Kentucky Administrative Regulations › Title 405 - ENERGY AND ENVIRONMENT CABINET - DEPARTMENT FOR NATURAL RESOURCES › Chapter 7 - General Provisions › Section 405 KAR 7:001 - Definitions for 405 KAR Chapter 7

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 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 7.
Section 1. Definitions.
(1) "Adjacent area" means land located
			 outside the affected area or permit area, depending on the context in which
			 "adjacent area" is used, where air, surface or groundwater, fish, wildlife,
			 vegetation, or other resources protected by KRS Chapter 350 could be adversely
			 impacted by surface coal mining and reclamation operations.
(2) "Administrative hearing" means a formal
			 adjudicatory hearing conducted before the cabinet pursuant to
			 400 KAR
			 1:090 and
			 400
			 KAR 1:110.
(3) "Administratively complete application"
			 means an application for permit approval, or approval for coal exploration if
			 required, which the cabinet determines to contain information addressing each
			 application requirement of the regulatory program and to contain all
			 information necessary to initiate technical processing and public
			 review.
(4) "Affected area" means
			 any land or water area 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.
(5) "Applicant" means any person seeking a
			 permit, permit revision, permit amendment, permit renewal, or transfer,
			 assignment, or sale of permit rights from the cabinet to conduct surface coal
			 mining and reclamation operations or approval to conduct coal exploration
			 operations pursuant to KRS Chapter 350 and all applicable administrative
			 regulations.
(6) "Application"
			 means the documents and other information filed with the cabinet seeking
			 issuance of permits, revisions, amendments, renewals, and transfer, assignment
			 or sale of permit rights for surface coal mining and reclamation operations or,
			 if required, seeking approval for coal exploration.
(7) "Approximate original contour" is defined
			 by
			 KRS
			 350.010.
(8) "Aquifer" means a zone, stratum, or group
			 of strata that can store and transmit water in sufficient quantities for
			 domestic, agricultural, industrial, or other beneficial use.
(9) "Auger mining" means a method of mining
			 coal at a cliff or highwall by drilling holes into an exposed coal seam from
			 the highwall and transporting the coal along an auger bit to the surface and
			 includes all other methods of mining in which coal is extracted from beneath
			 the overburden by mechanical devices located at the face of the cliff or
			 highwall and extending laterally into the coal seam, such as extended depth,
			 secondary recovery systems.
(10)
			 "Blaster" means a person who is directly responsible for surface blasting
			 operations in surface coal mining and reclamation operations or coal
			 exploration operations.
(11)
			 "Cabinet" is defined by
			 KRS
			 350.010.
(12) "Cessation order" means an order for
			 cessation and immediate compliance and any similar order issued by OSM under
			 SMCRA or issued by any state pursuant to its laws or regulations under
			 SMCRA.
(13) "C.F.R." means Code of
			 Federal Regulations.
(14) "Coal"
			 means combustible carbonaceous rock, classified as anthracite, bituminous,
			 subbituminous, or lignite by ASTM Standard D 388-77.
(15) "Coal exploration" means the field
			 gathering of:
(a) Surface or subsurface
			 geologic, physical, or chemical data by mapping, trenching, drilling,
			 geophysical, or other techniques necessary to determine the quality and
			 quantity of overburden and coal of an area; or
(b) Environmental data to establish the
			 conditions of an area before beginning surface coal mining and reclamation
			 operations under the requirements of 405 KAR Chapters 7 through 24 if the
			 activity could cause any disturbance of the land surface or could cause any
			 appreciable effect upon land, air, water, or other environmental
			 resources.
(16) "Coal
			 mine waste" means coal processing waste and underground development
			 waste.
(17) "Coal processing waste"
			 means materials separated from the product coal during the cleaning,
			 concentrating, or other processing or preparation of coal.
(18) "Collateral bond" means an indemnity
			 agreement in a sum certain payable to the cabinet executed by the permittee and
			 supported by the deposit with the cabinet of cash, negotiable certificates of
			 deposit, or an irrevocable letter of credit of any bank organized and
			 authorized to transact business in the United States.
(19) "Cumulative measurement period" means
			 the period of time over which both cumulative production and cumulative revenue
			 are measured.
(20) "Cumulative
			 production" means the total tonnage of coal or other minerals extracted from a
			 mining area during the cumulative measurement period. The inclusion of
			 stockpiled coal and other mineral tonnages in this total is established in
			 405
			 KAR 7:035, Section 7.
(21) "Cumulative revenue" means the total
			 revenue derived from the sale of coal or other minerals and the fair market
			 value of coal or other minerals transferred or used, but not sold, during the
			 cumulative measurement period.
(22)
			 "Day" means calendar day unless otherwise specified to be a working
			 day.
(23) "Department" means the
			 Department for Natural Resources.
(24) "Disturbed area" means an area where
			 vegetation, topsoil, or overburden is removed or upon which topsoil, spoil,
			 coal processing waste, underground development waste, or noncoal waste is
			 placed by surface coal mining operations. Those areas are classified as
			 "disturbed" until reclamation is complete and the performance bond or other
			 assurance of performance required by 405 KAR Chapter 10 is released.
(25) "Embankment" means a manmade deposit of
			 material that is raised above the natural surface of the land and used to
			 contain, divert, or store water; to support roads or railways; or for other
			 similar purposes.
(26) "Existing
			 structure" means a structure or facility used in connection with or to
			 facilitate surface coal mining and reclamation operations, for which
			 construction began prior to January 18, 1983.
(27) "Extraction of coal as an incidental
			 part" means the extraction of coal that is necessary to enable the construction
			 to be accomplished. Only that coal extracted from within the right-of-way, in
			 the case of a road, railroad, utility line, or similar construction, or within
			 the boundaries of the area directly affected by other types of
			 government-financed construction, could be considered incidental to that
			 construction. Extraction of coal outside the right-of-way or boundary of the
			 area directly affected by the construction is subject to the requirements of
			 KRS Chapter 350 and 405 KAR Chapters 7 through 24.
(28) "Final order" means final order of the
			 secretary, which could include findings of fact, conclusions of law, and an
			 order.
(29) "Government-financed
			 construction":
(a) Means construction funded
			 fifty (50) percent or more by funds appropriated from a government financing
			 agency's budget or obtained from general revenue bonds; and
(b) Does not mean government financing agency
			 guarantees, insurance, loans, funds obtained through industrial revenue bonds
			 or their equivalent, or in-kind payments.
(30) "Government financing agency" means a
			 federal, Commonwealth of Kentucky, county, municipal, or local unit of
			 government, or a cabinet, department, agency, or office of the unit that,
			 directly or through another unit of government, finances
			 construction.
(31) "Groundwater"
			 means subsurface water that fills available openings in rock or soil materials
			 to the extent that the materials are considered water saturated.
(32) "Hearing officer" means the individual
			 duly qualified and assigned as presiding officer to conduct administrative
			 hearings; the term includes the chief hearing officer.
(33) "Highwall" means the face of exposed
			 overburden and coal in an open cut of a surface mining activity or for entry to
			 underground mining activities.
(34)
			 "Historically used for cropland."
(a)
			 "Historically used for cropland" means that lands have been used for cropland
			 for any five (5) years or more out of the ten (10) years immediately preceding:
1. The application; or
2. The acquisition of the land for the
			 purpose of conducting surface coal mining and reclamation operations.
(b) Lands meeting either paragraph
			 (a)1 or 2 of this subsection are considered "historically used for
			 cropland".
(c) In addition to the
			 lands covered by paragraph (a) of this subsection, other lands shall be
			 considered "historically used for cropland", 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.
(d) Acquisition includes purchase, lease, or
			 option of the land for the purpose of conducting or allowing through resale,
			 lease or option, the conduct of surface coal mining and reclamation
			 operations.
(35)
			 "Hydrologic balance" means the relationship between the quality and quantity of
			 water inflow to, water outflow from, and water storage in a hydrologic unit
			 such as a drainage basin, aquifer, soil zone, lake, or reservoir. It
			 encompasses the dynamic relationship between precipitation, runoff,
			 evaporation, and changes in ground and surface water storage.
(36) "Hydrologic regime" means the entire
			 state of water movement in a given area. It is a function of the climate and
			 includes the phenomena by which water first occurs as atmospheric water vapor,
			 passes into a liquid or solid form, falls as precipitation, moves along or into
			 the ground surface, and returns to the atmosphere as vapor by means of
			 evaporation and transpiration.
(37)
			 "Imminent danger to the health and safety of the public" means the existence of
			 any condition or practice, or any violation of a permit or other requirements
			 of KRS Chapter 350 in a surface coal mining and reclamation operation, which
			 could reasonably be expected to cause substantial physical harm to persons
			 outside the permit area before the condition, practice, or violation can be
			 abated. A reasonable expectation of death or serious injury before abatement
			 exists if a rational person, subjected to the same condition or practice giving
			 rise to the peril, would avoid exposure to the danger during the time necessary
			 for abatement.
(38) "Impoundment"
			 means a closed basin, naturally formed or artificially built, which is dammed
			 or excavated for the retention of water, sediment, or waste.
(39) "Individual" means a natural
			 person.
(40) "Industrial/commercial
			 lands" means lands used for:
(a) Extraction or
			 transformation of materials for fabrication of products, wholesaling of
			 products, or long-term storage of products, and heavy and light manufacturing
			 facilities; or
(b) Retail or trade
			 of goods or services, including hotels, motels, stores, restaurants, and other
			 commercial establishments.
(41) "Initiating document" means a petition
			 for administrative hearing, an administrative complaint, a show cause order, or
			 any other document that commences an administrative proceeding.
(42) "In situ processes" means activities
			 conducted on the surface or underground in connection with in-place
			 distillation, retorting, leaching, or other chemical or physical processing of
			 coal. The term includes in situ gasification, in situ leaching, slurry mining,
			 solution mining, borehole mining, and fluid recovery mining.
(43) "Interim report" means statements made
			 by a hearing officer in written form that are not intended to be considered by
			 the secretary and that are not subject to judicial review.
(44) "KAR" means Kentucky administrative
			 regulations.
(45) "Knowingly" means
			 that a person knew or had reason to know in authorizing, ordering, or carrying
			 out an act or omission that the act or omission constituted a violation of
			 SMCRA, KRS Chapter 350, 405 KAR Chapters 7 through 24, or a permit condition,
			 or that the act or omission constituted a failure or refusal to comply with an
			 order issued pursuant to SMCRA, KRS Chapter 350, or 405 KAR Chapters 7 through
			 24.
(46) "KRS" means Kentucky
			 Revised Statutes.
(47) "Land use"
			 means specific functions, uses, or management-related activities of an area,
			 and could be identified in combination when joint or seasonal uses occur and
			 can include land used for support facilities that are an integral part of the
			 use. In some instances, a specific use can be identified without active
			 management.
(48) "Mining area", as
			 used in
			 405
			 KAR 7:035, means an individual excavation site or pit
			 from which coal, other minerals, and overburden are removed.
(49) "Monitoring" means the collection of
			 environmental data by either continuous or periodic sampling methods.
(50) "MSHA" means Mine Safety and Health
			 Administration.
(51) "Notice of
			 noncompliance and order for remedial measures" means a written document and
			 order prepared by an authorized representative of the cabinet 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, which
			 the authorized representative deems necessary and appropriate to correct the
			 violations.
(52) "Office", as used
			 in
			 400 KAR
			 1:090 and
			 400
			 KAR 1:110, means the office of administrative
			 hearings.
(53) "Operations" is
			 defined by
			 KRS
			 350.010.
(54) "Operator" is defined by
			 KRS
			 350.010.
(55) "Order for cessation and immediate
			 compliance" means a written document and order issued by an authorized
			 representative of the cabinet when:
(a) A
			 person to whom a notice of noncompliance and order for remedial measures was
			 issued has failed, as determined by a cabinet inspection, to comply with the
			 terms of the notice of noncompliance and order for remedial measures within the
			 time limits set therein, or as subsequently extended; or
(b) The authorized representative finds, on
			 the basis of a cabinet inspection, any condition or practice or any violation
			 of KRS Chapter 350, 405 KAR Chapters 7 through 24, or any condition of a permit
			 or exploration approval 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.
(56) "OSM" means Office of Surface Mining
			 Reclamation and Enforcement, United States Department of the
			 Interior.
(57) "Other mineral"
			 means any commercially valuable substance mined for its mineral value,
			 excluding coal, topsoil, waste, and fill material.
(58) "Overburden" is defined by
			 KRS
			 350.010.
(59) "Performance bond" means a surety bond,
			 a collateral bond, or a combination thereof, or bonds filed pursuant to the
			 provisions of the Kentucky Bond Pool Program (405 KAR
			 10:200,
			 KRS
			 350.595, and
			 KRS 350.700 through
			 350.755), by which a
			 permittee assures faithful performance of all the requirements of KRS Chapter
			 350, 405 KAR Chapters 7 through 24, and the requirements of the permit and
			 reclamation plan.
(60) "Permit"
			 means written approval issued by the cabinet to conduct surface coal mining and
			 reclamation operations.
(61)
			 "Permit area" means the area of land, 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.
(62) "Permittee" means an operator or a
			 person holding or required by KRS Chapter 350 or 405 KAR Chapters 7 through 24
			 to hold a permit to conduct surface coal mining and reclamation operations
			 during the permit term and until all reclamation obligations imposed by KRS
			 Chapter 350 and 405 KAR Chapters 7 through 24 are satisfied.
(63) "Person" is defined by
			 KRS
			 350.010.
(64) "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".
(65) "Probable cumulative impacts" means the
			 expected total qualitative, and quantitative, direct and indirect effects of
			 surface coal mining and reclamation operations on the hydrologic
			 regime.
(66) "Probable hydrologic
			 consequences" means the projected results of proposed surface coal mining and
			 reclamation operations 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.
(67) "Reclamation" is defined by
			 KRS
			 350.010.
(68) "Record" means the transcript of a
			 proceeding, if any, and rulings; and all pleadings, motions, and rulings;
			 documentary and physical evidence received or considered; a statement of
			 matters officially noticed; questions and offers of proof, objections, and
			 rulings thereon, proposed findings and recommended orders; and legal briefs and
			 orders.
(69) "Refuse pile" means a
			 surface deposit of coal mine waste that is not retained by an impounding
			 structure and does not impound water, slurry, or other liquid or semiliquid
			 material.
(70) "Road":
(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.
(71) "SCS" means Soil Conservation
			 Service.
(72) "Secretary" is
			 defined by
			 KRS
			 350.010.
(73) "Sedimentation pond":
(a) Means a primary sediment control
			 structure designed, constructed, and maintained in accordance with
			 405 KAR
			 16:090 or
			 405 KAR
			 18:090 and including a barrier, dam, or excavated
			 depression that slows down water runoff to allow suspended solids to settle
			 out; and
(b) Does not mean
			 secondary sedimentation control structures, such as straw dikes, riprap, check
			 dams, mulches, dugouts, and other measures that reduce overland flow velocity,
			 reduce runoff volume, or trap sediment, to the extent that the secondary
			 sedimentation structures drain to a sedimentation pond.
(74) "Shadow area" means the surface area
			 overlying underground mine works and surface areas associated with auger and in
			 situ mining.
(75) "Significant,
			 imminent environmental harm" means an adverse impact on land, air, or water
			 resources which resources include plant and animal life.
(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.
(b) An environmental harm is significant if
			 that harm is appreciable and not immediately reparable.
(76) "Small operator", as used in
			 405 KAR
			 7:080, means an operator whose combined actual and
			 attributed production of coal does not exceed 300,000 tons during any period of
			 twelve (12) consecutive months.
(77) "SMCRA" means Surface Mining Control and
			 Reclamation Act, 30 U.S.C. Chapter 25.
(78) "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.
(79) "Spoil" means overburden and other
			 materials, excluding topsoil, coal mine waste, and mined coal, that are
			 excavated during surface coal mining and reclamation operations.
(80) "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.
(81) "Surface blasting operations" means the
			 on-site storage, transportation, and use of explosives in association with coal
			 exploration operations, surface mining activities, and surface disturbances of
			 underground mining activities. The term is to be interpreted broadly and
			 includes activities such as the design of individual blasts, the implementation
			 of blast designs, the initiation of blasts, the monitoring of airblast and
			 ground vibration, and the use of protective measures such as access control and
			 warning and all-clear signals.
(82)
			 "Surface coal mining and reclamation operations" is defined by
			 KRS
			 350.010.
(83) "Surface coal mining operations" is
			 defined by
			 KRS
			 350.010.
(84) "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.
(85) "Ton" means 2,000 pounds avoirdupois
			 (.90718 metric ton).
(86) "Topsoil"
			 means the A and E soil horizon layers of the four (4) master soil
			 horizons.
(87) "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.
(88) "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.
(89) "Unwarranted failure to comply" means
			 the failure of the permittee due to indifference, lack of diligence, or lack of
			 reasonable care:
(a) To prevent the occurrence
			 of any violation of any applicable requirement of KRS Chapter 350, 405 KAR
			 Chapters 7 through 24, or permit conditions; or
(b) To abate any violation of any applicable
			 requirement of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit
			 conditions.
(90)
			 "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.