Kentucky Administrative Regulations › Title 405 - ENERGY AND ENVIRONMENT CABINET - DEPARTMENT FOR NATURAL RESOURCES › Chapter 20 - Special Performance Standards › Section 405 KAR 20:001 - Definitions for 405 KAR Chapter 20

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. 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 pursuant to the permanent regulatory program.
				This administrative regulation establishes definitions for terms used in 405
				KAR Chapter 20.
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) "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.
(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) "Agricultural use" means the use of any
			 tract of land for the production of animal or vegetable life. The uses include
			 activities such as the pasturing, grazing, and watering of livestock, and the
			 cropping, cultivation, and harvesting of plants.
(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 or approval to conduct coal exploration
			 operations pursuant to KRS Chapter 350 and all applicable administrative
			 regulations.
(7) "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.
(8) "Approximate original contour" is defined
			 by
			 KRS
			 350.010.
(9) "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.
(10) "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 and
			 secondary recovery systems.
(11)
			 "Bond pool" or "Kentucky Bond Pool" means the voluntary alternative bonding
			 program established at
			 KRS 350.700 through
			 350.755.
(12) "Cabinet" is defined by
			 KRS
			 350.010.
(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 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.
(16) "Coal mine waste" means coal
			 processing waste and underground development waste.
(17) "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.
(18) "Coal processing waste" means materials
			 that are separated from the product coal during the cleaning, concentrating, or
			 other processing or preparation of coal.
(19) "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.
(20) "Compaction" means increasing the
			 density of a material by reducing the voids between the particles by mechanical
			 effort.
(21) "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.
(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) "Diversion" means a
			 channel, embankment, or other manmade structure constructed to divert water
			 from one (1) area to another.
(26)
			 "Downslope" means the land surface below the projected outcrop of the lowest
			 coalbed being mined along each highwall.
(27) "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.
(28) "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.
(29) "Excess spoil":
(a) Means spoil disposed of in a location
			 other than the coal extraction area; and
(b) Does not spoil material used to achieve
			 the approximate original contour.
(30) "Groundwater" means subsurface water
			 that fills available openings in rock or soil materials to the extent that they
			 are considered water saturated.
(31) "Head-of-hollow fill" means a fill
			 structure consisting of any material, other than coal processing waste and
			 organic material, placed in the uppermost reaches of a hollow near the
			 approximate elevation of the ridgeline, where there is no significant natural
			 drainage area above the fill, and 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.
(32) "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.
(33)
			 "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.
(34)
			 "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.
(35) "Impoundment" means a closed basin,
			 naturally formed or artificially built, which is dammed or excavated for the
			 retention of water, sediment, or waste.
(36) "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.
(37) "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.
(38) "Intermittent stream" means:
(a) A stream or reach of stream that drains a
			 watershed of one (1) square mile or more but does not flow continuously during
			 the calendar year; or
(b) A stream
			 or reach of a stream that 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.
(39) "KAR"
			 means Kentucky administrative regulations.
(40) "KRS" means Kentucky Revised
			 Statutes.
(41) "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.
(42) "Monitoring" means
			 the collection of environmental data by either continuous or periodic sampling
			 methods.
(43) "Mulch" means
			 vegetation residues or other suitable materials that aid in soil stabilization
			 and soil moisture conservation, thus providing micro-climatic conditions
			 suitable for germination and growth.
(44) "Operations" is defined by
			 KRS
			 350.010.
(45) "Operator" is defined by
			 KRS
			 350.010.
(46) "OSM" means Office of Surface Mining
			 Reclamation and Enforcement, United States Department of the
			 Interior.
(47) "Outslope" means the
			 face of the spoil or embankment sloping downward from the highest elevation to
			 the toe.
(48) "Overburden" is
			 defined by
			 KRS
			 350.010.
(49) "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".
(50)
			 "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.
(51) "Permit"
			 means written approval issued by the cabinet to conduct surface coal mining and
			 reclamation operations.
(52)
			 "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.
(53) "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.
(54) "Person" is defined by
			 KRS
			 350.010.
(55) "Precipitation event" means a quantity
			 of water resulting from drizzle, rain, snowmelt, sleet, or hail in a specified
			 period of time.
(56) "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.
(57)
			 "Public road" means any publicly owned thoroughfare for the passage of
			 vehicles.
(58) "RAM" means
			 Reclamation Advisory Memorandum.
(59) "Reclamation" is defined by
			 KRS
			 350.010.
(60) "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.
(61) "Residential land" means
			 tracts employed for single and multiple-family housing, mobile home parks, and
			 other residential lodgings.
(62)
			 "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.
(63) "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 accepted engineering practices.
(64) "SCS" means Soil Conservation
			 Service.
(65) "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 that can include a barrier, dam, or
			 excavated depression which 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.
(66) "Shadow area" means the surface area
			 overlying underground mine works and surface areas associated with auger and in
			 situ mining.
(67) "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 is also expressed as a percent
			 or in degrees.
(68) "Slurry mining"
			 means the hydraulic breakdown of subsurface coal with drill-hole equipment, and
			 the eduction of the resulting slurry to the surface for processing.
(69) "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.
(70) "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.
(71) "Spoil" means overburden and other
			 materials, excluding topsoil, coal mine waste, and mined coal, that are
			 excavated during surface coal mining and reclamation operations.
(72) "Steep slope" means any slope of more
			 than twenty (20) degrees.
(73)
			 "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.
(74) "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.
(75) "Surface coal mining and reclamation
			 operations" is defined by
			 KRS
			 350.010.
(76) "Surface coal mining operations" is
			 defined by
			 KRS
			 350.010.
(77) "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) .
(78) "Ton" means 2,000 pounds avoirdupois
			 (.90718 metric ton).
(79) "Topsoil"
			 means the A and E soil horizon layers of the four (4) master soil
			 horizons.
(80) "Toxic-forming
			 materials" means earth materials or wastes that, 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.
(81) "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.
(82) "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.
(83) "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.
(84) "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, aboveground 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.
(85) "U.S. EPA" means United States
			 Environmental Protection Agency.
(86) "Water table" means the upper surface of
			 a zone of saturation, where the body of groundwater is not confined by an
			 overlying impermeable zone.