service.
(25)
			 "Compaction" means increasing the density of a material by reducing the voids
			 between the particles by mechanical effort.
(26) "Complete and accurate application"
			 means an application for permit approval, or approval for coal exploration if
			 required, which the cabinet determines to contain all information required
			 under, and necessary to comply with, KRS Chapter 350 and 405 KAR Chapters 7
			 through 24, in order to make decisions concerning its administrative and
			 technical acceptability and if a permit or exploration approval could be
			 issued.
(27) "Cropland" means land
			 used for the production of adapted crops for harvest, alone or in a rotation
			 with grasses and legumes, and includes row crops, small grain crops, hay crops,
			 nursery crops, orchard crops, and other similar specialty crops.
(28) "Cumulative impact area" means the area,
			 including the permit area, within which impacts resulting from the proposed
			 operation could interact with the impacts of all anticipated mining on surface
			 and groundwater systems. Anticipated mining includes, at a minimum, the entire
			 projected lives through bond release of:
(a)
			 The proposed operation;
(b) All
			 existing operations;
(c) Any
			 operation for which a permit application has been submitted to the cabinet;
			 and
(d) All operations required to
			 meet diligent development requirements for leased federal coal for which there
			 is actual mine development information available.
(29) "Day" means calendar day unless
			 otherwise specified to be a working day.
(30) "Department" means the Department for
			 Natural Resources.
(31) "Developed
			 water resources land" means land used for storing water for beneficial uses
			 such as stockponds, irrigation, fire protection, flood control, and water
			 supply.
(32) "Disturbed area" means
			 an area where vegetation, topsoil, or overburden is removed or upon which
			 topsoil, spoil, coal processing waste, underground development waste, or
			 noncoal waste is placed by surface coal mining operations. Those areas are
			 classified as "disturbed" until reclamation is complete and the performance
			 bond or other assurance of performance required by 405 KAR Chapter 10 is
			 released.
(33) "Diversion" means a
			 channel, embankment, or other manmade structure constructed to divert water
			 from one (1) area to another.
(34)
			 "Embankment" means a manmade deposit of material that is raised above the
			 natural surface of the land and used to contain, divert, or store water; to
			 support roads or railways; or for other similar purposes.
(35) "Ephemeral stream" means a stream that
			 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 that has a channel
			 bottom that is always above the local water table.
(36) "Excess spoil":
(a) Means spoil disposed of in a location
			 other than the coal extraction area; and
(b) Does not mean spoil material used to
			 achieve the approximate original contour.
(37) "Existing structure" means a structure
			 or facility used in connection with or to facilitate surface coal mining and
			 reclamation operations, for which construction began prior to January 18,
			 1983.
(38) "Federal lands":
(a) Means any lands, including mineral
			 interests, owned by the United States, without regard to how the United States
			 acquired ownership of the lands or which agency manages the lands; and
(b) Does not include Indian
			 lands.
(39) "Forest
			 land" means land used or managed for the long-term production of wood, wood
			 fiber, or wood derived products.
(40) "Fugitive dust" means particulate matter
			 that becomes airborne due to wind erosion from exposed surfaces.
(41) "General area" means, with respect to
			 hydrology, the topographic and groundwater basin surrounding a permit area that
			 is of sufficient size, including areal extent and depth, to include one (1) or
			 more watersheds containing perennial streams and groundwater zones and to allow
			 assessment of the probable cumulative impacts on the quality and quantity of
			 surface and groundwater systems in the basins.
(42) "Ground cover" means the area of ground
			 covered by the combined aerial parts of vegetation and litter produced and
			 distributed naturally and seasonally on site, expressed as a percentage of the
			 total area of measurement.
(43)
			 "Groundwater" means subsurface water that fills available openings in rock or
			 soil materials to the extent that they are considered water
			 saturated.
(44) "Growing season"
			 means the period during a one (1) year cycle, from the last killing frost in
			 the spring to the first killing frost in the fall, in which climatic conditions
			 are favorable for plant growth. In Kentucky, this period normally extends from
			 mid-April to mid-October.
(45)
			 "Highwall" means the face of exposed overburden and coal in an open cut of a
			 surface mining activity or for entry to underground mining
			 activities.
(46) "Historically used
			 for cropland."
(a) Historically used for
			 cropland" means that lands have 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) Lands meeting either paragraph
			 (a)1. or 2. of this subsection are considered "historically used for
			 cropland."
(c) In addition to the
			 lands covered by paragraph (a) of this subsection, other lands are considered
			 "historically used for cropland," including:
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.
(47) "Hydrologic balance" means the
			 relationship between the quality and quantity of water inflow to, water outflow
			 from, and water storage in a hydrologic unit such as a drainage basin, aquifer,
			 soil zone, lake, or reservoir. It encompasses the dynamic relationship between
			 precipitation, runoff, evaporation, and changes in ground and surface water
			 storage.
(48) "Hydrologic regime"
			 means the entire state of water movement in a given area. It is a function of
			 the climate and includes the phenomena by which water first occurs as
			 atmospheric water vapor, passes into a liquid or solid form, falls as
			 precipitation, moves along or into the ground surface, and returns to the
			 atmosphere as vapor by means of evaporation and transpiration.
(49) "Imminent danger to the health and
			 safety of the public" means the existence of any condition or practice, or any
			 violation of a permit or other requirements of KRS Chapter 350 in a surface
			 coal mining and reclamation operation, which could reasonably be expected to
			 cause substantial physical harm to persons outside the permit area before the
			 condition, practice, or violation can be abated. A reasonable expectation of
			 death or serious injury before abatement exists if a rational person, subjected
			 to the same condition or practice giving rise to the peril, would avoid
			 exposure to the danger during the time necessary for abatement.
(50) "Impounding structure" means a dam,
			 embankment, or other structure used to impound water, slurry, or other liquid
			 or semiliquid material.
(51)
			 "Impoundment" means a water, sediment, slurry, or other liquid or semiliquid
			 holding structure or depression, either naturally formed or artificially
			 built.
(52) "Incidental boundary
			 revision" means an extension to a permit area or shadow area that is necessary
			 for reasons unforeseen when the original permit application was prepared and
			 that is small in relation to the original or amended permit area or shadow
			 area.
(53) "Industrial/commercial
			 lands" means lands used for:
(a) Extraction or
			 transformation of materials for fabrication of products, wholesaling of
			 products, or long-term storage of products, and heavy and light manufacturing
			 facilities; or
(b) Retail or trade
			 of goods or services, including hotels, motels, stores, restaurants, and other
			 commercial establishments.
(54) "In situ processes" means activities
			 conducted on the surface or underground in connection with in-place
			 distillation, retorting, leaching, or other chemical or physical processing of
			 coal. The term includes in situ gasification, in situ leaching, slurry mining,
			 solution mining, borehole mining, and fluid recovery mining.
(55) "Intermittent stream" means a stream or
			 reach of a stream that:
(a) Drains a watershed
			 of one (1) square mile or more but does not flow continuously during the
			 calendar year; or
(b) Is below the
			 local water table for at least some part of the year, and obtains its flow from
			 both surface runoff and groundwater discharge.
(56) "Irreparable damage to the environment"
			 means any damage to the environment, in violation of SMCRA, KRS Chapter 350, or
			 405 KAR Chapters 7 through 24, that cannot be corrected by actions of the
			 applicant.
(57) "KAR" means
			 Kentucky administrative regulations.
(58) "KRS" means Kentucky Revised
			 Statutes.
(59) "Land use" means
			 specific functions, uses, or management-related activities of an area, and
			 could be identified in combination when joint or seasonal uses occur and could
			 include land used for support facilities that are an integral part of the use.
			 In some instances, a specific use can be identified without active
			 management.
(60) "Material damage",
			 as used in
			 405 KAR
			 8:040, Section 26 means:
(a) Any functional impairment of surface
			 lands, features, structures, or facilities;
(b) Any physical change that has a
			 significant adverse impact on the affected land's capability to support any
			 current or reasonably foreseeable uses or causes significant loss in production
			 or income; or
(c) Any significant
			 change in the condition, appearance, or utility of any structure or facility
			 from its presubsidence condition.
(61) "Monitoring" means the collection of
			 environmental data by either continuous or periodic sampling methods.
(62) "MRP" means mining and reclamation
			 plan.
(63) "MSHA" means Mine Safety
			 and Health Administration.
(64)
			 "Mulch" means vegetation residues or other suitable materials that aid in soil
			 stabilization and soil moisture conservation, thus providing microclimatic
			 conditions suitable for germination and growth.
(65) "Noncommercial building":
(a) Means any building, other than an
			 occupied residential dwelling, that, at the time the subsidence occurs, is used
			 on a regular or temporary basis as a public building or community or
			 institutional building; and
(b)
			 Does not mean any building used only for commercial agricultural, industrial,
			 retail, or other commercial enterprises.
(66) "Notice of noncompliance and order for
			 remedial measures" means a written document and order prepared by an authorized
			 representative of the cabinet that establishes with specificity the violations
			 of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit conditions that
			 the authorized representative of the cabinet determines to have occurred based
			 upon inspection, and the necessary remedial actions, if any, and the time
			 schedule for completion thereof, which the authorized representative deems
			 necessary and appropriate to correct the violations.
(67) "Notice of violation" means any written
			 notification from a governmental entity of a violation of law or regulation,
			 whether by letter, memorandum, legal or administrative pleading, or other
			 written communication. This includes a notice of noncompliance and order for
			 remedial measures.
(68) "Occupied
			 dwelling" means any building that is currently being used on a regular or
			 temporary basis for human habitation.
(69) "Occupied residential dwelling and
			 structures related thereto":
(a) Means, for
			 purposes of
			 405 KAR
			 8:040, Section 26, and
			 405 KAR
			 18:210, any building or other structure that, at the
			 time the subsidence occurs, is used either temporarily, occasionally,
			 seasonally, or permanently for human habitation. This term also includes any
			 building, structure or facility installed on, above or below, or a combination
			 thereof, the land surface if that building, structure or facility is adjunct to
			 or used in connection with an occupied residential dwelling. Examples of these
			 structures include garages; storage sheds and barns; greenhouses and related
			 buildings; utilities and cables; fences and other enclosures; retaining walls;
			 paved or improved patios, walks and driveways; septic sewage treatment
			 facilities; and lot drainage and lawn and garden irrigation systems;
			 and
(b) Does not mean any structure
			 used only for commercial agricultural, industrial, retail or other commercial
			 purposes.
(70)
			 "Operations" is defined by
			 KRS
			 350.010.
(71) "Operator" is defined by
			 KRS
			 350.010.
(72) "Order for cessation and immediate
			 compliance" means a written document and order issued by an authorized
			 representative of the cabinet when:
(a) A
			 person to whom a notice of noncompliance and order for remedial measures was
			 issued has failed, as determined by a cabinet inspection, to comply with the
			 terms of the notice of noncompliance and order for remedial measures within the
			 time limits set therein, or as subsequently extended; or
(b) The authorized representative finds, on
			 the basis of a cabinet inspection, any condition or practice or any violation
			 of KRS Chapter 350, 405 KAR Chapters 7 through 24, or any condition of a permit
			 or exploration approval that:
1. Creates an
			 imminent danger to the health or safety of the public; or
2. Is causing or can reasonably be expected
			 to cause significant, imminent environmental harm to land, air or water
			 resources.
(73) "OSM" means Office of Surface Mining
			 Reclamation and Enforcement, United States Department of the
			 Interior.
(74) "Other mineral"
			 means any commercially valuable substance mined for its mineral value,
			 excluding coal, topsoil, waste, and fill material.
(75) "Overburden" is defined by
			 KRS
			 350.010.
(76) "Owned or controlled" and "owns or
			 controls" mean any one (1) or a combination of the relationships established in
			 paragraphs (a) and (b) of this subsection.
(a)
1.
			 Being a permittee of a surface coal mining operation;
2. Based on instruments of ownership or
			 voting securities, owning of record in excess of fifty (50) percent of an
			 entity; or
3. Having any other
			 relationship that gives one (1) person authority directly or indirectly to
			 determine the manner in which an applicant, an operator, or other entity
			 conducts surface coal mining operations; and
(b) The following relationships are presumed
			 to constitute ownership or control unless a person can demonstrate that the
			 person subject to the presumption does not in fact have the authority directly
			 or indirectly to determine the manner in which the relevant surface coal mining
			 operation is conducted:
1. Being an officer or
			 director of an entity;
2. Being the
			 operator of a surface coal mining operation;
3. Having the ability to commit the financial
			 or real property assets or working resources of an entity;
4. Being a general partner in a
			 partnership;
5. Based on the
			 instruments of ownership or the voting securities of a corporate entity, owning
			 of record ten (10) through fifty (50) percent of the entity; or
6. Owning or controlling coal to be mined by
			 another person under a lease, sublease, or other contract and having the right
			 to receive the coal after mining or having authority to determine the manner in
			 which that person or another person conducts a surface coal mining
			 operation.
(77) "Pastureland" means land used primarily
			 for the long-term production of adapted, domesticated forage plants to be
			 grazed by livestock or occasionally cut and cured for livestock feed.
(78) "Perennial stream":
(a) 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; and
(b) Does not mean "intermittent stream" or
			 "ephemeral stream."
(79)
			 "Performance bond" means a surety bond, a collateral bond, or a combination
			 thereof, or bonds filed pursuant to the provisions of the Kentucky Bond Pool
			 Program (405 KAR
			 10:200,
			 KRS
			 350.595, and
			 KRS 350.700 through
			 350.755), by which a
			 permittee assures faithful performance of all the requirements of KRS Chapter
			 350, 405 KAR Chapters 7 through 24, and the requirements of the permit and
			 reclamation plan.
(80) "Permanent
			 diversion" means a diversion remaining after surface coal mining and
			 reclamation operations are completed that has been approved for retention by
			 the cabinet and other appropriate Kentucky and federal agencies.
(81) "Permit" means written approval issued
			 by the cabinet to conduct surface coal mining and reclamation
			 operations.
(82) "Permit area"
			 means the area of land, indicated on the approved map submitted by the
			 permittee with an application, required to be covered by the permittee's
			 performance bond pursuant to 405 KAR Chapter 10 and that shall include the area
			 of land upon which the permittee proposes to conduct surface coal mining and
			 reclamation operations pursuant to the permit, including all disturbed areas.
			 Areas adequately bonded under another valid permit, pursuant to 405 KAR Chapter
			 10, could be excluded from the permit area.
(83) "Permittee" means an operator or a
			 person holding or required by KRS Chapter 350 or 405 KAR Chapters 7 through 24
			 to hold a permit to conduct surface coal mining and reclamation operations
			 during the permit term and until all reclamation obligations imposed by KRS
			 Chapter 350 and 405 KAR Chapters 7 through 24 are satisfied.
(84) "Person" is defined by
			 KRS
			 350.010.
(85) "Person having an interest which is or
			 may be adversely affected" or "person with a valid legal interest" includes any
			 person:
(a) Who uses any resource of economic,
			 recreational, aesthetic, or environmental value that may be adversely affected
			 by coal exploration or surface coal mining and reclamation operations, or by
			 any related action of the cabinet; or
(b) Whose property is or may be adversely
			 affected by coal exploration or surface coal mining and reclamation operations,
			 or by any related action of the cabinet.
(86) "Previously mined area" means land that
			 was affected by coal mining operations conducted prior to August 3, 1977, that
			 has not been reclaimed to the standards of this title.
(87) "Prime farmland" means those lands
			 defined by the Secretary of Agriculture in 7 C.F.R. 657 and that have been
			 "historically used for cropland" as that phrase is defined in this
			 section.
(88) "Principal
			 shareholder" means any person who is the record or beneficial owner of ten (10)
			 percent or more of any class of voting stock of the applicant.
(89) "Probable cumulative impacts" means the
			 expected total qualitative, and quantitative, direct and indirect effects of
			 surface coal mining and reclamation operations on the hydrologic
			 regime.
(90) "Probable hydrologic
			 consequences" means the projected results of proposed surface coal mining and
			 reclamation operations that could 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,
			 shadow area, and adjacent areas.
(91) "Property to be mined" means both the
			 surface and mineral estates on and underneath lands within the permit area and
			 shadow area.
(92) "Public building"
			 means any structure that is owned or leased, and principally used by a
			 governmental agency for public business or meetings.
(93) "Publicly-owned park" means a public
			 park that is owned by a federal, state, or local governmental entity.
(94) "Public office" means a facility under
			 the direction and control of a governmental entity that is open to public
			 access on a regular basis during reasonable business hours.
(95) "Public park" means an area dedicated or
			 designated by any federal, state, or local agency primarily for public
			 recreational use, regardless of if the use is limited to certain times or days.
			 The term includes any land leased, reserved, or held open to the public because
			 of that use.
(96) "Public road"
			 means any publicly owned thoroughfare for the passage of vehicles.
(97) "Recharge capacity" means the ability of
			 the soils and underlying materials to allow precipitation and runoff to
			 infiltrate and reach the zone of saturation.
(98) "Reclamation" is defined by
			 KRS
			 350.010.
(99) "Recreation land" means land used for
			 public or private leisure-time use, including developed recreation facilities
			 such as parks, camps, and amusement areas, as well as areas for less intensive
			 uses such as hiking, canoeing, and other undeveloped recreational
			 uses.
(100) "Reference area" means
			 a land unit maintained under appropriate management for the purpose of
			 measuring vegetative ground cover, productivity, and plant species diversity
			 that are produced naturally or by crop production methods approved by the
			 cabinet pursuant to
			 405 KAR 16:200 and
			 405 KAR
			 18:200.
(101) "Refuse pile" means a surface deposit
			 of coal mine waste that is not retained by an impounding structure and does not
			 impound water, slurry, or other liquid or semiliquid material.
(102) "Remining" means conducting surface
			 coal mining and reclamation operations that affect previously mined
			 areas.
(103) "Renewable resource
			 lands."
(a) As used in 405 KAR Chapter 24,
			 "renewable resource lands" means geographic areas that contribute significantly
			 to the long-range productivity of water supplies or of food or fiber products,
			 these lands to include aquifers and aquifer recharge areas; and
(b) As used in
			 405 KAR
			 8:040, Section 26, "renewable resource lands" means
			 aquifers and areas for the recharge of aquifers and other underground waters,
			 areas for agricultural or silvi-cultural production of food and fiber, and
			 grazing lands.
(104)
			 "Residential land" means tracts employed for single and multiple-family
			 housing, mobile home parks, and other residential lodgings.
(105) "Road":
(a) 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; and
(b) Does not mean pioneer or construction
			 roadways used for part of the road construction procedure and promptly replaced
			 by a road pursuant to 405 KAR Chapters 16 and 18 located in the identical
			 right-of-way as the pioneer or construction roadway. The term also excludes any
			 roadway within the immediate mining pit area.
(106) "SCS" means Soil Conservation
			 Service.
(107) "Secretary" is
			 defined by
			 KRS
			 350.010.
(108) "Sedimentation pond":
(a) Means a primary sediment control
			 structure:
1. Designed, constructed, or
			 maintained pursuant to
			 405 KAR
			 16:090 or
			 405 KAR
			 18:090; and
2. That could include a barrier, dam, or
			 excavated depression to:
a. Slow water runoff;
			 and
b. Allow suspended solids to
			 settle out; and
(b) Does not mean secondary sedimentation
			 control structures, including a straw dike, riprap, check dam, mulch, dugout,
			 or other measure that reduces overland flow velocity, reduces runoff volume, or
			 trap sediment, to the extent that the secondary sedimentation structure drains
			 into a sedimentation pond.
(109) "Shadow area" means the surface area
			 overlying underground mine works and surface areas associated with auger and in
			 situ mining.
(110) "Significant,
			 imminent environmental harm" means an adverse impact on land, air, or water
			 resources including plant and animal life as further defined in paragraphs (a)
			 and (b) of this subsection.
(a) An
			 environmental harm is imminent, if a condition, practice, or violation exists
			 that:
1. Is causing environmental harm;
			 or
2. Could 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; and
(b) An environmental harm is significant if
			 that harm is appreciable and not immediately reparable.
(111) "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 could also be expressed as a percent or in degrees.
(112) "Slurry mining" means the hydraulic
			 breakdown of subsurface coal with drill-hole equipment, and the education of
			 the resulting slurry to the surface for processing.
(113) "Small operator", as used in
			 405 KAR
			 8:030, Section 3(5) and
			 405 KAR
			 8:040, Section 3(5), is defined by
			 KRS
			 350.450(4)(c).
(114) "SMCRA" means Surface Mining Control
			 and Reclamation Act, 30 U.S.C. Chapter 25.
(115) "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; and
(d) "C horizon." The deepest layer of soil
			 profile. It consists of loose material or weathered rock that is relatively
			 unaffected by biologic activity.
(116) "Soil survey" means a field and other
			 investigation, resulting in a map showing the geographic distribution of
			 different kinds of soils and an accompanying report that describes, classifies,
			 and interprets the soils for use. Soil surveys meet the standards of the
			 National Cooperative Soil Survey.
(117) "Spoil" means overburden and other
			 materials, excluding topsoil, coal mine waste, and mined coal, that are
			 excavated during surface coal mining and reclamation operations.
(118) "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.
(119) "Steep slope" means any slope of more
			 than twenty (20) degrees.
(120)
(a) "Substantial legal and financial
			 commitments" means significant investments, that have been made on the basis of
			 a long-term coal contract, consisting of actual expenditures of substantial
			 monies or execution of valid and binding contracts involving substantial monies
			 for such things as power plants; railroads; coal handling, preparation,
			 extraction, and storage facilities; and other capital-intensive activities such
			 as:
1. Improvement or modification of coal
			 lands within, for access to, or in support of surface coal mining and
			 reclamation operations in the petitioned area;
2. Acquisition of capital equipment for use
			 in, for access to, or for use in support of surface coal mining and reclamation
			 operations in the petitioned area; and
3. Exploration, mapping, surveying, and
			 geological work, as well as expenditures of engineering and legal fees,
			 associated with the acquisition of the property or preparation of an
			 application to conduct surface coal mining and reclamation operations in the
			 petitioned area; and
(b)
			 Does not mean the costs of acquiring the coal in place or the right to mine
			 such coal in the absence of other investments as established in paragraph (a)
			 of this subsection.
(121) "Substantially disturb" means, for
			 purposes of coal exploration, to significantly impact land or water resources
			 by blasting; by removal of vegetation, topsoil, or overburden; by construction
			 of roads or other access routes; by placement of excavated earth or waste
			 material on the natural land surface; or by other activities, or to remove more
			 than twenty-five (25) tons of coal.
(122) "Successor in interest" means any
			 person who succeeds to rights granted under a permit, by transfer, assignment,
			 or sale of those rights.
(123)
			 "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.
(124)
			 "Surface coal mining and reclamation operations" is defined by
			 KRS
			 350.010.
(125) "Surface coal mining operations" is
			 defined by
			 KRS
			 350.010.
(126) "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.
(127) "Suspended solids" or nonfilterable
			 residue, expressed as milligrams per liter, means organic or inorganic
			 materials carried or held in suspension in water that 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) .
(128) "Temporary diversion" means a diversion
			 of a stream or overland flow that is used during coal exploration or surface
			 coal mining and reclamation operations and not approved by the cabinet to
			 remain after reclamation as part of the approved postmining land use.
(129) "Ton" means 2000 pounds avoirdupois
			 (.90718 metric ton).
(130)
			 "Topsoil" means the A and E soil horizon layers of the four (4) master soil
			 horizons.
(131) "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.
(132) "Toxic mine drainage"
			 means water that is discharged from active or abandoned mines or other areas
			 affected by coal exploration or surface coal mining and reclamation operations,
			 which contains a substance that through chemical action is likely to kill,
			 injure, or impair biota commonly present in the area that might be exposed to
			 it.
(133) "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.
(134) "TRM" means
			 Technical Reclamation Memorandum.
(135) "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.
(136) "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.
(137) "USDA" means United States Department
			 of Agriculture.
(138) "U.S. EPA"
			 means United States Environmental Protection Agency.
(139) "USGS" means United States Geological
			 Survey.
(140) "Valid existing
			 rights":
(a) Means:
1. Except for haul roads, property rights in
			 existence on August 3, 1977, that were created by a legally binding conveyance,
			 lease, contract or other instrument that authorizes the applicant to produce
			 coal and the person proposing to conduct a surface coal mining operation on the
			 lands either:
a. Had been validly issued or
			 had made a good faith effort to obtain, on or before August 3, 1977, all state
			 and federal permits necessary to conduct surface coal mining operations on
			 those lands, application for the permits being deemed to constitute good faith
			 efforts to obtain the permits; or
b. Can demonstrate to the cabinet that the
			 coal is both needed for, and immediately adjacent to, an ongoing surface coal
			 mining operation for which all permits were obtained prior to August 3,
			 1977;
2. For haul roads:
a. A recorded right-of-way, recorded
			 easement, or a permit for coal haul road recorded as of August 3, 1977;
			 or
b. Any other road in existence
			 as of August 3, 1977; and
(b) Does not mean the mere expectation of a
			 right to conduct surface coal mining operations or the right to conduct
			 underground coal mining.
(141) "Water transmitting zone" means a body
			 of consolidated or unconsolidated rocks that, 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.
(142) "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.
(143) "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.