Kentucky Administrative Regulations › Title 405 - ENERGY AND ENVIRONMENT CABINET - DEPARTMENT FOR NATURAL RESOURCES › Chapter 5 - Surface Effects of Noncoal Mining › Section 405 KAR 5:002 - Definitions for 405 KAR Chapter 5

Current through Register Vol. 51, No. 1, July 1, 2024
RELATES TO:
				KRS
				350.010(2),
				350.240,
				350.300
NECESSITY, FUNCTION, AND CONFORMITY:
				KRS 350.028
				requires the Energy and Environment Cabinet to promulgate administrative
				regulations pertaining to noncoal mineral operations to minimize their adverse
				effects on the citizens and the environment of the commonwealth.
				KRS
				350.029 authorizes the cabinet to promulgate
				reasonable administrative regulations to establish effective programs for the
				control of surface soil disturbance in connection with mining as defined by the
				Interstate Mining Compact.
				KRS
				350.240 authorizes the cabinet to promulgate
				reasonable administrative regulations for the reclamation of land disturbed or
				removed in the mining of clay.
				KRS
				350.300 authorizes the cabinet to formulate
				and establish an effective program and standards for the conservation and use
				of mined land. This administrative regulation establishes definitions of
				certain essential terms used in 405 KAR Chapter 5.
Section 1. Definitions.
(1) "Access road" means a road designed and
			 constructed to gain access from a public road to the mineral
			 operation.
(2) "Acid drainage"
			 means water with a pH of less than six (6.0) and in which total acidity exceeds
			 total alkalinity, discharge from an active, inactive or abandoned mine or from
			 an area affected by a mineral operation.
(3) "Acidforming materials" means earth
			 materials or rock that contain sulfide minerals or other minerals which, if
			 exposed to air, water, or weathering processes, form acids that may create acid
			 drainage.
(4) "Affected area" means
			 any land area which is used to facilitate, or is physically altered by strip
			 mining; surface disturbance from an underground mine; surface disturbance from
			 dredging operations; any area covered by dams, ventilation shafts, entryways,
			 refuse banks, dumps, stockpiles, overburden piles, holes or depressions, repair
			 areas, roads, storage areas, shipping areas, and processing plants.
(5) "Backfill" means excavated overburden
			 material used to regrade a mined area.
(6) "Cabinet" is defined in
			 KRS
			 350.010(10).
(7) "Check dam" means a small structure
			 placed in ditches, usually constructed of rock, intended to reduce runoff
			 velocity for deterring erosion.
(8)
			 "Clay" means a natural substance or soft rock which, when finely ground and
			 mixed with water, forms a pasty, moldable mass that preserves its shape when
			 air dried; the particles soften and coalesce upon being highly heated and form
			 a stony mass upon cooling.
(9)
			 "Compaction" means the reduction of pore spaces among the particles of soil or
			 rock generally as a result of running heavy equipment over the
			 materials.
(10) "Cropland" means
			 land used for the production of adapted crops for harvest alone or in rotation
			 with grasses or legumes, and includes: row crops, small grain crops, hay crops,
			 nursery crops, orchard crops and other similar specialty crops. Land used for
			 facilities in support of cropland farming operations which is adjacent to, or
			 an integral part of, these operations is also included for purposes of this
			 land use category.
(11)
			 "Department" means the Kentucky Department for Natural Resources.
(12) "Disturbed area" means an area where
			 vegetation, topsoil, or overburden is removed or upon which topsoil, spoil,
			 mineral processing waste, underground development waste or similar waste is
			 placed by mining activities. The disturbed area also includes those areas in
			 which diversion ditches, sedimentation ponds, roads, or other features related
			 to a mineral operation, are installed. Those areas are classified as
			 "disturbed" until reclamation is complete, bond monies or permit have been
			 released, and processing plant and stockpile areas have been moved.
(13) "Diversion ditch" means a channel
			 constructed to direct water from one location to another.
(14) "Division" means the Division of Mine
			 Reclamation and Enforcement.
(15)
			 "Dolomite" means a sedimentary rock composed primarily of the crystalline
			 carbonate mineral dolomite, CaMg (CO3)2. Many limestones contain small amounts
			 of dolomite; however, the term dolomite is reserved for rocks which contain
			 fifteen (15) percent or more magnesium carbonate.
(16) "Dredging operation" means surface
			 disturbance of dredging river or creek sand and gravel.
(17) "Edge" means the area where two (2)
			 habitats meet.
(18) "Edge effect"
			 means the phenomena by which wildlife is enhanced and wildlife diversity is
			 typically increased as a result of two (2) or more different habitat types
			 occurring in close proximity to each other.
(19) "Embankment" means an artificial deposit
			 of material that is raised above the natural surface of land and used to
			 contain, divert, or store water, support roads or railways, or other similar
			 purposes.
(20) "Ephemeral stream"
			 means a stream which only flows 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.
(21) "Erosion" means the
			 detachment and movement of soil or rock fragments by water, wind, ice, or
			 gravity.
(22) "Fish and wildlife
			 land use" means an area which is characterized by an intermixed combination of
			 habitat types including: woodlots or forested areas, shrub scrub areas, grass
			 legume or open areas, and wetland or open water areas arranged in a manner as
			 to promote edge effect for wildlife.
(23) "Floodplain" means the area along,
			 adjacent to and including, a stream which is inundated by a 100 year frequency
			 flood.
(24) "Fluorspar" means an
			 ore of the mineral Fluorite CaF2.
(25) "Forest land" means lands dominated by
			 canopy forming trees, or from a postmining land use standpoint, areas planted
			 throughout with trees.
(26)
			 "General permit" means any KPDES permit authorizing a category of discharges
			 under KRS Chapter 224 within a geographical area, issued under
			 401
			 KAR 5:055.
(27) "Gravel" means a sedimentary rock type
			 that implies a loosely, compacted, coarse sediment that is generally larger
			 than 4mm, but smaller than boulders; a naturally occurring aggregate.
(28) "Ground cover" means the area of ground
			 covered by the combined aerial parts of live vegetation and the litter produced
			 and distributed naturally and seasonally on site, expressed as a percentage of
			 the total area of measurement.
(29)
			 "Ground water" means water which is:
(a) In
			 the zone of saturation or any subterranean waters flowing in welldefined
			 channels and having a demonstrable hydrologic connection with the surface;
			 and
(b) Differentiated from water
			 held in the soil, from water in downward motion under the force of gravity in
			 the unsaturated zone, and from water held in chemical or electrostatic
			 bondage.
(30) "Growing
			 season" means the period during a one (1) year cycle, from the last killing
			 frost in spring to the first killing frost in fall, in which climatic
			 conditions are favorable for plant growth. In Kentucky, this period normally
			 extends from mid-April to mid-October.
(31) "Highwall" means the face of exposed
			 overburden and mineral to be mined, in an open cut of a strip mine or for entry
			 to an underground mine.
(32)
			 "Hollowfill" means a fill structure placed in a hollow where the side slopes of
			 the existing hollow, measured at the steepest point, are greater than twenty
			 (20) degrees or the average slope of the profile of the hollow, from the toe of
			 the fill to the top of the fill, is greater than ten (10) degrees.
(33) "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 requirement of KRS Chapters 350 through 353;
			 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 the abatement.
(34) "Impoundment" means a closed basin
			 formed naturally or artificially built, which is dammed or excavated for the
			 retention of water, sediment, or waste.
(35) "Industrial/commercial land use" means
			 lands used for:
(a)
1. The extraction or transformation of
			 materials, for fabrication of products, wholesaling of products or for long
			 term storage of products;
2. Heavy
			 and light manufacturing facilities; or
3. Land used for facilities in support of
			 these operations, which is adjacent to, or an integral part of, that operation;
			 or
(b)
1. The retail or trade of goods or services,
			 including: hotels, motels, stores, restaurants, and other commercial
			 establishments; or
2. Land used for
			 facilities in support of these operations, which is adjacent to, or an integral
			 part of, that operation.
(36) "Intermittent stream" means a stream or
			 reach of stream that:
(a) Drains a watershed
			 of one (1) square mile or more but does not flow continuously throughout 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 water and ground water discharge. This term does not include
			 ephemeral streams.
(37)
			 "Land use" means the specific functions, uses, or management related activities
			 of the proposed permit area, including both premining use and postmining
			 use.
(38) "Limestone" means a
			 crystalline sedimentary rock that is primarily composed of the mineral calcite
			 CaCO3. However, it may be considered as any sedimentary rock composed
			 essentially of carbonates, chiefly calcite or dolomite, but may contain small
			 amounts of iron-carbonates (siderite).
(39) "Mast" means nuts, acorns, and fruit
			 produced by certain woody plant species.
(40) "Mineral operation" means noncoal mining
			 activities including: mining of limestone and dolomite; mining of sand and
			 gravel; surface disturbance of dredging of river or creek sand and gravel;
			 mining of clay; mining of tar sand or rock asphalt; mining of fluorspar and
			 other vein minerals. Mineral operations include the surface disturbance of
			 underground mining as well as strip mining. This term includes mining
			 activities and all activities necessary and incident to the reclamation of the
			 mine or dredging operation as required by this title. This term does not
			 include coal mining or oil shale mining.
(41) "Mineral operator" means any person,
			 partnership, or corporation engaged in mineral operations.
(42) "Mineral permittee" means a mineral
			 operator or person holding a permit, or required under KRS Chapter 350 or 405
			 KAR Chapter 5, to hold a permit to conduct mineral operations during the permit
			 term and until all reclamation obligations imposed by KRS Chapter 350 and 405
			 KAR Chapter 5 are satisfied.
(43)
			 "Natural drainways" means ephemeral areas, gullies, ravines, streams, and
			 similar topographical features occurring naturally in an area which control the
			 direction of surface water flow.
(44) "Natural hazard lands" means geographic
			 areas in which natural conditions exist that pose or, as a result of mineral
			 operations, may pose a threat to the health, safety, or welfare of people,
			 property, or the environment, including, areas subject to landslides, caveins,
			 subsidence, substantial erosion, unstable geology, or frequent
			 flooding.
(45) "Noxious plants"
			 means species that have been included on state and federal lists of noxious
			 plants.
(46) "Outslope" means the
			 face of the spoil, natural ground, or embankment sloping downward from the
			 highest elevation to the lowest elevation.
(47) "Outstanding resource waters" means
			 surface waters designated by the cabinet, pursuant to
			 401 KAR
			 10:031.
(48) "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. Land used
			 for facilities in support of pastureland which is adjacent to, or an integral
			 part of, these operations is also included.
(49) "Perennial stream" means a stream, or
			 stream reach, that flows continuously during all of the calendar year as a
			 result of ground water discharge or surface runoff.
(50) "Permanent impoundment" means an
			 impounded body of water, that is formed in the pit during mining or retained by
			 a constructed embankment or dugout, which will be retained after mineral
			 operations are complete and which has been approved for retention by the
			 cabinet and other appropriate Kentucky and federal agencies.
(51) "Permit" means written approval issued
			 by the cabinet to conduct mineral operations.
(52) "Permit area" means the area of land and
			 water within boundaries designated in the approved permit application that
			 includes all areas which are or will be affected by mineral operations under
			 that permit.
(53) "pH" means the
			 index used to describe the hydrogen ion activity of a system defined as the
			 reciprocal of the logarithm of the hydrogen ion concentration at base ten (10).
			 The range of this index is zero to fourteen (14), with seven (7) being
			 neutral.
(54) "PLS" means pure live
			 seed.
(55) "Point source" is
			 defined in
			 401 KAR
			 5:050.
(56) "Recreation land use" means land used
			 for public or private leisure time use, including developed recreation
			 facilities including, parks, camps, and amusement areas, as well as areas for
			 less intensive uses including, hiking, canoeing, and other undeveloped
			 recreational uses.
(57)
			 "Residential land use" means tracts employed for single and multifamily
			 housing, mobile home parks, and other residential lodgings. Also included, is
			 land used for support facilities such as, vehicle parking, open space, and
			 other facilities which directly relate to the residential use of the
			 land.
(58) "Roads"
(a) Means haul roads and access roads
			 constructed, used, reconstructed, improved, or maintained within permit
			 boundaries.
(b) Does not mean any
			 roadways located in the mining pit area.
(59) "Runoff" means precipitation that flows
			 overland before entering a defined stream channel and becoming stream
			 flow.
(60) "Safety factor" means
			 the ratio of the available shear strength to the developed shear stress, or the
			 ratio of the sum of the resisting forces to the sum of the loading or driving
			 forces, as determined by engineering practices.
(61) "Sand" means a sedimentary rock type
			 that implies a loosely, compacted, fine sediment that is generally composed of
			 particles that range in size from 1/16mm to 2mm. Most sands are predominantly
			 composed of quartz grains or fragments of siliceous rocks.
(62) "Sediment" means undissolved organic and
			 inorganic material transported or deposited by water.
(63) "Sedimentation pond" means any natural
			 or artificial structure or depression used to remove sediment from water and
			 store sediment or other debris.
(64) "Significant, imminent environmental
			 harm to land, air, or water resources" means and environmental harm that:
(a) Has an adverse impact on land, air, or
			 water resources, including plant and animal life;
(b) Is imminent because a condition,
			 practice, or violation exists, which:
1. Is
			 causing the harm; or
2. May be
			 reasonably expected to cause the harm at any time before the end of the
			 reasonable abatement time; and
(c) Is significant because the harm is:
1. Appreciable; and
2. Not immediately reparable.
(65) "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. It may also be expressed as a percent or in
			 degrees.
(66) "Soil horizons" means
			 contrasting layers of soil parallel, or nearly parallel to, the land surface
			 and that:
(a) Are differentiated on the basis
			 of field characteristics and laboratory data; and
(b) Include the following four (4) master
			 soil horizons:
1. "A horizon" or "surface
			 soil," which consists of the uppermost mineral layer of soil where the:
a. Organic matter is most abundant;
			 and
b. Leaching of soluble or
			 suspended particles is typically the greatest;
2. "E horizon," which is the layer commonly
			 near the surface below the A horizon and above the B horizon and is most
			 commonly differentiated from the:
a. A horizon
			 by a lighter color and, in general measurably less organic matter.
b. B horizon in the same sequence by color of
			 higher value or lower chroma, by a courser texture, or by a combination of
			 these properties;
3. "B
			 horizon" or "subsoil," which is the middle layer immediately below the E
			 horizon and commonly contains more clay, iron, or aluminum than the A, E, or C
			 horizons; and
4. "C horizon," which
			 is the deepest layer of the soil profile and consists of loose material or
			 weathered rock that is relatively unaffected by biological activity.
(67) "Spoil" means
			 overburden which has been removed during mineral operations.
(68) "Stabilize" means any method used to
			 prevent movement of soil, spoil piles, or areas of disturbed earth, and
			 includes increasing bearing capacity, increasing shear strength, draining,
			 compacting, riprapping, or by vegetation.
(69) "Stream buffer zone" means an area of
			 forest or field left untouched and undisturbed by the mineral operator during
			 mining, including haul road construction.
(70) "Strip mining" is defined in
			 KRS
			 350.010(2).
(71) "Surface disturbance of dredging river
			 or creek sand and gravel" means the surface and land disturbed on the banks of
			 a creek or river for haul roads, storage areas, processing areas, maintenance
			 and repair areas, or any other disturbance to the banks and land created by the
			 dredging of sand and gravel out of rivers or creeks.
(72) "Surface disturbance of underground
			 mining" means above ground activities incidental to subsurface mineral
			 extraction 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 used for the disposal and storage
			 of waste, and areas on which materials incidental to underground mining
			 activities are placed.
(73)
			 "Surface waters" means those waters having well defined banks and beds, either
			 constantly or intermittently flowing; lakes and impounded waters; and marshes
			 and wetlands. Effluent ditches and lagoons used for waste treatment which are
			 situated on property owned, leased, or under valid easement by a permitted
			 discharger, are not considered to be surface waters of the
			 commonwealth.
(74) "Suspended
			 solids" means organic or inorganic materials carried or held in suspension in
			 water that will remain on a 0.45 micron filter.
(75) "Tar sand or rock asphalt" means a
			 porous, consolidated or unconsolidated sand or sandstone whose interstices
			 contain asphalt or bitumen.
(76)
			 "Temporary mineral operation" means a mineral operation that operates for a
			 total of six (6) months or less at a location.
(77) "Topsoil" means the A and E horizon
			 layers of the four (4) master soil horizons.
(78) "Toxic forming materials" means earth
			 materials or wastes which, if acted upon by air, water, weathering, or
			 microbiological processes, are likely to produce chemical or physical
			 conditions in soils or water that are detrimental to biota or uses of
			 water.
(79) "Waste" means materials
			 which are washed, (otherwise separated or left from a mineral product)
			 slurried, or otherwise transported from the processing facilities or
			 preparation plants of any kind.
(80) "Water table" means the upper surface of
			 a zone of saturation, where the body of ground water is not confined by an
			 overlying impermeable zone.
(81)
			 "Water withdrawal permit" means the written approval issued by the cabinet
			 involving the actual removal or taking of water from any stream, water course,
			 or other body of public water pursuant to
			 KRS
			 151.140.
(82) "Wetland" means land that has a
			 predominance of hydric soils and that is inundated or saturated by surface or
			 ground water 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 the
			 growing season to develop an anaerobic condition (without oxygen) that supports
			 the growth and regeneration of hydrophytic vegetation.
(b) "Hydrophytic vegetation" means a plant
			 growing in:
1. Water; or
2. A substance that is at least periodically
			 deficient in oxygen during a growing season as a result of excessive water
			 content.
(83)
			 "Wild river" means a water which has been designated as a wild river by the
			 General Assembly pursuant to
			 KRS
			 146.241. approved for filing.