Kentucky Administrative Regulations › Title 405 - ENERGY AND ENVIRONMENT CABINET - DEPARTMENT FOR NATURAL RESOURCES › Chapter 12 - Inspection and Enforcement › Section 405 KAR 12:001 - Definitions for 405 KAR Chapter 12

Current through Register Vol. 51, No. 1, July 1, 2024
RELATES TO: KRS Chapter 350,
				30
				C.F.R. Parts 700.5,
				701.5,
				707.5, 730-733, 735,
				761.5,
				762.5,
				773.5,
				800.5,
				843.5, 917,
				30 U.S.C. 1253,
				1255,
				1291
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 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 12.
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) "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 where 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.
(3) "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.
(4) "Cabinet" is defined by
			 KRS
			 350.010.
(5) "C.F.R." means Code of Federal
			 Regulations.
(6) "Coal" means
			 combustible carbonaceous rock, classified as anthracite, bituminous,
			 sub-bituminous, or lignite by ASTM Standard D 388-77.
(7) "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.
(8) "Day"
			 means calendar day unless otherwise specified to be a working day.
(9) "Department" means the Department for
			 Natural Resources.
(10) "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.
(11) "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.
(12) "KAR" means
			 Kentucky administrative regulations.
(13) "Monitoring" means the collection of
			 environmental data by either continuous or periodic sampling methods.
(14) "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.
(15) "Operations" is
			 defined by
			 KRS
			 350.010.
(16) "Operator" is defined by
			 KRS
			 350.010.
(17) "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.
(18) "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.
(19) "Permit"
			 means written approval issued by the cabinet to conduct surface coal mining and
			 reclamation operations.
(20)
			 "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.
(21) "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.
(22) "Person" is defined by
			 KRS
			 350.010.
(23) "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 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.
(24) "Reclamation" is defined by
			 KRS
			 350.010.
(25) "Secretary" is defined by
			 KRS
			 350.010.
(26) "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.
(27) "Surface coal mining and reclamation
			 operations" is defined by
			 KRS
			 350.010.
(28) "Surface coal mining operations" is
			 defined by
			 KRS
			 350.010.
(29) "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.
(30)
			 "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.