Kentucky Administrative Regulations › Title 405 - ENERGY AND ENVIRONMENT CABINET - DEPARTMENT FOR NATURAL RESOURCES › Chapter 10 - Bond and Insurance Requirements › Section 405 KAR 10:001 - Definitions for 405 KAR Chapter 10

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, 40 C.F.R.
				Part 136, 30 U.S.C. Chapter 25, 1253, 1255, 1291
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires
				the cabinet to promulgate administrative regulations pertaining to surface coal
				mining and reclamation operations under the permanent regulatory program. This
				administrative regulation establishes definitions for terms used in 405 KAR
				Chapter 10.
Section 1. Definitions.
(1) "Acquisition" means the purchase, lease,
			 or option on the land for the purpose of conducting or allowing through resale,
			 lease, or option the action of conducting surface coal mining and reclamation
			 operations.
(2) "Active acre":
(a) Means an acre of land or fraction
			 thereof, permitted and bonded for surface disturbance pursuant to a surface
			 coal mining permit as of July 1, 2013; and
(b) Does not mean:
1. Acreage contained in a permit for which
			 the entire permit has not been initially disturbed by the permittee after
			 permit issuance;
2. Acreage
			 contained in a permit, or increment thereof, that has completed initial
			 reclamation and received a minimum of a Phase 1 bond release; or
3. Undisturbed acreage completely released
			 from liability as a result of a bond release or bond reduction.
(3) "Actuarial
			 soundness" is defined by
			 KRS
			 350.500(1).
(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, surface water, groundwater, fish,
			 wildlife, vegetation, or other resources protected by KRS Chapter 350 could be
			 adversely impacted by surface coal mining and reclamation operations.
(5) "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.
(6) "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 pursuant to KRS Chapter 350 and 405 KAR
			 Chapters 7 through 24.
(7)
			 "Cabinet" is defined by
			 KRS
			 350.010(10).
(8) "C.F.R." means Code of Federal
			 Regulations.
(9) "Coal" means
			 combustible carbonaceous rock, classified as anthracite, bituminous,
			 sub-bituminous, or lignite by ASTM Standard D 388-77.
(10) "Coal mined and sold" means coal severed
			 or removed as a result of surface coal mining operations and subsequently sold,
			 transferred, or used by the permittee or operator.
(11) "Collateral bond" means an indemnity
			 agreement in a sum certain payable to the cabinet executed by the permittee and
			 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.
(12) "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.
(13) "Day" means calendar day unless
			 otherwise specified to be a working day.
(14) "Department" means the Department for
			 Natural Resources.
(15) "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.
(16) "Dormancy fee" means
			 the annual fee established in
			 KRS
			 350.518(2)(f).
(17) "FDIC" means Federal Deposit Insurance
			 Corporation.
(18) "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 mean Indian
			 lands.
(19) "Final
			 disposition" means the status of an enforcement action taken by the cabinet
			 pursuant to KRS Chapter 350 for which a final secretary's order has been
			 entered and the time for appeal has expired or all appeals have been exhausted,
			 or an agreed order has been entered.
(20) "FSLIC" means Federal Savings and Loan
			 Insurance Corporation.
(21)
			 "Full-cost bonding" means performance bonds that have been submitted by a
			 permittee for surface coal mining operation permits in lieu of participation
			 and membership in the Kentucky Reclamation Guaranty Fund.
(22) "Historically used for cropland" means
			 land that:
(a) Has been used for cropland for
			 any five (5) years or more out of the ten (10) years immediately preceding the:
1. Application; or
2. Acquisition of the land for the purpose of
			 conducting surface coal mining and reclamation operations;
(b) 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; or
(c) The cabinet determines, on the basis of
			 additional cropland history of the surrounding land and the land under
			 consideration, are clearly cropland but fall outside the specific five (5)
			 years in ten (10) criterion.
(23) "Impoundment" means a closed basin,
			 naturally formed or artificially built, which is dammed or excavated for the
			 retention of water, sediment, or waste.
(24) "KRGF" means the Kentucky Reclamation
			 Guaranty Fund.
(25) "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.
(26) "Long term
			 treatment" means the use of any active or passive water treatment necessary to
			 meet water quality effluent standards at the time a permit or any affected
			 permit increment attains phase one (1) bond release standards as determined by
			 the cabinet pursuant to
			 405
			 KAR 10:040.
(27) "Member" means a permittee in the
			 Kentucky Reclamation Guaranty Fund.
(28) "Non-production fee" means the annual
			 fee established in
			 KRS
			 350.518(2)(e).
(29) "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 an inspection, and the necessary remedial actions, if any, and the time
			 schedule for completion thereof, necessary and appropriate to correct the
			 violations.
(30) "Operations" is
			 defined by
			 KRS
			 350.010(6).
(31) "Operator" is defined by
			 KRS
			 350.010(8).
(32) "Opt-out" means the decision by a
			 permittee to not participate in the KRGF and to provide full-cost bonding
			 pursuant to
			 405 KAR
			 10:080.
(33) "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.
(34) "ORGF" means the Office of the
			 Reclamation Guaranty Fund.
(35)
			 "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 definition:
(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) One (1) of the following relationships,
			 which constitutes ownership or control unless a person demonstrates 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.
(36) "Performance bond" means a surety bond,
			 a collateral bond, or a combination thereof, or bonds filed pursuant to the
			 provisions of the Kentucky Reclamation Guaranty Fund (405 KAR
			 10:070,
			 KRS
			 350.595, and
			 350.500
			 - 350.521), 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.
(37) "Permit" means written approval issued
			 by the cabinet to conduct surface coal mining and reclamation
			 operations.
(38) "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 includes 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.
(39) "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.
(40) "Person" is defined by
			 KRS
			 350.010(9).
(41) "Person having an interest that 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 could 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 could be adversely
			 affected by coal exploration or surface coal mining and reclamation operations,
			 or by any related action of the cabinet.
(42) "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".
(43) "Reclamation" is defined by
			 KRS
			 350.010(12).
(44) "Secretary" is defined by
			 KRS
			 350.010(11).
(45) "SMCRA" means Surface Mining Control and
			 Reclamation Act, 30 U.S.C. Chapter 25 of 1977 ( PL 95-87 ), as
			 amended.
(46) "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.
(47) "Surface coal mining and reclamation
			 operations" is defined by
			 KRS
			 350.010(3).
(48) "Surface coal mining operations" is
			 defined by
			 KRS
			 350.010(1).
(49) "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) .
(50) "Ton" means 2,000 pounds avoirdupois
			 (.90718 metric ton).
(51) "Topsoil"
			 means the A and E soil horizon layers of the four (4) master soil
			 horizons.
(52) "U.S. EPA" means
			 United States Environmental Protection Agency.
(53) "Voluntary Bond Pool" is defined by
			 KRS
			 350.500(5).
(54) "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.