405 KAR | Title 405 KAR — Energy and Environment Cabinet - Department for Natural Resources

Chapter 2 General Coal Mining Practices

405 KAR 2:010 Waiving liens against privately-owned land {#sec-405-kar-2-010 omnilex-key=us-ky-regs-official--title-405--405 KAR 2:010}

Section 1. Liens against privately owned lands upon which the Environmental and Public Protection Cabinet implements measures to restore, reclaim, abate, control or prevent adverse effects of coal mining practices may be waived under the following conditions:

(1) The cabinet may waive the lien if the reclamation measures implemented do not result in a significant increase in the fair market value of the land reclaimed.

(2) The cabinet may waive the lien if the reclamation work to be performed on private land primarily benefits health, safety of environmental values of the greater community or area in which the land is located, or if reclamation is necessitated by an unforeseen occurrence and the work performed to restore the land will not result in a significant increase in the market value of the land as it existed immediately before the occurrence.

History

RELATES TO: KRS 350.575
STATUTORY AUTHORITY: KRS 350.028(1)
NECESSITY, FUNCTION, AND CONFORMITY: This administrative regulation is necessary to establish the requirements for waiving liens against privately owned lands upon which the Environmental and Public Protection Cabinet implements measures to restore, reclaim, abate, control or prevent adverse effects of past coal mining practices.
History: 405 KAR 002:010. 9 Ky.R. 81; eff. 8-11-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

Chapter 5 Surface Effects of Noncoal Mining

405 KAR 5:002 Definitions for 405 KAR Chapter 5 {#sec-405-kar-5-002 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:002}

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) "Acid-forming 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 well-defined 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)

The extraction or transformation of materials, for fabrication of products, wholesaling of products or for long term storage of products;
Heavy and light manufacturing facilities; or
Land used for facilities in support of these operations, which is adjacent to, or an integral part of, that operation; or

(b)

The retail or trade of goods or services, including: hotels, motels, stores, restaurants, and other commercial establishments; or
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, cave-ins, 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:

Is causing the harm; or
May be reasonably expected to cause the harm at any time before the end of the reasonable abatement time; and

Appreciable; and
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:

"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;

"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 sequ3ence by color of higher value or lower chroma, by a courser texture, or by a combination of these properties;

"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
"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:

Water; or
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.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS 350.028, 350.029, 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.
History: 30 Ky.R. 2421; eff. 8-26-2004; Crt eff. 7-3-2018; 46 Ky.R. 1308, 2238; eff. 5-5-2020.

405 KAR 5:015 General provisions {#sec-405-kar-5-015 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:015}

Section 1. Applicability.

(1) This administrative regulation designates 405 KAR Chapter 5 as applicable to mineral operations and any lands used, disturbed or redisturbed, in connection with, or to facilitate those mineral operations, or any other activity related to mineral operation development conducted on or after the effective date of these administrative regulations.

(2) Mineral operations subject to 405 KAR Chapter 5, include: 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 fluorspar and other vein minerals. Mineral operations include the surface disturbance of underground mining as well as strip mining.

(3) Except for the provision of Section 4(2) of this administrative regulation, 405 KAR Chapter 5 does not apply to the mining of coal.

Section 2. Conflicting Provisions. The provisions of 405 KAR Chapter 5 are to be construed as being compatible and complimentary with each other. If provisions within this chapter are found to be contradictory, the more stringent provisions shall apply.

Section 3. Severability. If any provision or administrative regulation of 405 KAR Chapter 5 is found to be invalid, the remaining provisions of this chapter shall not be affected nor diminished thereby.

Section 4. General Obligations of Persons Engaged in Mineral Operations.

(1) No person shall engage in a mineral operation or related activity without having obtained from the cabinet, a permit for the mineral being mined, as required and described under 405 KAR 5:030.

(2) No person shall remove and commercially use or sell coal from a mineral operation except where an exemption has been obtained under 405 KAR 7:035.

(3) A person engaged in a mineral operation, shall not throw, pile, dump, or permit, the throwing, piling, dumping, or otherwise placing of any: overburden, stones, rocks, shale, earth, soil; dirt, debris, trees, wood, logs, or any other materials or substances of any kind or nature beyond or outside of the area of land which is under permit; or push materials over outslopes in such a way that normal erosion or slides brought about by natural, physical, changes will permit the materials to go beyond or outside of the area of land, which is under permit.

(4) A person engaged in a mineral operation shall not engage in any activities, which will result in a condition or constitute a practice that, creates an imminent danger to the health or safety of the public.

(5) A person engaged in a mineral operation shall not engage in any activities which will result in a condition or constitute a practice that, causes or can reasonably be expected to cause significant, imminent environmental harm, to land, air, or water resources.

(6) Mineral operations shall be conducted in a manner which minimizes damage, destruction, or disruption of services provided by oil, gas, and water wells; oil, gas, and coal slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under, or through the mineral operation, unless otherwise approved by the owner of these facilities and the cabinet.

(7) Upon development of any emergency conditions which threaten the life, health, or property of the public, a person engaged in a mineral operation shall immediately notify the person or persons whose life, health, or property are so threatened; shall take all reasonable actions to eliminate the condition creating the emergency, and shall immediately provide notice of the emergency conditions to the division, to local law enforcement officials, and to local government officials. Any emergency action taken by a person engaged in a mineral operation, pursuant to this paragraph, shall not relieve that person of other obligations under this chapter or of obligations under other applicable local, state, or federal laws and regulations.

(8) Compliance with the requirements of this chapter does not relieve any person engaged in a mineral operation from compliance with other applicable administrative regulations of the cabinet and other agencies.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part, requires the cabinet to promulgate administrative regulations pertaining to noncoal mineral operations to minimize their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth general provisions which apply to this chapter with regard to applicability, conflicting provisions, severability, obligations of mineral permittees, and the need for a preliminary walk.
History: 405 KAR 005:015. 21 Ky.R. 740; 1122; 2101; eff. 2-22-1995; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:021 Permit fees {#sec-405-kar-5-021 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:021}

Section 1. Permit Fees.

(1) Each application for an original permit, amendment, renewal, and transfer shall be accompanied by a permit fee.

(2) The permit fee shall be twenty-five (25) dollars for each year of the permit term. For amendments and transfers the fee shall be assessed for the years remaining in the permit term. The permit term may be for one (1) to five (5) years.

Section 2. Method of Payment. Fees are to paid to the Kentucky State Treasurer; payable by cash, company check, cashier's check, or money order.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part, requires the cabinet to promulgate administrative regulations pertaining to noncoal mineral operations to minimize their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation provides for the payment of permit fees.
History: 405 KAR 005:021. 21 Ky.R. 742; 2102; eff. 2-22-1995; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:032 Permit requirements {#sec-405-kar-5-032 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:032}

Section 1. General.

(1) This administrative regulation shall pertain to a person who applies for a permit to conduct mineral operations.

(2) Preliminary permit requirements.

(a) A person or mineral operator desiring a permit shall submit a preliminary map at a scale one (1) inch equals 400 feet or 500 feet, marked to show the proposed permit area and adjacent areas, including location of access roads, spoil or waste areas, and sedimentation ponds.

(b) Personnel of the cabinet shall conduct, within fifteen (15) working days after filing, an on-site investigation of the area with the applicant or the applicant's designated representatives.

(3) Permanent permit requirements. An original and two (2) complete, separately bound and distinct copies of the application shall be submitted to the cabinet, at the Department for Natural Resources, Division of Mine Reclamation and Enforcement, Noncoal Review Branch, 300 Sower Boulevard, Frankfort, Kentucky 40601, or at one (1) of the following regional offices:

(a) Madisonville Regional Office, 625 Hospital Drive, Madisonville, Kentucky 42431-1683;

(b) Middlesboro Regional Office, 1804 East Cumberland Avenue, Middlesboro, Kentucky 40965-1229;

(d) Hazard Regional Office, 556 Village Lane, P.O. Box 851, Hazard, Kentucky 41702.

Section 2. Identification of Interests.

(1) Each permit application shall contain the names and addresses of:

(a) The applicant, including phone number;

(b) The registered agent for service of process, if applicable, including phone number;

(d) The project engineer, along with registration number and name of associated firm;

(e) The company and engineer to which correspondence concerning the subject permit shall be addressed;

(f) Surface owners of record within the area proposed for mining, including areas overlying underground workings;

(g) Mineral owners of record within the area proposed for mining, including areas overlying underground workings; and

(h) Surface owners of record within 500 feet of the proposed permit boundary and areas overlying underground workings.

(2) If the company has undergone a name change or changes during the previous five (5) years, the applicant shall list the names.

(3) The legal structure of the applicant shall be specified.

(4) If the business is owned by an individual or is a partnership, and is performed under an assumed name, the applicant shall specify the county and state where the name is registered.

(5) The applicant shall list previous Kentucky permits held by the applicant or an individual, partnership, or corporation associated with the applicant.

(6) The applicant shall provide the name of the contact person at the site, including phone number.

(7) The applicant shall specify the type of application, along with the permit number.

Section 3. Bond Information.

(1) If bond is required pursuant to 405 KAR 5:082, the following information shall be provided in the permit application:

(a) The bond amount per acre;

(b) The total amount of bond; and

(2) If a surety is used, the applicant shall provide the bond number and surety.

(3) If a certificate of deposit is used, the applicant shall provide the bank name and CD number.

(4) If a letter of credit is used, the applicant shall provide the bank name and letter of credit number.

Section 4. Equipment Inventory. The permit application shall contain a list of all equipment, model numbers, and condition of the equipment proposed to be used for removing overburden and reclaiming the affected area of the proposed mineral operation.

Section 5. Waivers and Approvals.

(1) If blasting will occur within 300 feet of an occupied dwelling or if mineral extraction will occur within 100 feet of an occupied dwelling, the permit application shall contain a waiver from the owner, acknowledging approval of the activity.

(2) Except where mine access roads or haul roads join the right-of-way, if the proposed mineral operation will occur within 100 feet of the right-of-way of a public road, or if relocation of a public road is proposed, the permit application shall contain proof of notification to and required approvals from the appropriate agency or local government with jurisdiction over the road.

(3) If a permanent pond other than a final pit impoundment with no embankment is proposed, approval from the landowner for the structure and a written acknowledgment from the landowner that the mineral permittee shall not have continuing maintenance responsibility after permit release shall be required.

(4) If relocation, channelization, or other significant disturbance to an intermittent or perennial stream is proposed, or if the proposed mineral operation will occur within, or in any way impact, a floodplain, wetland, or other water of the commonwealth, the applicant shall obtain permits and approvals from the United States Army Corps of Engineers and the Kentucky Division of Water. Approval shall also be required by the cabinet for disturbances within 100 feet of an intermittent or perennial stream.

(5) If a sedimentation pond or other point source discharge is proposed, a KPDES permit from the Kentucky Division of Water shall be required.

(6) If water withdrawal is proposed, a Water Withdrawal Permit, pursuant to 401 KAR 4:010, shall be obtained from the Kentucky Division of Water.

(7) If there are local zoning regulations, the applicant shall state this in the application to the Division of Mine Reclamation and Enforcement.

(8) If applicable, approval from the owner of the utilities and facilities as provided in 405 KAR 5:015, Section 4(6) shall be required.

Section 6. Right to Mine. The permit application shall contain a signed statement by the applicant attesting that the applicant has the legal right to mine including the effective date of the source document of the legal right to mine.

Section 7. Verification of Application. The permit application shall contain a statement, signed by the applicant, acknowledging that all statements and representations, made in the application, are true and correct.

Section 8. Map Requirements. The permit application shall include original and two (2) copies of a section of the relevant United States Geological Survey Topographical Map or an equivalent format which shall:

(1) Delineate the proposed permit area and areas, if applicable, overlying proposed underground workings;

(2) Be of a scale of not more than one (1) inch to 400 feet;

(3) Show all other mine operations within 500 feet of the proposed permit boundaries and proposed underground workings, including those within the proposed permit boundaries;

(4) Delineate the property boundaries of all landowners within the proposed permit area and areas overlying proposed underground workings and all landowners within 500 feet of the proposed permit boundary and areas overlying proposed underground workings, along with the names of all the landowners;

(5) Delineate all proposed access roads onto the proposed mineral operation;

(6) Show the site slope;

(7) Show the name and location of all streams, rivers, lakes, outstanding resource waters pursuant to 401 KAR 10:031, or other public water bodies; proposed stream buffer zones; roads, cemeteries, houses, churches, schools and other public buildings; oil and gas wells; public properties such as;

(a) Parks, Wildlife Management Areas, and nature preserves; and

(b) Utility lines on the area to be affected, and within 1,000 feet of the proposed permit boundary;

(8) Locate sites listed on the National Register of Historic Places and known archaeological sites;

(9) Delineate wetlands that may be affected by the proposed mineral operation;

(10) Show the drainage pattern on and away from the area to be affected, including the direction of flow, proposed constructed drainways, natural drainways to be used for drainage, and the streams or tributaries to receive discharges from the proposed mineral operation;

(11) Show proposed pit area, sediment structures, storage areas, and other facilities and features related to the mineral operation;

(12) Provide a north point arrow;

(13) Contain a legend, which shall:

(a) Provide the company name;

(b) Provide the application number;

(d) Provide the site coordinates;

(e) Provide the site address;

(f) Provide the map scale and contour interval;

(g) Provide a description of the site location including:

The nearest stream; and
The distance and direction from the nearest road intersection or town;

(h) Identify each insignia, symbol, number, or letter used to designate features, facilities, or areas;

(i) Provide acreage breakdowns of the various mineral operation features and facilities, including pit areas, storage areas, sediment structures, access roads, and the total number of acres of area to be affected; and

(j) Specify the deposit to be mined; and

(14) Provide a signed, notarized statement that the map has been prepared and certified by a professional engineer, licensed pursuant to the provisions of KRS Chapter 322. This statement shall read, "I, the undersigned, hereby certify that this map is correct, and shows to the best of my knowledge and belief all the information required by the mineral operation laws and administrative regulations of the state". This statement shall include:

(a) The engineer's registration number; and

(b) The date on which the map was prepared.

Section 9. General Site Information. The permit application shall contain the following general site information:

(1) Location of the mineral operation to include:

(a) Latitude and longitude;

(b) The nearest community;

(d) The nearest public road intersection; and

(e) The name of the United States Geological Survey quadrangle or quadrangles, in which the proposed mineral operation will occur;

(2) A county by county list of the types of disturbances planned, accompanied by the acreage to be involved with each disturbance;

(3) Specification of the mineral to be extracted;

(4) Specification of the major watershed or watersheds, which will be affected, by the proposed mineral operation;

(5) Specification if active discharges exist that may affect the proposed mineral operation. If so, provide the following information:

(a) The pH of the discharge; and

(b) The source of the discharge;

(6) Specification if underground workings will be encountered, and the distance, in feet, to the nearest active deep mine; and

(7) Specification of the types of disturbances planned for the proposed mineral operation.

Section 10. Cultural Resource Information. The applicant shall specify if sites listed on the National Register of Historic Places or known archaeological sites exist within, or adjacent to, the proposed permit boundary.

Section 11. Environmental Resources Information.

(1) The applicant shall indicate if there are Wildlife Management Areas, wildlife refuges, nature preserves, state or national parks, state or national forests, or similar public lands within the vicinity of the proposed mineral operation. If these lands exist, the applicant shall delineate them on the map.

(2) The applicant shall indicate if disturbances within the channel of, or within 100 feet of, an intermittent or perennial stream are proposed.

(3) The applicant shall indicate if there are outstanding resource waters, pursuant to 401 KAR 10:031, within the vicinity of the proposed mineral operation. If so, the applicant shall delineate these waters on the map.

Section 12. Surface Water Quantity and Quality Protection Plan. The permit application shall contain a surface water quantity and quality protection plan, which shall demonstrate compliance with 405 KAR 5:050 and 405 KAR 5:055, and shall include the following information:

(1) The number of sedimentation ponds proposed, accompanied by designs, drawings, and specifications for each structure to include:

(a) The structure number;

(b) The number of acres to be disturbed within the drainage area;

(d) Sediment storage capacity;

(e) Storage capacity at the principal spillway;

(f) Storage capacity at the emergency spillway;

(g) Spillway capacities;

(h) Structure height measured from the downstream toe; and

(i) All other engineering designs, dimensions, and calculations required to demonstrate compliance with 405 KAR 5:050 and 5:055.

(2) If sediment removal becomes necessary, the permit application shall contain a description of how sediment shall be removed and disposed.

(3) The applicant shall state if any permanent sedimentation ponds are proposed.

(4) The permit application shall contain descriptions, designs, diagrams, figures, and calculations as necessary to adequately explain and illustrate all other sediment control structures.

(5) The permit application shall contain descriptions, designs, diagrams, figures, and calculations as necessary to adequately explain and illustrate other methods proposed for protecting surface waters.

Section 13. Permanent and Temporary Impoundments. If an impoundment is part of the plan of reclamation or method of mineral operation, the permit application shall contain detailed designs and specifications for the impoundment that demonstrates compliance with 405 KAR 5:055.

Section 14. Spoil Handling Plan. The permit application shall contain or be accompanied by a plan for the handling and disposal of spoil, in excess of that involved with backfilling and grading, which shall demonstrate compliance with the requirements of 405 KAR 5:062.

Section 15. Toxic Materials Handling Plan. The permit application shall contain, or be accompanied by, a plan for the handling of acid-forming or toxic-forming materials, waste materials, or other unstable materials that shall demonstrate compliance with the requirements of 405 KAR 5:062.

Section 16. Backfilling and Grading Plan. The permit application shall contain, or be accompanied by, a plan for backfilling and grading, which shall demonstrate compliance with the requirements of 405 KAR 5:062.

Section 17. Topsoil Handling and Restoration Plan. The permit application shall contain, or be accompanied by, a plan for the handling and restoration of topsoil, which shall demonstrate compliance with the requirements of 405 KAR 5:062.

Section 18. Land Use Plan.

(1) The permit application shall contain a land use plan, which demonstrates compliance with 405 KAR 5:065, and is consistent with 405 KAR 5:070, that:

(a) Specifies the premining use or uses within, and adjacent to, the proposed permit boundary;

(b) Specifies the intended postmining land use for the proposed permit area; and

(c) If the postmining land use is different from the premining land use, shall provide a discussion justifying the change.

(2) The land uses are listed at 405 KAR 5:065, and are defined in 405 KAR 5:002.

Section 19. Revegetation Plan. The permit application shall contain a revegetation plan that shall demonstrate compliance with the requirements of 405 KAR 5:070, and is consistent with 405 KAR 5:065 and that provides the following information:

(1) Identification of the material that will be redistributed on the regraded area as a plant growth medium;

(2) Permanent grass species, permanent legume species, and quick cover species to be seeded during revegetation, along with their application rates (pounds/acre);

(3) Tree and shrub species to be planted during revegetation, along with their stocking rates (number/acre); and

(4) The type of mulch to be used, along with the mulching rate (pounds or tons/acre), or other soil stabilization practices to be incorporated.

Section 20. Designs and Attachments.

(1) The permit application shall be accompanied by the descriptions, designs, diagrams, figures, and calculations necessary to adequately explain and illustrate proposed sediment control structures, as required under Sections 12 and 13 of this administrative regulation; spoil disposal fills; access and haul roads; stream crossings; and ditches.

(2) Access and haul road designs shall conform to the specifications established in 405 KAR 5:040.

(3) The designs and plans shall demonstrate compliance with all pertinent requirements of 405 KAR Chapter 5, and shall be certified by a Kentucky professional engineer.

Section 21. Newspaper Advertisement: Publication of Notice of Intention to Mine.

(1) An applicant for a new permit required pursuant to KRS Chapter 350, shall publish at least once, a public notice of the application for that permit.

(a) The publication shall be made by advertisement in the newspaper of largest bona fide circulation in the county where the proposed mining site is located.

(b) If the proposed mining site is in more than one (1) county, publication shall be required in the newspaper of largest bona fide circulation in each county.

(2) The publication shall be made not less than ten (10) nor more than thirty (30) days prior to the filing of the permit application with the department.

(3) The public notice of the intention to file an application shall be entitled "Notice of Intention to Mine Noncoal Minerals" and shall include at a minimum the following:

(a) Name and address of the applicant;

(b) Permit application number;

(d) A brief description of the kind of mining activity proposed, together with a statement of the amount of acreage affected by the proposed mineral operations.

(4) The applicant for a new permit required by KRS Chapter 350 shall establish the date and place that the "Notice of Intention to Mine Noncoal Minerals" was published, by attaching to the application proof of the time, place, and content of the published notice.

Section 22. Permit Revisions. A revision to a permit shall be obtained if the mineral permittee desires to modify the mineral operations or make changes to the original permit that does not involve increased acreage. The following stipulations shall apply to permit revisions:

(1) The application for revision shall be filed with the cabinet and approved prior to the date on which the mineral permittee expects to revise the mineral operation;

(2) The term of a permit shall remain unchanged by a revision; and

(3) The application for revision shall be submitted using the "Application for Surface Disturbance Mining Permit Noncoal Mining", Form NCR-2.

Section 23. Permit Amendments. Upon application by the mineral permittee, the cabinet may amend a valid existing permit, so as to increase the permitted area to be affected by mineral operations under the permit. Applications for amendment may be filed at any time during the term of the permit.

(1) The mineral permittee shall file an application in the same form and with the same content as required for an original permit pursuant to this administrative regulation.

(2) The mineral permittee may need to file a supplemental bond with the cabinet in an amount to be determined, as provided under 405 KAR 5:082, for each additional acre or fraction of an acre.

Section 24. Permit Renewals. A valid permit issued pursuant to 405 KAR Chapter 5 shall carry with it, the right of successive renewal upon expiration of the term of the permit. Successive renewal shall be allowed only for those areas specifically within the boundaries of the existing permit.

(1) An application for renewal of a permit shall be filed with the cabinet at least sixty (60) days prior to the expiration date of the permit.

(2) If an application for renewal of a valid existing permit includes a proposal to extend the mineral operation beyond the boundaries authorized pursuant to the existing permit, the portion of the application that addresses a new land area shall be subject to all requirements of 405 KAR Chapter 5, and a new original permit application shall be required for these areas.

(3) The permit renewal shall be issued if the following requirements are met:

(a) The application for renewal shall be submitted using the "Application for Surface Disturbance Mining Permit Noncoal Mining", Form NCR-2;

(b) The mineral permittee shall submit all revised or updated information required by the cabinet, including at a minimum:

An updated operational plan current to the date of request for renewal; and
Specification of the status and extent of all mineral operations on the existing permit area;

(d) The mineral permittee shall provide additional bond required in accordance with 405 KAR 5:082.

Section 25. Permit Succession.

(1) There shall not be succession on the permitted area without the prior written approval of the cabinet in accordance with this section.

(2) The initial mineral permittee shall notify the cabinet, in writing, of a proposed succession.

(3) The cabinet may release the first mineral operator from reclamation responsibility pursuant to 405 KAR Chapter 5 as to that particular mineral operation, except that:

(a) There shall not be release until the successive mineral operator has been issued a permit and has otherwise complied with the requirements of 405 KAR Chapter 5; and

(b) The successor shall immediately assume, as a part of his obligation pursuant to 405 KAR Chapter 5, all liability for the reclamation of the area affected by the former permitted mineral operation.

(4) If the cabinet has given its prior written approval to the succession, a successor in interest to a mineral permittee who applies for a successor permit within thirty (30) days of succeeding to the interest, and who obtains immediate bond coverage at least equivalent to the amount of the bond of the original mineral permittee, may continue mineral operations according to the approved permit plan of the original mineral permittee until the successor's application is granted or denied.

(5) The bond coverage provided by the successor in interest shall take effect immediately upon the commencement of mineral operations by the successor.

Section 26. Review of Permits.

(1) Within thirty (30) working days of receiving the permit application, the cabinet shall make one (1) of three (3) decisions:

(a) To technically withdraw the permit application;

(b) To deny the permit application; or

(2) If the permit application is technically withdrawn or denied, the thirty (30) working day period shall be stopped on the date of this decision.

(3) The time period shall restart on the date the permit application is returned with deficiencies corrected.

(4) If the application is not approved, the cabinet shall state the reasons, in writing, for which the application is not approved; and the cabinet may propose modifications, delete areas, or reject the entire application.

(5) If the mineral permittee disagrees with the decision of the cabinet, the mineral permittee may, by written notice, request a hearing by the cabinet, pursuant to 400 KAR 1:120.

(6) The cabinet shall notify the applicant by registered mail within twenty (20) days after a decision is made.

Section 27. Criteria for Permit Approval and Denial. An application for a permit and mineral operation shall not be approved unless the application affirmatively demonstrates and the cabinet determines on the basis of information stated in the application, and other available pertinent information, that:

(1) The permit application is accurate, complete, and that the applicant has complied with all requirements of 405 KAR Chapter 5;

(2) The mineral operation proposed can be carried out under the method of mineral operation outlined in the permit application in a manner that will satisfy all requirements of 405 KAR Chapter 5;

(3) The proposed mineral operation shall not constitute a hazard to, or do physical damage to life, to an occupied dwelling, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, other public property, or to members of the public or their real and personal property.

(a) All necessary measures shall be included in the method of mineral operation in order to eliminate the hazard or damage.

(b) If it is not technologically feasible to eliminate the hazard or damage by adopting specifications in the method of mineral operation, then that part of the mineral operation that constitutes the cause of the hazard or damage shall be deleted from the application and mineral operation;

(4) The proposed mineral operation shall not adversely affect natural hazard lands or a wild river established pursuant to KRS Chapter 146;

(5) The proposed mineral operation shall not be inconsistent with other mineral operations anticipated in areas adjacent to the proposed permit area; and

(6) The proposed permit area is:

(a) Not included within the boundaries of the National Park System, the National Wildlife Refuge System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1276(a)), and the National Recreation Areas designated by Act of Congress;

(b) Not included within 300 feet, measured horizontally, of a public park, public building, school, church, community, or institutional building;

(c) Not included within 100 feet, measured horizontally, of a cemetery, and access to be provided to a cemetery at all times;

(d) Not within 100 feet, measured horizontally, of the outside right-of-way line of a public road, except:

Where mine access roads or haul roads join the right-of-way; or
Where the cabinet allows the roads to be relocated or allows disturbances within 100 feet of the roads, once the applicant has obtained necessary approval from the governmental authority with jurisdiction over the public road, as required under Section 5 of this administrative regulation; and if after public notice and opportunity for public hearing a written finding is made by the cabinet that the interest of the public and the landowners affected thereby shall be protected;

(e) Not within the distances specified in Section 5 of this administrative regulation, measured horizontally, of an occupied dwelling unless the applicant submits with the permit application a written affidavit from the owner of the dwelling specifying an allowance, as required by Section 5 of this administrative regulation.

This waiver shall be knowingly and intelligently executed, and be separate from a lease or deed, unless the lease or deed contains an explicit waiver.

a. A waiver obtained from previous owners shall remain effective for subsequent owners who had actual or constructive knowledge of the existing waiver when the dwelling was purchased.

b. A subsequent owner shall be deemed to have constructive knowledge if the waiver has been properly filed in public property records pursuant to KRS 382.110 or if the mining has proceeded to within the distance limit prior to the date of purchase; and

(f) Not within 100 feet of an intermittent or perennial stream unless appropriate permits and approvals, required pursuant to Section 5 of this administrative regulation, have been obtained authorizing mineral operations at a closer distance to, or through, the stream. The authorization shall not be given unless the applicant demonstrates that the authorization is environmentally sound and that KRS Chapter 350 and 405 KAR Chapter 5 have been satisfied.

Section 28. Permit Conditions; Permit Term.

(1) Permits issued by the cabinet may contain certain conditions necessary to ensure that the mineral operation shall be conducted in compliance with KRS Chapter 350 and 405 KAR Chapter 5.

(2) All mineral operations shall be conducted in accordance with KRS Chapter 350 and 405 KAR Chapter 5 and conditions of the permit.

(3) Each permit shall be issued for a fixed term not to exceed five (5) years.

Section 29. Denial of a Permit for Past Violations.

(1) A mineral operator or person whose permit has been revoked or suspended shall not be eligible to receive another permit or begin another mineral operation, or be eligible to have suspended permits or mineral operations reinstated until he has complied with all applicable requirements of KRS Chapter 350 and 405 KAR Chapter 5 with respect to all permits issued him.

(2) A mineral operator or person whose surface coal mining operation permit has been revoked or suspended shall not be eligible to receive another permit or begin another mineral operation, or be eligible to have suspended permits or mineral operations reinstated until he has complied with all applicable requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24 with respect to all surface coal mining operation permits issued him.

(3) A mineral operator or person who has forfeited any bond filed with the cabinet for a mineral operation or a surface coal mining operation shall not be eligible to receive another permit or begin another mineral operation unless:

(a) The land for which the bond was forfeited has been reclaimed without cost to the state; or

(b) The mineral operator or person has paid a sum in accordance with the estimate prepared by the Division of Abandoned Mine Lands of the cost to reclaim the lands, based upon site specific conditions.

(4) If the applicant, mineral operator, a subcontractor, or a person acting on behalf of the applicant has either conducted activities with a demonstrated pattern of willful violations of 405 KAR Chapter 5, or has repeatedly been in noncompliance of this chapter, then the permit application shall be denied. A mineral permittee shall not be relieved of responsibility with respect to a permit issued to him.

(5) If the cabinet determines that an activity of the applicant regulated pursuant to 405 KAR Chapter 5 is currently in violation of KRS Chapters 149, 151, 224, 350 through 353, 400 KAR Chapters 1 through 3, 401 KAR Chapters 4 through 100, 402 KAR Chapter 3, or 405 KAR Chapters 2 through 30, then the cabinet shall require the applicant, before the issuance of the permit, to either:

(a) Submit proof that can be substantiated by the cabinet that the violation has been corrected or is in the process of being corrected in good faith; or

(b) Establish, by proof that can be substantiated by the cabinet, that the applicant has filed and is presently pursuing, a good faith administrative or judicial appeal to contest the validity of the violation.

(6) If the applicant submits the proof specified pursuant to subsection (5) of this section, then the cabinet may issue the permit with a condition that either the reclamation work be continued in good faith until completion or that if the applicant loses his action contesting the violation that the violation be corrected within a specified time. Failure to comply with a condition shall be grounds for revocation of the permit.

(7) If the applicant disagrees with the cabinet's determination pursuant to this section, then he or she has the right to request an administrative hearing pursuant to 400 KAR 1:120.

Section 30. Permit Conference and Public Comment.

(1) Procedures for requests. A person whose interests are or may be adversely affected by the issuance of the application, including the officer or head of any federal, state, or local government agency or authority, may request that the cabinet hold an informal conference on an application for a permit. The request shall:

(a) Briefly summarize the issues to be raised by the requester at the conference; and

(b) Be filed with the cabinet within fifteen (15) days of the newspaper advertisement.

(2)

(a) The conference shall be held at the Division of Mine Reclamation and Enforcement.

(b) The conference shall be held within fifteen (15) days of the date of the request. The date, time, and location of the conference shall be sent to the applicant and parties requesting the conference.

(c) The conference shall be conducted by a representative of the cabinet who shall accept oral or written statements and other relevant information from a party to the conference.

(d) If all parties requesting the conference stipulate agreement before the requested conference and withdraw their requests, the conference shall not be held.

(e) All comments and evidence shall be taken into consideration by the Division of Mine Reclamation and Enforcement in Frankfort before a final decision is made on the disposition of the application.

(f) The record shall be maintained and shall be accessible to the parties during the life of the mineral operation.

(3) A person whose interests are or may be adversely affected by the issuance of the application, including the officer or head of a federal, state, or local government agency or authority, may submit written comments to the cabinet.

Section 31. Existing Mineral Operations.

(1) The cabinet may grant limited variances from the distance limitations of Section 27(6) of this administrative regulation if an existing disturbance within those limits was made prior to February 1995 by an existing mineral operation that was not permitted or regulated prior to February 1995. These variances shall only be granted if practical and reasonable remedial compliance measures cannot be identified.

(2) The distance limitations of Section 27(6) of this administrative regulation shall not apply if lesser distance limitations have been approved in a valid permit issued prior to February 1995. The distance limitations established in those permits shall continue to apply.

Section 32. Incorporation by Reference.

(1) "Application for Surface Disturbance Mining Permit Noncoal Mining, NCR-2", July 2005, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Natural Resources, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 350.010(2), 350.130, 350.240, 350.300
STATUTORY AUTHORITY: KRS 350.028, 350.029, 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 specifies information to be submitted by the applicant relating to legal status, financial information, general site information, map requirements, cultural and environmental resource information, and mining and reclamation plans. This administrative regulation also addresses the waivers and approvals necessary to conduct noncoal mineral operations, including those of other agencies, and establishes provisions concerning review of permits and other permit related procedural matters.
History: 30 Ky.R. 2424; eff. 8-26-2004; 39 Ky.R. 1310; 1687; eff. 3-8-2013; TAm eff. 7-6-2016; TAm eff. 6-27-2017; TAm eff. 5-4-2018; Crt eff. 7-3-2018; 46 Ky.R.. 1312, 2241; eff. 5-5-2020.

405 KAR 5:036 Signs and markers {#sec-405-kar-5-036 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:036}

Section 1. General.

(1) All signs required to be posted shall be of a standard design that can be seen and read easily and shall be made of durable material.

(2) Signs and other markers shall be maintained by the mineral permittee during all mineral operations to which they pertain, and shall be kept legible and visible and shall conform to all local ordinances and codes.

(3) Signs constructed pursuant to this administrative regulation shall be constructed of durable material, with the sign face to be at least two (2) feet in height and four (4) feet in width, and the top of the sign to stand not less than six (6) feet above the ground.

Section 2. Mine and Permit Identification Signs.

(1) Signs identifying the mine area shall be displayed at all points of access to the permit area from public roads and highways.

(2) Signs shall clearly identify the name, business address, and telephone number of the mineral permittee and identification numbers of current mineral operation permits or other authorizations to operate.

(3) The signs shall not be removed until after release of permit.

(4) Failure to post the signs shall be grounds for revocation of the permit.

(5) The permit boundaries shall be clearly marked by durable and easily recognized markers for the purposes of the permit walk.

Section 3. Stream Buffer Zone Markers. Except where specifically approved, lands within 100 feet of perennial and intermittent streams shall not be disturbed. These areas shall be designated as buffer zones, and shall be marked along the interior boundary of the buffer zone by durable and easily recognized markers.

Section 4. Blasting Signs. Blasting signs shall be posted in accordance with the requirements of the Kentucky Division of Mines and Minerals.

Section 5. Topsoil Markers.

(1) If applicable, stockpiles and other areas where topsoil or other plant growth material are segregated, shall be marked.

(2) If soil horizons are removed and stored separately, each soil horizon stockpile shall have a separate and appropriately marked sign.

(3) Placement and quantity of markers shall be sufficient to clearly define the stockpiles.

(4) Markers shall remain in place until the material is removed.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028 authorizes the Environmental and Public Protection 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 provisions concerning signs and markers for noncoal mineral operations.
History: 405 KAR 005:036. 30 Ky.R. 2430; eff. 8-26-2004; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:040 Access roads and haul roads {#sec-405-kar-5-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:040}

Section 1. General.

(1) Each mineral permittee shall design, construct, utilize, and maintain roads and restore the area to meet the requirements of this administrative regulation and to control or minimize erosion and siltation, air and water pollution, and to prevent damage to public or private property.

(2) To the extent possible using the best technology currently available, roads shall not cause damage to fish, wildlife, and related environmental values and shall not cause additional contributions of suspended solids to streamflow or to run-off outside the permit area. Any additional contributions shall not be in excess of limitations of state or federal law.

(3) The design of roads shall be certified by a qualified registered professional engineer as being in accordance with specifications of this administrative regulation, except to the extent that alternative specifications are used. Alternative specifications may be used only after approval by the cabinet upon a demonstration by a qualified registered professional engineer that they will result in performance, with regard to safety, stability and environmental protection, equal to or better than, that resulting from roads complying with the specifications of this administrative regulation.

(4) Use of a preexisting private road, or any portion thereof by the mineral operator requires:

(a) That the road be kept open and in a condition that local traffic can use it without damage to their means of transportation.

(b) That if any disturbance by the mineral operator makes the road impassable, a detour of comparable usability shall be provided.

(5) No part of any road shall be located in the channel of an intermittent or perennial stream unless specifically approved by the cabinet for stream crossings.

(6) Stream fords are prohibited unless they are specifically approved by the cabinet as temporary routes during periods of construction. The fords shall not adversely affect stream sedimentation or fish, wildlife, and related environmental values. All other stream crossings shall be made using bridges, culverts, or other structures designed, constructed, and maintained to meet the requirements of Section 4 of this administrative regulation.

(7) Access roads, haul roads, and any yard areas or parking areas shall be maintained with proper surface materials to prevent erosion.

(8) The deposition of mud and other debris on public roads shall be minimized to the extent possible in order to prevent public nuisance.

Section 2. Specifications for Access and Haul Roads.

(1) The grade of an access road shall be such that:

(a) There shall be no more than 400 feet of grade exceeding ten (10) percent.

(b) The maximum grade shall not exceed fifteen (15) percent for 300 feet.

(d) All grades referred to in this subsection shall be subject to a tolerance of two (2) percent grade.

(2) Appropriate drainage control shall be provided for access and haul roads conforming to the following stipulations:

(a) A ditch shall be provided on both sides of a throughcut, and on the inside shoulder of a cut-fill section, with ditch relief cross drains being spaced according to grade.

(b) Water shall be intercepted before reaching a switch back or large fill and be led off.

(d) Ditch relief structures shall be installed, where possible, according to Appendix A of this administrative regulation which represents spacing in terms of percent of ditch line grade on the basis of 100 square inch openings per culvert.

(3) Cut slopes shall not be steeper than specifically authorized by the cabinet, and shall not be steeper than 1v:1.5H in unconsolidated materials or 1v:0.25h in rock, except that steeper slopes may be specifically authorized by the cabinet if geotechnical analysis demonstrates that a minimum safety factor of one and five-tenths (1.5) can be maintained.

(4) Embankment slopes shall not be steeper than 1v:2H, except where the embankment material is a minimum of eighty-five (85) percent rock. Slopes with eighty-five (85) percent rock shall not be steeper than 1v:1.35H.

(5) If a berm is produced in skimming the road, it shall not be left on the ditch side.

(6) Access roads shall not be surfaced with any acid-forming or toxic-forming material, the surface being that part of the road exposed to the elements of wind, rain, and sun.

(7) No bridges, culverts, stream crossings, or similar structures, shall be removed until the reclamation is completed.

(8) When an access road is to be abandoned, surface drainage and vegetative cover shall be provided to minimize erosion.

(a) Regardless of the future use of the road, adequate surface drainage shall be provided.

(b) A road will be considered to be abandoned when the mineral operator has ceased to use the road and has not turned the road over to another party for his use.

(c) When adequate surface drainage and vegetative cover has been provided, the mineral operator shall be relieved of all further obligations in maintaining the road.

(9) All measurements referred to in this section, including grade limitations, shall be subject to a tolerance of plus or minus five (5) percent of measurement.

(10) Typical section showing width of road cut, fill slopes, surface material of road, a center line profile with grades, pipe location and size, shall be included in the permit application.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part, requires the cabinet to promulgate administrative regulations pertaining to noncoal mineral operations to minimize their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth general provisions and specifications for constructing haul roads and access roads for noncoal mineral operations.
History: 405 KAR 005:040. 21 Ky.R. 753; 1130; 2108; eff. 2-22-1995; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:042 Blasting {#sec-405-kar-5-042 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:042}

Section 1. General.

(1) If blasting is planned for the proposed mineral operation, it shall be conducted in accordance with the laws and administrative regulations of the Kentucky Division of Mines and Minerals, 805 KAR Chapter 4.

(2) If flyrock falls outside the permit boundary, or if property damage occurs outside of the permit boundary, as a result of flyrock, then appropriate mitigative measures shall be taken, as determined by the cabinet based upon the nature and scope of the environmental and property damage.

Section 2. Blasting Signs. Warning signs shall be posted if explosives are to be used, in accordance with 405 KAR 5:036E.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028 authorizes the Environmental and Public Protection 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 requirements for the use of explosives by noncoal mineral operations.
History: 405 KAR 005:042. 30 Ky.R. 2431; eff. 8-26-2004; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:048 Protection of environmental resources {#sec-405-kar-5-048 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:048}

Section 1. Environmental Resources.

(1) A mineral permittee shall, to the extent possible, minimize disturbances and adverse impacts to fish and wildlife and related environmental values.

(2) No mineral operation shall be conducted which will result in the adverse effects to or modification of a wetland without the appropriate permits and approvals.

(3) No mineral operation shall be conducted within the boundaries of the National Park System; the National Wildlife Refuge System; the National System of Trails; the National Wilderness Preservation System; national recreational areas; state nature preserves dedicated pursuant to KRS 146.410; or state wildlife management areas; the Wild and Scenic Rivers System, including study rivers designated under section 5(a), of the Wild and Scenic Rivers Act (16 U.S.C. Sec. 1276(a)), or rivers or study river corridors as established in any guidelines pursuant to that Act; rivers and their corridors designated under the state Wild Rivers Act pursuant to KRS Chapter 146; or similar public lands.

(4) No land within 100 feet of an intermittent or perennial stream shall be disturbed by mineral operations, except if appropriate permits or approvals have been obtained.

(5) The cabinet shall prohibit a mineral operation on a natural hazard land if necessary to protect the health, safety, or welfare of people, property, or the environment.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028 authorizes the Environmental and Public Protection 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 requirements for the protection of fish and wildlife values and other environmental features.
History: 405 KAR 005:048. 30 Ky.R. 2433; eff. 8-26-2004; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:050 Protection of surface water quantity and quality {#sec-405-kar-5-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:050}

Section 1. General.

(1) Appropriate protection measures shall be designed, constructed, and maintained to minimize disturbance of surface water quantity and quality within the permit area, to prevent material damage to surface water quantity and quality outside the permit area, and to prevent additional contributions of sediment to streamflow or to run-off outside the permit area.

(2) Protection measures include practices carried out within and adjacent to the disturbed area.

(3) The scale of downstream practices shall reflect the degree to which successful techniques are applied at the sources of the disturbance.

(4) Surface water quantity and quality protection measures consist of the utilization of proper mining, reclamation methods, and incorporated practices, singly or in combination, including but not limited to:

(a) Disturbing the smallest practicable area at any one time during the mineral operation through progressive backfilling and grading, and timely revegetation;

(b) Shaping the backfill material to encourage a reduction in the velocity of run-off, to an extent which is consistent with the requirements of this chapter;

(d) Utilization of straw dikes, riprap, check dams, mulches, vegetative buffer zones, dugout ponds, silt fence, and other measures that reduce overland flow velocity, reduce run-off volume, and entrap sediment;

(e) Utilization of other appropriate treatment facilities such as chemical treatment for acid and metals; and

(f) Sedimentation ponds.

(5) Maximum utilization shall be made of on site sediment control practices.

(6) All surface drainage from the disturbed area, including disturbed areas which have been graded, seeded, or planted, shall pass through sediment control structures and, where necessary, other treatment facilities that have been approved by the cabinet, before leaving the permit area.

(a) For the purpose of this administrative regulation, disturbed area shall not include those areas in which only diversion ditches, sedimentation ponds, or roads are installed in accordance with 405 KAR Chapter 5 and the upstream area is not otherwise disturbed by the mineral permittee.

(b) Sediment control structures shall be retained until untreated drainage from the disturbed area has met the water quality requirements of the administrative regulations of the Division of Water and the revegetation requirements of 405 KAR 5:070 have been met.

(c) All sedimentation ponds required shall be constructed in accordance with this chapter and placed in appropriate locations prior to any mining in the affected drainage area in order to control sedimentation or otherwise treat water.

(d) Sedimentation ponds may be used individually or in series, and shall be located as near as possible to the disturbed area, and where possible, out of major stream courses.

(7) No mineral operation shall violate any state or federal water quality standard or the effluent limitations established in the administrative regulations of the Division of Water.

(8) The cabinet may require other actions, above and beyond the requirements of this administrative regulation, as necessary to ensure that surface waters are protected.

Section 2. Pond Design Specifications. At a minimum, all sedimentation ponds shall be designed to meet the requirements for impoundments in 405 KAR 5:055 and the following additional specifications:

(1) Sedimentation ponds shall be designed, constructed, and maintained to prevent short circuiting.

(2) Sedimentation ponds shall be designed so that discharges from the pond shall meet the effluent limitations of the administrative regulations of the Division of Water.

(3) The elevation of the crest of the emergency spillway shall be a minimum of one and one-half (1.5) feet above the crest of the principal spillway.

Section 3. Sediment Removal.

(1) Sediment shall be removed from sedimentation ponds so as to assure maximum sediment removal efficiency and attainment and maintenance of effluent limitations of the administrative regulations of the Division of Water or as directed by the cabinet.

(2) Sediment removal shall be done in a manner that minimizes adverse effects on surface waters due to its chemical and physical characteristics, on infiltration, on vegetation, and on surface and groundwater quality.

(3) Sediment that has been removed from sedimentation ponds and that meets the requirements for topsoil may be redistributed over graded areas.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part, requires the cabinet to promulgate administrative regulations pertaining to noncoal mineral operations to minimize their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth general provisions and specifications for the protection of surface waters from noncoal mineral operations.
History: 405 KAR 005:050. 21 Ky.R. 756; 1131; 2109; eff. 2-22-1995; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:055 Permanent and temporary impoundments {#sec-405-kar-5-055 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:055}

Section 1. Requirements for Permanent and Temporary Impoundments.

(1) Design certification. The design of impoundments shall be certified by a qualified registered professional engineer as designed to meet the requirements of this administrative regulation using current, prudent engineering practices, and any design criteria established by the cabinet. The qualified registered professional engineer shall be experienced in the design and construction of impoundments.

(2) All impoundments classified as Class B-moderate hazard or Class C-high hazard, and all permanent "dams," as defined in KRS 151.100, shall comply with 401 KAR 4:030. Criteria for the hazard classifications are established by 401 KAR 4:030.

(3) Stability.

(a)

Permanent and temporary "dams" (as defined in KRS 151.100), permanent and temporary Class B and C impoundments, and all permanent impoundments, shall have a minimum static safety factor of 1.5 for the normal pool with steady seepage saturation conditions, and a seismic safety factor of at least one and two-tenths (1.2).
Impoundments not included in subparagraph 1 of this paragraph shall have a minimum static safety factor of one and three-tenths (1.3) for the normal pool with steady state seepage saturation conditions.

(b) The constructed height of the dam shall be increased a minimum of five (5) percent over the design height to allow for settlement, unless it has been demonstrated to the cabinet that the material used and the design will ensure against all settlement.

(c) The minimum top width of the embankment shall not be less than the quotient of (H+35)/5, where H is the height, in feet, of the embankment as measured from the upstream toe of the embankment to the top of the embankment.

(d) Unless the cabinet approves steeper slopes, based upon a satisfactory demonstration of stability by the applicant acceptable to the cabinet, the sum of the upstream and downstream side slopes (h/v) of the settled embankment shall not be less than 5h:1v, with neither slope steeper than 2h:1v. Slopes shall be designed to be stable in all cases, even if flatter side slopes are required.

(e) The fill material shall be free of sod, large roots, other large vegetative matter, and frozen soil.

(f) The placing and spreading of fill material shall be started at the lowest point of the foundation. The fill shall be brought up in horizontal layers of such thickness as is required to facilitate compaction and meet the design requirement of this administrative regulation. Compaction shall be conducted as specified in the design approved by the cabinet.

(g) The entire embankment including the surrounding areas disturbed by construction shall be stabilized with respect to erosion by a vegetative cover or other means immediately after the embankment is completed. The active upstream face of the embankment where water will be impounded may be riprapped or otherwise stabilized and no vegetative cover is needed. Areas in which the vegetation is not successful or where rills and gullies develop shall be repaired and revegetated.

(h) Slope protection shall be provided to protect against surface erosion at the site and protect against sudden drawdown.

(i) Measures shall be taken to control seepage in order to ensure stability of the embankment.

(4) Freeboard. Impoundments shall have adequate freeboard to resist overtopping by waves and by sudden increases in storage volume. The minimum elevation at the top of the settled embankment shall be one (1.0) foot above the water surface in the impoundment with the emergency spillway flowing at design depth. For embankments subject to settlement, this one (1.0) foot minimum elevation requirement shall apply at all times, including the period after settlement. Freeboard requirements shall not apply to incised impoundments which have no embankment or levee.

(5) Foundation.

(a)

Foundation and abutments for the impounding structure shall be designed to be stable under all conditions of construction and operation of the impoundment and shall be designed based on adequate and accurate information on the foundation conditions.
For permanent and temporary "dams" (as defined in KRS 151.100), for permanent and temporary Class B and C impoundments, and for all permanent impoundments, foundation investigations as well as any necessary laboratory testing of materials shall be performed in order to determine the design requirements for foundation and embankment stability.
Where an approved temporary impoundment has been constructed and the mineral permittee subsequently seeks a permit revision to upgrade the structure to a permanent impoundment, the cabinet may waive the foundation investigations and laboratory testing required by subparagraph 2 of this paragraph under the following circumstances:

a. The structure has been recently verified as being a Class A-low hazard structure;

b. The structure does not meet the definition of the term "dam," as defined at KRS 151.100; and

c. The cabinet approves conservative, assumed values for the strength parameters used in the stability analyses to ensure compliance with subsection (3)(a) of this section.

(b) All vegetative and organic materials shall be removed and foundations excavated and prepared to resist failure. Cutoff trenches shall be installed if necessary to ensure stability.

(6) Spillways. Impoundments shall include a combination of principal and emergency spillways which shall be designed and constructed to safely pass the design precipitation event specified in this subsection, unless the cabinet requires a larger event. Twenty-four (24) hours may be used in lieu of six (6) hours for the duration of a design precipitation event specified in this subsection.

(a) Class A impoundments that are not "dams" (as defined in KRS 151.100) shall pass the:

Twenty-five (25) year, six (6) hour precipitation event if it is a temporary impoundment; or
The fifty (50) year, six (6) hour precipitation event if it is a permanent impoundment.

(b) Temporary Class A impoundments that are "dams" (as defined in KRS 151.100) shall pass the 100 year, six (6) hour precipitation event.

(c) Permanent and temporary Class B and C impoundments and all permanent "dams" (as defined in KRS 151.100) shall comply with the criteria established in 401 KAR 4:030.

(d) Emergency spillway grades and allowable velocities shall be approved by the cabinet.

(7) Single spillway. Class A impoundments that are not "dams" (as defined in KRS 151.100) may use a single spillway if the spillway:

(a) Is an open channel of nonerodible construction and capable of maintaining sustained flows; and

(b) Is not earth or grass lined.

(8) Temporary impoundments existing on the effective date of this administrative regulation that are, and continue to be, Class A hazard, shall not be required to be modified to meet the requirements of subsections (1) through (7) of this section unless the cabinet, based upon an inspection, determines that modification to meet some or all of these requirements is necessary to protect the public health or safety or to protect the environment.

(9) Emergency procedures. If any examination or inspection of an impoundment discloses that a potential hazard exists, the person who examined the impoundment shall immediately notify the department and the Kentucky Division of Water, or if these agencies cannot be reached, Disaster and Emergency Services. The mineral permittee shall immediately implement emergency procedures formulated for public protection and remedial action. If adequate emergency procedures cannot be formulated or implemented by the mineral permittee, the cabinet shall be notified, and the cabinet shall notify the appropriate agencies that other emergency procedures are required to protect the public.

Section 2. Additional Requirements for Permanent Impoundments.

(1) General.

(a) The retention of a permanent impoundment is subject to the approval of the cabinet.

(b) Permanent pit impoundments with no embankment are encouraged.

(c) It shall be demonstrated to the cabinet's satisfaction that adequate sources of water are available to maintain the water level of the impoundment at a reasonable elevation at all times. Adequate sources of water supply for impoundments may be from springs, drainage areas of sufficient size, groundwater percolation, a flowing stream, or any combination of these sources.

(d) In accordance with 405 KAR 5:030, if a permanent impoundment is proposed, an affidavit from the landowner approving the impoundment and acknowledging that the mineral permittee will have no continuing maintenance responsibility after permit release, is required, except for final pit impoundments with no embankment.

(e) Permanent impoundments shall be demonstrated to be a part of the approved postmining land use.

(2) If a permanent impoundment is proposed, the following stipulations shall be met:

(a) Adequate means of access, such as roads or ramps, are left or provided to the water impoundment.

(b) A terrace shall be provided above, but in near proximity to, the high water level of the permanent impoundment, except on the portion of the impoundment comprising the highwall of the pit.

(c) Any spoil above the terrace shall be graded until it is rounded off and blended into the area contour above the terrace.

(d) All spoil piles adjoining access roads to permanent impoundments shall be graded to minimize erosion and blend into the surrounding area.

(e) The angle of the slope from the roadbed to the top of the spoil may be greater than the surrounding area if adequate drainage measures are taken to prevent erosion of the slope, including but not limited to, terracing and vegetation.

(f) The roadbed shall be adequately drained and culverts shall be provided so as to prevent it from being eroded.

(g) The area above the highwall on any permanent water impoundment shall be protected by a landscape barrier or a fence approved by the Department for Natural Resources.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part, requires the cabinet to promulgate administrative regulations pertaining to noncoal mineral operations to minimize their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth provisions for impoundments.
History: 405 KAR 005:055. 21 Ky.R. 758; 1132; 2110; eff. 2-22-1995; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:062 Handling of materials {#sec-405-kar-5-062 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:062}

Section 1. Backfilling and Grading.

(1) General statement concerning backfilling. All overburden that is not placed in approved excess spoil fills shall be placed back in existing pits and graded.

(2) Surface drainage.

(a) Natural drainways in the area affected by the mineral operation shall be kept free from overburden except if approved by the cabinet in accordance with 405 KAR 5:032.

(b) If, during the mineral operation, it is necessary to cross a natural drainway, proper drainage structures shall be provided.

(c) Sufficient water retarding structures, silt control structures, and diversion ditches, constructed as approved by the cabinet in accordance with 405 KAR 5:032, shall be placed to control all runoff from the mineral operation before the work begins. These structures shall be located as near as possible to the disturbed area, and out-of-perennial streams unless approved by the cabinet in accordance with 405 KAR 5:032.

(d) Any water accumulating on a bench or similar area where the drainage is off the mineral operation shall be pumped or siphoned into sediment control structures.

(e) The moving of overburden to release accumulated water shall be prohibited unless a drainway can be constructed with the approval of the cabinet. The cabinet may make this approval if the cabinet finds that the release is necessary to prevent the development of instability, and the release will not cause additional environmental harm.

(3) If the mineral operation produces a highwall, at least one (1) suitable access shall be provided to lands above the highwall within each 4,000 feet of distance along the highwall. In addition, access shall be provided as necessary so no landowner is prevented access to his property.

(4) Spoil or overburden removed shall be placed, graded, and stabilized so that soil erosion, surface disturbance, and stream sedimentation will be minimized.

(5) All grading shall be kept current and shall be completed before equipment pertinent to the mineral operation is moved from the site unless approved, in writing, by the cabinet's inspector, after making a finding that removal of the equipment is not in conflict with the approved method of operation and will not impede compliance with contemporaneous reclamation requirements.

(6) If conditions develop in the mineral operation so that the approved reclamation plan and backfilling and grading plan cannot be carried out as planned, modifications of the plan shall be submitted by the mineral operator to the cabinet for approval in accordance with 405 KAR 5:032.

Section 2. Waste Materials.

(1) The conduct of mining and the handling of refuse and other mining wastes shall be done in such a way as to reduce adverse effects in the area and to protect the public and adjoining landowners from damage to their lands, to streams, and to other property.

(2) Upon final abandonment, all buildings, structures, metal, lumber, and other refuse resulting from the mineral operation shall be removed or buried.

(3) Spoil, overburden, refuse, or any other mining waste shall not be placed on a previous or potential slide area. The placement of the material shall be subject to approval by the cabinet in accordance with 405 KAR 5:032.

(4) Unless specifically authorized by the cabinet by a permit from the Division of Waste Management, household wastes or other wastes, generated off site, shall not be placed within the pit area or within the permit boundary of a mineral operation.

Section 3. Acid forming or Toxic Forming Materials.

(1) All acid or toxic forming material shall be buried with not less than four (4) feet of clean fill as cover.

(2) Measures shall be taken to prevent stream and soil pollution, such as placement of acid or toxic forming materials outside of natural drainways.

(3) The mineral permittee shall conduct testing of materials as directed by the cabinet in order to prevent stream and soil pollution.

Section 4. Topsoil Handling.

(1) General requirements.

(a) If practicable, all topsoil or subsoil to be saved for redistribution, specified under subsection (2) of this section, shall be removed as a separate layer or layers from the area to be disturbed and shall be segregated from other materials.

(b) If practicable, after removal, these materials shall be redistributed immediately to backfill areas, or otherwise stockpiled.

(2) Soil removal. For areas where topsoil is to be removed and saved as a plant growth medium:

(a) Vegetative cover that would interfere with the salvage or use of the topsoil shall be cleared. Herbaceous vegetation and other small plant forms which will add to the organic constituency of the topsoil, but do not interfere with topsoil salvaging, may be retained along with the topsoil.

(b) All the topsoil present in the area to be disturbed shall be removed and segregated for redistribution.

If less than six (6) inches of topsoil is present, then at least the upper six (6) inches of soil shall be removed and segregated for redistribution, except where less than six (6) inches of soil is present.
If less than six (6) inches of soil is present, whatever soil and subsoil is available, at the area to be disturbed, shall be removed and segregated for redistribution.

(3) Soil storage.

(a) Soil materials removed pursuant to subsection (2) of this section shall be stockpiled only if it is impractical to promptly redistribute the materials on regraded areas.

(b) Stockpiled soil shall be selectively placed on stable areas, outside of water drainways and shall:

Be protected from wind and water erosion through the seeding of quick cover grasses or legumes and application of mulch;
Be seeded with perennial grasses and legumes if the soil is to be stockpiled for more than two (2) years; and
Be protected from unnecessary compaction.

(4) Soil amendments.

(a) Lime shall be applied to redistributed topsoil in an amount to obtain a buffer pH of six and four-tenths (6.4).

(b) Adequate fertilizer shall be applied to redistributed topsoil. At a minimum, 100 pounds of nitrogen (N) and 100 pounds of phosphate (P205) shall be applied per acre.

(c) Areas where topsoil has been redistributed shall be seeded with quick cover and permanent grasses and legumes as soon as possible during first normal period of favorable planting.

(d) Suitable mulch or other soil stabilizing practices shall be used in addition to temporary cover on all regraded and topsoiled areas to control erosion, promote germination of seeds, and increase the moisture retention capacity of the soil. The cabinet may, on a case-by-case basis, waive the requirement for mulch if the cabinet finds, based on seasonal, soil, and slope factors, that the temporary vegetative cover will achieve proper erosion control until a permanent cover is established, except that no waiver shall be granted for any area having a slope greater than ten (10) percent.

Section 5. Disposal of Excess Spoil.

(1) General. Excess spoil shall be placed in designated disposal areas, within a permit area, in a controlled manner to:

(a) Minimize the adverse effects of leachate and surface water runoff from the fill on surface and ground water;

(b) Ensure mass stability and prevent mass movement during and after construction; and

(c) Ensure that the final fill is suitable for reclamation and revegetation compatible with the natural surroundings and the approved postmining land use.

(2) Location. If possible, placement in pits shall be the preferred location for disposal. Otherwise the disposal area shall be located on the most moderately sloping and naturally stable area available among those upon which, in the judgment of the cabinet, spoil could be placed in compliance with all applicable requirements of 405 KAR Chapter 5, and shall be placed, if possible, upon or above a natural terrace, bench, or berm if this placement provides additional stability and prevents mass movement.

(3) Placement in pits. On a case-by-case basis, the cabinet may waive all or part of the requirements of subsections (4) through (7) of this section if spoil is placed in pits where there is no potential for mass movement or substantial erosion.

(4) Design certification.

(a) The fill and appurtenant structures shall be designed using current, prudent engineering practices by a qualified, registered professional engineer experienced in the design of earth and rock fills who shall certify the design of the fill and appurtenant structures.

(b) The fill shall be designed and constructed to attain a minimum long- term static safety factor of one and five-tenths (1.5). The foundation and abutments of the fill and all other features shall be sufficient to ensure stability of the fill and appurtenant structures under all stages and conditions of construction.

(5) Stability.

(a) Stability analyses shall be performed by a qualified, registered professional engineer.

The cabinet shall approve parameters used in the stability analyses if the parameters are based upon adequate investigations of foundation and fill material, including field reconnaissance; subsurface investigations; and data obtained from laboratory analyses of the materials.
The cabinet may approve parameters based upon data obtained from sources other than laboratory analyses of the materials if that data would yield results which ensure compliance with the stability requirements of this administrative regulation.
The analyses of foundation conditions shall take into consideration the effect of underground mine workings, if any exist in the area, upon the stability of the fill and appurtenant structures.

(b) If the toe of the fill rests on an area which has a natural land slope in excess of 2.8h:1v (thirty-six (36) percent) or a lesser slope as may be designated by the cabinet based on local conditions, keyway cuts (excavations to stable bedrock), rock toe buttresses, or a combination of these shall be constructed to ensure stability of the fill.

(6) Placement of excess spoil.

(a) Vegetative and organic materials shall be removed, either progressively or in a single set of operations, from the disposal area prior to placement of the excess spoil. Topsoil shall be removed, segregated, and stored and redistributed in accordance with Section 4 of this administrative regulation. If approved by the cabinet in accordance with 405 KAR 5:032, vegetative material may be used as mulch or may be included in the topsoil to control erosion, promote growth of vegetation, or increase the moisture retention of the soil.

(b) Excess spoil shall be transported and placed in a controlled manner in horizontal lifts of a thickness approved by the cabinet to ensure stability based on site specific conditions; concurrently compacted as necessary to ensure mass stability and to prevent mass movement during and after construction; graded so that surface and subsurface drainage is compatible with the natural surroundings; and covered with topsoil or substitute material.

(c)

The final configuration of the fill shall be suitable for the approved postmining land use.
The top of the fill shall be graded no steeper than 20h:1v (five (5) percent) toward properly designed drainage channels in natural ground along the periphery of the fill. Surface runoff from the top surface of the fill shall not be allowed to flow over the outslope of the fill. The outslope of the fill shall not exceed 2h:1v (fifty (50) percent) or a lesser slope as may be required by the cabinet to ensure stability or minimize erosion, in accordance with 405 KAR 5:032.
Terraces may be constructed on the outslope of the fill. Terrace benches shall be graded with a three (3) to ten (10) percent slope toward the fill. The outslope between terrace benches shall not exceed 2h:1v (fifty (50) percent) or a lesser slope as may be required by the cabinet to ensure stability or minimize erosion, in accordance with 405 KAR 5:032E. Runoff shall be collected by a ditch along the intersection of each terrace bench and the outslope. This ditch shall route runoff to stabilized diversion channels and shall have a maximum slope that is no greater than 20h:1v (five (5) percent) unless a steeper slope is necessary for permanent roads in conjunction with an approved postmining land use and a steeper slope will not adversely affect the stability of the fill or result in excessive erosion.

(d) Impoundments shall not be allowed on the fill.

(7) Drainage control.

(a) The fill design shall include diversions and underdrains as necessary to control erosion, minimize water infiltration into the fill, and ensure stability except the cabinet may waive underdrain requirements for fills that are not hollowfills if it is demonstrated to the cabinet's satisfaction in the application that underdrains are not necessary because the disposal area does not contain any springs, manmade or natural drainways, or wet weather seeps and because seepage of water due to precipitation will not adversely affect the stability of the fill. Surface runoff from above the fill shall not be diverted through or under the fill.

(b) Surface water runoff from the area above the fill shall be diverted away from the fill and into stabilized diversion channels. Surface runoff from the fill surface shall be diverted to stabilized channels off the fill. Diversions associated with excess spoil fills and appurtenant structures shall be designed and maintained to safely pass the peak runoff from a ten (10) year, twenty-four (24) hour precipitation event, except that diversions associated with hollowfills and where flow from an intermittent or perennial stream is diverted the design event shall be the 100 year, twenty-four (24) hour precipitation event.

(c) Underdrains shall be constructed of durable, nonacid forming, and nontoxic forming rock; shall be free of coal, clay, and nondurable material; and shall be designed and constructed using current, prudent engineering practices. The underdrain system shall be protected from piping and contamination by a filter system designed and constructed to ensure proper long-term functioning of the underdrain using current, prudent engineering practices. For hollowfills a subdrainage system for the fill shall be constructed in accordance with the following:

Be installed along the natural drainways;
Extend from the toe to the head of the fill; and
Contain lateral drains to each area of potential drainage or seepage.

(d) The cabinet may approve diversions located on fill material if necessary due to topography and configuration of the fill, if the cabinet determines that there will be no adverse impacts to the excess spoil fill, the public health and safety, and the environment.

(8) Surface area stabilization. During and after construction of the fill and appurtenant structures, slope protection shall be provided to minimize surface erosion at the site of excess spoil disposal and at the locations of appurtenant structures. All disturbed areas, including diversion channels that are not riprapped or otherwise protected, shall be revegetated upon completion of construction.

Section 6. Additional performance standards for mineral operations on slopes of more than twenty (20) degrees.

(1) The mineral permittee shall prevent the following materials from being placed or allowed to remain on the downslope:

(a) Spoil;

(b) Waste materials, including waste mineral matter;

(d) Abandoned or disabled equipment.

(2) Nothing in this section shall prohibit the placement of material in road embankments located on the downslope, so long as the material used and embankment design comply with the requirements for roads and other transportation facilities in 405 KAR Chapter 5 and the material is moved and placed in a controlled manner.

(3) Woody materials shall not be buried in the backfilled area unless the cabinet determines that the proposed method for placing woody material within the backfill will not deteriorate the stable condition of the backfilled area. Woody materials may be chipped and distributed over the surface of the backfill as mulch, if special provision is made for their use and approved by the cabinet.

(4) Unlined or unprotected drainage channels shall not be constructed on backfills unless approved by the cabinet as stable and not subject to erosion.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028 authorizes the Environmental and Public Protection 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 requirements for backfilling and grading, handling of wastes, handling of acid or toxicforming materials, topsoil handling and conditioning, disposal of excess spoil, and additional performance standards for mineral operations on steep slopes.
History: 405 KAR 005:062. 30 Ky.R. 2432; 8-26-2004; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:065 Premining and postmining land use {#sec-405-kar-5-065 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:065}

Section 1. General. All areas within the permit boundary to be reclaimed shall be restored:

(1) To conditions capable of supporting the uses which those areas supported prior to the mineral operation; or

(2) To conditions capable of supporting a reasonable, alternative land use, as approved by the cabinet under Section (2) of this administrative regulation.

Section 2. Land Use Selection.

(1) The following is a list of land use categories to be applied under this administrative regulation. These land uses are defined under 405 KAR 5:001, as is the definition of land use:

(a) Cropland;

(b) Fish and wildlife;

(d) Industrial/commercial;

(e) Pastureland;

(f) Recreation;

(g) Residential; and

(h) Permanent water impoundment.

(2) The premining land use selection, required under 405 KAR 5:030, shall be derived from the list of land uses established under subsection (1) of this section.

(3) The postmining land use selection, required under 405 KAR 5:030, shall be derived from the list of land uses established under subsection (1) of this section. The premining land use shall be strongly considered and be given the highest priority for the postmining land use selection.

(4) A land use for fish and wildlife shall be characterized by an intermixed combination of habitat types or vegetative types, such as a mix of forest land or woodlots, shrub/scrub areas, grass/legume areas, and wetland or open water areas, arranged in a manner as to maximize edge effect. In addition, the following specifications shall apply to a postmining land use selection for fish and wildlife:

(a) At least thirty (30) percent of the revegetated area shall be planted with trees and shrubs. The plantings may be arranged in clumps, blocks, or strips intermingled within open grass/legume areas.

(b) Plant species which provide special benefit as food or cover for wildlife shall be a central criteria for selection of plant species for revegetation.

(5) Various wildlife enhancement features and techniques may be allowed, if approved by the cabinet, for the fish and wildlife postmining land use, as well as the other land uses, such as:

(a) Brush piles, not to exceed an aerial coverage of 2,800 square feet;

(b) Windrowed brush;

(d) Permanent impoundments and other open water areas;

(e) Food plots of small grains or similar crops; and

(f) Bird houses or similar structures.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part, requires the cabinet to promulgate administrative regulations pertaining to noncoal mineral operations to minimize their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth provisions concerning land use decisions for noncoal mineral operations.
History: 405 KAR 005:065. 21 Ky.R. 763; 1136; eff. 2-22-1995; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:070 Revegetation {#sec-405-kar-5-070 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:070}

Section 1. General.

(1) Each mineral permittee shall establish on all lands disturbed during the course of the mineral operation, a condition which will result in a permanent vegetative cover, effective in controlling erosion, and which supports the approved postmining land use.

(2) Plant species for revegetation shall be selected on the basis of:

(a) Their ability to achieve the approved postmining land use;

(b) Their ability to control erosion, both in the short term and in the future, but which will allow for plant succession for areas to be returned to forest land or fish and wildlife habitat;

(d) Their benefit to wildlife.

(3) Regraded areas shall be seeded or planted as soon as possible; however, the seeding or planting shall be conducted during the appropriate time of year for the plant materials selected in accordance with accepted agricultural or reforestation practices.

(4) Experimental seeding or stocking of trees or shrubs, not typically used, may be allowed if no more than twenty (20) percent of the permit area is seeded or planted with these species; except that, any species used shall meet the requirements of subsection (1) of this section, shall not be in violation of applicable state and federal introduced species statutes, and are not considered poisonous or noxious.

(5) Roads shall be seeded to legumes and perennial grasses only, unless the cabinet determines that the roadway will not contribute to significant off site damage to the public, the environment, or adjacent property owners if left unreclaimed.

(6) If conditions warrant, the cabinet may allow exceptions to this administrative regulation, if the exceptions are consistent with 405 KAR Chapter 5.

Section 2. Soil Stabilization and Amendments. Liming, fertilization, mulching and related practices shall be conducted in accordance with 405 KAR 5:060, Section 4. If there is a problem in reestablishing vegetation, soil tests shall be performed to determine necessary remedial measures.

Section 3. Revegetation Success.

(1) Success of revegetation shall primarily be determined on the basis of ground cover, and if applicable, tree and shrub stocking.

(2) Ground cover.

(a) For establishing ground cover for the various postmining land uses, at least four (4) grass and legume species shall be seeded, one (1) of which may be a quick cover species. At least one (1) permanent legume species, in addition to two (2) or more permanent grasses, shall be required for the pastureland postmining land use.

(b) At least one (1) quick cover grass or legume species shall be seeded. However, annual grasses and small grains shall be considered only as a tool in establishing temporary vegetative cover for restoration, and shall not be included in the evaluation of revegetation success.

(c) Ground cover shall be at least ninety (90) percent for areas where the postmining land use is pastureland, or where the area will be seeded to grasses and legumes under the cropland land use.

(d) Ground cover shall be at least eighty (80) percent for all other postmining land uses.

(e) For the selection of ground cover species, the mineral permittee shall consider, but not necessarily be limited to, the seeding mixtures listed in Appendix A of this administrative regulation.

(3) Tree and shrub stocking.

(a) For areas to be reforested, at least 300 trees or shrubs shall be present per acre, including volunteers, during the success evaluation required under Section 4 of this administrative regulation; except, where a greater stocking rate is required for shrub plantings for wildlife pursuant to paragraph (d) of this subsection. A lesser stocking rate may be approved by the cabinet if the tree or shrub planting is only for cosmetic purposes or for similar reasons.

(b) At least four (4) species of trees or shrubs shall be stocked for areas to be reforested with each of the four (4) principal species comprising at least ten (10) percent of the total stocking, of which none shall exceed fifty (50) percent of the total stocking. A lesser diversity may be approved by the cabinet if tree or shrub planting is only for cosmetic purposes or for similar reasons. Only one (1) species of tree is required if a commercial pine plantation is established.

(c) Of the four (4) or more species referenced in paragraph (b) of this subsection, at least one (1) conifer species and at least one (1) hardwood or mast producing species shall be selected for the forest land and fish and wildlife land uses. For forestland, at least fifty (50) percent of the woody plants shall be trees.

(d) For areas within the permit boundary where shrubs, and no trees, are stocked for wildlife a stocking rate of 600 stems per acre shall be required.

(e) If used, black locust (Robina psuedoacacia) shall not exceed twenty-five (25) percent of the woody plant mixture; and European black alder (Alnus glutinosa) shall not exceed fifty (50) percent of the total woody plant mixture.

(f) Black locust seed shall be scarified, except if used in fall and spring seeding.

(g) All trees and shrubs counted for success shall be alive and healthy.

(h) Only canopy forming trees shall be stocked for a postmining land use of forest land.

(i) Tree and shrub stocking for wildlife may include border plantings, clump plantings, or strip plantings.

(j) For areas to be reforested, the use of competitive ground cover species such as KY 31 tall fescue (Festuca arundinaria), crown vetch (Coronilla varia), alfalfa (Medigo spp.), and the nonprostate, highway variety of sericea lespedeza (Lespedeza cuneata) shall be limited.

(k) The area above the highwall on any water impoundment shall be planted with trees in order to provide a protective barrier and screen.

(l) On very stony areas that cannot be hand planted without difficulty, direct seeding of woody species will be permitted; otherwise, woody species shall be hand planted, except for black locust.

(4) The cabinet may approve a seeding mixture other than those established in Appendix A of this administrative regulation if the mineral permittee submits adequate justification to the cabinet.

(5) Bare areas within the revegetated area shall not exceed one-fourth (.25) acre in size.

(6) Where a seam or stratum of solid rock at the surface makes revegetation impractical, none shall be required.

Section 4. Inspection and Reporting Procedures.

(1) When planting is completed a planting report shall be filed with the cabinet. The division's planting report form shall be used for compiling this information.

(2) Inspection and evaluation for vegetation success shall be made during appropriate seasons in order to determine if satisfactory vegetation has been established. In no instance shall this inspection be made until after the completion of two (2) growing seasons. The appropriate report forms shall be used for compiling this information.

(3) The following form is hereby incorporated by reference: Noncoal Planting Report, NCR-18, February 2017.

(4) This form may be reviewed or obtained at the Department for Natural Resources, 300 Sower Boulevard, Frankfort, KY 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part, requires the cabinet to promulgate administrative regulations pertaining to noncoal mineral operations to minimize their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth provisions for the reestablishment of vegetation on noncoal mineral operations.
History: 21 Ky.R. 765; 1136; 2114; eff. 2-22-1995; TAm eff. 8-9-2007; TAm eff. 7-6-2016; TAm eff. 6-27-2017; Crt eff. 7-3-2018.

405 KAR 5:078 Contemporaneous reclamation {#sec-405-kar-5-078 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:078}

Section 1. Contemporaneous Reclamation.

(1) On lands where the method of mineral operation produces a bench or where the surface mining is done on the contour, grading shall be kept current with the removal of the mineral, which shall mean within ninety (90) days following the mineral removal. Where special conditions warrant, these requirements may be modified by the cabinet.

(2) On lands where the method of mineral operation is of the quarry type that produces a deep pit, the final reclamation of the site shall follow completion of mining within 180 days.

(3) On lands where the method of mineral operation is of the underground type, the final reclamation of the site shall follow completion of mining within 180 days.

Section 2. Incorporation by Reference.

(1) "Request for Noncoal Reclamation Deferral, NCR-15", March, 1990, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Natural Resources, 300 Sower Boulevard, Frankfort, KY 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028 authorizes the Environmental and Public Protection 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 performance standards for timing of reclamation.
History: 405 KAR 005:078. 30 Ky.R. 2437; eff. 8-26-2004; TAm eff. 7-6-2016; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:082 Reclamation bond {#sec-405-kar-5-082 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:082}

Section 1. Applicability. A reclamation bond shall be required if the cabinet:

(1) Finds the mineral operation to be temporary; or

(2) Finds that the applicant previously has not had a mineral operation in the Commonwealth of Kentucky with a compliance record acceptable to the cabinet.

Section 2. Bond Amount.

(1) If a reclamation bond is required pursuant to Section 1 of this administrative regulation, the mineral operator shall file with the cabinet a bond payable to the Commonwealth of Kentucky with surety satisfactory to the cabinet in the penal sum of not less than $100 nor more than $500 for each acre or fraction of an acre, with a minimum bond of $2,000, for the permitted area.

(2) A mineral permittee may request reduction of the required reclamation bond amount at any time if the mineral permittee's method of mineral operation or other circumstances will reduce the maximum estimated cost to the cabinet to complete the reclamation responsibilities and if the mineral operation complies with all applicable statutes and administrative regulations and the permit plan.

Section 3. Type of Payment.

(1) Reclamation bond shall be either a surety bond or a cash bond which may include:

(a) Certificates of deposit;

(b) Letters of credit;

(d) A combination of these bonding methods.

(2) If a surety bond is filed, it shall be accompanied by a power of attorney affidavit allowing the surety to act on behalf of the mineral permittee with respect to reclamation.

Section 4. Bond Forfeiture.

(1) The cabinet shall have the authority to forfeit a bond if the mineral operation is not conducted in accordance with the statutes, administrative regulations, and the permit plan as approved by the cabinet.

(2)

(a) The entire bond may be forfeited and deposited in an appropriate account for use in the payment of all costs associated with the reclamation and restoration of the permit area to which the forfeited bond applies.

(b) If forfeiture of the bond is required, the cabinet shall send written notification by certified mail, return receipt requested, to the mineral permittee and the surety holding the bond of the cabinet's decision. This notification shall:

Explain the reasons for the forfeiture;
Indicate the amount to be forfeited; and
Advise the mineral permittee and those responsible for the bond of their right to a hearing.

Section 5. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Noncoal Performance Bond, NCR-9", February 2017;

(b) "Letter of Credit, NCR-10", January 2017;

(d) "Request for Bond Release, NCR-12", February 2017.

History

RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028 authorizes the Environmental and Public Protection 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 requirements for when bond is required, bond amount, type of payment, bond forfeiture, and bond forms, for noncoal mineral operations.
History: 405 KAR 005:082. 30 Ky.R. 2438; eff. 8-26-2004; TAm eff. 7-6-2016; TAm eff. 6-27-2017; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

405 KAR 5:085 Enforcement {#sec-405-kar-5-085 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:085}

Section 1. General.

(1) The secretary of the cabinet may designate authorized representatives to perform duties pursuant to the administrative regulations contained in 405 KAR Chapter 5.

(2) Unless the secretary has made a written order contrary to the terms of this subsection, personnel authorized by the Commissioner of the Department for Natural Resources shall be the authorized representatives of the cabinet for the purposes of this administrative regulation.

Section 2. Inspections.

(1) General. In accordance with the provisions of 405 KAR Chapter 5, the cabinet shall conduct or cause to be conducted inspections, studies, investigations, or other determinations to obtain information and evidence to ensure that mineral operations shall be conducted in accordance with the provisions of all applicable statutes and administrative regulations, and all terms and conditions of the permit.

(2) Right of entry and access. Authorized employees of the cabinet shall have unrestricted right of entry to all parts of the mineral operation for any purpose pursuant to 405 KAR Chapter 5, including making inspections and delivering documents or information of any kind to persons associated with the mineral operation.

(3) Timing and frequency of inspections.

(a) The cabinet shall conduct periodic inspections of all mineral operations.

(b) Inspections shall ordinarily be conducted at irregular and unscheduled times during normal workdays, but may be conducted at night or on weekends or holidays if necessary to properly monitor compliance.

(c) The cabinet shall not have an obligation to give prior notice that an inspection will be conducted or to obtain a warrant.

(4) Citizens request for inspections.

(a) Any citizen may request that the cabinet conduct an inspection by furnishing to the cabinet a signed, written statement, or an oral report followed by a signed, written statement:

Giving the cabinet reason to believe that a condition or practice exists which is in violation of KRS Chapter 350, 405 KAR Chapter 5, or permit conditions; and
Listing a telephone number and address where the person can be contacted.

(b) The identity of any person supplying information to the cabinet relating to a possible violation or imminent danger or harm shall remain confidential with the cabinet if requested by that person, unless disclosure is required by law.

If an inspection was not conducted, an explanation of the reason or reasons why; or
If an inspection was conducted, a description of the enforcement action taken, if any, or an explanation of why enforcement action was not taken.

Section 3. Notice of Noncompliance and Order for Remedial Measures.

(1) All authorized representative of the cabinet shall issue a notice of noncompliance and order for remedial measures if, on the basis of an inspection, he finds a violation of KRS Chapter 350, 405 KAR Chapter 5, a permit condition, or another applicable requirement.

(2) A notice of noncompliance and order for remedial measures issued pursuant to this section shall be in writing and shall be signed by the authorized employee who issued it. The notice shall contain the following information:

(a) The nature of the violation;

(b) The remedial measures required, if any, which may include accomplishment of interim steps, if appropriate;

(c) A reasonable time table for remedial action, if any, which may include a time table for accomplishment of interim steps, if appropriate; and

(d) An adequate description of the portion of the mineral operation to which the notice applies.

(3) An authorized employee may modify an order for remedial measures for good cause, including correction of errors, changes in responsible parties, changes to remedial measures, and changes in abatement dates.

(4) Extensions and modifications of notices for remedial action. An authorized employee may extend the time set for remedial action or for accomplishment of an interim step, if the failure to meet the time previously set was not caused by lack of diligence on the part of the person to whom the notice of noncompliance and order for remedial measures was issued.

(a)

The total time for remedial action under the notice, including all extensions, shall not exceed ninety (90) days from the date of issuance of the notice except upon a showing by the mineral permittee that it is not feasible to abate the violation within ninety (90) calendar days due to one (1) or more of the circumstances established in paragraph (b) of this subsection.
An abatement period exceeding ninety (90) days pursuant to this subsection shall not be granted for a situation in which the mineral permittee's failure to abate within ninety (90) days has been caused by a lack of diligence or intentional delay by the mineral permittee in completing the remedial action required.

(b) The following circumstances may qualify mineral operations for an abatement period of more than ninety (90) days:

The mineral permittee of the ongoing mineral operation has timely applied for and diligently pursued a permit renewal or other necessary approval of designs or plans, but the permit or approval, for reasons not within the control of the mineral permittee, has not been and will not be issued prior to ninety (90) days after the valid permit or approval expires or is required;
There is a valid judicial order precluding abatement within ninety (90) days to which the mineral permittee has diligently pursued all rights of appeal and to which he has no other effective legal remedy;
The mineral permittee cannot abate within ninety (90) days due to a labor strike;
Weather conditions exist that would clearly cause more environmental harm than abatement measures would prevent; or
The action required would violate safety standards established by KRS Chapter 350, 405 KAR Chapter 5, or under the "Mine Safety and Health Act," 30 U.S.C. 801 through 965 or 30 C.F.R. Sections 1.1 through 104.5.

(c) If an abatement period in excess of ninety (90) days is approved by the cabinet, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public and the environment.

(d)

If any of the conditions in paragraph (b) of this subsection exist, the mineral permittee may request the authorized representative of the cabinet to grant an abatement period exceeding ninety (90) days.
The authorized representative of the cabinet shall not grant an abatement period without the approval of the Director of the Division of Mine Reclamation and Enforcement or his designee, and the period granted shall not exceed the shortest possible time necessary to abate the violation. The mineral permittee shall have the burden of establishing by clear and convincing proof that he is entitled to an extension under the provisions of this subsection.
In determining whether or not to grant an abatement period exceeding ninety (90) days, the authorized representative of the cabinet may consider relevant written or oral information from the mineral permittee and other sources.
The authorized representative of the cabinet shall promptly and fully document in the applicable file the recommendation for granting or denying the request and the reasons.
The authorized representative's immediate supervisor shall review this document before approving or disapproving the extended abatement period and shall promptly and fully document the reasons for his approval or disapproval in the applicable file.

(e) A determination made pursuant to paragraph (d) of this subsection shall be in writing and shall be subject to administrative and judicial review pursuant to 400 KAR 1:120.

(f) An extension granted pursuant to this subsection shall not exceed ninety (90) days in length. For a situation in which the condition or circumstance that prevented abatement within ninety (90) days exists at the expiration of the extension, the mineral permittee may request a further extension in accordance with the procedures of this subsection.

(5) Based upon the written recommendation of authorized representative of the cabinet who issued the notice or noncompliance and order for remedial measures, the director of the Division of Mine Reclamation and Enforcement may vacate a notice of noncompliance and order for remedial measures determined to be issued in error.

Section 4. Order for Cessation and Immediate Compliance.

(1) Issuance.

(a) If the person to whom a notice of noncompliance and order for remedial measures has been issued fails to comply with the terms of the notice within the time for remedial action established in the notice or as subsequently extended, an authorized representative of the cabinet shall immediately issue to the person an order for cessation and immediate compliance.

(b) An authorized representative of the cabinet shall immediately issue an order for cessation and immediate compliance if he finds, on the basis of an inspection, a condition or practice; a violation of KRS Chapter 350; a violation of 405 KAR Chapter 5; or a violation of a term or condition of the applicable permit that:

Creates an imminent danger to the health or safety of the public; or
Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources.

(c) An authorized representative of the cabinet shall immediately issue an order for cessation and immediate compliance if he finds, on the basis of an inspection, that mineral operations are being conducted by a person without a valid mineral operations permit for the activities in accordance with this chapter.

(2) Form and content.

(a) An order for cessation and immediate compliance shall be in writing and shall be signed by the authorized representative of the cabinet who issued it. The order shall establish with specificity:

The nature of the violation;
A reasonable description of the portions of the mineral operations to which it applies;
The remedial measures, if any, necessary to abate the violation in the most expeditious manner possible; and
The time established for abatement, if appropriate, including the time for complying with any interim steps.

(b) When the authorized representative of the cabinet issues an order for cessation and immediate compliance pursuant to subsection (1)(b) or (c) of this section, a notice of noncompliance and order for remedial measures shall also be issued.

(3) Effect.

(a)

The order for cessation and immediate compliance shall require the cessation of all mineral operations or the portions or operations thereof relevant to the condition, practice, or violation covered by the order.
The order shall require the person to whom it is issued to take affirmative steps necessary to abate the condition, practice, or violation in the most expeditious manner possible. The order may require the use of existing or additional personnel and equipment.

(b) The order shall remain in effect until the condition, practice, or violation has been abated; until the order is vacated, modified, or terminated in writing pursuant to subsection (4) of this section; or until it is vacated, modified, or terminated by a hearing officer.

(c) Reclamation operations and other activities intended to protect public health and safety and the environment shall continue during the period of an order unless the order states that the reclamation operations and other activities shall cease.

(4) Modification, extension, vacation, and termination.

(a) An authorized representative of the cabinet may, by written notice, modify or terminate an order for cessation and immediate compliance issued under this section for good cause and may extend the time for abatement if the failure to abate within the time previously established was not caused by lack of diligence on the part of the person to whom it was issued.

(b) The secretary or his authorized representative shall terminate an order for cessation and immediate compliance, by written notice to the person to whom the order was issued, if it is determined that all conditions, practices, and violations listed in the order have been abated. Termination shall not affect the right of the cabinet to assess civil penalties for those violations or to impose other applicable sanctions as authorized by law.

(c) Based upon the written recommendations of the regional administrator and the authorized representative of the cabinet who issued the order for cessation and immediate compliance, the Director of the Division of Mine Reclamation and Enforcement may vacate an order for cessation and immediate compliance determined to have been issued in error.

(5) Within sixty (60) days after issuing an order for cessation and immediate compliance, the cabinet shall notify in writing a person who has been identified as owning or controlling the mineral permittee, that the cessation order was issued and that the person has been identified as an owner or controller.

Section 5. Notice of Inspection of Noncompliance.

(1) Issuance. If an authorized representative of the cabinet issues a notice of noncompliance and order for remedial measures or an order for cessation and immediate compliance, the authorized representative shall reinspect the area affected by the mineral operations on or soon after the date established in the notice or order for completion of remedial measures. When this reinspection occurs, the authorized representative of the cabinet shall issue a notice of inspection of noncompliance.

(2) Form and content.

(a) The notice of inspection of noncompliance shall establish if:

The remedial measures have been completed, and the notice or order is therefore terminated;
The remedial measures have not been completed, but the notice or order is modified or extended for good cause; or
The remedial measures have not been completed.

(b) Following a determination that the remedial measures have not been completed, the cabinet shall:

For situations in which the inspection was a reinspection of a notice of noncompliance and order for remedial measures, issue an order for cessation and immediate compliance; and
For situations in which the inspection was a reinspection of an order for cessation and immediate compliance and if the order for cessation and immediate compliance has not been abated, initiate:

a. An administrative hearing for suspension or revocation of the permit or approval;

b. An administrative hearing for bond forfeiture; or

c. Administrative hearings for other appropriate relief, in accordance with KRS 350.990 or KRS 350.028.

Section 6. Service of Notices and Orders.

(1) A notice of noncompliance and order for remedial measures, an order for cessation and immediate compliance, and a notice of inspection of noncompliance shall be served on the person to whom it was issued or the person's designated agent promptly after issuance.

(2)

(a) Each notice or order shall be served to the person to whom the notice or order has been issued or to his designated agent for service, by:

Hand;
Electronic mail with electronically generated receipt;
Certified mail, return receipt requested; or
Registered mail.

(b) The notice or order shall also be served to the individual who, based upon reasonable inquiry by the authorized representative, appears to be in charge at the site of the mineral operations referred to in the notice or order. If the individual cannot be located at the site, a copy of the notice or order may be tendered to an individual at the site who appears to be an employee or agent of the person to whom the notice or order has been issued.

(c) Service, whether by electronic mail, hand, or standard mail, shall be complete upon tender of the notice or order and shall not be incomplete because of refusal to accept.

(d) For mineral operations, service by mail shall be addressed to the designated agent for service; to the electronic or permanent address of the mineral permittee as identified on the permit or in the application; or, if an address is unavailable for the mineral permittee in the application, to another address as is known to the cabinet. If a person cannot be found present at the site of the mineral operations, services by mail shall by itself be sufficient notice.

(3) Designation by a person of an agent for service of notices and orders issued pursuant to this administrative regulation and notices of hearing issued pursuant to 400 KAR 1:120, shall be made a part of the applicable permit application. The person shall continue as agent for service of process until written revision of the permit is approved that designates another person as the agent.

(4) The cabinet may furnish copies of notices and orders to any person having an interest which is or may be adversely affected by the mineral operations and any person having an interest in the permit.

Section 7. Penalties. The cabinet may assess penalties pursuant to KRS 350.990.

History

RELATES TO: KRS 350.010(2), 350.130, 350.240, 350.300, 350.990
STATUTORY AUTHORITY: KRS 350.028, 350.029, 350.240, 350.300
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations pertaining to noncoal mineral operations to minimize their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation establishes provisions governing the issuance of the various notices and orders to be issued by authorized representatives of the cabinet.
History: 21 Ky.R. 770; 1139; 2116; eff. 2-22-1995; TAm eff. 8-9-2007; 38 Ky.R. 662; 991; 1301; eff. 2-3-2012; TAm eff. 5-4-2018; Crt eff. 7-3-2018; Crt eff. 6-17-2025.

Chapter 7 General Provisions

405 KAR 7:001 Definitions for 405 KAR Chapter 7 {#sec-405-kar-7-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:001}

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;

(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:

Was designated as a public road pursuant to the laws of the jurisdiction in which it is located;
Is maintained with public funds and constructed in a manner similar to other public roads of the same classification within the jurisdiction; and
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:

The application; or
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:

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
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:

Creates an imminent danger to the health or safety of the public; or
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:

Is causing environmental harm; or
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.

History

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
STATUTORY AUTHORITY: KRS 350.028, 350.465, 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 under the permanent regulatory program. This administrative regulation establishes definitions for terms used in 405 KAR Chapter 7.
History: 405 KAR 007:001. 18 Ky.R. 2453; 2834; eff. 4-3-1992; 19 Ky.R. 460; 925; 1345; eff. 11-23-1992; TAm eff. 8-9-2007; 44 Ky.R. 580, 981, 1268; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 7:015 Documents incorporated by reference {#sec-405-kar-7-015 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:015}

Section 1. Reclamation Advisory Memoranda. The following Reclamation Advisory Memoranda (RAM) issued by the cabinet are incorporated herein by reference for the purposes of 405 KAR Chapters 7 through 24. Copies may be obtained from the cabinet. If there is a conflict between these documents on a particular item, the document of later date shall prevail.

(1) RAM No. 56, "Overlapping Permits," December 1, 1982.

(2) RAM No. 73, "Delayed Filing of Performance Bonds on Technically Acceptable Applications for Transitioning Permanent Program Permits," February 6, 1984.

(3) RAM No. 75, "Permanent Program Performance Standards Take Effect March 16, 1984 on Transitioning Operations," March 12, 1984.

(4) RAM No. 76, "Revision to RAM No. 73: Maximum Period of Bond Deferral Reduced from 5 Years to 3 Years," April 2, 1984.

(5) RAM No. 77, "Reinstatement of Small Operator Assistance," April 2, 1984.

(6) RAM No. 78, "Departmental Policies: Withdrawal and Maintenance of Mining Permit Applications," April 23, 1984.

Section 2. Technical Reclamation Memorandum. The following Technical Reclamation Memorandum (TRM) issued by the cabinet is incorporated herein by reference for the purposes of 405 KAR Chapters 7 through 24. Copies may be obtained from the department: TRM No. 1, "Existing Structures," October 22, 1982.

Section 3. Documents Referred to Within these Administrative Regulations. The following documents which are referred to within 405 KAR Chapters 7 through 24 are incorporated by reference for the purposes of 405 KAR Chapters 7 through 24.

(1) "Standard Methods for the Examination of Water and Wastewater," fourteenth edition, 1976. Prepared by American Public Health Association, American Water Works Association, and Water Pollution Control Federation. Copies may be obtained from American Public Health Association, 1015 Eighteenth Street NW, Washington, D.C. 20036.

(2) "Methods for Chemical Analysis of Water and Wastes," March 1979, U.S. Environmental Protection Agency. Copies may be obtained from U.S. Environmental Protection Agency, Environmental Monitoring and Support Laboratory, 26 W. St. Clair Street, Cincinnati, Ohio 45268.

(3) "Soil Taxonomy," Agriculture Handbook 436, 1975, U.S.D.A. - Soil Conservation Service. Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(4) "Soil Survey Manual," Agriculture Handbook No. 18, 1951, U.S. Department of Agriculture. Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(5) "ASTM STANDARD D388-77, Standard Specification for Classification of Coal by Rank," 1977, American Society for Testing and Materials. Copies may be obtained from American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103.

(6) ANSI S1.4-1971, "Specification for Sound Level Meters," 1971, American National Standards Institute, Inc. Copies may be obtained from the American National Standards Institute, Inc., 1430 Broadway, New York, NY.

(7) AASHTO T99-74, "Standard Methods of Test for the Moisture-Density Relations of Soils Using 5.5 lb. (2.5 Kg) Rammer and a twelve (12) in. (305 mm) Drop," 1974, American Association of State Highway and Transportation Officials. Copies may be obtained from American Association of State Highway and Transportation Officials, 444 N. Capitol Ave., Washington, D.C. 20001.

Section 4. Permit Application Review Procedures. The following Permit Application Review Procedures (PARP) issued by the cabinet are incorporated herein by reference for the purposes of 405 KAR Chapters 7 through 24. Copies may be obtained from the cabinet.

(1) PARP No. 2, "Lands within 100 feet, measured horizontally, of a cemetery," April 18, 1983.

(2) PARP No. 6, "Advertising Schedule Variance," July 29, 1983.

Section 5. Policy Memorandum. The following policy memorandum issued by the cabinet is incorporated herein by reference for the purposes of 405 KAR Chapters 7 through 24. Copies may be obtained from the cabinet. Departmental Policy Memorandum No. 81-003, "Conflict of Interest," June 19, 1981.

History

RELATES TO: KRS Chapter 350
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to adopt administrative regulations pertaining to surface coal mining and reclamation operations under the permanent regulatory program. This administrative regulation provides for incorporation by reference of documents referred to in these administrative regulations and other documents relied on by the cabinet in implementing the permanent regulatory program.
History: 405 KAR 007:015. 10 Ky.R. 1216; eff. 8-7-1984; 12 Ky.R. 569; eff. 12-10-1985; 15 Ky.R. 390; eff. 12-13-1988; 18 Ky.R. 341; eff. 12-17-1991; 21 Ky.R. 523; eff. 12-12-1994; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 7:030 Applicability {#sec-405-kar-7-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:030}

Section 1. Applicability. 405 KAR Chapters 7 through 24 apply to all coal exploration and surface coal mining and reclamation operations, except any surface coal mining and reclamation operations which, together with any related operation, affected an area of two (2) acres or less, which were conducted pursuant to a two (2) acre or less permit issued by the cabinet, which were commenced on or before June 5, 1987, and on which mining ceased on or before November 7, 1987, in which case the provisions of 405 KAR Chapter 26 and KRS 350.060(13) shall apply.

(1) For purposes of this administrative regulation, if a segment of a road is used for access or coal haulage by more than one (1) surface coal mining operation, the entire segment shall be included in the affected area of each of those operations; except that two (2) or more operations which are deemed related pursuant to subsection (2) of this section shall be considered as one (1) operation for the purposes of this subsection.

(2) Except as provided in subsection (3) of this section, surface coal mining operations shall be deemed related if they occur within twelve (12) months of each other, are physically related, and are under common ownership or control.

(a) Operations shall be deemed physically related if drainage from both operations flows into the same watershed at or before a point within five (5) aerial miles of both operations.

(b) Operations shall be deemed under common ownership or control if they are owned or controlled, directly or indirectly, by or on behalf of:

The same person;
Two (2) or more persons, one (1) of whom controls, is under common control with, or is controlled by the other; or
Members of the same family and their relatives, unless it is established that there is no direct or indirect business relationship between or among them.

(c) For purposes of this subsection, control exists if one has ownership of fifty (50) percent or more of the voting shares of, or general partnership in, an entity; any relationship which gives one (1) person the ability in fact or in law to direct what the other does; or any relationship which gives one (1) person express or implied authority to determine the manner in which coal at different sites will be mined, handled, sold or disposed of.

(3) Notwithstanding the provisions of subsection (2) of this section, the cabinet may determine, in accordance with the procedures applicable to requests for determination of exemption pursuant to Section 3 of this administrative regulation, that two (2) or more surface coal mining operations shall not be deemed related if, considering the history and circumstances relating to the coal, its location, the operations at the sites in question, all related operations and all persons mentioned in subsection (2)(b) of this section, the cabinet concludes in writing that the operations are not of the type which SMCRA was intended to regulate and that there is no intention on the part of the operations or persons to evade the requirements of KRS Chapter 350 or 405 KAR Chapters 7 through 24.

(4) The exemption provided by this section applies only to operations with an affected area of less than two (2) acres where coal is being extracted for commercial purposes and to surface coal mining operations within that affected area incidental to those operations.

Section 2. Coal Extraction Incidental to Government Financed Construction.

(1)

(a) Coal extraction which is an incidental part of government-financed construction is exempt from KRS Chapter 350 and 405 KAR Chapters 7 through 24, except subsection (2) of this section shall apply.

(b) Any person who conducts or intends to conduct coal extraction which does not satisfy paragraph (a) of this subsection shall not proceed until a permit has been obtained from the cabinet.

(c) Reclamation of abandoned mined lands funded under Title IV of SMCRA shall be deemed government-financed construction.

(2) Information to be maintained on site. Any person extracting coal incident to government-financed highway or other construction who extracts more than 250 tons of coal or affects more than two (2) acres shall maintain, on the site of the extraction operation and available for inspection, documents which show:

(a) A description of the construction project;

(b) The exact location of the construction, right-of-way or the boundaries of the area which will be directly affected by the construction; and

(c) The government agency which is providing the financing and the kind and amount of public financing, including the percentage of the entire construction costs represented by the government financing.

Section 3. Exemptions.

(1) Exemptions from 405 KAR Chapters 7 through 24 shall be recognized for the following:

(a) The extraction of coal by a landowner of fifty (50) tons or less within twelve (12) successive calendar months for his or her own noncommercial use from land owned or leased by him or her. Noncommercial use does not include the extraction of coal by one (1) unit of an integrated company or other business or nonprofit entity which uses the coal in its own manufacturing or power plants;

(b) The extraction of or intent to extract twenty-five (25) tons of coal or less by any person by within twelve (12) successive calendar months;

(c) The extraction of coal as an incidental part of federal, state or local government-financed highway or other construction; and

(d) The extraction of coal incidental to the extraction of other minerals if coal does not exceed sixteen and two-thirds (16 2/3) percent of the tonnage of coal and other minerals removed for purposes of commercial use or sale in accordance with 405 KAR 7:035.

(2) The cabinet may on its own initiative and shall, within a reasonable time of a request from any person who intends to extract coal pursuant to subsection (1)(a) through (c) of this section, make a written determination whether the operation is exempt from 405 KAR Chapters 7 through 24. The cabinet shall give reasonable notice of the request to interested persons. Prior to the time a determination is made, any person may submit, and the cabinet shall consider, any written information relevant to the determination. A person requesting that an operation be declared exempt shall have the burden of establishing the exemption.

(3) If a written determination of exemption pursuant to subsection (1)(a) through (c) of this section is reversed through subsequent administrative or judicial action, any person who, in good faith, has made a complete and accurate request for an exemption and relied upon the determination shall not be cited for violations which occurred prior to the date of the reversal. This subsection shall not apply to two (2) acre permits.

(4) Exemptions pursuant to subsection (1)(d) of this section shall be subject to 405 KAR 7:035.

Section 4. Termination and Reassertion of Jurisdiction.

(1) Beginning November 1, 1992, the jurisdiction of the cabinet under 405 KAR Chapters 7-24 over the reclaimed site of a completed surface coal mining and reclamation operation, or increment thereof, or coal exploration operation, shall terminate when:

(a) The cabinet has determined in writing that all requirements imposed under 405 KAR Chapters 7-24 and KRS Chapter 350 have been successfully completed; or

(b) If a performance bond was required, the cabinet has made a final decision in accordance with 405 KAR 10:040 to release the performance bond fully. For the purposes of this section, the cabinet's decision to release the performance bond shall not be final until the time to file administrative and judicial appeals has expired and all appeals have been resolved.

(2) If jurisdiction was terminated under subsection (1) of this section, the cabinet shall reassert jurisdiction under 405 KAR Chapters 7-24 over the site if it is demonstrated that the bond release decision or written determination referred to in subsection (1) of this section was based upon fraud, collusion, or misrepresentation of a material fact.

(3) If the cabinet prior to November 1, 1992, terminated jurisdiction under 405 KAR Chapters 7-24 over the reclaimed site of a completed surface coal mining and reclamation operation, or increment thereof, or coal exploration operation, the cabinet shall reassert jurisdiction over the site if it is demonstrated that the bond release decision or other determination that led to the termination of jurisdiction was based upon fraud, collusion, or misrepresentation of a material fact.

History

RELATES TO: KRS 350.010, 350.028, 350.057, 350.060, 350.151, 350.465, 30 C.F.R. Parts 700.11, 707.11-.12, 730-733, 735, 917, 30 U.S.C. 1253, 1255, 1278, 1291
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.465, 30 C.F.R. Parts 700.11, 707.11-.12, 730-733, 735, 917, 30 U.S.C. 1253, 1255, 1278, 1291
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations. This administrative regulation designates 405 KAR Chapters 7 through 24 as applicable to all coal exploration and surface coal mining and reclamation operations, and specifies those activities to which 405 KAR Chapters 7 through 24 do not apply. This administrative regulation reflects the jurisdiction of the cabinet over coal exploration and surface coal mining and reclamation operations and sets forth certain nonjurisdictional activities.
History: 405 KAR 007:030. 8 Ky.R. 1465; eff. 2-2-1983; 10 Ky.R. 788; eff. 4-23-1984; 11 Ky.R. 576; eff. 10-9-1984; 15 Ky.R. 402; eff. 12-13-1988; 18 Ky.R. 353; eff. 11-26-1991; 19 Ky.R. 464; eff. 11-9-1992; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 7:035 Exemption for coal extraction incidental to the extraction of other minerals {#sec-405-kar-7-035 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:035}

Section 1. Measurement and Reporting Period.

(1) The beginning of the cumulative measurement period shall be:

(a) For mining areas where extraction of coal or other minerals commenced on or after August 3, 1977, the date extraction of coal or other minerals commenced at that mining area; and

(b) For mining areas where coal or other minerals were extracted prior to August 3, 1977, the operator shall select and consistently use one (1) of the following, subject to cabinet approval: the date extraction of coal or other minerals commenced at that mining area or August 3, 1977.

(2) The end of the cumulative measurement period and the end of the twelve (12) month period (for annual reporting purposes pursuant to Section 9 of this administrative regulation) shall be:

(a) For mining areas where extraction of coal or other minerals commenced on or after the effective date of this administrative regulation, the last day of the calendar quarter during which coal extraction commenced, and each anniversary of that day thereafter; and

(b) For mining areas where coal or other minerals were extracted prior to the effective date of this administrative regulation, December 31, 1992 and each anniversary of that day thereafter.

Section 2. Application Requirements and Procedures.

(1)

(a) Any person who plans to commence or continue coal extraction after the effective date of this administrative regulation, in reliance on the incidental mining exemption, shall file a complete application for exemption with the cabinet for each mining area.

(b) Following the effective date of this administrative regulation, a person shall not commence coal extraction based upon the exemption until the cabinet approves the application for exemption, except as provided in subsection (5)(c) of this section.

(2) Existing operations. Any person who has commenced coal extraction at a mining area, prior to the effective date of this administrative regulation, in reliance upon the incidental mining exemption, may continue mining operations for sixty (60) days after the effective date of this administrative regulation. Coal extraction shall not continue after this sixty (60) day period unless that person files an administratively complete application for exemption with the cabinet. If an administratively complete application is filed within sixty (60) days, the person may continue extracting coal in reliance on the exemption beyond the sixty (60) day period until the cabinet makes an administrative decision on the application.

(3) Additional information. The cabinet shall notify the applicant if the application for exemption is incomplete and may at any time require submittal of additional information.

(4) Public comment period. Following publication of the newspaper notice required by Section 3(9) of this administrative regulation, the cabinet shall provide a period of no less than thirty (30) days during which any person having an interest that is or may be adversely affected by a decision on the application may submit written comments or objections.

(5) Exemption determination.

(a) No later than ninety (90) days after filing of an administratively complete application, the cabinet shall make a written determination whether, and under what conditions, the persons claiming the exemption are exempt under this administrative regulation, and shall notify the applicant and persons submitting comments on the application of the determination and the basis for the determination.

(b) The determination of exemption shall be based upon information contained in the application and any other information available to the cabinet at that time.

(c) If the cabinet fails to provide an applicant with the determination specified in paragraph (a) of this subsection, an applicant who has not begun may commence coal extraction pending a determination on the application unless the cabinet issues an interim finding, together with reasons therefore, that the applicant shall not begin coal extraction.

(6) Administrative review.

(a) In accordance with the procedures established under 400 KAR 1:110, Section 9, within thirty (30) days of the notification of a determination under subsection (5) of this section, any person adversely affected by the determination may request a formal hearing to review the determination.

(b) A request for formal hearing filed under 400 KAR 1:110, Section 9 shall not suspend the effect of a determination under subsection (5) of this section.

Section 3. Contents of Application for Exemption. An application for exemption shall include at a minimum:

(1) The name and address of the applicant;

(2) A list of the minerals sought to be extracted;

(3) Estimates of annual production of coal and the other minerals within each mining area over the anticipated life of the mining operation;

(4) Estimated annual revenues to be derived from bona fide sales of coal and other minerals to be extracted within the mining area;

(5) If coal or the other minerals are to be used rather than sold, estimated annual fair market values at the time of projected use of the coal and other minerals to be extracted from the mining area;

(6) The basis for all annual production, revenue, and fair market value estimates;

(7) A description, including county, city if within municipal boundaries, and boundaries of the land, of sufficient certainty that the mining areas can be located and distinguished from other mining areas;

(8) An estimate to the nearest acre of the number of acres that will compose the mining area over the anticipated life of the mining operation;

(9) Evidence of publication, in the newspaper of largest bona fide circulation (according to the definition in KRS 424.110 to 424.120) in the county of the mining area, of a public notice that an application for exemption has been filed with the cabinet. The public notice shall identify the persons claiming the exemption and shall contain a description of the proposed operation and its locality sufficient for interested persons to identify the operation;

(10) Representative stratigraphic cross-section(s) based on test borings or other information identifying and showing:

(a) The relative position, approximate thickness, and density of the coal and each other mineral to be extracted for commercial use or sale; and

(b) The relative position and thickness of any material, not classified as other minerals, that will also be extracted during the conduct of mining activities;

(11) A map of appropriate scale that clearly identifies the mining area;

(12) A general description of mining and mineral processing activities for the mining area;

(13) A summary of sale commitments and agreements, if any, that the applicant has received for future delivery of other minerals to be extracted from the mining area, or a description of potential markets for the other minerals;

(14) If the other minerals are to be commercially used by the applicant, a description specifying the use;

(15) For operations having extracted coal or other minerals prior to filing an application for exemption, in addition to the information required above, the following information:

(a) Any relevant documents the operator has received from the cabinet documenting the operation's exemption from the requirements of the SMCRA, KRS Chapter 350, and 405 KAR;

(b) The cumulative production of the coal and other minerals from the mining area; and

(16) Any other information pertinent to the qualification of the operation as exempt.

Section 4. Public Availability of Information.

(1) Except as provided in subsection (2) of this section, all information submitted to the cabinet under this administrative regulation shall be made immediately available for public inspection and copying at the department's regional office with jurisdiction over coal mining in the locality of the subject exempt operation, until at least three (3) years after expiration of the period during which the subject mining area is active.

(2) The cabinet may keep information submitted to the cabinet under this administrative regulation confidential if the person submitting it requests in writing, at the time of submission, that it be kept confidential and if the information concerns trade secrets or is privileged commercial or financial information of the persons intending to conduct operations under this administrative regulation.

(3) Information requested to be held as confidential under subsection (2) of this section shall not be made publicly available until after notice and opportunity to be heard is afforded persons both seeking and opposing disclosure of the information.

Section 5. Requirements for Exemption.

(1) Activities are exempt from the requirements of SMCRA, KRS Chapter 350, and 405 KAR (excluding this administrative regulation) if all of the following are satisfied:

(a) The cumulative production of coal extracted from the mining area does not exceed sixteen and two-thirds (16 2/3) percent of the total cumulative production of coal and other minerals removed for purposes of bona fide sale or reasonable commercial use, determined annually.

(b) The coal is produced from one (1) or more seams lying above the deepest stratum from which other minerals are extracted for purposes of bona fide sale or reasonable commercial use, or from a seam immediately below this deepest stratum.

(c) The cumulative revenue derived from the coal extracted from the mining area does not exceed fifty (50) percent of the total cumulative revenue derived from the coal and other minerals removed for purposes of bona fide sale or reasonable commercial use, determined annually. If the coal extracted or the minerals removed are used by the operator or transferred to a related entity for use instead of being sold in a bona fide sale, then the fair market value of the coal or other minerals shall be calculated at the time of use or transfer and shall be considered rather than revenue.

(2) Persons that are seeking or have obtained an exemption under this administrative regulation from the requirements of SMCRA, KRS Chapter 350, and 405 KAR Chapters 7 through 24 (excluding this administrative regulation) shall comply with the following:

(a) Each other mineral upon which an exemption under this administrative regulation is based shall be a commercially valuable mineral for which a market exists or which is mined in bona fide anticipation that a market will exist for the mineral in the reasonably foreseeable future, not to exceed twelve (12) months from the end of the current period for which cumulative production is calculated. A legally binding agreement for the future sale of other minerals shall be sufficient to demonstrate this standard.

(b) If either coal or other minerals are transferred or sold by the operator to a related entity for its use or sale, the transaction shall be made for legitimate business purposes.

Section 6. Conditions of Exemption and Right of Inspection and Entry.

(1) A person conducting activities covered by this administrative regulation shall:

(a) Maintain on-site, or at other locations available to authorized representatives of the cabinet and the Secretary of the U.S. Department of the Interior, information necessary to verify the exemption including, but not limited to, commercial use and sales information, extraction tonnages, and a copy of the exemption application and exemption approved by the cabinet;

(b) Notify the cabinet upon completion of the mining operations or permanent cessation of all coal extraction activities; and

(c) Conduct operations in accordance with the approved application or, if authorized to extract coal under Section 2(2) or (5)(c) of this administrative regulation prior to submittal or approval of an exemption application, in accordance with the standards of this administrative regulation.

(2) Authorized representatives of the cabinet and the Secretary of the U.S. Department of the Interior shall have the right to conduct inspections of operations claiming exemption under this administrative regulation.

(3) Each authorized representative of the cabinet and the Secretary of the U.S. Department of the Interior conducting an inspection under this administrative regulation shall:

(a) Have a right of entry to, upon, and through any mining and reclamation operations without advance notice or a search warrant, upon presentation of appropriate credentials;

(b) At reasonable times and without delay, have access to and copy any records relevant to the exemption; and

(c) Have a right to gather physical and photographic evidence to document conditions, practices, or violations at a site.

(4) No search warrant shall be required with respect to any activity under subsections (2) and (3) of this section, except that a search warrant may be required for entry into a building.

Section 7. Stockpiling of Minerals.

(1) Coal. Coal extracted and stockpiled may be excluded from the calculation of cumulative production until the time of its sale, transfer to a related entity, or use:

(a) Up to an amount equaling a twelve (12) month supply of the coal required for future sale, transfer, or use as calculated based upon the average annual sales, transfer, and use from the mining area over the two (2) preceding years; or

(b) For a mining area where coal has been extracted for a period of less than two (2) years, up to an amount that would represent a twelve (12) month supply of the coal required for future sales, transfer, or use as calculated based on the average amount of coal sold, transferred, or used each month.

(2) Other minerals.

(a) The cabinet shall disallow all or part of an operator's tonnages of stockpiled other minerals for purposes of meeting the requirements of this administrative regulation if the operator fails to maintain adequate and verifiable records of the mining area of origin or the disposition of stockpiles, or if the disposition of the stockpiles indicates the lack of commercial use or market for the minerals.

(b) The cabinet shall only allow an operator to utilize tonnages of stockpiled other minerals for purposes of meeting the requirements of this administrative regulation if:

The stockpiling is necessary to meet market conditions or is consistent with generally accepted industry practices; and
Except as provided in paragraph (c) of this subsection, the stockpiled other minerals do not exceed a twelve (12) month supply of the mineral required for future sales as approved by the cabinet on the basis of the exemption application.

(c) The cabinet may allow an operator to utilize tonnages of stockpiled other minerals beyond the twelve (12) month limit established in paragraph (b) of this subsection if the operator can demonstrate to the cabinet's satisfaction that the additional tonnage is required to meet future business obligations of the operator, such as may be demonstrated by a legally binding agreement for future delivery of the minerals.

(d) The cabinet may periodically revise the other mineral stockpile tonnage limits in accordance with the criteria established by paragraphs (b) and (c) of this subsection based on additional information available to the cabinet.

Section 8. Revocation and Enforcement.

(1) Cabinet responsibility. The cabinet shall conduct an annual compliance review of the mining area, utilizing:

(a) The annual report submitted pursuant to Section 9 of this administrative regulation;

(b) An on-site inspection; and

(2) If the cabinet has reason to believe that a specific mining area was not exempt under the provisions of this administrative regulation at the end of the previous reporting period, is not exempt, or will be unable to satisfy the exemption criteria at the end of the current reporting period, the cabinet shall notify the operator that the exemption may be revoked and the reason(s) therefor. The exemption shall be revoked unless the operator demonstrates to the cabinet within thirty (30) days that the mining area in question did meet and will continue to meet the criteria for exemption.

(3)

(a) If the cabinet finds that an operator has not demonstrated that activities conducted in the mining area qualify for the exemption, the cabinet shall revoke the exemption and immediately notify the operator and interveners. If a decision is made not to revoke an exemption, the cabinet shall immediately notify the operator and interveners.

(b) In accordance with the procedures established under 400 KAR 1:110, Section 9, within thirty (30) days of the notification of a decision whether to revoke an exemption, any person adversely affected by the decision may request a formal hearing to review the decision.

(c) A request for formal hearing filed under 400 KAR 1:110, Section 9 shall not suspend the effect of a decision whether to revoke an exemption.

(4) Direct enforcement.

(a) An operator mining in accordance with the terms of an approved exemption shall not be cited for violations of KRS Chapter 350 or 405 KAR Chapters 7 through 24 that occurred prior to the revocation of the exemption.

(b) An operator who does not conduct activities in accordance with the terms of an approved exemption and knows or ought to know that the activities are not in accordance with the approved exemption shall be subject to direct enforcement action for violations of KRS Chapter 350 and 405 KAR Chapters 7 through 24 that occur during the period of the activities.

(c) Upon revocation of an exemption or denial of an exemption application, an operator shall stop conducting surface coal mining operations until a permit is obtained, and shall comply with the reclamation standards of KRS Chapter 350 and 405 KAR Chapters 7 through 24 with regard to conditions, areas, and activities existing at the time of revocation or denial.

Section 9. Reporting Requirements.

(1)

(a) Following approval by the cabinet of an exemption for a mining area, the person receiving the exemption shall, for each mining area, file a written report annually with the cabinet containing the information specified in subsection (2) of this section.

(b) The report shall be filed no later than thirty (30) days after the end of the twelve (12) month period as determined in accordance with Section 1(2) of this administrative regulation.

Annual production of coal and other minerals and annual revenue derived from coal and other minerals during the preceding twelve (12) month period; and
The cumulative production of coal and other minerals and the cumulative revenue derived from coal and other minerals.

(2) For each period and mining area covered by the report, the report shall specify:

(a) The number of tons of extracted coal sold in bona fide sales and the total revenue derived from these sales;

(b) The number of tons of coal extracted and used or transferred by the operator or related entity and the estimated total fair market value of this coal;

(d) The number of tons of other commercially valuable minerals extracted and sold in bona fide sales and total revenue derived from these sales;

(e) The number of tons of other commercially valuable minerals extracted and used or transferred by the operator or related entity and the estimated total fair market value of these minerals; and

(f) The number of tons of other commercially valuable minerals removed and stockpiled by the operator.

History

RELATES TO: KRS 350.010, 350.028, 350.060, 350.151, 350.465, 30 C.F.R. Parts 702, 730-733, 735, 917, 30 U.S.C. 1253, 1255, 1291
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.465, 30 C.F.R. Parts 702, 730-733, 735, 917, 30 U.S.C. 1253, 1255, 1291
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate administrative regulations pertaining to surface coal mining and reclamation operations. KRS Chapter 350 also recognizes exemptions from regulation for certain types of operations. This administrative regulation recognizes a regulatory exemption for operations in which coal is extracted incidental to the extraction of other minerals. The administrative regulation sets forth application requirements and procedures for obtaining approval of these exemptions, requirements for public notice and disclosure of information concerning the exemption, standards for cabinet approval of the exemption, conditions for maintaining the exemption, rights of entry and inspection to the site for which the exemption was granted, and enforcement procedures and reporting requirements applicable to the exemption.
History: 18 Ky.R. 560; 1069; 1865; eff. 11-26-1991; TAm eff. 5-4-2018; Crt eff. 7-3-2018.

405 KAR 7:040 General obligations of operators and permittees {#sec-405-kar-7-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:040}

Section 1. General Requirements for Permits and Exploration Approvals.

(1) Requirement to obtain a permit. A person or operator shall not engage in surface coal mining and reclamation operations without first having obtained from the cabinet a valid permit covering the area of land to be affected.

(2) Requirement to obtain exploration approval. Subject to the provisions of 405 KAR 8:020, a person or operator shall not engage in coal exploration operations without first having:

(a) Filed a written notice of intention to explore; or

(b) Obtained written approval from the cabinet.

(3) Requirement to comply with permit or exploration approval. A permittee or person issued a coal exploration approval shall comply with all terms and conditions placed upon the permit or exploration approval by the cabinet and with all plans submitted as part of the application approved by the cabinet.

Section 2. Disposal of Materials. A person or operator engaged in surface coal mining and reclamation operations shall no throw, pile, dump, or permit the throwing, piling, dumping, or otherwise placing of any overburden, stones, rocks, coal, particles of coal, earth, soil, dirt, debris, trees, wood, logs, or any other materials or substances of any kind or nature beyond or outside of an area of land which is under permit and for which bond has been posted pursuant to KRS Chapter 350, nor place these materials herein described in such a way that normal erosion or slides brought about by natural physical changes will permit the materials to go beyond or outside of an area land which is under permit and for which bond has been posted pursuant to KRS Chapter 350.

Section 3. Unsafe Practices.

(1) A person or operator engaged in surface coal mining and reclamation operations shall not engage in any operations that result in a condition or constitute a practice that creates an imminent danger to the health or safety of the public.

(2) A person or operator engaged in surface coal mining and reclamation operations shall not engage in any operations which result in a condition or constitute a practice that causes, or can reasonably be expected to cause, significant, imminent environmental harm to land, air, or water resources.

(3)

(a) Upon development of any emergency conditions which threaten the life, health, or property of the public, the operator shall:

Immediately notify the persons whose life, health, or property are so threatened;
Take any and all reasonable actions to eliminate the conditions creating the emergency; and
Immediately provide notice of the emergency conditions to the cabinet, to local law enforcement officials, and to appropriate local government officials.

(b) Any emergency action taken by an operator pursuant to this subsection shall not relieve the operator of other obligations pursuant to 405 KAR Chapters 7 through 24 or of obligations under other applicable local, state, or federal laws and regulations.

Section 4. Hazard Classifications for Impoundments.

(1) For proposed new sedimentation ponds or other new impoundments, the responsible design engineer shall determine the structure hazard classification according to the classification descriptions. For structures classified (B) - moderate hazard or (C) - high hazard, the operator shall obtain a permit from the cabinet pursuant to KRS 151.250 and 405 KAR Chapters 7 through 24, prior to beginning construction.

(2) The following structure hazard classifications shall be established to permit the association of criteria with the damage that might result from a sudden major breach of the structure:

(a) Class (A), low hazard: This class shall include structures located:

Where failure would cause loss of the structure itself but little or no additional damage to other property.
Generally in rural or agricultural areas where failure may damage farm buildings other than residences, agricultural lands, or county roads.

(b) Class (B), moderate hazard: This class shall include structures located:

Where failure may cause significant damage to property and project operation, but loss of human life is not envisioned.
Generally in predominantly rural agricultural areas where failures may damage isolated homes, main highways or major railroads, or cause interruptions of use or service of relatively important public utilities.

This class shall include structures located where failure may cause loss of life, or serious damage to homes, industrial or commercial buildings, important public utilities, main highways or major railroads.
This classification shall be used if failure would cause probable loss of human life.

(3) The responsible engineer shall determine the classification of the structure after considering the characteristics of the valley below the site and probable future development. Establishment of minimum criteria shall not preclude provisions for greater safety, if the engineer determines that these provisions are necessary. Considerations other than those mentioned in the above classifications may require that the established minimum criteria be exceeded, if the cabinet determines that it is necessary for greater safety. A statement of the classification established by the responsible engineer shall be clearly shown on the first sheet of the design drawings.

(4) If structures are spaced so that the failure of an upper structure could endanger the safety of a lower structure, the possibility of a multiple failure shall be considered in assigning the structure classification of the upstream structure.

Section 5. Reports Required. The operator shall submit such reports, documentation, certifications, or other information as the cabinet may require, or as may be required by KRS Chapter 350 and 405 KAR Chapters 7 through 24.

Section 6. Coal Exploration.

(1) Any person conducting coal exploration shall either file a Notice of Intention to Explore or obtain approval of the cabinet as required by 405 KAR 8:020.

(2) The coal exploration performance standards in 405 KAR 20:010 shall apply to coal exploration that substantially disturbs the natural land surface.

Section 7. Compliance with 405 KAR Chapters 7 through 24 shall not relieve any person or operator from the obligation to comply with other applicable administrative regulations of the cabinet.

Section 8. The requirement to restore the approximate original contour of the land shall apply regardless of any reconstruction of any existing structure allowed.

Section 9. Certifications by Licensed Professional Engineers.

(1) A document required to be certified shall be rejected by the cabinet as incomplete if its accuracy is not so attested.

(2) Certification by a qualified licensed professional engineer as required by 405 KAR Chapters 7 - 24 means a good faith representation to the best of his or her knowledge and belief, based on adequate knowledge of the requirements of KRS Chapter 350 and 405 KAR Chapters 7 - 24, related experience, best professional judgment, accepted engineering practices and recognized professional standards, and standard practice as it relates to direct participation by the licensed professional engineer or supervision of the licensed professional engineer's employees or subordinates. This certification shall not be construed to constitute a warranty or guarantee.

(3) Certification of maps, plans, and drawings. If 405 KAR requires that maps, plans, and drawings be certified by a qualified licensed professional engineer, the licensed professional engineer shall certify:

(a) That the information or documentation contained in the map, plan, or drawing is correct as determined by accepted engineering practices; and

(b) That the map, plan or drawing includes all the information required by KRS Chapter 350 and 405 KAR Chapters 7 - 24.

(4) Certification of designs. Where 405 KAR Chapters 7 – 24 requires that a qualified licensed professional engineer design and certify a facility, he or she shall certify that:

(a) The design is in accordance with accepted engineering practices and recognized professional standards;

(b) The design complies with the design requirements of KRS Chapter 350 and 405 KAR Chapters 7 - 24; and

(c) Provided the facility is properly constructed, operated, and maintained, the design is adequate for the facility to meet the applicable performance standards of KRS Chapter 350 and 405 KAR Chapters 7 - 24 insofar as such performance can reasonably be predicted by accepted engineering practices.

(5) Certification of construction.

(a) Where 405 KAR Chapters 7 - 24 requires that a qualified licensed professional engineer certify that a facility was constructed in accordance with the design approved by the cabinet, he or she shall certify:

That adequate inspections were conducted by the qualified licensed professional engineer or by persons under his or her supervision;
That the construction was performed in accordance with accepted construction practices; and
Either that the facility was constructed in accordance with the design approved by the cabinet, or that the facility was constructed in accordance with the design approved by the cabinet except for certain minor deviations which will not adversely affect the performance of the facility nor render the facility in violation of KRS Chapter 350 and 405 KAR Chapters 7 - 24.

(b) Any minor deviations shall be described in the certification document and the effect of the deviations upon the performance of the facility shall be explained.

(6) Certification of maintenance. Where 405 KAR Chapters 7 - 24 requires that a qualified licensed professional engineer certify the maintenance of a structure, he or she shall certify that:

(a) An inspection of the structure was conducted by the licensed professional engineer or by a person under his or her supervision; and

(b) Based on that inspection, the licensed professional engineer has determined that the structure has been maintained as required by 405 KAR Chapters 7 - 24.

History

RELATES TO: KRS 350.050, 350.057, 350.060, 350.410, 350.450
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.057, 350.060, 350.090, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations pertaining to surface coal mining and reclamation operations. This administrative regulation sets forth the basic requirements and general obligations of operators and permittees. This administrative regulation prescribes certain methods of disposal of materials and other obligations of operators and permittees.
History: 8 Ky.R. 1469; eff. 1-6-1983; Crt eff. 7-3-2018; 46 Ky.R. 1318, 2246; eff. 5-5-2020.

405 KAR 7:050 Coal processing waste disposal sites {#sec-405-kar-7-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:050}

Section 1. Applicability. This administrative regulation shall apply to all coal processing waste disposal sites, such as dams, waste impoundments, or waste banks that were constructed or utilized after August 3, 1977, regardless of whether or not the sites are or have been under permit or bond under KRS Chapter 350.

Section 2. Reports.

(1) Operators or owners of coal processing waste disposal sites shall submit two (2) copies of the following to the cabinet regional office:

(a) All existing information currently available to the operator or owner, including complete design of the facility, stability analyses, and a description of the coal processing waste material at the site that includes moisture content and particle size gradation. This submittal shall also include copies of plans submitted to or approved by the Mine Safety and Health Administration (MSHA). If these plans include all of the information required by this paragraph, then submittal of copies of the plans shall suffice. If information required by this paragraph has already been submitted to the cabinet as a part of a permit application, the operator or owner shall notify the cabinet regional office in writing and shall not resubmit duplicate material.

(b) As-built drawings of the current phase of construction or of the completed facility, as applicable, including a map showing the location of the facility.

(2)

(a) Analyses and descriptions submitted under subsection (1)(a) of this section shall be based upon current information available to the operator or owner.

(b) If the failure of the facility could cause damage to life or property or injurious effects on the environment of the Commonwealth, the cabinet shall require the operator or owner to submit additional plans and analyses or to conduct the investigations and testing of materials that are necessary to determine the stability of the facility.

(c) These investigations and tests may include seepage investigations, settlement studies based on compressibility and mining subsidence, foundation investigations including borings or test pits, laboratory testing of foundation materials, and determination of strength parameters based on laboratory testing of site specific coal processing waste materials.

Section 3. Performance Standards.

(1) Any coal processing waste disposal site impounding water, or impounding coal processing waste which is physically unstable due to excessive moisture content or excessive fine-grained material, and any dam containing coal processing waste in the embankment shall comply with 405 KAR 16:100 or 405 KAR 18:100.

(2) All other coal processing waste disposal sites shall comply with 30 C.F.R. 77.214 as amended at 36 Fed. Reg. 13,143 (1971) and 30 C.F.R. 77.215 as amended at 40 Fed. Reg. 41,776 (1975), except a facility shall not be constructed in a manner that may cause loss of life, damage to property, or injurious effects on the environment of the Commonwealth due to structural failure of the facility.

(3) Those portions of structures that have already been constructed and structures that have been completed shall not be reconstructed unless reconstruction is necessary to ensure stability of the facility to:

(a) Eliminate potential hazards to life or property; or

(b) Prevent injurious effects on the environment of the Commonwealth.

(4) This administrative regulation shall not be construed as relieving an operator from the obligation to comply with any other provision of 405 KAR Chapters 7 - 24, including compliance with the permanent program performance standards and the requirements for existing structures in 405 KAR 7:040, Section 4.

Section 4. Remedial Measures. The cabinet may require operators or owners of coal processing waste disposal sites to revise the facility design and to implement remedial measures if necessary to comply with Section 3 of this administrative regulation.

Section 5. Certifications.

(1) All designs, maps, plans, and drawings submitted under this administrative regulation shall be prepared and certified by a qualified registered professional engineer.

(2) Construction or reconstruction of coal processing waste disposal sites shall be inspected during and after construction by a qualified licensed professional engineer or by qualified persons under the engineer's supervision. The facility shall be certified within two (2) weeks of each inspection by the responsible qualified licensed professional engineer as having been constructed in accordance with the design approved by the cabinet under 405 KAR Chapters 7 through 24. If the cabinet has not yet reviewed and approved the design, the engineer shall make the certifications based upon the design approved by MSHA.

History

RELATES TO: KRS 151.125, 151.297, 224.10-100, 224.10-410, 350.020, 350.090(1), 350.420
STATUTORY AUTHORITY: KRS 151.125, 224.10-410, 350.020
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.020 authorizes the Energy and Environment Cabinet to promulgate administrative regulations that are necessary to accomplish the purpose of KRS Chapter 350. KRS 151.125 authorizes the cabinet to promulgate administrative regulations concerning flood control, water resources, requirements for dams or reservoirs, and waste planning and management activities. KRS 224.10-410 requires the secretary to promulgate administrative regulations concerning the issuance of abate and alleviate orders when there is a danger to the health or welfare of the people of the Commonwealth or to natural resources. This administrative regulation provides for the control of coal processing waste dams, waste impoundments, and waste banks in order to prevent loss of life, damage to property, and injurious effects on the environment of the Commonwealth due to structural failure of these facilities and is necessary because these facilities are not otherwise adequately regulated. This administrative regulation provides for submittal of engineering reports, performance standards, and remedial measures to correct dangerous facilities.
History: 9 Ky.R. 634; 1148; eff. 5-4-1983; Crt eff. 7-3-2018; 46 Ky.R. 1321, 2248; eff. 5-5-2020.

405 KAR 7:060 Experimental practices mining {#sec-405-kar-7-060 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:060}

Section 1. General. Experimental practices provide a variance from the environmental protection performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20 for experimental or research purposes to encourage advances in mining and reclamation practices or to allow certain alternative postmining land uses. Experimental practices may be undertaken if they are approved by the cabinet and the Director of OSM and if their terms and conditions are incorporated into a permit, a permit amendment, or a permit revision issued in accordance with 405 KAR 8:010.

Section 2. Approval Procedures.

(1) Required approval. No person shall engage in or maintain any experimental practice unless that practice is first approved in a permit by the cabinet and the Director of OSM.

(2) Application requirements. Each permit application submitted pursuant to this administrative regulation shall contain appropriate descriptions, data, maps, and plans which identify:

(a) The nature of the experimental practice, including a description of the performance standards for which variances are requested, the duration of the experimental practice, and any special monitoring which will be conducted.

(b) How use of the experimental practice:

Encourages advances in mining and reclamation technology; or
Allows a postmining land use for industrial, commercial, residential, or public (including recreational facilities) use on an experimental basis, when the results are not otherwise attainable under the administrative regulations of 405 KAR Chapters 7 through 24.

Is potentially more, or at least as, environmentally protective during and after the proposed mining and reclamation operations as would otherwise be required by standards promulgated under 405 KAR Chapters 16 through 20; and
Will not reduce the protection afforded public health and safety below that provided by the requirements of 405 KAR Chapters 16 through 20.

(d) That the applicant will conduct monitoring of the effects of the experimental practice. The monitoring program shall ensure the collection, analysis, and reporting of sufficient, reliable data to enable the cabinet and the Director of OSM to:

Evaluate the effectiveness of the experimental practice; and
Identify, as soon as possible, potential risks to the environment and public health and safety which may be caused by the experimental practice during and after mining.

(e) To the extent possible as can be foreseen prior to the actual conductance of the experimental practice, the procedures and measures which will be implemented to comply with the performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20, or, if such compliance is not possible, to provide a level of protection equivalent to or in excess of that provided for by the performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20, if the experimental practice should fail to be as environmentally protective or as protective of the health or safety of the public as provided for by the performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20.

(3) Public notice. All experimental practices for which variances are sought shall be specifically identified through the newspaper advertisements by the applicant and the written notifications by the cabinet required under 405 KAR 8:010, Section 8.

(4) Criteria for approval. No permit authorizing an experimental practice shall be issued unless the cabinet finds, in writing upon the basis of both a complete application filed in accordance with the requirements of this administrative regulation and 405 KAR Chapter 8, and the concurrence of the Director of OSM, that:

(a) The experimental practice encourages advances in mining and reclamation technology or allows a postmining land use for industrial, commercial, residential, or public (including recreational facilities) use on an experimental basis;

(b) The experimental practice is potentially more, or at least as, environmentally protective during and after mining operations as would otherwise be required under 405 KAR Chapters 16 through 20;

(c) The mining operations approved for a particular land use or other purpose are not larger or more numerous than necessary to determine the effectiveness and feasibility of the experimental practice; and

(d) The experimental practice does not reduce the protection afforded public health and safety below that provided by standards promulgated under 405 KAR Chapters 16 through 20.

(5) Revisions. Revisions to an experimental practice shall be processed and approved in accordance with 405 KAR 8:010, Section 20. Any revisions which propose significant alterations in the experimental practice shall be deemed major revisions and subject to the approval of the Director of OSM. Revisions that do not propose significant alterations in the experimental practice shall be deemed minor revisions and shall not require the approval of the Director of OSM.

(6) Prime farmland. Experimental practices granting variances from the special environmental performance standards applicable to prime farmland shall be approved only after consultation with SCS.

(7) Alternative postmining land uses. Experimental practices granting variances from the requirements of KRS Chapter 350 and 405 KAR for alternative postmining land uses shall not be approved by the cabinet, unless the attainment of the alternative postmining land uses would not otherwise be practicable or feasible without the approval of the experimental practice.

Section 3. Monitoring and Additional Requirements.

(1) Each permittee undertaking an experimental practice shall conduct the periodic monitoring, recording, and reporting programs set forth and approved in the application. Each permittee shall satisfy such additional requirements as the cabinet or the Director of OSM may impose to ensure protection of the environment and the public health and safety.

(2) In accordance with 405 KAR 8:010, Section 18, the terms and conditions applicable to the experimental practice shall be as indicated in the approved permit application.

(3) If, subsequent to the issuance of a permit for an experimental practice, the experimental practice should fail to be as environmentally protective or as protective of the health or safety of the public as provided for by the performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20, the permittee shall immediately contact the cabinet and the OSM, shall fully and accurately describe the situation to those agencies, and shall implement those procedures and measures identified pursuant to Section 2(2)(e) of this administrative regulation which are necessary to achieve such a condition. If the procedures and measures identified pursuant to Section 2(2)(e) of this administrative regulation are determined by the cabinet or the OSM to be insufficient to achieve this condition, the permittee shall perform remedial measures as required by the cabinet or the OSM to achieve such a condition. If the cabinet or the OSM determines that such a level of protection cannot be achieved, the cabinet or the OSM shall inform the permittee of remedial measures which must be implemented to provide maximum protection to the environment and the health and safety of the public.

Section 4. Periodic Review.

(1) Each experimental practice shall be reviewed by the cabinet at a frequency set forth in the approved permit but no less than two and one-half (2 1/2) years. After review the cabinet shall, after consulting with the Director of OSM, require, by order supported by written findings, any reasonable modification of the experimental practice necessary to ensure that the operations involved are conducted to fully protect the environment and public health and safety.

(2) Administrative review of modification order. Any person who is or may be adversely affected by an order pursuant to subsection (1) of this section shall be provided with an opportunity for a hearing as established in 400 KAR 1:110, Section 8.

History

RELATES TO: KRS 350.020, 350.028, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations that are no more stringent than SMCRA. This administrative regulation governs the granting and approval of experimental mining practices that encourage advances in mining, reclamation, and postmining land use practices.
History: 405 KAR 007:060. 8 Ky.R. 1471; eff. 1-6-1983; 12 Ky.R. 897; eff. 2-4-1986; TAm eff. 5-4-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 7:070 Certification of blasters {#sec-405-kar-7-070 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:070}

Section 1. Blasting Operations to be Conducted Under the Direction of a Certified Blaster.

(1) As used in this administrative regulation, the following terms shall have the indicated meanings:

(a) "Blaster" means a person who is directly responsible for surface blasting operations in surface coal mining and reclamation operations or coal exploration operations.

(b) "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 shall be interpreted broadly and shall encompass activities including, but not limited to, 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.

(2) Each permittee and each person conducting coal exploration operations shall have all surface blasting operations incident to surface coal mining and reclamation operations and coal exploration operations conducted under the direction of a blaster certified in accordance with this administrative regulation. Notwithstanding the exemption in 405 KAR 7:030, Section 1, this section shall also apply to permittees of operations with an affected area of two (2) acres or less.

Section 2. Requirements for Certification.

(1) A person desiring to become certified under this administrative regulation shall file an application upon a form furnished by the cabinet. This application shall identify the applicant's name, address, telephone number, and place of employment; shall contain the information required by subsections (2) through (7) of this section; and shall contain such additional information as the cabinet deems necessary for the purposes of this administrative regulation. The application shall be submitted to the central office of the department's Division of Field Services, located in Frankfort, Kentucky, accompanied by a fee of twenty-five (25) dollars.

(2) The applicant shall demonstrate that he or she has received training in the technical aspects of blasting operations and Kentucky and federal laws and regulations governing the storage, transportation, and use of explosives by completing a training course approved by the cabinet. This course shall provide training and discuss practical applications of the topics listed in subsection (5) of this section.

(3) The applicant shall demonstrate that he or she holds a valid Kentucky Blaster's License issued by the Kentucky Office of Mine Safety and Licensing.

(4) The application shall include at least two (2) letters of reference on forms provided by the cabinet. Each of these letters shall be from a person who has employed the applicant in blasting operations, from the applicant's supervisor while employed in blasting operations, or from a licensed blaster who has worked with the applicant in blasting operations. The letters shall indicate that the applicant has exhibited a pattern of conduct consistent with the acceptance of responsibility for blasting operations.

(5) The applicant shall pass a written examination on the technical aspects of blasting and Kentucky and federal laws and regulations governing the storage, use, and transportation of explosives. The examination shall cover, at a minimum, the following topics:

(a) Explosives, including:

Selection of the type of explosive to be used;
Determination of the properties of explosives which will produce desired results at an acceptable level of risk; and
Handling, transportation, and storage of explosives.

(b) Blast designs, including:

Geologic and topographic considerations;
Design of a blast hole, with critical dimensions;
Pattern design, field layout, and timing of blast holes; and
Field applications.

(d) Initiation systems and blasting machines.

(e) Blasting vibrations, airblast, and flyrock, including:

Monitoring techniques; and
Methods to control adverse effects.

(f) Secondary blasting applications.

(g) Current federal and Kentucky rules applicable to the storage, transportation, and use of explosives.

(h) Blast records.

(i) Schedules.

(j) Preblasting surveys, including:

Availability;
Coverage; and
Use of in-blast design.

(k) Blast-plan requirements.

(l) Certification and training.

(m) Signs, warning signals, and site control.

(n) Unpredictable hazards, including:

Lightning;
Stray currents;
Radio waves; and
Misfires.

(6) Any person who fails the examination discussed in subsection (5) of this section may retake it after thirty (30) days; provided however, any person failing the examination twice may not retake it until after completing an approved training course and filing a new application.

(7)

(a) Upon receipt of an application for certification, the cabinet shall review the application and promptly notify the applicant, in writing, as to the application's completeness.

If the application is incomplete, the notification shall specify the application's deficiencies. The applicant may then submit, or cause to be submitted, documentation of test results, verification of training, letters of reference, or any other information necessary to correct the cited deficiencies. The applicant shall have three (3) months, beginning on the date on which the notification of incompleteness is mailed or otherwise delivered to the applicant, during which the deficiencies may be corrected. If the deficiencies are not corrected during this three (3) month period, the application file shall be closed and, at the cabinet's discretion, discarded. Once the application file has been closed, the certification shall not be issued unless and until a new application is submitted pursuant to subsection (1) of this section and compliance is demonstrated with all applicable requirements of this administrative regulation.
If the application is complete, the notification shall either be accompanied by the issued certificate or it shall state that the cabinet is verifying information pursuant to paragraph (b) of this subsection. After any such verification is performed and the cabinet is satisfied that all applicable requirements of this administrative regulation have been met, the cabinet shall promptly issue the certification.

(b)

The cabinet may, at its discretion, verify any of the information contained in the application. If, as a result of any such verification effort, the cabinet determines that the applicant has knowingly caused falsified or misrepresented information to be submitted in the application, the cabinet shall deny certification and the applicant shall be ineligible to reapply for certification for at least one (1) year period.
After the period of ineligibility defined pursuant to subparagraph 1 of this paragraph, certification may only be granted if a new application is submitted pursuant to subsection (1) of this section. All of the information contained in the application shall be provided anew: this shall include new letters of reference pursuant to subsection (4) of this section; documentation that the applicant has been retrained pursuant to subsection (2) of this section and retested pursuant to subsection (5) of this section; and a demonstration, pursuant to subsection (3) of this section, that the applicant holds a valid blaster's license issued by the Office of Mine Safety and Licensing.

(8)

(a) The cabinet shall issue a blaster certification to any applicant who meets the requirements of subsections (1) through (7) of this section, except the cabinet shall deny certification if the applicant cannot reasonably be expected to conduct himself or herself in a manner consistent with the acceptance of responsibility for blasting operations. The cabinet shall make determinations regarding issuance or denial of the certification based upon the blaster's actions during any prior term of certification, the information contained in the application, and any other pertinent information that is available to the cabinet.

(b) The certification shall be issued for a term of three (3) years.

(9) Any person aggrieved by a determination under this section may request a formal hearing in accordance with 400 KAR 1:110, Section 9.

Section 3. Renewal of Certification. Subject to the provisions of this section, certified blasters shall have the right to successive renewal of their certifications.

(1)

(a) Applications for certification renewal shall be submitted on forms provided by the cabinet. Each such application shall identify the applicant's name, address, telephone number, and place of employment; shall contain the information required by subsection (3) of this section; and shall contain such additional information as the cabinet deems necessary for the purposes of this administrative regulation. The application shall be submitted to the central office of the department's Division of Field Services, located in Frankfort, Kentucky, and shall be accompanied by a renewal fee of ten (10) dollars, plus any reexamination fee required pursuant to subsection (3) of this section. The renewal application shall not be submitted more than ninety (90) days prior to certification expiration.

(b)

The cabinet shall neither accept nor process the renewal application of a blaster who does not hold a valid Kentucky blaster's license, whose certification is revoked, whose certification is suspended pursuant to Section 4(2)(b) of this administrative regulation, or whose certification is revoked pursuant to an order rendered under Section 4(4)(b)3 or (5) of this administrative regulation. If a blaster's certification is suspended pursuant to an order rendered under Section 4(4)(b)3 or (5) of this administrative regulation, a renewal application will be accepted and processed only in accordance with Section 9(2)(a)2 and only if the term and conditions of the suspension have been met.
If an application for renewal is submitted and, prior to renewal, the certification is suspended, revoked, or otherwise invalidated, the renewal application shall be rendered null and void and shall be returned to the applicant.

(2)

(a)

If the blaster seeking renewal desires for his or her certification not to lapse, the renewal application must be submitted sixty (60) or more days prior to the expiration date identified on the blaster's certificate. For applications which are so submitted, the cabinet shall renew the certification, deny the renewal request, or withdraw the renewal request for submission of additional information pursuant to subsection (1)(a) of this section, prior to the date of the certification's expiration. A blaster who submits a renewal application pursuant to this subparagraph shall be eligible for an extension of his or her certification pursuant to subparagraph 2 of this paragraph, should such an extension be necessary and justified as provided for in that subparagraph.
If the blaster has submitted a renewal application sixty (60) or more days prior to the expiration date identified on the blaster's certificate, and if the cabinet has not taken final action on the application by the certificate's expiration date, the cabinet may postpone expiration of certification, in order to lessen the likelihood of a lapse in certification during the interim period between the expiration date identified on the certificate and issuance of the renewed certification. Such postponement shall be granted by written letter signed by the director of the department's Division of Field Services and shall delay certification expiration for a period of sixty (60) days. A postponement pursuant to this subparagraph may only be granted once per renewal application and may only be granted if:

a. Through no fault of the certified blaster, the cabinet has not taken final action on the renewal request as of the expiration date identified on the blaster's certificate; and

b. The blaster is making a good faith effort to obtain renewal.

(b) If the blaster desiring renewal fails to submit his or her renewal application sixty (60) or more days prior to the expiration date identified on the certificate, the certification may only be renewed if the renewal application, complete with all information necessary for the cabinet to grant the renewal, is submitted prior to certification expiration or within ninety (90) days following certification expiration. However, if the application is so submitted, the certification shall be considered to have lapsed during any interim period between expiration of the certificate and issuance of the renewed certificate. Blasters who apply for renewal pursuant to this paragraph shall not be eligible for postponement of certification expiration pursuant to paragraph (a)2 of this subsection.

(c) If the blaster fails to comply with the requirements of paragraph (a) or (b) of this subsection, he or she may be recertified only by reapplying for certification under Section 2 of this administrative regulation. All of the information contained in an application for recertification shall be provided anew: this shall include new letters of reference pursuant to Section 2(4) of this administrative regulation; documentation that the applicant has been retrained pursuant to Section 2(2) of this administrative regulation and retested pursuant to Section 2(5) of this administrative regulation; and a demonstration, pursuant to Section 2(3) of this administrative regulation, that the applicant holds a valid blaster's license issued by the Office of Mine Safety and Licensing. The blaster's certification shall be considered to have lapsed during the interim period between expiration of the certificate and issuance of the following certificate. Blasters who apply for recertification pursuant to this paragraph shall not be eligible for postponement of certification expiration pursuant to paragraph (a)2 of this subsection.

(3)

(a) The applicant for certification renewal shall:

Demonstrate that he or she has worked in blasting operations associated with surface coal mining and reclamation operations and/or coal exploration operations, in a manner that demonstrates the blaster's competency, during at least one and one-half (1 1/2) years of the three (3) years prior to the expiration date identified on the certificate; or
Demonstrate that he or she has:

a. Worked, in a manner that demonstrates the blaster's competency, during at least one and one-half (1 1/2) years of the three (3) years prior to the expiration date identified on the certificate in blasting operations associated with road construction, noncoal mining, or other activities that involve blasting techniques similar to those associated with surface coal mining and reclamation operations and/or coal exploration operations;

b. Retaken and passed a written examination on the cabinet's laws and administrative regulations pertaining to the use of explosives; and

c. Submitted a reexamination fee of fifteen (15) dollars; or

Retake and pass the written examination specified in Section 2(5) of this administrative regulation and submit a reexamination fee of fifteen (15) dollars; provided, however, consecutive renewals pursuant to this subparagraph shall not be granted without the applicant for renewal being retrained pursuant to Section 2(2) of this administrative regulation.

(b) In addition to submitting the documentation required pursuant to paragraph (a) of this subsection, each applicant for renewal shall demonstrate that he or she holds a valid Kentucky Blaster's License issued by the Office of Mine Safety and Licensing.

(4) The provisions of Section 2(7)(b) of this administrative regulation shall apply to applicants for renewal pursuant to this section.

(5)

(a) The cabinet shall renew the certification of any blaster who meets the requirements of subsections (1) through (4) of this section, except the cabinet shall deny renewal if the blaster cannot reasonably be expected to conduct himself or herself in a manner consistent with the acceptance of responsibility for blasting operations. The cabinet shall make determinations regarding issuance or denial of the renewal based upon the applicant's actions during the most recent term of certification, the information contained in the renewal application, and any other pertinent information.

(b) The term of a renewed certification shall be three (3) years.

(6) A blaster's certification shall expire on the expiration date identified on his or her most recent certificate, unless expiration of certification has been postponed pursuant to subsection (2)(a)2 of this section.

(7) Any person aggrieved by a determination under this section may request a formal hearing in accordance with 400 KAR 1:110, Section 9.

Section 4. Suspension and Revocation.

(1) For the purposes of this section, a blaster shall be considered to be in violation if he or she:

(a) Fails to comply with any order of the cabinet;

(b) Handles or uses explosives while under the influence of alcohol, narcotics, or other dangerous drugs, or uses same in the workplace;

(c) Violates any provision of federal explosives laws or regulations or Kentucky's explosives laws or administrative regulations;

(d) Provides false information or a misrepresentation to obtain certification; or

(e) Fails to comply with the conditions of certification specified in Section 6 of this administrative regulation.

(2)

(a)

Unless the cabinet immediately suspends certification pursuant to paragraph (b) of this subsection, the cabinet shall evaluate the following when the cabinet determines that a blaster is or has been in violation:

a. Whether well-founded blasting procedures and reasonable precautions were used in endeavoring to prevent the violation;

b. The seriousness of the violation;

c. The history of the blaster's performance;

d. The existence of any information suggesting that the blaster willfully committed or caused the violation; and

e. Any other pertinent information.

Subsequent to conducting the evaluation required by subparagraph 1 of this paragraph, and based upon and commensurate with the results of that evaluation, the cabinet shall issue a written notice to the blaster if the cabinet has reason to believe that he or she willfully committed or caused the violation, or if the cabinet otherwise determines that suspension or revocation of certification is warranted. The written notice shall advise the blaster of the provision(s) of which he or she was in violation and shall advise him or her that the cabinet intends to seek suspension or revocation of the certification.

(b) When the cabinet determines that a blaster is or has been in violation, the cabinet shall issue an order immediately suspending the blaster's certification if further blasting operations conducted by or under the direction of the blaster may reasonably be expected to constitute an imminent danger to the health and safety of the public or cause significant, imminent environmental harm.

(c)

Regardless of whether the cabinet pursues recourse against the blaster pursuant to paragraph (a) or (b) of this subsection, if the cabinet determines that a blaster is or has been in violation, the cabinet shall retain a description of the violation, a description of the procedures used in evaluating the violation, the conclusion which was reached as a result of the evaluation, and any supporting information which was used in reaching the conclusion. This documentation shall be used in compiling a history of the blaster's performance for use pursuant to paragraph (a) of this subsection and Sections 2(8) and 3(5) of this administrative regulation.
When a violation is placed on a blaster's record pursuant to subparagraph 1 of this paragraph, the cabinet shall issue a written statement to the blaster advising him or her of the documented violation. The blaster shall be allowed to challenge the fact of the violation, or his or her responsibility for same, in accordance with the provisions of 400 KAR 1:110, Section 6 or 7.

(3)

(a) Notices issued pursuant to subsection (2)(a)2 of this section, blaster suspension orders issued pursuant to subsection (2)(b) of this section, statements issued pursuant to subsection (2)(c)2 of this section, and orders of the secretary rendered pursuant to subsections (4)(b)3 and (5) of this section shall be served promptly after issuance. Service to the blaster shall be made by hand; by certified mail, return receipt requested; or by registered mail. A copy of each order and each notice shall also be mailed or otherwise delivered to the Office of Mine Safety and Licensing. In addition, if the order suspends or revokes certification, a copy of the order shall be mailed or otherwise delivered to the blaster's employer as documented in the cabinet's files and to any other person who, to the best knowledge of the cabinet, employs the blaster as a certified blaster.

(b) Service, whether by hand or by mail, shall be complete upon tender of the order, notice, or statement and shall not be deemed incomplete because of refusal to accept. Moreover, service by mail shall not be deemed incomplete because of failure to claim the document prior to its return to the cabinet by the U.S. Postal Service, nor shall it be deemed incomplete because of the U.S. Postal Service's inability to deliver a document which has been properly addressed with the intended recipient's most recent address known to the cabinet. Service by mail to the blaster shall be addressed to the permanent address shown on the certification or renewal application, or if the blaster has submitted notice of an address change pursuant to Section 7 of this administrative regulation, to such other address as is known to the cabinet.

(4) The following provisions shall apply to suspension orders issued pursuant to subsection (2)(b) of this section:

(a) Upon issuance of the suspension order, all rights and privileges granted by certification shall be suspended until the order is vacated or the certification is restored in accordance with an order of the secretary; however, the blaster shall not be required to surrender his or her certificate unless and until the secretary renders an order requiring revocation or further suspension.

(b) Unless vacated, the suspension order shall be adjudicated in accordance with the following:

A hearing shall be scheduled upon issuance of the suspension order. This hearing shall be scheduled to be held within ten (10) working days of issuance of the order. The blaster shall be promptly notified, in accordance with 400 KAR 1:110, Section 5, of the time, date, and location of the scheduled hearing.
The chief hearing officer or any other designated hearing officer shall preside over the hearing, and except as otherwise specified or provided for in this paragraph, the hearing shall be conducted pursuant to the provisions of 400 KAR 1:110, Section 5. Within five (5) working days following the hearing, the hearing officer shall issue a report on the findings of fact and conclusions of law concerning the violation.
The provisions of 400 KAR 1:110, Section 3 shall apply to the filing of exceptions to the hearing officer's report, and the final order of the secretary concerning the violation shall be issued forthwith.
The time schedule for adjudication as specified in subparagraphs 1 and 2 of this paragraph may be extended by the cabinet upon written request by the blaster to whom the suspension order was issued.

(c) Prior to the hearing held pursuant to paragraph (b) of this subsection, a suspension order determined to have been issued in error may be vacated by the director of the Division of Field Services.

(d) The forms on which blaster suspension orders are issued shall be at the discretion of the cabinet and may include the forms used pursuant to 405 KAR 12:020.

(5) Upon issuance of a notice pursuant to subsection (2)(a)2 of this section, the cabinet shall schedule a formal hearing for review of the violation. This hearing shall be held pursuant to 400 KAR 1:110, Section 5.

(6)

(a) Orders of the secretary rendered pursuant to subsections (4)(b)3 and (5) of this section may suspend or revoke the blaster's certification and may carry requirements for additional training or testing or other appropriate corrective measures; provided however, if the violation was caused or committed willfully, suspension or revocation of certification shall be obligatory.

(b) The termination date of a suspension shall be specified in the order or the suspension shall be for an indefinite period contingent upon completion of required remedial action. An order for revocation shall specify the ending date of the period during which the blaster will be ineligible for reinstatement, with said period exceeding the minimum required by Section 9(1) of this administrative regulation if appropriate.

(c) The term and conditions of each order rendered by the secretary pursuant to subsection (4)(b)3 or (5) of this section shall be commensurate with the pertinent factors surrounding the blaster and the violation(s). These factors may include, but not necessarily be limited to, the seriousness of the violation(s), the blaster's culpability for the violation(s), the history of the blaster's performance, and whether the blaster took reasonable care in determining that the operation would be in compliance with applicable laws and administrative regulations.

(d)

Upon service of a suspension or revocation order rendered pursuant to subsection (4)(b)3 or (5) of this section, the blaster shall surrender the suspended or revoked certificate to the cabinet in accordance with subparagraph 2 of this paragraph. All rights and privileges granted by certification shall be suspended or revoked in accordance with the term and conditions of the order.
If the suspension or revocation order is hand delivered by a cabinet representative, the suspended or revoked certificate shall be immediately surrendered to the representative delivering the order. If the order is served by certified or registered mail, the certificate shall be immediately delivered and surrendered to the department's appropriate regional office.

(7)

(a) If the blaster's Kentucky Blaster's License expires, is revoked, or otherwise lapses or becomes invalid during the term of certification, in accordance with Section 6(5) of this administrative regulation the blaster's certification shall automatically be rendered invalid. Once the certification has been rendered invalid, the certificate shall immediately be delivered and surrendered to the department's appropriate regional office. The certificate shall only be returned and certification reinstated after the blaster has demonstrated, and the cabinet has found, that the blaster once again holds a valid Kentucky Blaster's License.

(b) The provisions of paragraph (a) of this subsection shall apply automatically, and issuance of a notice or a suspension order pursuant to subsection (2) of this section shall not be required in order to invalidate a blaster's certification pursuant to Section 6(5) of this administrative regulation.

Section 5. Protection of Certification. Certified blasters shall take every reasonable precaution to protect their certificates from loss, theft, or unauthorized duplication. Any such occurrence shall be immediately reported to the cabinet.

Section 6. Conditions. The following are conditions for maintaining certification:

(1)

(a) His or her Kentucky Blaster's License, his or her Kentucky Blaster Certificate, and at least one (1) other form of identification shall be carried by the certified blaster during blasting operations. If the blaster is operating under a postponement of certification expiration rendered pursuant to Section 3(2)(a)2 of this administrative regulation, the blaster shall also carry the letter granting the postponement.

(b) A certified blaster shall immediately exhibit his or her certificate, Kentucky Blaster's License, letter postponing expiration of certification (if applicable), and one (1) other form of identification to any authorized representative of the cabinet or OSM upon request.

(2) Blasters' certifications shall not be assigned or transferred.

(3) Certified blasters shall not delegate their responsibilities to any persons who are not certified blasters.

(4) The certified blaster who is responsible for conducting blasting operations shall provide direction and on-the-job training to noncertified persons who are assigned to his or her blasting crew or who assist in the storage, use, or transportation of explosives incident to the blasting operations.

(5) Each certified blaster shall hold a valid Kentucky Blaster's License throughout the term of the certification.

Section 7. Change of Information. A certified blaster shall submit written notification to the cabinet whenever there is a change in his or her name, address, telephone number, or place of employment. Such notifications shall be submitted to the central office of the department's Division of Field Services, located in Frankfort, Kentucky, within thirty (30) days of the change.

Section 8. Reciprocity. For any person who is a certified blaster under OSM's blaster certification program or under any OSM approved state blaster certification program, the submission of satisfactory documentation demonstrating that he or she is so certified shall be considered an adequate demonstration of compliance with Section 2(2), (4), and (5) of this administrative regulation. However, compliance with Section 2(1) and (3) of this administrative regulation shall occur prior to obtaining certification pursuant to this administrative regulation.

Section 9. Reinstatement.

(1) Reinstatement following revocation. Unless a longer term is specified in the Secretary's revocation order, during the one (1) year period following issuance of the order the blaster shall not be eligible for reinstatement of certification. After this period of ineligibility, certification shall only be reinstated after reapplying for certification pursuant to Section 2 of this administrative regulation. All of the information contained in the application shall be provided anew: this shall include new letters of reference pursuant to Section 2(4) of this administrative regulation; documentation that the applicant has been retrained pursuant to Section 2(2) of this administrative regulation and retested pursuant to Section 2(5) of this administrative regulation; and a demonstration, pursuant to Section 2(3) of this administrative regulation, that the applicant holds a valid blaster's license issued by the Office of Mine Safety and Licensing. In addition to containing such information, the application must demonstrate, and the cabinet must find, that the conditions that led to the revocation have been corrected and are not likely to reoccur. When these requirements have been met, the cabinet may reissue the blaster certification.

(2) Reinstatement following suspension.

(a)

Following suspension of certification pursuant to an order of the secretary, certification shall be reinstated only upon a demonstration by the blaster that he or she has met the term and conditions of the suspension.
The cabinet shall not reinstate a certification which has expired solely upon a demonstration that the requirements of subparagraph 1 of this paragraph have been met. If the certification expires during the suspension period, in order to have certification reinstated without reapplying under Section 2 of this administrative regulation, a renewal application must be submitted within thirty (30) days of meeting the term and conditions of the suspension; provided however, if the order suspending certification does not specify a termination date for the suspension, the remedial measures prescribed in the order must be completed within one (1) year following certification expiration to qualify for reinstatement through the renewal process. Renewal applications filed for reinstatement shall contain the information required by subparagraph 1 of this paragraph and the information and fees required by Section 3(1)(a) of this administrative regulation. Failure to submit a renewal application within these constraints will result in certification being reinstated only if, in addition to complying with subparagraph 1 of this paragraph, the application requirements of Section 2 of this administrative regulation are met, with all of the information contained in the application being provided anew: this shall include new letters of reference pursuant to Section 2(4) of this administrative regulation; documentation that the applicant has been retrained pursuant to Section 2(2) of this administrative regulation and retested pursuant to Section 2(5) of this administrative regulation; and a demonstration, pursuant to Section 2(3) of this administrative regulation, that the applicant holds a valid blaster's license issued by the Office of Mine Safety and Licensing.

(b) After the demonstrations required by paragraph (a) of this subsection have been made and the cabinet is satisfied as to the adequacy of the demonstrations, the cabinet shall either return the surrendered certificate, renewed if applicable, or shall tender to the blaster the reissued certificate. The surrendered or reissued certificate shall be accompanied by a notice of reinstatement.

Section 10. Delegation to Office of Mine Safety and Licensing. The cabinet and the Office of Mine Safety and Licensing may enter into agreements whereby the Office of Mine Safety and Licensing may administer part or all of this administrative regulation.

History

RELATES TO: KRS 350.430, 351.380
STATUTORY AUTHORITY: KRS Chapter 13A, 224.033(20), 350.020, 350.028, 350.050, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations to implement the Surface Mining Control and Reclamation Act of 1977 (Pub.L. 95-87). Pub.L. 95-87, along with federal regulations promulgated pursuant thereto, requires the establishment of a blaster training, examination, and certification program. This administrative regulation establishes a certification program for blasters who are responsible for surface blasting operations incident to surface coal mining and reclamation operations and coal exploration operations. The administrative regulation contains requirements for the training, examination, and certification of blasters; requirements to which blasters must adhere in order to maintain their certifications; provisions whereby certified blasters may seek renewal of their certifications; and requirements for suspension, revocation, and reinstatement of certifications.
History: 405 KAR 007:070. 11 Ky.R. 1345; 1596; eff. 5-14-1985; 14 Ky.R. 4; eff. 6-15-1987; 14 Ky.R. 37; 432; eff. 9-10-1987; TAm eff. 8-9-2007; TAm eff. 5-4-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 7:080 Small operator assistance {#sec-405-kar-7-080 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:080}

Section 1. Scope.

(1) This administrative regulation establishes the small operator assistance program (program) authorized at KRS 350.465(2)(f).

(2) Consistent with 30 USC 1257(c) and 30 CFR Part 795, this administrative regulation shall govern the procedures and criteria under which the cabinet shall provide assistance to eligible small operators in meeting the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24.

(3) This administrative regulation shall be construed to allow the fullest possible extent of services consistent with federal requirements and available funds.

Section 2. Objective. The objective of this administrative regulation is to meet the intent of KRS 350.465(2)(f) by:

(1) Providing financial and other necessary assistance to eligible small operators; and

(2) Assuring that the cabinet shall have sufficient information to make a reasonable assessment of the probable cumulative impacts of all anticipated mining upon the hydrology of the watershed(s) and particularly upon water availability.

Section 3. Source and Use of Funds. The secretary shall provide financial and other assistance under KRS 350.465(2)(f) to the extent that state funds are made available and to the extent that funds are appropriated by the United States Congress specifically for implementation of 30 USC 1257(c) and made available to the Commonwealth.

Section 4. Program Services. To the extent possible with available funds the cabinet shall provide services in accordance with this section.

(1) For eligible small operators who request assistance, the cabinet shall select and pay a qualified laboratory to perform the following services in accordance with Section 8 of this administrative regulation:

(a) Determine for the operator the probable hydrologic consequences of the mining and reclamation operations both on and off the proposed permit area, including the engineering analyses and designs necessary for the determination;

(b) Perform geologic drilling and prepare a statement of the results of test borings or core samplings;

(d) Perform preblasting surveys;

(e) Collect site-specific resource information and prepare plans for the protection and enhancement of fish and wildlife and other environmental values; and

(f) Develop cross sections, maps and plans required for permit applications, in accordance with 30 USC 1257(c).

(2) For eligible small operators who request assistance, the cabinet may select and pay a qualified laboratory to collect and provide general hydrologic information on the basin or subbasin areas within which the anticipated mining will occur. The information provided shall be limited to that required to relate the basin or subbasin hydrology to the hydrology of the proposed permit area.

(3) The cabinet shall provide informational services to insure that eligible small operators are made aware of the assistance available under the program.

(4) The cabinet shall make training services available to eligible small operators and their representatives and other potentially affected persons concerning preparation of permit applications and compliance with regulatory requirements.

Section 5. Eligibility for Assistance. An applicant shall be eligible for assistance if he:

(1) Intends to apply for a permit pursuant to KRS Chapter 350;

(2) Establishes that the probable total actual and attributed annual production of the applicant from all locations will not exceed 300,000 tons. Production from the following operations shall be attributed to the applicant:

(a) The pro rata share, based upon percentage of ownership of the applicant, of coal produced by operations in which the applicant owns more than a ten (10) percent interest;

(b) The pro rata share, based upon percentage of ownership of the applicant, of coal produced in other operations by persons who own more than ten (10) percent of the applicant's operation;

(c) All coal produced by operations owned by persons who directly or indirectly control the applicant by reason of direction of the management; and

(d) All coal produced by operations owned by members of the applicant's family and the applicant's relatives, unless it is established that there is no direct or indirect business relationship between or among them.

(3) Is not restricted in any manner from receiving a permit under 405 KAR Chapters 7 through 24; and

(4) Does not organize or reorganize his company solely for the purpose of obtaining assistance under this administrative regulation.

Section 6. Filing for Assistance. The application form "Kentucky Small Operator Application for Assistance", revised September 1994, is hereby incorporated by reference. This form may be reviewed or obtained at the Department for Natural Resources, 300 Sower Boulevard, Frankfort, KY 40601, Monday through Friday, 8 a.m. to 4:30 p.m. Each applicant shall submit the following information to the cabinet when filing for assistance:

(1) A statement of the operator's intent to file a permit application;

(2) The names and addresses of:

(a) The permit applicant; and

(b) The operator if different from the applicant.

(3) The names, addresses, and percentages of ownership of all owners of and stockholders in the applicant;

(4) A schedule of the estimated total production of coal from the proposed permit area and all other locations from which production is attributed to the applicant under Section 5(2) of this administrative regulation. The schedule shall include for each location:

(a) The operator or company name under which coal is or will be mined;

(b) The permit number and MSHA number if currently or previously permitted;

(d) Mine location (county).

(5) The Kentucky coal severance tax vendor number and copies of payments for the past twelve (12) months made by the applicant and any affiliated companies as defined under Section 5(2) of this administrative regulation;

(6) A description of:

(a) The proposed method of coal mining;

(b) The anticipated starting and termination dates of mining operations;

(c) The total number of acres of land to be affected by the proposed mining and number of acres (surface or underground) from which coal is to be removed;

(d) A general statement on the probable depth and thickness of the coal resource, and the name(s) of the coal seam(s) to be mined; and

(e) A statement identifying the coal resources in the permit area and the method by which they were calculated.

(7) A USGS topographic map of 1:6,000 scale or larger or other topographic map of equivalent detail which clearly shows:

(a) The area of land to be affected;

(b) The names of property owners within the area to be affected and of adjacent lands;

(8) Copies of documents which show that:

(a) The applicant has a legal right to enter and commence mining within the permit area; and

(b) A legal right of entry has been obtained for the cabinet and laboratory personnel to inspect the lands to be mined and adjacent lands which may be affected to collect environmental information or to install necessary instruments.

Section 7. Application Approval and Notice.

(1) If the cabinet finds the applicant eligible and it does not have information readily available which would preclude issuance of a permit to the applicant for mining in the area proposed, it shall:

(a) Notify the applicant in writing that the application is approved;

(b) Determine the minimum information requirements necessary to meet the provisions of Section 8 of this administrative regulation; and

(c) Select the services of one (1) or more qualified laboratories to perform the required work. A copy of the contract or other appropriate work order and the final approved reports shall be provided to the applicant.

(2) If the cabinet finds the applicant ineligible, the applicant shall be informed in writing that the application is denied and the reasons for denial shall be stated.

(3) The granting of assistance under this administrative regulation shall not be a factor in decisions by the cabinet on a subsequent permit application.

Section 8. Information Requirements.

(1) General. This section describes the minimum requirements for information necessary to meet the objectives of this Program. The cabinet shall determine for each applicant or group of applicants the specific information, including the collection and analysis of field information and the development of engineering and other technical analyses, designs, and plans, that shall be provided under this section. Collection, analysis, and development of information under this section may proceed concurrently with the development of mining and reclamation plans by the applicant.

(2) Specific provisions. Pursuant to Sections 1 through 4 of this administrative regulation, information required under the administrative regulations listed in this subsection may be supplied under this Program.

(a) Surface mines.

405 KAR 8:030, Section 11(2); Cultural, historic, and archaeological resources information.
405 KAR 8:030, Section 12; General requirements for geology and hydrology.
405 KAR 8:030, Section 13; Geology information.
405 KAR 8:030, Section 14; Groundwater information.
405 KAR 8:030, Section 15; Surface water information.
405 KAR 8:030, Section 16; Alternative water supply information.
405 KAR 8:030, Section 17; Climatological information.
405 KAR 8:030, Section 19; Vegetation information.
405 KAR 8:030, Section 20; Fish and wildlife resources information.
405 KAR 8:030, Section 23; Maps and drawings.
405 KAR 8:030, Section 30; MRP; protection of public parks and historic places.
405 KAR 8:030, Section 32(1); Description of measures to protect the hydrologic balance.
405 KAR 8:030, Section 32(3); Determination of probable hydrologic consequences of mining.
405 KAR 8:030, Section 32(4); Plan for monitoring groundwater and surface water.
405 KAR 8:030, Section 36; MRP; Fish and wildlife protection and enhancement.
405 KAR 16:120, Section 2; Preblasting survey.

(b) Underground mines.

405 KAR 8:040, Section 11(2); Cultural, historic, and archaeological resources information.
405 KAR 8:040, Section 12; General requirements for geology and hydrology.
405 KAR 8:040, Section 13; Geology information.
405 KAR 8:040, Section 14; Groundwater information.
405 KAR 8:040, Section 15; Surface water information.
405 KAR 8:040, Section 16; Alternate water supply information.
405 KAR 8:040, Section 17; Climatological information.
405 KAR 8:040, Section 19; Vegetation information.
405 KAR 8:040, Section 20; Fish and wildlife resources information.
405 KAR 8:040, Section 23; Maps and drawings.
405 KAR 8:040, Section 30; MRP; protection of public parks and historic places.
405 KAR 8:040, Section 32(1); Description of measures to protect the hydrologic balance.
405 KAR 8:040, Section 32(3); Determination of the probable hydrologic consequences of mining.
405 KAR 8:040, Section 32(4); Plan for monitoring groundwater and surface water.
405 KAR 8:040, Section 36; MRP; Fish and wildlife protection and enhancement.
405 KAR 18:120, Section 2; Preblasting survey.

(3) Availability of information. Information collected under this program shall be made available to all interested persons, except information related to the chemical and physical properties of coal. Information regarding the mineral or elemental content of the coal which is potentially toxic in the environment shall be made available.

Section 9. Allocation of Funds. If available funds are not sufficient to provide services under this administrative regulation to all eligible applicants, the cabinet shall allocate the available funds among eligible applicants based upon a formula which shall include, but shall not be limited to, the following factors:

(1) Date of filing of application for assistance; and

(2) Anticipated date for commencing mining operations.

Section 10. Qualified Laboratories.

(1) General.

(a) The cabinet shall establish a list of qualified laboratories which may be used by the cabinet under the procedures of this section. A qualified laboratory shall be a designated public agency, private consulting firm, institution, or analytical laboratory which can provide the required determination, statement, or other eligible services under this program.

(b) Persons who desire to be included in the list of qualified laboratories established by the cabinet shall apply to the cabinet and provide such information as is necessary to establish the qualifications required by subsection (2) of this section.

(2) Basic qualifications.

(a) To be designated a qualified laboratory, a firm shall demonstrate that it:

Is staffed with experienced, professional or technical personnel in the fields applicable to the work to be performed.
Is capable of collecting necessary field information and samples.
Has adequate space for material preparation and cleaning and sterilizing of necessary equipment and has stationary equipment, storage, and space to accommodate workloads during peak periods.
Meets the requirements of the Occupational Safety and Health Act or the equivalent Commonwealth safety and health program.
Has the financial capability and business organization necessary to perform the work required.
Has analytical, monitoring, and measuring equipment capable of meeting the applicable standards and methods contained in: "Standard Methods for the Examination of Water and Waste Water," 14th Edition, 1975; "Methods for Chemical Analysis of Water and Wastes," 1974; and other references as specified by the cabinet.
Has the capability of making hydrologic field measurements and to conduct analytical laboratory determinations by acceptable hydrologic, geologic, or analytical methods or by those appropriate methods or guidelines for information acquisition recommended by the cabinet.

(b) The qualified laboratory shall be capable of performing some or all of the services set forth in Section 8 of this administrative regulation. Subcontractors may be used to provide the services required if their use is defined in the application for qualification and they meet the requirements established by the cabinet.

Section 11. Applicant Liability.

(1) The applicant shall reimburse the cabinet for the costs of the services performed pursuant to this administrative regulation:

(a) If the applicant submits false information;

(b) If the applicant fails to submit a permit application within one (1) year from the date of receipt of the approved laboratory reports;

(d) If the cabinet finds that the applicant's actual and attributed production of coal for all locations exceeds 300,000 tons during the twelve (12) months immediately following the date the permit is issued; or

(e) If the permit rights or the permit application is sold, transferred, or assigned to another person and the successor's total actual and attributed production exceeds the 300,000 ton annual production limit during the twelve (12) months immediately following the date the original permit is reissued in the name of the successor. Under this paragraph, the applicant and its successor shall be jointly and severally obligated to reimburse the cabinet.

(2) The cabinet may waive the reimbursement obligation if it finds that the applicant at all times acted in good faith.

History

RELATES TO: KRS 350.465, 30 C.F.R. Parts 730-733, 735, 795, 917, 30 U.S.C. 1253, 1255, 1257
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.465, 30 C.F.R. Parts 730-733, 735, 795, 917, 30 U.S.C. 1253, 1255, 1257
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations. This administrative regulation provides for cabinet assistance to eligible small operators, under the federally- funded small operator assistance program. This administrative regulation sets forth the scope, objectives, and sources and use of funds for the small operator assistance program in Kentucky; establishes eligibility criteria; establishes procedures and forms for filing for assistance; establishes notification procedures; sets forth the services to be provided under the program and the regulatory requirements to be addressed by those services; authorizes allocation if available funds are insufficient to serve all eligible applicants; establishes minimum standards for qualified laboratories; and requires reimbursement of the cabinet in certain circumstances.
History: 405 KAR 007:080. 8 Ky.R. 1472; eff. 1-6-1983; 11 Ky.R. 1800; eff. 8-13-1985; 18 Ky.R. 356; 2204; eff. 11-26-1991; 20 Ky.R. 3297; 1314; eff. 9-28-1994; TAm eff. 8-9-2007; TAm eff. 7-6-2016; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 7:095 Assessment of civil penalties {#sec-405-kar-7-095 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:095}

Section 1. How Penalty Assessments Shall Be Made. The cabinet shall review each violation, condition, or practice cited in a notice of noncompliance and order for remedial measures or order of cessation and immediate compliance in accordance with the assessment procedures established in 400 KAR 1:110 and this administrative regulation to determine if a civil penalty shall be assessed, the amount of the penalty, and if each day of a continuing violation will be deemed a separate violation for purposes of the total penalty assessed.

Section 2. Conditions for Penalty Assessment.

(1) The cabinet shall assess a penalty for each violation, condition, or practice cited in an order of cessation and immediate compliance.

(2) The cabinet shall assess a penalty for each violation cited in a notice of noncompliance and order for remedial measures, if the violation is assigned thirty-one (31) points or more under the point system established in Section 3 of this administrative regulation.

(3) The cabinet may assess a penalty for each violation cited in a notice of noncompliance and order for remedial measures if the violation is assigned thirty (30) points or less under the point system established in Section 3 of this administrative regulation. In determining if a penalty shall be assessed, the cabinet shall consider the factors listed in 400 KAR 1:110, Section 3(2).

Section 3. Point System for Penalties. The cabinet shall use the point system established in this section to determine the amount of any penalty. Points shall be assigned as established in subsections (1) through (4) of this section.

(1) History of previous violations.

(a)

The cabinet shall assign up to thirty (30) points based on the history of previous violations. One (1) point shall be assigned for each past violation cited in a notice of noncompliance and order for remedial measures.
Five (5) points shall be assigned for each violation cited in an order of cessation and immediate compliance.

(b) The history of previous violations, for the purpose of assigning points, shall be determined and the points assigned with respect to a particular coal exploration or surface coal mining operation. Points shall be assigned as established in subparagraphs 1. through 3. of this paragraph.

A violation shall not be counted, if the notice or order is the subject of pending administrative or judicial review or if the time to request such review or to appeal any administrative or judicial decision has not expired, and thereafter it shall be counted for only one (1) year.
A violation for which the notice or order has been vacated shall not be counted.
Each violation shall be counted without regard to whether it led to a civil penalty assessment.

(2) Seriousness. The cabinet shall assign up to thirty (30) points based on the seriousness of the violation, as established in paragraphs (a) through (c) of this subsection.

(a) Probability of occurrence. The cabinet shall assign up to fifteen (15) points based on the probability of the occurrence of the event that a violated standard is designed to prevent. Points shall be assessed according to the following schedule:

No probability of occurrence: zero points;
Insignificant probability of occurrence: one (1) to four (4) points;
Unlikely probability of occurrence: five (5) to nine (9) points;.
Likely probability of occurrence:; ten (10) to fourteen (14) points; and
Occurred: fifteen (15) points.

(b) Extent of potential or actual damage. The cabinet shall assign up to fifteen (15) points, based on the extent of the potential or actual damage, in terms of area and impact on the public or environment, as established in subparagraphs 1. and 2. of this paragraph.

If the damage or impact that the violated standard is designed to prevent would remain within the coal exploration, permit area, or shadow area, the cabinet shall assign zero to seven (7) points, depending on the duration and extent of the damage or impact.
If the damage or impact that the violated standard is designed to prevent would extend outside the coal exploration, permit area, or shadow area, the cabinet shall assign eight (8) to fifteen (15) points, depending on the duration and extent of the damage or impact.

(c) Administrative requirements. In the case of a violation of an administrative requirement, such as a requirement to keep records, the cabinet shall, in lieu of paragraphs (a) and (b) of this subsection, assign up to fifteen (15) points for seriousness, based upon the extent to which enforcement is obstructed by the violation.

(3) Negligence. The cabinet shall assign up to twenty-five (25) points based on the degree of fault of the person to whom the notice or order was issued in causing or failing to correct the violation, condition, or practice that led to the notice or order, either through act or omission. Points shall be assessed as established in paragraphs (a) through (c) of this subsection.

(a) A violation, condition, or practice that occurs through "no negligence" shall not be assigned penalty points for negligence. "No negligence" shall include an inadvertent violation, condition, or practice that was unavoidable by the exercise of reasonable care.

(b) A violation, condition, or practice that is caused by "negligence" shall be assigned twelve (12) points or less, depending on the degree of negligence. "Negligence" shall include the failure of a permittee to prevent the occurrence of the violation, condition, or practice due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate any violation, condition or practice due to indifference, lack of diligence, or lack of reasonable care.

(c) A violation, condition, or practice that occurs through a greater degree of fault than negligence shall be assigned thirteen (13) to twenty-five (25) points, depending on the degree of fault. A greater degree of fault than negligence means reckless, knowing, or intentional conduct.

(4) Good faith in attempting to achieve compliance. The cabinet shall subtract up to fifteen (15) points based on the degree of good faith of the person to whom the notice or order was issued in attempting to achieve rapid compliance after notification of the violation, condition, or practice. Points shall be subtracted as established in paragraphs (a) and (b) of this subsection.

(a) Rapid compliance. Six (6) to fifteen (15) points shall be subtracted from the total points if the person to whom the notice or order was issued took extraordinary measures to abate the violation, condition, or practice in the shortest possible time and that abatement was achieved before the time set for abatement.

(b) Normal compliance. Zero to five (5) points shall be subtracted from the total points if the person to whom the notice or order was issued abated the violation, condition, or practice by the abatement date.

Section 4. Determination of Amount of Penalty. For each violation, condition, or practice cited in a notice or order, the cabinet shall determine the amount of any civil penalty by converting the total number of points assigned pursuant to Section 3 of this administrative regulation to a dollar amount, according to the schedule established in this section.

Section 5. Assessment of Separate Violations for Each Day.

(1) The cabinet may assess separately a civil penalty for each day from the date of issuance of the notice or order to the date of abatement of the violation.

(a) In determining whether or not to make such an assessment, the cabinet shall consider the factors established in 400 KAR 1:110, Section 3(2) and may consider the extent to which the person to whom the notice or order was issued gained any economic benefit as a result of a failure to comply.

(b) For any violation that continues for two (2) or more days and that is assigned more than seventy (70) points pursuant to Section 3 of this administrative regulation, the cabinet shall assess a civil penalty for a minimum of two (2) separate days.

(2) In addition to the civil penalty process established in subsection (1) of this section, if a violation, condition, or practice contained in a notice of noncompliance and order for remedial measures or order for cessation and immediate compliance has not been abated within the abatement period set in the notice or order, a civil penalty of not less than $750 shall be assessed for each day during which the failure continues according to the provisions of 400 KAR 1:110, Section 13(2).

Section 6. Waiver of Use of Point System to Determine Civil Penalty.

(1) The cabinet upon its own initiative, or upon a written request by the person to whom the notice or order was issued that is received within fifteen (15) days of mailing of the proposed penalty assessment, may waive the use of the point system established in Section 3 of this administrative regulation to set the civil penalty, if the cabinet determines that, taking into account exceptional factors present in the particular case, the penalty is demonstrably unjust.

(a) The cabinet shall not waive the use of the point system or reduce the proposed assessment on the basis of an argument that a reduction in the proposed penalty could be used to abate the violation, condition, or practice.

(b) The basis for every waiver shall be fully explained and documented in the records of the case.

(2)

(a) If the cabinet waives the use of the point system, the cabinet shall use the criteria established in 400 KAR 1:110, Section 3(2) to determine the appropriate penalty.

(b) If the cabinet has elected to waive the use of the point system, shall give a written explanation of the basis for the assessment made to the person to whom the notice or order was issued.

Section 7. Incorporation by Reference.

(1) "Procedures for Assessment of Civil Penalties", 1995, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Department for Natural Resources, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 350.990(1), 30 C.F.R. Parts 730-733, 735, 845, 917, 30 U.S.C. 1268
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.465, 350.990(1), 30 C.F.R. Parts 730-733, 735, 845, 917, 30 U.S.C. 1268
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.990(1) requires the cabinet to promulgate an administrative regulation establishing the method for calculating monetary penalties. This administrative regulation establishes how and when penalties shall be assessed and includes a point system for calculating penalties, rules for assessing continuing violations, and a provision allowing waiver of the point system.
History: 405 KAR 007:095. 8 Ky.R. 1480; eff. 1-6-1983; 21 Ky.R. 524; 1345; 2119; eff. 2-22-1995; TAm eff. 8-9-2007; TAm eff. 7-6-2016; 44 Ky.R. 585, 1272; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 7:097 Reclamation in lieu of cash payment of civil penalties {#sec-405-kar-7-097 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:097}

Section 1. Applicability and General Provisions.

(1) This administrative regulation shall apply to a permittee, person, or operator who has been assessed a civil penalty under KRS 350.990 by a final order of the secretary of the cabinet.

(2) The cabinet may, in accordance with KRS 350.990(11) and this administrative regulation, allow a permittee, person, or operator to perform activities in lieu of cash payment of one (1) or more civil penalties, if the aggregate amount of the civil penalties is $2,500 or more.

(3) Activities under this administrative regulation shall be authorized under a binding agreement between the cabinet and the person owing the civil penalty. The agreement shall be termed a "Civil Penalty Reclamation Agreement."

(4) A permittee, person, or operator conducting activities authorized under this administrative regulation shall not be deemed an agent, contractor, or employee of the cabinet.

(5) A permittee, person, or operator conducting activities authorized under this administrative regulation shall obtain and maintain the legal right to enter upon the site and conduct the authorized activities.

(6)

(a) A permittee, person, or operator conducting activities authorized under this administrative regulation shall obtain and maintain liability insurance coverage in accordance with this subsection.

(b) The permittee, person, or operator shall submit a certificate issued by an insurance company authorized to do business in Kentucky certifying that the permittee, person, or operator has a public liability insurance policy in force for the authorized activities. The policy shall provide for personal injury and property damage protection in an amount adequate to compensate for all personal injury and property damage resulting from the authorized activities, including damage caused by the use of explosives and damage to water wells. Minimum insurance coverage for bodily injury and property damage shall be $300,000 for each occurrence and $500,000 aggregate.

(c) The policy shall be maintained in force during the term of the Civil Penalty Reclamation Agreement, until the cabinet has determined in writing that the terms of the Civil Penalty Reclamation Agreement have been satisfied.

(d) The policy shall include a clause requiring that the insurer notify the cabinet if a substantive change is made in the policy, including a termination or failure to renew.

(e) If the insurer becomes unable to fulfill its obligations under the policy, notice shall be given immediately to the permittee, person, or operator and the cabinet.

(f) Upon the incapacity of an insurer by reason of bankruptcy, insolvency, or suspension or revocation of its license or certificate of authority, the permittee, person, or operator shall be deemed to be without insurance coverage and shall promptly notify the cabinet. Notification shall not relieve the insurer of liability on its policy. The cabinet shall notify the permittee, person, or operator in writing, specifying a reasonable period to replace the coverage, not to exceed ninety (90) days. If adequate insurance coverage is not obtained by the end of the period allowed, the permittee, person, or operator shall cease the authorized activities and the cabinet may terminate the Civil Penalty Reclamation Agreement and require the permittee, person, or operator to pay the assessed civil penalty.

(7) If the activities authorized under this administrative regulation are for reclamation of a mine site, the permittee, person, or operator shall provide a performance bond. For activities other than reclamation of a mine site, the cabinet may require the permittee, person, or operator to provide a performance bond if the cabinet determines that the authorized activities could create a risk of environmental harm. This bond shall be in addition to a bond required by another federal, state, or local law. The cabinet shall determine the amount of the bond based upon site specific conditions. This subsection may be satisfied by a performance bond that meets the requirements of 405 KAR Chapter 10. The cabinet shall release the performance bond promptly after the cabinet has determined that the terms of the Civil Penalty Reclamation Agreement have been fulfilled, and the bond release procedures of 405 KAR 10:040 shall not apply.

(8) A permittee, person, or operator conducting activities authorized under this administrative regulation shall comply with applicable federal, state, and local laws and regulations.

(9) A permittee, person, or operator conducting activities authorized under this administrative regulation shall not engage in coal removal in connection with the authorized activities.

(10) Activities authorized under this administrative regulation shall be on-ground activities that directly result in reclamation, environmental rehabilitation, or correction of environmental pollution. Educational, promotional, training, and other activities that may indirectly affect the environment, shall not be authorized.

(11) Activities authorized under this administrative regulation shall not constitute government financed construction for the purposes of 405 KAR 7:030, Sections 2 and 3.

(12) The cabinet shall determine the location, scope, and time schedule for activities authorized under this administrative regulation.

(13) The Division of Abandoned Mine Lands shall determine the estimate of the cost of activities authorized or completed under this administrative regulation.

(14) Activities shall not be authorized under this administrative regulation unless their estimated cost exceeds the assessed amount of the civil penalty.

(15) The cost of activities in excess of the civil penalty amount covered in the Civil Penalty Reclamation Agreement shall not be credited or carried forward to satisfy a civil penalty not covered in the Civil Penalty Reclamation Agreement or a future civil penalty.

(16) The cabinet shall maintain appropriate records of activities conducted under this administrative regulation. The Department for Natural Resources shall maintain custody of the records. The cabinet shall request an audit of these records and activities authorized under this administrative regulation, at intervals of not more than five (5) years.

Section 2. Ineligible Permittees, Persons, or Operators. The cabinet shall not authorize a permittee, person, or operator to perform activities under this administrative regulation if the permittee, person, or operator is ineligible to receive a permit under KRS Chapter 350 and 405 KAR Chapters 7-24 for a reason other than nonpayment of a civil penalty.

Section 3. Ineligible Civil Penalties. The cabinet shall not authorize activities in lieu of cash payment of a civil penalty if:

(1) A violation that led to the civil penalty remains unabated; or

(2) The permittee, person, or operator owing the civil penalty has:

(a) Entered into an agreed order with the cabinet to pay the civil penalty; and

(b) Failed to comply with the terms of the agreed order.

Section 4. Ineligible Sites. The cabinet shall not authorize activities at the following sites:

(1) A site that is under a valid permit under KRS Chapter 350 for which the bond has not been forfeited;

(2) A site that is under another valid federal, state, or local permit, under which the permit holder has responsibility for environmental conditions at the site; or

(3) A site for which there is an ongoing enforcement action for violation of federal, state, or local environmental laws, unless the agency pursuing the enforcement action consents.

Section 5. Selection of Sites.

(1) For informational and planning purposes, the cabinet may develop and maintain a list of sites that may be suitable for activities under this administrative regulation, and may assign priorities to sites on the list. If the cabinet develops a list of sites, it shall be made available to the public. Authorization of a site for activities under this administrative regulation shall be made on a case-by-case basis and shall not be limited to sites on the list.

(2) The cabinet may consider sites and activities proposed by the permittee, person, or operator owing a civil penalty, but the cabinet shall not have an obligation to authorize, or give preference to, the sites or activities.

(3) The cabinet shall consult with the county fiscal court before authorizing activities on a site in the county. The county fiscal court may recommend sites or activities, but the cabinet shall not have an obligation to authorize, or give preference to, the sites or activities.

(4) The cabinet may consult with other federal, state, and local government agencies and officials, and with private organizations and individuals, regarding selection of sites and activities to be authorized.

(5) The cabinet may seek public input regarding selection of sites and activities to be authorized, through newspaper notice or by other means.

(6) The cabinet may give preference to sites or activities that address environmental impacts resulting from coal mining.

Section 6. Criteria Applicable to Activities and Costs.

(1) The following activities shall not be authorized under this administrative regulation:

(a) Activities which the permittee, person, or operator owing the civil penalty has a duty to perform under KRS Chapter 350 or other federal, state, or local law;

(b) Activities which the permittee, person, or operator owing the civil penalty, or other person, has a legal obligation to perform under a valid contract; and

(c) Activities on land or waters in which the permittee, person, or operator owing the penalty has, directly or indirectly, an ownership interest or other financial interest.

(2) The following activities and costs shall not be credited toward the civil penalty:

(a) Activities begun or costs incurred prior to the Civil Penalty Reclamation Agreement;

(b) The cost of labor, equipment, time, materials, or services, donated by persons other than the permittee, person, or operator owing the civil penalty;

(c) Payments or gifts by the permittee, person, or operator owing the civil penalty to government agencies or private organizations in exchange for their participation in planning or carrying out activities;

(d) Purchase or lease of land, easements, rights of way, or other access to property;

(e) Construction, modification or repair of a building or other structure, unless the function of the building or other structure is prevention, control, or abatement of environmental pollution;

(f) Repair of a road, unless the purpose of the repair is abatement and control of environmental pollution;

(g) Transportation costs; and

(h) Administrative costs and overhead.

(3) Activities may be authorized in conjunction with an abandoned mine land reclamation project of the cabinet under KRS 350.550 through 350.597.

(4) Activities may be authorized in conjunction with reclamation of a bond forfeiture site by the cabinet under KRS 350.150, if the permittee, person, or operator owing the civil penalty:

(a) Did not own or control the site under KRS Chapter 350;

(b) Was not an operator or agent on the site under KRS Chapter 350; and

Section 7. Request.

(1) A permittee, person, or operator desiring to perform in-kind reclamation, environmental rehabilitation, or similar action to correct environmental pollution in lieu of cash payment of a civil penalty shall make a written request to the Commissioner of the Department for Natural Resources. The request shall not be made contingent upon any particular proposed site or activities.

(2) The request shall identify:

(a) The permittee and permit number associated with the civil penalty;

(b) The identifying number of the noncompliance or cessation order that resulted in the civil penalty;

(d) The name, mailing address, and telephone number of the permittee, operator or person making the request; and

(e) The date of the request.

(3) If the civil penalty is owed by an individual, the request shall bear the signature of the individual.

(4) If the civil penalty is owed by a business entity, the request shall bear the signature and title of an authorized officer or agent of the business entity.

(5)

(a) For a civil penalty assessed by final order of the secretary on or after July 1, 1999, the request shall be filed within thirty (30) days after the date of the final order.

(b) For a civil penalty assessed by final order of the secretary prior to July 1, 1999, the request shall be filed not later than June 30, 2000.

(6) Within fifteen (15) days after receiving a request under this section, the cabinet shall notify the permittee, person, or operator, in writing, of whether the cabinet intends to pursue a Civil Penalty Reclamation Agreement with the permittee, person, or operator. The cabinet may require additional information relevant to the request.

(7) The permittee, person, or operator may withdraw the request at any time prior to entering into a Civil Penalty Reclamation Agreement, by providing written notice to the Commissioner of the Department for Natural Resources.

Section 8. Civil Penalty Reclamation Agreement.

(1) The Civil Penalty Reclamation Agreement shall specify:

(a) The effective date of the Civil Penalty Reclamation Agreement;

(b) The names of the parties to the Civil Penalty Reclamation Agreement;

(d) The identifying number of the noncompliance or cessation order that resulted in the civil penalty;

(e) The permit number and name of the permittee associated with the violation that led to the civil penalty;

(f) The activities authorized;

(g) The time span within which the authorized activities shall be completed;

(h) The site of the authorized activities;

(i) The requirements for legal right of entry, liability insurance, and performance bonding;

(j) The conditions under which the Civil Penalty Reclamation Agreement may be modified or terminated;

(k) The consequences of failure to satisfy the terms of the Civil Penalty Reclamation Agreement; and

(l) The effect of successful satisfaction of the terms of the Civil Penalty Reclamation Agreement.

(2) A Civil Penalty Reclamation Agreement may cover multiple civil penalties and sites:

(a) Multiple civil penalties may be covered at a single site; and

(b) A single civil penalty may be covered at multiple sites.

(3) The cabinet and the permittee, person, or operator owing the civil penalty shall be parties to the Civil Penalty Reclamation Agreement. Other parties may be included if the cabinet determines they are necessary parties to the Civil Penalty Reclamation Agreement.

(4) Except as provided in subsection (5) of this section, the Civil Penalty Reclamation Agreement may be modified or terminated at any time if approved in writing by all parties in accordance with the provisions established in the Civil Penalty Reclamation Agreement as required by subsection (1)(j) of this section.

(5) The cabinet may terminate the Civil Penalty Reclamation Agreement at any time if the permittee, person, or operator owing the civil penalty fails to satisfactorily fulfill the terms of the Civil Penalty Reclamation Agreement.

(6) The cabinet shall conduct field inspections as necessary to monitor progress under the Civil Penalty Reclamation Agreement.

(7) The civil penalty shall remain due and payable until the cabinet has determined in writing that the permittee, person, or operator owing the civil penalty has satisfactorily fulfilled the terms of the Civil Penalty Reclamation Agreement.

(8) The full assessed civil penalty shall be due and payable if the Civil Penalty Reclamation Agreement is breached.

History

RELATES TO: KRS 350.010, 350.020, 350.028, 350.130, 350.150, 350.151, 350.465, 350.550-350.597, 350.990, 30 C.F.R. Parts 730-733, 735, 845, 846, 917, 30 U.S.C. 1253, 1255, 1268
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.151, 350.465, 350.990, 30 C.F.R. Parts 730-733, 735, 845, 846, 917, 30 U.S.C. 1253, 1255, 1268
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. KRS 350.990(11) authorizes the cabinet to allow a permittee, person, or operator to perform in-kind reclamation, environmental rehabilitation, or similar action to correct environmental pollution, instead of making cash payment of a civil penalty assessed under KRS 350.990. KRS 350.990(11) authorizes the cabinet to promulgate administrative regulations as necessary to implement and administer its provisions. This administrative regulation establishes criteria and procedures to implement KRS 350.990(11). This administrative regulation differs from federal regulations as follows: There are no corresponding federal regulations that establish specific requirements applicable to state regulatory programs that provide for reclamation in lieu of cash payment of civil penalties. As a condition of federal approval of KRS 350.990(11), 30 CFR 917.16(c)(3) requires the cabinet to obtain federal approval of administrative regulations prior to implementation of KRS 350.990(11). This administrative regulation was submitted to the Office of Surface Mining Reclamation and Enforcement for approval as required by 30 CFR 917.16(c)(3) at 64 FR 3670, January 25, 1999.
History: 405 KAR 007:097. 25 Ky.R. 2048; 2594; 2861; eff. 6-9-1999; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 7:100 Notice of citizen suits {#sec-405-kar-7-100 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:100}

Section 1. Notice of Citizen Suits.

(1) A person who intends to initiate a civil action on his or her own behalf under KRS 350.250 or other statutory provision authorizing such an action shall give notice of intent to do so, in accordance with this administrative regulation.

(2) Notice shall be given by certified mail to the secretary in all cases and to the Attorney General as provided in CR 4.04(6).

(3) Notice shall be given by certified mail to the alleged violator, if the complaint alleges a violation of KRS Chapter 350 or any administrative regulation, order, or permit issued under KRS Chapter 350.

(4) Service of notice under this administrative regulation is complete upon mailing to the last known address of the person being notified.

(5) A person giving notice regarding an alleged violation shall state, to the extent known:

(a) Sufficient information to identify the provision of KRS Chapter 350, administrative regulation, order, or permit allegedly violated;

(b) The act or omission alleged to constitute a violation;

(d) The date, time, and location of the alleged violation;

(e) The name, address, and telephone number of the person giving notice; and

(f) The name, address, and telephone number of legal counsel, if any, of the person giving notice.

(6) A person giving notice of an alleged failure by the secretary to perform a mandatory act or duty under KRS Chapter 350 shall state, to the extent known:

(a) The provision of KRS Chapter 350 containing the mandatory act or duty allegedly not performed;

(b) Sufficient information to identify the omission alleged to constitute the failure to perform a mandatory act or duty under KRS Chapter 350;

(d) The name, address, and telephone number of legal counsel, if any, of the person giving notice.

History

RELATES TO: KRS 350.250
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.250, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations. This administrative regulation pertains to suits brought by citizens pursuant to KRS 350.250 and delineates the procedural requirements of notice to the cabinet, including notice, service of notice, sufficient pleadings, necessary allegations, specific allegations to be contained on the notice, and identifying information about the person sending the notice.
History: 405 KAR 007:100. 8 Ky.R. 1482; eff. 1-6-1983; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 7:110 Petitions for rulemaking {#sec-405-kar-7-110 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:110}

Section 1. Petitions for Rulemaking.

(1) Any person may petition the secretary to initiate a proceeding for the issuance, amendment, or repeal of any administrative regulation promulgated pursuant to KRS Chapter 350. The cabinet will not accept a petition relating to an administrative regulation that is in the process of being promulgated or amended under the normal promulgation procedures of KRS Chapter 13 since the petitioner is provided an opportunity to be heard under those procedures. Similarly, the cabinet will not accept a petition on an emergency administrative regulation where the cabinet is intending to or has initiated the regular promulgation process under KRS Chapter 13.

(2) The person petitioning for a rulemaking shall make his or her petition in writing and shall set forth the facts, technical justification and law which support the petition. The facts and the technical justification must be sufficient for the cabinet to make a decision as to the merits of the petition within the time required below. Insufficient facts and technical justification shall be grounds for denial of the petition. The petition shall set forth the basis in law for the proposed rulemaking and shall justify the proposal as being neither more nor less stringent than allowed by SMCRA and KRS Chapter 350.

(3) Upon submission of a petition, the petitioner shall publish notice of submission of the petition in newspapers designated by the cabinet according to KRS Chapter 424. The notice shall briefly identify the subject of the petition, state that copies are on file for public review at the Frankfort office of the cabinet, and state that any person may within fifteen (15) days of publication of the notice request a public hearing on the petition by written request to the cabinet. The notice shall also state that anyone requesting a hearing will be informed by letter from the cabinet of the time and place of the hearing.

(4) A petition will not be deemed complete until the petitioner submits to the cabinet a copy of the published notice and proof of publication of the notice in the form of an affidavit from the publishers.

(5) The cabinet will hold any requested public hearing within thirty (30) days of the filing of the complete petition. The hearing shall be legislative in nature.

(6) The secretary shall render a final order granting or denying the petition within thirty (30) days after the hearing or within sixty (60) days of the filing of the complete petition if no hearing was requested. The final order shall grant or deny the petition on the grounds that there is or is not a reasonable basis for the petitioned rule change or that such change is required or prohibited by law. The order shall be in writing and shall explicitly set forth the reasons for the decision.

(7) If a petition is granted proposing the issuance, amendment or repeal of administrative regulations which were the subject of the petition, the secretary shall initiate the rulemaking proceeding pursuant to KRS Chapter 13 within thirty (30) days of the final order granting the petition.

(8) Any participant in the petition proceedings may seek review of an order of the secretary denying all or any portion of the action requested in a petition in the Franklin County Circuit Court.

Section 2. Suspension of Administrative Regulations. The secretary may, on a case-by-case basis, suspend any administrative regulation or portion of any administrative regulation when the secretary determines that such administrative regulation (or such similar regulation promulgated by an agency of the federal government for which the cabinet is under a duty by law to have a consistent regulation in point) has been held by a court of competent jurisdiction to be unlawful, unconstitutional, or otherwise defective; or when the secretary determines that the state administrative regulation is inconsistent with KRS Chapter 350 due to changes in the corresponding federal regulation. In making a decision to suspend an administrative regulation, the secretary shall consider the duties of the cabinet to implement a permanent regulatory program, its general statutory authority and duties, and the requirements as set forth by law as to the stringency of the cabinet's regulatory program.

History

RELATES TO: KRS 350.255
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.255, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part directs the cabinet to include, as part of its permanent regulatory program for surface coal mining and reclamation operations, certain procedural regulations relating to due process hearings and rulemaking. This administrative regulation specifies how any person may petition the secretary of the cabinet to initiate rulemaking procedures. The administrative regulation sets forth petition requirements, time limits, and other aspects of the rulemaking petition process.
History: 405 KAR 007:110. 8 Ky.R. 1482; eff. 1-6-1983; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

Chapter 8 Permits

405 KAR 8:001 Definitions for 405 KAR Chapter 8 {#sec-405-kar-8-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:001}

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) "Acquisition" means 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.

(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 or groundwater, fish, wildlife, vegetation, or other resources protected by KRS Chapter 350 could be adversely impacted by surface coal mining and reclamation operations.

(5) "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.

(6) "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;

(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;

(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:

Was designated as a public road pursuant to the laws of the jurisdiction in which it is located;
Is maintained with public funds and constructed in a manner similar to other public roads of the same classification within the jurisdiction; and
There is substantial (more than incidental) public use.

(7) "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 405 KAR Chapter 24.

(8) "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.

(9) "Approximate original contour" is defined by KRS 350.010.

(10) "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.

(11) "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 shall also include 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.

(12) "Best technology currently available" means equipment, devices, systems, methods, or techniques;

(a) That prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area and minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife, and related environmental values, and achieve enhancement of those resources if practicable;

(b) That are currently available anywhere as determined by the cabinet, even if not in routine use; and

(c) includes construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with 405 KAR Chapters 16 and 18. The cabinet shall have the discretion to determine the best technology currently available, as authorized by KRS Chapter 350 and 405 KAR Chapters 7 through 24.

(13) "Cabinet" is defined by KRS 350.010.

(14) "Cemetery" means any area where human bodies are interred.

(15) "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.

(16) "C.F.R." means Code of Federal Regulations.

(17) "Coal" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77.

(18) "Coal exploration" means the field gathering of:

(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.

(19) "Coal mine waste" means coal processing waste and underground development waste.

(20) "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.

(21) "Coal processing waste" means materials separated from the product coal during the cleaning, concentrating, or other processing or preparation of coal.

(22) "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.

(23) "Combustible material" means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

(24) "Community or institutional building" means a structure, other than a public building or occupied dwelling, that is used:

(a) For meetings, gatherings, or functions of:

A local civic organization; or
Other community group;

(b) As a facility for the following purposes:

Educational;
Cultural;
Historic;
Religious;
Scientific; or
Correctional;

(d) To supply water;

(e) To generate power;

(f) To treat sewage; or

(g) For another public service.

(25) "Compaction" means increasing the density of a material by reducing the voids between the particles by mechanical effort.

(26) "Complete and accurate application" means an application for permit approval, or approval for coal exploration if required, which the cabinet determines to contain all information required under, and necessary to comply with, KRS Chapter 350 and 405 KAR Chapters 7 through 24, in order to make decisions concerning its administrative and technical acceptability and if a permit or exploration approval could be issued.

(27) "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.

(28) "Cumulative impact area" means the area, including the permit area, within which impacts resulting from the proposed operation could interact with the impacts of all anticipated mining on surface and groundwater systems. Anticipated mining includes, at a minimum, the entire projected lives through bond release of:

(a) The proposed operation;

(b) All existing operations;

(d) All operations required to meet diligent development requirements for leased federal coal for which there is actual mine development information available.

(29) "Day" means calendar day unless otherwise specified to be a working day.

(30) "Department" means the Department for Natural Resources.

(31) "Developed water resources land" means land used for storing water for beneficial uses such as stockponds, irrigation, fire protection, flood control, and water supply.

(32) "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.

(33) "Diversion" means a channel, embankment, or other manmade structure constructed to divert water from one (1) area to another.

(34) "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.

(35) "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.

(36) "Excess spoil":

(a) Means spoil disposed of in a location other than the coal extraction area; and

(b) Does not mean spoil material used to achieve the approximate original contour.

(37) "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.

(38) "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 include Indian lands.

(39) "Forest land" means land used or managed for the long-term production of wood, wood fiber, or wood derived products.

(40) "Fugitive dust" means particulate matter that becomes airborne due to wind erosion from exposed surfaces.

(41) "General area" means, with respect to hydrology, the topographic and groundwater basin surrounding a permit area that is of sufficient size, including areal extent and depth, to include one (1) or more watersheds containing perennial streams and groundwater zones and to allow assessment of the probable cumulative impacts on the quality and quantity of surface and groundwater systems in the basins.

(42) "Ground cover" means the area of ground covered by the combined aerial parts of vegetation and litter produced and distributed naturally and seasonally on site, expressed as a percentage of the total area of measurement.

(43) "Groundwater" means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated.

(44) "Growing season" means the period during a one (1) year cycle, from the last killing frost in the spring to the first killing frost in the fall, in which climatic conditions are favorable for plant growth. In Kentucky, this period normally extends from mid-April to mid-October.

(45) "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.

(46) "Historically used for cropland."

(a) Historically used for cropland" means that lands have been used for cropland for any of five (5) years or more of the ten (10) years immediately preceding the:

Application; or
Acquisition of the land for the purpose of conducting a surface coal mining and reclamation operation;

(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 are considered "historically used for cropland," including:

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
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.

(47) "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.

(48) "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.

(49) "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.

(50) "Impounding structure" means a dam, embankment, or other structure used to impound water, slurry, or other liquid or semiliquid material.

(51) "Impoundment" means a water, sediment, slurry, or other liquid or semiliquid holding structure or depression, either naturally formed or artificially built.

(52) "Incidental boundary revision" means an extension to a permit area or shadow area that is necessary for reasons unforeseen when the original permit application was prepared and that is small in relation to the original or amended permit area or shadow area.

(53) "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.

(54) "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.

(55) "Intermittent stream" means a stream or reach of a stream that:

(a) Drains a watershed of one (1) square mile or more but does not flow continuously during 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 runoff and groundwater discharge.

(56) "Irreparable damage to the environment" means any damage to the environment, in violation of SMCRA, KRS Chapter 350, or 405 KAR Chapters 7 through 24, that cannot be corrected by actions of the applicant.

(57) "KAR" means Kentucky administrative regulations.

(58) "KRS" means Kentucky Revised Statutes.

(59) "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.

(60) "Material damage", as used in 405 KAR 8:040, Section 26 means:

(a) Any functional impairment of surface lands, features, structures, or facilities;

(b) Any physical change that has a significant adverse impact on the affected land's capability to support any current or reasonably foreseeable uses or causes significant loss in production or income; or

(c) Any significant change in the condition, appearance, or utility of any structure or facility from its presubsidence condition.

(61) "Monitoring" means the collection of environmental data by either continuous or periodic sampling methods.

(62) "MRP" means mining and reclamation plan.

(63) "MSHA" means Mine Safety and Health Administration.

(64) "Mulch" means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, thus providing microclimatic conditions suitable for germination and growth.

(65) "Noncommercial building":

(a) Means any building, other than an occupied residential dwelling, that, at the time the subsidence occurs, is used on a regular or temporary basis as a public building or community or institutional building; and

(b) Does not mean any building used only for commercial agricultural, industrial, retail, or other commercial enterprises.

(66) "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 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.

(67) "Notice of violation" means any written notification from a governmental entity of a violation of law or regulation, whether by letter, memorandum, legal or administrative pleading, or other written communication. This includes a notice of noncompliance and order for remedial measures.

(68) "Occupied dwelling" means any building that is currently being used on a regular or temporary basis for human habitation.

(69) "Occupied residential dwelling and structures related thereto":

(a) Means, for purposes of 405 KAR 8:040, Section 26, and 405 KAR 18:210, any building or other structure that, at the time the subsidence occurs, is used either temporarily, occasionally, seasonally, or permanently for human habitation. This term also includes any building, structure or facility installed on, above or below, or a combination thereof, the land surface if that building, structure or facility is adjunct to or used in connection with an occupied residential dwelling. Examples of these structures include garages; storage sheds and barns; greenhouses and related buildings; utilities and cables; fences and other enclosures; retaining walls; paved or improved patios, walks and driveways; septic sewage treatment facilities; and lot drainage and lawn and garden irrigation systems; and

(b) Does not mean any structure used only for commercial agricultural, industrial, retail or other commercial purposes.

(70) "Operations" is defined by KRS 350.010.

(71) "Operator" is defined by KRS 350.010.

(72) "Order for cessation and immediate compliance" means a written document and order issued by an authorized representative of the cabinet when:

Creates an imminent danger to the health or safety of the public; or
Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air or water resources.

(73) "OSM" means Office of Surface Mining Reclamation and Enforcement, United States Department of the Interior.

(74) "Other mineral" means any commercially valuable substance mined for its mineral value, excluding coal, topsoil, waste, and fill material.

(75) "Overburden" is defined by KRS 350.010.

(76) "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 subsection.

(a)

Being a permittee of a surface coal mining operation;
Based on instruments of ownership or voting securities, owning of record in excess of fifty (50) percent of an entity; or
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) The following relationships are presumed to constitute ownership or control unless a person can demonstrate 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:

Being an officer or director of an entity;
Being the operator of a surface coal mining operation;
Having the ability to commit the financial or real property assets or working resources of an entity;
Being a general partner in a partnership;
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
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.

(77) "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.

(78) "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."

(79) "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.

(80) "Permanent diversion" means a diversion remaining after surface coal mining and reclamation operations are completed that has been approved for retention by the cabinet and other appropriate Kentucky and federal agencies.

(81) "Permit" means written approval issued by the cabinet to conduct surface coal mining and reclamation operations.

(82) "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 shall include 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.

(83) "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.

(84) "Person" is defined by KRS 350.010.

(85) "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 may 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 may be adversely affected by coal exploration or surface coal mining and reclamation operations, or by any related action of the cabinet.

(86) "Previously mined area" means land that was affected by coal mining operations conducted prior to August 3, 1977, that has not been reclaimed to the standards of this title.

(87) "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.

(88) "Principal shareholder" means any person who is the record or beneficial owner of ten (10) percent or more of any class of voting stock of the applicant.

(89) "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.

(90) "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.

(91) "Property to be mined" means both the surface and mineral estates on and underneath lands within the permit area and shadow area.

(92) "Public building" means any structure that is owned or leased, and principally used by a governmental agency for public business or meetings.

(93) "Publicly-owned park" means a public park that is owned by a federal, state, or local governmental entity.

(94) "Public office" means a facility under the direction and control of a governmental entity that is open to public access on a regular basis during reasonable business hours.

(95) "Public park" means an area dedicated or designated by any federal, state, or local agency primarily for public recreational use, regardless of if the use is limited to certain times or days. The term includes any land leased, reserved, or held open to the public because of that use.

(96) "Public road" means any publicly owned thoroughfare for the passage of vehicles.

(97) "Recharge capacity" means the ability of the soils and underlying materials to allow precipitation and runoff to infiltrate and reach the zone of saturation.

(98) "Reclamation" is defined by KRS 350.010.

(99) "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.

(100) "Reference area" means a land unit maintained under appropriate management for the purpose of measuring vegetative ground cover, productivity, and plant species diversity that are produced naturally or by crop production methods approved by the cabinet pursuant to 405 KAR 16:200 and 18:200.

(101) "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.

(102) "Remining" means conducting surface coal mining and reclamation operations that affect previously mined areas.

(103) "Renewable resource lands."

(a) As used in 405 KAR Chapter 24, "renewable resource lands" means geographic areas that contribute significantly to the long-range productivity of water supplies or of food or fiber products, these lands to include aquifers and aquifer recharge areas; and

(b) As used in 405 KAR 8:040, Section 26, "renewable resource lands" means aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands.

(104) "Residential land" means tracts employed for single and multiple-family housing, mobile home parks, and other residential lodgings.

(105) "Road":

(106) "SCS" means Soil Conservation Service.

(107) "Secretary" is defined by KRS 350.010.

(108) "Sedimentation pond":

(a) Means a primary sediment control structure:

Designed, constructed, or maintained pursuant to 405 KAR 16:090 or 405 KAR 18:090; and
That could include a barrier, dam, or excavated depression to:

a. Slow water runoff; and

b. Allow suspended solids to settle out; and

(b) Does not mean secondary sedimentation control structures, including a straw dike, riprap, check dam, mulch, dugout, or other measure that reduces overland flow velocity, reduces runoff volume, or trap sediment, to the extent that the secondary sedimentation structure drains into a sedimentation pond.

(109) "Shadow area" means the surface area overlying underground mine works and surface areas associated with auger and in situ mining.

(110) "Significant, imminent environmental harm" means an adverse impact on land, air, or water resources including plant and animal life as further defined in paragraphs (a) and (b) of this subsection.

(a) An environmental harm is imminent, if a condition, practice, or violation exists that:

Is causing environmental harm; or
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; and

(b) An environmental harm is significant if that harm is appreciable and not immediately reparable.

(111) "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 could also be expressed as a percent or in degrees.

(112) "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.

(113) "Small operator", as used in 405 KAR 8:030, Section 3(5) and 405 KAR 8:040, Section 3(5), is defined by KRS 350.450(4)(c).

(114) "SMCRA" means Surface Mining Control and Reclamation Act, 30 U.S.C. Chapter 25.

(115) "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:

(d) "C horizon." The deepest layer of soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity.

(116) "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.

(117) "Spoil" means overburden and other materials, excluding topsoil, coal mine waste, and mined coal, that are excavated during surface coal mining and reclamation operations.

(118) "Stabilize" means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties, such as by providing a protective surface coating.

(119) "Steep slope" means any slope of more than twenty (20) degrees.

(120)

(a) "Substantial legal and financial commitments" means significant investments, that have been made on the basis of a long-term coal contract, consisting of actual expenditures of substantial monies or execution of valid and binding contracts involving substantial monies for such things as power plants; railroads; coal handling, preparation, extraction, and storage facilities; and other capital-intensive activities such as:

Improvement or modification of coal lands within, for access to, or in support of surface coal mining and reclamation operations in the petitioned area;
Acquisition of capital equipment for use in, for access to, or for use in support of surface coal mining and reclamation operations in the petitioned area; and
Exploration, mapping, surveying, and geological work, as well as expenditures of engineering and legal fees, associated with the acquisition of the property or preparation of an application to conduct surface coal mining and reclamation operations in the petitioned area; and

(b) Does not mean the costs of acquiring the coal in place or the right to mine such coal in the absence of other investments as established in paragraph (a) of this subsection.

(121) "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.

(122) "Successor in interest" means any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights.

(123) "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.

(124) "Surface coal mining and reclamation operations" is defined by KRS 350.010.

(125) "Surface coal mining operations" is defined by KRS 350.010.

(126) "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.

(127) "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).

(128) "Temporary diversion" means a diversion of a stream or overland flow that is used during coal exploration or surface coal mining and reclamation operations and not approved by the cabinet to remain after reclamation as part of the approved postmining land use.

(129) "Ton" means 2000 pounds avoirdupois (.90718 metric ton).

(130) "Topsoil" means the A and E soil horizon layers of the four (4) master soil horizons.

(131) "Toxic-forming materials" means earth materials or wastes which, 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.

(132) "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.

(133) "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.

(134) "TRM" means Technical Reclamation Memorandum.

(135) "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.

(136) "Underground mining activities" means a combination of:

(137) "USDA" means United States Department of Agriculture.

(138) "U.S. EPA" means United States Environmental Protection Agency.

(139) "USGS" means United States Geological Survey.

(140) "Valid existing rights":

(a) Means:

Except for haul roads, property rights in existence on August 3, 1977, that were created by a legally binding conveyance, lease, contract or other instrument that authorizes the applicant to produce coal and the person proposing to conduct a surface coal mining operation on the lands either:

a. Had been validly issued or had made a good faith effort to obtain, on or before August 3, 1977, all state and federal permits necessary to conduct surface coal mining operations on those lands, application for the permits being deemed to constitute good faith efforts to obtain the permits; or

b. Can demonstrate to the cabinet that the coal is both needed for, and immediately adjacent to, an ongoing surface coal mining operation for which all permits were obtained prior to August 3, 1977;

For haul roads:

a. A recorded right-of-way, recorded easement, or a permit for coal haul road recorded as of August 3, 1977; or

b. Any other road in existence as of August 3, 1977; and

(b) Does not mean the mere expectation of a right to conduct surface coal mining operations or the right to conduct underground coal mining.

(141) "Water transmitting zone" means a body of consolidated or unconsolidated rocks that, due to their greater primary or secondary permeability relative to the surrounding rocks, can reasonably be considered to function as a single hydraulic medium for the flow of groundwater.

(142) "Wetland" means land that has a predominance of hydric soils and that is inundated or saturated by surface or groundwater 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 a growing season to develop an anaerobic condition that supports the growth and regeneration of hydrophytic vegetation.

(b) "Hydrophytic vegetation" means a plant growing in:

Water; or
A substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content.

(143) "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.

History

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
STATUTORY AUTHORITY: KRS 350.028(1), (5), 350.465, 7 C.F.R. Part 657, 30 C.F.R. Parts 730-733, 735, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1) and (5) and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation defines terms used in 405 KAR Chapter 8.
History: 405 KAR 008:001. 18 Ky.R. 2460; 2837; eff. 4-3-1992; 19 Ky.R. 467; 1360; eff. 11-23-1992; 24 Ky.R. 667; 2622; eff. 6-10-1998; TAm eff. 8-9-2007; TAm eff. 7-6-2016; 44 Ky.R. 588, 993, 1274; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 8:010 General provisions for permits {#sec-405-kar-8-010 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:010}

Section 1. Applicability. Excluding coal exploration operations, this administrative regulation shall apply to applications, actions regarding permits, and surface coal mining and reclamation operations.

Section 2. General Requirements.

(1) Permanent program permits required. A person shall not engage in surface coal mining and reclamation operations unless that person has first obtained a valid permanent program permit pursuant to 405 KAR Chapter 8.

(2) General filing requirements for permanent program permit applications.

(a) Each person who intends to engage in surface coal mining and reclamation operations or underground only operations shall:

File a complete and accurate application for a permanent program permit that shall comply fully with applicable requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24; and
Not begin the operation until the permit has been granted.

(b) Renewal of valid permanent program permits. An application for renewal of a permit pursuant to Section 21 of this administrative regulation shall be filed with the cabinet at least 120 days before the expiration of the permit.

(c) Revision of permanent program permits. A permittee may apply for a revision of a permit, but shall not vary from the requirements of the permit until the revision has been approved by the cabinet. The term of a permit shall remain unchanged by a revision.

(d) Succession to rights granted pursuant to prior permanent program permits.

An application for the transfer, sale, or assignment of rights granted pursuant to a permit may be submitted.
The actual transfer, sale, or assignment of permit rights shall not take place until written permission has been granted by the cabinet pursuant to 405 KAR Chapters 7 through 24.

(e) Amendment of permanent program permits. A permittee may apply for an amendment to a permit pursuant to Section 23 of this administrative regulation, but shall not begin surface coal mining and reclamation operations on the areas until the amendment has been approved by the cabinet. The term of a permit shall remain unchanged by an amendment.

(3) Compliance with permits. A person engaging in surface coal mining and reclamation operations pursuant to a permit issued pursuant to KRS Chapter 350 shall comply with the terms and conditions of the permit, including the plans and other documents submitted as part of the application and approved by the cabinet and the applicable requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24.

Section 3. Coordination of Review of Permit Applications.

(1) For the purposes of avoiding duplication, the cabinet shall coordinate the review and issuance of permits for surface coal mining and reclamation operations with:

(a) Any other federal or Kentucky permit process applicable to the proposed operations, as required by Section 503 of SMCRA, 30 U.S.C. 1201 - 1328 and 30 C.F.R. 700 - 955; and

(b) Applicable requirements of the Endangered Species Act of 1973, 16 U.S.C. 1531-1544; the Fish and Wildlife Coordination Act of 1934, 16 U.S.C. 661-667d; the Migratory Bird Treaty Act of 1918, 16 U.S.C. 703-712; the National Historic Preservation Act of 1966, (54 U.S.C. 300101 – 307108; and the Bald Eagle Protection Act of 1940, 16 U.S.C. 668-668d, as required by 30 C.F.R. 773.12.

(2) This coordination shall be accomplished by providing the appropriate agencies with an opportunity to comment on permit applications as established in Section 8(6) and (7) of this administrative regulation and, if necessary, by any other measures the cabinet and interested parties agree are appropriate.

Section 4. Preliminary Requirements.

(1) A person desiring a permit may submit to the cabinet a Preliminary Application, MPA-00.

(2) If the permittee chooses to submit a Preliminary Application, the Preliminary Application shall contain pertinent information, including a map at a scale of one (1) inch equals 400 or 500 feet, marked to show the proposed permit area, shadow area, and adjacent areas; and the areas of land to be affected, including, for example, locations of the coal seam or seams to be mined, access roads, haul roads, spoil or coal waste disposal areas, and sedimentation ponds.

(a) Areas delineated on the map shall be physically marked at the site; and

(b) Pursuant to KRS Chapter 350 and 405 KAR Chapters 7 – 24, personnel of the cabinet shall conduct, within fifteen (15) working days after the filing of the Preliminary Application, an on-site investigation of the area with the person or his or her representatives and representatives of appropriate local, state, or federal agencies, after which the person may submit a permit application.

Section 5. General Format and Content of Applications.

(1)

(a) Applications for permits to conduct surface coal mining and reclamation operations shall be filed in the number, form, and content required by the cabinet, in accordance with KRS 350.060(5) and (6), including a copy to be filed for public inspection pursuant to Section 8(8) of this administrative regulation.

(b) The application and copies shall be prepared, assembled, and submitted with attachments, plans, maps, certifications, drawings, calculations, or other documentation necessary for the cabinet to review the proposed surface coal mining and reclamation operations.

Permittee Information for a Mining Permit, MPA-01;
Operator Information for a Mining Permit, MPA-02;
Technical Information for Mining Permit, MPA-03;
Surface Owner's Affidavit: Lands Historically Used for Cropland, MPA-03-20.1.B.;
Disinterested Third Party Affidavit: Lands Historically Used for Cropland, MPA-03.20.1.C.;
Update of Permittee or Operator Information, MPA-05;
Change of Corporate Owners, Officers or Directors, MPA-06;
Application to Transfer a Mining Permit, MPA-07;
Revision Application to Change Operator, MPA-08;
Application for Renewal of a Mining Permit, MPA-09;
Application for a Coal Marketing Deferment, MPA-10; and
Minor Field Revision Application Form, SME 80.

(d) The application shall be complete with respect to all information required by 405 KAR Chapters 7 - 24 and include, at a minimum for:

Surface mining activities, all the applicable information required pursuant to 405 KAR 8:030;
Underground mining activities, all the information required pursuant to 405 KAR 8:040; and
Special types of surface coal mining and reclamation operations, all the information required pursuant to 405 KAR 8:050.

(e) An application shall not be determined to be administratively complete unless all design plans for the permit area are in detailed form.

(2) Information established in the application shall be current, presented clearly and concisely, and supported by appropriate references to technical and other written material available to the cabinet.

(3) The collection and analysis of technical data submitted in the application shall be planned by or conducted under the direction of a professional qualified in the subject to be analyzed and shall be accompanied by:

(a) Names of persons or organizations that collected and analyzed the data;

(b) Dates of the collection and analyses; and

(4) The application shall state the name, address, and position of officials of each private or academic research organization or governmental agency that provided information that has been made a part of the application regarding land uses; soils; geology; vegetation; fish and wildlife; water quantity and quality; air quality; and archaeological, cultural, and historic features.

(5)

(a) The applicant shall designate in the permit application either the applicant or some other person to serve as agent for service of notices and orders.

The designation shall identify the person by full name and complete mailing address, and if a natural person, the person's Social Security number.
The person shall continue as agent for service of process until a written revision of the permit has been made to designate another person as agent.

(b) The applicant may authorize a person to submit application modifications to the cabinet. If the designation has not been made in the application, or in separate correspondence, the cabinet shall accept modifications only from the applicant.

(6) General requirements for maps and plans.

(a) If information marked on the preliminary map required pursuant to Section 4 of this administrative regulation has changed, the application shall contain an updated USGS seven and one-half (7 1/2) minute topographic map marked as required in Section 4 of this administrative regulation.

(b)

Maps submitted with applications shall be presented in a consolidated format, to the extent possible, and shall include the types of information established on topographic maps of the U.S. Geological Survey of the 1:24,000 scale series.
Maps of the permit area, shadow area, and adjacent areas shall be at a scale of 400 or 500 feet to the inch, inclusive; and the scale shall be clearly shown on the map.
A map of scale larger than 400 feet to the inch shall be provided by the applicant if the larger scaled map is needed to adequately show mine site details.
The map required by 405 KAR 8:030, Section 23(1)(a) or 405 KAR 8:040, Section 23(1)(a), regarding additional areas on which permits will be sought, shall be a USGS seven and one-half (7 1/2) minute (1:24,000) topographic map.

(c) If a map or drawing is required to be certified by a qualified professional engineer, as defined by KRS 322.010(3), the map or drawing shall bear the seal and signature of the engineer as required by KRS 322.340, and shall be certified in accordance with 405 KAR 7:040, Section 10.

(d) All engineering design plans submitted with an application shall be prepared by or under the direction of a qualified professional engineer and shall bear the engineer's seal, signature, and certification as required by KRS 322.340 and 405 KAR 7:040, Section 10.

(e) Maps and plans submitted with the application shall clearly identify all previously mined areas as defined at 405 KAR 16:190, Section 7(2)(c) or 405 KAR 18:190, Section 5(2)(c).

(7) Referenced materials. If used in the application, referenced materials shall either be provided to the cabinet by the applicant or be readily available to the cabinet. If provided, relevant portions of referenced published materials shall be presented briefly and concisely in the application by photocopying or abstracting and with explicit citations.

Section 6. Application and Acreage Fees.

(1) Each application for a surface coal mining and reclamation permit shall be accompanied by the fees established in this administrative regulation. The fee may be less than, but shall not exceed the actual or anticipated cost of reviewing, administering, and enforcing the permit.

(2) An applicant shall submit an application fee of $2,500 for an original application or $1,750 for an amendment.

(3) An applicant shall also submit an additional seventy-five (75) dollars for each acre or fraction thereof of the area of land to be affected by the operation.

(a) If the cabinet approves an incremental bonding plan submitted by the applicant, the acreage fees may be paid individually as the bond for each increment is submitted.

(b) An acreage fee shall not be required for surface areas overlying underground or auger workings that will not be affected by surface operations and facilities.

(4) The fee shall accompany the application in the form of a cashier's check or money order payable to the Kentucky State Treasurer. A permit application shall not be processed unless the application fee has been paid.

Section 7. Verification of Application. Applications for permits; revisions; amendments; renewals; or transfers, sales, or assignments of permit rights shall be verified under oath, before a notary public, by the applicant or the applicant's authorized representative, that the information contained in the application is true and correct to the best of the official's information and belief.

Section 8. Public Notice of Filing of Permit Applications.

(1) An applicant for a permit, major revision, amendment, or renewal of a permit shall place an advertisement in the newspaper of largest bona fide circulation as established in KRS 424.110 to 424.120, in the county where the proposed surface coal mining and reclamation operations are to be located.

(2)

(a) The first advertisement shall be published on or after the date the:

Application is submitted to the cabinet; or
Applicant receives the notification from the cabinet pursuant to Section 13(2) of this administrative regulation that the application has been deemed administratively complete and ready for technical review.

(b) The advertisement shall be published at least once each week for four (4) consecutive weeks, with the final consecutive weekly advertisement being published after the applicant's receipt of written notice from the cabinet that the application has been deemed administratively complete and ready for technical review.

(c) The final consecutive weekly advertisement shall clearly state that it is the final advertisement and that written objections to the application shall be submitted to the cabinet until thirty (30) days after the date of the final advertisement.

(3) Within fifteen (15) days of the final date of publication of the advertisement, the applicant shall submit to the cabinet proof of publication of the required final four (4) consecutive weekly notices, in accordance with this section that shall consist of an affidavit from the publishing newspaper certifying the dates, place, and content of the advertisements.

(4) The advertisement shall be entitled "Notice of Intention to Mine" and shall be as established in subsection (5) of this section.

(5) The advertisement shall contain, at a minimum:

(a) The name and business address of the applicant;

(b) A map or description that shall:

Clearly show or describe towns, rivers, streams, and other bodies of water, local landmarks, and any other information, including routes, streets, or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area;
Clearly show or describe the exact location and boundaries of the proposed permit area;
State the name of the U.S. Geological Survey 7.5 minute quadrangle map that contains the area shown or described; and
Show the north arrow and map scale, if a map is used;

(c) The location where a copy of the application shall be available for public inspection pursuant to subsection (8) of this section;

(d) The name and address of the cabinet to which written comments, objections, or requests for permit conferences on the application may be submitted pursuant to Sections 9, 10, and 11 of this administrative regulation;

(e) If an applicant seeks a permit to mine within 100 feet of the outside right-of-way of a public road or to relocate or close a public road; except if public notice and hearing have been previously provided for this particular part of road in accordance with 405 KAR 24:040, Section 2(6); a concise statement describing the public road, the particular part to be relocated or closed, and the approximate timing and duration of the relocation or closing;

(f) A statement, if the application includes a request for an experimental practice pursuant to 405 KAR 7:060, indicating that an experimental practice is requested that identifies the regulatory requirement for which a variance is requested; and

(g) The application number.

(6) Within five (5) working days after the application for a permit, major revision, amendment, or renewal of a permit has been determined to be administratively complete, the cabinet shall issue written notification of:

(a) The applicant's intention to conduct surface coal mining and reclamation operations on a particularly described tract of land;

(b) The application number;

(d) Where comments on the application may be submitted pursuant to Section 9 of this administrative regulation.

(7) The written notifications required by subsection (6) of this section shall be sent to:

(a) Local government agencies with jurisdiction over or an interest in the area of the proposed operations, including:

Planning agencies;
Sewage or water treatment authorities; and
Water companies, either providing sewage or water services to users in the area of the proposed operations or having water sources or collection, treatment, or distribution facilities located in these areas;

(b) All federal and Kentucky governmental agencies that have the authority to issue permits and licenses applicable to the proposed surface coal mining and reclamation operation and that are a part of the permit coordination process required by Section 3 of this administrative regulation; and

USDA Soil Conservation Service State Conservationist;
Local U.S. Army Corps of Engineers district engineer;
National Park Service;
U.S. Department of Fish and Wildlife and Kentucky Department of Fish and Wildlife Resources; and
State historic preservation officer.

(8) In accordance with Section 12 of this administrative regulation, the cabinet shall, upon receipt of the application:

(a) Make the application available for public inspection and copying during all normal working hours at the appropriate regional office of the cabinet where the mining has been proposed; and

(b) Provide reasonable assistance to the public in the inspection and copying of the application.

Section 9. Submission of Comments or Objections by Public Agencies.

(1) Written comments or objections on applications for permits, major revisions, amendments, and renewals of permits may be submitted to the cabinet by the public agencies to whom notification has been provided pursuant to Section 8(6) and (7) of this administrative regulation with respect to the effects of the proposed mining operations on the environment within the public agency's area of responsibility.

(2) These comments or objections shall be submitted to the cabinet within thirty (30) calendar days after the date of the written notification by the cabinet pursuant to Section 8(6) and (7) of this administrative regulation.

(3) The cabinet shall immediately file a copy of all comments or objections at the appropriate regional office of the cabinet for public inspection pursuant to Section 8(8) of this administrative regulation. A copy shall also be transmitted to the applicant.

Section 10. Right to File Written Objections.

(1) Any person whose interests are or could be adversely affected or an officer or head of any federal, state, or local government agency or authority to be notified pursuant to Section 8 of this administrative regulation shall have the right to file written objections to an application for a permit, major revision, amendment, or renewal of a permit with the cabinet, within thirty (30) days after the last publication of the newspaper notice required by Section 8(1) of this administrative regulation.

(2) The cabinet shall, immediately upon receipt of any written objections:

(a) Transmit a copy of the objections to the applicant; and

(b) File a copy at the appropriate regional office of the cabinet for public inspection pursuant to Section 8(8) of this administrative regulation.

Section 11. Permit Conferences.

(1) Procedure for requests. Any person whose interests are or may be adversely affected by the decision on the application, or the officer or head of any federal, state, or local government agency or authority to be notified pursuant to Section 8 of this administrative regulation may, in writing, request that the cabinet hold an informal conference on any application for a permit, major revision, amendment, or renewal of a permit. The request shall:

(a) Briefly summarize the issues to be raised by the person requesting at the conference;

(b) State if the person requesting desires to have the conference conducted in the locality of the proposed mining operations; and

(c) Be filed with the cabinet not later than thirty (30) days after the last publication of the newspaper advertisement placed by the applicant pursuant to Section 8(1) of this administrative regulation.

(2) If a permit conference has been requested in accordance with subsection (1) of this section, then the cabinet shall hold a conference within twenty (20) working days after the last date to request a conference under subsection (1)(c) of this section.

(3) The conference shall be conducted as established in paragraphs (a) through (c) of this subsection.

(a) If requested pursuant to subsection (1)(b) of this section, the conference shall be held in the locality of the proposed mining.

(b) The date, time, and location of the conference shall be sent to the applicant and parties requesting the conference and advertised once by the cabinet in the newspaper of largest bona fide circulation, pursuant to KRS 424.110 to 424.120, in the county where the proposed surface coal mining and reclamation operations are to be located, at least two (2) weeks prior to the scheduled conference.

(c) If requested, in writing, by a person requesting the conference in a reasonable time prior to the conference, the cabinet shall arrange with the applicant to grant parties to the conference access to the permit area and, to the extent that the applicant has the right to grant access, to the adjacent areas prior to the established date of the conference for the purpose of gathering information relevant to the conference.

The conference shall be conducted by a representative of the cabinet, who shall accept oral or written statements and any other relevant information from any party to the conference.
An electronic or stenographic record shall be made of the conference proceedings, unless waived by all the parties.
The record shall be maintained and accessible to the parties of the conference until final release of the applicant's performance bond or other equivalent guarantee pursuant to 405 KAR Chapter 10.

(4) If all parties requesting the conference stipulate agreement before the requested conference and withdraw their requests, the conference shall not be held.

(5) Permit conferences held in accordance with this section may be used by the cabinet as the public hearing required pursuant to 405 KAR 24:040, Section 2(6) on proposed relocation and closure of public roads.

Section 12. Public Availability of Information in Permit Applications on File with the Cabinet.

(1) General availability.

(a) The cabinet shall make an application for a permit, revision, amendment, or renewal of a permit or an application for transfer, assignment, or sale of permit rights available for the public to inspect and copy by placing a full copy of the application at the regional office for the area in which mining shall occur.

The application shall be made available by the cabinet for public inspection and copying, at reasonable times, in accordance with Kentucky open records statutes, KRS 61.870 to 61.884.
This copy is not required to include confidential information exempt from disclosure pursuant to subsection (3) of this section.

(b) The application required by paragraph (a) of this subsection shall be placed at the appropriate regional office no later than the first date of newspaper advertisement of the application.

(c) The applicant shall be responsible for placing all changes in the copy of the application retained at the regional office upon the changes being submitted to the Division of Mine Permits.

(2) Information pertaining to coal seams, test borings, core samples, and soil samples in applications shall be made available for inspection and copying to any person with an interest that is or could be adversely affected.

(3) Confidentiality.

(a) The cabinet shall provide for procedures to ensure the confidentiality of qualified confidential information.

(b) Confidential information shall be clearly identified by the applicant and submitted separately from the remainder of the application.

(c) If a dispute arises concerning the disclosure or nondisclosure of confidential information, the cabinet shall provide notice and convene a hearing in accordance with 400 KAR 1:110, Section 9.

(d) Confidential information shall be limited to information:

That pertains only to the analysis of the chemical and physical properties of the coal to be mined, except information on components of the coal that are potentially toxic in the environment; and
On the nature and location of archaeological resources on public land and Indian land as required pursuant to the Archaeological Resources Protection Act of 1979, 16 U.S.C. 470aa - mm.

Section 13. Department Review of Applications for Permits, Revisions, Amendments, and Renewals.

(1) General.

(a) The cabinet shall review the application for a permit, revision, amendment, or renewal; written comments and objections submitted; and records of any permit conference held on the application and make a written decision, within the time frames listed in Section 16(1) of this administrative regulation, concerning approval of, requiring modification of, or concerning rejection of the application.

(b) An applicant for a permit, revision, or amendment shall have the burden of establishing that the application is in compliance with all requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24.

(2)

(a) Administrative completeness determination.

Within ten (10) working days of initial receipt of the application the cabinet shall provide written notification to the applicant as to the administrative completeness of the application.
If the application is incomplete, the cabinet shall notify the applicant within ten (10) working days after initial receipt of the application by certified mail, return receipt requested, or by registered mail, of the deficiencies that render the application incomplete.
The applicant shall submit supplemental information to correct the identified deficiencies for a period of ten (10) working days after the applicant's receipt of the initial notice of incompleteness.
If, after ten (10) working days, the application is still incomplete, the cabinet shall return the incomplete application to the applicant with written notification of the reasons for the determination.

(b)

An application shall not be deemed administratively complete if one (1) or more major elements are found to be absent from the application, which, by virtue of their absence, would require that the permit be denied.
A determination that an application is administratively complete shall not mean that the application is complete in every detail, nor shall it mean that any aspect of the application is technically sufficient or approvable.

(3) Processing of the administratively complete application. Within the time periods established in Section 16 of this administrative regulation, the cabinet shall either notify the applicant:

(a) Of the cabinet's decision to issue or deny the application; or

(b)

In writing, by certified mail, return receipt requested, or by registered mail, upon discovery of deficiencies in the application and allow the application to be temporarily withdrawn for the purpose of correcting the deficiencies.
Temporary withdrawal periods shall not be counted against the time available to the cabinet for consideration of the application.

(4) Review of violations.

(a) The cabinet shall not issue a permit if any surface coal mining reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant is currently in violation of SMCRA, 30 U.S.C. 1201 - 1328 and 30 C.F.R. 700 - 955, KRS Chapter 350 and 405 KAR Chapters 7 - 24, any other state's laws or administrative regulations pursuant to SMCRA, or any other law, rule, or administrative regulation referred to in this subsection. The denial of the permit shall be based on available information concerning:

Failure-to-abate cessation orders issued by OSM, Kentucky, or any other state;
Unabated imminent harm cessation orders issued by OSM, Kentucky, or any other state;
Delinquent civil penalties assessed pursuant to SMCRA, federal regulations enacted pursuant to SMCRA, KRS Chapter 350 and 405 KAR Chapters 7 - 24, or any other state's laws or administrative regulations pursuant to SMCRA;
Bond forfeitures by OSM, Kentucky, or any other state in which violations upon which the forfeitures were based have not been corrected;
Delinquent abandoned mine reclamation fees; and
Unabated violations of federal, Kentucky, and any other state's laws, rules and administrative regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation.

(b) In the absence of a failure-to-abate cessation order, the cabinet may presume that a notice of violation issued by OSM, Kentucky, or any other state pursuant to its laws and administrative regulations pursuant to SMCRA has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except if evidence to the contrary is established in the permit application, or if the violation is for nonpayment of abandoned mine reclamation fees or civil penalties.

(c) If a current violation exists, the cabinet shall require the applicant or person who owns or controls the applicant, before issuance of the permit, to either:

Submit to the cabinet proof that the current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation; or
Establish for the cabinet that the applicant, or any person owned or controlled by either the applicant or any person who owns or controls the applicant, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the current violation. If the initial judicial review authority affirms the violation, then the applicant shall within thirty (30) days of the judicial action submit proof required pursuant to subparagraph (1) of this paragraph.

(d) Any permit that is issued on the basis of proof submitted pursuant to paragraph (a)1. of this subsection that a violation is in the process of being corrected, or pending the outcome of an appeal established in paragraph (a)2 of this subsection, shall be conditionally issued.

(e)

If the cabinet makes a finding that the applicant, anyone who owns or controls the applicant, or the operator established in the application, controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of KRS Chapter 350 and 405 KAR Chapters 7 - 24 of a nature and duration, and with resulting irreparable damage to the environment as to indicate an intent not to comply with those laws or administrative regulations, a permit shall not be issued.
Before a finding becomes final, the applicant or operator shall be afforded an opportunity for an adjudicatory hearing on the determination as provided for in 400 KAR 1:110, Section 8.

(5) Final compliance review. After an application is approved, but before the permit is issued, the cabinet shall reconsider its decision to approve the application, based on the compliance review required by subsection (4)(a) of this section in light of any new information submitted under 405 KAR 8:030, Sections 2(3) and 3(2), or 405 KAR 8:040, Sections 2(3) and 3(2).

Section 14. Criteria for Application Approval or Denial. An application for a permit, revision (as applicable), or amendment of a permit shall not be approved unless the application affirmatively demonstrates and the cabinet finds, in writing, on the basis of information established in the application or from information otherwise available, which has been documented in the approval, that:

(1) The permit application is complete and accurate and in compliance with all requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24;

(2) The applicant has demonstrated that surface coal mining and reclamation operations, as required by KRS Chapter 350 and 405 KAR Chapters 7 through 24 can be feasibly accomplished in accordance with the mining and reclamation plan contained in the application;

(3) The assessment of the probable cumulative impacts of all anticipated coal mining in the cumulative impact area on the hydrologic balance has been made by the cabinet and the operations proposed pursuant to the application have been designed to prevent material damage to the hydrologic balance outside the proposed permit area and shadow area;

(4) The proposed permit area is:

(a) Not included within an area designated unsuitable for surface coal mining operations pursuant to 405 KAR 24:030;

(b) Not within an area under study for designation as unsuitable for surface coal mining operations in an administrative proceeding begun under 405 KAR 24:030, unless the applicant demonstrates that, before January 4, 1977, he or she made substantial legal and financial commitments in relation to the operation for which he or she is applying for a permit;

(d) Not within 100 feet of the outside right-of-way line of any public road, except as provided for in 405 KAR 24:040, Section 2(6); and

(e) Not within 300 feet from any occupied dwelling, except as established in 405 KAR 24:040, Section 2(5);

(5)

(a) The proposed operations shall not adversely affect any publicly-owned parks or any places included on the National Register of Historic Places, except as established in 405 KAR 24:040, Section 2(4); and

(b) The cabinet has taken into account the effect of the proposed operations on properties listed and eligible for listing on the National Register of Historic Places. This finding may be supported in part by inclusion of appropriate permit conditions or changes in the mining and reclamation plan to protect historic resources, or a documented decision that additional protection measures are not necessary;

(6) For operations involving the surface mining of coal in which the private mineral estate to be mined has been severed from the private surface estate, the applicant has submitted to the cabinet the documentation required pursuant to 405 KAR 8:030, Section 4(2) or 405 KAR 8:040, Section 4(2);

(7) With regard to current violations, the applicant has either:

(a) Submitted the proof required by Section 13(4)(a) of this administrative regulation; or

(b) Made the demonstration required by Section 13(4)(b) of this administrative regulation;

(8) The applicant has paid all reclamation fees from previous and existing operations as required by 30 C.F.R. 870, or has entered into a payment schedule approved by OSM. If the applicant has entered into a payment schedule approved by OSM, a permit may be issued only if it includes a condition that the permittee comply with the approved payment schedule;

(9) The applicant or the operator, if other than the applicant, does not control and has not controlled mining operations with a demonstrated pattern of willful violations of SMCRA or KRS Chapter 350 of a nature and duration and with resulting irreparable damage to the environment to indicate an intent not to comply with SMCRA or KRS Chapter 350;

(10) The applicant has demonstrated that any existing structure will comply with 405 KAR 8:030, Section 25 and 405 KAR 8:040, Section 25, and the applicable performance standards of KAR 405 KAR Chapters 16 and 18;

(11) The applicant has, if applicable, satisfied the requirements established in 405 KAR 16:210 and 405 KAR 18:220 for approval of a long-term, intensive agricultural postmining land use;

(12) The applicant may reasonably be expected to submit the performance bond or other equivalent guarantee required pursuant to 405 KAR Chapter 10 prior to the issuance of the permit;

(13) The applicant has, with respect to prime farmland obtained either a negative determination or satisfied the requirements of 405 KAR 8:050, Section 3;

(14) The applicant has satisfied the applicable requirements of 405 KAR 8:050 regarding special categories of mining;

(15) The cabinet has made all specific approvals required pursuant to 405 KAR Chapters 16 through 20;

(16) The cabinet has found that the activities would not affect the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitats as determined pursuant to the Endangered Species Act of 1973 (16 U.S.C. 1531-1544);

(17) The applicant has not forfeited any bond pursuant to KRS Chapter 350. If the applicant has forfeited a bond, the permit may be issued if the land for which the bond was forfeited has been satisfactorily reclaimed without cost to the state or the operator or person has paid a sum that the cabinet finds is adequate to reclaim the land;

(18) The applicant has not had a permit revoked, suspended, or terminated pursuant to KRS Chapter 350. If the applicant has had a permit revoked, suspended, or terminated, another permit may be issued, or a suspended permit may be reinstated, only if the applicant has complied with all of the requirements of KRS Chapter 350 or submitted proof that the violation has been corrected or is in the process of being corrected, in respect to all permits issued to him or her;

(19) The operation shall not constitute a hazard to or do physical damage to a dwelling house, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, or other public property;

(20) The surface coal mining operation shall not adversely affect a wild river established pursuant to KRS Chapter 146 or a state park unless adequate screening and other measures have been incorporated into the permit application and the surface coal mining operation has been jointly approved by all affected agencies as established in 405 KAR 24:040; or

(21) For a proposed remining operation that the applicant intends to reclaim in accordance with the requirements of 405 KAR 16:190, Section 7, or 405 KAR 18:190, Section 5, the applicant has demonstrated that the proposed site of the operation is a previously mined area as defined in those sections.

Section 15. Criteria for Application Approval or Denial Regarding Existing Structures. An application for a permit, revision, or amendment that proposes to use an existing structure in connection with or to facilitate the proposed surface coal mining and reclamation operation shall not be approved, unless the applicant demonstrates and the cabinet finds, in writing, on the basis of information established in the complete and accurate application, that the provisions of 405 KAR 7:040, Section 4, have been met.

Section 16. Application Approval or Denial Actions.

(1) The cabinet shall take action on applications within the following time periods as appropriate:

(a)

Except as established in paragraph (b) of this subsection, for a complete and accurate application submitted pursuant to Section 2(2)(a), (b), (d), and (e) of this administrative regulation, a decision shall be made by the cabinet to approve, require modification of, or deny the application within sixty-five (65) working days after the notice of administrative completeness pursuant to Section 13(2) of this administrative regulation. Periods of temporary withdrawal pursuant to Section 13(3)(b) of this administrative regulation shall not be counted against the sixty-five (65) working-day period available to the cabinet.
Except as established in paragraph (b) of this subsection, for a complete and accurate application submitted pursuant to Section 2(2)(c) of this administrative regulation of a major revision as established in Section 20 of this administrative regulation, a decision shall be made by the cabinet to approve, require modification of, or deny the application within forty-five (45) working days after the notice of administrative completeness pursuant to Section 13(2) of this administrative regulation. Periods of temporary withdrawal pursuant to Section 13(3)(b) of this administrative regulation shall not be counted against the forty-five (45) working-day period available to the cabinet.
For a complete and accurate application for a minor revision as established in Section 20 of this administrative regulation, a decision shall be made by the cabinet to approve, require modification of, or deny the application.

a. The timeframes for review shall be:

(i) Fifteen (15) working days after the notice of administrative completeness pursuant to Section 13(2) of this administrative regulation; and

(ii) Thirty (30) working days after the notice of administrative completeness pursuant to Section 13(2) of this administrative regulation for minor revisions that require full cost bonding calculations.

b. Periods of temporary withdrawal pursuant to Section 13(3)(b) of this administrative regulation shall not be counted against the fifteen (15) or thirty (30) working day period available to the department; and

(b) If the notice, hearing, and conference procedures mandated by KRS Chapter 350 and KAR Title 405 prevent a decision from being made within the time periods established in paragraph (a) of this subsection, the cabinet shall have additional time to issue its decision, but not to exceed twenty (20) days from the completion of the notice, hearing, and conference procedures.

(2) The cabinet shall issue written notification of the decision to approve, modify, or deny the application, in whole or part, to the following persons and entities:

(a) The applicant;

(b) Each person who files comments or objections to the permit application;

(d) The county judge-executive of the county and the chief executive officer of any municipality in which the permit area lies. This notice shall be sent within ten (10) days after the issuance of the permit and shall include a description of the location of the permit area; and

(e) The regional office manager of the Division of Mine Reclamation and Enforcement.

(3) If the application has been denied, the notification required in subsection (2) of this section, for the applicant, any person filing objections to the permit and parties to an informal conference, shall include specific reasons for the denial.

(4) If the cabinet approves the application, the cabinet shall require that the applicant file the performance bond before the permit is issued, in accordance with 405 KAR Chapter 10.

(5) The cabinet shall publish a summary of the decision in the newspaper of largest bona fide circulation, according to KRS 424.110 to 424.120, in the county where the proposed surface coal mining and reclamation operations are to be located.

Section 17. Term of Permit.

(1) Each permit shall be issued for a fixed term not to exceed five (5) years. A longer fixed permit term may be granted, pursuant to KRS 350.060(1)(a), only if:

(a) The application is complete and accurate for the specified longer term; and

(b) The applicant shows that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and for the opening of the operation with the need confirmed, in writing, by the applicant's proposed source for the financing.

(2)

(a) A permit shall terminate, if the permittee has not begun the surface coal mining and reclamation operation covered by the permit within three (3) years of the issuance of the permit.

(b) The cabinet may grant reasonable extensions pursuant to KRS 350.060(16) of the time for commencement of these operations, upon receipt of a written statement showing that the extensions of time are necessary, if:

Litigation precludes the commencement or threatens substantial economic loss to the permittee; or
There are conditions beyond the control and without the fault or negligence of the permittee.

(c) With respect to coal to be mined for use in a synthetic fuel facility or specified major electric generating facility, the permittee shall have commenced surface mining operations if construction of the synthetic fuel or generating facility is initiated.

(d) Extensions of time granted by the cabinet pursuant to this subsection shall be specifically established in the permit, and notice of the extension shall be made to the public.

(3) Permits may be suspended, revoked, or modified by the cabinet, in accordance with Section 19 of this administrative regulation; 405 KAR 7:060, Section 3; 405 KAR 8:050, Sections 4, 6, and 7; and 405 KAR Chapter 12.

Section 18. Conditions of Permits. Actions by an applicant, permittee, or operator to submit an application to the cabinet, to accept a permit issued by the cabinet, or to begin operations pursuant to a permit issued by the cabinet, shall constitute knowledge and acceptance of the conditions established in this section, which shall be applicable to each permit issued by the cabinet pursuant to this chapter if the conditions have or have not been established in the permit.

(1) General. The general conditions established in paragraphs (a) through (c) of this subsection shall apply to a permit issued by the cabinet.

(a) The permittee shall comply fully with all terms and conditions of the permit and all applicable performance standards of KRS Chapter 350 and 405 KAR Chapters 7 through 24.

(b) The permittee shall conduct all surface coal mining and reclamation operations as established in the approved application, except to the extent that the cabinet otherwise directs in the permit that specific actions be taken.

(c) The permittee shall conduct surface coal mining and reclamation operations only on those lands specifically designated as the permit area on the maps submitted pursuant to 405 KAR 8:030 or 405 KAR 8:040 and authorized for the term of the permit, and that are subject to the performance bond in effect pursuant to 405 KAR Chapter 10.

(2) Right of entry.

(a) Without advance notice, unreasonable delay, or a search warrant, and upon presentation of appropriate credentials, the permittee shall allow authorized representatives of the Secretary of the Interior and the cabinet to:

Have the rights of entry provided for in 405 KAR 12:010, Section 3; and
Be accompanied by private persons for the purpose of conducting a federal inspection if the inspection is in response to an alleged violation reported to the cabinet by the private person.

(b) The permittee shall allow the authorized representatives of the cabinet to be accompanied by private persons for the purpose of conducting an inspection pursuant to 405 KAR 12:030.

(3) Environment, public health, and safety.

(a) The permittee shall take all possible steps to minimize any adverse impact to the environment or public health and safety resulting from failure to comply with any term or condition of the permit, including:

Accelerated or additional monitoring necessary to determine the nature and extent of failure to comply and the results of the failure to comply;
Immediate implementation of measures necessary to comply; and
Warning, as soon as possible after learning of the failure to comply, any person whose health and safety is in imminent danger due to the failure to comply.

(b) The permittee shall dispose of solids, sludge, filter backwash, or pollutants removed in the course of treatment or control of waters or emissions to the air in the manner required by 405 KAR Chapters 16 through 20, and that prevents violation of any other applicable Kentucky or federal law.

In accordance with any measures established in the permit as necessary to prevent significant, imminent environmental harm that could affect the health or safety of the public; and
Utilizing any methods established in the permit by the cabinet in approving alternative methods of compliance with the performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20, in accordance with KRS Chapter 350 and 405 KAR Chapters 16 through 20.

(4) Reclamation fees. The permittee shall pay all reclamation fees required by 30 C.F.R. 870 for coal produced pursuant to the permit for sale, transfer, or use, in the manner required by that subchapter.

(5) Within thirty (30) days after a cessation order is issued by OSM for operations conducted pursuant to the permit or after an order for cessation and immediate compliance is issued pursuant to 405 KAR 12:020, Section 3, for operations conducted pursuant to the permit, except if a stay of the order is granted and remains in effect, the permittee shall either notify the cabinet in writing that there has not been a change since the immediately preceding submittal of the information or submit to the cabinet the following information, current to the date the order was issued:

(a) Any new information needed to correct or update the information previously submitted to the cabinet by the permittee pursuant to 405 KAR 8:030, Section 2(1)(c), or 405 KAR 8:040, Section 2(1)(c); or

(b) If not previously submitted, the information required from a permit applicant by 405 KAR 8:030, Section 2(3), or 405 KAR 8:040, Section 2(1)(c).

Section 19. Review of Permits.

(1)

(a) The cabinet shall review each permit issued pursuant to 405 KAR Chapter 8 during the term of the permit.

This review shall occur not later than the middle of the permit term and as required by 405 KAR 7:060 and 405 KAR 8:050, Sections 4, 6, and 7.
Issued permits shall be reevaluated in accordance with the terms of the permit and the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24, including reevaluation of the bond.

(b) For permits of longer than five (5) year terms, a review of the permit shall be no less frequent than the permit midterm or every five (5) years, whichever is more frequent.

(2) The cabinet may, by order, require revision or modification of the permit provisions to ensure compliance with KRS Chapter 350 and 405 KAR Chapters 7 through 24.

(3) Copies of the decision of the cabinet shall be sent to the permittee.

(4) Any order of the cabinet requiring revision or modification of permits shall be based upon written findings and shall be subject to the provisions for administrative and judicial review of 400 KAR 1:110, Section 8.

Section 20. Permit Revisions.

(1) General. A revision to a permit shall be obtained:

(a) For changes in the surface coal mining and reclamation operations established in the existing application and approved pursuant to the current permit;

(b) If a revision is required by an order issued pursuant to Section 19(4) of this administrative regulation;

(c) In order to continue operation after the cancellation or material reduction of the liability insurance policy, performance bond, or other equivalent guarantee upon which the original permit was issued; or

(d) As otherwise required pursuant to 405 KAR Chapters 7 through 24.

(2) Major revisions.

(a) Except as established in subsections (3)(f) and (6) of this section, a revision shall be deemed a major revision if the proposed change is of a scope and nature that public notice is necessary to allow participation in the cabinet's decision by persons who have an interest that could be adversely affected by the proposed change. Major revisions shall include:

A change in the postmining land use;
Enlargement or relocation of impoundments so as to increase the safety hazard classification of the impoundment;
A variance to approximate original contour requirements;
Construction or relocation of a road, if the construction or relocation could adversely affect the interests of persons other than the surface owner;
A change that may adversely affect significant fish and wildlife habitats or endangered species;
A proposed experimental practice;
A change that may cause a major impact on the hydrologic balance;
An incidental boundary revision that affects a new watershed; and
An incidental boundary revision that includes a diversion of a perennial stream.

(b) A major revision shall be subject to all of the requirements of Sections 5; 7 through 12; 13(1), (2), (3); 14(1) through (6), (8), (10) through (16), (19) through (21); 15; 16; 18; and 24 of this administrative regulation; and shall be submitted on forms MPA-01 and MPA-03 pursuant to KRS Chapter 350 and 405 KAR Chapters 7 - 24. In addition to the requirements of Section 8(5) of this administrative regulation, the advertisement shall contain a statement that the applicant proposes to revise the existing permit and shall contain a description of the proposed change.

(3) Minor revisions.

(a) A revision that is not determined by the cabinet under subsection (2) of this section to be a major revision, or that is not an operator change revision pursuant to subsection (6) of this section, shall be a minor revision and shall be subject to Sections 5; 7; 12; 13(1), (2), (3); 14(1) through (6), (10) through (16), (19) through (21); 15; 16(1) through (4); 18; and 24 of this administrative regulation, except that a minor field revision established in paragraph (d) of this subsection shall not be subject to the administrative completeness determination of Section 13(2) of this administrative regulation, and the time frame for review in Section 16(1)(a)3 of this administrative regulation shall begin at the time of application submittal.

(b) If a proposed minor revision is actually a major revision pursuant to Section 13 of this administrative regulation, the cabinet shall so inform the applicant and return the application.

(c)

The cabinet shall notify, in writing, those persons that could have an interest or could be adversely affected by the proposed change.
Those persons shall have the right to file written objections to the revision within ten (10) days of the date of the notification.

(d) A minor field revision shall be reviewed and processed in accordance with this section by the appropriate regional office of the department, unless the number of persons that potentially could have an interest or could be adversely affected by the proposed change is large enough that public notice by newspaper advertisement rather than individual notice by letter from the cabinet is necessary, the regional administrator shall determine if the proposed minor revision is a major revision and shall not be processed pursuant to this paragraph. The following proposals shall be a minor field revision:

Proposals for minor relocation of underground mine entries if:

a. There are no structures or renewable resource lands (pursuant to paragraph (b) of the definition in 405 KAR 8:001(103) of "renewable resource lands") overlying the area;

b. There is no proposed change to the permit boundary; and

c. The proposed new location is on the same face-up area and coal seam as originally permitted, is within the same drainage area as the original location, is controlled by the same sedimentation pond, and there will be no additional disturbed acreage within the drainage area of that sedimentation pond;

A proposal for retention of a concrete platform or a small building if:

a. There is no proposed change to the previously approved postmining land use; and

b. The application contains a notarized letter from the surface owner requesting retention of the structure;

a. A proposal to leave roads as permanent, except proposals involving roads to impoundments, excess spoil fills, coal mine waste fills, or air shafts; roads within 100 feet of an intermittent or perennial stream; and roads within areas designated unsuitable for mining pursuant to 405 KAR 24:040, Section 2, regardless of if a previous waiver or approval has been granted.

b. The application shall contain a notarized letter from the surface owner including a request to retain the road and a statement acknowledging that the surface owner understands that the operator does not have responsibility for maintenance of the road after the performance bond has been released pursuant to 405 KAR 10:040 for the area in which the road is located.

A proposal to increase the diameter of a culvert used as a road crossdrain, not including a culvert used for a stream crossing, if the proposed culvert is the same type of pipe as the previously approved culvert;
A proposal to install an additional culvert used as a road crossdrain (not including a culvert used for a stream crossing), if the diameter of the proposed additional culvert is equal to the diameter of the nearest downstream crossdrain and if it is the same type of pipe as the nearest downstream crossdrain;
A proposal for a minor relocation of an on-bench sediment control structure (dugouts only) in order to locate the structure at a low spot on the same bench on which initially proposed, if:

a. The drainage area to the structure shall remain the same as the original design;

b. The proposed location shall not cause short-circuiting of the structure; and

c. There is no proposed change to the permit boundary;

A proposal to retain diversions of overland flow (not including stream diversions) as permanent facilities if:

a. The application contains a notarized letter from the surface owner including a request to retain the diversion and a statement accepting maintenance responsibilities for the diversion; and

b. The diversions have previously been designed to the standards for permanent diversions;

A proposal for relocation of topsoil storage areas if:

a. There is no proposed change to the permit boundary; and

b. The proposed new location was previously permitted as a disturbed area within the same drainage area as the original location, is controlled by the same sedimentation pond, and there will be no additional disturbed acreage within the drainage area of that sedimentation pond;

A proposal to substitute a plant species if:

a. The proposed species is of the same vegetative type (grass, legume, tree, or shrub) as the original species;

b. The proposed species will serve the equivalent function of the original species with respect to the previously approved revegetation plan, postmining land use plan, and the fish and wildlife protection and enhancement plan; and

c. The proposed species and its application or planting rate are compatible with the remainder of the previously approved species mixture to be planted;

A proposal to utilize hydroseeding for trees instead of planting trees or tree seedlings if:

a. Hydroseeding is an appropriate method for the tree species being established; and

b. A change in tree species is not involved unless concurrently approved pursuant to subparagraph 9 of this paragraph;

A proposal to change the type of mulch to be utilized on the permit area, including a revised rate of application consistent with the different type of mulch proposed;
A proposal to retain small depressions in the reclaimed area;
A proposal required by the cabinet to increase frequency of air blast monitoring;
A proposal required by the cabinet to increase frequency of air pollution monitoring;
A proposal to employ more effective fugitive dust controls, and proposals required by the cabinet to employ additional fugitive dust controls;
A proposal to add a portable coal crusher if:

a. The crusher and associated conveying equipment are a completely portable, trailer-mounted unit;

b. The equipment shall be utilized to crush coal only from the permit area on which it is proposed to be located;

c. The operation shall not generate coal mine waste;

d. There is no proposed change to the permit boundary; and

e. The equipment shall always be located in the mining pit or other location previously permitted as a disturbed area controlled by a previously approved sedimentation pond and there shall be no additional disturbed acreage or delayed reclamation within the drainage area of any of the sedimentation ponds;

A proposal to change the time periods, or the types or patterns of warning or all-clear signals, when explosives are to be detonated;
A proposal to relocate an explosive storage area within the existing permit area in accordance with 27 C.F.R. 555.206, 555.218, 555.219, and 555.220, and 30 C.F.R. 77.1301(c);
Approval for minor relocation of a support facility such as a conveyor, hopper, or a coal stockpile if:

a. There is no proposed change to the permit boundary; and

A proposal for a modification of a shared facility if that modification has already been approved in a revision for one (1) of the permittees by the Division of Mine Permits and no additional performance bond was required for the initial revision;
A proposal to add a hopper to a permitted area if:

a. There is no proposed change to the permit boundary; and

b. The proposed location was previously permitted as a disturbed area controlled by a previously approved sedimentation pond and there will be no additional disturbed acreage or delayed reclamation within the drainage area of that sedimentation pond;

A proposal to change the brush disposal plan, not including any proposals to bury brush in the backfill area on steep slopes or in excess spoil fills or coal mine waste fills;
A proposal to change the basis of judging revegetation from reference areas to the technical standards established in 405 KAR Chapters 7 - 24;

a. A proposal for an incidental boundary revision for a minor off-permit disturbance if:

(i) The total acreage of the minor off-permit disturbance is no more than one (1) acre combined per proposal;

(ii) The cumulative acreage limitation in subsection (5) of this section is not exceeded;

(iii) The area to be permitted does not include any wetlands, prime farmlands, stream buffer zones, federal lands, habitats of unusually high value for fish or wildlife, an area that may contain threatened or endangered species, or an area designated as unsuitable for mining pursuant to 405 KAR Chapter 24;

(iv) The off-permit disturbance was not a coal extraction area nor shall any future coal extraction occur on the area;

(v) There is no structure such as an excess spoil disposal fill, a coal mine waste disposal fill or impoundment, or a water impoundment involved;

(vi) The surface owner of the area to be permitted is a surface owner of a disturbed area pursuant to the existing permit; and

(vii) An additional performance bond in the amount of $5,000 has been filed by the permittee.

b. The regional administrator, as established in paragraph (b) of this subsection, may decline to review and process a proposal to permit an off-permit disturbance as a minor field revision and instead requires that an application be submitted to the Division of Mine Permits;

Except as established in clauses a. through e. of this subparagraph, a proposal to remove a sedimentation pond previously approved as a permanent impoundment if the application contains a notarized letter from the surface owner requesting the elimination of the impoundment, the application contains an acceptable plan for removal, and the criteria for sedimentation pond removal have been met. A proposal to remove a sedimentation pond shall not be processed as a minor field revision if the:

a. As established in 405 KAR 7:040, Section 5, structure has a hazard classification of B or C;

b. Impoundment is a developed water resource land use;

c. Removal or activities associated with the removal of the structure may adversely affect significant fish and wildlife habitats or threatened or endangered species;

d. Impoundment may be a necessary element in the achievement of the previously approved postmining land use (such as a stock pond for pastureland if no other nearby source of water is available to the livestock); or

e. Impoundment was originally planned to be left for the purpose, in whole or in part, of enhancing fish and wildlife and related environmental values;

A proposal to approve an exemption from the requirement to pass drainage through a sedimentation pond for a disturbed area that, due to unexpected field conditions, will not drain to an approved sedimentation pond if:

a. There has not been any acid drainage or drainage containing concentrations of total iron or manganese from this or nearby areas of the mine that could result in water quality violations if untreated and none is expected based on overburden analysis;

b. The application contains a justification that it is not feasible to control the drainage by a sedimentation pond;

c. The disturbed area is one (1) acre or less;

d. The application contains a plan to immediately implement alternate sedimentation control measures including, at a minimum, mulching, silt fences, straw bale dikes, and establishment of a quick growing temporary vegetative cover;

e. The application contains sufficient plan views and cross sections certified by a registered professional engineer to clearly illustrate the feasibility of the proposal and the location of the alternate control methods (minimum scale one (1) inch equals 100 feet); and

f. The application contains an MRP map certified by a professional engineer showing the location of the disturbed area and the drainage area clearly; and

A proposal to use the Reclamation Advisory Memorandum #124 reclamation practice on sites where the permittee is required to establish trees and shrubs as part of the approved reclamation plan if there is a letter of consent from the property owner.

(e) Proposed minor revisions that only seek to change the engineering design of impoundments and diversions of overland flow if no change in permit boundary is involved shall not be subject to the administrative completeness determination of Section 13(2) of this administrative regulation.

Within ten (10) days the cabinet shall process the application and provide a written notice stating the application has been determined to be subject to this paragraph and is being forwarded to technical review.
The time frame for review in Section 16(1)(a)3 of this administrative regulation shall begin at the time of this notice.

(f) An incidental boundary revision shall be deemed a minor revision if it:

Does not exceed ten (10) percent of the relevant surface or underground acreage in the original or amended permit area;
Is contiguous to the current permit area;
Is within the same watershed as the current permit area;
Is required for an orderly continuation of the mining operation;
Involves mining of the same coal seam or seams as in the current permit;
Involves only lands for which the hydrologic and geologic data and the probable hydrologic consequences determination in the current permit are applicable;
Does not involve a property on which mining is prohibited pursuant to KRS 350.085 and 405 KAR 24:040, unless a waiver has been obtained, or that has been designated as unsuitable for mining pursuant to 405 KAR 24:030, or is a property eligible for listing on the National Register of Historic Places;
Does not involve any of the categories of mining in 405 KAR 7:060 and 405 KAR 8:050 unless the current permit already includes the relevant category;
Does not constitute a change in the current method of mining; and
Shall be reclaimed in conformity with the current reclamation plan.

(g) Extensions of the underground mining area that are not incidental boundary revisions and do not include planned subsidence or other new proposed surface disturbances shall be minor revisions.

(4) An extension to the area covered by a permit, except for incidental boundary revisions, shall be made by application for a new or amended permit and shall not be approved pursuant to this section.

(5) Size limitations for incidental boundary revisions.

(a) For surface mining activities, an incidental boundary revision shall not exceed ten (10) percent of the acreage in the original or amended permit area and shall not exceed twenty (20) acres.

(b) For underground mining activities and auger mining, an incidental boundary revision for a surface operation and an incidental boundary revision for underground workings shall be determined separately.

For surface operations, an incidental boundary revision shall not exceed the greater of two (2) acres or ten (10) percent of the acreage of surface operations in the original or amended permit area and shall not exceed twenty (20) acres.
For underground workings, an incidental boundary revision shall not exceed ten (10) percent of the acreage of underground workings in the original or amended permit area and shall not exceed twenty (20) acres.

(c)

Cumulative incidental acreage added by successive incidental boundary revisions shall not exceed the limitations in this subsection.
Acreage added by incidental boundary revisions prior to a permit amendment shall not be counted toward cumulative incidental acreage after the amendment.

(6) Operator change revisions.

(a) This subsection shall apply to all operator changes that do not constitute a transfer, assignment, or sale of permit rights.

(b) A permittee proposing to change the operator approved in the permit shall submit a complete and accurate application for approval of the change.

The permit number, the name and business address of the permittee, the telephone number of the permittee, and the identifying number assigned to the permittee by the cabinet;
The name, business address, and telephone number of the operator approved in the permit, and the identifying number, if any, assigned to the approved operator by the cabinet;
For the proposed operator and persons related to the proposed operator through ownership or control, the same information as required for applicants and persons related to applicants through ownership or control by Sections 2(1)(a) through (d) and (h) of 405 KAR 8:030 and 405 KAR 8:040, and Sections 2(3) and (4) of those administrative regulations; and
For the proposed operator and persons related to the proposed operator through ownership or control, the same information as required for applicants and persons related to applicants through ownership or control by 405 KAR 8:030, Section 3 and 8:040 shall be required.

(d) The application shall be verified under oath by the permittee and the proposed operator in the manner required pursuant to Section 7 of this administrative regulation.

(e) On or after the date the application has been submitted to the cabinet, the application shall be advertised in the newspaper of largest bona fide circulation, according to KRS 424.110 to 424.120, in the county where the proposed surface coal mining and reclamation operations are to be located.

The advertisement shall be entitled "Notice of Intention to Mine" and shall be as established in Section 8(5) of this administrative regulation.
A copy of the advertisement and proof of publication shall be filed with the cabinet and made a part of the application not later than fifteen (15) days after the date of publication. The advertisement shall include:

a. The permit number;

b. The geographic location of the permit area;

c. The name and business address of the permittee;

d. A statement that the permittee proposes to change the operator approved in the permit;

e. The names and business addresses of the currently approved operator and the proposed operator;

f. The cabinet address to which written comments may be sent pursuant to paragraph (f) of this subsection; and

g. The time available for submission of the comments.

(f) A person whose interests are or could be adversely affected by the cabinet's decision on the proposed operator change, including an officer of a federal, state, or local government agency, may submit written comments on the application to the cabinet within fifteen (15) days after the date of publication of the advertisement.

(g) The cabinet shall approve or disapprove the proposed operator change if it finds, in writing, that the proposed operator:

Is eligible to act as an operator pursuant to the criteria in Section 13(4) of this administrative regulation; and
Meets the other applicable requirements of KRS Chapter 350 or 405 KAR Chapters 7 through 24.

(h)

The cabinet shall notify in writing the permittee, the proposed operator, and any commenters on the application, of its decision to approve or deny the application within fifteen (15) working days after the close of the public comment period pursuant to paragraph (f) of this subsection.
A period of temporary withdrawal shall not be counted against the fifteen (15) working day period available to the cabinet. If the notice, hearing, and conference procedures mandated by KRS Chapter 350 and KAR Title 405 prevent a decision from being made within the time period established in this paragraph, then the cabinet shall have additional time to issue its decision, but not to exceed twenty (20) days from the completion of the notice, hearing, and conference procedures.

(7) Fees. An application for a revision shall include a basic fee, except that a minor field revision and an operator change revision shall not have a basic fee.

(a) The fee for a revision shall be $1,750 for a major revision and $750 for a minor revision.

(b) If the revision application proposes an incidental boundary revision that would increase the acreage in the permit, an additional acreage fee of seventy-five (75) dollars per acre, or fraction thereof, shall be included with the application. An acreage fee shall not be required for shadow area that will not be affected by surface operations and facilities.

Section 21. Permit Renewals.

(1) General requirements for renewal. Any valid, existing permit issued pursuant to 405 KAR Chapter 8 shall carry with it the right of successive renewal, within the approved boundaries of the existing permit, upon expiration of the term of the permit.

(2) Contents of renewal applications. An application for renewal of a permit shall be submitted within the time established by Section 2(2)(b) of this administrative regulation. Renewal applications shall be submitted on form MPA-09, Application for Renewal of a Mining Permit, and in accordance with this section, and shall include:

(a) The name and address of the permittee, the term of the renewal requested and the permit number;

(b) A copy of the proposed newspaper notice and proof of publication of same pursuant to Section 8 of this administrative regulation;

(d) A renewal fee of $750;

(e) Evidence that the performance bond shall continue in effect for any renewal requested, as well as any additional bond required by the cabinet pursuant to 405 KAR 10:020; and

(f) Any additional, updated, or revised information required to demonstrate compliance with KRS Chapter 350 and 405 KAR Chapters 7 - 24.

(3) An application for renewal shall be subject to the requirements of Sections 8 through 11, 13, and 16 of this administrative regulation.

(4) An application for renewal shall not include any proposed revisions to the permit. Revisions shall be made by separate application and shall be subject to the requirements of Section 20 of this administrative regulation.

(5) Term of renewal. Any permit renewal shall be for a term not to exceed the period of the original permit established pursuant to Section 17 of this administrative regulation.

(6) Approval or denial of renewal applications.

(a) The cabinet shall approve a complete and accurate application for permit renewal, unless it finds, in writing, that:

The terms and conditions of the existing permit are not being met;
The present surface coal mining and reclamation operations are not in compliance with the environmental protection standards pursuant to KRS Chapter 350 and 405 KAR Chapters 7 through 24;
The requested renewal substantially jeopardizes the applicant's continuing responsibility to comply with KRS Chapter 350 and 405 KAR Chapters 7 through 24 on existing permit areas;
The applicant has not provided evidence that any performance bond required for the operations shall continue in effect for the proposed period of renewal, as well as any additional bond the cabinet requires pursuant to 405 KAR Chapter 10;
Any additional revised or updated information required by the cabinet pursuant to this administrative regulation has not been provided by the applicant; or
The applicant has not provided evidence of having liability insurance in accordance with 405 KAR 10:030, Section 4.

(b) In determining if to approve or deny a renewal, the burden shall be on the opponents of renewal.

(c) The cabinet shall send copies of its decision to the applicant, any persons who filed objections or comments to the renewal, any persons who were parties to any informal conference held on the permit renewal, and to the field office director of the Office of Surface Mining Reclamation and Enforcement.

(d) Any person having an interest that is or may be adversely affected by the decision of the cabinet shall have the right to administrative and judicial review established in Section 24 of this administrative regulation.

Section 22. Transfer, Assignment, or Sale of Permit Rights.

(1) General. A transfer, assignment, or sale of the rights granted pursuant to any permit issued pursuant to KAR Title 405 shall not be made without the prior written approval of the cabinet, in accordance with this section.

(2) Application requirements. An applicant (successor) for approval of the transfer, assignment, or sale of permit rights shall:

(a) Provide a complete and accurate application for the approval of the proposed transfer, assignment, or sale. The application shall be signed by both the existing holder of permit rights and the applicant for succession and the applicant shall submit:

The name and address of the existing permittee and the permit number;
A brief description of the proposed action requiring approval;
The legal, financial, compliance, and related information required by 405 KAR 8:030, Sections 2 through 10 and 405 KAR 8:040, Sections 2 through 10; and
A processing fee of $750;

(b) Advertise the filing of the application in the newspaper of largest bona fide circulation, according to KRS 424.110 to 424.120, in the county where the operations are located, indicating the name and address of the applicant, the original permittee, the permit number, the geographic location of the permit, and the address to which written comments may be sent pursuant to subsection (3) of this section; and

(c) Obtain sufficient performance bond coverage that shall ensure reclamation of all lands affected by the permit, including areas previously affected by the existing permittee on the permit being transferred.

(3) Public participation. Any person whose interests are or could be adversely affected by a decision on the transfer, assignment, or sale of permit rights, including an official of any federal, state, or local government agency, may submit written comments on the application to the cabinet within fifteen (15) days of the date of publication of the advertisement.

(4) Criteria for approval. The cabinet may allow a permittee to transfer, assign, or sell permit rights to a successor if it finds, in writing, that the successor:

(a) Is eligible to receive a permit in accordance with the criteria established in Section 14 of this administrative regulation;

(b) Has submitted a performance bond, in accordance with 405 KAR Chapter 10, which shall ensure reclamation of all lands affected by the permit, including areas previously disturbed by the existing permittee on the permit being transferred and that is at least equivalent to the bond of the existing permittee;

(d) Meets all requirements necessary to ensure compliance with KRS Chapter 350 or 405 KAR Chapters 7 through 24.

(5) Notice of decision. The cabinet shall notify the original permittee, the successor, any commenters or objectors, and the field office director of the Office of Surface Mining Reclamation and Enforcement of its final decision.

(6) Permit reissuance. After receiving the notice established in subsection (5) of this section, the successor shall immediately provide proof to the cabinet of the consummation of the transfer, assignment, or sale of permit rights. Upon submission of this proof, the cabinet shall reissue the original permit in the name of the successor.

(7) Rights of successor.

(a) All rights and liabilities pursuant to the original permit shall pass to the successor upon reissuance of the permit, except that the original permittee shall remain liable for any civil penalties resulting from violations occurring prior to the date of reissuance of the permit.

(b) The cabinet shall not approve transfer of a surface coal mining permit to any person who would be ineligible to receive a new permit pursuant to KRS 350.130(3).

(8) Requirements for new permits for persons succeeding to rights granted pursuant to a permit.

(a) A successor in interest who is able to obtain appropriate bond coverage may continue surface coal mining and reclamation operations according to the approved mining and reclamation plan and permit of the original permittee.

(b) A successor in interest seeking to change the conditions of mining or reclamation operations or any of the terms or conditions of the original permit shall make application for a new permit, revision, or amendment, as appropriate.

(9) Release of bond liability. The cabinet shall release the prior permittee from bond liability on the permit area if the successor in interest has:

(a) Filed a performance bond satisfactory to the cabinet;

(b) Received written approval of the cabinet for the transfer, sale, or assignment of rights;

(d) Assumed the liability pursuant to KAR Title 405 for the reclamation of the areas affected by all prior permittees.

Section 23. Amendments.

(1) Except for an incidental boundary revision, an extension to an area covered by a permit shall not be approved, as established in Sections 20 (permit revisions) or 21 (permit renewals) of this administrative regulation.

(a) An extension shall be made by application for another permit.

(b) If the permittee desires to add the new area to an existing permit in order to have existing areas and new areas under one (1) permit, the cabinet shall amend the original permit, if the applicant complies with procedures and requirements applicable to an application for an original permit in accordance with KAR Title 405 amend the original permit, but the application for the new area shall be subject to all procedures and requirements applicable to applications for original permits pursuant to KAR Title 405.

(2) A fee for an amendment to existing permits shall be submitted to the cabinet as established in Section 6(2) of this administrative regulation.

Section 24. Administrative and Judicial Review.

(1) Following the final decision of the cabinet concerning the application for a permit, revision, or renewal thereof, application for transfer, sale, or assignment of rights or concerning an application for coal exploration, the applicant, permittee, or any person with an interest that could be adversely affected may request a hearing on the reasons for the final decision. The request shall be in accordance with 400 KAR 1:110, Section 8.

(2) Any applicant or any person with an interest that could be adversely affected and who has participated in the administrative proceedings as an objector shall have the right to:

(a) Judicial review as provided in KRS 350.0301 and 350.0305 if the applicant or person is aggrieved by the decision of the cabinet in an administrative hearing requested pursuant to subsection (1) of this section; or

(b) An action in mandamus pursuant to KRS 350.250 if the cabinet fails to act within time limits established in KRS Chapter 350 or 405 KAR Chapters 7 through 24.

Section 25. Improvidently Issued Permits.

(1) Permit review. If the cabinet has reason to believe that it improvidently issued a surface coal mining and reclamation permit, the cabinet shall review the circumstances under which the permit was issued, using the criteria in subsection (2) of this section. If the cabinet finds that the permit was improvidently issued, the cabinet shall comply with subsection (3) of this section.

(2) Review criteria. The cabinet shall find that a surface coal mining and reclamation permit was improvidently issued if:

(a) Pursuant to the violation review criteria of the cabinet upon permit issuance:

The cabinet should not have issued the permit because of an unabated violation or a delinquent penalty or fee; or
The permit was issued on the presumption that a notice of violation was in the process of being corrected to the satisfaction of the agency with jurisdiction over the violation, but a cessation order subsequently was issued;

(b) The violation, penalty, or fee:

Remains unabated or delinquent; and
Is not the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; and

(c) If the permittee was linked to the violation, penalty, or fee through ownership or control, pursuant to the violations review criteria of the regulatory program upon permit issuance an ownership or control link between the permittee and the person responsible for the violation, penalty, or fee still exists, or if the link was severed the permittee continues to be responsible for the violation, penalty, or fee.

(3) Remedial measures. If the cabinet, pursuant to subsection (2) of this section, finds that because of an unabated violation or a delinquent penalty or fee a permit was improvidently issued, the cabinet shall use one (1) or more of the following remedial measures:

(a) Implement, with the cooperation of the permittee or other person responsible, and of the responsible agency, a plan for abatement of the violation or a schedule for payment of the penalty or fee;

(b) Impose on the permit a condition requiring that in a specified period of time the permittee or other person responsible abate the violation or pay the penalty or fee;

(d) Rescind the permit pursuant to subsection (4) of this section.

(4) Rescission procedures. If the cabinet, pursuant to subsection (3)(d) of this section, elects to rescind an improvidently issued permit, the cabinet shall serve on the permittee a notice of proposed suspension and rescission that includes the reasons for the finding of the cabinet pursuant to subsection (2) of this section and states that:

(a) Automatic suspension and rescission. After a specified period of time not to exceed ninety (90) days the permit automatically shall become suspended, and not to exceed ninety (90) days thereafter rescinded, unless within those periods the permittee submits proof, and the cabinet finds, that:

The finding of the cabinet pursuant to subsection (2) of this section was erroneous;
The permittee or other person responsible has abated the violation on which the finding was based, or paid the penalty or fee;
The violation, penalty, or fee is the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying with the responsible agency; or
Since the finding was made, the permittee has severed any ownership or control link with the person responsible for, and does not continue to be responsible for, the violation, penalty, or fee;

(b) Cessation of operations. After permit suspension or rescission, the permittee shall cease all surface coal mining and reclamation operations pursuant to the permit, except for violation abatement and for reclamation and other environmental protection measures as required by the cabinet; and

(c) Right to request a formal hearing. Any permittee aggrieved by the notice may request a formal hearing. A formal hearing shall be in accordance with 400 KAR 1:110, Section 9.

Section 26. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Preliminary Application", MPA-00, October 2017;

(b) "Permittee Information for a Mining Permit", MPA-01, August 2010;

(d) "Technical Information for a Mining Permit", MPA-03, October 2017;

(e) "Surface Owner's Affidavit: Lands Historically Used for Cropland", MPA-03-20.1.B, November 1991;

(f) "Disinterested Third Party Affidavit: Lands Historically Used for Cropland", MPA-03-20.1.C, November 1991;

(g) "Update of Permittee or Operator Information", MPA-05, August 2010;

(h) "Change of Corporate Owners, Officers or Directors", MPA-06, October 2017;

(i) "Application to Transfer a Mining Permit", MPA-07, June 2013;

(j) "Revision Application to Change Operator", MPA-08, August 2010;

(k) "Application for Renewal of a Mining Permit", MPA-09, August 2017;

(l) "Application for a Coal Marketing Deferment", MPA-10, August 2017

(m) "Minor Field Revision Application Form", SME 80, revised August 2010; and

(n) "Reclamation Advisory Memorandum #124, Reforestation Initiative", March 1997.

History

RELATES TO: KRS 61.870-61.884, 146.200-146.360, 322.010(3), 322.340, 350.020, 350.055, 350.060, 350.070, 350.085, 350.090, 350.130, 350.135, 350.450, 350.465, 350.500-350.521, 424.110-424.120, 27 C.F.R. 555.206, 555.218, 555.219, 555.220, 30 C.F.R. 77.1301(c), 730-733, 735, 775, 777, 778.17, 870, 917, 16 U.S.C. 470aa-mm, 470x-6, 661-667e16, 668-668d, 703-712, 1531-1544, 30 U.S.C. 1253, 1255-1261, 1263-1266, 1272
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.060, 350.135, 350.450, 350.465, 350.515, 30 C.F.R. Parts 730-733, 735, 773-775, 777, 778.17, 917, 16 U.S.C. 661-667e16, 668a, 703-712, 1531-1544, 30 U.S.C. 1253, 1255-1261, 1263-1266, 1272
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028 and 350.465 require the cabinet to promulgate administrative regulations pertaining to permits for surface coal mining and reclamation operations. This administrative regulation establishes provisions for permits to conduct these operations, including the conditions for which permits are required, application deadlines, requirements for applications for permanent program permits, fees, verification of applications, public notice requirements, submission of comments on permit applications, the right to file objections, informal conferences, review of the permit applications, criteria for application approval or denial and relevant actions, term of the permits, conditions of permits, review of outstanding permits, revisions of permits, amendments, renewals, transfers, assignments, sales of permit rights, administrative and judicial review, and procedures relating to improvidently issued permits.
History: 8 Ky.R. 1483; eff. 1-6-1983; Am. 15 Ky.R. 414; 1057; eff. 12-13-1988; 1855; eff. 6-28-1989; 16 Ky.R. 421; 775; 1170; 1343; eff. 11-22-1989; 17 Ky.R. 2784; 3161; eff. 5-22-1991; 18 Ky.R. 1912; 2542; 2774; eff. 4-3-1992; TAm eff. 8-9-2007; 36 Ky.R. 2360; 37 Ky.R. 390; 689; eff. 9-2-2010; 40 Ky.R. 415; 1046; eff. 11-7-2013; TAm eff. 7-6-2016; 44 Ky.R. 595, 1280; eff. 1-5-2018; Crt eff. 7-3-2018; 46 Ky.R. 1323, 2249; eff. 5-5-2020.

405 KAR 8:020 Coal exploration {#sec-405-kar-8-020 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:020}

Section 1. Exploration in an Area Not Designated Unsuitable for Mining and Removing Twenty-five (25) Tons or Less of Coal.

(1) Any person who intends to conduct coal exploration during which twenty-five (25) tons or less of coal will be removed and which will not take place in an area designated unsuitable for mining pursuant to 405 KAR Chapter 24 shall, at least twenty-one (21) days prior to conducting the exploration, file with the cabinet a written notice of intention to explore.

(2) The notice shall include:

(a) The name, address, and telephone number of the person seeking to explore;

(b) The name, address, and telephone number of the representative who will be present at and responsible for conducting the exploration activities;

(c) A precise narrative description of the exploration area, or a map at a scale of 1:24,000 or greater, describing or showing the proposed area of exploration (including latitude, longitude, nearest community, and USGS quadrangle), existing and proposed roads, occupied dwellings, topographic features, bodies of surface water, pipelines, and the general location of drill holes and trenches;

(d) A statement of the period of intended exploration;

(e) The names and addresses of the owner of record of the surface land and of the subsurface mineral estate of the area to be explored; and

(f) A description of the method of exploration to be used and the practices that will be followed to protect the environment and to reclaim the area from adverse impacts of the exploration activities in accordance with the applicable requirements of 405 KAR 20:010.

(3) The cabinet shall, in accordance with Section 3 of this administrative regulation, place the notices on public file and make them available for public inspection and copying at the appropriate regional office of the cabinet.

(4) Any person who conducts coal exploration activities pursuant to this section which substantially disturb the natural land surface shall comply with 405 KAR 20:010.

Section 2. Exploration Removing More than Twenty-five (25) Tons of Coal and Exploration in an Area Designated Unsuitable for Mining, Regardless of Tonnage.

(1) General. Any person who intends to conduct coal exploration in which more than twenty-five (25) tons of coal will be removed, or which will take place in an area designated unsuitable for mining pursuant to 405 KAR Chapter 24, shall, prior to conducting the exploration, submit an application and obtain the written approval of the cabinet in accordance with this section.

(2) Contents of application for approval. Each application for approval, in the number and form required by the cabinet, shall contain, at a minimum:

(a) The name, address, and telephone number of the applicant;

(b) The name, address, and telephone number of the representative of the applicant who will be present at and be responsible for conducting the exploration;

A narrative description of the proposed exploration area, cross-referenced to the map required under paragraph (e) of this subsection, including latitude, longitude, and nearest community; surface topography; geological, surface water, and other physical features; vegetative cover, the distribution and important habitats of fish, wildlife, and plants, including, but not limited to, any endangered or threatened species listed pursuant to the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); cultural or historic resources listed or known to be eligible for listing on the National Register of Historic Places; known archaeological resources located within the proposed exploration area; and any other information which the cabinet may require regarding known or unknown historic or archaeological resources;
A narrative description of the methods to be used to conduct coal exploration and reclamation, including, but not limited to, the types and uses of equipment, drilling, blasting, road or other access route construction, and excavated earth and other debris disposal activities;
An estimated timetable for conducting and completing each phase of the exploration and reclamation;
The estimated amounts of coal to be removed and a description of the methods to be used to determine those amounts;
A description of the measures to be used to comply with the applicable requirements of 405 KAR 20:010; and
A statement as to whether the proposed coal exploration will be conducted within an area which has been designated unsuitable for mining pursuant to 405 KAR Chapter 24. If so, the application shall include a description of the measures to be taken so as not to interfere with the values for which the area was designated unsuitable;

(d) The name and address of the owner of record of the surface land and of the subsurface mineral estate of the area to be explored;

(e)

A USGS seven and one-half (7 1/2) minute topographic map marked showing the area of land to be affected and the location of drill holes or excavations; and
A map at a scale of 1:6000 (one (1) inch equals 500 feet) or larger, showing the areas of land which may be affected by the proposed exploration and reclamation. The map shall also specifically show existing roads, occupied dwellings, and pipelines; proposed location of trenches, roads, and other access routes and structures to be constructed; the location of land excavations to be conducted; water or coal exploratory holes and wells to be drilled or altered; earth or debris disposal areas; existing bodies of surface water; historic, cultural, topographic, and drainage features; and habitats of any endangered or threatened species listed pursuant to the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);

(f) If the surface is owned by a person other than the applicant, a description of the basis upon which the applicant claims the right to enter that land for the purpose of conducting exploration and reclamation;

(g) A justification of the necessity to remove more than twenty-five (25) tons of coal from the area during exploration; and

(h) A fee of $375.

(3) Public notice and opportunity to comment. Public notice of the application and opportunity to comment shall be provided as follows:

(a) As contemporaneously as possible with receipt of written notification from the cabinet under subsection (4)(a) of this section that the application has been determined to be administratively complete, public notice of the filing of the administratively complete application with the cabinet shall be published by the applicant in the newspaper of largest bona fide circulation, according to the definition in KRS 424.110 to 424.120, in the county where the proposed exploration area is to be located.

(b) The public notice shall state the name and business address of the person seeking approval, the date of the filing of the administratively complete application, the address of the cabinet at which written comments on the application may be submitted, the closing date of the public comment period under paragraph (c) of this subsection, and a description of the general area of exploration.

(c) Any person with an interest which is or may be adversely affected shall have the right to file with the cabinet written comments on the application within thirty (30) days of the publication of the public notice under paragraph (a) of this subsection.

(4) Processing of applications.

(a) Within ten (10) working days of receipt of an application for approval of coal exploration operations, the cabinet shall provide written notification to the applicant as to the administrative completeness of the application. The date of written notification shall be deemed the date of filing of the administratively complete application. A determination by the cabinet that the application is administratively complete shall not mean that the application is technically sufficient.

(b) The cabinet shall act upon an application within sixty (60) days after the filing of the administratively complete application.

(c) The cabinet shall approve a complete and accurate application filed in accordance with this administrative regulation, if it finds, in writing, that the applicant has demonstrated that the exploration and reclamation described in the application:

Will be conducted in accordance with KRS Chapter 350, 405 KAR 20:010, and this administrative regulation;
Will not jeopardize the continued existence of an endangered or threatened species listed pursuant to Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) or result in the destruction or adverse modification of critical habitat of those species;
Will not adversely affect any cultural or historic resources listed on the National Register of Historic Places, unless the proposed exploration has been approved by both the cabinet and the agency with jurisdiction over the areas;
If located within an area designated unsuitable for mining, will not be incompatible with the values for which the area was designated unsuitable for mining; and
If removal of more than twenty-five (25) tons of coal has been proposed, that the removal is justified.

(5) Terms of approval. Each approval issued by the cabinet shall contain conditions necessary to ensure that the exploration and reclamation will be conducted in compliance with KRS Chapter 350, this administrative regulation, and 405 KAR 20:010.

(6) Notice and hearing:

(a) The cabinet shall notify the applicant, the appropriate local government officials, and all commenters on the application, in writing, of its decision on the application. If the application has been disapproved, the notice to the applicant shall include a statement of the reason for disapproval. The cabinet shall provide public notice of approval or disapproval of each application by publication of notice in the newspaper of largest bona fide circulation, according to the definition in KRS 424.110 to 424.120, in the county where the proposed exploration operations are to be located.

(b) Any person having an interest which is or may be adversely affected by a decision of the cabinet pursuant to paragraph (a) of this subsection shall have the opportunity for administrative and judicial review as set forth in 405 KAR 8:010, Section 24.

Section 3. Public Availability of Information.

(1) Except as provided in subsection (2) of this section, all information submitted to the cabinet under this administrative regulation shall be made readily available for public inspection and copying pursuant to Kentucky open record statutes KRS 61.870 to 61.884, at the appropriate Regional Office of the Department for Natural Resources.

(2)

(a) The cabinet shall not make information available for public inspection, if the person submitting it requests in writing, when it is submitted, that it not be disclosed and the cabinet determines that the information is confidential.

(b) The cabinet shall determine that information is confidential only if it concerns trade secrets or is privileged commercial or financial information which relates to the competitive rights of the person intending to conduct coal exploration.

(c) Information requested to be held as confidential under this subsection shall not be made publicly available until notice and opportunity to be heard has been afforded persons seeking or opposing disclosure of the information.

Section 4. Commercial Use or Sale.

(1) Except as provided under subsection (2) of this section, any person who intends to commercially use or sell coal extracted during coal exploration operations that are subject to Section 2 of this administrative regulation shall first obtain a permit to conduct surface coal mining and reclamation operations under 405 KAR 8:010.

(2) With the prior written approval of the cabinet, no permit to conduct surface coal mining and reclamation operations shall be required for the sale or commercial use of coal extracted during coal exploration operations if the sale or commercial use is for coal testing purposes only. The person conducting the exploration shall file an application for the approval with the cabinet. The application shall demonstrate that the coal testing is necessary for the development of a surface coal mining and reclamation operation for which a surface coal mining and reclamation operations permit application is to be submitted in the near future, and that the proposed commercial use or sale of coal extracted during exploration operations is solely for the purpose of testing the coal. The application shall contain the following:

(a) The name of the testing firm and the locations at which the coal will be tested;

(b) If the coal will be sold directly to, or commercially used directly by, the intended end user, a statement from the intended user, or if the coal is sold indirectly to the intended end user through an agent or broker, a statement from the agent or broker. The statement shall include:

The specific reason for the test, including why the coal may be so different from the intended user's other coal supplies as to require testing;
The amount of coal necessary for the test and why a lesser amount is not sufficient; and
A description of the specific tests that will be conducted;

(c) Evidence that sufficient reserves of coal are available to the person conducting exploration or his principals for future commercial use or sale to the intended end user, or agent or broker of the user identified above, to demonstrate that the amount of coal to be removed is not the total reserve, but is a sampling of a larger reserve; and

(d) An explanation as to why other means of exploration, such as core drilling, are not adequate to determine the quality of the coal and the feasibility of developing a surface coal mining operation.

Section 5. Compliance. All coal exploration and reclamation operations which substantially disturb the natural land surface shall be conducted in accordance with the coal exploration requirements of KRS Chapter 350, this administrative regulation, and 405 KAR 20:010, and any conditions on approval for exploration and reclamation imposed by the cabinet.

History

RELATES TO: KRS 350.057, 350.610, 30 C.F.R. Parts 730-733, 735, 772, 917, 30 U.S.C. 1253, 1255, 1262
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.057, 350.060, 350.465, 30 C.F.R. Parts 730-733, 735, 772, 917, 30 U.S.C. 1253, 1255, 1262
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to coal exploration operations. This administrative regulation specifies when notice to the cabinet is required and when prior written approval is needed from the cabinet for coal exploration operations. This administrative regulation further specifies the application process, information requirements, and hearing and compliance requirements.
History: 405 KAR 008:020. 8 Ky.R. 1492; eff. 1-6-1983; 15 Ky.R. 428; eff. 12-13-1988; 1867; eff. 6-28-1989; 18 Ky.R. 375; eff. 11-26-1991; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 8:030 Surface coal mining permits {#sec-405-kar-8-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:030}

Section 1. General.

(1) This administrative regulation applies to any person who applies for a permit to conduct surface mining activities.

(2) The requirements established in this administrative regulation specifically for applications for permits to conduct surface mining activities are in addition to the requirements applicable to all applications for permits to conduct surface coal mining and reclamation operations as established in 405 KAR 8:010.

(3) This administrative regulation establishes information required to be contained in each application for a permit to conduct surface mining activities, including:

(a) Legal, financial, compliance, and related information;

(b) Environmental resources information; and

Section 2. Identification of Interests.

(1) An application shall contain the following information, except that the submission of a Social Security number shall be voluntary:

(a) A statement identifying if the applicant is a corporation, partnership, single proprietorship, association, or other business entity;

(b) The name, address, telephone number and, as applicable, Social Security number, and employer identification number of the:

Applicant;
Applicant's resident agent; and
Person who will pay the abandoned mine land reclamation fee;

The person's name, address, Social Security number, and employer identification number;
The person's ownership or control relationship to the applicant, including percentage of ownership and location in organizational structure;
The title of the person's position, date position was assumed, and when submitted under 405 KAR 8:010, Section 18(5) date of departure from the position;
Each additional name and identifying number, including employer identification number, federal or state permit number, and MSHA number with date of issuance, under which the person owns or controls, or previously owned or controlled, a surface coal mining and reclamation operation in the United States within the five (5) years preceding the date of the application; and
The application number or other identifier of, and the regulatory authority for, any other pending surface coal mining operation permit application filed by the person in any state in the United States;

(d) For any surface coal mining operation owned or controlled by either the applicant or by any person who owns or controls the applicant, the operation's:

Name, address, identifying numbers, including employer identification number, federal or state permit number, and MSHA number, the date of issuance of the MSHA number, and the regulatory authority; and
Ownership or control relationship to the applicant, including percentage of ownership and location in organizational structure;

(e) The names and addresses of:

Every legal or equitable owner of record of the property to be mined;
The holders of record of any leasehold interest in the property to be mined; and
Any purchaser of record, under a real estate contract, of the property to be mined;

(f) The names and addresses of the owners of record of all surface and subsurface areas contiguous to any part of the proposed permit area;

(g) The name of the proposed mine and all MSHA identification numbers that have been assigned for the mine and all mine associated structures that require MSHA approval;

(h) Proof, such as a power of attorney or a resolution of the board of directors, that the individual signing the application has the power to represent the applicant in the permit matter; and

(i) A statement of all lands, interests in lands, options, or pending bids on interests held or made by the applicant for lands that are contiguous to the area to be covered by the permit.

(2) After an applicant has been notified that his or her application has been approved, but before the permit is issued, the applicant shall, as applicable, update, correct, or indicate that no change has occurred in the information previously submitted under subsection (1)(a) through (d) of this section.

(3) The permittee shall, in writing, inform the cabinet of any change of the permittee's address immediately if changed at any point prior to final bond release.

(4) The permittee shall submit updates of the information established in paragraphs (a) through (c) of this subsection in writing to the cabinet within thirty (30) days of the effective date of any change. An update shall be submitted for any changes that occur at any point prior to final bond release. Failure to submit updated information shall constitute a violation of KRS Chapter 350 only upon the permittee's refusal or failure to timely submit the information to the cabinet upon request. After the permittee's refusal or failure to timely submit the information to the cabinet upon request, the cabinet may suspend the permit after opportunity for hearing pending compliance with this subsection. This information shall include:

(a) The names and addresses of every officer, partner, director, or person performing a function similar to a director of the permittee;

(b) The names and addresses of principal shareholders; and

(c) If the permittee or other persons established in this subsection are subject to any of the provisions of KRS 350.130(3).

Section 3. Violation Information.

(1) Each application shall contain:

(a) A statement identifying if the applicant or any subsidiary, affiliate, or persons controlled by or under common control with the applicant has:

Had a coal mining permit of the United States or any state suspended or revoked in the five (5) years preceding the date of submission of the application; or
Forfeited a coal mining performance bond or similar security deposited in lieu of bond;

(b) If any suspension, revocation, or forfeiture as established in paragraph (a) of this subsection has occurred, a statement of the facts involved, including:

Identification number and date of issuance of the permit, and date and amount of bond or similar security;
Identification of the authority that suspended or revoked the permit or forfeited the bond and the stated reasons for that action;
The current status of the permit, bond, or similar security involved;
The date, location, and type of any administrative or judicial proceedings initiated concerning the suspension, revocation, or forfeiture; and
The current status of these proceedings; and

(c) For any violation of a provision of SMCRA; federal regulations enacted pursuant to SMCRA; KRS Chapter 350 and administrative regulations adopted pursuant thereto; any other state's laws or regulations under SMCRA; any federal law, rule, or regulation pertaining to air or water environmental protection; or any Kentucky or other state's law, rule, or regulation enacted pursuant to federal law, rule, or regulation pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, a list of all violation notices received by the applicant during the three (3) year period preceding the application date, and a list of all unabated cessation orders and unabated air and water quality violation notices received prior to the date of the application by any surface coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant. For each violation notice or cessation order reported, the lists shall include, as applicable:

Any identifying numbers for the operation, including the federal or state permit number and MSHA number; the dates of issuance of the violation notice and MSHA number; the name of the person to whom the violation notice was issued; and the name of the issuing regulatory authority, department, or agency;
A brief description of the particular violation alleged in the notice;
The final resolution of each violation notice, if any; and
For each violation notice that has not been finally resolved:

a. The date, location, and type of any administrative or judicial proceedings initiated concerning the violation, including proceedings initiated by any person identified in this subsection to obtain administrative or judicial review of the violation;

b. The current status of the proceedings and of the violation notice; and

c. The actions, if any, taken or being taken by any person identified in this subsection to abate the violation.

(2) After an applicant has been notified that his or her application has been approved, but before the permit is issued, if necessary, the applicant shall update the application to indicate what change, if any, has occurred in the information previously submitted under subsection (1) of this section.

(3) Upon request by a small operator, the cabinet shall provide to the small operator, with regard to persons under subsection (1) of this section who are identified by the small operator, the compliance information required by this section regarding suspension and revocation of permits and forfeiture of bonds under KRS Chapter 350, and information pertaining to violations of KRS Chapter 350 and administrative regulations promulgated thereunder.

Section 4. Right of Entry and Right to Surface Mine.

(1) Each application shall contain a description of the documents upon which the applicant bases his or her legal right to enter and begin surface mining activities in the permit area and if that right is the subject of pending litigation. The description shall identify those documents by type and date of execution, identify the specific lands to which the document pertains, and explain the legal rights claimed by the applicant.

(2) If the private mineral estate to be mined has been severed from the private surface estate, the application shall contain:

(a) A copy of the written consent of the surface owner for the extraction of coal by surface mining methods;

(b) A copy of the conveyance that expressly grants or reserves the right to extract coal by surface mining methods; or

(c) If the conveyance does not expressly grant the right to extract the coal by surface mining methods, documentation that under applicable state law, the applicant has the legal authority to extract coal by those methods.

(3) Nothing in this section shall be construed to authorize the cabinet to adjudicate property rights disputes.

Section 5. Relationship to Areas Designated Unsuitable for Mining.

(1) Each application shall contain a statement of available information identifying if the proposed permit area is within an area designated unsuitable for surface mining activities under 405 KAR Chapter 24 or under study for designation in an administrative proceeding under that chapter.

(2) If an applicant claims the exemption in 405 KAR 8:010, Section 14(4)(b), the application shall contain information supporting the applicant's assertion that the applicant made substantial legal and financial commitments before January 4, 1977, concerning the proposed surface mining activities.

(3) If an applicant proposes to conduct surface mining activities within 300 feet of an occupied dwelling, the application shall contain the waiver of the owner of the dwelling as required in 405 KAR 24:040, Section 2(5).

(4) If the applicant proposes to conduct surface mining activities within 100 feet of a public road, the requirements of 405 KAR 24:040, Section 2(6) shall be met.

Section 6. Permit Term Information.

(1) Each application shall state the anticipated or actual starting and termination date of each phase of the surface mining activities and the anticipated number of acres of land to be affected for each phase of mining and over the total life of the permit.

(2) If the applicant proposes to conduct the surface mining activities in excess of five (5) years, the application shall contain the information needed for the showing required under 405 KAR 8:010, Section 17(1).

Section 7. Personal Injury and Property Damage Insurance Information. Each permit application shall contain a certificate of liability insurance according to 405 KAR 10:030, Section 4.

Section 8. Identification of Other Licenses and Permits. Each application shall contain a list of all other licenses and permits needed by the applicant to conduct the proposed surface mining activities. This list shall identify each license and permit by:

(1) Type of permit or license;

(2) Name and address of issuing authority;

(3) Identification numbers of applications for those permits or licenses or, if issued, the identification numbers of the permits or licenses; and

(4) If a decision has been made, the date of approval or disapproval by each issuing authority.

Section 9. Identification of Location of Public Office for Filing of Application. Each application shall identify, by name and address, the appropriate regional office of the cabinet where the applicant will file a copy of the entire application for public inspection under 405 KAR 8:010, Section 8(8).

Section 10. Newspaper Advertisement and Proof of Publication. A copy of the newspaper advertisement of the application for a permit, major revision, amendment, transfer, or renewal of a permit and proof of publication of the advertisement shall be filed with the cabinet and made a part of the application, not later than fifteen (15) days after the last date of publication required under 405 KAR 8:010, Section 8(2).

Section 11. Environmental Resources Information.

(1) Each permit application shall include a description of the existing environmental resources within the proposed permit area and adjacent areas as required by Sections 11 through 23 of this administrative regulation. The description required by this administrative regulation may, where appropriate, be based upon published texts or other public documents together with reasonable extrapolations from specific data available from existing permit areas or other appropriate areas.

(2)

(a) Each application shall describe and identify the nature of cultural, historic, and archaeological resources listed or eligible for listing on the National Register of Historic Places and known archaeological sites within the proposed permit area and adjacent areas. The description shall be based on all available information, including information from the state Historic Preservation Officer and from local archaeological, historical, and cultural preservation agencies.

(b) According to historical databases, the cabinet may require the applicant to identify and evaluate important historic and archaeological resources that may be eligible for listing on the National Register of Historic Places, through collection of additional information, field investigations, or other appropriate analyses.

Section 12. General Requirements for Baseline Geologic and Hydrologic Information.

(1) The application shall contain baseline geologic and hydrologic information that has been collected, analyzed, and submitted in the detail and manner sufficient to:

(a) Identify and describe protective measures pursuant to Section 32(1) of this administrative regulation that will be implemented during the mining and reclamation process to assure protection of the hydrologic balance or to demonstrate that protection of the hydrologic balance can be assured without the design and installation of protective measures, and to design necessary protective measures pursuant to Section 32(2) of this administrative regulation;

(b) Determine the probable hydrologic consequences of the mining and reclamation operations upon the hydrologic balance in the permit area and adjacent area pursuant to Section 32(3) of this administrative regulation so that an assessment can be made by the cabinet pursuant to 405 KAR 8:010, Section 14(3) of the probable cumulative impacts of all anticipated mining on the hydrologic balance in the cumulative impact area;

(c) Determine pursuant to 405 KAR 8:010, Section 14(2) and (3) if reclamation as required by 405 KAR can be accomplished and if the proposed operation has been designed to prevent material damage to the hydrologic balance; and

(d) Design surface and groundwater monitoring systems pursuant to Section 32(4) of this administrative regulation for the during-mining and postmining time period which, together with the baseline data collected under Sections 14(1) and 15(1) of this administrative regulation, shall demonstrate if the mining operation is meeting applicable effluent limitations and stream standards and protecting the hydrologic balance.

(2)

(a) Geologic and hydrologic information pertaining to the area outside the permit and adjacent area but within the cumulative impact assessment area shall be provided to the applicant by the cabinet if this information is:

Needed in preparing the cumulative impact assessment; and
Available from an appropriate federal or state agency.

(b) If this information is needed by the cabinet for conducting the cumulative impact assessment and is not available from a federal or state agency, the applicant may gather and submit this information to the cabinet as part of the permit application.

(3) Interpolation, modeling, correlation, or other statistical methods, and other data extrapolation techniques may be used if the applicant can demonstrate that the data extrapolation techniques are valid and that information obtained through the techniques meets the requirements of subsection (1) of this section.

(4) Water quality analysis and sampling required by this chapter shall be conducted according to:

(a) Standard Methods for the Examination of Water and Wastewater (14th Edition); or

(b) 40 C.F.R. Parts 136 and 434.

Section 13. Baseline Geologic Information.

(1) The application shall contain baseline geologic information collected from the permit area that shall meet the requirements of Section 12(1) of this administrative regulation and shall include at a minimum:

(a) The results of samples obtained from continuous cores; drill cuttings; channel cuttings from fresh, unweathered, rock outcrops; or other rock or soil material that has been collected using sampling techniques appropriate for the material type.

The vertical extent of sampling shall include those strata from the surface down to and including the stratum immediately below the lowest coal seam to be mined.
Where aquifers located within the permit area underlie the lowest coal seam to be mined and these aquifers may be adversely affected by the mining operation, the vertical extent of sampling shall also include those strata from the lowest coal seam to be mined down to and including the aquifers.
The area and vertical density of sampling shall, at a minimum, be sufficient to determine the distribution of strata that have a potential to produce acid drainage and to determine the area and vertical extent of aquifers that could be adversely affected.
If the vertical extent, and the area and vertical density of sampling established in subparagraphs 1 through 3 of this paragraph are not sufficient to locate suitable strata for use as a topsoil substitute, or for other required design or analysis, additional sampling shall be conducted as necessary to furnish adequate geologic information;

(b) Chemical analyses including maximum potential acidity and neutralization potential of each overburden stratum and the stratum immediately below the lowest coal seam to be mined, to identify those strata that have a potential to produce acid or toxic drainage; and

(c) Chemical analyses of the coal seam to be mined to determine the potential to produce acid or toxic drainage, including the parameters of total sulfur and pyritic sulfur; except that the cabinet shall not require an analysis for pyritic sulfur if the applicant can demonstrate that an analysis for total sulfur provides adequate information to assure protection of the hydrologic balance.

(2) Collection of geologic information from the permit area as required in this subsection may be waived in whole or in part if:

(a)

The applicant can demonstrate through geologic correlation or other procedures that information collected from outside the permit area is representative of the permit area and is sufficient to meet the requirements of Section 12(1) of this administrative regulation; or
Other information equivalent to that required by this subsection is available to the cabinet and is made a part of the permit application; and

(b) The cabinet provides a written statement granting a waiver.

(3) The application shall contain a description of the geology of the proposed permit area and adjacent area that shall meet the requirements of Section 12(1) of this administrative regulation and be based on the information required in subsection (1) of this section or other appropriate geologic information. The description shall include, at a minimum, geologic logs, cross-sections, fence diagrams, or other appropriate illustrations and written descriptions depicting:

(a) Within the permit area:

The structural geology and lithology of overburden strata and the stratum immediately below the lowest coal seam to be mined;
The thickness and chemical characteristics of each overburden stratum and the stratum immediately below the lowest coal seam to be mined; and
Where aquifers could be adversely affected by the mining operation, the structural geology, lithology, thickness, and area extent of the aquifers; and structural geology and lithology of strata, and thickness of each stratum, from the surface down to the aquifers; and

(b) Within the adjacent area, the approximate area extent and approximate thickness of aquifers that could be adversely affected by the mining operation.

(4) If necessary to assure adequate reclamation and protection of the hydrologic balance, the cabinet shall require geologic information and description in addition to that required by subsections (1) and (2) of this section including leaching tests of material from strata that could be disturbed by the operation to determine the potential for the operation to produce drainage with elevated levels of acidity, sulfate, and total dissolved solids, and the collection of information to greater depths within the proposed permit area or the collection of information for areas outside the proposed permit area.

Section 14. Baseline Groundwater Information.

(1) The application shall contain baseline groundwater information for the permit area and adjacent area that shall be collected and submitted in a manner adequate to meet the requirements of Section 12(1) of this administrative regulation.

(2) Groundwater information shall include an inventory of wells, springs, underground mines, or other similar groundwater supply facilities currently being used, have been used in the past, or have a potential to be used for domestic, agricultural, industrial, or other beneficial purpose. The inventory shall include the location, ownership, type of usage, and if possible, other relevant information such as the depth and diameter of wells and approximate rate of usage, pumpage, or discharge from wells, springs, and other groundwater supply facilities.

(3) Groundwater information shall include seasonal groundwater quantity and quality data collected from monitoring wells, springs, underground mines, or other appropriate groundwater monitoring facilities, at a sufficient number of monitoring locations with adequate area distribution to meet the requirements of Section 12(1) of this administrative regulation. Seasonal groundwater quantity and quality data shall be provided for each water transmitting zone above, and potentially impacted water transmitting zone below, the lowest coal seam to be mined including at a minimum:

(a) Groundwater levels; and

(b) Total dissolved solids, or specific conductance corrected to twenty-five (25) degrees C, pH, dissolved iron, dissolved manganese, acidity, alkalinity, and sulfate. For data collected prior to August 13, 1985, total iron and total manganese may be substituted for dissolved iron and dissolved manganese.

(4) The groundwater information required by subsection (3) of this section shall be required in whole or in part for coal seams if the coal seams to be mined are serving as water supply sources or are otherwise significant in protecting the hydrologic balance.

(5) If additional information is needed to assess the need for protective measures, to design protective measures, to determine the probable hydrologic consequences of mining, or to conduct the cumulative impact assessment, the cabinet shall require groundwater information in addition to that established in subsections (2), (3), and (4) of this section including information pertaining to aquifer storage, yield, discharge, recharge capacity, and additional water quality parameters.

Section 15. Baseline Surface Water Information.

(1) The application shall contain baseline surface water information for the permit area and adjacent area that shall be collected and submitted in a manner adequate to meet the requirements of Section 12(1) of this administrative regulation.

(2) Surface water information shall include an inventory of all streams, lakes, impoundments, or other surface water bodies in the permit and adjacent area that are currently being used for domestic, agricultural, industrial, or other beneficial purpose. The inventory shall include the name of the surface water body being used as a water supply source; the location, drainage area, ownership, and type of usage for the withdrawal; and if possible other relevant information such as the rate of withdrawal and seasonal variation.

(3) Surface water information shall include:

(a) The name, location, and ownership if appropriate, of all streams, lakes, impoundments, and other surface water bodies that receive run-off from watersheds that will be disturbed by the operation; and

(b) The location and description of any existing facilities located in watersheds that will be disturbed by the mining operation and could contribute to surface water pollution, such as existing or abandoned mining operations, oil wells, logging operations, or other similar facilities, including the location of any discharges that could be flowing from the facilities.

(4) Surface water information shall include seasonal quantity and quality data collected from a sufficient number of watersheds that will be disturbed by the operation with adequate area distribution to meet the requirements of Section 12(1) of this administrative regulation and include at a minimum:

(a) Flow rates; and

(b) Total dissolved solids, or specific conductance corrected to twenty-five (25) degrees C, total suspended solids, pH, total iron, total manganese, acidity, alkalinity, and sulfate.

(5) If additional information is needed to assess the need for protective measures, to design protective measures, to determine the probable hydrologic consequences of mining, or to conduct the cumulative impact assessment, the cabinet shall require surface water information in addition to that established in subsections (2), (3), and (4) of this section, including information pertaining to flood flows and additional water quality parameters.

Section 16. Alternative Water Supply Information. If the determination of probable hydrologic consequences required under Section 32 of this administrative regulation indicates that the proposed surface mining activities could proximately result in contamination, diminution, or interruption of an underground or surface source of water within the proposed permit area or adjacent area used for domestic, agricultural, industrial, or other legitimate use, then the application shall identify and describe the adequacy and suitability of the alternative sources of water supply that could be developed for existing premining uses and approved postmining land uses.

Section 17. Climatological Information.

(1) Upon cabinet request, the application shall contain a statement of the climatological factors that are representative of the proposed permit area, including:

(a) The average seasonal precipitation;

(b) The average direction and velocity of prevailing winds; and

(2) The cabinet shall request additional data if necessary to ensure compliance with the requirements of this chapter.

Section 18. Soil Resources Information.

(1) If soil survey information for the proposed permit area is available from SCS, the application shall include this information as a part of the description of premining land use capability and productivity required by Section 22(1)(b) of this administrative regulation.

(2) If the applicant proposes to use selected overburden materials as a supplement or substitute for topsoil, the application shall provide results of analyses, trials, and tests as required under 405 KAR 16:050, Section 2(5).

Section 19. Vegetation Information.

(1) The permit application shall contain a map that delineates existing vegetative types and a description of the plant communities within the proposed permit area and within any proposed reference area. This description shall include information adequate to predict the potential for reestablishing vegetation.

(2) If a map or aerial photograph is required, sufficient adjacent areas shall be included to allow evaluation of vegetation as important habitat for fish and wildlife.

Section 20. Fish and Wildlife Resources Information.

(1) Each application shall include fish and wildlife resource information for the permit area and adjacent area. The scope and level of detail for this information shall be determined by the cabinet in consultation with the Kentucky Department of Fish and Wildlife Resources and the U.S. Department of the Interior, Fish and Wildlife Service, and shall be sufficient to design the protection and enhancement plan required under Section 36 of this administrative regulation.

(2) Site-specific resource information necessary to address the respective species or habitats shall be required if the permit area or adjacent area is likely to include:

(a) Listed or proposed endangered or threatened species of plants or animals or their critical habitats listed by the Secretary of the Interior under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 – 1544), or those species or habitats protected by similar state statutes;

(b) Habitats of unusually high value for fish and wildlife such as important streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, or reproduction and wintering areas; or

(c) Other species or habitats identified through agency consultation as requiring special protection under state or federal law.

(3) Wetland delineations shall be conducted in accordance with:

(a) The Corps of Engineers Wetlands Delineation Manual;

(b) U. S. Army Corps of Engineers Regulatory Guidance Letter No. 90-7;

(d) List of Hydric Soils of the United States, All Kentucky Counties.

(4) Upon request, the cabinet shall provide the resource information required under this section to the U.S. Department of the Interior, Fish and Wildlife Service regional or field office for their review. This information shall be provided within ten (10) days of receipt of the request from the Service.

(5)

(a) Fish and wildlife resource information shall be required for amendments and revisions that:

Propose extension into a wetland;
Propose significant disturbance in a new watershed in which the permit area or adjacent area includes an important stream;
Seek to obtain a stream buffer zone variance under 405 KAR 16:060, Section 11, or seek to modify an existing stream buffer zone variance;
Propose extension of the permit boundary that involves a new surface disturbance of five (5) acres or more; or
Involve new permit or adjacent areas likely to contain, or that could reasonably be expected to contain, a state or federal endangered or threatened species or its critical habitat.

(b) For other amendments and revisions, a determination of if fish and wildlife information is necessary, and the scope of information needed, shall be made in consultation with Kentucky Department of Fish and Wildlife Resources and U.S. Fish and Wildlife.

(6) This section shall apply to applications for permits, amendments and revisions submitted to the cabinet on or after November 17, 1992.

Section 21. Prime Farmland Investigation.

(1) The applicant shall before making application investigate the proposed permit area to determine if lands within the area may be prime farmland.

(2) Land shall not be considered prime farmland if the applicant can demonstrate one (1) of the following:

(a) The land has not been historically used as cropland;

(b) The slope of the land is ten (10) percent or greater;

(c) Other relevant factors exist, which would preclude the soils from being defined as prime farmland according to 7 C.F.R. 657, such as a very rocky surface, or the land is flooded during the growing season more often than once in two (2) years, and the flooding has reduced crop yields; or

(d) On the basis of a soil survey of lands within the permit area, there are no soil map units that have been designated prime farmland by the U.S. SCS.

(3) If the investigation establishes that the lands are not prime farmland, the applicant shall submit with the permit application a request for a negative determination and results of the investigation that show that the land for which the negative determination is being sought meets one (1) of the criteria of subsection (2) of this section.

(4) If the investigation indicates that lands within the proposed permit area could be prime farmlands, the applicant shall contact the U.S. SCS to determine if a soil survey exists for those lands and if the applicable soil map units have been designated as prime farmlands. If no soil survey has been made for the lands within the proposed permit area, the applicant shall request the SCS to conduct a soil survey.

(a) If a soil survey of lands within the proposed permit area contains soil map units designated as prime farmlands, the applicant shall submit an application, in accordance with 405 KAR 8:050, Section 3 for the designated land.

(b) If a soil survey for lands within the proposed permit area contains no soil map units designated as prime farmland after review by the U.S. SCS, the applicant shall submit with the permit application a request for negative determination under subsection (2)(d) of this section for the nondesignated land.

(5) The cabinet shall grant or deny a negative determination based upon documentation provided by the applicant and any other pertinent information, such as cropping history, available to the cabinet from other sources.

(6) The cabinet shall consult with the SCS in deciding on a request for negative determination under subsection (2)(c) of this section.

(7) The cabinet shall examine any records on crop history available from the Agriculture Stabilization and Conservation Service to decide on a request for negative determination under subsection (2)(a) of this section.

Section 22. Land-use Information.

(1) The application shall contain a statement of the condition, capability, and productivity of the land within the proposed permit area, including:

(a) A map and supporting narrative of the uses of the land existing when the application is filed. If the premining use of the land was changed within five (5) years before the date of application, the historic use of the land shall also be described; and

(b) A narrative of land use capability and productivity, which analyzes the land-use description in conjunction with other environmental resources information required under this administrative regulation. The narrative shall provide analyses of:

The capability of the land before any mining to support a variety of uses, giving consideration to soil and foundation characteristics, topography, vegetative cover, and the hydrology of the proposed permit area; and
The productivity of the proposed permit area before mining, expressed as average yield of food, fiber, forage, or wood products from the lands obtained under high levels of management. The productivity shall be determined by yield data or estimates for similar sites based on current data from the U.S. Department of Agriculture, state agricultural universities, or appropriate state natural resource or agricultural agencies.

(2) The application shall state if the proposed permit area has been previously mined, and, if so and, if available, the:

(a) Type of mining method used;

(b) Coal seams or other mineral strata mined;

(d) Approximate dates of past mining; and

(e) Uses of the land preceding mining.

(3) The application shall contain a description of the existing land uses and local government land use classifications, if any, of the proposed permit area and adjacent areas.

(4) The application shall contain a description identifying the extent to which cities, towns, and municipalities, or parts thereof, are located within the proposed permit area.

Section 23. Maps and Drawings.

(1) The permit application shall include a map or maps showing:

(a) The boundaries of all subareas proposed to be affected over the estimated total life of the proposed surface mining activities, with a description of the size, sequence, and timing of the surface mining operations for which it is anticipated that additional permits will be sought;

(b) Any land within the proposed permit area and adjacent area within the boundaries of any units of the National System of Trails or the Wild and Scenic Rivers System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1276(a)), or which is within the boundaries of a wild river established pursuant to KRS Chapter 146;

(c) The boundaries of any public park and locations of any cultural or historical resources listed on or eligible for listing on the National Register of Historic Places and known archaeological sites within the permit area and adjacent areas;

(d) The locations of water supply intakes for current users of surface water within a hydrologic area defined by the cabinet, and those surface waters that will receive discharges from affected areas in the proposed permit area;

(e) All boundaries of lands and names of present owners of record of those lands, both surface and subsurface, included in or contiguous to the permit area;

(f) The boundaries of land within the proposed permit area upon which the applicant has the legal right to enter and begin surface mining activities;

(g) The location of surface and subsurface manmade features within, passing through, or passing over the proposed permit area, including major electric transmission lines, pipelines, and agricultural drainage tile fields;

(h) The location and boundaries of any proposed reference areas for determining the success of revegetation for the permit area;

(i) The location of all buildings on and within 1,000 feet of the proposed permit area, with identification of the current use of the buildings;

(j) Each public road located in or within 100 feet of the proposed permit area;

(k) Each cemetery that is located in or within 100 feet of the proposed permit area; and

(l) Other relevant information required by 30 C.F.R. 779.24(l).

(2) The application shall include drawings, cross sections, and maps showing:

(a) Elevations and locations of test borings and core samplings;

(b) Elevations and locations of monitoring stations or other sampling points in the permit area and adjacent areas used to gather data on water quality and quantity, fish and wildlife, and air quality, if required, in preparation of the application, or that will be used for this data gathering during the term of the permit;

(c) Nature, depth, and thickness of the coal seams to be mined, any coal or rider seams above the seam to be mined, each stratum of the overburden, and the stratum immediately below the lowest coal seam to be mined, for the permit area;

(d) All coal crop lines and the strike and dip of the coal to be mined within the proposed permit area;

(e) Location and extent of known workings of active, inactive, or abandoned underground mines, including mine openings to the surface within the proposed permit area and adjacent areas;

(f) Location and extent of subsurface water, if encountered, within the proposed permit area or adjacent areas;

(g) Location of surface water bodies such as streams, lakes, ponds, springs, constructed or natural drainage patterns, and irrigation ditches within the proposed permit area and adjacent areas;

(h) Location and extent of existing or previously surface-mined areas within the proposed permit area;

(i) Location, and depth if available, of gas and oil wells within the proposed permit area and water wells in the permit area and adjacent areas;

(j) Location and dimensions of existing areas of spoil, waste, and noncoal waste disposal, dams, embankments, other impoundments, and water treatment and air pollution control facilities within the proposed permit area; and

(k) Sufficient slope measurements to adequately represent the existing land surface configuration of the proposed permit area, measured and recorded according to the requirements established in subparagraphs 1. through 3. of this paragraph.

Each measurement shall consist of an angle of inclination along the prevailing slope extending 100 linear feet above and below or beyond the coal outcrop or the area to be disturbed or, if impractical, at locations and in a manner sufficient to demonstrate that the surface coal mining and reclamation operations, as required by KRS Chapter 350 and 405 KAR Chapters 7 through 24, can be feasibly accomplished in accordance with the mining and reclamation plan.
Where the area has been previously mined, the measurements shall extend at least 100 feet beyond the limits of mining disturbances, or any other distance representative of the premining configuration of the land.
Slope measurements shall take in account natural variations in slope, to provide accurate representation of the range of natural slopes and reflect geomorphic differences of the area to be disturbed.

(3) The permit application shall include the map information established in Sections 22(1)(a), 24(3), 24(4)(c), 24(4)(h), 27(1), 28(1), 31, 32, 33, 34, and 38 of this administrative regulation, and 405 KAR 8:010, Section 5(6).

(4) Maps, drawings, and cross-sections included in a permit application that are required by this section shall be prepared by or under the direction of and certified by a qualified registered professional engineer, and shall be updated as required by the cabinet if there is a material change. The qualified registered professional engineer shall not be required to certify true ownership of property.

Section 24. Mining and Reclamation Plan; General Requirements.

(1) Each application shall contain a detailed mining and reclamation plan (MRP) for the proposed permit area as established in this section through Section 38 of this administrative regulation, showing how the applicant will comply with KRS Chapter 350 and 405 KAR Chapters 16 through 20.

(2) Each application shall contain a description of the mining operations proposed to be conducted within the proposed permit area, including, at a minimum a narrative:

(a) Description of the type and method of coal mining procedures and proposed engineering techniques, anticipated annual and total production of coal, by tonnage, and the major equipment to be used for all aspects of those operations; and

(b) Explaining the construction, modification, use, maintenance, and removal of the following facilities (unless retention of the facilities is to be approved as necessary for postmining land use as established in 405 KAR 16:210):

Dams, embankments, and other impoundments;
Overburden and topsoil handling and storage areas and structures;
Coal removal, handling, storage, cleaning, and transportation areas and structures;
Spoil, coal processing waste, and noncoal waste removal, handling, storage, transportation, and disposal areas and structures;
Mine facilities; and
Water and air pollution control facilities.

(3) Each application shall contain plans and maps of the proposed permit area and adjacent areas pursuant to paragraphs (a) through (c) of this subsection.

(a) The plans and maps shall show the lands proposed to be affected throughout the operation and any change in a facility or feature to be caused by the proposed operations, if the facility or feature was shown under Section 23 of this administrative regulation.

(b) The following shall be shown for the proposed permit area:

Buildings, utility corridors, and facilities to be used;
The area of land to be affected within the proposed permit area, according to the sequence of mining and reclamation;
Each area of land for which a performance bond or other equivalent guarantee will be posted under 405 KAR Chapter 10;
Each coal storage, cleaning, and loading area;
Each topsoil, spoil, coal waste, and noncoal waste storage area;
Each water diversion, collection, conveyance, treatment, storage, and discharge facility to be used;
Each air pollution collection and control facility;
Each source of waste and each waste disposal facility relating to coal processing or pollution control;
Each facility to be used to protect and enhance fish and wildlife and related environmental values;
Each explosive storage and handling facility; and
Location of each sedimentation pond, permanent water impoundment, coal processing waste bank, and coal processing waste dam and embankment, in accordance with Section 34 of this administrative regulation, and fill area for the disposal of excess spoil in accordance with Section 27 of this administrative regulation.

(c) Plans, maps, and drawings required under this section shall be prepared by, or under the direction of, and certified by a qualified registered professional engineer.

(4) Each plan shall contain the following information for the proposed permit area:

(a) A projected timetable for the completion of each major step in the mining and reclamation plan;

(b) A detailed estimate of the cost of reclamation of the proposed operations required to be covered by a performance bond under 405 KAR Chapter 10, with supporting calculations for the estimates;

(c) A plan for backfilling, soil stabilization, compacting, and grading, with contour maps or cross-sections that show the anticipated final surface configuration of the proposed permit area, in accordance with 405 KAR 16:190;

(d) A plan for removal, storage, and redistribution of topsoil, subsoil, and other material to meet the requirements of 405 KAR 16:050 including a demonstration of suitability of any proposed topsoil substitutes or supplements;

(e) A plan for revegetation as required in 405 KAR 16:200, including descriptions of the: schedule of revegetation; species and amounts per acre of seeds and seedlings to be used; methods to be used in planting and seeding; mulching techniques; irrigation, if appropriate; pest and disease control measures, if any; measures proposed to be used to determine the success of revegetation as required in 405 KAR 16:200, Section 6; and a soil testing plan for evaluation of the results of topsoil handling and reclamation procedures related to revegetation;

(f) A description of the measures to be used to maximize the use and conservation of the coal resource as required in 405 KAR 16:010, Section 2;

(g) A description of measures to be employed to ensure that all debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard are disposed of in accordance with 405 KAR 16:150 and 16:190, Section 3, and a description of the contingency plans that have been developed to preclude sustained combustion of the materials;

(h) A description, including appropriate maps and drawings, of the measures to be used to seal or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells, and other openings within the proposed permit area, in accordance with 405 KAR 16:040; and

(i) A description of steps to be taken to comply with the requirements of the Clean Air Act (42 U.S.C. Chapter 85), the Clean Water Act (33 U.S.C. Chapter 26), and other applicable air and water quality laws and regulations and health and safety standards. This description shall, at a minimum, consist of identification of permits or approvals required by these laws and regulations that the applicant either has obtained, has applied for, or intends to apply for.

Section 25. MRP; Existing Structures.

(1) Each application shall contain a description of each existing structure proposed to be used in connection with or to facilitate the surface coal mining and reclamation operation. The description shall include:

(a) Location;

(b) Plans of the structure that describe the structure's current condition;

(d) A showing, including relevant monitoring data or other evidence, that the structure meets the performance standards of 405 KAR Chapters 16 through 20.

(2) Each application shall contain a compliance plan for each existing structure proposed to be modified or reconstructed for use in connection with or to facilitate the surface coal mining and reclamation operation. The compliance plan shall include:

(a) Design specifications for the modification or reconstruction of the structure to meet the performance standards of 405 KAR Chapters 16 through 20;

(b) A construction schedule that shows dates for beginning and completing interim steps and final reconstruction;

(c) Provisions for monitoring the structure to ensure that the performance standards of 405 KAR Chapters 16 through 20 are met; and

(d) A showing that the risk of harm to the environment or to public health or safety will not be significant during the period of modification or reconstruction.

Section 26. MRP; Blasting.

(1) Each application shall contain a blasting plan for the proposed permit area explaining how the applicant intends to comply with the requirements of 405 KAR 16:120. This plan shall include, at a minimum, information setting forth the limitations the permittee shall meet with regard to:

(a) Ground vibration and air blast;

(b) The bases for the ground vibration and air blast limitations; and

(2) Each application shall contain a description of the systems to be used to monitor compliance with the standards for ground vibration and air blast including identification of the types, capabilities, and sensitivities of blast monitoring equipment and identification of the monitoring procedures and locations.

(3) Blasting operations within 500 feet of active underground mines shall require approval of the cabinet, MSHA, and the Office of Mine Safety and Licensing.

Section 27. MRP; Disposal of Excess Spoil.

(1) Each application shall contain descriptions, including appropriate maps and cross-section drawings, of the proposed disposal site and design of the spoil disposal structures according to 405 KAR 16:130. These plans shall describe the geotechnical investigation, design, construction, operation, maintenance, and removal if appropriate, of the site and structures.

(2) Each application shall contain the results of a geotechnical investigation of the proposed disposal site, including:

(a) The character of bedrock and any adverse geologic conditions in the disposal area;

(b) A survey identifying all springs, seepage, and groundwater flow observed or anticipated during wet periods in the area of the disposal site;

(c) An assessment of the potential effects of subsidence of the subsurface strata due to past and future mining operations;

(d) A technical description of the rock materials to be utilized in the construction of those disposal structures containing rock chimney cores or underlain by a rock drainage blanket; and

(e) A stability analysis including strength parameters, pore pressures, and long-term seepage conditions. These data shall be accompanied by a description of all engineering design assumptions and calculations and the alternatives considered in selecting the specific design specifications and methods.

(3) If, under 405 KAR 16:130, Section 1(4), rock toe buttresses or key way cuts are required, the application shall include:

(a) The number, location, and depth of borings or test pits that shall be determined with respect to the size of the spoil disposal structure and subsurface conditions; and

(b) Engineering specifications utilized to design the rock toe buttresses or key way cuts that shall be determined in accordance with subsection (2)(e) of this section.

Section 28. MRP; Transportation Facilities.

(1) Each application shall contain a transportation facilities plan including a description of each road, conveyor, or rail system to be constructed, used, or maintained within the proposed permit area. The description shall include a map, appropriate cross-sections, and:

(a) Specifications for each road width, road gradient, road surface, road cut, fill embankment, culvert, bridge, drainage ditch, and drainage structure;

(b) A report of appropriate geotechnical analysis, if approval of the cabinet is required for alternative specifications, or for steep cut slopes under 405 KAR 16:220;

(c) A description of measures to be taken to obtain approval of the cabinet for alteration or relocation of a natural drainageway under 405 KAR 16:220; and

(d) A description of measures, other than use of a rock headwall, to be taken to protect the inlet end of a ditch relief culvert, for approval by the cabinet under 405 KAR 16:220.

(2) Each plan shall contain a general description of each road, conveyor, or rail system to be constructed, used, or maintained within the proposed permit area.

Section 29. MRP; Surface Mining Near Underground Mining. For surface mining activities within the proposed permit area to be conducted within 500 feet of an underground mine, the application shall describe the measures to be used to comply with 405 KAR 16:010, Section 3.

Section 30. MRP; Protection of Public Parks and Historic Places.

(1) For any publicly-owned parks or any places listed on the National Register of Historic Places that could be adversely affected by the proposed operations, each plan shall describe the measures to be used to prevent adverse impact or, if valid existing rights exist or joint agency approval is to be obtained under 405 KAR 24:040, Section 2(4), to minimize adverse impacts.

(2) The cabinet may, pursuant to 30 C.F.R. 780.31, require the applicant to protect historic or archaeological properties listed or eligible for listing on the National Register of Historic Places through appropriate mitigation and treatment measures. These measures need not be completed prior to permit issuance, but shall be completed before the properties are affected by surface mining activities.

Section 31. MRP; Protection of Public Roads. Each application shall describe, with appropriate maps and drawings, the measures to be used to ensure that the interests of the public and landowners affected are protected if, under 405 KAR 24:040, Section 2(6), the applicant seeks to have the cabinet approve:

(1) Conducting the proposed surface mining activities within 100 feet of the right-of-way line of any public road, except where mine access or haul roads join that right-of-way; or

(2) Relocating a public road.

Section 32. MRP; Protection of the Hydrologic Balance.

(1) Each application shall contain a description, as established in this subsection, of the measures to be taken to minimize disturbances to the hydrologic balance within the permit area and adjacent area and to prevent material damage to the hydrologic balance outside the permit area.

(a) The description shall be based upon the baseline geologic, hydrologic, and other information required by Sections 12 through 16 of this administrative regulation and other appropriate information, shall be specific to local hydrologic conditions.

(b) The description shall identify the protective measures to be taken to enable the operation to meet, at a minimum, each of the hydrologic requirements referenced in this paragraph, or shall demonstrate that protective measures are not necessary for the operation to:

Meet applicable water quality statutes, administrative regulations, standards, and effluent limitations as required by 405 KAR 16:060, Section 1(3);
Avoid acid or toxic drainage as required by 405 KAR 16:060, Sections 4, 5, and 6;
Control the discharge of sediment to streams located outside the permit area as required by 405 KAR 16:060, Section 2;
Control the drainage and discharge of water within the permit area as required by 405 KAR 16:060, Sections 1(4), 3, 9, and 12, and 405 KAR 16:080;
Restore the approximate premining recharge capacity of the permit area as required by 405 KAR 16:060, Section 5; and
Protect or replace the water supply of present users as required by 405 KAR 16:060, Section 8.

(c) The cabinet may require that the description include protective measures in addition to those identified under paragraph (b) of this subsection, if additional measures are needed to protect the hydrologic balance in accordance with 405 KAR 16:060.

(2) Each application shall include the design of any necessary protective measures established under subsection (1) of this section. The design shall be prepared in a manner and detail to clearly depict, as appropriate, calculations, maps, drawings, and written explanations necessary to document the design.

(3) Each application shall include a determination of the probable hydrologic consequences of the mining and reclamation operations for the permit area and adjacent area.

(a) The determination shall be based upon the baseline geologic, hydrologic, and other information required by Sections 12 through 16 of this administrative regulation and other appropriate information, and may include information statistically representative of the site.

(b) The determination shall be completed according to the parameters and in the detail necessary to enable the cabinet to prepare a cumulative impact assessment, and shall take into account the anticipated effects of protective measures required by this chapter.

Peak discharge rates, emphasizing the potential for flooding;
Settleable solids at peak discharge;
Low-flow discharge rates, emphasizing the potential for water supply diminution;
Suspended solids at low flow; and
pH, at low flow, emphasizing the potential for acid drainage conditions, including depressed levels of alkalinity and elevated levels of iron, manganese, acidity, sulfate, and total dissolved solids or specific conductance, which are generally associated with acid drainage conditions.

(d) For groundwater systems, the determination shall, at a minimum, include probable impacts on:

Water quantity, emphasizing water levels and the potential for water supply diminution for existing users, and dewatering of aquifers that are not currently being used for water supply but have the potential to be developed as a water supply source; and
pH, emphasizing the potential for acid drainage conditions, including depressed levels of alkalinity and elevated levels of iron, manganese, acidity, sulfate, and total dissolved solids or specific conductance, which are generally associated with acid drainage conditions.

(e) The determination shall include a finding on if the proposed surface mining activities could proximately result in contamination, diminution, or interruption of an underground or surface source of water within the permit area or adjacent areas that is used for domestic, agricultural, industrial, or other legitimate use upon application.

(f) An application for a major revision to a permit shall be reviewed by the cabinet to determine if a new or updated determination of the probable hydrologic consequences shall be required.

(4)

(a) The application shall include a plan for the collection, recording, and reporting of groundwater and surface water quantity and quality data to monitor the effects of the mining and reclamation operations on the hydrologic balance, according to 405 KAR 16:110.

(b) The monitoring plan shall be based on the geologic and hydrologic baseline information, the mining and reclamation plan, and the determination of probable hydrologic consequences; and shall:

Identify the quantity and quality parameters to be monitored, sampling frequency, and monitoring site locations; and
Describe how the data may be used to determine the impacts of the operation on the hydrologic balance.

(5) An application for a major revision to a permit shall be reviewed by the cabinet to determine if a new or updated cumulative hydrologic impact assessment shall be made.

Section 33. MRP; Diversions. Each application shall contain descriptions, including maps and cross-sections, of stream channel diversions and other diversions to be constructed within the proposed permit area to achieve compliance with 405 KAR 16:080.

Section 34. MRP; Impoundments and Embankments.

(1) General. Each application shall include detailed design plans for each proposed sedimentation pond, water impoundment, and coal mine waste bank, dam, or embankment within the proposed permit area. Each plan shall:

(a) Be prepared by, or under the direction of, and certified by a qualified registered professional engineer;

(b) Contain a description, map, and appropriate cross-sections and drawings of the structure and its location;

(c) Contain all hydrologic and geologic information and computations necessary to demonstrate compliance with the design and performance standards of 405 KAR Chapter 16 and all information utilized by the applicant to determine the probable hydrologic consequences of the mining operations under Section 32(3) of this administrative regulation;

(d) Contain an assessment of the potential effect on the structure from subsidence of the subsurface strata resulting from past underground mining operations if underground mining has occurred;

(e) Include any geotechnical investigation, design, and construction requirements for the structure;

(f) Describe the operation and maintenance requirements for each structure; and

(g) Describe the timetable and plans to remove each structure, if appropriate.

(2) Sedimentation ponds. Sedimentation ponds, whether temporary or permanent, shall be designed in compliance with the requirements of 405 KAR 16:090 and 16.100.

(3) Permanent and temporary impoundments. Permanent and temporary impoundments shall be designed to comply with the requirements of 405 KAR 16:100. Each plan for an impoundment meeting the size or other criteria of MSHA, 30 C.F.R. 77.216(a), shall comply with the requirements of 30 C.F.R. 77.216-1 and 77.216-2. The plan required to be submitted to the district manager of MSHA under 30 C.F.R. 77.216 shall be submitted to the cabinet as part of the permit application. After the plan has been approved by MSHA, the applicant shall submit to the cabinet a copy of the final approved plan, a copy of all correspondence from MSHA regarding the plan, a copy of any technical support documents requested by MSHA during its review, and a notarized statement by the applicant that the copy submitted to the cabinet is a complete and correct copy of the final plan approved by MSHA.

(4) Coal mine waste banks. Coal mine waste banks shall be designed to comply with the requirements of 405 KAR 16:140.

(5) Coal mine waste dams and embankments. Coal mine waste dams and embankments shall be designed to comply with the requirements of 405 KAR 16:100 and 16:160. The plan for an impounding structure that is required to be submitted to the district manager of MSHA under 30 C.F.R. 77.216 shall be submitted to the cabinet as part of the permit application. After the plan has been approved by MSHA, the applicant shall submit to the cabinet a copy of the final approved plan, a copy of all correspondence from MSHA regarding the plan, a copy of any technical support documents requested by MSHA during its review, and a notarized statement by the applicant that the copy submitted to the cabinet is a complete and correct copy of the final plan approved by MSHA. Each plan shall comply with the requirements of MSHA, 30 C.F.R. 77.216-1 and 77.216-2, and shall contain the results of a geotechnical investigation of the proposed dam or embankment foundation area, to determine the structural competence of the foundation that will support the proposed dam or embankment structure and the impounded material. The geotechnical investigation shall be planned and supervised by an engineer or engineering geologist, according to:

(a) The number, location, and depth of borings and test pits determined using current prudent engineering practice for the size of the dam or embankment, quantity or material to be impounded, and subsurface conditions;

(b) The character of the overburden and bedrock, the proposed abutment sites, and any adverse geotechnical conditions that could affect the particular dam, embankment, or reservoir site;

(c) All springs, seepage, and groundwater flow observed or anticipated during wet periods in the area of the proposed dam or embankment shall be identified on each plan; and

(d) Consideration of the possibility of mud flows, rock-debris falls, or other landslides into the dam, embankment, or impounded material.

(6) If the structure is Class B-moderate hazard or Class C-high hazard under 405 KAR 7:040, Section 5, and 401 KAR 4:030, or if the structure meets the size or other criteria of MSHA, 30 C.F.R. 77.216(a), each plan under subsections (2), (3), and (5) of this section shall include a stability analysis of the structure. The stability analysis shall include strength parameters, pore pressures, and long-term seepage conditions. The plan shall also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods.

Section 35. MRP; Air Pollution Control. For all surface mining activity, the application shall contain an air pollution control plan that includes:

(1) An air quality monitoring program, if required by the cabinet, to provide sufficient data to evaluate the effectiveness of the fugitive dust control practices under subsection (2) of this section to comply with applicable federal and state air quality standards; and

(2) A plan for fugitive dust control practices, as required under 405 KAR 16:170.

Section 36. MRP; Fish and Wildlife Protection and Enhancement.

(1) Each application shall include a description of how, to the extent possible using the best technology currently available, the permittee will minimize disturbances and adverse impacts on fish and wildlife and related environmental values, including compliance with the Endangered Species Act, during the surface coal mining and reclamation operations, and how enhancement of these resources will be achieved as practicable.

(2) This description shall:

(a) Apply, at a minimum, to species and habitats established under Section 20 of this administrative regulation;

(b) Include protective measures that will be used during the active mining phase of operation. Protective measures may include the establishment of buffer zones, the selective location and special design of haul roads and powerlines, and the monitoring of surface water quality and quantity; and

(c) Include enhancement measures that will be used during the reclamation and postmining phase of operation to develop aquatic and terrestrial habitat. Enhancement measures may include restoration of streams and other wetlands, retention of ponds and impoundments, establishment of vegetation for wildlife food and cover, and the replacement of perches and nest boxes. If the plan does not include enhancement measures, a statement shall be given explaining why enhancement is not practicable.

(3) Upon request, the cabinet shall provide the protection and enhancement plan required under this section to the U.S. Department of the Interior, Fish and Wildlife Service regional or field office for their review. This information shall be provided within ten (10) days of receipt of the request from the Service.

(4)

(a) A fish and wildlife protection and enhancement plan shall be required for amendments and revisions that:

Propose extension into a wetland;
Propose significant disturbance in a new watershed in which the permit area or adjacent area includes an important stream;
Seek to obtain a stream buffer zone variance under 405 KAR 16:060, Section 11, or seek to modify an existing stream buffer zone variance;
Propose extension of the permit boundary that involves a new surface disturbance of five (5) acres or more; or
Involve new permit or adjacent areas likely to contain, or that could reasonably be expected to contain, a state or federal endangered or threatened species or its critical habitat.

(b) For other amendments and revisions, a determination of if a protection and enhancement plan is necessary shall be made in consultation with Kentucky Department of Fish and Wildlife Resources and U.S. Fish and Wildlife.

(5) This section shall apply to applications for permits, amendments and revisions submitted to the cabinet on or after November 17, 1992.

Section 37. MRP; Postmining Land Use.

(1) Each plan shall contain a description of the proposed land use or uses following reclamation of the land within the proposed permit area, including:

(a) A discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses, and the relationship of the proposed use to existing land use policies and plans;

(b) A discussion of how the proposed postmining land use is to be achieved and the necessary support activities that could be needed to achieve the proposed land use, including management practices to be conducted during the liability period for the commercial forest land, cropland (including hayland), and pastureland land uses;

(c) If a land use different from the premining land use is proposed, all supporting documentation required for approval of the proposed alternative use under 405 KAR 16:210;

(d) A discussion of the consideration that has been given to making all of the proposed surface mining activities consistent with surface owner plans and applicable state and local land use plans and programs; and

(e) A copy of the comments concerning the proposed use from the legal or equitable owner of record of the surface of the proposed permit area and the state and local government agencies, if any, which would have to initiate, implement, approve, or authorize the proposed use of the land following reclamation.

(2) Approval of the initial postmining land use plan pursuant to this section, shall not preclude subsequent consideration and approval of a revised postmining land use plan in accordance with the applicable requirements of 405 KAR Chapters 7 through 24.

Section 38. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Standard Methods for the Examination of Water and Wastewater", (14th Edition, 1975), American Public Health Association, American Water Works Association, and Water Pollution Control Federation;

(b) "Corps of Engineers Wetlands Delineation Manual", (January, 1987 Edition), U. S. Army Corps of Engineers;

(c) "U. S. Army Corps of Engineers Regulatory Guidance Letter No. 90-7", (September 26, 1990), U. S. Army Corps of Engineers;

(d) "National Lists of Plant Species that Occur in Wetlands and Biological Reports and Summary", (May, 1988 Edition), Fish and Wildlife Service, U. S. Department of the Interior; and

(e) "List of Hydric Soils of the United States, All Kentucky Counties", (December, 1991 Edition), Soil Conservation Service, U. S. Department of Agriculture;

(2) This material may be inspected, copied, or obtained at the Department for Natural Resources, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 350.060, 350.465, 7 C.F.R. Part 657, 30 C.F.R. Parts 77.216-1, 77.216-2, 730-733, 735, 773.13(a), 778-780, 785.17(b), (d), 917, 40 C.F.R. Parts 136, 434, 16 U.S.C. 1276(a), 1531 – 1544, 30 U.S.C. 1253, 1255, 1257, 1258, 1267
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.060, 350.465, 7 C.F.R. Part 657, 30 C.F.R. Parts 77.216-1, 77.216-2, 730-733, 735, 773.13(a), 778-780, 785.17(b), (d), 917, 40 C.F.R. Parts 136, 434, 16 U.S.C. 1276(a), 1531 – 1544, 30 U.S.C. 1253, 1255, 1257, 1258, 1267
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5), 350.060(13), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes requirements for granting a surface coal mining permit. This administrative regulation differs from 30 C.F.R. 780.25. Section 34(3) and (5) of this administrative regulation require that the permit applicant submit to the cabinet after approval by the Mine Safety and Health Administration (MSHA), a: (1) Copy of the final approved design plans for impounding structures; (2) Copy of all correspondence with MSHA; (3) Copy of technical support documents requested by MSHA; and (4) Notarized statement by the applicant that the copy submitted to the cabinet is a complete and correct copy of the final plan approved by MSHA.
History: 8 Ky.R. 1494; eff. 1-6-1983; 10 Ky.R. 796; eff. 4-23-1984; 11 Ky.R. 1803; 12 Ky.R. 158; eff. 8-13-1985; 900; 1288; eff. 2-4-1986; 15 Ky.R. 1870; eff. 6-28-1989; 17 Ky.R. 2800; 3389; eff. 5-22-1991; 18 Ky.R. 2992; 3450; 19 Ky.R. 24; eff. 6-24-1992; 24 Ky.R. 675; 1313; 2628; eff. 6-10-1998; TAm eff. 8-9-2007; 41 Ky.R. 567; 1078; 1314; eff. 1-5-2015; TAm eff. 7-6-2016; Crt eff. 7-3-2018; 46 Ky.R. 1336, 2261; eff. 5-5-2020.

405 KAR 8:040 Underground coal mining permits {#sec-405-kar-8-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:040}

Section 1. General.

(1) Applicability.

(a) This administrative regulation shall apply to a person who applies for a permit to conduct underground mining activities.

(b) The requirements established in this administrative regulation specifically for applications for permits to conduct underground mining activities, are in addition to the requirements for:

Permits to conduct surface coal mining and reclamation operations as established in 405 KAR 8:010; and
The submission of a Technical Information for a Mining Permit, Form MPA-03, incorporated by reference in 405 KAR 8:010.

(c) This administrative regulation established information required to be contained in applications for permits to conduct underground mining activities, including:

Legal, financial, compliance, and related information;
Environmental resources information; and
Mining and reclamation plan information.

(2) The permit applicant shall provide to the cabinet in the application all the information required by this administrative regulation.

Section 2. Identification of Interests.

(1) An application shall contain the following information, except that the submission of a Social Security number shall be voluntary:

(a) A statement as to if the applicant is a corporation, partnership, single proprietorship, association, or other business entity;

(b) The name, address, telephone number and, if applicable, Social Security number and employer identification number of the:

Applicant;
Applicant's resident agent; and
Person who will pay the abandoned mine land reclamation fee;

The person's name, address, Social Security number, and employer identification number;
The person's ownership or control relationship to the applicant, including percentage of ownership and location in organizational structure;
The title of the person's position, date position was assumed, and when submitted pursuant to 405 KAR 8:010, Section 18(5) date of departure from the position;
Each additional name and identifying number, including employer identification number, federal or state permit number, and MSHA number with date of issuance, pursuant to which the person owns or controls, or previously owned or controlled, a surface coal mining and reclamation operation in the United States within the five (5) years preceding the date of the application; and
The application number or other identifier of, and the regulatory authority for, any other pending surface coal mining operation permit application filed by the person in any state in the United States;

(d) For any surface coal mining operation owned or controlled by either the applicant or by any person who owns or controls the applicant, the operation's:

Name, address, identifying numbers, including employer identification number, federal or state permit number, and MSHA number, the date of issuance of the MSHA number, and the regulatory authority; and
Ownership or control relationship to the applicant, including percentage of ownership and location in organizational structure;

(e) The names and addresses of:

Every legal or equitable owner of record of the areas to be affected by surface operations and facilities and every legal or equitable owner of record of the coal to be mined;
The holders of record of any leasehold interest in areas to be affected by surface operations or facilities and the holders of record of any leasehold interest in the coal to be mined; and
Any purchaser of record under a real estate contract of areas to be affected by surface operations and facilities and any purchaser of record under a real estate contract of the coal to be mined;

(f) The names and addresses of the owners of record of all surface and subsurface areas contiguous to any part of the proposed permit area;

(g) The name of the proposed mine and all MSHA identification numbers that have been assigned for the mine and all mine associated structures that require MSHA approval;

(h) Proof, such as a power of attorney or resolution of the board of directors, that the individual signing the application has the power to represent the applicant in the permit matter; and

(i) A statement of all lands, interests in lands, options, or pending bids on interests held or made by the applicant for lands that are contiguous to the area to be covered by the permit.

(3) The permittee shall, in writing, inform the cabinet of any change of the permittee's address immediately if changed at any point prior to final bond release.

(4) The permittee shall submit updates in writing to the cabinet within thirty (30) days of the effective date of any change.

(a) Updates shall be submitted for any changes that occur at any point prior to final bond release.

(b) Failure to submit updated information shall constitute a violation of KRS Chapter 350 only upon the permittee's refusal or failure to timely submit the information to the cabinet upon request.

(c) After the permittee's refusal or failure to timely submit the information to the cabinet upon request, the cabinet may suspend the permit after opportunity for hearing pending compliance with this subsection.

(d) The update shall include:

The names and addresses of every officer, partner, director, or person performing a function similar to a director of the permittee;
The names and addresses of principal shareholders; and
If the permittee or other persons specified in this subsection are subject to any of the provisions of KRS 350.130(3).

Section 3. Violation Information.

(1) Each application shall contain:

(a) A statement if the applicant or any subsidiary, affiliate, or persons controlled by or under common control with the applicant has:

Had a coal mining permit of the United States or any state suspended or revoked in the five (5) years preceding the date of submission of the application; or
Forfeited a coal mining performance bond or similar security deposited in lieu of bond;

(b) If any suspension, revocation, or forfeiture, as established in paragraph (a) of this subsection, has occurred, a statement of the facts involved, including:

Identification number and date of issuance of the permit, and date and amount of bond or similar security;
Identification of the authority that suspended or revoked the permit or forfeited the bond and the stated reasons for that action;
The current status of the permit, bond, or similar security involved;
The date, location, and type of any administrative or judicial proceedings initiated concerning the suspension, revocation, or forfeiture; and
The current status of these proceedings; and

(c) For any violation of a provision of SMCRA, federal regulations enacted pursuant to SMCRA, KRS Chapter 350 and 405 Chapters 7 through 24, any other state's laws or regulations under SMCRA, any federal law, rule, or regulation pertaining to air or water environmental protection, or any Kentucky or other state's law, rule, or regulation enacted pursuant to federal law, rule, or regulation pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, a list of all violation notices received by the applicant during the three (3) year period preceding the application date, and a list of all unabated cessation orders and unabated air and water quality violation notices received prior to the date of the application by any surface coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant. For each violation notice or cessation order reported, the lists shall include, as applicable:

Any identifying numbers for the operation, including the federal or state permit number and MSHA number, the dates of issuance of the violation notice and MSHA number, the name of the person to whom the violation notice was issued, and the name of the issuing regulatory authority, department, or agency;
A brief description of the particular violation alleged in the notice;
The final resolution of each violation notice, if any; and
For each violation notice that has not been finally resolved:

b. The current status of the proceedings and of the violation notice; and

c. The actions, if any, taken or being taken by any person identified in this subsection to abate the violation.

(3) Upon request by a small operator, the cabinet shall provide to the small operator, with regard to a person pursuant to subsection (1) of this section identified by the small operator, the compliance information required by this section regarding suspension and revocation of permits and forfeiture of bonds under KRS Chapter 350, and information pertaining to violations of KRS Chapter 350 and 405 KAR Chapters 7 through 26.

Section 4. Right of Entry and Right to Mine.

(1) Each application shall contain a description of the documents upon which the applicant bases his or her legal right to enter and begin underground mining activities in the permit area and if that right is the subject of pending litigation. The description shall identify those documents by type and date of execution, identify the specific lands to which the document pertains, and explain the legal rights claimed by the applicant.

(2) For underground mining activities in which the associated surface operations involve the surface mining of coal and the private mineral estate to be mined has been severed from the private surface estate, the application shall contain, for lands to be affected by those operations within the permit area:

(a) A copy of the written consent of the surface owner for the extraction of coal by surface mining methods;

(b) A copy of the conveyance that expressly grants or reserves the right to extract coal by surface mining methods; or

(c) If the conveyance does not expressly grant the right to extract the coal by surface mining methods, documentation that pursuant to applicable state law, the applicant has the legal authority to extract coal by those methods.

(3) Nothing in this section shall be construed to authorize the cabinet to adjudicate property rights disputes, or require right of entry for shadow area.

Section 5. Relationship to Areas Designated Unsuitable for Mining.

(1) Each application shall contain a statement of available information on if the proposed permit area and shadow area are within an area designated unsuitable for underground mining activities pursuant to 405 KAR Chapter 24, or designated unsuitable for surface mining activities if the proposed underground mining activities also involve surface mining of coal, or under study for designation in an administrative proceeding initiated pursuant to 405 KAR Chapter 24.

(2) If an applicant claims the exemption in 405 KAR 8:010, Section 14(4)(b), the application shall contain information supporting the applicant's assertion that it made substantial legal and financial commitments before January 4, 1977, concerning the proposed underground mining activities.

(3) If an applicant proposes to conduct or locate surface operations or facilities within 300 feet of an occupied dwelling, the application shall include the waiver of the owner of the dwelling as required in 405 KAR 24:040, Section 2(5).

(4) If the applicant proposes to conduct or locate surface operations or facilities within 100 feet of a public road, the requirements of 405 KAR 24:040, Section 2(6), shall be met.

Section 6. Permit Term Information.

(1) Each application shall state the anticipated or actual starting and termination date of each phase of the underground mining activities and the anticipated number of acres of surface lands to be affected, and the horizontal and vertical extent of proposed underground mine workings including the surface acreage overlying the underground workings, for each phase of mining and over the total life of the permit.

(2) If the applicant proposes to conduct the underground mining activities in excess of five (5) years, the application shall contain the information needed for the showing required under 405 KAR 8:010, Section 17(1).

Section 7. Personal Injury and Property Damage Insurance Information. Each application shall contain a certificate of liability insurance according to 405 KAR 10:030, Section 4.

Section 8. Identification of Other Licenses and Permits. Each application shall contain a list of all other licenses and permits needed by the applicant to conduct the proposed underground mining activities. This list shall identify each license and permit by:

(1) Type of permit or license;

(2) Name and address of issuing authority;

(3) Identification numbers of applications for those permits or licenses or, if issued, the identification numbers of the permits or licenses; and

(4) If a decision has been made, the date of approval or disapproval by each issuing authority.

Section 9. Identification of Location of Public Office for Filing of Application. Each application shall identify, by name and address, the appropriate regional office of the cabinet where the applicant shall file a copy of the entire application for public inspection pursuant to 405 KAR 8:010, Section 8(8).

Section 10. Newspaper Advertisement and Proof of Publication. A copy of the newspaper advertisement of the application for a permit, major revision, amendment, transfer, or renewal of a permit and proof of publication of the advertisement, which is acceptable to the cabinet in accordance with 405 KAR 8:010, Section 8(4) amd (5), shall be filed with the cabinet and made a part of the application not later than fifteen (15) days after the last date of publication required pursuant to 405 KAR 8:010, Section 8(2).

Section 11. Environmental Resource Information.

(1) Each permit application shall include a description of the existing environmental resources either within the areas affected by proposed surface operations and facilities, or within the proposed permit area, and adjacent areas, as required by Sections 11 through 23 of this administrative regulation. The descriptions required by this administrative regulation may, where appropriate, be based upon published texts or other public documents together with reasonable extrapolations from specific data available from existing permit areas, or other appropriate areas.

(2)

(a) Each application shall describe and identify the nature of cultural, historic, and archaeological resources listed or eligible for listing on the National Register of Historic Places and known archaeological sites within the proposed permit area, and adjacent areas. The description shall be based on all available information, including information from the state Historic Preservation Officer and from local archaeological, historical, and cultural preservation agencies.

Section 12. General Requirements for Baseline Geologic and Hydrologic Information.

(1) The application shall contain baseline geologic and hydrologic information, which has been collected, analyzed, and submitted, which shall be sufficient to:

(a) Identify and describe protective measures pursuant to Section 32(1) of this administrative regulation that shall be implemented during the mining and reclamation process to ensure protection of the hydrologic balance, or to demonstrate that protection of the hydrologic balance can be ensured without the design and installation of protective measures; and to design necessary protective measures pursuant to Section 32(2) of this administrative regulation;

(b) Determine the probable hydrologic consequences of the mining and reclamation operations upon the hydrologic balance in the permit area, shadow area, and adjacent area pursuant to Section 32(3) of this administrative regulation so that an assessment can be made by the cabinet pursuant to 405 KAR 8:010, Section 14(3) of the probable cumulative impacts of all anticipated mining on the hydrologic balance in the cumulative impact area;

(d) Design surface and groundwater monitoring systems pursuant to Section 32(4) of this administrative regulation for the during-mining and postmining time period that, together with the baseline data collected pursusant to Sections 14(1) and 15(1) of this administrative regulation, shall demonstrate if the mining operation is meeting applicable effluent limitations and stream standards and protecting the hydrologic balance.

(2)

(a) Geologic and hydrologic information pertaining to the area outside the permit, shadow, and adjacent area but within the cumulative impact assessment area shall be provided to the applicant by the cabinet if this information is:

Needed in preparing the cumulative impact assessment; and
Available from an appropriate federal or state agency.

(3) Interpolation, modeling, correlation or other statistical methods, and other data extrapolation techniques may be used if the data extrapolation techniques are valid and that information obtained through the techniques meets the requirements of subsection (1) of this section.

(4) All water quality analyses performed to meet the requirements of this chapter shall be conducted according to the methodology in the fourteenth edition of Standard Methods for the Examination of Water and Wastewater, or the methodology in 40 C.F.R. Parts 136 and 434. All water quality sampling shall be conducted according to either methodology established in this subsection if feasible.

Section 13. Baseline Geologic Information.

(1) The application shall contain baseline geologic information collected from the permit area and shadow area that shall meet the requirements of Section 12(1) of this administrative regulation and shall include at a minimum:

(a) The results of samples obtained from continuous cores; drill cuttings; channel cuttings from fresh, unweathered, rock outcrops; or other rock or soil material collected using the sampling techniques established in Section 12(4) of this administrative regulation.

a. For those areas where overburden will be removed, the vertical extent of sampling shall include those strata from the surface down to and including the stratum immediately below the lowest coal seam to be mined; and

b. For those areas overlying underground workings where overburden will not be removed, the vertical extent of sampling shall include those strata above and below the coal seam to be mined that may be impacted by the mining operation.

If aquifers within the permit area and shadow area are located above or below the coal seam to be mined and these aquifers may be adversely affected by the mining operation, the vertical extent of sampling shall also include the aquifer and those strata that lie between the coal seam and the aquifer.
The areal and vertical density of sampling shall, at a minimum, be sufficient to determine the distribution of strata that have a potential to produce acid drainage and to determine the areal and vertical extent of aquifers that may be adversely affected.
If the vertical extent and the areal and vertical density of sampling established in subparagraphs 1 through 3 of this paragraph are not sufficient to locate suitable strata for use as a topsoil substitute, to determine the potential for subsidence, or for other required design or analysis, additional sampling shall be conducted as necessary to furnish adequate geologic information;

(b)

To identify strata that have a potential to produce acid or toxic drainage for areas where overburden will be removed, chemical analyses including, maximum potential acidity and neutralization potential of each overburden stratum and the stratum immediately below the lowest coal seam to be mined; and
To identify strata that have a potential to produce acid or toxic drainage for areas overlying underground workings where overburden will not be removed, chemical analyses including maximum potential acidity and neutralization potential of the strata immediately above and below the coal seam to be mined;

(d) For standard room and pillar mining operations, the engineering properties of clays or soft rock such as clay shale, if any, located immediately above and below each coal seam to be mined.

(2) Collection of geologic information from the permit area and shadow area as required in this subsection shall be waived in whole or in part if:

(a) The applicant demonstrates through geologic correlation or other procedures that information collected from outside the permit area or shadow area is representative of the permit area and shadow area and is sufficient to meet the requirements of Section 12(1) of this administrative regulation; or

(b) Other information equivalent to that required by this subsection is available to the cabinet and is made a part of the permit application; and

(3) The application shall contain a description of the geology of the proposed permit area, shadow area, and adjacent area that shall meet the requirements of Section 12(1) of this administrative regulation and be based on the information required in subsection (1) of this section or other appropriate geologic information. The description shall include, at a minimum, geologic logs, cross-sections, fence diagrams, or other appropriate illustrations and written descriptions depicting:

(a) Within the permit area and shadow area:

The structural geology and lithology of overburden strata and the stratum immediately below the lowest coal seam to be mined for those areas where overburden will be removed and the structural geology and lithology of strata that may be impacted by the mining operation for those areas overlying underground workings where overburden will not be removed;
The thickness and chemical characteristics of each overburden stratum and the stratum immediately below the lowest coal seam to be mined for those areas where overburden will be removed or the thickness and chemical characteristics of each stratum that may be impacted by the mining operation for those areas overlying underground workings where overburden will not be removed;
If aquifers may be adversely affected by the mining operation, the structural geology, lithology, thickness, and areal extent of the aquifers and structural geology and lithology of strata, and thickness of each stratum, if located above or below the coal seam to be mined, which lie between the coal seam and the aquifers; and
For standard room and pillar mining operations, the thickness and engineering properties of clays or soft rock such as clay shale, if any, located immediately above and below each coal seam to be mined; and

(b) Within the adjacent area, the approximate areal extent and approximate thickness of aquifers that may be adversely affected by the mining operation.

(4) If necessary to assure adequate reclamation and protection of the hydrologic balance, the cabinet shall require geologic information and description in addition to that required by subsections (1) and (2) of this section including leaching tests of material from strata that may be disturbed by the operation to determine the potential for the operation to produce drainage with elevated levels of acidity, sulfate, and total dissolved solids, and the collection of information to greater depths within the proposed permit and shadow area or the collection of information for areas outside the proposed permit and shadow area.

Section 14. Baseline Groundwater Information.

(1) The application shall contain baseline groundwater information for the permit area, shadow area, and adjacent area that shall be collected and submitted and shall be adequate to meet the requirements of Section 12(1) of this administrative regulation.

(2) Groundwater information shall include an inventory of wells, springs, underground mines, or other similar groundwater supply facilities that are currently being used, have been used in the past, or have a potential to be used for domestic, agricultural, industrial, or other beneficial purpose. The inventory shall include the location, ownership, type of usage, and if possible, other relevant information such as the depth and diameter of wells and approximate rate of usage, pumpage, or discharge from wells, springs, and other groundwater supply facilities.

(3) Groundwater information shall include seasonal groundwater quantity and quality data collected from monitoring wells, springs, underground mines, or other appropriate groundwater monitoring facilities, at a sufficient number of monitoring locations with adequate areal distribution to meet the requirements of Section 12(1) of this administrative regulation. Seasonal groundwater quantity and quality data shall be provided for each water transmitting zone above, and potentially impacted water transmitting zone below, the lowest coal seam to be mined including at a minimum:

(a) Groundwater levels; and

(4) The groundwater information established in subsection (3) of this section shall be required in whole or in part for coal seams if the coal seams to be mined are serving as water supply sources or are otherwise significant in protecting the hydrologic balance.

Section 15. Baseline Surface Water Information.

(1) The application shall contain baseline surface water information for the permit area, shadow area, and adjacent area that shall be collected and submitted and shall be adequate to meet the requirements of Section 12(1) of this administrative regulation.

(2) Surface water information shall include an inventory of all streams, lakes, impoundments, or other surface water bodies in the permit, shadow, and adjacent area that are currently being used for domestic, agricultural, industrial, or other beneficial purpose. The inventory shall include the name of the surface water body that is being used as a water supply source; the location, drainage area, ownership, and type of usage for the withdrawal; and, if possible, other relevant information such as the rate of withdrawal and seasonal variation.

(3) Surface water information shall include:

(b) The location and description of any existing facilities located in watersheds that will be disturbed by the mining operation that may contribute to surface water pollution, such as existing or abandoned mining operations, oil wells, logging operations, or other similar facilities, including the location of any discharges that may be flowing from the facilities.

(4) Surface water information shall include seasonal quantity and quality data collected from a sufficient number of watersheds that will be disturbed by the operation with adequate areal distribution to meet the requirements of Section 12(1) of this administrative regulation and include at a minimum:

(a) Flow rates; and

(b) Total dissolved solids or specific conductance corrected to twenty-five (25) degrees C, total suspended solids, pH, total iron, total manganese, acidity, alkalinity, and sulfate.

(5) If additional information is needed to assess the need for protective measures, to design protective measures, to determine the probable hydrologic consequences of mining, or to conduct the cumulative impact assessment, the cabinet shall require surface water information in addition to that established in subsections (2), (3), and (4) of this section including information pertaining to flood flows and additional water quality parameters.

Section 16. Alternative Water Supply Information. If the determination of probable hydrologic consequences required pursuant to Section 32 of this administrative regulation indicates that the proposed underground mining activities may proximately result in contamination, diminution, or interruption of an underground or surface source of water within the proposed permit area or adjacent area that is used for domestic, agricultural, industrial, or other legitimate use, then the application shall identify and describe the adequacy and suitability of the alternative sources of water supply that could be developed for existing premining uses and approved postmining land uses.

Section 17. Climatological Information.

(1) If requested by the cabinet, the application shall contain a statement of the climatological factors that are representative of the proposed permit area, including:

(a) The average seasonal precipitation;

(b) The average direction and velocity of prevailing winds; and

(2) The cabinet shall request additional data if necessary to ensure compliance with the requirements of this chapter.

Section 18. Soil Resources Information.

(2) If the applicant proposes to use selected overburden materials as a supplement or substitute for topsoil, the application shall provide results of the analyses, trials, and tests required pursuant to 405 KAR 18:050, Section 2(5).

Section 19. Vegetation Information.

(1) The permit application shall contain a map that delineates existing vegetative types and a description of the plant communities within the area affected by surface operations and facilities and within any proposed reference area. This description shall include information adequate to predict the potential for reestablishing vegetation.

(2) If a map or aerial photograph is required, sufficient adjacent areas shall be included to allow evaluation of vegetation as important habitat for fish and wildlife.

Section 20. Fish and Wildlife Resources Information.

(1)

(a) Each application shall include fish and wildlife resource information for the area of surface operations and facilities and adjacent area, and areas subject to probable impacts from underground workings, including areas of probable subsidence.

(b) The scope and level of detail for this information shall be determined by the cabinet in consultation with the Kentucky Department of Fish and Wildlife Resources and the U.S. Department of the Interior, Fish and Wildlife Service, and shall be sufficient to design the protection and enhancement plan required under Section 36 of this administrative regulation.

(2) Site-specific resource information necessary to address the respective species or habitats shall be required if the area of surface operations and facilities or adjacent area, or areas subject to probable impacts from underground workings, including areas of probable subsidence, may include:

(a) Listed or proposed endangered or threatened species of plants or animals or their critical habitats listed by the Secretary of the Interior under the Endangered Species Act of 1973,16 U.S.C. 1531 – 1544, or those species or habitats protected by similar state statutes;

(c) Other species or habitats identified through agency consultation as requiring special protection under state or federal law.

(3) Wetland delineations shall be conducted in accordance with:

(a) The Corps of Engineers Wetlands Delineation Manual;

(b) U. S. Army Corps of Engineers Regulatory Guidance Letter No. 90-7;

(d) List of Hydric Soils of the United States, All Kentucky Counties.

(4)

(a) Upon request, the cabinet shall provide the resource information required pursuant to this section to the U.S. Department of the Interior, Fish and Wildlife Service regional or field office for their review.

(b) This information shall be provided within ten (10) days of receipt of the request from the Service.

(5)

(a) Fish and wildlife resource information shall be required for amendments and revisions that:

Propose extension into a wetland;
Propose significant disturbance in a new watershed in which the area of surface operations and facilities or adjacent area, shadow areas, or areas subject to probable impacts from underground workings, including areas of probable subsidence, include an important stream as established in 401 KAR 5 and 10;
Seek to obtain a stream buffer zone variance pursuant to 405 KAR 18:060, Section 11, or seek to modify an existing stream buffer zone variance;
Propose extension of the permit boundary that involves a new surface disturbance of five (5) acres or more;
Involve new areas of surface operations and facilities or adjacent areas, shadow areas, or areas subject to probable impacts from underground workings, including areas of probable subsidence, likely to contain, or that could reasonably be expected to contain, a state or federal endangered or threatened species or its critical habitat; or
Propose extension of the shadow area associated with an underground mine that may by subsidence or other means impact a wetland, important stream as established in 401 KAR 5 and 10, or stream that contains, or could reasonably be expected to contain, a state or federal endangered or threatened species or its critical habitat.

(6) This section shall apply to applications for permits, amendments, and revisions submitted to the cabinet on or after November 17, 1992.

Section 21. Prime Farmland Investigation.

(1) The applicant shall conduct a preapplication investigation of the area proposed to be affected by surface operations or facilities to determine if lands within the area may be prime farmland.

(2) Land shall not be considered prime farmland if the applicant demonstrates one (1) or more of the following:

(a) The land has not been historically used as cropland;

(b) The slope of the land is ten (10) percent or greater;

(c) Other relevant factors exist that would preclude the soils from being defined as prime farmland according to 7 C.F.R. 657, such as a very rocky surface or the land is frequently flooded during the growing season more often than once in two (2) years and the flooding has reduced crop yields; or

(d) On the basis of a soil survey of the lands within the permit area there are no soil map units that have been designated prime farmland by the U.S. SCS.

(4)

(a)

If the investigation indicates that lands within the proposed area to be affected by surface operations and facilities may be prime farmlands, the applicant shall contact the U.S. SCS to determine if these lands have a soil survey and if the applicable soil map units have been designated prime farmlands.
If no soil survey has been made for these lands, the applicant shall request the SCS to conduct a soil survey.

(b)

If a soil survey as required by this section contains soil map units that have been designated as prime farmlands, the applicant shall submit an application, in accordance with 405 KAR 8:050, Section 3 for the designated land.
If a soil survey as required by this section contains no soil map units that have been designated as prime farmland, after review by the U.S. SCS, the applicant shall submit with the permit application a request for negative determination under subsection (2)(d) of this section for the nondesignated land.

(5) The cabinet shall decide to grant or deny a negative determination based upon documentation provided by the applicant and any other pertinent information, such as cropping history, available to the cabinet from other sources.

(6) The cabinet shall consult with the SCS in deciding on a request for negative determination under subsection (2)(c) of this section.

(7) The cabinet shall examine any records on crop history available from the Agriculture Stabilization and Conservation Service in considering a request for negative determination pursuant to subsection (2)(a) of this section.

Section 22. Land-use Information.

(1) The application shall contain a statement of the condition, capability, and productivity of the land that will be affected by surface operations and facilities within the proposed permit area, including:

(a) A map and supporting narrative of the uses of the land existing upon application. If the premining use of the land was changed within five (5) years before the date of application, the historic use of the land shall also be described; and

(b) A narrative of land capability and productivity, which analyzes the land-use description in conjunction with other environmental resources information required pursuant to this administrative regulation. The narrative shall provide analyses of:

The capability of the land before any mining to support a variety of uses, giving consideration to soil and foundation characteristics, topography, vegetative cover, and the hydrology of the area proposed to be affected by surface operations or facilities; and
The productivity of the area proposed to be affected by surface operations and facilities before mining, expressed as average yield of food, fiber, forage, or wood products from the lands obtained under high levels of management. The productivity shall be determined by yield data or estimates for similar sites based on current data from the U.S. Department of Agriculture, state agricultural universities, or appropriate state natural resources or agricultural agencies.

(2) The application shall state if the proposed permit and shadow areas have been previously mined, and, if so, the following information, if available the:

(a) Type of mining method used;

(b) Coal seams or other mineral strata mined;

(d) Approximate dates of past mining; and

(e) Uses of the land preceding mining.

(3) The application shall contain a description of the existing land uses and local government land use classifications, if any, of the proposed permit area, shadow area, and adjacent areas.

(4) The application shall contain a description identifying the extent to which cities, towns, and municipalities, or parts thereof, are located within the proposed permit area and shadow area.

Section 23. Maps and Drawings.

(1) The permit application shall include maps showing:

(a) The boundaries of all subareas proposed to be affected over the estimated total life of the underground mining activities, with a description of size, sequence, and timing of the underground mining activities for which it is anticipated that additional permits will be sought;

(b) Any land within the proposed permit area and adjacent area within the boundaries of any units of the National System of Trails or the Wild and Scenic Rivers System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1276(a)), or within the boundaries of a wild river established pursuant to KRS Chapter 146;

(d) The locations of water supply intakes for current users of surface waters within a hydrologic area defined by the cabinet based on area size, and those surface waters that will receive discharges from affected areas in the proposed permit area;

(e) All boundaries of lands and names of present owners of record of those lands, both surface and subsurface, included in or contiguous to the permit area and shadow area;

(f) The boundaries of land within the proposed permit area and shadow area upon which, or under which, the applicant has the legal right to conduct underground mining activities. In addition, the map shall indicate the boundaries of that portion of the permit area that the applicant has the legal right to enter upon the surface to conduct surface operations;

(g) The location of surface and subsurface manmade features within, passing through, or passing over the proposed permit area and shadow area, including major electric transmission lines, pipelines, and agricultural drainage tile fields;

(h) The location and boundaries of any proposed reference areas for determining the success of revegetation for the permit area;

(i) The location of all buildings in and within 1000 feet of the proposed permit area, with identification of the current use of the buildings;

(j) Each public road located in or within 100 feet of the proposed permit area and shadow area;

(k) Each cemetery that is located in or within 100 feet of the proposed permit area and shadow area; and

(l) Other relevant information required by 30 C.F.R. 783.24(l).

(2) The application shall include drawings, cross-sections, and maps showing:

(a) Elevations and locations of test borings and core samplings;

(b) Elevations and locations of monitoring stations or other sampling points in the permit area, shadow area, and adjacent areas used to gather data on water quality and quantity, fish and wildlife, and air quality, if required, in preparation of the application or that will be used for this data gathering during the term of the permit;

(d) Location and extent of known workings of active, inactive, or abandoned underground mines, including mine openings to the surface within the proposed permit area, shadow area, and adjacent areas;

(e) Location and extent of subsurface water, if encountered, within the proposed permit area, shadow area, or adjacent areas;

(f) Location of surface water bodies such as streams, lakes, ponds, springs, constructed or natural drainage patterns, and irrigation ditches within the proposed permit area, shadow area, and adjacent areas;

(g) Location, and depth if available, of gas and oil wells within the proposed permit area, shadow area, and water wells in the permit area, shadow area, and adjacent areas;

(h) Location and dimensions of existing coal refuse disposal areas and dams, or other impoundments within the proposed permit area and shadow area; and

(i) Sufficient slope measurements to adequately represent the existing land surface configuration of the area to be affected by surface operations and facilities, measured and recorded according to the requirements established in subparagraphs 1. through 3. of this paragraph.

Each measurement shall consist of an angle of inclination along the prevailing slope extending 100 linear feet above and below or beyond the coal outcrop or the area to be disturbed or, if impractical, at locations and in a manner sufficient to demonstrate that the surface coal mining and reclamation operations, as required by KRS Chapter 350 and 405 KAR Chapters 7 through 24, can be feasibly accomplished in accordance with the mining and reclamation plan.
If the area has been previously mined, the measurements shall extend at least 100 feet beyond the limits of mining disturbances, or any other distance representative of the premining configuration of the land.
Slope measurements shall take into account natural variations in slope, to provide accurate representation of the range of natural slopes and reflect geomorphic differences of the area to be disturbed.

(3) The permit application shall include the map information established in Sections 22(1)(a), 24(3), 24(4)(c), 24(4)(h), 26, 27(1), 28, 31, 32, 33, 34, and 38 of this administrative regulation and 405 KAR 8:010, Section 5(6).

(4) Maps, drawings, and cross-sections included in a permit application and required by this section shall be prepared by, or under the direction of and certified by a qualified registered professional engineer, and shall be updated as required by the cabinet if there is a material change. The qualified registered professional engineer shall not be required to certify the true ownership of property.

Section 24. Mining and Reclamation Plan; General Requirements.

(1) Each application shall contain a detailed mining and reclamation plan (MRP) for the proposed permit area and shadow area as established in this section through Section 39 of this administrative regulation, showing how the applicant will comply with KRS Chapter 350 and 405 KAR Chapters 16 through 20.

(2) Each application shall contain a description of the mining operations proposed to be conducted within the proposed permit area and shadow area, including, at a minimum a narrative:

(b) Explaining the construction, modification, use, maintenance, and removal of the following facilities (unless retention of the facility is to be approved as necessary for postmining land use as established in 405 KAR 18:220):

Dams, embankments, and other impoundments;
Overburden and topsoil handling and storage areas and structures;
Coal removal, handling, storage, cleaning, and transportation areas and structures;
Spoil, coal processing waste, mine development waste, and noncoal waste removal, handling, storage, transportation, and disposal areas and structures;
Mine facilities; and
Water pollution control facilities.

(3) Each application shall contain plans and maps of the proposed permit area, shadow area, and adjacent areas as established in paragraphs (a) through (c) of this subsection.

(a) The plans, maps, and drawings shall show the underground mining activities to be conducted, the lands to be affected throughout the operation, and any change in a facility or feature to be caused by the proposed operations, if the facility or feature was shown pursuant to Section 23 of this administrative regulation.

(b) The following shall be shown for the proposed permit area and shadow area:

Buildings, utility corridors, and facilities to be used;
The area of land to be affected within the proposed permit area and shadow area, according to the sequence of mining and reclamation;
Each area of land for which a performance bond or other equivalent guarantee will be posted pursuant to 405 KAR Chapter 10;
Each coal storage, cleaning, and loading area;
Each topsoil, spoil, coal preparation waste, underground development waste, and noncoal waste storage area;
Each water diversion, collection, conveyance, treatment, storage, and discharge facility to be used;
Each source of waste and each waste disposal facility relating to coal processing or pollution control;
Each facility to be used to protect and enhance fish and wildlife related environmental values;
Each explosive storage and handling facility;
Location of each sedimentation pond, permanent water impoundment, coal processing waste bank, and coal processing waste dam and embankment, in accordance with Section 34 of this administrative regulation, and each disposal area for underground development waste and excess spoil, in accordance with Section 28 of this administrative regulation;
Cross-sections, at locations as required by the cabinet, based on the anticipated final surface configuration to be achieved for the affected areas;
Location of each water and any subsidence monitoring point; and
Location of each facility that will remain on the proposed permit area and shadow area as a permanent feature, after the completion of underground mining activities.

(c) Plans, maps, and drawings required pursuant to this section shall be prepared by, or under the direction of, and certified by a qualified registered professional engineer.

(4) Each plan shall contain the following information for the proposed permit area and shadow area:

(a) A projected timetable for the completion of each major step in the mining and reclamation plan;

(b) A detailed estimate of the cost of the reclamation of the proposed operations required to be covered by a performance bond pursuant to 405 KAR Chapter 10, with supporting calculations for the estimates;

(d) A plan for removal, storage, and redistribution of topsoil, subsoil, and other material to meet the requirements of 405 KAR 18:050 including a demonstration of suitability of any proposed topsoil substitutes or supplements;

(e) A plan for revegetation as required in 405 KAR 18:200, including descriptions of the:

Schedule of revegetation;
Species and amounts per acre of seeds and seedlings to be used;
Methods to be used in planting and seeding;
Mulching techniques;
Irrigation, if appropriate;
Pest and disease control measures, if any;
Measures proposed to be used to determine the success of revegetation as required in 405 KAR 18:200, Section 6; and
A soil testing plan for evaluation of the results of topsoil handling and reclamation procedures related to revegetation;

(f) A description of the measures to be used to maximize the use and conservation of the coal resource as required in 405 KAR 18:010, Section 2;

(g) A description of measures to be employed to ensure that all debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard are disposed of in accordance with 405 KAR 18:150 and 405 KAR 18:190, Section 3 and a description of the contingency plans that have been developed to preclude sustained combustion of the materials;

(h) A description, including appropriate drawings and maps, of the measures to be used to seal or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells, and other openings within the proposed permit area and shadow area, in accordance with 405 KAR 18:040; and

(i) A description of steps to be taken to comply with the requirements of the Clean Air Act (42 U.S.C. Chapter 85), the Clean Water Act (33 U.S.C. Chapter 26), and other applicable air and water quality laws and regulations and health and safety standards. This description shall, at a minimum, consist of identification of the permits or approvals required by these laws and regulations the applicant has obtained, has applied for, or intends to apply for.

Section 25. MRP; Existing Structures.

(a) Location;

(b) Plans of the structure that describe its current condition;

(d) A showing, including relevant monitoring data or other evidence, if the structure meets the performance standards of 405 KAR Chapters 16 through 20.

(a) Design specifications for the modification or reconstruction of the structure to meet the performance standards of 405 KAR Chapters 16 through 20;

(b) A construction schedule that shows dates for beginning and completing interim steps and final reconstruction;

(c) Provisions for monitoring the structure to ensure that the performance standards of 405 KAR Chapters 16 through 20 are met; and

(d) A showing that the risk of harm to the environment or to public health or safety shall not be significant during the period of modification or reconstruction.

Section 26. MRP; Subsidence Control.

(1)

(a) The application shall include a map of the permit, shadow, and adjacent areas at a scale of 1:12,000, or larger if necessary, showing the location and type of structures and renewable resource lands that subsidence may materially damage or for which the value or reasonably foreseeable use may be diminished by subsidence, and showing the location and type of water supplies for domestic, agricultural, industrial, or other legitimate use that could be contaminated, diminished, or interrupted by subsidence.

(b) The application shall include a narrative indicating whether subsidence, if it occurred, could cause material damage to or diminish the value or reasonably foreseeable use of structures established in paragraph (a) of this subsection or renewable resource lands or could contaminate, diminish, or interrupt water supplies for domestic, agricultural, industrial, or other legitimate use.

(c) The application shall include an example of the letter by which the applicant proposes to notify the owners of all structures under this subsection for which a presubsidence survey is required pursuant to 405 KAR 18:210, Section 1(4).

(d)

The application shall include a survey of the quantity and quality of each water supply for domestic, agricultural, industrial, or other legitimate use within the permit area, shadow area, and adjacent area that could be contaminated, diminished, or interrupted by subsidence.

a. If the applicant cannot make this survey because the owner will not allow access to the site, the application shall include documentation of the denial of access.

b. The applicant shall pay for a technical assessment or engineering evaluation used to determine the quantity and quality of a water supply for domestic, agricultural, industrial, or other legitimate use.

c. The applicant shall provide copies of the survey and any technical assessment or engineering evaluation to the property owner and the cabinet.

If the owner or his representative is present at the time a survey, technical assessment, or engineering evaluation is conducted pursuant to this paragraph, the report shall include the name of the person.

a. If the owner disagrees with the results of the survey, technical assessment, or engineering evaluation, the owner may submit in writing to the cabinet and to the permittee, a detailed description of the specific areas of disagreement.

b. If necessary, the cabinet shall require additional measures to ensure that adequate and accurate information is included in the survey, technical assessment, or engineering evaluation and to ensure compliance with 405 KAR 18:210.

(2) If the information submitted pursuant to subsection (1) of this section shows that no structures, or water supplies for domestic, agricultural, industrial, or other legitimate use, or renewable resource lands exist, or that no material damage or diminution in value or reasonably foreseeable use of the structures or lands, and no contamination, diminution, or interruption of the water supplies would occur as a result of mine subsidence and, based on site-specific information, if the cabinet agrees with this conclusion, no further information shall be required pursuant to this section.

(3) If the information submitted under subsection (1) of this section shows that structures, renewable resource lands, or water supplies exist and that subsidence could cause material damage or diminution in value or reasonably foreseeable use, or contamination, diminution, or interruption of protected water supplies or if other available information indicates damage, diminution in value or foreseeable use, or contamination, diminution, or interruption could occur, the application shall include a subsidence control plan that shall contain:

(a) A description of the method of coal removal, such as longwall mining, room and pillar removal or hydraulic mining, including the size, sequence, and timing of the development of underground workings;

(b) A map of the underground workings at a scale of 1:12,000, or larger if necessary, that describes the location and extent of the areas in which planned subsidence mining methods will be used and that identifies all areas where the measures established in paragraphs (d), (e), and (g) of this subsection will be taken to prevent or minimize subsidence and subsidence related damage and, if applicable, to correct subsidence related material damage;

(c) A description of the physical conditions, such as depth of cover, seam thickness, and lithology of overlying strata, that affect the likelihood or extent of subsidence and subsidence related damage;

(d) A description of the monitoring, if any, needed to determine the commencement and degree of subsidence so that, if appropriate, other measures can be taken to prevent, reduce, or correct material damage in accordance with 405 KAR 18:210, Section 3;

(e) Except for those areas in which planned subsidence is projected to be used, a detailed description of the subsidence control measures that will be taken to prevent or minimize subsidence and subsidence related damage including:

Backstowing or backfilling of voids;
Leaving support pillars of coal;
Leaving areas in which no coal is removed, including a description of the overlying area to be protected by leaving the coal in place; and
Taking measures on the surface to prevent or minimize material damage or diminution in value of the surface;

(f) A description of the anticipated effects of planned subsidence, if any;

(g) For those areas where planned subsidence is projected to be used, a description of methods to be employed to minimize damage from planned subsidence to noncommercial buildings and occupied residential dwellings and structures related thereto or the written consent of the owner of the structure or facility that minimization measures not be taken or, unless the anticipated damage would constitute a threat to health or safety, a demonstration that the costs of minimizing damage exceed the anticipated costs of repair;

(h) A description of the measures to be taken in accordance with 405 KAR 18:060, Section 12, and 405 KAR 18:210, Section 3, to replace adversely affected protected water supplies or to mitigate or remedy any subsidence related material damage to the land and protected structures; and

(i) Other information specified by the cabinet as necessary to demonstrate that the operation will be conducted in accordance with 405 KAR 18:210.

Section 27. MRP; Return of Coal Processing Waste to Abandoned Underground Workings.

(1) Each plan shall describe the design, operation, and maintenance of any proposed use of abandoned underground workings for coal processing waste disposal, including flow diagrams and any other necessary drawings and maps, for the approval of the cabinet and MSHA pursuant to 405 KAR 18:140, Section 7.

(2) Each plan shall describe the source and quality of waste to be stowed, area to be backfilled, percent of the mine void to be filled, method of constructing underground retaining walls, influence of the backfilling operation on active underground mine operations, surface area to be supported by the backfill, and the anticipated occurrence of surface effects following backfilling.

(3) The applicant shall describe the source of the hydraulic transport mediums, method of dewatering the placed backfill, retainment of water underground, treatment of water if released to surface streams, and the effect on the hydrologic regime.

(4) The plan shall describe each permanent monitoring well to be located in the backfilled area, the stratum underlying the mined coal, and gradient from the backfilled area.

(5) The requirements of this section shall also apply to pneumatic backfilling operations, except if the operations are exempted by the cabinet from requirements specifying hydrologic monitoring.

Section 28. MRP; Underground Development Waste and Excess Spoil.

(1) Each plan shall contain descriptions, including appropriate maps and cross-section drawings, of the proposed disposal methods and sites for placing underground development waste and excess spoil according to 405 KAR 18:130, 18:140, and 18:160 as applicable.

(2) Each plan shall describe the geotechnical investigation, design, construction, operation, maintenance, and removal, if appropriate, of the structures and be prepared according to 405 KAR 8:030, Section 27 and the applicable requirements of this administrative regulation.

Section 29. MRP; Transportation Facilities.

(1) Each application shall contain a description of each road, conveyor, and rail system to be constructed, used, or maintained within the proposed permit area. The description shall include a map, appropriate cross-sections, and:

(a) Specifications for each road width, road gradient, road surface, road cut, fill embankment, culvert, bridge, drainage ditch, and drainage structure;

(b) A report of appropriate geotechnical analysis, if approval of the cabinet is required for alternative specifications or for steep cut slopes pursuant to 405 KAR 18:230;

(c) A description of each measure to be taken to obtain approval of the cabinet for alteration or relocation of a natural drainageway pursuant to 405 KAR 18:230; and

(d) A description of measures, other than use of a rock headwall, to be taken to protect the inlet end of a ditch relief culvert, for approval by the cabinet pursuant to 405 KAR 18:230.

(2) Each plan shall contain a general description of each road, conveyor, or rail system to be constructed, used, or maintained within the proposed permit area.

Section 30. MRP; Protection of Public Parks and Historic Places.

(1) For any publicly-owned parks or any places listed on the National Register of Historic Places that may be adversely affected by the proposed operations, each plan shall describe the measures to be used to prevent adverse impact; or, if valid existing rights exist or joint agency approval is to be obtained pursuant to 405 KAR 24:040, Section 2(4), to minimize adverse impacts.

(2) If necessary, the cabinet shall require the applicant to protect historic or archaeological properties listed or eligible for listing on the National Register of Historic Places through appropriate mitigation and treatment measures. These measures need not be completed prior to permit issuance, but shall be completed before the properties are affected by underground mining activities.

Section 31. MRP; Relocation or Use of Public Roads. Each application shall describe, with appropriate maps and drawings the measures to be used to ensure that the interests of the public and landowners affected are protected if, pursuant to 405 KAR 24:040, Section 2(6), the applicant seeks to have the cabinet approve:

(1) Conducting the proposed underground mining activities within 100 feet of the right-of-way line of any public road, except where mine access or haul roads join that right-of-way; or

(2) Relocating a public road.

Section 32. MRP; Protection of Hydrologic Balance.

(1) Each application shall contain a description, as established in this subsection, of the measures to be taken to minimize disturbances to the hydrologic balance within the permit area, shadow area, and adjacent area and to prevent material damage to the hydrologic balance outside the permit and shadow areas.

Meet applicable water quality statutes, administrative regulations, standards, and effluent limitations as required by 405 KAR 18:060, Section 1(3);
Avoid acid or toxic drainage as required by 405 KAR 18:060, Sections 4, 5, and 6;
Control the discharge of sediment to streams located outside the permit area as required by 405 KAR 18:060, Section 2;
Control the drainage and discharge of water within the permit area as required by 405 KAR 18:060, Sections 1(4), 3, 8, and 9, and 405 KAR 18:080; and
Protect or replace the water supply of present users as required by 405 KAR 18:060, Section 12.

(c) The cabinet shall require that the description include protective measures in addition to those established pursuant to paragraph (b) of this subsection, if the cabinet determines that additional measures are needed to protect the hydrologic balance in accordance with 405 KAR 18:060.

(2) Each application shall include the design of any necessary protective measures established pursuant to subsection (1) of this section. The design shall include, as appropriate, calculations, maps, drawings, and written explanations as necessary to document the design.

(3) Each application shall include a determination of the probable hydrologic consequences of the mining and reclamation operations for the permit area, shadow area, and adjacent area.

(b) The determination shall be completed according to the parameters and in the detail necessary to enable the cabinet to prepare a cumulative impact assessment and shall take into account the anticipated effects of protective measures required by this chapter.

Peak discharge rates, emphasizing the potential for flooding;
Settleable solids at peak discharge;
Low-flow discharge rates, emphasizing the potential for water supply diminution;
Suspended solids at low flow; and
pH, at low flow, emphasizing the potential for acid drainage conditions, including depressed levels of alkalinity and elevated levels of iron, manganese, acidity, sulfate, and total dissolved solids or specific conductance, which are generally associated with acid drainage conditions.

(d) For groundwater systems, the determination shall, at a minimum, include probable impacts on:

Water quantity, emphasizing water levels and the potential for water supply diminution for existing users, and dewatering of aquifers that are not currently being used for water supply but have the potential to be developed as a water supply source; and
pH, emphasizing the potential for acid drainage conditions, including depressed levels of alkalinity and elevated levels of iron, manganese, acidity, sulfate, and total dissolved solids or specific conductance, which are generally associated with acid drainage conditions.

(e) The determination shall include a finding on if the proposed underground mining activities conducted after July 16, 1994 may proximately result in contamination, diminution, or interruption of an underground or surface source of water within the permit area or adjacent areas that is used for domestic, agricultural, industrial or other legitimate use upon application submittal.

(f) An application for a major revision to a permit shall be reviewed by the cabinet to determine if a new or updated determination of the probable hydrologic consequences shall be required.

(4)

(b) The monitoring plan shall be based on the geologic and hydrologic baseline information, the mining and reclamation plan, and the determination of probable hydrologic consequences, and shall:

Identify the quantity and quality parameters to be monitored, sampling frequency, and monitoring site locations; and
Describe how the data may be used to determine the impacts of the operation on the hydrologic balance.

(5) An application for a major revision to a permit shall be reviewed by the cabinet to determine if a new or updated cumulative hydrologic impact assessment shall be made.

Section 34. MRP; Impoundments and Embankments.

(a) Be prepared by, or under the direction of, and certified by, a qualified registered professional engineer;

(b) Contain a description, map, and appropriate cross-sections and drawings of the structure and its location;

(c) Contain all hydrologic and geologic information and computations necessary to demonstrate compliance with the design and performance standards of 405 KAR Chapter 18 and all information utilized by the applicant to determine the probable hydrologic consequences of the mining operation pursuant to Section 32(3) of this administrative regulation;

(d) Contain an assessment of the potential effect on the structure from subsidence of the subsurface strata resulting from past underground mining operations if underground mining has occurred;

(e) Include any geotechnical investigation, design, and construction requirements for the structure;

(f) Describe the operation and maintenance requirements for each structure; and

(g) Describe the timetable and plans to remove each structure, if appropriate.

(2) Sedimentation ponds. Sedimentation ponds, whether temporary or permanent, shall be designed in compliance with the requirements of 405 KAR 18:090 and 18:100.

(3) Permanent and temporary impoundments. Permanent and temporary impoundments shall be designed to comply with the requirements of 405 KAR 18:100.

(a) Each plan for an impoundment meeting the size or other criteria of MSHA, 30 C.F.R. 77.216(a), shall comply with the requirements of 30 C.F.R. 77.216-1 and 77.216-2.

(b) The plan required to be submitted to the District Manager of MSHA under 30 C.F.R. 77.216 shall be submitted to the cabinet as part of the permit application.

Copy of the final approved plan;
Copy of all correspondence from MSHA regarding the plan;
Copy of any technical support documents requested by MSHA during its review; and
Notarized statement by the applicant that the copy submitted to the cabinet is a complete and correct copy of the final plan approved by MSHA.

(4) Coal mine waste banks. Coal mine waste banks shall be designed to comply with the requirements of 405 KAR 18:140.

(5) Coal mine waste dams and embankments.

(a) Coal mine waste dams and embankments shall be designed to comply with the requirements of 405 KAR 18:100 and 18:160.

(b) The plan for an impounding structure that is required to be submitted to the District Manager of MSHA pursuant to 30 C.F.R. 77.216 shall be submitted to the cabinet as part of the permit application.

(c) After the plan has been approved by MSHA, the applicant shall submit to the cabinet a copy of the final approved plan, a copy of all correspondence from MSHA regarding the plan, a copy of any technical support documents requested by MSHA during its review, and a notarized statement by the applicant that the copy submitted to the cabinet is a complete and correct copy of the final plan approved by MSHA.

(d) Each plan shall comply with the requirements of MSHA, 30 C.F.R. 77.216-1 and 77.216-2, and shall contain the results of a geotechnical investigation of the proposed dam or embankment foundation area, to determine the structural competence of the foundation that will support the proposed dam or embankment structure and the impounded material.

(e) The geotechnical investigation shall be planned and supervised by an engineer or engineering geologist, according to subparagraphs 1. through 4. of this paragraph:

The number, location, and depth of borings and test pits shall be determined using current prudent engineering practice for the size of the dam or embankment, quantity of material to be impounded, and subsurface conditions.
The character of the overburden and bedrock, the proposed abutment sites, and any adverse geotechnical conditions that may affect the particular dam, embankment, or reservoir site shall be considered.
All springs, seepage, and groundwater flow observed or anticipated during wet periods in the area of the proposed dam or embankment shall be identified on each plan.
Consideration shall be given to the possibility of mud flows, rock-debris falls, or other landslides into the dam, embankment, or impounded material.

(6) If the structure is Class B-moderate hazard or Class C-high hazard pursuant to 405 KAR 7:040, Section 5, and 401 KAR 4:030, or if the structure meets the size or other criteria of MSHA, 30 C.F.R. 77.216(a), each plan pursuant to subsections (2), (3), and (5) of this section shall include a stability analysis of the structure.

(a) The stability analysis shall include strength parameters, pore pressures, and long-term seepage conditions.

(b) The plan shall also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods.

Section 35. MRP; Air Pollution Control. For all surface operations associated with underground mining activities, the application shall contain an air pollution control plan that includes:

(1) An air quality monitoring program, if required by the cabinet, to provide sufficient data to evaluate the effectiveness of the fugitive dust control practices, pursuant to subsection (2) of this section to comply with applicable federal and state air quality standards; and

(2) A plan for fugitive dust control practices, as required pursuant to 405 KAR 18:170.

Section 36. MRP; Fish and Wildlife Protection and Enhancement.

(1) Each application shall include a description of how, to the extent possible using the best technology currently available, the permittee will minimize disturbances and adverse impacts on fish and wildlife and related environmental values, including compliance with the Endangered Species Act, 16 U.S.C. 1531 – 1544, during the surface coal mining and reclamation operations, and how enhancement of these resources will be achieved as practicable.

(2) This description shall:

(a) Apply, at a minimum, to species and habitats identified pursuant to Section 20 of this administrative regulation;

(3) Upon request, the cabinet shall provide the protection and enhancement plan required pursuant to this section to the U.S. Department of the Interior, Fish and Wildlife Service regional or field office for their review. This information shall be provided within ten (10) days of receipt of the request from the Service.

(4)

(a) A fish and wildlife protection and enhancement plan shall be required for amendments and revisions that:

Propose extension into a wetland;
Propose significant disturbance in a new watershed in which the area of surface operations and facilities or adjacent area, or areas subject to probable impacts from underground workings, including areas of probable subsidence, include an important stream;
Seek to obtain a stream buffer zone variance pursuant to 405 KAR 18:060, Section 11, or seek to modify an existing stream buffer zone variance;
Propose extension of the permit boundary that involves a new surface disturbance of five (5) acres or more;
Involve new areas of surface operations and facilities or adjacent areas, or areas subject to probable impacts from underground workings, including areas of probable subsidence, likely to contain, or that could reasonably be expected to contain, a state or federal endangered or threatened species or its critical habitat; or
Propose extension of the coal extraction area associated with an underground mine that may by subsidence or other means impact a wetland, important stream, or stream that contains, or could reasonably be expected to contain, a state or federal endangered or threatened species or its critical habitat.

(5) This section shall apply to applications for permits, amendments, and revisions submitted to the cabinet on or after November 17, 1992.

Section 37. MRP; Postmining Land Use.

(1) Each plan shall contain a description of the proposed land use or uses following reclamation of the land to be affected within the proposed permit area by surface operations and facilities, including:

(a) A discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses, and the relationship of the proposed use to existing land use policies and plans;

(b) A discussion of how the proposed postmining land use is to be achieved and the necessary support activities that may be needed to achieve the proposed land use, including management practices to be conducted during the liability period for the commercial forest land, cropland (including hayland), and pastureland land uses;

(c) If a land use different from the premining land use is proposed, all supporting documentation required for approval of the proposed alternative use pursuant to 405 KAR 18:220;

(d) A discussion of the consideration that has been given to making all of the proposed underground mining activities consistent with surface owner plans and applicable state and local land use plans and programs; and

(e) A copy of the comments concerning the proposed use from the legal or equitable owner of record of the area to be affected by surface operations and facilities and the state and local government agencies, if any, which would have to initiate, implement, approve, or authorize the proposed use of the land following reclamation.

(2) Approval of the initial postmining land use plan pursuant to this section shall not preclude subsequent consideration and approval of a revised postmining land use plan in accordance with the applicable requirements of 405 KAR Chapters 7 through 24.

Section 38. MRP; Blasting.

(1) Each application shall contain a blasting plan for the proposed permit area explaining how the applicant intends to comply with the requirements of 405 KAR 18:120. This plan shall include, at a minimum:

(a) Information establishing the limitations the permittee shall meet with regard to ground vibration and airblast;

(b) The bases for the ground vibration and airblast limitations; and

(2) Each application shall contain a description of the systems to be used to monitor compliance with the standards for ground vibration and airblast including the types, capabilities, and sensitivities of blast monitoring equipment and identification of the monitoring procedures and locations.

(3) Blasting operations within 500 feet of active underground mines require approval in accordance with 805 KAR Chapter 4 of the cabinet, MSHA, and the Kentucky Office of Mine Safety and Licensing.

Section 39. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Standard Methods for the Examination of Water and Wastewater", (14th Edition, 1975), American Public Health Association, American Water Works Association, and Water Pollution Control Federation;

(b) "Corps of Engineers Wetlands Delineation Manual", (January, 1987 Edition), U. S. Army Corps of Engineers;

(c) "U. S. Army Corps of Engineers Regulatory Guidance Letter No. 90-7", (September 26, 1990), U. S. Army Corps of Engineers;

(d) "National Lists of Plant Species that Occur in Wetlands and Biological Reports and Summary", (May, 1988 Edition), Fish and Wildlife Service, U. S. Department of the Interior; and

(e) "List of Hydric Soils of the United States, All Kentucky Counties", (December, 1991 Edition), Soil Conservation Service, U. S. Department of Agriculture;

(2) This material may be inspected, copied, or obtained at the Department for Natural Resources, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 350.060, 350.151, 350.421, 7 C.F.R. Part 657, 30 C.F.R. Parts 77.216-1, 77.216-2, 730-733, 735, 773.13(a), 778, 783, 784, 785.17(b), (d), 917, 40 C.F.R. Parts 136, 434, 16 U.S.C. 1276(a), 1531 - 1544, 30 U.S.C. 1253, 1255, 1257, 1258, 1266, 1267
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.060, 350.151, 350.465, 7 C.F.R. Part 657, 30 C.F.R. Parts 77.216-1, 77.216-2, 730-733, 735, 773.13(a), 778, 783, 784, 785.17(b), (d), 917, 40 C.F.R. Parts 136, 434, 16 U.S.C. 1276(a), 1531 – 1544, 30 U.S.C. 1253, 1255, 1257, 1258, 1266, 1267
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes requirements for granting a permit for underground coal mining operations. This administrative regulation differs from the corresponding federal regulations as follows: (1) Section 16 of this administrative regulation requires information on alternative sources of water supply if the applicant's determination of probable hydrologic consequences under Section 32 of this administrative regulation finds that water supplies may be adversely affected. There is no exact federal counterpart to this requirement for alternative water supply information for underground mines, although a close parallel is found in the subsidence control plan requirements at 30 C.F.R. 784.20(b)(8), which require a description of measures to be taken to replace adversely affected protected water supplies. This administrative regulation establishes that underground mines and surface mines shall be subject to the same requirements regarding water supply replacement, consistent with KRS 350.421. (2) Section 26(1) of this administrative regulation requires that the application contain an example of the letter by which the applicant proposes to notify the owners of structures for which a presubsidence condition survey is required pursuant to 405 KAR 18:210, Section 1(4). The corresponding federal regulation does not require a sample letter. The federal regulations are structured so that these presubsidence surveys shall be included in the permit application prior to permit issuance. The cabinet's administrative regulations allow the detailed surveys of structures to be submitted after permit issuance. The example letter is needed in the permit application to ensure that the applicant is prepared to provide proper notice to owners of structures after permit issuance. (3) Section 26 of this administrative regulation does not include the requirement at 30 C.F.R. 784.20(a)(3) for detailed surveys of the presubsidence condition of structures that may be damaged by subsidence. These surveys may be submitted after permit issuance and therefore are required pursuant to 405 KAR 18:210 rather than this administrative regulation. (4) Section 26 of this administrative regulation applies to water supplies for "domestic, agricultural, industrial, or other legitimate use", whereas the corresponding federal regulation is limited to "drinking, domestic, or residential" water supplies. This administrative regulation applies to water supplies protected pursuant to KRS 350.421, whereas the federal regulation applies to water supplies protected pursuant to 30 U.S.C. 1309a. (5) Section 32(3)(e) of this administrative regulation requires that the submitted application shall include a determination of probable hydrologic consequences shall include a finding on if the proposed underground mining activities conducted after July 16, 1994 may proximately result in contamination, diminution, or interruption of an underground or surface source of water for domestic, agricultural, industrial, or other legitimate use within the permit area or adjacent areas. The corresponding federal requirement at 30 C.F.R. 784.14(e)(3)(iv) applies to underground mining activities conducted after October 24, 1992 and wells or springs used for domestic, drinking, or residential use. This administrative regulation addresses water supplies protected under KRS 350.421, as amended July 16, 1994. The federal regulation addresses water supplies protected under 30 U.S.C. 1309a, effective October 24, 1992. (6) Section 34(3) and (5) of this administrative regulation require submission to the cabinet after approval by the Mine Safety and Health Administration (MSHA) of a: (a) Copy of the final approved design plans for impounding structures; (b) Copy of all correspondence with MSHA; (c) Copy of technical support documents requested by MSHA; and (d) Notarized statement by the applicant that the copy submitted to the cabinet is a complete and correct copy of the final plan approved by MSHA. These requirements are necessary to minimize duplication of technical review by MSHA and the cabinet, and to minimize conflicts that may arise from duplication of review.
History: 405 KAR 008:040. 8 Ky.R. 1503; eff. 1-6-1983; 10 Ky.R. 804; eff. 4-23-1984; 11 Ky.R. 1816; 12 Ky.R. 170; 330; eff. 8-13-1985; 911; 1299; eff. 2-4-1986; 15 Ky.R. 1883; eff. 6-28-1989; 17 Ky.R. 2826; eff. 5-22-1991; 18 Ky.R. 3004; 3460; 19 Ky.R. 34; eff. 6-24-1992; 24 Ky.R. 687; 1325; 2639; eff. 6-10-1998; TAm eff. 8-9-2007; 41 Ky.R. 578; 1089; 1324; eff.1-5-2015; TAm eff. 7-6-2016; 44 Ky.R. 607, 1291; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 8:050 Permits for special categories of mining {#sec-405-kar-8-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:050}

Section 1. In Situ Processing Activities.

(1) Applicability. This section applies to any person who conducts or intends to conduct surface coal mining and reclamation operations utilizing in situ processing activities.

(2) Application requirements. Any application for a permit for operations covered by this section shall be made according to all requirements of this chapter applicable to underground mining activities. In addition, the mining and reclamation operations plan for operation involving in situ processing activities shall contain information establishing how those operations will be conducted in compliance with the requirements of 405 KAR 20:080, including:

(a) Delineation of proposed holes and wells and production zone for approval of the cabinet;

(b) Specifications of drill holes and casing proposed to be used;

(c) A plan for treatment, confinement, or disposal of all acid-forming, toxic-forming, or radioactive gases, solids, or liquids constituting a fire, health, safety or environmental hazard caused by the mining and recovery process; and

(d) Plans for monitoring surface and groundwater and air quality, as required by the cabinet.

(3) Criteria for approval. A permit shall not be issued for operations covered by this section unless the cabinet first finds, in writing, upon the basis of a complete application made in accordance with subsection (2) of this section, that the operation will be conducted in compliance with all requirements of this chapter relating to underground mining activities, and 405 KAR 20:080 and 405 KAR Chapter 18.

Section 2. Augering.

(1) General.

(a) This section applies to any person who conducts or intends to conduct surface coal mining and reclamation operations utilizing augering operations.

(b) Any application for a permit for operations covered by this section shall contain, in the mining and reclamation plan, a description of the augering methods to be used and the measures to be used to comply with 405 KAR 20:030.

(c) A permit shall not be issued for any operations covered by this section unless the cabinet finds, in writing, that in addition to meeting all other applicable requirements of this chapter, the operation will be conducted in compliance with 405 KAR 20:030.

(2) Augering on previously mined lands.

(a) In addition to other requirements of 405 KAR Chapter 8, each application for a permit to conduct auger mining on an area mined prior to May 3, 1978, and not reclaimed to the standards of 405 KAR, shall contain such information as the cabinet deems necessary to describe the proposed affected area and method of operation and show that the proposed method of operation will result in stable postmining conditions, and reduce or eliminate adverse environmental conditions created by previous mining activities.

(b) If the cabinet determines that the affected area cannot be stabilized and reclaimed subsequent to augering or that the operation will result in adverse impact to the proposed permit area or adjacent area, the permit shall not be issued.

(c) The cabinet shall, consistent with all applicable requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24, issue a permit if the applicant demonstrates that the proposed surface coal mining operations will provide for reduction or elimination of the highwall, or reduction or abatement of adverse impacts resulting from past mining activities, or stabilization or enhancement of the previously mined area.

(d) The cabinet shall ensure that all applicable performance standards can be met.

Section 3. Prime Farmlands.

(1) Applicability. This section applies to any person who conducts or intends to conduct surface coal mining and reclamation operations on prime farmlands historically used for cropland. This section does not apply to:

(a) Lands on which surface coal mining and reclamation operations are conducted pursuant to any permit issued prior to August 3, 1977.

(b) Lands on which surface coal mining and reclamation operations are conducted pursuant to any renewal or revision of a permit issued prior to August 3, 1977. For the purposes of this paragraph, "renewal" of a permit shall mean a decision by the cabinet to extend the time by which the permittee may complete mining within the boundaries of the original permit; and "revision" of the permit shall mean a decision by the cabinet to allow changes in the method of mining operations within the original permit area, or the decision of the cabinet to allow incidental boundary changes to the original permit.

(c) Lands included in any existing surface coal mining operation, for which a permit was issued for all or any part thereof prior to August 3, 1977, if:

a. The lands are part of a single continuous surface coal mining operation begun under a permit issued before August 3, 1977;

b. The permittee had a legal right to mine the lands prior to August 3, 1977 through ownership, contract, or lease but not including an option to buy, lease, or contract; and

c. The lands contain part of a continuous recoverable coal seam that was being mined in a single continuous mining pit (or multiple pits if the lands are proven to be a part of a single continuous surface coal mining operation) begun under a permit issued prior to August 3, 1977;

A single continuous surface coal mining operation is presumed to consist only of a single continuous mining pit under a permit issued prior to August 3, 1977, but may include noncontiguous parcels if the permittee can prove by clear and convincing evidence that, prior to August 3, 1977, the noncontiguous parcels were a part of a single permitted operation. For the purpose of this paragraph, clear and convincing evidence includes, but is not limited to, contracts, leases, deeds, or other properly executed legal documents (not including options) that specifically treat physically separate parcels as one (1) surface coal mining operation; and
For the purposes of this paragraph a pit shall be deemed to be a single continuous mining pit even if portions of the pit are crossed by a road, pipeline, railroad or powerline or similar crossing; and

(d) The following facilities associated with an underground mining activity, if the facilities affect a minimal amount of land and if the facilities are actively used over extended periods of time:

Coal processing plants;
Support facilities; and
Roads.

(2) Application requirements. If land within the proposed permit area is identified as prime farmland pursuant to 405 KAR 8:030, Section 21 or 405 KAR 8:040, Section 21, the applicant shall submit a plan for the mining and restoration of the land. Each plan shall contain, at a minimum:

(a) A soil survey of the permit area conducted by the SCS according to the standards of the National Cooperative Soil Survey and in accordance with the procedures established in U.S. Department of Agriculture Handbooks 436Soil Taxonomy (SCS) and 18Soil Survey Manual (SCS) as incorporated by reference in 405 KAR 7:015. The SCS establishes the standards of the National Cooperative Soil Survey and maintains a National Soils Handbook that establish procedures for conducting soil surveys.

The soil survey shall include a soils map, a description of each soil mapping unit, and profile descriptions of each soil using representative descriptions from the soil survey area as determined by the SCS including soil-horizon depths, textures, pH values, and consistence for each prime farmland soil unit within the permit area.
In addition to the representative soil profile description provided by the SCS, the applicant may submit site-specific soil profile descriptions of the permit area prime farmland soil mapping units. These descriptions shall be prepared by persons meeting the qualification requirements of the SCS prime farmland specifications incorporated by reference in 405 KAR 20:040. These descriptions shall comply with NCSS standards and shall include the name, address and qualifications of the soil scientist that prepared them. If the on-site descriptions are not obtained and included in the application, then the representative soil profile descriptions provided by the SCS shall be deemed by the cabinet as representative of the soils in the permit area and the soil-horizon depths and other data therein shall serve as a basis for determining if reclaimed prime farmland areas have been restored to proper depth and meet other reconstruction standards of 405 KAR 20:040, Section 4.

a. Bulk density of the prime farmland soils prior to mining shall be documented and included in the application.

b. These densities shall be obtained either by testing samples from each soil mapping unit by ten (10) inch soil layers or by using estimates provided for each soil series by the SCS.

The cabinet may require the applicant to provide information on other physical and chemical soil properties as needed to make a determination that the applicant has the technological capability to restore the prime farmland within the permit area to the soil reconstruction standards of 405 KAR 20:040;

(b) A detailed plan for soil removal, storage, and reconstruction that demonstrates that the applicant has the technological capability to comply with 405 KAR 20:040. The plan shall include at a minimum:

The proposed methods and types of equipment to be used for soil removal, storage, and reconstruction, including equipment operation patterns, use of ripping and chiseling, stockpile locations, and erosion control measures;
A description of measures to be taken to avoid excessive compaction of soils;
A description of measures to be taken to ensure that soil removal, handling, and reconstruction operations shall be conducted within soil moisture ranges that will minimize compaction;
A description of any soil amendments to be applied;
Maps, plans, and cross-sections depicting the location and acreages of reconstructed prime farmland soil mapping units, final grading configuration, drainage, and erosion control measures; and
Available agricultural school studies or other scientific data for areas with comparable soils, climate, and management (including water management) that demonstrate that the proposed method of reclamation, including the use of soil mixtures or substitutes according to the requirements of 405 KAR 20:040, if any, will achieve, within a reasonable time, levels of yield equivalent to, or higher than, those of nonmined prime farmland in the surrounding area. The demonstration for soil substitutes or mixtures shall include analyses performed by a qualified soil scientist and analyses of physical and chemical parameters of the original soils and the substitute soil materials or soil mixtures as required by the cabinet (which shall be conducted by a qualified laboratory).

(c) A plan for revegetation, crop production, and demonstration of restoration of soil productivity in conformance with 405 KAR 20:040, Section 5. The cabinet may allow detailed cropping plans, including items such as identification of reference crops, locations of test plots, and yield measurement methodologies, to be submitted after issuance of the permit, as a revision to the permit, provided that the permit is conditioned to require submission of the detailed plan at least one (1) year prior to initiation of crop production on the reclaimed area for the purpose of demonstration of compliance with 405 KAR 20:040. The initial revegetation plan shall be included in the application before the permit is issued. Permits issued prior to February 4, 1986 shall be revised to comply with this paragraph at least one (1) year prior to initiation of crop production on the reclaimed area for the purpose of demonstration of compliance with 405 KAR 20:040.

(3) Cabinet consultation with the SCS.

(a) Before any permit is issued for areas that include prime farmlands, the cabinet shall consult with the state conservationist, SCS.

(b) The state conservationist shall provide for the review of and comment on the proposed method of soil reconstruction in the plan submitted pursuant to subsection (2) of this section. If the state conservationist considers those methods to be inadequate, he or she shall suggest revisions to the cabinet resulting in more complete and adequate reconstruction.

(4) Criteria for approval. A permit for the mining and reclamation of prime farmland may be granted by the cabinet, if it first finds, in writing, upon the basis of a complete application, that:

(a) The approved proposed postmining land use of these prime farmlands will be cropland;

(b) The permit incorporates as specific conditions the contents of the plan submitted pursuant to subsection (2) of this section, after consideration of any revisions to that plan suggested by the state conservationist pursuant to subsection (3) of this section;

(c) The applicant has the technological capability to restore the prime farmland, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management; and

(d) The proposed operations will be conducted in compliance with the requirements of 405 KAR 20:040 and other environmental protection performance and reclamation standards for mining and reclamation of prime farmland of 405 KAR Chapters 7 through 24.

Section 4. Mountaintop Removal Mining.

(1) Applicability. This section applies to any person who conducts or intends to conduct surface mining activities by mountaintop removal mining.

(2) Mountaintop removal mining means surface mining activities, where the mining operation removes an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill, except as established in 405 KAR 20:050, Section 1(6), by removing substantially all of the overburden off the bench and creating a level plateau or a gently rolling contour, with no highwalls remaining, and capable of supporting postmining land uses in accordance with the requirements of this section.

(3) Criteria for approval. The cabinet may issue a permit for mountaintop removal mining, without regard to the requirements of 405 KAR 16:190 to restore the lands disturbed by such mining to their approximate original contour, if it first finds, in writing, on the basis of a complete application, that:

(a) The proposed postmining land use of the lands to be affected will be an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use;

(b) After consultation with the appropriate land-use planning agencies, if any, the proposed land use is deemed by the cabinet to constitute an equal or better economic or public use of the affected land compared with the premining use;

(c) The applicant has presented specific plans for the proposed postmining land use and appropriate assurances that the use shall be:

Compatible with adjacent land uses;
Obtainable according to data regarding expected need and market;
Assured of investment in necessary public facilities;
Supported by commitments from public agencies where appropriate;
Practicable with respect to private financial capability for completion of the proposed use;
Planned pursuant to a schedule attached to the reclamation plan so as to integrate the mining operation and reclamation with the postmining land use; and
Designed by a registered engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site;

(d) The proposed use shall be consistent with adjacent land uses and existing state and local land use plans and programs;

(e) The cabinet has provided, in writing, an opportunity of not more than sixty (60) days to review and comment on proposed use to the governing body of general purpose government in whose jurisdiction the land is located and any state or federal agency that the cabinet, determines in accordance with 405 KAR 16:210 to have an interest in the proposed use;

(f) The applicant has demonstrated that, in place of restoration of the land to be affected to the approximate original contour under 405 KAR 16:190, the operation will be conducted in compliance with the requirements of 405 KAR 20:050;

(g) The requirements of 405 KAR 20:050 are made a specific condition of the permit;

(h) All other requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24 are met by the proposed operations; and

(i) The permit is clearly identified as being for mountaintop removal mining.

(4) Periodic review.

(a) Any permits issued pursuant to this section shall be reviewed by the cabinet to evaluate the progress and development of mining activities to establish that the permittee is proceeding in accordance with the terms of the permit:

Within the sixth month preceding the third year from the date of its issuance;
Before each permit renewal; and
Not later than the middle of each permit term.

(b) Any review required pursuant to paragraph (a) of this subsection need not be held if the permittee has demonstrated and the cabinet finds, in writing, within three (3) months before the scheduled review, that all operations under the permit are proceeding and will continue to be conducted in accordance with the terms of the permit and requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24.

(5) Modifications of permit. The terms and conditions of a permit for mountaintop removal mining may be modified at any time by the cabinet, if it determines that more stringent measures are necessary to insure that the operation involved is conducted in compliance with the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24.

Section 5. Steep Slope Mining.

(1) This section applies to any person who conducts or intends to conduct steep slope surface coal mining and reclamation operations, except:

(a) A case in which an applicant proposes to conduct surface coal mining and reclamation operations on flat or gently rolling terrain, leaving a plain or predominantly flat area, but on which an occasional steep slope is encountered as the mining operation proceeds;

(b) A case in which a person obtains a permit pursuant to the provisions of Section 4 of this administrative regulation; or

(c) To the extent that a person obtains a permit incorporating a variance pursuant to Section 6 of this administrative regulation.

(2) Any application for a permit for surface coal mining and reclamation operations covered by this section shall contain sufficient information to establish that the operations will be conducted in accordance with the requirements of 405 KAR 20:060, Section 2.

(3) A permit shall not be issued for any operations covered by this section, unless the cabinet finds, in writing, that in addition to meeting all other requirements of this chapter, the operation will be conducted in accordance with the requirements of 405 KAR 20:060, Section 2.

Section 6. Variances from Approximate Original Contour Restoration Requirements for Nonmountaintop Removal, Steep Slope Mining.

(1) Pursuant to 405 KAR 20:060, Section 3, the cabinet may issue a permit for nonmountaintop removal, steep slope mining, which includes a variance from the requirements of 405 KAR 16:190, 18:190, and 20:060, Section 2(3) to restore the disturbed areas to their approximate original contour. The permit may contain a variance only if the cabinet finds, in writing, that the applicant has demonstrated, on the basis of a complete application, that the requirements of 405 KAR 20:060, Section 3 are met.

(2) If a variance is granted pursuant to this section:

(a) A statement shall be listed on the permit making the requirements of 405 KAR 20:060, Section 3 a specific condition; and

(b) The permit shall be specifically marked as containing a variance from approximate original contour.

(3) Periodic review.

(a) Except as established in paragraph (b) of this subsection, each permit incorporating a variance issued pursuant to this section shall be reviewed by the cabinet at least every thirty (30) months following the issuance of the permit to evaluate the progress and development of the mining activities, to establish that the permittee is proceeding in accordance with the terms of the variance.

(b) If the permittee demonstrates to the cabinet that the operations involved have been and continue to be conducted in compliance with the terms and conditions of the permit, and the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24, the review required in paragraph (a) of this subsection need not be held.

(4) Modifications of permit. The terms and conditions of a permit incorporating a variance pursuant to this section may be modified at any time by the cabinet, if it determines that more stringent measures are necessary to insure that the operations involved shall be conducted in compliance with the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24.

Section 7. Variances for Delay in Contemporaneous Reclamation Requirement in Combined Surface and Underground Mining Operations.

(1) Applicability.

(a) This section applies to any permittee or permittees who conduct or intend to conduct combined surface mining activities and underground mining activities in which compliance with the time frames for reclamation as established in 405 KAR 16:020, Section 2, is not practicable and a delay is requested to allow underground mining activities to be conducted before the reclamation operations for the surface mining activities can be completed.

(b) This section provides only for delay in reclamation of surface mining activities, if that delay will allow underground mining activities to be conducted to ensure both maximum practical recovery of coal resources and to avoid multiple future disturbances of surface lands or waters.

(2) Application requirements. Any applicant who desires to obtain a variance pursuant to this section shall file with the cabinet complete applications for both the surface mining activities and underground mining activities that are to be combined. The mining and reclamation operation plans for these permits shall contain appropriate narratives, maps, and plans that:

(a) Show why the proposed underground mining activities are necessary or desirable to assure maximum practical recovery of coal;

(b) Show how multiple future disturbances of surface lands or waters will be avoided;

(c) Identify the specific surface areas for which a variance is sought and the particular sections of KRS Chapter 350 and 405 KAR Chapters 7 through 24 from which a variance is being sought;

(d) Show how the activities will comply with 405 KAR 16:010, Section 3 and other applicable requirements of 405 KAR Chapters 7 through 24;

(e) Show why the variance sought is necessary for the implementation of the proposed underground mining activities;

(f) Provide an assessment of the adverse environmental consequences and damages, if any, that will result if the reclamation of surface mining activities is delayed; and

(g) Show how temporary off-site storage of spoil will be conducted to comply with the requirements of KRS Chapter 350 and 405 KAR 18:190, Section 6.

(3) Criteria for approval. A permit incorporating a variance under this section may be issued by the cabinet if it first finds, in writing, upon the basis of a complete application filed in accordance with this section that:

(a) The applicant has presented, as part of the permit application, specific, feasible plans for the proposed underground mining activities;

(b) The proposed underground mining activities are necessary or desirable to assure maximum practical recovery of the mineral resources and will avoid multiple future disturbances of surface land or waters;

(c) The applicant, pursuant to 405 KAR Chapters 7 through 24, has satisfactorily demonstrated that the applications for the surface mining activities and underground mining activities conform to the requirements of 405 KAR Chapters 7 through 24 and that all other permits necessary for the underground mining activities have been issued by the appropriate authority;

(d) The surface area of surface mining activities proposed for the variance has been shown by the applicant to be necessary for implementing the proposed underground mining activities;

(e) Substantial adverse environmental damage, either on-site or off-site, will not result from the delay in completion of reclamation otherwise required by KRS Chapter 350 and 405 KAR 16:020;

(f) The operations will, insofar as a variance is authorized, be conducted in compliance with the requirements of 405 KAR 16:010, Section 3 and other applicable requirements of KAR Title 405;

(g) Temporary off-site storage of spoil will comply with the requirements of KRS Chapter 350 and 405 KAR 18:190, Section 6;

(h) Liability pursuant to the performance bond required to be filed by the applicant with the cabinet pursuant to 405 KAR Chapter 10 will be for the duration of the underground mining activities and until all requirements of 405 KAR Chapter 10 have been complied with; and

(i) The permit for the surface mining activities contains specific conditions:

Specifying the particular surface areas for which a variance is authorized; and
Providing a detailed schedule for reclamation in lieu of requirements of the time frames established in 405 KAR 16:020, Section 2.

(4) Periodic review. A variance granted pursuant to a permit issued in accordance with this section shall be reviewed by the cabinet no later than three (3) years from the dates of issuance of the permit and any permit renewals.

Section 8. Coal Processing Plants Not Located Within the Permit Area of a Specified Mine.

(1) Applicability. This section applies to any person who operates or intends to operate a coal processing plant not within a permit area of a specific mine, other than located at the site of ultimate coal use.

(2) Permit required. Any person who operates or intends to construct or operate such a coal processing plant shall obtain a permit from the cabinet pursuant to 405 KAR Chapters 7 through 24.

(3) Previously exempted operations. This subsection applies only to those coal processing plants subject to 405 KAR 20:070, Section 5.

(a) On or before February 1, 1986, a person operating a coal processing plant who intends to operate after August 1, 1986 shall file an initially complete (as established in 405 KAR 8:010, Section 13(1)(a)) permit application pursuant to 405 KAR Chapters 7 through 24. A person shall not operate a coal processing plant after August 1, 1986 unless that operation is being conducted pursuant to a permit issued pursuant to 405 KAR Chapters 7 through 24, except that a person may continue to operate a coal processing plant after August 1, 1986 without a permit if:

An initially complete permit application has been timely filed. "Timely filed" shall mean filed on or before February 1, 1986, or if filed within that time but determined to be initially incomplete, resubmitted within fifteen (15) calendar days of being served notice by the cabinet that the application is initially incomplete. Notice shall be served in accordance with 400 KAR 1:110, Section 5.
The cabinet has yet to issue or deny the permit; and
The person complies with the performance standards of 405 KAR 20:070.

(b) The applicant shall file a performance bond pursuant to 405 KAR Chapter 10 within sixty (60) calendar days of being served notice of the decision by the cabinet to issue the permit.

Notice shall be served in accordance with 400 KAR 1:110, Section 5.
If the performance bond is not filed within that time the cabinet shall deny the permit application.

(c)

Any time limits for cabinet action established in 405 KAR 8:010 shall not apply to permit applications filed pursuant to this subsection.
The cabinet shall make every effort to timely review and issue or deny such permit applications prior to August 1, 1986.

(4) Application.

(a) Any application for a permit for operations covered by this section shall be in accordance with 405 KAR 8:030 and, as applicable, 405 KAR 8:050, and shall contain in the mining and reclamation plan, specific plans, including descriptions, maps and drawings of the construction, operation, maintenance, reclamation, and removal of the coal processing plants. The plan shall demonstrate that those operations will be conducted in compliance with 405 KAR 20:070.

(b) For permit applications for operations subject to subsection (3) of this section, the requirements of 405 KAR 8:030, Section 21, and 405 KAR 8:050, Section 3, shall not apply to lands disturbed by the coal processing plants prior to December 1, 1985.

(c) Permit applications for operations subject to subsection (3) of this section, which were timely filed in accordance with subsection (3)(a)1 of this section, need not contain the information required under 405 KAR 8:030, Sections 12, 13, 14(3), and 15(4). An applicant failing to make a timely filing shall be required to submit this information.

(5) Criteria for approval. A permit shall not be issued for any operation covered by this section unless the cabinet finds, in writing, that, in addition to meeting all other applicable requirements of this chapter, the operations will be conducted in compliance with the requirements of 405 KAR 20:070.

Section 9. Underground Only Permits.

(1) Applicability. This section applies to any person who conducts or intends to conduct an underground only operation, which does not have a surface disturbance.

(2) Application requirements. Any application for a permit for operations covered by this section shall be made according to all requirements of 405 KAR Chapter 8 applicable to underground mining activities.

(3) Criteria for approval. A permit shall be not be issued for an operation covered by this section unless the cabinet first finds, in writing, upon the basis of a complete application made in accordance with subsection (2) of this section that the operation will be conducted in compliance with all requirements of this chapter relating to underground mining activities, and 405 KAR 20:090 and 405 KAR 18:060, 18:070, 18:110, and 18:210.

(4) Bonding. A permit with an underground only area in the commonwealth shall comply with the bonding requirements of 405 KAR Chapter 10.

History

RELATES TO: KRS 350.093, 350.445, 350.450, 350.465
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.060, 350.093, 350.151, 350.450, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations pertaining to permits for surface coal mining and reclamation operations, including certain special categories of mining. This administrative regulation establishes permit application requirements for special mining categories, including mining on prime farmland, augering, in situ processes, off-site coal preparation plants, mountaintop removal mining, and mining on steep slopes. This administrative regulation establishes the only variance from the requirement to return to approximate original contour in steep slopes. This administrative regulation establishes the manner in which the contemporaneous reclamation requirements can be met for combined surface and underground mining activities.
History: 405 KAR 008:050. 8 Ky.R. 1511; eff. 1-6-1983; 12 Ky.R. 924; 1310; eff. 2-4-1986; 15 Ky.R. 432; eff. 12-13-1988, 44 Ky.R. 620, 1303; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

Chapter 10 Bond and Insurance Requirements

405 KAR 10:001 Definitions for 405 KAR Chapter 10 {#sec-405-kar-10-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:001}

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:

Acreage contained in a permit for which the entire permit has not been initially disturbed by the permittee after permit issuance;
Acreage contained in a permit, or increment thereof, that has completed initial reclamation and received a minimum of a Phase 1 bond release; or
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;

(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;

(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:

Was designated as a public road pursuant to the laws of the jurisdiction in which it is located;
Is maintained with public funds and constructed in a manner similar to other public roads of the same classification within the jurisdiction; and
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, subbituminous, 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:

Application; or
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:

Creates an imminent danger to the health or safety of the public; or
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)

Being a permittee of a surface coal mining operation;
Based on instruments of ownership or voting securities, owning of record in excess of fifty (50) percent of an entity; or
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:

Being an officer or director of an entity;
Being the operator of a surface coal mining operation;
Having the ability to commit the financial or real property assets or working resources of an entity;
Being a general partner in a partnership;
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
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.

History

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
STATUTORY AUTHORITY: KRS 350.028, 350.465, 350.500 - 350.521, 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. 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.
History: 18 Ky.R. 2468; 2842; eff. 4-3-1992; TAm eff. 8-9-2007; 40 Ky.R. 428; 1058; eff. 11-7-2013; 44 Ky.R. 625, 1307; eff. 1-5-2018; Crt eff. 7-3-2018; 45 Ky.R. 2979; 46 Ky.R. 908; eff. 9-10-2019; Crt eff. 8-31-2026.

405 KAR 10:015 General bonding provisions {#sec-405-kar-10-015 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:015}

Section 1. Bonding Requirements.

(1) An applicant shall not disturb surface acreage or extend an underground shaft, tunnel, or operation prior to receipt of approval from the cabinet of a performance bond covering an area to be affected by surface operations and facilities.

(2) After an application for a new, amended, revised, or renewed permit to conduct surface coal mining and reclamation operations has been approved pursuant to 405 KAR Chapter 8, but before the permit is issued, the applicant shall file with the cabinet, on Performance Bond, Form SME-42, a performance bond payable to the cabinet.

(a) The applicant shall file the Performance Bond, Form SME-42, for an operation on land other than federal lands, or the Performance Bond for Surface Coal Mining and Reclamation on Federal Lands, Form SME-42-F, for an operation on federal land.

(b) The performance bond shall be conditioned upon compliance with all of the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the provisions of the reclamation plan and permit, and shall cover all surface coal mining and reclamation operations to be conducted within the permit area or increment thereof until all reclamation requirements of 405 KAR Chapters 7 through 24 have been met.

(c) The amount, duration, type, conditions, and terms of the performance bond shall conform to the requirements of this administrative regulation.

(3) A permit shall not be revised or amended to include additional area unless the liability of the current bond is extended to cover the entire permit area or increment as revised or amended, and the liability of the supplemental bond covers the entire permit area as revised or amended. Unless these conditions are met with respect to the bond, the additional area shall be permitted as a separate increment of the current permit area or pursuant to a new permit.

(4) A rider to the applicable performance bond, confirming coverage of the revision, shall be submitted by the applicant if a revision to a permit does not change the acreage of the permit area or increment but:

(a) Adds a coal washer, a crush and load facility, a refuse pile, or a coal mine waste impoundment to the existing permit; or

(b) Alters the boundary of a permit area or increment.

Section 2. Terms and Conditions of Performance Bond.

(1) The performance bond shall be in an amount determined by the cabinet as established in Sections 6, 7, and 8 of this administrative regulation.

(2) The performance bond shall be payable to the cabinet.

(3) The performance bond shall be conditioned upon faithful performance of all of the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the conditions of the permit and shall cover the entire permit area or the incremental area as the cabinet has approved pursuant to Section 4(2) of this administrative regulation.

(4) The duration of the bond shall be for a time period established in Section 9 of this administrative regulation.

(5) Surety bonds shall be subject to the conditions established in paragraphs (a) through (d) of this subsection.

(a) The cabinet shall not accept the bond of a surety company unless the bond shall not be cancelable by the surety at any time for any reason.

Surety bond coverage for permitted lands not disturbed shall be cancelled only with the written approval of the cabinet, provided the surety gives written notice to both the permittee and the cabinet of the intent to cancel prior to the proposed cancellation.

a. A cancellation notice shall be by certified mail.

b. Cancellation shall not be effective for lands subject to bond coverage that are affected after receipt of notice, but prior to approval by the cabinet.

c. The cabinet shall approve a cancellation only if a replacement bond has been filed by the permittee, or if the permit area has been reduced by revision to the extent that the remaining bond amount, after cancellation, is sufficient to cover all the costs attributable to the completion of reclamation operations on the reduced permit area in accordance with Section 10 of this administrative regulation.

The cabinet shall advise the surety, within thirty (30) days after receipt of a notice to cancel bond, if the bond may be cancelled on an undisturbed area.

(b) The bond shall provide that the surety and the permittee shall be jointly and severally liable.

(c)

The surety shall give prompt notice to the permittee and the cabinet of a notice received or action filed alleging the insolvency or bankruptcy of the surety, or alleging violations of regulatory requirements that could result in suspension or revocation of the surety's license to do business.
In the event the surety becomes unable to fulfill its obligations pursuant to the bond, the surety shall promptly provide written notice to the permittee and the cabinet.
Upon the incapacity of a surety by reason of bankruptcy, insolvency, or suspension or revocation of its license or certificate of authority, the permittee shall be deemed to be without proper bond coverage and shall promptly notify the cabinet.

a. Nothing in this paragraph shall relieve the permittee of responsibility pursuant to the permit or the surety of liability on the permittee's bond.

b. The cabinet shall issue a notice to the permittee specifying a reasonable period to replace bond coverage, not to exceed ninety (90) days.

c. If an adequate bond is not posted by the end of the period allowed, the permittee shall cease coal extraction and coal processing operations and shall comply with the provisions of 405 KAR 16:010, Section 6, or 405 KAR 18:010, Section 4, and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan.

d. Coal extraction and coal processing operations shall not resume until the cabinet has determined that, in accordance with 405 KAR Chapters 7 through 24, an acceptable bond has been posted.

e. If an acceptable bond has not been posted by the end of the period allowed, the cabinet shall suspend the permit until acceptable bond, in accordance with 405 KAR Chapters 7 through 24, is posted.

(d) A surety bond shall be executed by the operator and a corporate surety licensed to do business in the Commonwealth of Kentucky.

(6) Collateral bonds may include cash deposits with the cabinet, certificates of deposit, or letters of credit. Collateral bonds, except for letters of credit, shall be subject to the conditions established in paragraphs (a) through (f) of this subsection.

(a) The cabinet or its authorized agent shall obtain possession of and keep in custody all collateral deposited by the applicant, until authorized for release or replacement as established in 405 KAR Chapter 10.

(b) The cabinet shall require that certificates of deposit be assigned to the cabinet or its authorized agent in writing, through the submittal of Escrow Agreement Form SME-64, and the assignment evidenced on the books of the bank issuing the certificates.

(c) The cabinet shall not accept an individual certificate of deposit unless it is issued by an FDIC or FSLIC insured financial institution, and the cabinet shall not in any circumstance accept a denomination in excess of the maximum insurable amount as determined by FDIC and FSLIC.

(d) The cabinet shall require the issuer of certificates of deposit to waive all rights of setoff or liens that it has or might have against those certificates.

(e) Persons with an interest in collateral posted as a bond, and who desire notification of actions pursuant to the bond, shall request the notification in writing to the cabinet upon an offering of collateral.

(f) The cabinet shall require the applicant to deposit sufficient amounts of certificates of deposit, so as to assure that the cabinet will be able to liquidate those certificates prior to maturity, upon forfeiture, for the amount of the bond required by this chapter.

(7) A letter of credit shall be subject to the conditions established in paragraphs (a) through (d) of this subsection.

(a)

The letter shall only be issued by a bank organized or authorized to do business in the United States.
A letter of credit issued by a non-Kentucky lending institution shall be confirmed by an approved Kentucky lending institution.

(b) A letter of credit shall be irrevocable.

(c) The letter shall be payable to the cabinet upon demand and receipt from the cabinet of a notice of forfeiture issued in accordance with 405 KAR 10:050, or in the event the bank wishes to terminate the letter on its expiration date, the cabinet may draw upon demand. The Irrevocable Standby Letter of Credit, Form SME-72, and the Confirmation of Irrevocable Standby Letter of Credit, form SME-72-A, shall be submitted to the cabinet, as necessary.

(d)

The issuer shall give prompt notice to the permittee and the cabinet of notice received or action filed alleging the insolvency or bankruptcy of the issuer, or alleging violations of regulatory requirements that could result in suspension or revocation of the issuer's charter or license to do business.
In the event the issuer becomes unable to fulfill its obligations pursuant to the letter of credit, notice shall be given immediately to the permittee and the cabinet.
Upon the incapacity of an issuer by reason of bankruptcy, insolvency, or suspension or revocation of its charter or license, the permittee shall be deemed to be without proper performance bond coverage and shall promptly notify the cabinet.

a. Nothing in this paragraph shall relieve the permittee of responsibility pursuant to the permit or the issuer of liability on the letter of credit.

b. The cabinet shall issue a notice to the permittee specifying a reasonable period to replace bond coverage, not to exceed ninety (90) days.

d. Coal extraction and coal processing operations shall not resume until the cabinet has determined that an acceptable bond has been posted.

e. If an acceptable bond has not been posted by the end of the period allowed, the cabinet shall suspend the permit until acceptable bond is posted.

(8) If a permittee chooses to combine two (2) or more bonds for one (1) permit area or increment, the bonds may be accompanied by a schedule, acceptable to the cabinet and agreed to by all parties, which sets forth the agreed distribution of bond amounts to be released or reduced pursuant to 405 KAR 10:040 and Section 10 of this administrative regulation, respectively. If no schedule is submitted, the cabinet may release equal percentages of each bond.

(9) Permit specific bonds posted by members of the Voluntary Bond Pool on existing permits prior to the establishment of the Kentucky Reclamation Guaranty Fund shall be released in their entirety upon successfully achieving reclamation Phase I bond release in accordance with 405 KAR 10:040, Section 2(4)(a). Permit specific bonds posted by members of the Voluntary Bond Pool on new permits after the establishment of the Kentucky Reclamation Guaranty Fund shall be released in equal percentages at each reclamation phase with the Kentucky Reclamation Guaranty Bond.

Section 3. Types of Performance Bond.

(1) The cabinet shall approve performance bonds of only those types established in this section.

(2) The performance bond shall be a:

(a) Surety bond;

(b) Collateral bond;

(d) Bond filed by the Voluntary Bond Pool; or

(e) Combination of the bond types listed in paragraphs (a) through (d) of this subsection.

(3) Bonds filed by the Voluntary Bond Pool prior to its repeal in 2013 Ky. Acts ch. 78, Section 12, shall be deemed valid and convey the same legal right as bonds issued by the KRGF. The amount, duration, conditions, and terms of bonds issued by the Voluntary Bond Pool shall be deemed in compliance with the requirements of this administrative regulation.

Section 4. Bonding Methods. The method of performance bonding for a permit area shall be selected by the applicant and approved by the cabinet prior to the issuance of a permit, and shall consist of one (1) of the methods established in subsections (1) or (2) of this section.

(1) Method "S" - single area bonding. A single area bond shall be a bond that covers the entire permit area as a single undivided area, for which the applicant shall file the entire bond amount required by the cabinet prior to issuance of the permit.

(a) Liability pursuant to the bond shall extend to every part of the permit area at all times.

(b) Except as established in Section 9(2) of this administrative regulation regarding extended bond liability, there shall not be a release of all or part of the bond amount for completion of a particular phase of reclamation on a part of the permit area pursuant to 405 KAR 10:040 until that phase of reclamation has been successfully completed on the entire permit area.

(2) Method "I" - incremental bonding. Incremental bonding shall be a method of bonding in which the permit area shall be divided into individual increments, each of which is bonded separately and independently, and for which a bond shall be filed as operations proceed through the permit area.

(a) The permit area shall be divided into distinct increments subject to approval by the cabinet based on this subsection.

Each increment shall be of sufficient size and configuration to provide for efficient reclamation operations should reclamation operations by the cabinet become necessary.
If the approved postmining land use is of such nature that successful implementation of the postmining land use capability depends upon an area being integrally reclaimed, then that area shall be contained within a single increment.
These increments shall be clearly identified on maps submitted in the permit application pursuant to 405 KAR Chapter 8, and the applicant shall describe the approximate time schedule for beginning operations in each increment.

(b) Prior to issuance of a permit, the applicant shall file with the cabinet the full bond amount required by the cabinet for the first increment or increments of the permit area to be disturbed, which shall be not less than the minimum bond required for the permit area required pursuant to Section 7 of this administrative regulation.

(c) The permittee shall not engage in surface coal mining and reclamation operations on an increment of the permit area unless the full bond amount required by the cabinet has been filed with the appropriate regional office of the department for that increment, the cabinet has verified the validity of the bond, and written authorization to conduct surface coal mining and reclamation operations on that increment is issued by the administrator of the regional office. Credit shall not be given for reclamation on other increments.

(d) The boundaries of each increment shall be physically marked at the site in a manner approved by the cabinet pursuant to 405 KAR 16:030.

(e) The bond amount for an increment shall be released or forfeited independently of another increment of the permit area, and liability pursuant to the performance bond shall extend only to the increment expressly covered by the bond. A single bond amount may be filed to cover more than one (1) increment, in which case the increments covered shall be treated as a single increment.

(f) Except as established in Section 9(2) of this administrative regulation regarding extended bond liability, there shall not be a release of bond for completion of a phase of reclamation on part of an increment until that phase of reclamation has been successfully completed on the entire increment.

(g) If the bond for an increment is completely released pursuant to 405 KAR 10:040, the increment shall be deleted from the permit area.

Section 5. Substitution of Bonds.

(1) The cabinet may allow permittees to substitute existing surety or collateral bonds for equivalent surety or collateral bonds, in which case the liability that has accrued against the permittee on the permit area or increment shall be transferred to the substitute bonds.

(2) The cabinet shall not release existing performance bonds until the permittee has submitted and the cabinet has, in accordance with 405 KAR Chapters 7 through 24, approved acceptable substitute performance bonds. A substitution of performance bonds pursuant to this section shall not constitute a release of bond pursuant to 405 KAR 10:040.

(3) The cabinet may refuse to allow substitution of bonds if an action for revocation or suspension of the permit covered by the bond is pending or if there is a pending action for forfeiture of the bond.

Section 6. Determination of Bond Amounts.

(1) In determining the bond amount, the cabinet shall estimate the cost to the cabinet if the cabinet had to perform the reclamation, restoration, and abatement work required of a person who conducts surface coal mining and reclamation operations pursuant to KRS Chapter 350, 405 KAR Chapters 7 through 24, and the permit, except as established in subsection (4) of this section. This amount shall be based on:

(a) The estimated costs submitted by the permittee in accordance with 405 KAR 8:030, Section 24(4), or 405 KAR 8:040, Section 24(4), or both if applicable;

(b) The additional estimated costs to the cabinet that may arise from applicable public contracting requirements or the need to bring personnel and equipment to the permit area after its abandonment by the permittee to perform reclamation, restoration, and abatement work;

(c) All additional estimated costs necessary, expedient, and incident to the satisfactory completion of the requirements established in this section;

(d) An additional amount based on factors of cost changes during the previous five (5) years for the types of activities associated with the reclamation to be performed; and

(e) Other cost information required or available to the cabinet.

(2) If the reclamation cost calculated submitted in a permit application is higher than the minimum bond or bond calculated by the cabinet, the higher calculation shall be used in any issued permit.

(3) The cabinet shall review the bonding amounts established in Sections 7 and 8 of this administrative regulation at a minimum of every two (2) years to determine if the amounts are adequate due to inflation and increases in reclamation costs.

(4) Full cost bonding participants shall provide the cabinet a cost estimate that reflects the costs of reclamation to the cabinet in accordance with the requirements of 405 KAR 10:080, Section 3.

Section 7. Minimum Bond Amount. The minimum amount of the bond for surface coal mining and reclamation operations at the time the permit is issued or amended shall be:

(1) $75,000 for the entire surface area under one (1) permit;

(2) $75,000 per increment for incrementally bonded permits, subject to Section 4(2) of this administrative regulation;

(3) $50,000 for a permit or increment operating on a previously mined area, as defined by of 405 KAR 8:001, Section 1(86), to be evaluated by the cabinet; or

(4) $10,000 for underground mines that have only underground operations.

Section 8. Bonding Rate of Additional Areas. Areas of a surface coal mine and reclamation operation shall be bonded at the rates established in subsections (1) through (7) of this section for a permit issued by the Division of Mine Permits.

(1) Coal haul roads, other mine access roads, and mine management areas shall be bonded at $2,500 per acre and each fraction thereof.

(2) Refuse disposal areas shall be bonded at a minimum rate of $7,500 per acre and each fraction thereof.

(3)

(a) An embankment sediment control pond shall be bonded at a rate of $10,000 per acre and each fraction thereof, with each pond being measured separately, if the pond is located off-bench and located downstream and outside the proposed mining or spoil storage area.

(b) This rate may be applied to partial embankment structures as necessary to meet the requirements of Section 6(1) of this administrative regulation.

(4) Coal preparation plants shall be bonded at the base acreage rate, in accordance with subsection (6) of this section, in addition to the costs associated with demolition and disposal costs relating to concrete, masonry, steel, timber, and other materials associated with surface coal mining and reclamation operations.

(5) Operations on a previously mined area, as defined by 405 KAR 8:001, Section 1(86), shall be bonded at rate of $2,000 per acre and each fraction thereof.

(6) All areas of surface coal mining and reclamation operations not otherwise addressed in subsections (1) through (5) of this section shall be bonded at the rate of $3,500 per acre and each fraction thereof.

(7)

(a) For permits that have been identified as requiring long-term treatment, the cabinet shall calculate an additional bond or other financial assurance instrument amount based on the estimated annual treatment cost, provided by the permittee and verified by the cabinet, multiplied by a factor of twenty-five (25) plus any capital costs of the treatment system.

(b) The long-term treatment cost estimate shall be subject to verification and acceptance by the cabinet. The department shall use its own estimate for annual treatment costs if the department cannot verify the accuracy of the permittee's estimate.

Section 9. Period of Liability.

(1) Liability pursuant to a performance bond applicable to an entire permit area or increment thereof shall continue until all reclamation, restoration, and abatement work required of persons who conduct surface coal mining and reclamation operations pursuant to requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the provisions of the permit have been completed, and the permit or increment terminated by release of the permittee from further liability in accordance with 405 KAR 10:040.

(2) In addition to the period necessary to achieve compliance with all of the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the permit, including the standards for the success of revegetation as required by 405 KAR 16:200 and 405 KAR 18:200, the period of liability pursuant to a performance bond shall continue for a period of five (5) years beginning with the last year of augmented seeding, fertilizing, irrigation, or other work.

(a) The period of liability shall begin again upon augmented seeding, fertilizing, irrigation, or other work required or conducted on the site prior to bond release.

(b) Isolated and clearly defined portions of a bonded area requiring extended liability because of augmentation may be separated from the original area and bonded separately upon approval by the cabinet.

(c) These areas shall be limited in extent, and not constitute a scattered, intermittent, or checkerboard pattern of failure.

(d) Access to the separated areas for remedial work may be included in the area pursuant to extended liability if necessary.

(3) If the cabinet approves a long-term intensive agricultural postmining land use in accordance with 405 KAR 16:210, augmented seeding, fertilization, irrigation, or other husbandry practices normally associated with the approved postmining land use shall not require restarting the five (5) year period of liability.

(4) The bond liability of the permittee shall include only those actions that the permittee is required to take pursuant to the permit, including completion of the reclamation plan in a manner that the land shall be capable of supporting a postmining land use approved pursuant to 405 KAR 16:210. Actions of third parties beyond the control and influence of the permittee and for which the permittee is not responsible pursuant to the permit shall not be covered by the bond.

Section 10. Adjustment of Amount.

(1) The amount of the performance bond liability applicable to a permit or increment shall be adjusted by the cabinet if the:

(a) Acreage in the permit area or increment is either increased or decreased; or

(b) Cabinet determines that the cost of future reclamation, restoration, or abatement work has changed. If it is determined that an adjustment pursuant to this paragraph is necessary, the cabinet shall:

Notify the permittee, the surety, and any person with a property interest in collateral who has previously requested a notification in writing; and
Provide the permittee an opportunity for an informal conference on the adjustment. The requirements of 400 KAR 1:090 and 400 KAR 1:110 shall not apply to the conduct of the conference.

(2) The amount of the performance bond liability applicable to a permit or increment may be adjusted by the cabinet upon application by the permittee pursuant to 405 KAR 8:010, Section 20, to delete acreage from the permit area or increment thereof if the acreage has not been affected by the surface coal mining and reclamation operation. The provisions of 405 KAR 10:040, Section 2(3), shall apply. A reduction due to a deletion of acreage shall not constitute a bond release and shall not be subject to the procedures of 405 KAR 10:040, Section 1.

(3) The cabinet may grant reduction of the required performance bond amount if the permittee's method of operation or other circumstances will reduce the maximum estimated cost to the cabinet to complete the reclamation responsibilities and therefore warrant a reduction of the bond amount. The request shall not be considered as a request for partial bond release subject to the procedures of 405 KAR 10:040, Section 1.

(4) The cabinet shall refuse to approve a reduction of the performance bond liability amount if an action for revocation or suspension of the permit covered by the bond is pending, if there is a pending action for forfeiture of the bond, or if the permittee is currently in violation of 405 KAR Chapters 7 through 24 on that permit or increment.

Section 11. Supplemental Assurance.

(1) If alternative distance limits or additional pits are approved pursuant to 405 KAR 16:020, Section 3., the applicant shall submit to the cabinet supplemental assurance in the amount established in this section. This supplemental assurance shall be for the purpose of assuring the reclamation of the additional unreclaimed disturbed area and shall be in addition to the performance bond required pursuant to 405 KAR Chapter 10. The applicant shall submit supplemental assurance on the cabinet form, Supplemental Assurance, SME-42 (SA). This form shall be accompanied by the Escrow Agreement form (for use with Supplemental Assurance form only), SME-64 (SA).

(a) The supplemental assurance shall not be subject to the bond release requirements of 405 KAR 10:040, but shall be returned in accordance with the requirements of this section.

(b) The requirements of Sections 2, 3, and 5 of this administrative regulation and 405 KAR 10:035 and 10:050 shall apply to supplemental assurance.

(2) Single seam contour mining. For single seam contour operations subject to 405 KAR 16:020, Section 3., the amount required shall be $150,000 per 1,500 feet, or any portion thereof, of additional distance approved for the first pit pursuant to 405 KAR 16:020, Section 3.. If an additional pit or pits are approved, the amount shall be $150,000 per 1,500 feet, or any portion thereof, including the first 1,500 feet of each additional pit.

(3) Multiple seam contour mining. For multiple seam contour mining operations subject to of 405 KAR 16:020, Section 3(6), the amount required shall be $150,000 per 1,500 feet, or any portion thereof, of additional distance approved for the first multiple seam operation pursuant to of 405 KAR 16:020, Section 3.. If additional multiple seam operations are approved, the amount shall be $150,000 per 1,500 feet, or any portion thereof, including the first 1,500 feet of each additional multiple seam operation.

(4) Mountaintop removal. If a mountaintop removal operation begins by mining a contour cut around all or a portion of the mountaintop, that contour portion shall require the same supplemental assurance established in subsection (2) of this section.

(5) Area mining. The amount required shall be $150,000 for any four (4) spoil ridges, or any portion thereof, of additional distance approved for the first pit pursuant to 405 KAR 16:020, Section 3.. If an additional pit or pits are approved, the amount shall be $150,000 for any four (4) spoil ridges, or any portion thereof, including the first four (4) spoil ridges of each additional pit.

(6) Return of supplemental assurance. Supplemental assurance shall be returned to the person that submitted it upon:

(a) Application to the cabinet for the return; and

(b) Inspection and written documentation (including photographs) by the cabinet verifying that the area for which the supplemental assurance was submitted has been backfilled and graded (or in the case of mountaintop removal, the associated highwall has been eliminated by mining operations).

Section 12. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Performance Bond, Form SME-42", June 2013;

(b) "Irrevocable Standby Letter of Credit, Form SME-72", July 1994;

(d) "Supplemental Assurance, SME-42 (SA)", July 1994;

(e) "Escrow Agreement (for use with Supplemental Assurance form only), SME-64 (SA)", July 1994;

(f) "Escrow Agreement, Form SME-64", October 2008; and

(g) "Performance Bond for Surface Coal Mining and Reclamation on Federal Lands, Form SME-42-F", June 2013.

History

RELATES TO: KRS 350.020, 350.060, 350.062, 350.064, 350.093, 350.095, 350.100, 350.151, 350.465
STATUTORY AUTHORITY: KRS 350.060, 350.062, 350.064, 350.093, 350.095, 350.100, 350.151, 350.465, 350.515, 350.518
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 authorizes the cabinet to promulgate administrative regulations to establish procedures for determining amounts for performance bonds for surface coal mining operations. This administrative regulation establishes criteria for the base determination of bond amounts and requires certain periods of liability during which the bonds shall remain in effect. This administrative regulation establishes requirements for filing and maintaining performance bonds and provides for adjustments in bond amounts and additional information related to minimum bonds and application of bonds to ensure performance of the requirements of KRS Chapter 350 in the event work is performed by the cabinet, taking into consideration such things as topography, geology, future land use, and the difficulty of reclamation.
History: 38 Ky.R. 2004; 39 Ky.R. 467; eff. 9-6-2012; 40 Ky.R. 431; 1061; eff. 11-7-2013; TAm eff. 7-6-2016; TAm eff. 3-28-2018; TAm eff. 5-4-2018; Crt eff. 7-3-2018; 45 Ky.R. 2982; 46 Ky.R. 908; eff. 9-10-2019; Crt eff. 8-31-2026.

405 KAR 10:025 Extension of performance bond subsidization {#sec-405-kar-10-025 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:025}

Section 1. Applicability. This administrative regulation shall apply only to an entity seeking to obtain by transfer the permit of a current member of the KRGF who was a member of the former Kentucky Voluntary Bond Pool.

Section 2. Performance Bond Subsidization.

(1) Performance bond subsidization shall be extended to an applicant who was not a member of the former voluntary bond pool fund prior to its dissolution if the:

(a) Applicant intends to obtain its permit by transfer from a member of the former Kentucky Voluntary Bond Pool;

(b) Permit to which the applicant intends to succeed meets one (1) or more of the criteria for the cabinet to seek bond forfeiture under 405 KAR 10:050, Section 3;

(d) Commission determines it is in the best interest of the KRGF pursuant to KRS 350.509(1).

(2) If the commission determines the criteria for performance bond subsidization extension have been met, the bonds previously issued by the KRGF to the member of the former voluntary bond pool fund shall be substituted for bonds newly issued by the KRGF in accordance with the provisions of 405 KAR 10:015, Section 5.

(3) Subsequent to the extension of performance bond subsidization for the issuance of a successor permit pursuant to subsection (2) of this section, the KRGF may extend additional subsidization to the permittee for the permit to enable the permittee to complete mining and reclamation operations, if the commission determines it is in the best interest of the KRGF. The commission shall review an applicant's ability to meet the approval requirements of this administrative regulation upon application for additional subsidization.

(4) Only a permit with a bond previously covered by the former voluntary bond pool fund shall be eligible for performance bond subsidization. Other permits held by the applicant shall not be subsidized by the KRGF.

Section 3. Applicant Criteria.

(1) Applicants for extension of performance bond subsidization shall submit an application on the Application for Performance Bond Subsidization for Permit Succession, RGF-4 form, which shall include:

(a) Identification of the permittee which the applicant wishes to succeed;

(b) Identification of permits the applicant intends to obtain by transfer;

(d) Any other information the commission needs to make a determination.

(2)

(a) The commission shall consider applications on a case-by-case basis and meeting the criteria under this section shall not be grounds for automatic performance bond subsidization. An applicant shall be allowed thirty (30) calendar days after receipt of the commission's determination to contest the determination in writing.

(b) The written notice shall include:

An explanation of the nature of the contest; and
The documentation relied upon by the applicant.

(3) The applicant for extended performance bond subsidization shall be in good financial standing. The financial standing of the applicant shall be determined based upon the financial information required in the application and other information available to the KRGF and the cabinet. The commission shall consider the financial ratios of:

(a) Current assets to current liabilities;

(b) Net income to net sales;

(d) Net income to owners' equity;

(e) Owners' equity to total assets; and

(f) The sum of cash, marketable securities, and net receivables, to current liabilities.

(4) The applicant for extended performance bond subsidization shall have held, under the same name or other name as provided in subsection (5) of this section, a permit issued by the cabinet to conduct surface mining operations in Kentucky or by an authorized agency governing surface mining operations in another state or territory, for a period of at least five (5) of the seven (7) years immediately preceding the application for extended performance bond subsidization, and have exhibited an approved compliance record as detailed by Section 4 of this administrative regulation.

(5) If the applicant cannot satisfy the requirements of subsection (4) of this section, then the following types of permits held by persons other than the applicant may be used to satisfy those requirements:

(a) A permit issued to a person who owns fifty (50) percent or more of the applicant;

(b) A permit issued to a person who is owned fifty (50) percent or more by a person meeting the requirements of subsection (4) of this section; or

(c) A permit issued to a person whose combined ownership of the applicant is fifty (50) percent or more, provided each person meets the requirements set forth in subsection (4) of this section.

Section 4. Determination of Compliance Record.

(1) An applicant shall be deemed to have an approved compliance record if the applicant, each person who owns or controls the applicant, each person who is owned or controlled by the applicant, and each person who is under common ownership and control with the applicant meet all of the criteria established in paragraphs (a) through (i) of this subsection. Each party established in this subsection shall have:

(a) Never committed a violation for mining without having first obtained the required permit;

(b) Never forfeited a bond or had a permit revoked;

(d) Never been determined to have demonstrated a pattern of violations;

(e) Not been issued more than one (1) order for cessation and immediate compliance for failure to complete required remedial measures in the most recent thirty-six (36) months of operation and the order was abated as ordered in a timely manner and was not for a violation of contemporaneous reclamation requirements under 405 KAR 16:020 or 18:020 or other applicable state or federal statute or regulation;

(f) Not been issued more than one (1) order for cessation and immediate compliance for creating an imminent danger to the health and safety of the public or causing significant, imminent environmental harm in the most recent thirty-six (36) months of operation and the order was abated as ordered in a timely manner;

(g) Not committed more than one (1) violation of contemporaneous reclamation requirements under 405 KAR 16:020 or 18:020 or other applicable state or federal statute or regulation in the most recent thirty-six (36) months of operation and the violation was abated in a timely manner, except the commission may by unanimous vote exclude violations that have been terminated with no civil penalty;

(h) Not committed more than three (3) violations of KRS Chapter 350 or 405 KAR Chapters 7 through 24 or other applicable state or federal statute or regulation on any one (1) permit in any twelve (12) month period of the most recent thirty-six (36) months of operation, except the commission may by unanimous vote exclude the twelve (12) month period on one (1) permit during which the largest number of violations occurred and may by unanimous vote exclude violations that were timely abated and terminated with no civil penalty; and

(i) Not had civil penalties remaining unpaid more than thirty (30) days after they were due and payable, within the most recent thirty-six (36) months of operation.

(2) To the extent the information is available, the commission shall take into account the performance of the applicant and each person who owns or controls, is owned or controlled by, or is under common ownership or control with the applicant, in other states and on federal lands and Indian lands under criteria similar or equivalent to those in this section.

Section 5. Compliance Review for Continued Subsidization.

(1) The commission shall review the compliance record of former applicants for extended bond subsidization.

(2) If the commission determines that the permittee no longer satisfies any of the criteria in Section 4(1) of this administrative regulation, it shall advise the cabinet that the permittee is no longer eligible for performance bond subsidization.

(3) Upon receipt of this notice, the cabinet shall immediately order the permittee to cease surface coal mining operations on that permit until it has obtained alternate bond coverage.

(4) During the period of cessation, the permittee shall maintain the permit in compliance with the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24.

Section 6. Permit Specific Bond.

(1) For each permit obtained by transfer from a member of the former voluntary bond pool fund, a permit-specific bond at a rate of $2,000 per acre shall be posted.

(2) Permit specific bonds posted pursuant to this section shall be released in accordance with the provisions of 405 KAR 10:015, Section 2.

Section 7. Incorporation by Reference.

(1) "Application for Performance Bond Subsidization for Permit Succession", RGF-4, April 2014, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Department for Natural Resources, 300 Sower Boulevard, Frankfort, KY 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 350.020, 350.060, 350.062, 350.064, 350.093, 350.095, 350.100, 350.110, 350.151, 350.465, 350.500 – 350.521
STATUTORY AUTHORITY: KRS 350.060, 350.062, 350.064, 350.093, 350.095, 350.100, 350.151, 350.465, 350.518(5)
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 authorizes the cabinet to promulgate administrative regulations to ensure bonds are adequate to perform reclamation in the event of forfeiture. This administrative regulation establishes information related to the operation of the Kentucky Reclamation Guaranty Fund.
History: 405 KAR 010:025. 41 Ky.R. 338; 1053; eff. 12-5-2014; TAm eff. 7-6-2016; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 10:030 General requirements for liability insurance {#sec-405-kar-10-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:030}

Section 1. Requirement to File a Certificate of Liability Insurance. Each applicant for a permit shall submit to the cabinet, as part of the permit application, a certificate issued by an insurance company authorized to do business in Kentucky. The amount, duration, form, conditions, and terms of this insurance shall comply with Section 2 of this administrative regulation.

Section 2. Terms and Conditions for Liability Insurance.

(1) The applicant shall submit, as a part of the permit application upon bond submission, a certificate issued by an insurance company authorized to do business in Kentucky certifying that the applicant has a public liability insurance policy in force for the surface coal mining and reclamation operation for which the permit is sought.

(a) The certification shall be on Certificate of Liability Insurance, Form SME-29.

(b) The policy shall provide for personal injury and property damage protection in an amount adequate to compensate for all personal injury and property damage resulting from surface coal mining and reclamation operations, including damage caused by the use of explosives and damage to water wells.

(c) Minimum insurance coverage for bodily injury and property damage shall be $300,000 for each occurrence and $500,000 aggregate.

(2) The policy shall be maintained in full force during the term of the permit or renewal thereof, and during the liability period necessary to complete all reclamation operations pursuant to 405 KAR Chapters 7 through 24, until full bond release has been granted.

(3) The policy shall include a clause requiring that the insurer notify the cabinet if substantive changes are made in the policy, including termination or failure to renew. This notice shall be made on the Notice of Cancellation, Nonrenewal or Change of Liability Insurance.

(4) In the event the insurer becomes unable to fulfill its obligations pursuant to the policy, notice shall be given immediately to the permittee and the cabinet.

(5) Upon the incapacity of an insurer by reason of bankruptcy, insolvency, or suspension or revocation of its license or certificate of authority, the permittee shall be deemed to be without insurance coverage and shall promptly notify the cabinet.

(a) Nothing in this subsection shall relieve the insurer of liability on its policy.

(b) The cabinet shall issue a notice to the permittee specifying a reasonable period to replace such coverage, not to exceed ninety (90) days.

(c) If an adequate insurance coverage is not posted by the end of the period allowed, the permittee shall cease coal extraction and coal processing operations and shall comply with the provisions of 405 KAR 16:010, Section 6, or 405 KAR 18:010, Section 4, and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan.

(d) Coal extraction and coal processing operations shall not resume until the cabinet has determined that an acceptable insurance coverage has been posted.

(e) If an acceptable insurance coverage has not been posted by the end of the period allowed, the cabinet may suspend the permit until acceptable insurance coverage is posted.

Section 3. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Certificate of Liability Insurance, Form SME-29", March 2018; and

(b) "Notice of Cancellation, Nonrenewal or Change of Liability Insurance, Form SME-30", March 2018.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Department for Natural Resources, 300 Sower Boulevard, Frankfort, KY 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 350.020, 350.060, 350.064, 350.100, 350.465
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.060, 350.064, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to specify types, terms, and conditions for liability insurance for surface coal mining operations. This administrative regulation specifies the terms and conditions of liability insurance for surface coal mining operations.
History: 405 KAR 010:030. 8 Ky.R. 1518; eff. 1-6-1983; 12 Ky.R. 579; eff. 12-10-1985; 15 Ky.R. 443; 1070; eff. 12-13-1988; 38 Ky.R. 2004; 39 Ky.R. 471; eff. 9-6-2012; TAm eff. 7-6-2016; TAm eff. 3-28-2018; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 10:035 Procedures, criteria and hearing requirements for cancellation of surety bonds after notice of noncompliance issued for failure to maintain contemporaneous reclamation {#sec-405-kar-10-035 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:035}

Section 1. Procedures for Request for and Notice of Surety Bond Cancellation.

(1) Notice of intent to cancel.

(a) After the issuance, on or after July 13, 1984, of a notice of noncompliance for failure to maintain contemporaneous reclamation, the surety obligated on the performance bond for the permit or any increment thereof may send notice to the insured and to the department, of its intent to request cancellation of bond coverage on any area disturbed after thirty (30) days from the effective date of the surety's notice of intent to cancel, if the violation is not abated.

(b) The notice of intent to cancel shall be sent by certified mail, return receipt requested, to the insured, and a copy to the Director of the Division of Field Services, of the department. The effective date of the notice of intent to cancel shall be the date on which it is received by the insured or seven (7) days after mailing of the notice by certified mail, return receipt requested, to the address contained on the permit application and any other address known to the insurer, whichever occurs first.

(c) The notice of intent to cancel shall be signed by an officer, director, or attorney-in-fact of the surety company and contain at a minimum the following:

Name of permittee;
Permit number and increment number, if applicable;
Name of surety;
Bond number and amount;
Date of issuance of notice of noncompliance and noncompliance number;
Date of notice of intent to cancel; and
A copy of a power-of-attorney, if applicable.

(2) Notice of cancellation.

(a) If the surety elects to cancel pursuant to its notice of intent to cancel, the surety shall send a notice of cancellation to the insured by certified mail, return receipt requested. A copy of said notice shall also be sent to the Director of the Division of Field Services by certified mail, return receipt requested.

(b) The notice of cancellation shall be on a form specified by the cabinet and shall be sworn to by an officer, director or attorney-in-fact of the surety, notarized and contain at a minimum the following:

Name of permittee and permit number;
Increment number, if applicable;
Name of surety and bond number;
Date of issuance of notice of noncompliance and noncompliance number;
Date the notice of intent to cancel was received by permittee;
Date of notice of cancellation;
A statement that the violation has not been abated within thirty (30) days of the effective date of the notice of intent to cancel;
A statement that the surety acknowledges that it will not be relieved of its liability for areas disturbed prior to the department's approval of cancellation;
A request for the cabinet to approve the notice of cancellation; and
A copy of a power-of-attorney, if applicable.

(3) Cabinet approval of cancellation. Within thirty (30) days of receipt of the notice of cancellation, the cabinet shall approve the surety's notice of cancellation in writing, only if the following conditions exist:

(a) The violation has not been abated by the permittee; and

(b) The surety has complied with the notice requirements of subsection (1) and (2) of this section; and

Revoked the permit by order of the commissioner of the department; or
Deleted the area subject to the cancellation by order of the commissioner of the department; or
Accepted and approved a substitute bond submitted by the permittee.

Section 2. Procedures for Permit Revocation or Deletion of the Areas Subject to Cancellation. The cabinet shall by order delete the areas subject to bond cancellation or revoke the permit for the entire permit area within thirty (30) days from receipt of the surety's notice of cancellation, without prior hearing, unless an acceptable substitute bond has been submitted to the cabinet.

(1) The order shall be issued by the commissioner of the department, without prior hearing, based upon information available to the cabinet and the surety's notice of cancellation.

(2) The permittee may request a hearing on the order of the commissioner pursuant to KRS 224.081(2).

(a) A hearing requested pursuant to KRS 224.081(2) shall be requested within thirty (30) days of entry of the order of the commissioner.

(b) The order of the commissioner shall be affirmed unless the permittee can affirmatively establish that bond coverage was not cancelled and the violation was abated at the time of entry of the commissioner's order, or that substitute bond was approved by the cabinet.

(c) Within thirty (30) days after entry of the order of the commissioner, the order may be rescinded if the permittee can demonstrate that a substitute bond has been accepted and approved by the cabinet and the violations have been abated.

Section 3. Procedures for Bond Release or Forfeiture After Approval of Cancellation.

(1) The cabinet shall not release any portion of a bond for a permit area or increment thereof, including but not limited to undisturbed acreage, after cancellation, unless and until all disturbed areas on the permit or increment have been reclaimed to the standards set forth in KRS Chapter 350 and the administrative regulations promulgated pursuant thereto, or substitute bond has been filed and approved by the cabinet and the substitute surety has expressly assumed liability for all disturbed areas of the permit or increment.

(2) In the event of bond forfeiture the entire bond held by the cabinet shall be forfeited upon order of the secretary pursuant to KRS Chapter 350 and the administrative regulations pursuant thereto.

History

RELATES TO: KRS 350.020, 350.060, 350.062, 350.064, 350.068, 350.151, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.060, 350.064, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part provides authority for the cabinet to approve the cancellation of surety bonds upon notice by the surety when a notice of noncompliance is issued for failure to maintain contemporaneous reclamation. This administrative regulation specifies the procedures and criteria for surety bond cancellation. This administrative regulation also sets forth certain notice and hearing requirements relating to surety bond cancellation.
History: 405 KAR 010:035. 11 Ky.R. 331; 577; eff. 10-9-1984; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 10:040 Procedures, criteria and schedule for release of performance bond {#sec-405-kar-10-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:040}

Section 1. Procedures for Release of Performance Bond.

(1) Application for bond release. The permittee or any person authorized to act on his or her behalf may or the cabinet shall, initiate an application for release of all or part of the performance bond liability applicable to a particular permit or increment after all reclamation, restoration and abatement work in a reclamation phase as defined in Section 2(4) of this administrative regulation has been completed on the entire permit area or increment.

(a) Bond release applications may only be filed at times or seasons that allow the cabinet to evaluate properly the reclamation operations alleged to have been completed.

(b) Within thirty (30) days of the initiation of any bond release request, the permittee shall submit copies of letters which it has sent to adjoining property owners, surface owners (their agents and lessees), local governmental bodies, planning agencies, sewage and water treatment authorities, and water companies in the locality in which the surface coal mining and reclamation operation took place, notifying them of the intention to seek release from the bond. For bond releases initiated by the cabinet, the cabinet shall undertake the notification requirements set forth in this subsection. The notices shall also state that these individuals and their representatives may participate in a bond release inspection by contacting the cabinet. These notices shall be sent at the time the permittee initiates the application for release.

(c) Upon the filing of an application for bond release by a permittee, or the initiation of such release by the cabinet, the cabinet shall notify, by certified mail, within thirty (30) days of such filing or initiation, the municipality or county judge-executive where the surface coal mining operation is located.

(d) Within thirty (30) days after advertising an application for bond release as per the requirements of subsection (2) of this section, the permittee, or the cabinet if it elected to advertise as per subsection (2) of this section, shall submit proof of said publication. Proof of publication shall be placed, by the cabinet, with the bond release application. Such proof of publication shall be considered part of the bond release application.

(2) Public notice. At the time of initiating an application for bond release under this section, the permittee shall, and the cabinet may at permittee expense, advertise the filing of the application in the newspaper of largest bona fide circulation according to the definition in KRS 424.110 to 424.120 in the county or counties in which the permit area is located. Said advertisement shall begin within sixty (60) days of the initiation of any application for bond release whether said bond release application is initiated by the permittee or the cabinet. Should the cabinet initiate a bond release pursuant to this subsection but choose not to advertise the release pursuant to this section, and the permittee does not advertise the request for the release within the time schedules established by this subsection, the bond release application shall be denied. The advertisement shall be placed in the newspaper at least once a week for four (4) consecutive weeks. The advertisement shall contain:

(a) The name of the permittee, the permit number and the date of issuance or renewal of the permit or increment;

(b) The precise location and the number of acres of the lands subject to the application;

(c) The type and total amount of bond filed for the permit area or increment and the reclamation phase for which release is sought;

(d) The type and approximate dates of reclamation work performed;

(e) A description of the results achieved as they relate to the permittee's approved reclamation plan;

(f) A statement that written comments, objections, and requests for a public hearing may be submitted to the cabinet, provide the appropriate address of the cabinet, and the closing date by which comments, objections, and requests must be received;

(g) A statement that a public hearing has been scheduled, including the date and location of the hearing; and

(h) A statement that the schedule public hearing shall be cancelled if the cabinet does not receive a request for the public hearing by the closing date for requests for hearing.

(3) Objections, comments or requests for public hearing prior to bond release.

(a) Any person with a valid legal interest which might be adversely affected by release of the bond, or the responsible officer or head of any federal, state, or local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation or which is authorized to develop and enforce environmental standards with respect to such operations, shall have the right to file written objections to the proposed release from bond and, if desired, file a request for a public hearing with the cabinet within thirty (30) days after the last publication of the notice required by subsection (2) of this section.

(b) The cabinet shall schedule a public hearing for each request for bond release, such hearing to be scheduled within five (5) working days of the end of the public comment period. If the cabinet does not receive a request for a public hearing by the end of the public comment period, the cabinet shall cancel the public hearing. The public hearing shall be held in the locality of the surface coal mining operation for which bond release is sought. The person requesting the release shall contact the cabinet prior to beginning advertisements under subsection (2) of this section to obtain the date and location of the public hearing in order to include this information in the advertisement.

(c) The hearing under paragraph (b) of this subsection shall be legislative in nature and the provisions of 400 KAR 1:090 and 400 KAR 1:110 shall not apply. The cabinet shall have the authority to administer oaths, subpoena witnesses or written or printed material, compel the attendance of witnesses or the production of materials, and take evidence including, but not limited to, inspection of the land affected and other surface coal mining operations carried on by the applicant in the general vicinity. A verbatim record of each public hearing shall be made, and a transcript shall be made available on the motion of any party or by order of the cabinet.

(d) Without prejudice to the right of an objector or the applicant and upon agreement of all parties, the cabinet may hold an informal conference in accordance with the procedures in 405 KAR 8:010, Section 11 for permit conferences to resolve such written objections in lieu of the public hearing under paragraph (b) of this subsection. The informal conference shall be held at the same time and location as was scheduled for the public hearing. The cabinet shall make a record of the informal conference unless waived by all parties, which shall be accessible to all parties. The cabinet shall also furnish all parties of the informal conference with a written finding of the cabinet on the informal conference, and the reasons for said finding.

(4) Inspection and evaluation. The cabinet shall inspect and evaluate the reclamation work involved within thirty (30) days after initiation of a bond release request by the permittee, or any person authorized to act on his or her behalf, or as soon thereafter as weather conditions permit. The evaluation shall consider, among other factors, the degree of difficulty to complete any remaining reclamation, whether pollution of surface and subsurface water is occurring, the probability of future occurrence of such pollution, and the estimated cost of abating such pollution. The surface owner, agent, or lessee known to the cabinet shall be given notice of such inspection and may participate with the cabinet in making the bond release inspection. The cabinet may arrange with the permittee to allow access to the permit area, upon request by any person with an interest in bond release, for the purpose of gathering information relevant to the proceeding.

(5)

(a) Notice of decision. The cabinet shall as described in paragraph (b) of this subsection provide notification in writing of its decision to release or not to release all or part of the performance bond within five (5) days following receipt of proof of public advertisement as required in this section, or within five (5) days of the end of the thirty (30) day public comment period provided for in subsection (3) of this section, whichever is later. Provided, however, that if an informal conference or public hearing has been requested pursuant to subsection (3) of this section, the cabinet shall provide its notice of decision within thirty (30) days following said informal conference or public hearing.

(b) The notice of the decision shall state the reasons for the decision, recommend any corrective actions necessary to secure the release, and notify the permittee, the surety, any person with an interest in collateral who has previously requested such notification in writing, persons who filed objections in writing, and objectors who were a party to the informal conference or public hearing of their right to request, within thirty (30) days of notice, a formal hearing as provided for by subsection (6) of this section. Where the decision is to release all or part of the performance bond, the notice shall state that the release shall occur fourteen (14) days after the date of the decision unless temporary relief is granted under 400 KAR 1:110, Section 12.

(c) In no event shall the cabinet disapprove an application for reclamation phase I or II release of a surety bond or a bond secured by a letter of credit solely upon the permittee's failure to pay penalties or fines, if applicable reclamation requirements for the requested release have been fully met.

(6) Requests for formal hearing after bond release or denial. Any person aggrieved by the decision of the cabinet to approve or disapprove a bond release application, in whole or in part, shall have the right to request a formal hearing pursuant to 400 KAR 1:110, Section 9. When the cabinet has decided to release all or part of the performance bond, the release shall not occur until fourteen (14) days after the date of the decision. At the end of that fourteen (14) days, the cabinet shall effect the release unless temporary relief is granted under 400 KAR 1:110, Section 12.

Section 2. Criteria and Schedule for Release of Performance Bond.

(1) Monies pledged under performance bonds shall not be eligible for release until the permittee has met the requirements of the applicable reclamation phase as defined in subsection (4) of this section. The cabinet may release portions of the monies pledged under performance bonds applicable to a permit or increment following completion of reclamation phases on the entire permit area or entire increment.

(2) The maximum portion of the monies pledged under performance bonds applicable to a permit area which may be released shall be calculated on the following basis:

(a) Release an amount not to exceed sixty (60) percent of the total original bond amount on the permit area, section, or increment upon completion of phase I reclamation.

(b) Release an additional amount not to exceed twenty-five (25) percent of the total original bond amount on the permit area or increment upon completion of phase II reclamation, but in all cases the amount remaining shall be sufficient to reestablish vegetation and reconstruct any drainage structures.

(c) Release the remaining portion of the total performance bond on an entire permit area or increment after standards of phase III reclamation have been attained on the entire permit area or increment and final inspection and procedures of Section 1 of this administrative regulation have been satisfied. After the final bond release for phase III reclamation on an increment, the increment shall be deleted from the permit area.

(3) The cabinet shall not release any monies pledged under performance bonds applicable to a permit if such release would reduce the total remaining monies pledged under performance bonds to an amount less than that necessary for the cabinet to complete the approved reclamation plan, achieve compliance with the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24 or the permit, and abate any significant environmental harm to air, water or land resources or danger to the public health and safety which might occur prior to the release of all performance bond liability for the permit area.

(4) Reclamation phases are defined as follows:

(a) Reclamation phase I shall be deemed to have been completed on the entire permit area or increment when the permittee completes backfilling, regrading, topsoil replacement, and drainage control including soil preparation and initial seeding and mulching in accordance with the approved reclamation plan and a report for the area has been submitted to the cabinet in accordance with 405 KAR 16:200, Section 8 or 405 KAR 18:200, Section 8;

(b) Reclamation phase II shall be deemed to have been completed on the entire permit area or increment when:

Revegetation has been established in accordance with the approved reclamation plan and the standards for the success of revegetation, except productivity standards, have been met;
The lands are not contributing suspended solids to stream flow or run off outside the permit area or increment in excess of the requirements of KRS 350.420, 405 KAR Chapters 16 or 18, or the permit;
With respect to prime farmlands, soil productivity has been restored as required by 405 KAR 20:040, Section 6 and the plan approved under 405 KAR 8:050, Section 3; and
The provisions of a plan approved by the cabinet for the sound future management of any permanent impoundment by the permittee or landowner have been implemented to the satisfaction of the cabinet.

(c) Reclamation phase III will be deemed to have been completed on the entire permit area or increment when the permittee has successfully completed all surface coal mining and reclamation operations in accordance with the approved reclamation plan, such that the land is capable of supporting the postmining land use approved pursuant to 405 KAR 16:210 or 405 KAR 18:220; and has achieved compliance with the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the permit; and the applicable liability period under 405 KAR 10:020, Section 3(2) has expired.

History

RELATES TO: KRS 350.060, 350.064, 350.093, 350.113, 350.151, 350.465, 30 C.F.R. Parts 730-733, 735, 800.40, 917, 30 U.S.C. 1253, 1255, 1269
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.060, 350.064, 350.093, 350.151, 350.465, 30 C.F.R. Parts 730-733, 735, 800.40, 917, 30 U.S.C. 1253, 1255, 1269
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to set out by regulation procedures and criteria for the release of performance bond. This administrative regulation specifies the procedures, criteria, and schedule, including reclamation phases, for the release and partial release of liability under performance bonds. This administrative regulation also sets forth certain notice and hearing requirements pertinent to bond release.
History: 405 KAR 010:040. 8 Ky.R. 1519; eff. 1-6-1983; 15 Ky.R. 447; 2016; eff. 1-25-1989; 17 Ky.R. 2499; eff. 4-24-1991; TAm eff. 5-4-2018; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 10:050 Bond forfeiture {#sec-405-kar-10-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:050}

Section 1. General.

(1) The cabinet shall forfeit all of the remaining bond amount for any permit or increment pursuant to the procedures and criteria of this administrative regulation.

(2) The cabinet may withhold forfeiture if the permittee or the surety agrees to a compliance schedule to correct the violations of the permit or bond conditions.

(3) The cabinet shall withhold forfeiture and allow the surety or other financial institution providing bond to complete the reclamation plan if the surety or other financial institution can demonstrate the ability to complete the reclamation plan, including achievement of the capability to support the postmining land use approved by the cabinet, and will undertake to do so within a reasonable time frame and agrees to a compliance schedule. Neither the surety company nor other financial institution shall employ anyone to perform the measures who has been barred from mining pursuant to the provisions of KRS Chapter 350.

Section 2. Procedures.

(1) Except as established in subsection (2) of this section, if forfeiture of the bond is required by Section 3 of this administrative regulation, the cabinet shall:

(a) Send written notification by certified mail, return receipt requested, to the permittee, and to the surety on the bond, if applicable, of the cabinet's determination to initiate forfeiture of the bond and the reasons for the forfeiture;

(b) Advise the permittee and surety, if applicable, of their right to challenge the determination pursuant to 400 KAR 1:110, Section 9; and

(c) If no hearing is requested within thirty (30) days following notification and the bond proceeds are not received, enter a final order of forfeiture and proceed in an action for collection on the bond.

(2) The cabinet may, as an alternative to following the procedures of subsection (1) of this section, initiate formal hearing procedures concerning forfeiture of the bond alone or in conjunction with the cabinet's action for other appropriate remedies against the permittee pursuant to 400 KAR 1:110, Section 5.

(3) The cabinet shall utilize funds collected from bond forfeiture to complete the reclamation plan on the permit area or increment on which bond coverage applied, and to cover associated administrative expenses. The funds shall be deposited in an appropriate account for the payment of these costs. Funds remaining after reclamation shall be returned to the person from whom the forfeiture proceeds were received, subject to the cabinet's right to attach or setoff the proceeds under state law.

(4) In the event the amount forfeited is insufficient to pay for the full cost of reclamation, the permittee or operator shall be liable for remaining costs. The cabinet may complete, or authorize completion of, reclamation of the bonded area and may recover from the permittee or operator all costs of reclamation in excess of the amount forfeited.

(5) Return of unused forfeited bond funds for interim or permanent program permit area overlapped by permanent program permit area. If the cabinet has not completed the reclamation plan on a permit area under 30 C.F.R. Part 715 for which the bond was forfeited on or after July 15, 1988, or if the cabinet has not completed the reclamation plan on a permit area under 405 KAR Chapters 7-24 for which the bond was forfeited, and if the permit area and any related off-permit disturbances are entirely contained within the permit area of a subsequent valid permit under 405 KAR Chapters 7-24 for which the bond is in force, the cabinet shall retain the funds from the forfeited bond until the entire overlapped permit area and any related off-permit disturbances have been disturbed by the overlapping permittee and then shall return the unused funds to the person from whom the forfeiture proceeds were received, subject to the cabinet's right to attach or set off the proceeds under state law.

Section 3. Criteria for Forfeiture.

(1) A bond for a permit area or increment shall be forfeited, if the cabinet finds that:

(a) The permittee has violated any of the terms or conditions of the bond and has failed to take corrective action;

(b) The permittee has failed to conduct the surface mining and reclamation operations in accordance with KRS Chapter 350, the conditions of the permit or 405 KAR Chapters 7 through 24 within the time required;

(c) The permit for the area or increment under bond has been revoked or the operation terminated, unless the permittee, surety, or other financial institution providing bond assumes liability pursuant to an agreement for the completion of reclamation; or

(d) The permittee, surety, or other financial institution providing bond has failed to comply with a compliance schedule approved pursuant to Section 1(2) or (3) of this administrative regulation.

(2) A bond may be forfeited if the cabinet finds that:

(a)

The permittee has become insolvent; or
A creditor of the permittee has attached or executed judgment against the permittee's equipment, materials, or facilities, at the permit area; and

(b) The permittee cannot demonstrate or prove the ability to continue to operate in compliance with KRS Chapter 350, 405 KAR Chapters 7 through 24, and the permit.

(3) The cabinet may forfeit a bond solely upon the permittee's failure to pay penalties or fines (if all reclamation requirements have been fully met) and retain the bond proceeds, or portion thereof as necessary to offset the penalty or fine owed (including administrative costs incurred by the cabinet), but the cabinet shall forfeit a bond under this circumstance only after the five (5) year liability period has expired; except that for surety bonds or bonds secured by a letter of credit.

(a) In no event shall the cabinet take any action to forfeit a surety bond or bond secured by a letter of credit under this circumstance until reclamation phase I and II monies have been released and the five (5) year liability period has expired; and

(b) If a forfeiture of a surety bond or a bond secured by a letter of credit under this circumstance has occurred, the cabinet shall not retain the surety bond or bond secured by letter of credit or any proceeds thereof and the permittee shall continue to be responsible for payment of the penalties or fines as well as administrative costs incurred by the cabinet.

Section 4. Forfeiture Amount. The cabinet shall forfeit the entire amount of the bond for the permit area or increment.

History

RELATES TO: KRS 350.020, 350.060, 350.064, 350.093, 350.095, 350.130, 350.131, 350.151, 350.465, 30 C.F.R. Parts 730-733, 735, 800.50, 917, 30 U.S.C. 1253, 1255
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.060, 350.064, 350.130, 350.151, 350.465, 30 C.F.R. Parts 730-733, 735, 800.50, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to regulate surface coal mining and reclamation operations in a manner as to ensure that satisfactory reclamation is accomplished. This administrative regulation establishes the procedures and criteria by means of which a bond may be forfeited to the cabinet. This administrative regulation establishes that certain violations of KRS Chapter 350 and administrative regulations promulgated pursuant to that chapter may cause a bond to be forfeited. This administrative regulation establishes that a hearing may be requested before forfeiture can be effected. This administrative regulation establishes the method to determine the amount of bond forfeiture. This administrative regulation establishes criteria under which unused forfeited bond funds shall be returned to the person from whom they were collected.
History: 8 Ky.R. 1521; eff. 1-6-1983; 15 Ky.R. 451; 1073; eff. 12-13-1988; 20 Ky.R. 132; 544; eff. 9-22-1993; TAm eff. 5-4-2018; Crt eff. 7-3-2018; 46 Ky.R. 1346, 2271; eff. 5-5-2020.

405 KAR 10:070 Kentucky reclamation guaranty fund {#sec-405-kar-10-070 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:070}

Section 1. Classification of Mine Permit Types.

(1) The commission shall review and assign classification of mine types pursuant to KRS 350.509(1)(e) for the purposes of assessing the fees in accordance with KRS 350.518. Permits shall be assigned to one (1) of the following classifications:

(a) Surface coal mining operations containing activities defined in 405 KAR 8:001, Section 1(125), for which coal removal is ongoing on a regular or intermittent basis in accordance with an approved permit;

(b) Underground coal mining operations containing activities defined in 405 KAR 8:001, Section 1(136), for which coal removal is ongoing on a regular or intermittent basis in accordance with an approved permit;

(c) Combined surface and underground mining operations containing activities defined in both 405 KAR 8:001, Section 1(126) and 1(136), for which coal removal is ongoing on a regular or intermittent basis in accordance with an approved permit;

(d) Non-production permits include operations approved for mining support, maintenance and other facilities, or operations or activities pursuant to KRS 350.010(1), but do not include permitted coal removal operations, as established in paragraphs (a), (b), and (c) of this subsection; or

(e) Dormant permits, including expired permits, which shall include:

Permits for which all coal removal operations are complete, but an initial release of performance bond has not been granted, pursuant to 405 KAR 10:040, Section 2;
Permits in temporary cessation, pursuant to 405 KAR 16:010, Section 7, and 405 KAR 18:010, Section 5;
Permits for which a deferment has been granted, pursuant to 405 KAR 16:020, Section 5(1); and
Permits in paragraphs (a), (b), and (c) of this subsection that report no production in a quarter.

(2) Upon initial disturbance of an issued permit or resumption of coal production operations following a period of temporary cessation or deferment, pursuant to 405 KAR 16:020, Section 5(1), the permittee shall notify the ORGF within ten (10) days of the initial disturbance or resumption on Kentucky Reclamation Guaranty Fund Notification of Permit Activity, Form RGF -3. The suspension provisions of Section 4(2) of this administrative regulation shall apply for failure to provide notification to the ORGF.

(3) The commission shall assign classifications, pursuant to KRS 350.509(1)(e), utilizing the following information:

(a) Member production records submitted pursuant to Section 2 of this administrative regulation;

(b) Issued permits;

(d) Permit, license, and other records on file with the Kentucky Office of Mine Safety and Licensing, and the U.S. Mine Safety and Health Administration; and

(e) Any other permittee documents and records as deemed necessary by the Commission, pursuant to KRS 350.509(7).

(4) A permit subject to KRS 350.518(2)(e) and (f) shall be exempt from the requirements of 405 KAR 10:090.

Section 2. Member Production Records, Fee Reporting, and Payments.

(1) Each permittee in the Kentucky Reclamation Guaranty Fund shall:

(a) Report coal production from each permitted surface coal mining operation on a quarterly basis for coal mined and sold, beginning January 1, 2014;

(b) Maintain records on a quarterly basis that report the tonnage of coal mined and sold for each permit.

Coal producing permits shall be assigned a classification by the commission in accordance with Section 1 of this administrative regulation.
Tonnage shall be reported based on the weight of coal at the time of sale.
Coal mined and sold from permits that combine surface and underground operations shall report both underground and surface production separately;

(c) Retain records of coal mined and sold for a period of six (6) years from the end of the quarter in which a report was due; and

(d) Provide records necessary to substantiate the accuracy of reports and payments upon the request of the ORGF.

(2) Reporting of tonnage and payment of fees shall be recorded on the Kentucky Reclamation Guaranty Fund Quarterly Fee Report, RGF-1, for each permit for which coal was mined and sold during the previous quarter or has coal reserves available to be mined. The reporting of tonnage shall be accompanied by the fee required in 405 KAR 10:090.

(a) The reporting and payment period shall be quarterly with the first quarterly reporting period being January 1 through March 31. The report shall be submitted, and fees shall be received, no later than the 30th day of the month following the end of a reporting period.

A permittee shall submit all reports and payments for permits issued with the same permittee name on one (1) form.
The report shall be submitted even if the member has no coal mined and sold during the reporting period.
Reports are not required to be submitted for permits that have expired and a permit renewal is not being pursued, or for permits that have achieved at least a phase I bond release for the entire permit area.

(b) Payments received by the fund after the 30th day of the month following the reporting quarter, non-payment of fees, or underpayment of fees shall be subject to the penalty provisions of Section 4(1) of this administrative regulation.

Section 3. Non-production and Dormancy Fees and Payments.

(1) Beginning January 1, 2014 permittees in the KRGF are required to pay non-production and dormancy fees to the KRGF for surface coal mining permits not subject to the tonnage fees in 405 KAR 10:090.

(a) Non-production and dormancy fees shall not apply to permits or increments that have been granted phase I bond release, have not been initially disturbed by the permittee after permit issuance, or contain underground acreage only.

Payment of the non-production and dormancy fees shall be in four (4) quarterly installments.
For non-production permits issued and not initially disturbed, the non-production annual fee shall be assessed for the calendar quarter after initial disturbance and be pro-rated for the remaining quarters of the calendar year.

(b) Permits that are used exclusively for coal preparation and processing operations, loading activities, disposal of refuse operations, coal haulage and access roads, mine maintenance and other support facilities, and other permits not subject to the tonnage fees in 405 KAR 10:090, Section 1, as determined by the commission shall pay the non-production fee of ten (10) dollars per acre.

(c) Any permits, or expired permits, not subject to the ten (10) dollar non-production fee in paragraph (b) of this subsection, and the tonnage fees in 405 KAR 10:090, Section 1, shall pay a dormancy fee of six (6) dollars per acre.

(d) The commission shall evaluate a permit that may meet multiple classifications and assign the permit a classification for assessment of fees.

(e) Members who provided written notice to the ORGF that they will opt-out of the fund and subsequently post full cost performance bonds prior to April 30, 2014 on all permits held by the member, shall not be subject to the fees listed in paragraphs (b) and (c) of this subsection.

(2) Non-production and dormancy fees shall be assessed to each eligible permit based on the total bonded acreage, or fraction thereof, on record with the DNR as of January 1 of each calendar year. Permits that have coal production and pay tonnage fees in accordance with Section 2 of this administrative regulation in each calendar quarter shall not be subject to the payment of dormancy fees assessed pursuant to this section. A permittee that receives an assessment notification for dormancy fees in accordance with subsection (1)(c) of this section, and does not report coal mined and sold in a calendar quarter, shall pay the dormancy fee for that quarter.

(a) Payment of the non-production and dormancy fees shall be made in four (4) separate equal quarterly installments beginning with the January 1 through March 31, 2014 quarter. Members shall be allowed to prepay the entire annual dormancy and non-production fees in a lump sum prior to April 30 of each calendar year. Fees received from prepayments shall not be refundable to the member.

(b) The ORGF shall notify each member on or before January 31 of each calendar year those permits that are classified and subject to dormancy or non-production fees. The notification shall include the permit classification, total bonded acreage subject to assessment for each permit, and the quarterly payment amount due by permit.

(c) A permittee shall be allowed thirty (30) calendar days after receipt of the initial assessment each year to provide written notice to the ORGF to contest the assessed dormancy or non-production fees.

The written notice shall include an explanation of the nature of the contest, the documentation relied upon by the permittee, and the specific permit and increments where the alleged error exists.
The ORGF shall review the information provided by the permittee and provide a response in writing of its decision to retain or modify the assessment.
The permittee shall not be subject to penalties for late payment if a decision is not issued by the ORGF prior to the payment due date.

(d) Quarterly installment payments shall be received in the ORGF no later than the 30th day of the month following the previous calendar quarter on the Kentucky Reclamation Guaranty Fund Quarterly Fee Report, RGF-1.

(e) Late payment or non-payment of fees shall subject members to penalties in Section 4(1) of this administrative regulation.

(f) All payments shall be in the form of a check, cashier's check, certified check, money order, or electronic funds transfer, and be made payable to the Kentucky State Treasurer.

Section 4. Penalties.

(1) Late Payment or Non-Payment of Fees and Initial Assessments.

(a) Permittees shall be subject to penalties of five (5) percent of the original fee for each month or fraction thereof elapsing between the due date and the date on which the payment is submitted for the failure to submit the following records and fees:

Quarterly production records within thirty (30) days of the end of the reporting quarter;
Payment of required tonnage fees within thirty (30) days of the end of the reporting quarter;
Non-production fees within thirty (30) days of the end of the reporting quarter;
Dormancy fees within thirty (30) days of the end of the reporting quarter; or
Initial capitalization assessments within thirty (30) days of the date of receipt of notice.

(b) Upon a determination by the ORGF that a permittee has underreported production or underpaid the amount due in any reporting quarter, the permittee shall submit the corrected information or payment within ten (10) days of notification that the report or payment is deficient or insufficient.

(c) A penalty of five (5) percent of the fee shall be assessed for the underpayment of tonnage fees if the payment is not received within ten (10) days of notification.

(d) Penalties for late payment, underpayment, or non-payment of fees or initial assessments shall be at a minimum of $100.

(e) Payments of fees, penalties, or initial assessments that are more than thirty (30) days in arrears shall render the permittee subject to permit suspension pursuant to 405 KAR 12:020.

(2) Defrauding the commission. Any permittee submitting fraudulent production reports, misidentifying the method of coal production to obtain a lower fee payment, withholding documentation requested by the commission, or otherwise attempting to defraud the fund or commission shall be subject to permit suspension by the cabinet upon receipt of notification by the commission.

Section 5. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Kentucky Reclamation Guaranty Fund Quarterly Fee Report", RGF-1, November 2016; and

(b) "Kentucky Reclamation Guaranty Fund Notification of Permit Activity", Form RGF -3, June 2013.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Department for Natural Resources, 300 Sower Boulevard, Frankfort, KY 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 350.020, 350.060, 350.062, 350.064, 350.093, 350.095, 350.100, 350.110, 350.151, 350.465, 350.500 – 350.521
STATUTORY AUTHORITY: KRS 350.060, 350.062, 350.064, 350.093, 350.095, 350.100, 350.151, 350.465, 350.500 – 350.521
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 authorizes the cabinet to promulgate administrative regulations to ensure bonds are adequate to perform reclamation in the event of forfeiture. This administrative regulation establishes information related to the operation of the Kentucky Reclamation Guaranty Fund, classification of permits, reporting and payment of fees, and penalties.
History: 405 KAR 010:070. 40 Ky.R. 479; 1065; eff. 11-7-2013; TAm eff. 7-6-2016; TAm eff. 11-1-2016; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 10:080 Full-cost bonding {#sec-405-kar-10-080 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:080}

Section 1. Applicability. This administrative regulation applies to permittees electing to provide full-cost bonds to the cabinet in lieu of participation in the Kentucky Reclamation Guaranty Fund.

Section 2. Decision to Opt-out.

(1) Pursuant to KRS 350.515(5), a member may elect to opt-out of the Kentucky Reclamation Guaranty Fund and provide a full cost bond.

(2) A member joining the KRGF after July 1, 2013, shall declare the decision to opt-out on the Technical Information for a Mining Permit, Form MPA-03, incorporated by reference in 405 KAR 8:010, Section 26. This subsection shall not apply to those permits issued pursuant to 405 KAR 8:010, Section 22.

Section 3. Full-Cost Reclamation Bonding Estimate.

(1) The requirements of 405 KAR 10:015, Section 7 and Section 8(7); 405 KAR 16:060, Section 8; 405 KAR 18:060, Section 12; and 405 KAR 18:210, Section 3, shall apply to the calculation of the estimate. The provisions of 405 KAR 10:015, Section 11, shall not apply to calculating a full-cost bonding reclamation estimate.

(2) Full-cost reclamation bonding estimates shall be calculated pursuant to the Kentucky Department for Natural Resources Full-cost Reclamation Bond Calculation Manual.

(3) The calculations shall be submitted on one (1) of the following forms, incorporated by reference in 405 KAR 8:010:

(a) Technical Information for a Mining Permit, Form MPA-03;

(b) Application to Transfer a Mining Permit, MPA-07; or

(4) The reclamation bonding estimate shall be certified by a registered professional engineer, as defined in KRS 322.010, in good standing.

(5) A member shall provide the full-cost reclamation bond upon notification that the full-cost reclamation estimate has been accepted by the department.

(6) A member with permits issued prior to July 1, 2013 shall post full cost reclamation bonds with the department before April 30, 2014 on all permits held by the member.

Section 4. Incorporation by Reference.

(1) "Kentucky Department for Natural Resources Full–cost Reclamation Bond Calculation Manual", August 2013, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Department for Natural Resources, 300 Sower Boulevard, Frankfort, KY 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 350.020, 350.060, 350.062, 350.064, 350.093, 350.095, 350.100, 350.110, 350.151, 350.465, 350.515(5)
STATUTORY AUTHORITY: KRS 350.060, 350.062, 350.064, 350.093, 350.095, 350.100, 350.151, 350.465, 350.515(5)
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 authorizes the cabinet to promulgate administrative regulations to ensure bonds are adequate to perform reclamation in the event of forfeiture. KRS 350.515(5) authorizes members to provide full-cost bonds in lieu of maintaining membership in the fund. This administrative regulation establishes information for members that elect to provide full-cost bonds rather than remain in the Kentucky Reclamation Guaranty Fund.
History: 405 KAR 010:080. 40 Ky.R. 482; 1066; eff. 11-7-2013; TAm eff. 7-6-2016; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 10:090 Production fees {#sec-405-kar-10-090 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:090}

Section 1.

(1) Each member with surface or underground coal mining operations shall remit to the ORGF a fee based on the tons of coal mined and sold from each permit. This production fee shall be paid by the 30th day of the month immediately following the end of the quarter.

(2) Production fees shall be assessed as established in paragraphs (a) through (c) of this subsection.

(a) Surface coal mining operations shall pay seven and fifty-seven hundredths cents per ton of coal.

(b) Underground coal mining operations shall pay three and fifty-seven hundredths (3.57) cents per ton of coal.

(c) Permits consisting of surface and underground coal mining operations shall be assessed the tonnage fees in accordance with the predominant method of coal extraction during the quarterly reporting period.

History

RELATES TO: KRS 350.020, 350.060, 350.062, 350.064, 350.093, 350.095, 350.100, 350.110, 350.151, 350.465, 350.515, 350.518
STATUTORY AUTHORITY: KRS 350.060, 350.062, 350.064, 350.093, 350.095, 350.100, 350.151, 350.465, KRS 350.518(2)(a) and (b)
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 authorizes the cabinet to promulgate administrative regulations to ensure bonds are adequate to perform reclamation in the event of forfeiture. KRS 350.503 authorizes the Kentucky Reclamation Guaranty Fund, which will receive production fees established in KRS 350.518(2)(a) and (b). This administrative regulation establishes information on production fees established in KRS 350.518(2)(a) and (b), and the schedule payments to be remitted.
History: 405 KAR 010:090. 40 Ky.R. 483; 1067; eff. 11-7-2013; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

Chapter 12 Inspection and Enforcement

405 KAR 12:001 Definitions for 405 KAR Chapter 12 {#sec-405-kar-12-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 12:001}

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;

(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;

(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:

Was designated as a public road pursuant to the laws of the jurisdiction where it is located;
Is maintained with public funds and constructed in a manner similar to other public roads of the same classification within the jurisdiction; and
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, subbituminous, or lignite by ASTM Standard D 388-77.

(7) "Coal exploration" means the field gathering of:

(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:

Creates an imminent danger to the health or safety of the public; or
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:

(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:

Is causing environmental harm; or
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.

History

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
STATUTORY AUTHORITY: KRS 350.028, 350.465, 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.
History: 405 KAR 012:001. 18 Ky.R. 2472; eff. 4-3-1992; 20 Ky.R. 134; eff. 9-22-1993; TAm eff. 8-9-2007; 44 Ky.R. 628, 1309; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 12:010 General provisions for inspection and enforcement {#sec-405-kar-12-010 omnilex-key=us-ky-regs-official--title-405--405 KAR 12:010}

Section 1. Applicability. The provisions of this chapter shall apply to all surface coal mining and reclamation operations and coal exploration and reclamation operations.

Section 2. Inspection and Enforcement. In accordance with the provisions of this chapter, the cabinet shall conduct or cause to be conducted inspections, studies, investigations, or other determinations as it deems reasonable and necessary to obtain information and evidence with which to ensure that surface coal mining and reclamation operations and coal exploration and reclamation operations are conducted in accordance with the provisions of KRS Chapter 350; 405 KAR Chapters 7 through 24; and all terms and conditions of the applicable permit or approval.

Section 3. Timing and Conduct of Inspections.

(1) Right of entry and access. Authorized representatives of the cabinet shall:

(a) Have unrestricted right of entry and access to areas affected by coal exploration and reclamation operations and areas affected by surface coal mining and reclamation operations for any purpose associated with their proper duties pursuant to KRS Chapter 350 or 405 KAR including but not limited to activities associated with the conducting of inspections; and

(b) At reasonable times and without delay, have unrestricted access to and authority to copy any records required to be kept under KRS Chapter 350 and 405 KAR and have unrestricted access to, for the purpose of inspecting, any monitoring equipment required under or pursuant to KRS Chapter 350 or 405 KAR.

(2) Presentation of credentials. Authorized representatives of the cabinet shall present credentials for identification purposes upon request by a representative of the permittee, operator or person conducting the coal exploration and reclamation operations on the affected area.

(3) Prior notice. The cabinet shall have no obligation to give prior notice that an inspection will be conducted.

(4) Timing. Inspections shall ordinarily be conducted at irregular and unscheduled times during normal workdays, but may be conducted at night or on weekends or holidays if the cabinet deems the inspections necessary to properly monitor compliance with KRS Chapter 350; 405 KAR Chapters 7 through 24; and terms and conditions of the applicable permit or approval.

(5) Frequency of inspections.

(a) Partial inspections of surface coal mining and reclamation operations. A partial inspection of surface coal mining and reclamation operations is an on-site or aerial review of a permittee, operator, or person's compliance with some of the permit terms and conditions and some of the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24. Unless the cabinet has received notice of temporary cessation under 405 KAR 16:010, Section 7, or 405 KAR 18:010, Section 5, the cabinet shall conduct an average of at least one (1) partial inspection per month of each area affected by surface coal mining and reclamation operations permitted under 405 KAR Chapter 8 at least until phase I reclamation, as determined under 405 KAR 10:040, has been completed on the entire permit area. After phase I reclamation, or if the cabinet has received notice of temporary cessation, the cabinet shall conduct partial inspections until the cabinet determines that the permit area is sufficiently stable with respect to mass stability, erosion, revegetation, water quality and other reclamation requirements so that the quarterly complete inspections required under paragraph (b) of this subsection will provide adequate inspection of the permit area.

(b) Complete inspections of surface coal mining and reclamation operations. A complete inspection of surface coal mining and reclamation operations is an on-site review of a permittee, operator, or person's compliance with all of the permit terms and conditions and all of the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24 within the entire area disturbed or affected by surface coal mining and reclamation operations. The cabinet shall conduct an average of at least one (1) complete inspection per calendar quarter of each area affected by surface coal mining and reclamation operations permitted under 405 KAR Chapter 8.

(c) The cabinet shall conduct inspections of coal exploration and reclamation operations as necessary to ensure compliance with KRS Chapter 350 and 405 KAR Chapters 7 through 24.

(6) Aerial inspections.

(a) Aerial inspections shall be conducted in a manner that reasonably insures the identification and documentation of conditions at each surface coal mining and reclamation site and each coal exploration and reclamation site inspected.

(b) Any potential violation observed during an aerial inspection shall be investigated on site within three (3) days provided that any indication of a condition, practice, or violation constituting cause for the issuance of a cessation order under 405 KAR 12:020, Section 3(1)(b) and (c) shall be investigated on site immediately and provided further that an aerial inspection which necessitates an on-site inspection of a potential violation shall not be considered to be an additional partial inspection for the purposes of subsection (5) of the section.

Section 4. Records of Inspections.

(1) Authorized representatives of the cabinet shall make and maintain written records of inspections and other activities including observations made and factual matters discovered. A copy of the records shall be made available to the permittee, operator, or person conducting the coal exploration and reclamation operations and shall be available for public inspection at the appropriate regional office of the department in accordance with the Kentucky Open Record Laws, KRS 61.870 through KRS 61.884, until at least five (5) years after final bond release on the entire permit area or until at least five (5) years after bond forfeiture. For unpermitted areas, the cabinet shall maintain the records until at least five (5) years after the final action of the cabinet regarding the operations.

(2)

(a) For permitted areas for which final bond release has been granted pursuant to 405 KAR Chapter 10; for areas for which bond has been forfeited pursuant to 405 KAR Chapter 10; and for unpermitted areas for which the cabinet has taken final action, the cabinet may, at its own option and expense and as an alternative to maintaining the information for public inspection at the location identified in accordance with subsection (1) of this section, retain information at a location other than the department's appropriate regional office and, at the request of any person:

Provide copies of the information promptly by mail to the person; or
Transfer the information to the department's appropriate regional office for public inspection.

(b) For situations in which the cabinet provides information in accordance with this subsection, the cabinet shall maintain, for public inspection at the department's appropriate regional office, a description of the information available for mailing or submission to the appropriate regional office and the procedures to be used for obtaining the information.

(3) Upon inspection of coal exploration and reclamation operations and surface coal mining and reclamation operations, authorized representatives of the cabinet shall collect evidence of every observed violation of a permit term or condition, every observed violation of a term or condition of approval (for coal exploration and reclamation operations requiring cabinet approval), and every observed violation of a requirement of KRS Chapter 350 or an administrative regulation promulgated pursuant thereto.

(4) The cabinet shall preserve evidence collected pursuant to subsection (3) of this section where appropriate in order that the evidence may be presented at hearings held pursuant to 400 KAR 1:110.

Section 5. Penalties and Sanctions. Any person who violates any provision of KRS Chapter 350; any provision of 405 KAR Chapters 7 through 24; any permit term or condition; or any term or condition of approval (for coal exploration and reclamation operations requiring cabinet approval) and any person who fails to perform the duties imposed by these provisions or who fails to comply with a determination or order of the cabinet pursuant to these provisions shall be subject to civil and criminal penalties as set forth in KRS 350.465(3)(h), KRS 350.990, 400 KAR 1:110, and any other applicable provision of law and shall be subject to applicable sanctions as set forth in KRS 350.130 or any other applicable provision of law. Violations by any person conducting surface coal mining and reclamation operations on behalf of a permittee shall be attributed to the permittee, unless the permittee establishes that they were acts of deliberate sabotage. Violations by any person conducting coal exploration and reclamation operations shall be attributed to the person conducting the coal exploration and reclamation operations or the person identified in the notice of intention to explore or in the application for coal exploration and reclamation approval submitted pursuant to 405 KAR 8:020, unless the person establishes that they were acts of deliberate sabotage.

Section 6. Public Participation. Any person shall have the opportunity to request an inspection and to participate in enforcement actions of the cabinet as provided in 405 KAR 12:030.

Section 7. Formal Review. Any person having an interest which is or may be adversely affected by the issuance, modification, vacation, or termination of a notice or order may request review of that action pursuant to 400 KAR 1:110. The filing of a request for a hearing shall not operate as a stay of any notice or order or any modification, termination, or vacation thereof.

History

RELATES TO: KRS 350.020, 350.028, 350.050, 350.085, 350.113, 350.130, 350.151, 350.465, 350.990, 30 C.F.R. Parts 730-733, 735, 840.11-.16, 917, 30 U.S.C. 1253, 1255, 1267
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.050, 350.130, 350.465, 30 C.F.R. Parts 730-733, 735, 840.11-.16, 917, 30 U.S.C. 1253, 1255, 1267
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to rigidly enforce administrative regulations promulgated to control the injurious effects of surface coal mining and reclamation operations. This administrative regulation generally sets forth a rigid enforcement and inspection policy for the cabinet. This administrative regulation directs that inspections be made at irregular intervals and without need of a warrant or prior notice to the permittee, operator, or person. This administrative regulation requires certain frequencies for inspections and complete preservation of the evidence, records and observations made during inspections. This administrative regulation also sets forth the general policy of public participation in the enforcement process and references the civil and criminal penalties of KRS Chapter 350.
History: 405 KAR 012:010. 8 Ky.R. 1522; 9 Ky.R. 697; eff. 1-6-1983; 11 Ky.R. 1831; eff. 8-13-1985; 20 Ky.R. 137; eff. 9-22-1993; TAm eff. 5-4-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 12:020 Enforcement {#sec-405-kar-12-020 omnilex-key=us-ky-regs-official--title-405--405 KAR 12:020}

Section 1. General.

(1) The secretary of the cabinet may designate authorized representatives to perform duties pursuant to the administrative regulations contained in 405 KAR Chapters 7 through 24.

(2) Subject to 405 KAR Chapters 7 through 24 or unless the secretary has made a written order contrary to the terms of this subsection, personnel authorized by the commissioner of the department shall be authorized representatives of the cabinet for the purposes of Sections 2, 3, and 4 of this administrative regulation.

Section 2. Notice of Noncompliance and Order for Remedial Measures.

(1) Issuance. An authorized representative of the cabinet shall issue a notice of noncompliance and order for remedial measures if, on the basis of inspection, he finds a violation of:

(a) KRS Chapter 350;

(b) 405 KAR Chapters 7 through 24;

(d) A term or condition of approval (for coal exploration and reclamation operations requiring cabinet approval); or

(e) Any other applicable requirement.

(2) Form and content. A notice of noncompliance and order for remedial measures issued pursuant to this section shall be in writing and shall be signed by the authorized representative of the cabinet who issued it. The notice shall establish with reasonable specificity:

(a) The nature of the violation;

(b) The remedial action required, if any, which may include accomplishment of interim steps if appropriate;

(c) A reasonable time for remedial action, if any, which may include time for accomplishment of interim steps if appropriate; and

(d) A reasonable description of the portions of the surface coal mining and reclamation operations or coal exploration and reclamation operations to which the notice applies.

(3) Service. Service of a notice of noncompliance and order for remedial measures shall be in the manner established in Section 5 of this administrative regulation.

(4) Extension. An authorized representative of the cabinet may, by written notice, extend the time set for remedial action or for accomplishment of an interim step, if the failure to meet the time previously set was not caused by lack of diligence on the part of the person to whom the notice of noncompliance and order for remedial measures was issued.

(a)

The total time for remedial action under the notice, including all extensions, shall not exceed ninety (90) days from the date of issuance of the notice except upon a showing by the permittee or the person conducting the coal exploration and reclamation operations that it is not feasible to abate the violation within ninety (90) calendar days due to one (1) or more of the circumstances established in paragraph (b) of this subsection.
An abatement period exceeding ninety (90) days pursuant to this subsection shall not be granted for situations in which the permittee's failure or the failure of the person conducting the coal exploration and reclamation operations to abate within ninety (90) days has been caused by a lack of diligence or intentional delay by the permittee or the person conducting the coal exploration and reclamation operations in completing the remedial action required.

(b) The following circumstances may qualify surface coal mining and reclamation operations or coal exploration and reclamation operations for an abatement period of more than ninety (90) days:

The permittee of the ongoing surface coal mining and reclamation operations or the person conducting the coal exploration and reclamation operations has timely applied for and diligently pursued a permit renewal or other necessary approval of designs or plans, but the permit or approval, for reasons not within the control of the permittee or the person conducting the coal exploration and reclamation operations, has not been and will not be issued prior to ninety (90) days after the valid permit or approval expires or is required;
There is a valid judicial order precluding abatement within ninety (90) days to which the permittee or the person conducting the coal exploration and reclamation operations has diligently pursued all rights of appeal and to which he has no other effective legal remedy;
The permittee or the person conducting the coal exploration and reclamation operations cannot abate within ninety (90) days due to a labor strike; or
If climatic conditions preclude abatement within ninety (90) days, or if, due to climatic conditions, abatement within ninety (90) days clearly:

a. Would cause more environmental harm than it would prevent; or

b. Requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act, 30 U.S.C. 801 through 965.

(d)

If any of the conditions in paragraph (b) of this subsection exist, the permittee or the person conducting the coal exploration and reclamation operations may request the authorized representative of the cabinet to grant an abatement period exceeding ninety (90) days.
The authorized representative of the cabinet shall not grant an abatement period without the approval of the Director of the Division of Mine Reclamation and Enforcement or his designee, and the abatement period granted shall not exceed the shortest possible time necessary to abate the violation.
The permittee or the person conducting the coal exploration and reclamation operations shall have the burden of establishing by clear and convincing proof that he is entitled to an extension under the provisions of this subsection. In determining whether or not to grant an abatement period exceeding ninety (90) days, the authorized representative of the cabinet may consider relevant written or oral information from the permittee, the person conducting the coal exploration and reclamation operations, and other sources. The authorized representative of the cabinet shall promptly and fully document in the applicable file his recommendation and reasons for granting or denying the request.
The authorized representative's immediate supervisor shall review this document before approving or disapproving the extended abatement period and shall promptly and fully document the reasons for his approval or disapproval in the applicable file.

(e) A determination made pursuant to paragraph (d) of this subsection shall be in writing and shall be subject to administrative and judicial review pursuant to 400 KAR 1:110.

(f) An extension granted pursuant to this subsection shall not exceed ninety (90) days in length. In situations in which the condition or circumstance that prevented abatement within ninety (90) days exists at the expiration of the extension, the permittee or the person conducting the coal exploration and reclamation operations may request a further extension in accordance with the procedures of this subsection.

(5) Modification. An authorized representative of the cabinet may, by written notice, modify an order for remedial measures for good cause, including correction of errors, changes in responsible parties, changes to remedial measures, and changes in abatement dates.

(6) Termination. An authorized representative of the cabinet shall, by issuance of a notice of inspection of noncompliance, provide written notice to the person to whom a notice of noncompliance and order for remedial measures has been issued that the notice is terminated when the authorized representative of the cabinet determines that all violations listed therein have been corrected. The termination shall not affect the right of the cabinet to assess civil penalties for those violations pursuant to 400 KAR 1:110 or to impose other applicable sanctions as authorized by law.

(7) Vacation. Based upon the written recommendation of the regional administrator and the authorized representative of the cabinet who issued the notice of noncompliance and order for remedial measures, the Director of the Division of Mine Reclamation and Enforcement may vacate a notice of noncompliance and order for remedial measures determined to have been issued in error.

Section 3. Order for Cessation and Immediate Compliance.

(1) Issuance.

(b) An authorized representative of the cabinet shall immediately issue an order for cessation and immediate compliance if he finds, on the basis of an inspection, a condition or practice; a violation of KRS Chapter 350; a violation of 405 KAR Chapters 7 through 24; or a violation of a term or condition of the applicable permit or exploration approval that:

Creates an imminent danger to the health or safety of the public; or
Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources.

(c) An authorized representative of the cabinet shall immediately issue an order for a cessation and immediate compliance if he finds, on the basis of an inspection, that surface coal mining and reclamation operations are being conducted by a person without a valid surface coal mining and reclamation operations permit for the activities or that coal exploration and reclamation operations are being conducted without proper notice of intention to explore or approval for the operations, as applicable, in accordance with 405 KAR 8:020.

(2) Form and content.

(a) An order for cessation and immediate compliance shall be in writing and shall be signed by the authorized representative of the cabinet who issued it. The order shall set forth with reasonable specificity:

The nature of the violation;
A reasonable description of the portions of the operations in which it applies;
The remedial measures, if any, necessary to abate the violation in the most expeditious manner possible; and
The time established for abatement, if appropriate, including the time for complying with interim steps.

(b) At the same time that the authorized representative of the cabinet issues an order for cessation and immediate compliance pursuant to subsection (1)(b) or (c) of this section, he shall also issue a notice of noncompliance and order for remedial measures.

(3) Service. Service of an order for cessation and immediate compliance shall be in the manner established in Section 5 of this administrative regulation.

(4) Effect.

(a) The order for cessation and immediate compliance shall require the cessation of:

All surface coal mining and reclamation operations;
All coal exploration and reclamation operations; or
The portions or operations relevant to the condition, practice, or violation covered by the order.

(b) The order shall require the person to whom it is issued to take affirmative steps necessary to abate the condition, practice, or violation in the most expeditious manner possible. The order may require the use of existing or additional personnel and equipment.

(c) The order shall remain in effect until the condition, practice, or violation has been abated; until the order is vacated, modified, or terminated in writing pursuant to subsection (5) of this section; until it is vacated, modified, or terminated by a hearing officer pursuant to 400 KAR 1:110; or until the order expires pursuant to Section 6 of this administrative regulation.

(d) Reclamation operations and other activities intended to protect public health and safety and the environment shall continue during the period of an order unless the order states that the reclamation operations and other activities shall cease.

(5) Modification, extension, vacation, and termination.

(a) An authorized representative of the cabinet may, by written notice, modify or terminate an order for cessation and immediate compliance issued under this section for good cause and may extend the time for abatement if the failure to abate within the time previously set was not caused by lack of diligence on the part of the person to whom it was issued.

(b) The secretary or his authorized representative shall terminate an order for cessation and immediate compliance, by written notice to the person to whom the order was issued, when he determines that all conditions, practices, and violations listed in the order have been abated. Termination shall not affect the right of the cabinet to assess civil penalties for those violations under 400 KAR 1:110 or to impose other applicable sanctions as authorized by law.

(c) Based upon the written recommendations of the regional administrator and the authorized representative of the cabinet who issued the order for cessation and immediate compliance, the Director of the Division Mine Reclamation and Enforcement may vacate an order for cessation and immediate compliance determined to have been issued in error.

(6) Within sixty (60) days after issuing an order for cessation and immediate compliance, the cabinet shall notify in writing a person who has been identified under 405 KAR 8:010, Section 18(5) and either 405 KAR 8:030, Section 2(3) and (4) or 8:040, Section 2(3) and (4) as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller.

Section 4. Notice of Inspection and Noncompliance.

(1) Issuance. If an authorized representative of the cabinet issues a notice of noncompliance and order for remedial measures or an order for cessation and immediate compliance, he shall reinspect the areas affected by the surface coal mining and reclamation operations or the coal exploration and reclamation operations on or soon after the date given in the notice or order for completion of remedial measures. When reinspection occurs, the authorized representative of the cabinet shall issue a notice of inspection of noncompliance.

(2) Form and content. The notice of inspection of noncompliance shall establish if:

(a) The remedial measures have been completed and the notice or order is therefore terminated;

(b) The remedial measures have not been completed, but the notice or order is modified or extended for good cause, pursuant to Sections 2(4) and 2(5) of this administrative regulation; or

For the situations in which the inspection was a reinspection of a notice of noncompliance and order for remedial measures, issue an order for cessation and immediate compliance; and
For situations in which the inspection was a reinspection of an order for cessation and immediate compliance and if the order for cessation and immediate compliance has not been abated, initiate an administrative hearing for suspension or revocation of the permit or approval, initiate an administrative hearing for bond forfeiture, or initiate administrative hearings for other appropriate relief.

(3) Service. Service of a notice of inspection for noncompliance shall be in the manner established in Section 5 of this administrative regulation.

Section 5. Service of Notices and Orders.

(1) A notice of noncompliance and order for remedial measures, order for cessation and immediate compliance, or notice of inspection of noncompliance shall be promptly served on the person to whom it is issued or the person's designated agent.

(2)

(a) Each notice of noncompliance and order for remedial measures, order for cessation and immediate compliance, and notice of inspection of noncompliance shall be served by:

Hand;
Certified mail (return receipt requested);
Registered mail; or
Electronic mail.

(b) The notice or order shall also be served by hand to the individual who, based upon reasonable inquiry by the authorized representative, appears to be in charge at the site of the surface coal mining and reclamation operations or coal exploration and reclamation operations referred to in the notice or order.

(c) If this individual cannot be located at the site, a copy of the notice or order may be tendered to an individual at the site who appears to be an employee or agent of the person to whom the notice or order has been issued.

(3) Service, whether by hand, electronic mail or by mail, shall be complete upon tender of the notice or order and shall not be incomplete because of refusal to accept.

(a) For surface coal mining and reclamation operations, service by electronic mail or mail shall be addressed to the designated agent for service; to the permanent or electronic address of the permittee as identified on the permit or in the application; or, if no address is identified for the permittee in the application, to another address as is known to the cabinet.

(b) For coal exploration and reclamation operations, service by electronic mail or mail shall be addressed to the designated agent for service; to the permanent or electronic address of the person conducting the coal exploration and reclamation operations as identified in the notice of intention to explore or in the application for coal exploration and reclamation approval submitted pursuant to 405 KAR 8:020; or, if no address is identified for the person conducting the coal exploration and reclamation operations in the notice or the application submitted pursuant to 405 KAR 8:020, to an other address as is known to the cabinet.

(c) If no person is present at the site of the surface coal mining and reclamation operations or the coal exploration and reclamation operations, service by electronic mail or mail shall by itself be sufficient notice.

(4) Designation by a person of an agent for service of notices and orders issued pursuant to this administrative regulation and notices of hearing issued pursuant to 400 KAR 1:110 shall be made a part of the applicable permit application, notice of intention to explore, or application for coal exploration and reclamation approval. The person shall continue as agent for service of process until written revision of the permit, a notice of intention to explore, or coal exploration and reclamation approval is made that designates another person as agent.

(5) The cabinet may furnish copies of notices and orders to a person having an interest that is or may be adversely affected by the coal exploration and reclamation operations or by the surface coal mining and reclamation operations and a person having an interest in the permit or exploration area.

Section 6. Expiration.

(1)

(a) Except as provided in subsection (2) of this section, if a notice of noncompliance and order for remedial measures or an order for cessation and immediate compliance requires cessation of coal removal expressly or by implication:

The notice or order shall expire thirty (30) days after it is served unless an informal hearing is held at or near the mine site or the exploration site within that time.
Notices or orders shall not expire if:

a. The condition, practice, or violation in question has been abated; or

b. The person to whom the notice or order has been issued has waived the informal hearing or has agreed to its postponement.

(b) Expiration of the notice or order shall not affect the rights of the cabinet to assess penalties and to impose sanctions, in accordance with KRS 350.028, 350.050, 350.053, 350.085, 350.130, 350.465, and 350.990, with respect to the time period during which the notice or order was in effect for the violations for which the notice or order was issued. The granting or waiver of an informal public hearing shall not affect the right of a person to an administrative hearing.

(2)

(a) The informal public hearing shall be waived if the person to whom the notice or order was issued is informed by written notice served in the manner provided in paragraph (b) of this subsection that he shall be deemed to have waived an informal public hearing unless the hearing is requested within thirty (30) days after service of the notice, and an informal public hearing is not requested within that time.

(b) The written notice referred to in paragraph (a) of this subsection shall be delivered by an authorized representative or sent by certified mail, return receipt requested, no later than five (5) days after the notice or order is served.

(c) The person to whom the notice or order is issued shall be deemed to have consented to an extension of the time for holding the informal public hearing if the request is received on or after the 21st day after service of the notice or order. The extension of time shall be equal to the number of days elapsed after the 21st day.

(3)

(a) The cabinet shall give as much advance notice as is practicable of the time, place, and subject matter of the informal public hearing to the person to whom the notice or order was issued, and the person who filed a report that led to the issuance of the notice or order.

(b) The cabinet shall also post notice of the informal public hearing at the department's regional office for the mine site and, if practicable, publish it in a newspaper of general circulation in the area of the mine.

(4) Requirements for administrative hearings shall not govern informal public hearings. An informal public hearing shall be conducted by a representative of the cabinet who shall accept oral or written arguments and other relevant information from a person attending.

(5) Within five (5) days after the close of the informal public hearing, the cabinet shall affirm, modify, or vacate in writing the notice or order. The decision shall be sent to the person to whom the notice or order was issued, and a person who filed a report that led to the issuance of the notice or order.

(6) The person conducting the informal public hearing for the cabinet shall determine if the mine site shall be viewed during the informal public hearing. In making this determination the only consideration shall be if viewing the mine site will assist the person conducting the informal public hearing in reviewing the appropriateness of the enforcement action or of the required remedial action.

Section 7. Suspension and Revocation of Permits and Exploration Approvals.

(1) The cabinet may initiate:

(a) Administrative hearings for suspension or revocation of permits, coal exploration, and reclamation approvals;

(b) Administrative hearings for bond forfeitures; and

(2) If the cabinet revokes or suspends the permit or exploration approval, surface coal mining operations on the permit area or disturbances on the exploration area shall immediately cease, and the permittee or person conducting coal exploration operations shall:

(a) Complete reclamation within the time specified in the order, if the permit or exploration approval is revoked; or

(b) Complete all affirmative obligations to abate all conditions, practices, and violations as specified in the order, if the permit or exploration approval is suspended.

Section 8. Pattern of Violations.

(1) If the cabinet determines that a pattern of violations of the requirements of KRS Chapter 350, the administrative regulations, or a permit condition imposed under KRS Chapter 350 or administrative regulations exists or has existed and that the violations are caused by the unwarranted failure of the permittee or were willful violations, the cabinet shall issue an order to the permittee to show cause why the permit should not be suspended or revoked.

(2) The cabinet may determine that a pattern of violations exists or has existed, based on two (2) or more inspections of the permit area within any twelve (12) month period, after considering the circumstances, including:

(a) The number of violations, cited on more than one (1) occasion, of the same or related requirements of KRS Chapter 350; 405 KAR Chapters 7 through 24; or permit conditions;

(b) The number of violations, cited on more than one (1) occasion, of different requirements of KRS Chapter 350; 405 KAR Chapters 7 through 24; or permit conditions; and

(3) The cabinet shall promptly review the history of violations of a permittee who has been cited for violations of the same or related requirements of KRS Chapter 350; 405 KAR Chapters 7 through 24 or permit conditions during three (3) or more inspections of the permit area within any twelve (12) month period. If after the review the cabinet determines that a pattern of violations exists or has existed, the cabinet shall issue a show cause order pursuant to this section and 400 KAR 1:110, Section 10.

(4) In determining the number of violations within any twelve (12) month period, the cabinet shall only consider violations cited as a result of inspections carried out on or after May 3, 1978.

(5) If a permittee fails to abate a violation cited in a notice of noncompliance or cessation order within the abatement period established in the notice of order or as subsequently extended, then the cabinet shall review the permittee's history of violations to determine if a pattern of violations exists or has existed pursuant to this section and shall initiate a show cause order as provided in this section and 400 KAR 1:110, Section 10.

Section 9. Inability to Comply.

(1) A notice or order issued pursuant to Title 405 of the Kentucky administrative regulations shall not be vacated because of inability to comply.

(2) Inability to comply shall not be considered in determining if a pattern of violations exists.

(3) Rapid compliance, good faith, diligence, and inability to comply may be considered in mitigation of proposed penalty assessments in accordance with 400 KAR 1:110.

History

RELATES TO: KRS 350.020, 350.028, 350.050, 350.085, 350.113, 350.130, 350.151, 350.465, 350.990, 30 C.F.R. Parts 730-733, 735, 840.13-.14, 840.16, 843, 30 U.S.C. 1253, 1255, 1271
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.050, 350.130, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 authorizes the cabinet to promulgate administrative regulations to control the injurious effects of surface coal mining and reclamation operations. This administrative regulation establishes the conditions for issuance and general form of various kinds of notices and orders to be issued by the cabinet, procedures for an informal hearing, and suspension and revocation requirements.
History: 405 KAR 012:020. 8 Ky.R. 1523; eff. 1-6-1983; 11 Ky.R. 1833; 12 Ky.R. 184; eff. 8-13-1985; 17 Ky.R. 2826; eff. 5-22-1991; 19 Ky.R. 477; 939; eff. 11-23-1992; 38 Ky.R. 674; 1003; 1311; eff. 2-3-2012; TAm eff. 5-4-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 12:030 Public participation in inspection and enforcement {#sec-405-kar-12-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 12:030}

Section 1. Citizen Requests for Inspection.

(1) Any citizen may request that the cabinet conduct an inspection by furnishing to an authorized representative of the secretary, a signed, written statement, or an oral report followed by a signed written statement, giving the authorized representative reason to believe that a violation, condition, or practice in violation of KRS Chapter 350, administrative regulations promulgated pursuant thereto, or permit conditions exists, and setting forth a telephone number and address at which the person can be contacted.

(2) The identity of any person supplying information to the cabinet relating to a possible violation or imminent danger or harm shall remain confidential with the cabinet if requested by that person, unless disclosure is required by law.

(3) Within ten (10) days of the inspection, or if there is no inspection, within fifteen (15) days of receipt of the person's written statement, the cabinet shall send to the person the following:

(a) If no inspection was conducted, an explanation of the reasons why no inspection was conducted;

(b) If an inspection was conducted, a description of the enforcement action taken, if any, which may consist of copies of the inspection report and all notices and orders issued as a result of the inspection or an explanation of why no enforcement action was taken; and

(c) An explanation of the person's right, if any, to administrative review by an authorized representative of the cabinet, of the cabinet's determinations and actions pursuant to inspection and enforcement.

(4) The cabinet shall give copies of all materials in subsection (3) of this section within the time limits specified in that subsection to the person alleged to be in violation. The name of the person requesting the inspection shall be removed unless disclosure of that person's identity is permitted under subsection (2) of this section.

Section 2. Review of Decision Not to Inspect or Enforce.

(1) Any person having an interest which is or may be adversely affected by a surface coal mining and reclamation operation or coal exploration operation may request the cabinet to review an authorized representative's decision not to inspect or not to take enforcement action with respect to any violation alleged by that person in a request for inspection pursuant to this administrative regulation. The request for a review shall be in writing and shall include a statement of how the person is or may be adversely affected and why the decision should be reviewed.

(2) An authorized representative of the cabinet shall conduct the review and inform the person and the permittee alleged to be in violation, in writing, of the results of the review within thirty (30) days of his receipt of the request.

(3) Administrative review under this section shall not affect any right to formal review pursuant to 400 KAR 1:110, Section 9 or other relief authorized by law.

Section 3. Citizen Requests for Review of Adequacy and Completeness of Inspections.

(1) Any person having an interest which is or may be adversely affected by a surface coal mining and reclamation operation or coal exploration operation may notify the Commissioner of the Department for Natural Resources in writing of any alleged failure on the part of the cabinet to make adequate and complete or periodic inspections. The notification shall include sufficient information to create a reasonable belief that such failure exists and to demonstrate that the person has an interest which is or may be adversely affected.

(2) The commissioner shall, within fifteen (15) days of receipt of the notification, determine whether the cabinet's inspections have been adequate, complete and periodic, as provided in this chapter, and if not, shall immediately order an inspection. The commissioner shall also furnish the complainant with a written statement of the reasons for such determination and the actions, if any, taken to remedy the failure.

Section 4. Citizens Requests to Accompany Inspector.

(1) Any person requesting an inspection under Section 1 may request to accompany the authorized representative of the cabinet during an inspection relative to the violation, condition, or practice with which the request was concerned.

(2) Such person shall have a right of entry to, upon and through the coal exploration or surface coal mining and reclamation operation about which the person supplied information, provided that the person is in the presence of and is under the control, direction, and supervision of the authorized representative of the cabinet while on the property. Such right of entry does not include a right to enter buildings without consent of the person in control of the building or without a search warrant.

(3) The authorized representatives of the cabinet shall exercise reasonable discretion in establishing the time and manner for inspections under this section. Nothing in this section shall be construed to place a duty of care upon the cabinet for persons accompanying authorized representatives of the cabinet.

(4) Any person desiring to participate in an inspection as provided in this section shall provide his or her own transportation to the site, and shall wear a hard hat and toe caps, to be supplied by the cabinet.

History

RELATES TO: KRS 350.020, 350.028, 350.050, 350.465
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.050, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part directs the cabinet to rigidly enforce the law and administrative regulations promulgated to control the injurious effects of surface coal mining and reclamation operations. KRS Chapter 350 in pertinent part directs the cabinet to develop administrative regulations to allow persons who have an interest which is or may be adversely affected to participate at every significant part of the administrative process. This administrative regulation sets forth the requirements for public participation in the inspection process. This administrative regulation sets forth procedures for citizen requests for inspection and review by the cabinet of inspection and enforcement decisions.
History: 405 KAR 012:030. 8 Ky.R. 1526; eff. 1-6-1983; TAm eff. 8-9-2007; TAm eff. 5-4-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025

Chapter 16 Performance Standards for Surface Mining Activities

405 KAR 16:001 Definitions for 405 KAR Chapter 16 {#sec-405-kar-16-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:001}

Section 1. Definitions.

(2) "Acid-forming materials" means earth materials that contain sulfide minerals or other materials which, if exposed to air, water, or weathering processes, form acids that could create acid drainage.

(3) "Acquisition" means purchase, lease, or option of land for the purpose of conducting or allowing through resale, lease, or option, the conduct of 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;

(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;

(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:

Was designated as a public road pursuant to the laws of the jurisdiction in which it is located;
Is maintained with public funds and constructed in a manner similar to other public roads of the same classification within the jurisdiction; and
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 or approval to conduct coal exploration operations pursuant to KRS Chapter 350 and 405 KAR Chapters 7 through 24.

(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) "Best technology currently available" means equipment, devices, systems, methods, or techniques that will prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area and minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife, and related environmental values, and achieve enhancement of those resources if practicable. The term includes equipment, devices, systems, methods, or techniques that are currently available anywhere as determined by the cabinet, even if they are not in routine use. The term includes construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with 405 KAR Chapters 16 and 18. The cabinet determines the best technology currently available as authorized by KRS Chapter 350 and 405 KAR Chapters 7 through 24.

(12) "Blaster" means a person who is directly responsible for surface blasting operations in surface coal mining and reclamation operations or coal exploration operations.

(13) "Bond pool" or "Kentucky Bond Pool" means the voluntary alternative bonding program established at KRS 350.700 through 350.755.

(14) "Cabinet" is defined by KRS 350.010.

(15) "C.F.R." means Code of Federal Regulations.

(16) "Coal" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77.

(17) "Coal exploration" means the field gathering of:

(18) "Coal mine waste" means coal processing waste and underground development waste.

(19) "Coal processing waste" means materials that are separated from the product coal during the cleaning, concentrating, or other processing or preparation of coal.

(20) "Collateral bond" means an indemnity agreement in a sum certain payable to the cabinet executed by the permittee and that which 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.

(21) "Combustible material" means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

(22) "Compaction" means increasing the density of a material by reducing the voids between the particles by mechanical effort.

(23) "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.

(24) "Cumulative impact area" means the area, including the permit area, within which impacts resulting from the proposed operation could interact with the impacts of all anticipated mining on surface and groundwater systems. Anticipated mining includes, at a minimum, the entire projected lives through bond release of:

(a) The proposed operation;

(b) All existing operations;

(d) All operations required to meet diligent development requirements for leased federal coal for which there is actual mine development information available.

(25) "Day" means calendar day unless otherwise specified to be a working day.

(26) "dB" means decibels.

(27) "Department" means the Department for Natural Resources.

(28) "Developed water resources land" means land used for storing water for beneficial uses such as stockponds, irrigation, fire protection, flood control, and water supply.

(29) "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.

(30) "Diversion" means a channel, embankment, or other manmade structure constructed to divert water from one (1) area to another.

(31) "Downslope" means the land surface below the projected outcrop of the lowest coalbed being mined along each highwall.

(32) "Durable rock" means rock that:

(a) Does not slake in water;

(b) Is not reasonably expected to degrade to a size or condition that will block, cause failure of, impair, or restrict the effectiveness of the internal drainage system; and

The Method of Determination of Slake Durability Index (Kentucky Method 64-513-79); or
A test method that yields an equivalent measure of durability based upon correlation of results with Kentucky Method 64-513-79.

(33) "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.

(34) "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.

(35) "Excess spoil":

(a) Means spoil disposed of in a location other than the coal extraction area; and

(b) Does not mean spoil material used to achieve the approximate original contour.

(36) "Fish and wildlife land use", as used in 405 KAR 16:210 and in similar situations when referring to a premining or postmining land use, means land dedicated wholly or partially to the production, protection, or management of fish or wildlife. Areas considered as having the fish and wildlife land use are typically characterized by a diversity of habitats in which use by wildlife is the dominant characteristic, whether actively managed or not.

(37) "Forest land" means land used or managed for the long term production of wood, wood fiber, or wood derived products.

(38) "Fugitive dust" means that particulate matter that becomes airborne due to wind erosion from exposed surfaces.

(39) "Ground cover" means the area of ground covered by the combined aerial parts of vegetation and litter produced and distributed naturally and seasonally on site, expressed as a percentage of the total area of measurement.

(40) "Groundwater" means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated.

(41) "Growing season" means the period during a one (1) year cycle, from the last killing frost in the spring to the first killing frost in the fall, in which climatic conditions are favorable for plant growth. In Kentucky, this period normally extends from mid-April to mid-October.

(42) "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.

(43) "Higher or better uses" means postmining land uses that have a higher economic value or nonmonetary benefit to the landowner or the community than the premining land uses.

(44) "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.

(45) "Highwall remnant" means that portion of highwall that remains after backfilling and grading of a remining permit area.

(46) "Historically used for cropland" means land that:

(a) Has been used for cropland for any of five (5) years or more of the ten (10) years immediately preceding the:

Application; or
Acquisition of the land for the purpose of conducting a surface coal mining and reclamation operation;

(b) Would likely have been used for cropland for any five (5) of the ten (10) years immediately preceding the acquisition or application, but for some fact of ownership or control of the land unrelated to the productivity of the land; or

(c) Falls outside the five (5) of ten (10) years criteria, but the cabinet determines is clearly cropland on the basis of additional cropland history of:

Surrounding land; and
The land under consideration.

(48) "Hz" means hertz.

(49) "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.

(50) "Impounding structure" means a dam, embankment, or other structure used to impound water, slurry, or other liquid or semiliquid material.

(51) "Impoundment" means a water, sediment, slurry, or other liquid or semiliquid holding structure or depression, either naturally formed or artificially built.

(52) "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.

(53) "In situ process" means:

(a) In situ gasification;

(b) In situ leaching;

(d) Solution mining;

(e) Borehole mining;

(f) Fluid recovery mining; or

(g) Another activity conducted on the surface or underground in connection with:

In-place distillation;
Retorting;
Leaching; or
Chemical or physical processing of coal.

(54) "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.

(55) "KAR" means Kentucky administrative regulations.

(56) "KPDES" means Kentucky Pollutant Discharge Elimination System.

(57) "KRS" means Kentucky Revised Statutes.

(58) "Land use" means specific functions, uses, or management-related activities of an area, and could be identified in combination if 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.

(59) "Modified highwall" means either:

(a) The highwall resulting from remining where the preexisting highwall face is removed; or

(b) The highwall resulting from remining where the preexisting highwall is vertically enlarged.

(60) "Monitoring" means the collection of environmental data by either continuous or periodic sampling methods.

(61) "MRP" means mining and reclamation plan.

(62) "MSHA" means Mine Safety and Health Administration.

(63) "Mulch" means vegetation residues or other materials that aid in soil stabilization and soil moisture conservation, thus providing microclimatic conditions suitable for germination and growth.

(64) "Notice of noncompliance and order for remedial measures" means a written document and order prepared by an authorized representative of the cabinet that sets forth 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 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.

(65) "Operations" is defined by KRS 350.010.

(66) "Operator" is defined by KRS 350.010.

(67) "Order for cessation and immediate compliance" means a written document and order issued by an authorized representative of the cabinet when:

Creates an imminent danger to the health or safety of the public; or
Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources.

(68) "OSM" means Office of Surface Mining Reclamation and Enforcement, United States Department of the Interior.

(69) "Other treatment facilities" means any chemical treatments, such as flocculation or neutralization, or mechanical structures, such as clarifiers or precipitators, that have a point source discharge and are utilized:

(a) To prevent additional contributions of dissolved or suspended solids to streamflow or runoff outside the permit area; or

(b) To comply with 405 KAR 16:070.

(70) "Outslope" means the face of the spoil or embankment sloping downward from the highest elevation to the toe.

(71) "Overburden" is defined by KRS 350.010.

(72) "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.

(73) "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."

(74) "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.

(75) "Permanent diversion" means a diversion remaining after surface coal mining and reclamation operations are completed that has been approved for retention by the cabinet and other appropriate Kentucky and federal agencies.

(76) "Permit" means written approval issued by the cabinet to conduct surface coal mining and reclamation operations.

(77) "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 shall include 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.

(78) "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 required by KRS Chapter 350 and 405 KAR Chapters 7 through 24 are satisfied.

(79) "Person" is defined by KRS 350.010.

(80) "Precipitation event" means a quantity of water resulting from drizzle, rain, snowmelt, sleet, or hail in a specified period of time.

(81) "Previously mined area" means land that was affected by coal mining operations conducted prior to August 3, 1977, that has not been reclaimed to the standards of this title.

(82) "Prime farmland" means those lands that are 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 administrative regulation.

(83) "Probable hydrologic consequences" means the projected results of proposed surface coal mining and reclamation operations which may 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.

(84) "Public building" means any structure that is owned or leased, and principally used by a governmental agency for public business or meetings.

(85) "Public road" means any publicly owned thoroughfare for the passage of vehicles.

(86) "RAM" means Reclamation Advisory Memorandum.

(87) "Reasonably available spoil" means spoil and suitable coal mine waste material generated by the remining operation and other spoil or suitable coal mine waste material located in the permit area that is accessible and available for use and that when rehandled will not cause a hazard to public safety or significant damage to the environment. For this purpose, the permit area includes all spoil of this nature located in the immediate vicinity of the mining operation.

(88) "Recharge capacity" means the ability of the soils and underlying materials to allow precipitation and runoff to infiltrate and reach the zone of saturation.

(89) "Reclamation" is defined by KRS 350.010.

(90) "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.

(91) "Reference area" means a land unit maintained under appropriate management for the purpose of measuring vegetative ground cover, productivity, and plant species diversity that are produced naturally or by crop production methods approved by the cabinet.

(92) "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.

(93) "Remining" means conducting surface coal mining and reclamation operations that affect previously mined areas.

(94) "Residential land" means tracts employed for single and multiple-family housing, mobile home parks, and other residential lodgings.

(95) "Road":

(96) "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.

(97) "SCS" means Soil Conservation Service.

(98) "Sedimentation pond" means a primary sediment control structure:

(a) Designed, constructed, or maintained pursuant to 405 KAR 16:090 or 405 KAR 18:090;

(b) That could include a barrier, dam, or excavated depression to:

Slow water runoff; and
Allow suspended solids to settle out; and

(c) That does not include secondary sedimentation control structures, such as a straw dike, riprap, check dam, mulch, dugout, or other measure that reduces overland flow velocity, reduces runoff volume, or trap sediment, to the extent that the secondary sedimentation structure drains into a sedimentation pond.

(99) "Shadow area" means the surface area overlying underground mine works and surface areas associated with auger and in situ mining.

(100) "Significant, imminent environmental harm" means an adverse impact on land, air, or water resources including plant and animal life as further defined in this subsection.

(a) An environmental harm is imminent, if a condition, practice, or violation exists that:

Is causing environmental harm; or
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.

(101) "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 (such as 1v:5h). It can also be expressed as a percent or in degrees.

(102) "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.

(103) "SMCRA" means Surface Mining Control and Reclamation Act, 30 U.S.C. Chapter 25.

(104) "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:

(d) "C horizon." The deepest layer of soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity.

(105) "Spoil" means overburden and other materials, excluding topsoil, coal mine waste, and mined coal, that are excavated during surface coal mining and reclamation operations.

(106) "Stabilize" means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties, such as by providing a protective surface coating.

(107) "Steep slope" means any slope of more than twenty (20) degrees.

(108) "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.

(109) "Surface blasting operations":

(a) Means the on-site storage, transportation, and use of explosives in association with:

A coal exploration operation;
Surface mining activities; or
A surface disturbance of underground mining activities; and

(b) Includes:

Design of an individual blast;
Implementation of a blast design;
Initiation of a blast;
Monitoring of an airblast and ground vibration; and
Use of access control, warning and all-clear signals, and similar protective measures.

(110) "Surface coal mining and reclamation operations" is defined by KRS 350.010.

(111) "Surface coal mining operations" is defined by KRS 350.010.

(112) "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.

(113) "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).

(114) "Temporary diversion" means a diversion of a stream or overland flow that is used during coal exploration or surface coal mining and reclamation operations and not approved by the cabinet to remain after reclamation as part of the approved postmining land use.

(115) "Ton" means 2000 pounds avoirdupois (.90718 metric ton).

(116) "Topsoil" means the A and E soil horizon layers of the four (4) master soil horizons.

(117) "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.

(118) "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.

(119) "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.

(120) "TRM" means Technical Reclamation Memorandum.

(121) "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.

(122) "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

(123) "Undeveloped land or no current use or land management" means land that is undeveloped or, if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession.

(124) "U.S. EPA" means United States Environmental Protection Agency.

(125) "Valley fill" means a fill structure consisting of any material other than coal waste and organic material that is placed in a valley where side slopes of the existing valley measured at the steepest point are greater than twenty (20) degrees or the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than ten (10) degrees.

(126) "Valuable environmental resources" means:

(a) Listed or proposed endangered or threatened species of plants or animals or their critical habitats listed by the Secretary of the Interior under the Endangered Species Act of 1973, as amended (16 U.S.C. Sec. 1531 et seq.), or those species or habitats protected by similar state statutes; and

(b) Habitats of unusually high value for fish and wildlife, as determined by the cabinet in consultation with state and federal agencies with responsibilities for fish and wildlife.

(127) "Water table" means the upper surface of a zone of saturation, where the body of groundwater is not confined by an overlying impermeable zone.

(128) "Water transmitting zone" means a body of consolidated or unconsolidated rocks that, due to their greater primary or secondary permeability relative to the surrounding rocks, can reasonably be considered to function as a single hydraulic medium for the flow of groundwater.

(129) "Wetland" means land that has a predominance of hydric soils and that is inundated or saturated by surface or groundwater 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.

(b) "Hydrophytic vegetation" means a plant growing in:

Water; or
A substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content.

History

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, 917c, 30 U.S.C. Chapter 25, 1253, 1255, 1291
STATUTORY AUTHORITY: KRS 350.028(1), (5), 350.465, 30 C.F.R. Parts 730-733, 735, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5) and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation defines terms used in 405 KAR Chapter 16.
History: 405 KAR 016:001. 18 Ky.R. 2475; 2844; eff. 4-3-1992; 24 Ky.R. 704; 2652; eff. 6-10-1998; TAm eff. 8-9-2007; TAm eff. 7-6-2016; 44 Ky.R. 630, 1005, 1310; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:010 General provisions {#sec-405-kar-16-010 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:010}

Section 1. Applicability. The provisions of this chapter are applicable to all surface mining activities conducted under 405 KAR Chapters 7 through 24. The provisions of this chapter also apply to those special categories of surface mining activities for which performance standards are set forth under 405 KAR 20:030 through 405 KAR 20:080 except to the extent that a provision of those administrative regulations specifically exempts a particular category from a particular requirement of this chapter.

Section 2. Coal Recovery. Surface mining activities shall be conducted so as to maximize the utilization and conservation of the coal, while utilizing the best appropriate technology currently available to maintain environmental integrity, so that reaffecting the land in the future through surface coal mining operations is minimized.

Section 3. Protection of Underground Mining. No surface mining activity shall be conducted within 500 feet of any point of either an active or abandoned underground mine, unless:

(1) If any of the workings of the underground mine are active, the nature, timing, and sequence of the surface mining activity are jointly approved by the cabinet, the MSHA, and the Kentucky Office of Mine Safety and Licensing; and

(2) For both active and abandoned underground mines, the surface mining activity results in improved resource recovery, abatement of water pollution, or elimination of hazards to the health and safety of the public.

Section 4. Slide and Erosion Barriers. An undisturbed natural barrier shall be provided beginning at the elevation of the lowest coal seam to be mined and extending from the outslope for a minimum distance of fifteen (15) feet or greater distance as the cabinet may determine is necessary to assure stability. The barrier shall be retained in place to prevent slides and erosion.

Section 5. Slides. At any time a slide occurs which may have a potential adverse effect on property, health, safety, or the environment, the person who conducts the surface mining activities shall notify the cabinet by the fastest available means and comply with any remedial measures required by the cabinet.

Section 6. Permanent Abandonment of Operations.

(1) Notice required. On or before the date of permanent abandonment of operations, the permittee shall provide written notice to the cabinet that permanent abandonment is intended.

(2) Prior to permanent abandonment, and prior to removal of necessary equipment from the site, all affected areas shall be closed, backfilled, and otherwise permanently reclaimed in accordance with the requirements of KRS Chapter 350, the administrative regulations of 405 KAR, and the permit.

(3) All equipment, underground openings, structures, or other facilities not required for monitoring shall be removed and the affected areas reclaimed unless the cabinet approves the retention of the equipment, openings, structures, or other facilities as compatible with the postmining land use or as beneficial to environmental monitoring.

Section 7. Temporary Cessation of Operations.

(1) Notice required. Prior to a temporary cessation of operations which the permittee intends to last for thirty (30) days or more, or as soon as it is known to the permittee that an existing temporary cessation will last beyond thirty (30) days, the permittee shall provide written notice to the cabinet that temporary cessation is anticipated. The notice shall state to what extent equipment will be removed from the site during the temporary cessation, and shall state the approximate date on which the permittee intends that operations will be resumed.

(2) Temporary cessation shall not relieve a permittee of the obligation to comply with 405 KAR 16:070, Section 1(1)(g) and the surface and groundwater monitoring requirements of 405 KAR 16:110, and the obligation to comply with all applicable conditions of the permit during the cessation.

(3) During temporary cessations, equipment and facilities necessary to environmental monitoring or to compliance with performance standards shall be made secure to the extent practicable.

Section 8. Protection of Unmined Barriers of Coal Left by Underground Mining.

(1) Coal shall not be removed from an unmined barrier of coal left by an underground mine where the underground workings dip toward and approach the land surface, unless the cabinet has approved the proposed coal removal under this section.

(2) The cabinet shall approve the proposed coal removal if it determines that the removal meets all other applicable requirements of 405 KAR Chapters 7-24 and KRS Chapter 350 and also meets at least one (1) of paragraphs (a)-(e) of this subsection:

(a) The removal will not adversely affect the stability of the unmined barrier of coal;

(b) The removal will completely eliminate or significantly reduce existing underground workings;

(c) The removal will eliminate or significantly reduce an existing or potential threat to the health or safety of the public resulting from the existing underground workings;

(d) The removal will eliminate or significantly reduce existing or potential adverse impacts to the quantity or quality of groundwater or surface water resulting from the existing underground workings; or

(e) The unmined barrier of coal is not necessary to protect the health or safety of the public or to protect the quantity or quality of groundwater or surface water.

History

RELATES TO: KRS 350.020, 350.090, 350.093, 350.151, 350.405, 350.410, 350.440, 350.445, 350.450, 350.465, 30 C.F.R. Parts 730-733, 735, 816.59, 816.79, 816.99, 816.131-816.132, 917, 30 U.S.C. 1253, 1255
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.465, 30 C.F.R. Parts 730-733, 735, 816.59, 816.79, 816.99, 816.131-.132, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation contains general performance standards for maximizing coal recovery, protection of underground mining, prevention and correction of landslides, temporary cessation of operations, permanent abandonment of operations, and protection of unmined barriers of coal left by underground mining.
History: 405 KAR 016:010. 8 Ky.R. 1527; eff. 1-6-1983; 12 Ky.R. 931; eff. 2-4-1986; 15 Ky.R. 453; eff. 12-13-1988; 21 Ky.R. 528; 1346; 1496; eff. 12-12-1994; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:020 Contemporaneous reclamation {#sec-405-kar-16-020 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:020}

Section 1. Definition. "Completed reclamation" means completion of reclamation phase I as established in 405 KAR 10:040, Section 2(4)(a).

Section 2. General. Reclamation operations, including, backfilling, grading, topsoil redistribution, liming, fertilizing, other soil preparation, seeding, planting, mulching, and revegetation of all land that is disturbed by surface mining activities, shall occur as contemporaneously as practicable with mining operations and in accordance with this administrative regulation.

Section 3. Backfilling and Grading. Backfilling and grading operations shall proceed as concurrently with mining operations as possible and in accordance with the requirements of this section, except that specific time and distance criteria established in the approved plan for backfilling and grading shall take precedence over corresponding criteria in this administrative regulation.

(1) The approved backfilling and grading plan may specify time and distance criteria less restrictive than those established in this administrative regulation, and may allow more than one (1) pit per permit area, if the permittee has demonstrated through detailed written analysis in the permit application that other criteria or additional pits are essential to the proposed mining and reclamation operations, and if the requested criteria or additional pits will not likely cause adverse environmental impacts.

(2) If alternative distance limits are approved or additional pits allowed, then the applicant shall provide supplemental assurance in accordance with 405 KAR 10:015, Section 11.

(3)

(a) Area mining. Backfilling and grading to approximate original contour on a disturbed area shall be completed within 180 calendar days following the removal of coal from that area and shall not be more than four (4) spoil ridges behind the pit being mined, with the spoil from the pit being mined being considered the first spoil ridge.

(b) There shall be only one (1) pit allowed per permit area.

(4) Auger mining. Coal removal in a given location shall be completed within sixty (60) calendar days after the initial excavation for the purpose of removal of topsoil or overburden at that location.

(a) Auger holes shall be sealed as required by 405 KAR 20:030.

(b) Backfilling and grading to approximate original contour shall follow coal removal by not more than sixty (60) days and by not more than 1,500 linear feet.

(5) Contour mining.

(a) Coal removal in a given location shall be completed within sixty (60) calendar days after the initial excavation for the purpose of removal of topsoil or overburden at that location.

(b) Backfilling and grading to approximate original contour shall follow coal removal by not more than sixty (60) calendar days and by not more than 1,500 linear feet.

(6) Multiple-seam contour mining.

(a) If overlapping multiple cuts producing a benched highwall are made to remove more than one (1) coal seam at a given location, backfilling, and grading at that location shall be completed within sixty (60) calendar days after removal of the last coal seam at that location and shall follow the advancing cut of the last coal seam by not more than 1,500 feet.

(b) Removal of all coal seams shall proceed as concurrently as possible and in a timely manner, in order to minimize the time period in which disturbed areas are exposed prior to reclamation.

(7) Combined contour mining and auger mining.

(a) Coal removal by contour mining at a given location shall be completed within the time frame established in subsection (5) or (6) of this section as appropriate.

(b) Auger mining at a given location shall be completed within thirty (30) calendar days after coal removal by contour mining at that location.

(c)

Sealing of auger holes and backfilling and grading shall then be completed as required in subsection (4) of this section.
There shall be only one (1) contour mining pit and one (1) auger mining operation allowed per permit area.

(8) Mountaintop removal. Backfilling and grading on a disturbed area shall be completed within 180 calendar days following the removal of coal from that area. If the mountaintop removal operation begins by mining a contour cut around all or a part of the mountaintop, the time and distance limits for contour mining shall apply to that cut unless alternative limits are approved pursuant to Section 3 of this administrative regulation and 405 KAR 10:015, Section 11.

(9) All final backfilling and grading shall be completed before equipment necessary for backfilling and grading is removed from the site.

Section 4. Soil Preparation and Revegetation.

(1) When backfilling and grading have been completed on an area, the required topsoil redistribution, liming, fertilizing, other soil preparation, seeding, planting, and mulching of that area shall be completed as soon as possible in a manner consistent with the approved plans for topsoil handling and revegetation and in accordance with 405 KAR 16:200, Section 3.

(2) The time allowed for soil preparation and revegetation pursuant to subsection (1) of this section may exceed thirty (30) calendar days only if specifically authorized in the approved plans for topsoil handling and revegetation or if authorized pursuant to Section 5 or 6 of this administrative regulation.

Section 5. Deferments.

(1) The cabinet may allow a permittee to defer the time criteria for coal removal and contemporaneous reclamation requirements on specified areas if the permittee can demonstrate that the deferment is necessary to address at least one (1) of the following:

(a) Adverse condition including weather, labor, or other conditions clearly beyond the permittee's control;

(b) Combined surface and underground mining activities subject to the provisions of 405 KAR 8:050, Section 7, and 405 KAR 20:020; or

(2) Application for a deferment pursuant to this section shall be made through submittal of the Coal Marketing Deferment, MPA-10, which is incorporated by reference in 405 KAR 8:010, Section 26. Approval of the deferment request shall be made in writing. The approval shall state that the deferment is justified and that environmental damage shall not occur during the period of deferment.

(a) Application for a deferment pursuant to subsection (1)(a) of this section for adverse conditions shall be made in writing and shall include documentation of the adverse conditions beyond the operator's control and demonstration of impossibility of conducting coal removal and contemporaneous reclamation in a timely manner due to those conditions.

The application shall be filed at the appropriate regional office of the department.
Upon a successful demonstration that the adverse conditions exist, the regional administrator may grant a reclamation deferment for a maximum of thirty (30) days.
At least seven (7) days prior to the expiration of the deferment, the permittee may request, in writing, an additional extension, again stating the reason for the request and providing appropriate additional documentation.
The regional administrator may renew the original extension once upon request, but the renewal shall not exceed thirty (30) days.
The need for additional time shall be demonstrated to the Division of Mine Reclamation and Enforcement in Frankfort by written request.
The request shall initially be submitted to the regional office at least two (2) weeks prior to the expiration of the renewed deferment.
Upon recommendation of the regional administrator, the director of the Division of Mine Reclamation and Enforcement shall issue his decision on or before expiration of the deferment.

(b) Application for a deferment pursuant to subsection (1)(b) of this section for combined surface and underground mining shall be made according to 405 KAR 8:050, Section 7.

(c) Application for a deferment pursuant to subsection 1(c) of this section for coal marketing problems shall be made according to Section 6 of this administrative regulation.

(3) The applicant has the burden of establishing the need for a deferment.

(a) The applicant shall demonstrate that reclamation on the site is contemporaneous as of the date of the request for deferment and that distance requirements for contemporaneous reclamation shall be met during the period of deferment.

(b) The permittee shall continue to comply with the time limits of the coal removal and contemporaneous reclamation requirements until the deferment is issued.

(4)

(a) Reclamation deferments shall be approved for a period reasonably related to the specified conditions justifying the deferment.

(b) The deferral shall not extend beyond the expiration date of the permit and in no event shall the aggregate deferral period exceed thirty (30) months, except if approved combined mining is being carried out under subsection (1)(b) of this section.

(5) The cabinet shall periodically reexamine and update the amount of the bond on the permit area so that the amount of the bond is sufficient to assure completion of reclamation if the work had to be performed by the cabinet in the event of forfeiture.

Section 6. Additional Requirements for Deferments for Coal Marketing Problems. Upon written application conforming to the requirements of KRS Chapter 350 and 405 KAR 7 through 24, the cabinet may grant a deferment of coal removal and contemporaneous reclamation for a period not to exceed thirty (30) months pursuant to KRS 350.093.

(1) Application requirements.

(a) An application shall contain at least the following:

A demonstration of the need for the deferment, including documentation of the coal marketing problem;
A plan consisting of a detailed narrative description of the method by which the applicant shall conform to each of the performance standards established in subsection (2) of this section;
A detailed schedule for implementation of each of the performance standards of subsection (2) of this section, which may not extend beyond thirty (30) days from the issuance by the cabinet of a deferment from coal removal and contemporaneous reclamation;
An itemized estimate of the total cost of reclamation of the area proposed for deferment. The estimate shall, at a minimum, include calculations and supporting data demonstrating the volume of spoil necessary for backfilling and grading all open pits and highwalls, the cost of backfilling those pits and highwalls, the cost of final grading and revegetation of the entire disturbed area, and the cost of moving necessary reclamation equipment to the job site; and
Written consent of the surety for the deferment if the permit area or increment is covered by a surety bond.

(b) The applicant shall place an advertisement in the newspaper of largest bona fide circulation in each county in which the permit is located.

The advertisement shall be published within ten (10) days after the date the application is submitted to the cabinet and shall contain, at a minimum, the location of the area for which coal removal and contemporaneous reclamation are proposed to be deferred, the reason for which the deferment is sought, and the duration of the requested deferment.
The advertisement shall also indicate that the deferment shall not exceed six (6) months initially, but may be renewed for additional six (6) months periods up to a maximum of thirty (30) months.
The applicant shall submit proof of the advertisement to the cabinet within fifteen (15) days after application for the deferment.
The application shall not be deemed complete until the proof is submitted.

(c) The applicant shall also notify, in writing, the owners of the surface of the permit area and adjacent areas as listed on the permit application.

The applicant shall provide proof of this notice to the cabinet.
The application shall not be deemed complete until the proof is submitted. Within five (5) days after receipt of a complete application, the cabinet shall notify those other persons, if any, who have an interest that is or may be adversely affected by the proposed deferment.

(d) A person with an interest that is or may be adversely affected may file written comments and objections to the application for a deferment. The comments or objections shall be filed within ten (10) days after receipt of the written notice or publication of the newspaper notice, whichever is later.

(e) Upon receipt of the application, the cabinet shall examine the data and calculations submitted pursuant to subsection (1)(a)4 of this section and shall cause an inspection of the area subject to the proposed deferment to be made by an authorized agent of the cabinet.

Based upon the data supplied and the inspection, the Division of Permits of the cabinet shall determine if the existing bond for the entire permit or increment is sufficient for the cabinet to completely reclaim the entire disturbed area of the permit or increment at the expiration of the deferment.
If the existing bond is insufficient, then the cabinet shall require, prior to approving the deferment, that the applicant file additional bond sufficient for the cabinet to completely reclaim the disturbed area.

(f) The cabinet shall consider the application, other submittals from the applicant, and comments received from the public, and shall render a final decision on the application within thirty (30) days of receipt of the complete application.

If the applicant has satisfied the requirements for a deferment from coal removal and contemporaneous reclamation established in KRS 350.093(2) and in this administrative regulation, then the cabinet shall grant a deferment to the applicant for a period not to exceed six (6) months.
Upon approval by the cabinet, the plan and schedule proposed by the applicant and conditions imposed on the approval by the cabinet shall become conditions of the permit.

(2) Performance standards. Each permittee subject to a deferment shall, at a minimum:

(a) Complete final reclamation including backfilling, grading, topsoiling, and revegetation on all disturbed areas; except that those areas of the pit, work area, excess spoil disposal areas, topsoil storage areas, and access road necessary to allow resumption of coal extraction without redisturbance of finally reclaimed areas may be exempted from this requirement for the duration of the deferment. In order to meet this requirement, the permittee may be required to reclaim closer to the pit than the distance limits specified in the contemporaneous reclamation administrative regulation;

(b) Mulch or establish quick growing temporary vegetation, or both, on all areas exempted pursuant to paragraph (a) of this subsection (except for haul road surfaces), such as excess spoil disposal areas, work areas, topsoil storage areas, and all other areas that have been cleared of vegetation, to the extent technically practicable to achieve erosion control or stability. The permittee shall maintain the cover on all these areas to minimize erosion throughout the deferment period;

(c) Acid- or toxic-producing spoil shall not be left exposed but shall be covered or treated in accordance with Section 3 of 405 KAR 16:190 and 405 KAR 18:190;

(d) Supplemental sediment control measures such as straw dikes and fabric filter fences shall be required if necessary to minimize additional contributions of sediment to the stream flow or run-off; and

(e) If accumulation of water in the pit may adversely impact the hydrologic balance, public health and safety or the environment, the cabinet shall require measures necessary to minimize adverse impacts. These may include:

Providing drainage from the pit to prevent breaching of the undisturbed berm; or
Pumping the water to a treatment facility if accumulation of acid or toxic water in the pit may result in contamination of the ground water.

(3) Deferment implementation.

(a) The permittee shall implement the terms of the approved plan within the time schedule approved by the cabinet and consistent with this administrative regulation.

(b) Except as expressly modified by the approved plan, schedule, and conditions in the deferment approval, the permittee shall comply with all of the requirements of 405 KAR Chapters 7 through 24 and the permit conditions that would apply to the operation had the deferment not been granted. These requirements include:

All discharges of water from the permitted area shall be continually treated to meet the applicable effluent limitations;
All water quality monitoring and reporting otherwise required shall continue;
All diversion ditches, sedimentation ponds, haul road drainage ditches and culverts, shall be rehabilitated as necessary and continually maintained to comply with the applicable performance standards and with the designs approved in the permit. Sediment shall be removed from the sedimentation ponds if the design sediment storage volume has filled with sediment; and
Haul road maintenance, such as grading, replacement of durable surface material, and cleaning out of ditches and culverts, shall be continually performed as necessary to comply with the performance standards and the approved permit and to minimize erosion.

(4) Expiration and renewal.

(a) A deferment from coal removal and contemporaneous reclamation shall expire six (6) months after the date of issuance of the deferment by the cabinet.

A deferment from coal removal and contemporaneous reclamation may be renewed upon written application for a period of no more than six (6) months upon a showing of need for additional time, and upon a showing that the area subject to deferment is in compliance with the requirements of 405 KAR Chapters 7 through 24, the permit, and the terms of the deferment.
The cabinet shall inspect the area subject to deferment prior to approval of any renewal.

(b) Regardless of the reasons for the deferment, deferments or subsequent renewals shall not be granted beyond the maximum aggregate period of thirty (30) months for a permit area, including deferment periods issued for adverse conditions. At the expiration of the thirty (30) month aggregate period, a permittee shall not be granted additional deferments or renewals unless the permittee can demonstrate that it has conducted twelve (12) months of continuous active coal removal from the permit area after the expiration of the thirty (30) month aggregate period, it has completed reclamation of all previously deferred areas in the permit area, and it otherwise meets all requirements for a deferment.

(5) Enforcement and revocation.

(a) The cabinet shall inspect the area subject to deferment at least once each month on the average, during the routine partial and complete inspections made of the permit area. Upon each inspection, the inspector shall note under the "comments" section of the Mine Inspection Report form if the area subject to deferment meets the conditions of the deferment approval, including the plan and schedule.

(b) If the inspection shows that a violation of the conditions of the deferment or of 405 KAR Chapters 7 through 24 or of the conditions of the permit is occurring on the area subject to deferment, or is causally related to the area subject to deferment, then the cabinet shall issue a notice of noncompliance and order for remedial measures or order for cessation and immediate compliance in accordance with 405 KAR Chapter 12. If the permittee fails to abate the violation within the time for abatement, or extension thereof, established by the cabinet, then the cabinet shall revoke the deferment in addition to other enforcement actions required by 405 KAR Chapters 7 through 24.

History

RELATES TO: KRS 350.062, 350.093, 350.100, 350.405, 350.410, 350.435, 350.450, 350.465, 30 C.F.R. 730-733, 735, 816.100, 917, 30 U.S.C. 1253, 1255
STATUTORY AUTHORITY: KRS 350.028, 350.093, 350.100, 350.465, 30 C.F.R. Parts 730-733, 735, 816.100, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations establishing performance standards for protection of people and property, land, water, and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation establishes requirements for keeping reclamation operations, including backfilling, grading, soil preparation, and revegetation, contemporaneous with mining operations.
History: 405 KAR 016:020. 8 Ky.R. 1528; eff. 1-6-1983; 11 Ky.R. 237; 578; eff. 10-9-1984; 21 Ky.R. 530; eff. 12-12-1994; TAm eff. 8-9-2007; 38 Ky.R. 2007; 39 Ky.R. 473; eff. 9-6-2012; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:030 Signs and markers {#sec-405-kar-16-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:030}

Section 1. Specifications. Signs and markers required under this chapter shall:

(1) Be posted and maintained by the permittee;

(2) Be of a uniform design throughout the operation that can be easily seen and read;

(3) Be made of durable material; and

(4) Conform to local ordinances and codes.

Section 2. Duration of Maintenance. Signs and markers shall be maintained during the conduct of all activities to which they pertain.

Section 3. Mine and Permit Identification Signs.

(1) Identification signs shall be displayed at each point of access to the permit area from public roads.

(2) Signs shall show the name, business address, and telephone number of the permittee and the person, if any, who conducts the surface mining activities on behalf of the permittee and the identification number of the current permit authorizing surface mining activities under KRS Chapter 350.

(3) Signs shall be retained and maintained until after the release of all bonds for the permit area.

Section 4. Perimeter Markers. The perimeter of a permit area shall be clearly marked before the beginning of surface mining activities.

Section 5. Buffer Zone Markers. Buffer zones as required under 405 KAR 16:060, Section 11, shall be marked along their boundaries.

Section 6. Blasting Signs. If blasting is conducted incident to surface mining activities, the permittee shall:

(1) Conspicuously display signs reading "Blasting Area" along the edge of any blasting area that comes within fifty (50) feet of any road within the permit area, or within 100 feet of any public road right-of-way.

(2) Prevent unauthorized entry to the immediate vicinity of charged holes by guarding or by conspicuous posting or flagging of the immediate vicinity.

(3) Place at all entrances to the permit area from public roads or highways conspicuous signs which state "Warning! Explosives in Use," which clearly explain the blast warning and all clear signals that are in use and which explain the marking of blast areas and charged holes within the permit area.

Section 7. Topsoil Markers. Where topsoil or other vegetation-supporting material is segregated and stockpiled as required under 405 KAR 16:050, Section 3, the stockpiled material shall be clearly marked.

History

RELATES TO: KRS 350.200, 350.430, 350.465
STATUTORY AUTHORITY: KRS 350.028, 350.200, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth location and informational requirements for signs and markers at mine access points, perimeters, stream buffer zones, blasting areas, and topsoil storage areas.
History: 405 KAR 016:030. 8 Ky.R. 1529; eff. 1-6-1983; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:040 Casing and sealing of drilled holes {#sec-405-kar-16-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:040}

Section 1. General Requirements. Each exploration hole, other drill or borehole, well, or other exposed underground opening shall be cased, sealed, or otherwise managed as approved by the cabinet, as necessary to prevent acid or other toxic drainage from entering ground or surface waters, to minimize disturbance to the prevailing hydrologic balance, and to ensure the safety of people, livestock, fish and wildlife, and machinery in the permit area and adjacent area. If these openings are uncovered or exposed by surface mining activities within the permit area they shall be permanently closed, unless approved for water monitoring, or otherwise managed in a manner approved by the cabinet. Use of a drilled hole or borehole or monitoring well as a water well must meet the provisions of 405 KAR 16:060, Section 7. This section does not apply to holes solely drilled and used for blasting.

Section 2. Temporary. Each exploration hole, other drill or boreholes, wells and other exposed underground openings which have been identified in the approved permit application for use to return coal processing waste or water to underground workings, or to be used to monitor ground water conditions, shall be temporarily sealed before use and protected during use by barricades, or fences, or other protective devices approved by the cabinet. These devices shall be periodically inspected and maintained in good operating condition by the person who conducts the surface mining activities.

Section 3. Permanent. When no longer needed for monitoring or other use approved by the cabinet upon a finding of no adverse effect, or unless approved for transfer as a water well under 405 KAR 16:060, Section 7, each exploration hole, other drilled hole or borehole, well, and other exposed underground opening shall be capped, sealed, backfilled, or otherwise properly managed, as required by the cabinet, under Section 1 of this administrative regulation and consistent with 30 CFR 75.1711. Permanent closure measures shall be designed to prevent access to the mine workings by people, livestock, fish and wildlife, and machinery, and to keep acid or other toxic drainage from entering ground or surface waters.

History

RELATES TO: KRS 350.420, 350.465
STATUTORY AUTHORITY: KRS 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for temporary and permanent casing, sealing or other management of drill holes, boreholes, wells, or other exposed underground openings.
History: 8 Ky.R. 1529; eff. 1-6-1983; Crt eff. 7-3-2018.

405 KAR 16:050 Topsoil {#sec-405-kar-16-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:050}

Section 1. General Requirements.

(1) All topsoil, topsoil substitutes and supplements, and subsoils to be saved under Section 2 of this administrative regulation shall be removed as separate layers from the area to be disturbed and shall be segregated from other materials.

(2) After removal, such materials shall either be immediately redistributed in accordance with Section 4 of this administrative regulation or stockpiled pending redistribution in accordance with Section 3 of this administrative regulation.

(3) For surface areas which are without suitable topsoil as a result of previous surface coal mining operations, the cabinet shall approve and/or specify, on a site-specific basis, alternative practices designed to utilize those available materials which are most suitable for sustaining sufficient vegetation. Such materials shall be tested for their chemical and physical properties as set forth in Section 2(5) of this administrative regulation. The cabinet may require the application of nutrients and soil amendments as necessary for sustaining sufficient vegetation.

Section 2. Removal.

(1)

(a) For areas where topsoil is to be saved in accordance with this section, vegetative cover that would interfere with the salvage or use of the topsoil shall be cleared from those areas prior to topsoil removal; however, topsoil shall be removed from those areas as a separate layer and shall be segregated from other materials prior to any drilling, blasting, mining, or other surface disturbance of those areas.

(b) For situations in which the topsoil is of insufficient quantity or poor quality for sustaining sufficient vegetation, the materials approved by the cabinet in accordance with subsection (5) of this section shall be removed as a separate layer and segregated from other materials.

(2) Prior to placement of excess spoil or coal mine waste, construction of an embankment, or construction of any other structure for which stability is a concern, all topsoil and vegetative material shall be removed, either progressively or in a single set of operations, from all areas where failure to remove such materials would adversely affect the stability of the structure. For other areas disturbed by the structure and for all other areas disturbed by surface coal mining and reclamation operations, all topsoil shall be removed in accordance with subsection (1) of this section, unless the use of topsoil substitute materials is approved by the cabinet in accordance with subsection (5) of this section or unless topsoil removal requirements are waived pursuant to subsection (6) of this section.

(3) If the topsoil is less than six (6) inches in depth, a six (6) inch layer that includes the topsoil and the unconsolidated materials immediately below the topsoil or the topsoil and all unconsolidated materials, if the total available is less than six (6) inches, shall be removed and the mixture segregated and redistributed as the surface soil layer, unless topsoil substitutes are approved by the cabinet pursuant to subsection (5) of this section.

(4) The B horizon and portions of the C horizon and/or other underlying layers demonstrated to have qualities for comparable root development shall be removed, segregated, and replaced as subsoil if the cabinet determines that either of these is necessary to comply with the revegetation requirements of 405 KAR 16:200 or to ensure soil productivity consistent with the approved postmining land use.

(5) Selected materials may be substituted for or used as a supplement to topsoil, if the applicant demonstrates to the satisfaction of the cabinet that the resulting soil medium is equal to or more suitable for sustaining sufficient vegetation than is the available topsoil and that the resulting soil medium is the best available to support sufficient vegetation. This demonstration shall be based on:

(a) The results of chemical and physical analyses of the substitute or supplement materials and the topsoil, which must be submitted in the permit application. These investigations shall include:

Analyses performed by a qualified soil scientist, qualified agronomist, or other qualified specialist consisting of evaluations of the thicknesses of the soil horizons, the thicknesses of the substitute or supplement materials, the total depths of the soils, the areal extents of the different kind of soils, and the areal extents of the substitute or supplement materials;
Analyses performed by a qualified laboratory consisting of evaluations of pH, net acidity or alkalinity, phosphorus, potassium, texture, and percent coarse fragments; and
Other analyses performed by qualified individuals, if required by the cabinet, including but not limited to additional chemical and physical evaluations, field-site trials, greenhouse tests, and other investigations to establish the feasibility of using the substitute or supplement materials.

(b) A discussion from a qualified soil scientist or agronomist stating that: The proposed substitute or supplement materials are equal to or more suitable for sustaining sufficient vegetation than is the available topsoil; the resulting soil medium is the best available material to support sufficient vegetation; and the trials and tests were conducted using approved standard testing procedures.

(6) The cabinet may choose not to require the removal of topsoil for minor disturbances which:

(a) Occur at the site of small structures such as power poles, signs, and fence lines; or

(b) Will not destroy the existing vegetation and will not cause erosion.

Section 3. Storage.

(1) Topsoil and/or other materials removed pursuant to Section 2 of this administrative regulation shall be stockpiled only when it is impractical to promptly redistribute such materials on regraded areas.

(2) Stockpiled materials shall be selectively placed on stable areas within the permit area; shall not be disturbed; and shall be protected from wind and water erosion, unnecessary compaction, and contaminants which lessen the capability of the materials to support vegetation when redistributed.

(a) Protection measures shall be accomplished either by:

An effective cover of nonnoxious, quick-growing annual and perennial plants seeded or planted during the first normal seeding or planting period after removal and resown as necessary thereafter; or
Other methods demonstrated to and approved by the cabinet to provide equal protection.

(b) Unless approved by the cabinet, stockpiled topsoil and/or other materials shall not be moved until required for redistribution on a regraded area.

(3) If such measures are demonstrated by the applicant to have no adverse effect on the topsoil and if approved by the cabinet, vegetative material may be used as mulch or may be included in the topsoil to control erosion, promote growth of vegetation, or increase the moisture retention of the soil.

(4) Where long-term surface disturbances will result from facilities such as support facilities and preparation plants and where stockpiling of materials removed in accordance with Section 2 of this administrative regulation would be detrimental to the quality or quantity of those materials, the cabinet may approve the temporary distribution of the materials so removed to an approved site within the permit area to enhance the current use of that site until needed for later reclamation provided that:

(a) Such action will not permanently diminish the capability of the topsoil and/or other materials of the host site; and

(b) The materials will be retained in a condition more suitable for redistribution than if stockpiled.

Section 4. Redistribution.

(1) After final grading and before final placement of topsoil and other materials segregated in accordance with Section 2 of this administrative regulation, the land shall be scarified or otherwise treated as required by the cabinet to eliminate slippage surfaces and to promote root penetration. If the permittee demonstrates through appropriate tests that no harm will be caused to the materials and vegetation and if approved by the cabinet, scarification may be conducted after redistribution of topsoil and/or other materials.

(2) Topsoil and/or other materials shall be redistributed in a manner that:

(a) Achieves an approximate uniform, stable thickness consistent with the approved postmining land uses, contours, and surface water drainage systems;

(b) Prevents excessive compaction of the topsoil and/or other materials; and

(3) The materials removed pursuant to Section 2 of this administrative regulation shall be redistributed at a time when the physical and chemical properties of the materials can be protected and erosion can be minimized.

(4) The cabinet may choose not to require the redistribution of topsoil and/or other materials on approved postmining embankments of permanent impoundments and of roads if it determines that:

(a) Placement of topsoil and/or other materials on such embankments is inconsistent with the requirement to use the best technology currently available to minimize sedimentation; and

(b) Such embankments will be otherwise stabilized.

Section 5. Nutrients and Soil Amendments. Nutrients and soil amendments, in the amounts determined by soil tests, shall be applied to the redistributed materials so that they are sufficient to sustain the approved postmining land use and to sustain vegetation which is sufficient to meet the revegetation requirements of 405 KAR 16:200. All soil tests shall be performed by a qualified laboratory using standard methods approved by the cabinet.

History

RELATES TO: KRS 350.062, 350.405, 350.415, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for the removal, storage and redistribution of topsoil and requirements for substitution of other materials for topsoil.
History: 405 KAR 016:050. 8 Ky.R. 1530; eff. 1-6-1983; 11 Ky.R. 1837; eff. 8-13-1985; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:060 General hydrologic requirements {#sec-405-kar-16-060 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:060}

Section 1. General Requirements.

(1) All surface mining activities shall be planned and conducted to minimize disturbance of the hydrologic balance in both the permit area and adjacent areas, in order to:

(a) Prevent material damage to the hydrologic balance outside the permit area;

(b) Assure the protection or replacement of water rights; and

(c) Support the approved postmining land uses in accordance with the terms and conditions of the approved permit and the performance standards of this administrative regulation.

(2) Changes in water quality and quantity, in the depth to groundwater, and in the location of surface water drainage channels shall be minimized so that the approved postmining land use of the permit area is not adversely affected.

(3) In no case shall federal and state water quality statutes, regulations, standards, or effluent limitations be violated.

(4) Operations shall be conducted to minimize water pollution and, where necessary, treatment methods shall be used to control water pollution.

(a) Each permittee shall emphasize mining and reclamation practices that prevent or minimize water pollution. Changes in flow of drainage shall be used in preference to the use of water treatment facilities.

(b) Acceptable practices to control and minimize water pollution include:

Stabilizing disturbed areas through land shaping;
Diverting run-off;
Achieving quickly germinating and growing stands of temporary vegetation;
Regulating channel velocity of water;
Lining drainage channels with rock or vegetation;
Mulching;
Selectively placing and sealing acid-forming and toxic-forming materials;
Selectively placing waste materials in backfill areas; and
Implementing sediment control measures in Section 2 of this administrative regulation.

Section 2. Sediment Control Measures.

(1) Appropriate sediment control measures shall be designed, constructed, and maintained using the best technology currently available to:

(a) Prevent, to the extent possible, additional contributions of sediment to stream flow or to run off outside the permit area;

(b) Meet the requirements of 405 KAR 16:070, Section 1(1)(g); and

(2) Sediment control measures include practices carried out within and adjacent to the disturbed area. The sediment storage capacity of measures in and downstream from the disturbed areas shall reflect the degree to which successful mining and reclamation techniques are applied to reduce erosion and control sediment. Sediment control measures consist of the utilization of proper mining and reclamation methods and sediment control practices, singly or in combination. Sediment control methods include:

(a) Disturbing the smallest practicable area at any one (1) time during the mining operation through progressive backfilling, grading and prompt revegetation as required in 405 KAR 16:200, Section 1(2);

(b) Stabilizing the backfilled material to promote a reduction in the rate and volume of run-off, in accordance with the requirements of 405 KAR 16:190;

(d) Diverting run-off away from disturbed areas;

(e) Diverting run-off using protected channels or pipes through disturbed areas so as not to cause additional erosion;

(f) Using straw dikes, riprap, check dams, mulches, vegetative sediment filters, dugout ponds, and other measures that reduce overland flow velocity, reduce run-off volume, or trap sediment; and

(g) Treating with chemicals; and

(h) Using sedimentation ponds as required in 405 KAR 16:070.

Section 3. Discharge Structures. Discharge from sedimentation ponds, permanent and temporary impoundments, coal processing waste dams and embankments, and diversions shall be controlled, by energy dissipators, riprap channels, and other devices, where necessary, to reduce erosion, to prevent deepening or enlargement of stream channels, and to minimize disturbance of the hydrologic balance. Discharge structures shall be designed according to standard engineering design procedures.

Section 4. Acid-forming and Toxic-forming Materials. Acid drainage and toxic drainage shall be avoided by:

(1) Identifying, burying, and treating, in accordance with 405 KAR 16:190, Section 3, materials which may adversely affect water quality, or be detrimental to vegetation or to public health and safety if not buried and treated;

(2) Storage, burial or treatment practices consistent with other material handling and disposal provisions of this chapter; and

(3) Burying or otherwise treating all acid-forming or toxic-forming spoil within thirty (30) days after it is first exposed on the mine site, or within a lesser period required by the cabinet. Temporary storage of the spoil may be approved by the cabinet upon a finding that burial or treatment within thirty (30) days is not feasible and will not result in any material risk of water pollution or other environmental damage. Storage shall be limited to the period until burial or treatment first becomes feasible. Acid-forming or toxic-forming spoil to be stored shall be placed on impermeable material and protected from erosion and contact with surface water.

Section 5. Groundwater Protection and Recharge Capacity. In order to protect the hydrologic balance, surface mining activities shall be conducted according to 405 KAR 8:030, Section 32(1) and (2) and the following:

(1) Groundwater quality shall be protected by handling earth materials and run-off in a manner that minimizes acidic, toxic, or other harmful infiltration to groundwater systems and by managing excavations and other disturbances to prevent or control the discharge of pollutants into the groundwater; and

(2) Groundwater quantity shall be protected by handling earth materials and run-off in a manner that will restore the approximate premining recharge capacity of the reclaimed area as a whole, excluding coal mine waste disposal areas and excess spoil fills, so as to allow the movement of water to the groundwater system.

Section 6. Surface Water Protection. In order to protect the hydrologic balance, surface mining activities shall be conducted according to 405 KAR 8:030, Section 32(1) and (2) and the following:

(1) Surface water quality shall be protected by handling earth materials, groundwater discharges, and run-off in a manner that:

(a) Minimizes the formation of acidic or toxic drainage;

(b) Prevents, to the extent possible using the best technology currently available, additional contribution of suspended solids to stream flow outside the permit area; and

(2) If drainage control, restabilization and revegetation of disturbed areas, diversion of run-off, mulching, or other reclamation and remedial practices are not adequate to meet the requirements of this section and 405 KAR 16:070, the operator shall use and maintain the necessary water-treatment facilities or water quality controls for as long as treatment is required under this chapter; and

(3) Surface water quantity and flow rates shall be protected by handling earth materials and run-off in accordance with the steps outlined in the plan approved under 405 KAR 8:030, Section 32(1) and (2).

Section 7. Transfer of Wells. Before final release of bond, exploratory or monitoring wells shall be sealed in a safe and environmentally sound manner in accordance with 405 KAR 16:040. With the prior approval of the regulatory authority, wells may be transferred to another party for further use. At a minimum, the conditions of such transfer shall comply with state and local law and the permittee shall remain responsible for the proper management of the well until bond release in accordance with 405 KAR 16:040.

Section 8. Replacement of Water Supply.

(1)

(a) If the cabinet receives a citizen's complaint under 405 KAR 12:030 that the person's water supply has been adversely impacted by the activities of a permittee named in the complaint, the cabinet shall promptly notify the permittee of the complaint.

(b) The permittee or operator shall promptly replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source, if the water supply has been adversely impacted by contamination, diminution, or interruption proximately resulting from the surface mining activities. Baseline geologic and hydrologic information required in 405 KAR 8:030, Sections 12 through 16, and other relevant information available to the cabinet, shall be used to determine the impact of mining activities upon the water supply.

(2) If replacement of a water supply is required under subsection (1) of this section the permittee shall:

(a) If the water supply to be replaced is a domestic supply, provide water supply on both a temporary and permanent basis in accordance with this paragraph;

Within forty-eight (48) hours after receiving notice from the cabinet that the water supply was adversely impacted by mining, provide drinking water on an emergency basis;
Within two (2) weeks after receiving notice from the cabinet that the water supply was adversely impacted by mining, provide a temporary water supply connected to the existing plumbing, if any, that provides water for all ordinary household purposes including drinking, cooking, bathing, sanitation, and laundry, and drinking water for poultry, livestock, and domestic animals, and water for noncommercial domestic agricultural and horticultural activities;
Within two (2) years after receiving notice from the cabinet that the water supply was adversely impacted by mining, provide a satisfactory permanent water supply;

(b) If the water supply to be replaced is other than a domestic supply, provide water supply on both a temporary and permanent basis on a schedule established by the cabinet on a case-by-case basis;

(d) Provide an equivalent water delivery system; and

(e) Pay operation and maintenance costs in excess of customary and reasonable delivery costs for the premining water supply for a period of twenty (20) years, or other period agreed to by the permittee and the owner of interest. Upon agreement by the permittee and the owner of interest, the obligation to pay the excess operation and maintenance costs may be satisfied by:

A one (1) time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period of twenty (20) years, or other period agreed to by the permittee and the owner of interest;
A uniform series of payments whose present worth equals or exceeds the present worth of the increased annual operation and maintenance costs for a period of twenty (20) years, or other period agreed to by the permittee and the owner of interest; or
Other reasonable compensation arrangements which fairly compensate the owner for the future operation and maintenance costs for a period of twenty (20) years, or other period agreed to by the permittee and the owner of interest.

(3) If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If this approach is selected, written concurrence shall be obtained from the owner of interest.

(4)

(a) If contamination, diminution, or interruption to a water supply protected under subsection (1) of this section occurs, the cabinet shall require the permittee to obtain additional performance bond in the amount of the estimated cost to replace the protected water supply, until the replacement is completed. If replacement is completed within ninety (90) days of the occurrence, additional bond shall not be required. The cabinet may extend the ninety (90) day time frame, but not to exceed one (1) year, if the permittee demonstrates and the cabinet finds in writing that not all reasonably anticipated changes affecting the protected water supply have occurred, and that therefore it would be unreasonable to complete the replacement within ninety (90) days.

(b) If the permittee demonstrates that his liability insurance policy under 405 KAR 10:030, Section 4 covers the replacement, the additional bond amount required under paragraph (a) of this subsection may be reduced by the amount of the insurance coverage applicable to the replacement. The existence of applicable insurance coverage shall not prevent forfeiture of a performance bond under 405 KAR 10:050.

(c) The cabinet may promptly release or return the additional bond amount provided under paragraph (a) of this subsection if the cabinet determines, based upon an application and information submitted by the permittee, the cabinet's own investigation as appropriate, and other information available to the cabinet, that the permittee has satisfactorily completed the required replacement.

Section 9. Discharges Into an Underground Mine.

(1) Discharges into an underground mine are prohibited, unless specifically approved by the cabinet after a demonstration that the discharge will:

(a) Minimize disturbance to the hydrologic balance on the permit area, prevent material damage outside the permit area and otherwise eliminate public hazards resulting from surface mining activities;

(b) Not result in a violation of applicable water quality standards or effluent limitations;

(c) Be at a known rate and quality which shall meet the effluent limitations of 405 KAR 16:070 for pH and total suspended solids, except that the pH and total suspended-solids limitations may be exceeded, if approved by the cabinet; and

(d) Meet with the approval of the Mine Safety and Health Administration.

(2) Discharges shall be limited to the following:

(a) Coal processing waste;

(b) Fly ash from a coal-fired facility;

(d) Flue gas desulfurization sludge;

(e) Inert materials used for stabilizing underground mines;

(f) Underground mine development wastes; and

(g) Water.

Section 10. Postmining Rehabilitation of Sedimentation Ponds, Diversions, Impoundments, and Treatment Facilities. Before abandoning the permit area, the permittee shall renovate all permanent sedimentation ponds, diversions, impoundments, and treatment facilities as necessary to meet criteria specified in the detailed design plan for the permanent structures and impoundments.

Section 11. Stream Buffer Zones.

(1) No land within 100 feet of an intermittent or perennial stream shall be disturbed by surface mining activities unless the cabinet specifically authorizes surface mining activities closer to, or through, such a stream. The cabinet may authorize such activities only upon finding, as a result of evaluating a permit application, that:

(a) Surface mining activities will not cause or contribute to the violation of applicable state or federal water quality standards;

(b) Surface mining activities will not cause significant detrimental effects on the water quantity or quality of the intermittent or perennial stream; provided however, this paragraph shall not apply to any reach of that stream that is upstream of an impounding structure located within the permit area and within the stream channel;

(c) Surface mining activities will not cause significant detrimental effects on other valuable environmental resources, as determined by the cabinet, of the stream; and

(d) If there will be a temporary or permanent stream-channel diversion, it will comply with 405 KAR 16:080.

(2) The area that is not to be disturbed shall be designated a buffer zone, shall be adequately shown in the permit application, and shall be marked by the permittee as specified in 405 KAR 16:030.

(3) Descriptions, drawings, data, and all other information required by the cabinet to make the findings of subsection (1) of this section shall be submitted in a permit application in a manner prescribed by the cabinet.

(4)

(a) The provisions of the amendments to this section shall apply to all surface mining activities, except as provided in paragraph (b) of this subsection.

(b)

Surface mining activities included in a permit issued on or before August 17, 1987 shall be subject to the provisions that preceded the amendments to this section in lieu of the provisions of subsections (1) through (3) of this section.
Surface mining activities included in a permit application determined to be complete pursuant to 405 KAR 8:010, Section 13(1) on or before August 17, 1987 shall be subject to the provisions that preceded the amendments to this section in lieu of the provisions of subsections (1) through (3) of this section.

Section 12. Discharges of Accumulated Water.

(1) Any accumulated water to be removed from a pit, bench, or other disturbed area shall be pumped, siphoned, or otherwise conveyed in a controlled manner to a natural or constructed drainway as approved by the cabinet.

(2) Such accumulated water may be discharged from the permit area without treatment only if the untreated discharge meets the requirements of 405 KAR 16:070, Section 1(1)(g).

(3) The moving of spoil or overburden or the disturbance of the natural barrier required by 405 KAR 16:010, Section 4, in order to release such accumulated water is prohibited, except when specifically authorized by the cabinet.

History

RELATES TO: KRS 350.100, 350.410, 350.420, 350.421, 350.440, 350.465, 30 C.F.R. Parts 701.5, 730-733, 735, 816.41, 816.45, 816.47, 816.56, 816.57, 917, 30 U.S.C. 1253, 1255, 1265, 1307
STATUTORY AUTHORITY: KRS 350.028, 350.100, 350.420, 350.465, 30 C.F.R. Parts 701.5, 730-733, 735, 816.41, 816.45, 816.47, 816.56, 816.57, 917, 30 U.S.C. 1253, 1255, 1265, 1307
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1) and (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes the requirements for the protection of the hydrologic balance, protection of surface and groundwater quantity and quality, control of erosion and sediment, control of acid-forming and toxic-forming materials, protection of streams, and the replacement of water supplies. This administrative regulation differs from federal regulations as follows: Section 8(1) requires that replacement of water supplies be done "promptly". This requirement appears in 30 CFR 817.41(j) relating to underground mines, but does not appear in 30 CFR 816.41(h) relating to surface mines. It is included in this administrative regulation because KRS 350.421(2), which requires replacement of the water supply, makes no distinction between underground and surface mines. Section 8(2)(a) of this administrative regulation, regarding replacement of domestic water supplies, includes requirements for emergency, temporary, and permanent replacement that are not included in the federal counterpart at 30 CFR 816.41(h) but are included in the definition of "replacement of water supply" at 30 CFR 701.5. It includes specific time frames for replacement that are not included in the federal regulations but are suggested in the preamble (60 FR 16727, March 31, 1995) to the federal regulations and are needed for fair and consistent enforcement of the requirement to promptly replace domestic water supplies. Section 8(2)(e) of this administrative regulation, regarding payment of excess delivery costs, includes a base time period of twenty (20) years that is not included in the federal regulations, and also includes more flexible payment options than the federal regulations. This time period is discussed as an example in the preamble at 60 FR 16726, March 31, 1995 and is needed for fair and consistent enforcement of the requirement to pay excess delivery costs. Section 8(4)(b) of this administrative regulation, regarding coverage of water replacement by liability insurance rather than additional performance bond, is not included in the federal counterpart at 30 CFR 816.41(h). The federal bonding regulation at 30 CFR 800.14(c) provides that the permittee's financial responsibility for repairing material damage resulting from subsidence under 30 CFR 817.121(c), which includes damage to water supplies, may be satisfied by the liability insurance policy required under 30 CFR 800.60. This provision is included in this administrative regulation in order to provide the same option to surface mining permittees that 405 KAR 18:060, Section 12 provides to underground mining permittees. Section 8(4)(c) of this administrative regulation, regarding prompt release or return of additional bond posted for water replacement, is not included in the federal regulations. This administrative regulation is consistent with the purpose of the federal regulations because the bond cannot be released or returned until after the permittee has completed the water supply replacement that the bond is intended to guarantee.
History: 405 KAR 016:060. 8 Ky.R. 1531; 9 Ky.R. 698; eff. 1-6-1983; 10 Ky.R. 813; eff. 4-23-1984; 12 Ky.R. 933; 1316; eff. 2-4-1986; 13 Ky.R. 1883; eff. 7-2-1987; 24 Ky.R. 710; 1341; 25 Ky.R. 63; eff. 7-7-1998; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:070 Water quality standards and effluent limitations {#sec-405-kar-16-070 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:070}

Section 1. Water Quality Standards and Effluent Limitations.

(1)

(a) All surface drainage from disturbed areas shall be passed through a sedimentation pond or a series of sedimentation ponds before leaving the permit area.

(b) Sedimentation ponds and other treatment facilities shall be properly maintained and shall not be removed until all disturbed areas in the drainage area above the facility have been backfilled, graded and revegetated in accordance with this chapter and:

The vegetation has successfully survived two (2) years after the last augmented seeding;
The vegetation meets the ground cover standards of 405 KAR 16:200; and
The permittee has demonstrated to the satisfaction of the cabinet that retention of the pond or other treatment facility is not necessary in order to meet the requirements of paragraph (g) of this subsection.

The disturbed drainage area is small; and
The permittee demonstrates that sedimentation ponds and treatment facilities are not necessary for drainage from the disturbed drainage areas to meet the requirements of paragraph (g) of this subsection.

(d) For the purposes of this administrative regulation, disturbed area shall not include those areas in which only diversion ditches, sedimentation ponds, or roads are installed in accordance with 405 KAR and the upstream area is not otherwise disturbed by the person who conducts the surface mining activities.

(e) Sedimentation ponds required by this section shall be constructed in accordance with 405 KAR 16:090 and 405 KAR 16:100, in appropriate locations before beginning any surface mining activities in the drainage area to be affected.

(f) Where sedimentation ponds are located so as to receive drainage both from disturbed areas and from other areas not disturbed by current surface coal mining and reclamation operations, the mixed drainage shall meet the requirements of paragraph (g) of this subsection, when the mixed drainage leaves the permit area.

(g) Discharges of water from areas disturbed by surface mining activities shall at all times be in compliance with all applicable federal and state water quality standards and either:

If the operation does not have a KPDES permit, the effluent limitations guidelines for coal mining promulgated by the U.S. EPA in 40 CFR 434; or
The effluent limitations established by the KPDES permit for the operation.

(2) Adequate facilities, in addition to sedimentation ponds, shall be installed, operated, and maintained to treat any water discharged from disturbed areas when necessary to ensure that the discharge complies with all federal and state laws and regulations and the limitations of this administrative regulation. Except where a lower pH is authorized by the KPDES permit for the operation, if the pH of water to be discharged from the disturbed area is less than six (6.0), a neutralization process approved by the cabinet shall be installed, operated, and maintained.

History

RELATES TO: KRS 350.020, 350.090, 350.100, 350.405, 350.420, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100, 350.420, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation identifies water quality standards and effluent limitations which must be met, identifies the waters to which they apply and the periods of time in which they apply, requires water treatment for sediment control, and provides certain exemptions.
History: 405 KAR 016:070. 8 Ky.R. 1533; eff. 1-6-1983; 15 Ky.R. 455; eff. 12-13-1988; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:080 Diversions {#sec-405-kar-16-080 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:080}

Section 1. General Requirements.

(1) Surface flow from mined areas abandoned before May 3, 1978 and any flow from undisturbed or reclaimed areas, after meeting the criteria of 405 KAR 16:070 and 405 KAR 16:090 for siltation structure removal, may be diverted around the disturbed area and water treatment facilities by means of temporary or permanent diversions.

(2) Diversions shall not be constructed or operated to divert water into underground mines without the approval of the cabinet under 405 KAR 16:060, Section 9.

(3) The design, construction, and maintenance of diversion ditches shall insure public health and safety, protect property, be stable, minimize adverse impacts to the hydrologic balance, and prevent additional contributions of suspended solids to stream flow and to run off outside the permit area to the extent possible using the best technology currently available. The following criteria are to be incorporated in the design and construction of a diversion ditch:

(a) Freeboard shall be no less than three-tenths (0.3) foot. Protection shall be provided for transition of flows and for critical areas such as swales and curves. Where the area protected is a critical area as determined by the cabinet, the cabinet may require that the design freeboard be increased.

(b) Excess excavated material not necessary for diversion channel geometry or regrading of the channel shall be disposed of in accordance with 405 KAR 16:130 and 405 KAR 16:190.

(d) Channel protection shall be used to prevent erosion of the ditch. The following criteria shall be used unless the cabinet specifies otherwise:

Except when located in solid rock or when riprap or other nonerodible, nondegradable materials are used, diversion ditches are to be fertilized, seeded, and mulched to comply with the requirements of 405 KAR 16:200 after the ditch is constructed.
Riprap or other nonerodible, nondegradable materials shall be used when a diversion ditch is not located in solid rock and the design velocity is five (5) feet per second or greater for the peak discharge used in the design of the ditch. Material used shall be free of acid-forming material and toxic-forming material and riprap shall comply with the durability requirements of 405 KAR 16:130, Section 1(6)(c)2, except that sand and gravel shall not be used.

(e) Side slopes shall be no steeper than 1h:4v for solid rock, 1h:1v for riprap lined, and 2h:1v for grass protected ditches.

(f) Diversion ditch design capacity shall comply with the provisions of this paragraph, except where a larger capacity is required by other administrative regulations of 405 KAR Chapters 7 through 24 for specific types of diversions or where a larger capacity is required by the cabinet.

The channel of any diversion ditch which diverts run-off around a sediment control structure, water treatment facility, or impoundment, excluding dugout structures, shall be adequate to pass the peak discharge from the design storm for the hydraulic capacity of the sediment control structure, water treatment facility, or impoundment (i.e. if the impoundment is designed to pass the 100 year, twenty-four (24) hour storm event so shall the ditch). This size requirement shall not apply if the hydraulic capacity of the sediment control structure, water treatment facility, or impoundment takes into account the entire area contributing drainage, as though the bypass diversion ditch did not exist.
The channel of any diversion ditch which diverts run-off to a sediment control structure or water treatment facility shall be adequate, at a minimum, to pass the peak discharge of a ten (10) year, twenty-four (24) hour storm event.
The channel, bank, and flood plain configuration of any diversion ditch, which diverts a perennial or intermittent stream, shall be adequate to pass the peak discharge of a ten (10) year, twenty-four (24) hour storm event for temporary ditches and the 100 year, twenty-four (24) hour event for permanent ditches. However, the capacity of the channel itself shall be equal to or greater than the capacity of the unmodified stream channel immediately upstream and downstream of the diversion.
The channel of any other diversion ditch which diverts ephemeral streams or overland flow shall be adequate to pass the peak discharge of the two (2) year, twenty-four (24) hour storm for temporary ditches and the ten (10) year, twenty-four (24) hour storm for permanent ditches.

(4) No diversion shall be located so as to increase the potential for land slides. No diversion shall be constructed on existing land slides, unless approved by the cabinet.

(5) Diversions of perennial streams and intermittent streams shall be designed and certified by a registered professional engineer and after construction shall be inspected and certified by the responsible registered professional engineer as having been constructed in accordance with the approved design plans. The certifications required by this subsection shall be made pursuant to 405 KAR 7:040, Section 10.

(6) Diversion ditches shall be maintained to pass their respective design storms.

(7)

(a) When no longer needed to achieve the purpose for which they were authorized, all temporary diversions shall be removed and the affected land regraded and revegetated, in accordance with 405 KAR 16:050, Sections 4 and 5; 405 KAR 16:190; and 405 KAR 16:200. At the time diversions are removed, downstream water treatment facilities previously protected by the diversion shall be modified or removed to prevent overtopping or failure of the facilities. This requirement shall not relieve the permittee from maintenance of a water treatment facility otherwise required under 405 KAR or the permit.

Because of the existence of an excess spoil fill, permanent stream-crossing, permanent impoundment, or coal mine waste disposal area constructed in accordance with 405 KAR 16:100, 405 KAR 16:130, 405 KAR 16:140, 405 KAR 16:160, and 405 KAR 16:220 as applicable; or
For areas affected by mountaintop removal, because such restoration is inconsistent with the requirements of 405 KAR 20:050.

Section 2. Diversions of Perennial and Intermittent Streams.

(1) Flow from perennial and intermittent streams within the permit area may be diverted, if the diversions:

(a) Are approved by the cabinet after making the findings called for in 405 KAR 16:060, Section 11(1);

(b) Comply with other requirements of 405 KAR Chapters 7 through 24; and

(2) When permanent diversions are constructed or stream channels restored, after temporary divisions, the permittee shall:

(a) Restore, enhance where practicable, or maintain natural riparian vegetation on the banks of the stream;

(b) Establish or restore the stream to an environmentally acceptable alignment, as determined by the cabinet;

(c) Establish or restore the stream to a longitudinal profile and cross-section, including aquatic habitats (usually a pattern of riffles, pools, and drops rather than uniform depth) that approximate premining stream channel characteristics; and

(d) Comply with 405 KAR 16:180.

(3) Where the cabinet approves the placement of a coal refuse pile, coal waste impoundment, or an excess spoil fill in an intermittent or perennial stream under 405 KAR 16:060, Section 11, and it is not practicable to comply with subsection (2) of this section, then the diversion of the stream channel shall comply with the requirements for diversions set forth in the performance standards for those structures.

Section 3. Applicability of Amendments to this Administrative Regulation.

(1) Except as provided in subsection (2) of this section, the amendments to this administrative regulation that became effective on February 4, 1986 shall apply to permits issued on or after July 1, 1986. Permittees conducting surface coal mining and reclamation operations under permits issued before that date shall comply with the requirements which preceded the 1986 amendments, the approved permit application and the conditions of permit issuance.

(2) The provisions of Section 1(3)(f)1 of this administrative regulation shall apply on and after May 5, 1986 to each surface coal mining and reclamation operation which includes an impoundment classified, pursuant to 405 KAR 7:040, Section 5, as a (B) or (C) structure. Permits issued before that date shall be revised as necessary.

History

RELATES TO: KRS 350.085, 350.100, 350.405, 350.420, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100, 350.420, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for design and construction of temporary and permanent diversions of overland flow, shallow groundwater flow, ephemeral streams, and intermittent and perennial streams.
History: 405 KAR 016:080. 8 Ky.R. 1534; eff. 1-6-1983; 12 Ky.R. 936; 1319; eff. 2-4-1986; 15 Ky.R. 457; 1074; eff. 12-13-1988; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:090 Sedimentation ponds {#sec-405-kar-16-090 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:090}

Section 1. General Requirements. Sedimentation ponds shall be used individually or in series and shall:

(1) Comply with Sections 1 through 6 of this administrative regulation and 405 KAR 16:100;

(2)

(a) In accordance with 405 KAR 16:100, Section 1(2), be designed and certified by a qualified registered professional engineer as meeting the requirements of Sections 1 through 6 of this administrative regulation and 405 KAR 16:100;

(b) In accordance with 405 KAR 16:100, Section 1(9), be inspected during construction by or under the direct supervision of the responsible registered professional engineer, and after construction be certified by the responsible registered professional engineer as having been constructed in accordance with the approved design plans;

(3) Be constructed and certified under subsection (2) of this section before any disturbance in the watershed that drains into the sedimentation pond; and

(4) Be located as near as possible to the disturbed area and out of perennial streams, unless approved by the cabinet, pursuant to the cabinet's authority in KRS 350.050.

Section 2. Sediment Storage Volume. Sedimentation ponds shall provide adequate sediment storage volume as approved on a case-by-case basis by the cabinet based upon the anticipated volume of sediment to be collected and a feasible plan for clean-out operations. The plan shall include a time schedule or clean-out elevations, or an appropriate combination, that shall provide periodic sediment removal sufficient to maintain adequate volume for the sediment to be collected during the design precipitation event under Section 3 of this administrative regulation. The proposed clean-out plan shall be included in the design and shall be approved if the cabinet determines that the proposed plan is feasible.

Section 3. Detention Time. Sedimentation ponds shall be designed, constructed, and maintained to:

(1) Provide detention time so that discharges from the sedimentation pond shall meet the requirements of 405 KAR 16:070, Section 1(1)(g); and

(2)

(a) Contain the runoff from the ten (10) year, twenty-four (24) hour precipitation event by providing a runoff storage volume, between the top elevation of the design sediment storage volume and the principal spillway elevation, equal to or greater than the runoff from that precipitation event. The cabinet may approve a smaller runoff storage volume based on terrain, the amount of disturbance, other site specific conditions, and a demonstration by the permittee that the effluent limitations of 405 KAR 16:070, Section 1(1)(g) will be met; or

(b) Treat the runoff from the ten (10) year, twenty-four (24) hour precipitation event by using other treatment facilities in conjunction with adequate runoff storage volume, so that the effluent limitations of 405 KAR 16:070, Section 1(1)(g) will be met.

Section 4. Dewatering. The water storage resulting from inflow shall be removed by a nonclogging dewatering device or spillway approved by the cabinet, pursuant to the cabinet's authority in KRS 350.050. The dewatering device or spillway shall not be located at a lower elevation than the top elevation of the design sediment storage volume.

Section 5. Other Requirements.

(1) Each permittee shall design, construct, and maintain sedimentation ponds to prevent short-circuiting to the extent possible.

(2) The design, construction, and maintenance of a sedimentation pond or other sediment control measures in accordance with Sections 1 through 6 of this administrative regulation shall not relieve the permittee from compliance with 405 KAR 16:070, Section 1(1)(g).

(3) Sediment shall be removed from sedimentation ponds in accordance with the approved clean-out plan.

(4) Spillways shall be provided in accordance with 405 KAR 16:100. Emergency spillway grades and allowable velocities shall be approved by the cabinet.

(5) Sedimentation ponds shall be properly maintained and shall not be removed until the requirements of 405 KAR 16:070, Section 1(1)(b), have been met.

(6) Sedimentation ponds shall be removed prior to final release of bond liability for the permit area unless retention of the pond is approved by the cabinet under subsection (7) of this section. After a sedimentation pond is removed, the affected land shall be regraded and revegetated in accordance with 405 KAR 16:190 and 405 KAR 16:200.

(7) If the cabinet approves retention of a sedimentation pond as a permanent impoundment, the sedimentation pond shall meet all the requirements for permanent impoundments under 405 KAR 16:060, Section 10, and 405 KAR 16:100.

Section 6. Other Treatment Facilities.

(1)

(a) This section applies to "other treatment facilities" as defined in 405 KAR 16:001.

(b) Other treatment facilities may be used in conjunction with sedimentation ponds.

(c) Other treatment facilities may be used in place of sedimentation ponds, if specifically approved by the cabinet for that purpose on a case-by-case basis, pursuant to the cabinet's authority in KRS 350.050.

(2) Other treatment facilities shall be designed to treat the ten (10) year, twenty-four (24) hour precipitation event unless a lesser design event is approved by the cabinet based on terrain, climate, other site-specific conditions and a demonstration by the permittee that the effluent limitations of 405 KAR 16:070, Section 1(1)(g), will be met.

(3) Other treatment facilities shall meet all requirements for sedimentation ponds, if the requirements can be appropriately applied to the other treatment facilities. The cabinet shall determine the applicable requirements on a case-by-case basis depending upon the type of other treatment facilities. In every case the other treatment facilities shall be designed, constructed, and maintained to:

(a) Be located as near as possible to the disturbed area and out of perennial streams unless approved by the cabinet, pursuant to the cabinet's authority in KRS 350.050;

(b) Provide adequate sediment storage volume, as approved on a case-by-case basis by the cabinet based upon the anticipated volume of sediment to be collected during the design precipitation event and a feasible plan for clean-out operations;

(c) Provide adequate detention time so that the discharges shall meet the requirements of 405 KAR 16:070, Section 1(1)(g);

(d) Minimize short circuiting to the extent possible; and

(e) Provide periodic sediment removal sufficient to maintain adequate volume for the design event. The proposed plan for clean-out operations shall be included in the design and shall be approved if the cabinet determines it is feasible. The plan shall include a time schedule or clean-out elevations, or an appropriate combination, sufficient to maintain adequate volume for the sediment to be collected during the design precipitation event.

History

RELATES TO: KRS 151.100, 151.250(3), 350.020, 350.100, 350.420, 350.465, 30 C.F.R. Parts 730-733, 735, 816.46, 917, 30 U.S.C. 1253, 1255, 1265
STATUTORY AUTHORITY: KRS 350.028, 350.151(1), 350.465(2), 30 C.F.R. Parts 730-733, 735, 816.46, 917, 30 U.S.C. 1253, 1255, 1265
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes the requirements for the location, design, construction, certification, maintenance, removal, and retention of sedimentation ponds for surface mines.
History: 405 KAR 016:090. 8 Ky.R. 1535; 9 Ky.R. 700; eff. 1-6-1983; 10 Ky.R. 815; eff. 4-23-1984; 24 Ky.R. 716; 2658; eff. 6-10-1998; 29 Ky.R. 545; 942; eff. 10-9-2002; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:100 Permanent and temporary impoundments {#sec-405-kar-16-100 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:100}

Section 1. General Requirements. The requirements of this section apply to both temporary and permanent impoundments.

(1)

(a) Impoundments meeting the criteria of MSHA, 30 C.F.R. 77.216(a), shall comply with the requirements of 30 C.F.R. 77.216 and this administrative regulation. The plan required to be submitted to the district manager of MSHA under 30 C.F.R. 77.216 shall be submitted to the cabinet as part of the permit application in accordance with 405 KAR 8:030, Section 34(3).

(b) All impoundments classified as Class B-moderate hazard or Class C-high hazard, and all permanent "dams," as defined by KRS 151.100, shall comply with 405 KAR 7:040, Section 5 and with 401 KAR 4:030.

(2) Design certification. The design of impoundments shall be certified by a qualified registered professional engineer as designed to meet the requirements of this administrative regulation using current, prudent engineering practices, and any design criteria established by the cabinet in accordance with 405 KAR Chapters 7 through 24. The qualified registered professional engineer shall be experienced in the design and construction of impoundments.

(3) Stability.

(a)

Permanent and temporary impoundments meeting the criteria of MSHA, 30 C.F.R. 77.216(a), all Class B and C impoundments, and all permanent impoundments, shall have a minimum static safety factor of 1.5 for the normal pool with steady seepage saturation conditions, and a seismic safety factor of at least 1.2.
Impoundments not included in subparagraph 1 of this paragraph, except coal mine waste impoundments, shall have a minimum static safety factor of 1.3 for the normal pool with steady state seepage saturation conditions.

(c) The minimum top width of the embankment shall not be less than the quotient of (H+35)/5, where H is the height, in feet, of the embankment as measured from the upstream toe of the embankment.

(d) Unless the cabinet approves steeper slopes, based on site and slope stability, the sum of the upstream and downstream side slopes (h/v) of the settled embankment shall not be less than 5h:1v, with neither slope steeper than 2h:1v. Slopes shall be designed to be stable in all cases, even if flatter side slopes are required.

(e) The fill material shall be free of sod, large roots, other large vegetative matter, and frozen soil and shall not contain coal mine waste except for coal mine waste impounding structures pursuant to 405 KAR 16:160.

(f) The placing and spreading of fill material shall be started at the lowest point of the foundation. The fill shall be brought up in horizontal layers of thickness as is required to facilitate compaction and meet the design requirement of this administrative regulation. Compaction shall be conducted as specified in the design approved by the cabinet pursuant to subsection (2) of this section.

(g) The entire embankment including the surrounding areas disturbed by construction shall be stabilized with respect to erosion by a vegetative cover or other means immediately after the embankment is completed. The active upstream face of the embankment where water will be impounded may be riprapped or otherwise stabilized. Areas in which the vegetation is not successful or where rills and gullies develop shall be repaired and revegetated in accordance with 405 KAR 16:190, Section 6.

(h) Slope protection shall be provided to protect against surface erosion at the site and protect against sudden drawdown.

(4) Freeboard. Impoundments shall have adequate freeboard to resist overtopping by waves and by sudden increases in storage volume. The minimum elevation at the top of the settled embankment shall be one (1.0) foot above the water surface in the pond with the emergency spillway flowing at design depth. For embankments subject to settlement, this one (1.0) foot minimum elevation requirement shall apply at all times, including the period after settlement. Freeboard requirements shall not apply to incised impoundments that have no embankment or levee.

(5) Foundation.

(a)

Foundation and abutments for the impounding structure shall be designed to be stable under all conditions of construction and operation of the impoundment and shall be designed based on adequate and accurate information on the foundation conditions.
For permanent and temporary impoundments meeting the criteria of MSHA, 30 C.F.R. 77.216(a), for all Class B and C impoundments, and for all permanent impoundments, foundation investigations as well as any necessary laboratory testing of materials shall be performed in order to determine the design requirements for foundation and embankment stability.
If an approved temporary impoundment has been constructed and the permittee subsequently seeks a permit revision to upgrade the structure to a permanent impoundment, the cabinet may waive the foundation investigations and laboratory testing required by subparagraph 2 of this paragraph under the following circumstances:

a. The structure has been recently verified as being a Class A-low hazard structure;

b. The structure does not meet the definition of the term "dam," as defined by KRS 151.100(12); and

c. The cabinet approves conservative, assumed values for the strength parameters used in the stability analyses to ensure compliance with subsection (3)(a) of this section.

(b) All vegetative and organic materials shall be removed and foundations excavated and prepared to resist failure. Cutoff trenches shall be installed if necessary to ensure stability.

(6) Impoundments shall include a combination of principal and emergency spillways, which shall be designed and constructed to safely pass the design precipitation event established in this subsection unless the cabinet requires a design based on a larger precipitation event due to site specific conditions. Twenty-four (24) hours may be used in lieu of six (6) hours for the duration of a design precipitation event established in this subsection.

(a) Except as established in paragraph (c) of this subsection, Class A structures that do not meet the criteria of MSHA, 30 C.F.R. 77.216(a), shall pass the:

Twenty-five (25) year, six (6) hour precipitation event if it is a temporary structure; or
The fifty (50) year, six (6) hour precipitation event if it is a permanent structure.

(b) Class A structures that meet the criteria of MSHA, 30 C.F.R. 77.216(a), shall pass the 100 year, six (6) hours precipitation event.

(c) Class B and C structures and all permanent "dams," as defined by KRS 151.100(12) shall comply with the criteria established in 401 KAR 4:030.

(7) Class A impoundments not meeting the criteria of MSHA, 30 C.F.R. 77.216(a), may use a single spillway (if allowed pursuant to subsection (1)(b) of this section) if the spillway:

(a) Is an open channel of nonerodible construction and capable of maintaining sustained flows; and

(b) Is not earth or grass lined.

(8) The vertical portion of any remaining highwall shall be located far enough below the low-water line along the full extent of the highwall to provide adequate safety and access for the proposed water users.

(9) Engineer inspections. A qualified registered professional engineer or other qualified professional specialist, under the direction of the professional engineer, shall inspect the impoundment. The professional engineer or specialist shall be experienced in the construction of impoundments.

(a) Inspections shall be made regularly during construction, upon completion of construction, and at least yearly until removal of the structure or release of the performance bond.

(b) The qualified registered professional engineer shall promptly, after each inspection, provide to the cabinet a certified report that the impoundment has been constructed and maintained as designed and in accordance with the plan approved in the permit and 405 KAR Chapters 7 through 24. The report shall include discussion of any appearances of instability, structural weakness, or other hazardous conditions, depth and elevation of any impounded waters, existing storage capacity, any existing or required monitoring procedures and instrumentation, and any other aspects of the structure affecting stability. The report shall also confirm the hazard classification of the impoundment, or if the hazard classification has changed, the report shall contain a detailed explanation of the change and the conditions causing the change. A copy of the report shall be retained at or near the mine site.

(c) An impoundment with no embankment structure, that is completely incised or is created by a depression left by backfilling and grading, that is not a sedimentation pond or coal mine waste impoundment and is not otherwise intended to facilitate active mining, shall be exempt from this subsection unless the cabinet determines and notifies the permittee in writing that engineering inspection and certification are necessary to ensure public health and safety or environmental conditions.

(10) Operator examinations.

(a) Impoundments subject to 30 C.F.R. 77.216, and Class B and C impoundments, shall be examined in accordance with 30 C.F.R. 77.216-3.

(b) Impoundments not included in paragraph (a) of this subsection shall be examined at least quarterly by a qualified person designated by the operator for appearance of structural weakness and other hazardous conditions. Quarterly examinations shall be conducted each calendar quarter (i.e., January-March, April-June, July-September, and October-December) and no two (2) examinations shall be within thirty (30) days of each other unless additional examination within a quarter are required based on evidence of structural weakness or hazardous conditions. Reports of the examinations shall be retained at or near the mine site. An impoundment with no embankment structure, that is completely incised or is created by a depression left by backfilling and grading, shall be exempt from this paragraph.

(11) Emergency procedures. If any examination or inspection discloses that a potential hazard exists, the person who examined the impoundment shall immediately notify the department and the Kentucky Division of Water, or if these agencies cannot be reached, Disaster and Emergency Services. The permittee shall immediately implement emergency procedures formulated for public protection and remedial action. If adequate emergency procedures cannot be formulated or implemented by the permittee, the cabinet shall be notified, and the cabinet shall notify the appropriate agencies that other emergency procedures are required to protect the public.

(12) Maintenance. An owner or operator of an impoundment shall:

(a) Cut vegetative growth where necessary to facilitate inspection and repairs;

(b) Clean any ditches and spillways; and

(c) Remove any combustible material present on the surface, other than that used for stability, such as mulch or dry vegetation.

Section 2. Permanent Impoundments. A permanent impoundment of water may be created, if authorized by the cabinet in the approved permit based upon compliance with subsections (1) through (6) of this section.

(1) The size and configuration of the impoundment will be adequate for its intended purposes.

(2) The quality of impounded water shall be suitable on a permanent basis for its intended use and, after reclamation, shall comply with applicable state and federal water quality standards, and discharges from the impoundment shall comply with applicable effluent limitations and shall not degrade the quality of receiving water below applicable state and federal water quality standards.

(3) The water level shall be sufficiently stable and be capable of supporting the intended use.

(4) Final grading shall provide for adequate safety and access for proposed water users. Perimeter slopes shall be stable and shall be protected against erosion.

(5) The impoundment shall not result in the diminution of the quality and quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses.

(6) The impoundment shall be suitable for the approved postmining land use.

History

RELATES TO: KRS 151.100, 151.250(3), 350.100, 350.420, 350.455, 350.465, 30 C.F.R. Parts 730-733, 735, 816.49, 917, 30 U.S.C. 1253, 1255, 1265
STATUTORY AUTHORITY: KRS 350.028, 350.465, 30 C.F.R. Parts 730-733, 735, 816.49, 917, 30 U.S.C. 1253, 1255, 1265
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(2), (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes the requirements for the design, construction, certification, inspection, and maintenance of temporary and permanent impoundments for surface mines. This administrative regulation differs from federal regulations as follows: (1) Section 1 of this administrative regulation provides criteria related to the stability, settlement, embankment height and width, and freeboard of impoundments which is not found in the federal regulations. These criteria have been retained because they have long been effective guidelines for embankment safety and stability. (2) Section 1(9)(c) of this administrative regulation provides an exemption from engineering inspection for certain types of impoundments without embankments. These inspections are unnecessary because the embankments do not present a safety hazard or environmental concern that would warrant routine, detailed inspection. (3) Section 1(10)(b) of this administrative regulation provides an exemption from quarterly inspections for certain small nonhazardous impoundments without embankment structures. These inspections are unnecessary because the structures cannot develop the hazardous conditions which the inspections were intended to detect.
History: 8 Ky.R. 1537; eff. 1-6-1983; 15 Ky.R. 460; 1076; eff. 12-13-1988; 24 Ky.R. 719; 2660; eff. 6-10-1998; Crt eff. 7-3-2018; 46 Ky.R. 1348, 2272; eff. 5-5-2020.

405 KAR 16:110 Surface and groundwater monitoring {#sec-405-kar-16-110 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:110}

Section 1. General Requirements.

(1) Surface and groundwater monitoring shall be conducted in a manner acceptable to the cabinet and utilize, at a minimum, a sufficient number of appropriately located groundwater monitoring wells (or springs), surface water monitoring stations, and quantity and quality parameters to demonstrate that:

(a) The mining and reclamation operations shall minimize disturbances to the hydrologic balance within the permit area, shadow area, and adjacent area pursuant to 405 KAR 16:060;

(b) The mining operation is meeting applicable effluent limitations and stream standards as required by 405 KAR 16:060, Section 1(3);

(c) Reclamation as required by 405 KAR is being accomplished and the operation is preventing material damage to the hydrologic balance in the cumulative impact area pursuant to 405 KAR 8:010, Section 14(2) and (3);

(d) The mining operation, pursuant to 405 KAR 16:060, Section 8, has not proximately resulted in the contamination, diminution, or interruption of a ground or surface water supply that is used for domestic, agricultural, industrial, or other beneficial purpose; and

(e) The mining operation shall comply with water quality criteria for bond release pursuant to 405 KAR 10:040.

(2) Surface and groundwater monitoring shall be coordinated with baseline data collection by conducting surface and groundwater monitoring at locations where baseline data was collected, or by other appropriate data collection and analysis procedures that shall allow a comparison of baseline conditions with during-mining and postmining conditions.

(3) Equipment, structures, monitoring wells, or other facilities used to monitor surface and groundwater quantity and quality shall be properly installed, maintained, and operated, and shall be removed or otherwise properly disposed of, including sealing of monitoring wells, if no longer needed; except that monitoring wells may be transferred to the surface owner of lands where the well is located, pursuant to 405 KAR 16:060, Section 7.

(4) Except as established in subsection (7) of this section:

(a) Surface and groundwater monitoring data collection shall begin during the calendar quarter of initial disturbance and continue during mining and reclamation until final bond release; and

(b) Surface and groundwater monitoring data shall be collected once each calendar quarter, with no two (2) samples collected closer than thirty (30) days apart. The results of the quarterly data collection shall be submitted to the appropriate regional office on or before the end of the first month following the calendar quarter in which the data were collected.

(5) If the results of any data collection indicate noncompliance with a permit condition, the permittee shall promptly notify the cabinet in writing and shall take immediate corrective actions to return the operations to compliance with all permit conditions.

(6) The cabinet may require the installation of additional groundwater monitoring wells and surface water monitoring stations, the collection of additional quantity and quality parameters, and more frequent data collection and submittal if additional information is needed to comply with the requirements of subsection (1) of this section.

(7)

The operation has minimized disturbance to the hydrologic balance in the permit and adjacent areas and prevented material damage to the hydrologic balance outside the permit area;
Water quantity and quality are suitable to support the postmining land uses; and
The water rights of other users have been protected or replaced.

(b)

The cabinet shall not approve reduction of sampling frequency to less than quarterly until at least thirty (30) months after Phase I bond release on the permit.
The cabinet shall not approve a sampling frequency of less than once per year.

Section 2. Groundwater Monitoring.

(1) Groundwater monitoring shall be conducted according to the requirements of Section 1 of this administrative regulation and the monitoring plan required by 405 KAR 8:030, Section 32(4).

(2) At a minimum, groundwater monitoring shall include the parameters of:

(a) Water levels; and

(b) Total dissolved solids, or specific conductance corrected to twenty-five (25) degrees Centigrade; pH; dissolved iron; dissolved manganese; acidity; alkalinity; and sulfate.

(3) If the applicant can demonstrate to the satisfaction of the cabinet by use of the baseline geologic or hydrologic information, the mining and reclamation plan, and the determination of probable hydrologic consequences that a particular water transmitting zone in the proposed permit and adjacent area does not serve as an aquifer that significantly ensures the hydrologic balance anywhere within the cumulative impact area, then monitoring of that water transmitting zone may be waived by the cabinet.

Section 3. Surface Water Monitoring.

(1) Surface water monitoring shall be conducted according to the requirements of Section 1 of this administrative regulation and the monitoring plan required by 405 KAR 8:030, Section 32(4).

(2) At a minimum, surface water monitoring shall include the parameters of:

(a) Discharge; and

(b) Total dissolved solids, or specific conductance corrected to twenty-five (25) degrees Centigrade; total suspended solids; pH; total iron; total manganese; acidity; alkalinity; and sulfate.

(3) Surface water monitoring for KPDES.

(a) Monitoring of point source discharges under a KPDES permit shall be conducted in accordance with 40 C.F.R. Parts 122, 123, and 434 and in accordance with the requirements of the KPDES permit.

The permittee shall submit a copy of the KPDES monitoring results to the cabinet on the time schedule and in the format required by the KPDES permit.
The permittee shall report all noncompliances with the KPDES permit to the cabinet in the manner required by the KPDES permit.

(b) Compliance with KPDES monitoring requirements shall not relieve the permittee of the obligation to comply with other surface and groundwater monitoring requirements of this administrative regulation.

History

RELATES TO: KRS 350.100, 350.405, 350.420, 350.465, 40 C.F.R. Parts 122, 124, 434
STATUTORY AUTHORITY: KRS 350.028, 350.420, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations establishing performance standards for protection of people and property, land, water, and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation establishes requirements for the monitoring and reporting of surface water quality and quantity, and groundwater levels and quality and aquifer conditions, and the required duration of monitoring.
History: 405 KAR 016:110. 8 Ky.R. 1538; 9 Ky.R. 702; eff. 1-6-1983; 11 Ky.R. 1840; 12 Ky.R. 187; eff. 8-13-1985; 15 Ky.R. 464; 1078; eff. 12-13-1988; 44 Ky.R. 636, 1315; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:120 Use of explosives {#sec-405-kar-16-120 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:120}

Section 1. General Requirements.

(1) Each permittee and person who conducts blasting operations shall comply with all applicable local, state, and federal laws and regulations in the use of explosives.

(2) Blasts that use more than five (5) pounds of explosives or blasting agents shall be conducted according to the schedule required by Section 3 of this administrative regulation.

(3) Each permittee shall have all blasting operations conducted under the direction of a blaster certified in accordance with 405 KAR 7:070. A certified blaster and at least one (1) other person shall be present at the firing of a blast. Persons responsible for blasting operations at a blasting site shall be familiar with the blasting plan and site-specific performance standards.

(4)

(a) An anticipated blast design shall be submitted if blasting operations will be conducted within:

1,000 feet of any building used as a dwelling; public building; school; church; or commercial, community or institutional building outside the permit area; or
500 feet of an active or abandoned underground mine.

(b) The blast design shall be presented as part of the permit application or shall be submitted to the department's appropriate regional office at least thirty (30) days prior to initiation of the blast.

(c) The blast design shall contain sketches of the drill patterns, delay periods, and decking; shall indicate the types and amounts of explosives to be used, critical dimensions, and the locations of structures to be protected; shall include a general description of structures to be protected; and shall contain a discussion of design factors to be used, which protect the public and meet the applicable airblast, flyrock, and ground vibration standards in this administrative regulation.

(d) The blast design shall be prepared and signed by a certified blaster.

(e) The cabinet may require changes to the design submitted in order to ensure compliance with KRS Chapter 350; SMCRA; and 405 KAR Chapters 7 through 24.

Section 2. Preblasting Survey.

(1) At least thirty (30) days before initiation of blasting, the permittee shall notify, in writing, all residents or owners of dwellings or other structures located within one-half (1/2) mile of the permit area how to request a preblasting survey in accordance with subsection (2) of this section.

(2) A resident or owner of a dwelling or other structure within one-half (1/2) mile of any part of the permit area may request a preblasting survey. This request shall be made in writing directly to the permittee or to the cabinet which shall promptly notify the permittee. The permittee shall promptly conduct a preblasting survey of the dwelling or structure. If a structure is renovated, modified, or added to subsequent to a preblasting survey, then, upon request a survey of such additions and renovations shall be performed in accordance with this section.

(3) The survey shall determine the condition of the dwelling or structure and document any preblasting damage and other physical conditions that could reasonably be affected by the blasting. Structures such as pipelines, cables, transmission lines and cisterns, wells, and other water systems warrant special attention; however, the assessment of these structures may be limited to surface condition and readily available data unless additional data are specifically required by the cabinet.

(4) A written report of the survey shall be promptly prepared and signed by the person who conducted the survey. The report may include recommendations of any special conditions or proposed adjustments to the blasting procedure which should be incorporated into the blasting plan to prevent damage. If the resident or structure owner or his representative accompanies the surveyor, the report shall contain the name of such person. Copies of the report shall be promptly provided to the person requesting the survey and to the cabinet. If the person requesting the survey disagrees with the results of the survey, he or she may submit, in writing to both the permittee and the cabinet, a detailed description of the specific areas of disagreement. The cabinet may require additional measures to ensure that adequate and accurate information is included in the preblasting survey and to ensure compliance with the requirements of this administrative regulation.

(5) Any surveys requested more than ten (10) days before the planned initiation of blasting shall be completed by the permittee before the initiation of blasting.

Section 3. Public Notice of Blasting Schedule.

(1) Blasting schedule publication.

(a) Each permittee shall publish a blasting schedule at least ten (10) days, but not more than thirty (30) days, before beginning a blasting program in which blasts that use more than five (5) pounds of explosives or blasting agents are detonated. The blasting schedule shall be published in a newspaper of general circulation in the locality of the blasting site.

(b) Copies of the schedule shall be distributed in accordance with the time frame specified in paragraph (a) of this subsection to the appropriate department regional office, to local governments and public utilities, and to each residence within one-half (1/2) mile of the blasting site described in the schedule.

(c) The permittee shall republish and redistribute the schedule at least every twelve (12) months and revise, republish, and redistribute the schedule at least ten (10) days, but not more than thirty (30) days, before blasting whenever the area covered by the schedule changes, the actual time periods for blasting significantly differ from those identified in the prior announcement, or the permittee changes the types or patterns of warning or all-clear signals identified in the prior schedule.

(2) Blasting schedule contents. The blasting schedule shall contain at a minimum:

(a) The name, address, and telephone number of the permittee;

(b) Identification of the specific areas in which blasting will take place;

(d) Identification of the methods to be used to control access to the blasting area; and

(e) Identification of the types and patterns of audible warnings and all-clear signals to be used before and after blasting.

Section 4. Surface Blasting Requirements.

(1) General requirements.

(a) The permittee shall conduct blasting operations at times approved by the cabinet and announced in the blasting schedule. The cabinet may limit the area covered, timing, and sequence of blasting as listed in the schedule, if such limitations are necessary and reasonable in order to protect the public health and safety or welfare.

(b) All blasting shall be conducted between sunrise and sunset. The cabinet may specify more restrictive time periods based on public requests or other relevant information and according to the need to adequately protect the public from adverse noise and other impacts. Blasting may, however, be conducted between sunset and sunrise if:

A blast that has been prepared during the day must be delayed due to the occurrence of an unavoidable hazardous condition and cannot be delayed until the next day because a potential safety hazard could result that cannot be adequately mitigated;
Prior approval for conducting the blasting between sunset and sunrise is obtained from the Kentucky Office of Mine Safety and Licensing; and
A complete written report of blasting at night is filed by the permittee with the cabinet not later than three (3) days after the night blasting, not including Saturdays, Sundays, or legal holidays. The report shall include a detailed description of the reasons for the delay in blasting including why the blast could not be held over to the next day, identification of the time at which the blast was actually conducted, a description of the warning notices given, and a copy of the blast record required by Section 6 of this administrative regulation.

(c) Unscheduled blasts may be conducted only where public or operator health and safety so require and for emergency blasting actions. When a permittee conducts an unscheduled blast, the permittee, using audible signals, shall notify all persons within one-half (1/2) mile of the blasting site and document the reason for the unscheduled blast in accordance with Section 6(20) of this administrative regulation.

(d) The use of a charge weight of explosives in excess of 40,000 pounds in any blast shall not occur without a valid permit for such blasting from the Kentucky Office of Mine Safety and Licensing. Such a permit shall be present at the blast site while such blasting is being conducted.

(2) Warnings. Warning and all-clear signals of different character or pattern that are audible within a range of one-half (1/2) mile from the point of the blast shall be given. Each person within the permit area and each person who resides or regularly works within one-half (1/2) mile of the permit area shall be notified of the meanings of the signals as identified in the blasting schedule through appropriate communications. These notifications shall be periodically delivered or otherwise communicated to such persons in a manner which can reasonably be expected to inform such persons of the meanings of the signals. Delivery or other appropriate communication of the meanings of such signals to the head of a household or to the person in charge of a place of business shall constitute sufficient notification of the meanings of such signals to all persons at such household or place of business. Each permittee shall maintain signs in accordance with 405 KAR 16:030, Section 6.

(3) Access control. Access to the blasting area shall be controlled to prevent the presence of livestock or unauthorized personnel during blasting until the blaster has reasonably determined:

(a) That no unusual circumstances, such as imminent slides or undetonated charges, exist; and

(b) That access to and travel in or through the blasting area can be safely resumed.

(4)

(a) Airblast. Airblast shall be controlled so that it does not exceed the values specified in Appendix A of this administrative regulation at any dwelling; public building; school; church; or commercial, community, or institutional building outside the permit area except as provided in subsection (8) of this section.

(b) In all cases except those involving the use of C-weighted, slow-response devices, the measuring systems used shall have a flat frequency response of at least 200 Hz at the upper end. The C-weighted shall be measured with a Type 1 sound level meter that meets the standard American National Standards Institute (ANSI) S1.4-1971 specifications.

(c) If necessary to prevent damage, the cabinet shall specify lower maximum allowable airblast levels than those in Appendix A of this administrative regulation for use in the vicinity of a specific blasting operation.

(d)

To evaluate compliance with the airblast standards of this administrative regulation, throughout blasting operations the permittee shall periodically monitor compliance with the airblast standards.
Monitoring pursuant to this paragraph shall be deemed "periodic" if at least three (3) consecutive blasts are monitored one (1) time during the period of January through June and one (1) time during the period of July through December; provided however:

a. The cabinet may approve or require an alternative frequency if deemed appropriate based on site conditions, the anticipated blast design, the proposed blasting plan, and any other pertinent information available to the cabinet. A plan for less frequent airblast monitoring shall be deemed approved if the plan is specified as a condition of permit issuance or is specified in the approved permit application and not modified by a condition of permit issuance. A plan for more frequent airblast monitoring shall be established in the approved permit application, as a condition of permit issuance, or after permit issuance in accordance with subparagraph 3 of this paragraph.

b. If detonation of explosives did not occur during the designated monitoring period, airblast monitoring need not be conducted during that period.

Subsequent to permit issuance, the cabinet may require airblast measurements of any or all blasts and may specify the locations of such measurements.
The results of all airblast monitoring shall be recorded in accordance with Section 6 of this administrative regulation.

(5) Flyrock. Flyrock, including blasted material traveling along the ground, shall not be cast from the blasting site more than half the distance to the nearest dwelling; public building; school; church; commercial, community, or institutional building; or any occupied structure and in no case beyond the boundary of the permit area or beyond the area of regulated access required under subsection (3) of this section.

(6) Prevention of adverse impacts. Blasting shall be conducted to prevent injury to persons; damage to public and private properties outside the permit area; adverse impacts on any underground mine; changes in the courses, channels, and availability of surface waters outside the permit area; and alterations of the ground water flow systems and ground water availability outside the permit area.

(7) Ground vibration.

(a) General. In all blasting operations except as otherwise authorized by subsection (8) of this section, the maximum ground vibration shall not exceed the values approved in the blasting plan required under 405 KAR 8:030. The maximum ground vibration at the location of any dwelling; public building; school; church; or commercial, community, or institutional building outside the permit area shall be established in accordance with either the maximum peak particle velocity limits of paragraph (b) of this subsection, in accordance with the scale-distance equations of paragraph (c) of this subsection, in accordance with the blasting-level equations of paragraph (d) of this subsection, or by the cabinet pursuant to paragraph (e) of this subsection. All other structures in the vicinity of the blasting area, such as water towers, pipelines, and other utilities; tunnels; dams; impoundments; and underground mines shall be protected from damage by establishment of a maximum allowable limit on the ground vibration proposed by the applicant in the blasting plan and approved by the cabinet.

(b) Maximum peak particle velocity. The maximum ground vibration shall not exceed the limits established in Appendix B of this administrative regulation at the location of any dwelling; public building; school; church; or commercial, community, or institutional building outside the permit area. Seismographic records shall be recorded for each blast.

A permittee may use the scale-distance equations of Appendix C of this administrative regulation to determine the allowable charge weight of explosives to be detonated within any eight (8) millisecond period without seismic monitoring.
The development of a modified scale-distance factor may be authorized by the cabinet based on a written request by the permittee supported by seismographic records of blasting at the mine site. The modified scale distance factor shall be determined such that the particle velocity of the predicted ground vibration will not exceed the limits established in Appendix B of this administrative regulation at a ninety-five (95) percent confidence level.

(d) Blasting-level equations. A permittee may use the ground vibration limits calculated from the blasting-level equations in Appendix D of this administrative regulation to determine the maximum allowable ground vibration. If the blasting-level equations are used, a seismographic record including both particle velocity and vibration-frequency levels shall be provided for each blast. The method for the analysis of the predominate frequency contained in the blasting records shall be approved by the cabinet before application of this alternative blasting criterion.

(e) The maximum allowable ground vibration shall be reduced by the cabinet beyond the limits of this subsection if the cabinet determines that lower limits are necessary to provide damage protection and ensure compliance with subsection (6) of this section.

(8) The maximum airblast and ground vibration standards of this section shall not apply at the following locations:

(a) At structures owned by the permittee and not leased to another party; and

(b) At structures owned by the permittee and leased to another party, if a written waiver by the lessee is submitted to the cabinet prior to blasting.

Section 5. Seismographic Measurements.

(1) The maximum peak particle velocity shall be recorded as either the largest of the peak particle velocities measured in three (3) mutually perpendicular directions or the vector sum thereof.

(2) The cabinet may require a permittee to conduct seismic monitoring of any or all blasts and may specify the location at which such measurements are taken and the degree of detail necessary in the measurement.

Section 6. Records of Blasting Operations. A record of each blast, including any required seismograph reports, shall be retained for at least five (5) years and shall be available for inspection by the cabinet and the public on request. The record shall contain the following data:

(1) Name of the permittee.

(2) Location, date, and time of the blast.

(3) Name, signature, certification number, and license number of the blaster in charge of the blast.

(4) Identification of and direction and distance, in feet, from the nearest blast hole to the nearest dwelling; public building; school; church; or commercial, community, or institutional building outside the permit area, except those described in Section 4(8) of this administrative regulation.

(5) Weather conditions, including those which may cause possible adverse blasting effects.

(6) Type of material blasted.

(7) Sketches of the blast pattern including number of holes, burden, spacing, decks, and delay pattern.

(8) Diameter and depth of holes.

(9) Types of explosives used.

(10) Total weight of explosives used.

(11) Total weight of explosives used per hole.

(12) Maximum weight of explosives detonated within any eight (8) millisecond period.

(13) Maximum number of holes detonated within any eight (8) millisecond period.

(14) Type of initiation system.

(15) Type of circuit.

(16) Type and length of stemming.

(17) Mats or other protection used.

(18) Type of delay detonator and delay periods used.

(19) Seismographic and airblast records, if used, which include for each record:

(a) Type of instrument, sensitivity, and either calibration signal or certification of annual calibration;

(b) Exact location of instrument and the date of, time of, and distance from the blast;

(d) Name of the person and firm taking the reading;

(e) Name of the person and firm analyzing the seismographic record; and

(f) As applicable, vibration and airblast levels recorded.

(20) Reasons and conditions for each unscheduled blast.

History

RELATES TO: KRS 350.430
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth specific requirements for the use of explosives for surface blasting, including qualified supervision of blasting, preblasting surveys, blasting schedules, warning signals, restrictions on timing and location of blasting, limitations on airblast and ground vibration, seismographic measurements, and records of blasting operations.
History: 405 KAR 016:120. 8 Ky.R. 1538; eff. 1-6-1983; 11 Ky.R. 1290; 1598; eff. 5-14-1985; 15 Ky.R. 466; eff. 12-13-1988; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:130 Disposal of excess spoil {#sec-405-kar-16-130 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:130}

Section 1. General Requirements.

(1) General. Excess spoil shall be placed in designated disposal areas, within a permit area, in a controlled manner to:

(a) Minimize the adverse effects of leachate and surface water run-off from the fill on surface and ground water;

(b) Ensure mass stability and prevent mass movement during and after construction; and

(c) Ensure that the final fill is suitable for reclamation and revegetation compatible with the natural surroundings and the approved postmining land use.

(2) Design certification.

(b) The fill shall be designed and constructed to attain a minimum long-term static safety factor of one and five-tenths (1.5). The foundation and abutments of the fill and all other features shall be sufficient to ensure stability of the fill and appurtenant structures under all stages and conditions of construction.

(3) Location. The disposal area shall be located on the most moderately sloping and naturally stable area available among those upon which, in the judgment of the cabinet, spoil could be placed in compliance with all applicable requirements of 405 KAR Chapters 7 through 24, and shall be placed, where possible, upon or above a natural terrace, bench, or berm if such placement provides additional stability and prevents mass movement.

(4) Stability.

(a) Stability analyses shall be performed by a qualified, registered professional engineer. Parameters used in the stability analyses shall be based upon adequate investigations of foundation and fill material, as approved by the cabinet, including field reconnaissance; subsurface investigations; and data obtained from laboratory analyses of such materials or, if approved by the cabinet, data obtained from other sources that yield results which ensure compliance with the applicable stability requirements of this administrative regulation. The analyses of foundation conditions shall take into consideration the effect of underground mine workings, if any exist in the area, upon the stability of the fill and appurtenant structures.

(b) If the toe of the fill rests on an area which has a natural land slope in excess of 2.8h:1v (thirty-six (36) percent) or such a lesser slope as may be designated by the cabinet based on local conditions, keyway cuts (excavations to stable bedrock) and/or rock toe buttresses shall be constructed to ensure stability of the fill. Stability analyses shall be performed in accordance with 405 KAR 8:030, Section 27(3) to determine the sizes of the rock toe buttresses and/or keyway cuts.

(5) Placement of excess spoil.

(a) Vegetative and organic materials shall be removed, either progressively or in a single set of operations, from the disposal area prior to placement of the excess spoil. Topsoil shall be removed, segregated, and stored and/or redistributed in accordance with 405 KAR 16:050. If approved by the cabinet, vegetative material may be used as mulch or may be included in the topsoil to control erosion, promote growth of vegetation, or increase the moisture retention of the soil.

(b) Excess spoil shall be transported and placed in a controlled manner in horizontal lifts not exceeding four (4) feet in thickness (or less if required by the cabinet to achieve the density necessary to ensure mass stability and to prevent mass movement, to avoid adverse impacts on the rock underdrain or rock core, or to minimize the formation of voids); concurrently compacted as necessary to ensure mass stability and to prevent mass movement during and after construction; graded so that surface and subsurface drainage is compatible with the natural surroundings; and covered with topsoil or substitute material in accordance with 405 KAR 16:050. The cabinet may approve designs which incorporate placement of excess spoil in lifts greater than four (4) feet in thickness if it is demonstrated to the cabinet's satisfaction in the application and certified by a qualified, registered professional engineer that the design ensures the stability of the fill in accordance with all applicable stability requirements of this administrative regulation and that the design complies with all other requirements of this administrative regulation.

(c)

The final configuration of the fill shall be suitable for the approved postmining land use.
The top of the fill shall be graded no steeper than 20h:1v (five (5) percent) toward properly designed drainage channels in natural ground along the periphery of the fill. Surface run-off from the top surface of the fill shall not be allowed to flow over the outslope of the fill. The outslope of the fill shall not exceed 2h:1v (fifty (50) percent) or such a lesser slope as may be required by the cabinet to ensure stability or minimize erosion.
Terraces may be constructed on the outslope of the fill if required for stability, for control of erosion, to conserve soil moisture, or to facilitate the approved postmining land use. Terrace benches shall be graded with a three (3) to ten (10) percent slope toward the fill. The outslope between terrace benches shall not exceed 2h:1v (fifty (50) percent) or such a lesser slope as may be required by the cabinet to ensure stability or minimize erosion. Run-off shall be collected by a ditch along the intersection of each terrace bench and the outslope. This ditch shall route run-off to stabilized diversion channels and shall have a maximum slope that is no greater than 20h:1v (five (5) percent) unless a steeper slope is necessary for permanent roads in conjunction with an approved postmining land use and a steeper slope will not adversely affect the stability of the fill or result in excessive erosion.

(d) Impoundments shall not be allowed on the completed fill.

(e) Excess spoil that is acid-forming, toxic-forming, or combustible may be placed in excess spoil fills provided that it is disposed of in accordance with 405 KAR 16:060 and 405 KAR 16:190, Section 3 and provided further that the disposal plan to be used is approved by the cabinet as part of the permit application.

(6) Drainage control.

(a) The fill design shall include diversions and underdrains as necessary to control erosion, minimize water infiltration into the fill, and ensure stability except the cabinet may waive underdrain requirements if it is demonstrated to the cabinet's satisfaction in the application that underdrains are not necessary because the disposal area does not contain any springs, manmade or natural drainageways, or wet-weather seeps and because seepage of water due to precipitation will not adversely affect the stability of the fill. In no case, except for head-of-hollow fills with rock-core chimney drains approved pursuant to Section 3 of this administrative regulation, shall surface run-off from above the fill be diverted through or under the fill.

(b) Diversions associated with excess spoil fills and appurtenant structures shall comply with the applicable requirements of 405 KAR 16:080 and shall be designed and maintained to safely pass the peak run-off from a ten (10) year, twenty-four (24) hour precipitation event, except as provided in Sections 2, 3, and 4 of this administrative regulation and where flow from an intermittent or perennial stream is diverted the design event shall be the 100 year, twenty-four (24) hour precipitation event.

(c) Underdrains shall be constructed of durable, nonacid-forming, and nontoxic-forming rock; shall be free of coal, clay, and nondurable material; and shall be designed and constructed using current, prudent engineering practices. The underdrain system shall be designed and constructed to carry, away from the fill, the maximum anticipated seepage of water due to precipitation and the maximum anticipated seepage and discharge from seeps and springs in the foundation of the disposal area and shall be protected from piping and contamination by a filter system designed and constructed to ensure proper long-term functioning of the underdrain using current, prudent engineering practices.

The minimum cross-sectional dimensions of the underdrain shall be as specified in Appendix A of this administrative regulation unless the applicant demonstrates in the application, through detailed analyses to the satisfaction of the cabinet, that alternative cross-sectional dimensions will provide adequate long-term capacity for drainage at the site. In constructing the underdrain, no more than ten (10) percent of the rock shall be less than twelve (12) inches in size and no single rock shall be larger than twenty-five (25) percent of the width of the segment of the underdrain in which the rock is located.
Underdrains shall be constructed of durable rock that meets the durability requirements of Section 4(2)(a)2 of this administrative regulation with the exception that, for shale material, the minimum SDI value necessary to demonstrate sufficient durability for underdrain material shall be ninety-five (95).
Adequate samples shall be collected at sufficient geographic and stratigraphic locations and shall be tested and analyzed pursuant to this paragraph to determine, to the satisfaction of the cabinet, the characteristics of all variations of materials to be used in the underdrains. The results of such tests and analyses shall be provided in the permit application.
Upon the request of the cabinet, the permittee shall, under the direction of a qualified, registered professional engineer, obtain adequate samples from the underdrain or other locations as necessary to demonstrate, to the satisfaction of the cabinet, compliance with this paragraph. Such samples shall be tested by a qualified laboratory and the results of such testing shall be analyzed by the qualified, registered professional engineer. The obtaining of samples, the testing, and the analyses shall be in the detail, scope, and time frame required by the cabinet to demonstrate, to the satisfaction of the cabinet, compliance with this paragraph. The results of such analyses shall be certified by the qualified, registered professional engineer under whose direction the samples were obtained and tested, and the results of the testing and the results of the analyses shall be submitted immediately to the department's appropriate regional office. The results of the testing and the results of analyses, or copies thereof, shall be reviewed by the qualified, registered professional engineer or specialist performing the inspections pursuant to Section 1(8) of this administrative regulation and shall be included in the certified report immediately following the analyses.

(d) In lieu of the rock underdrain requirements of paragraph (c) of this subsection, perforated pipe underdrains may be approved by the cabinet on a case-by-case basis; however, perforated pipe underdrains shall not be approved for fills of greater than 250,000 cubic yards volume nor where failure of the fill could result in blockage of a stream or significant damage to the health or safety of the public. Perforated pipe underdrains shall be corrosion resistant; shall have characteristics consistent with the long-term life of the fill; shall be designed and constructed using current, prudent engineering practices; shall be designed and constructed to carry, away from the fill, the maximum anticipated seepage of water due to precipitation and the maximum anticipated seepage and discharge from seeps and springs in the foundation of the disposal area; and shall be protected from clogging and contamination by a filter system designed and constructed to ensure long-term functioning of the perforated pipe underdrain using current, prudent engineering practices.

(7) Surface area stabilization. During and after construction of the fill and appurtenant structures, slope protection shall be provided to minimize surface erosion at the site of excess spoil disposal and at the locations of appurtenant structures. All disturbed areas, including diversion channels that are not riprapped or otherwise protected, shall be revegetated upon completion of construction.

(8) Inspections. A qualified, registered professional engineer, or other qualified professional specialist under the direction of a professional engineer, shall periodically inspect the fill during construction. The professional engineer or specialist shall be experienced in the construction of earth and rock fills.

(a) Inspections of the fill site shall be made during critical construction periods as necessary to ensure compliance with this administrative regulation. Critical construction periods shall include at a minimum: foundation preparation including the removal of all organic material and topsoil; placement of underdrains and protective filter systems; installation of final surface drainage systems; completion of the final grading; and completion of the initial revegetating of the completed fill. In addition to the above, inspections of the fill site shall be made, beginning at the initial site-preparation phase of construction, at least once every three (3) months throughout construction of the fill, including during placement and compaction of fill materials.

(b) The qualified, registered professional engineer shall provide a certified report to the department's appropriate regional office within two (2) weeks after each inspection that the fill has been or is being constructed and maintained as designed and in accordance with the approved plan and this administrative regulation. The report shall address appearances of instability, structural weakness, and other hazardous conditions.

(c)

The certified reports on the drainage system and protective filter shall include color photographs taken during and after construction of the underdrain and protective filter but before the drainage system is covered with excess spoil. If the underdrain system is constructed in phases, each phase shall be certified separately.
For situations in which excess durable rock spoil is placed in single or multiple lifts such that the underdrain system is constructed simultaneously with excess spoil placement by the natural segregation of dumped materials in accordance with Section 4 of this administrative regulation, color photographs shall be taken of the underdrain as the underdrain system is being formed.
The photographs accompanying each certified report shall be taken in adequate size and number and with enough terrain or other physical features of the site shown to provide a relative scale to the photographs and to specifically and clearly identify the site.

(d) A copy of each inspection report shall be retained at or near the mine site.

(9) Underground disposal. Excess spoil may be disposed of in underground mine workings but only in accordance with a plan approved by the cabinet and MSHA in accordance with the requirements for underground disposal of coal processing waste under 405 KAR 8:040, Section 27.

(10)

(a) If approved by the cabinet, based on a demonstration to the satisfaction of the cabinet in the application that such disposal will have no adverse effect upon the stability of the fill, and if included as a condition of the permit, excess spoil may be disposed of in coal mine waste refuse piles in accordance with 405 KAR 16:140 or 405 KAR 18:140.

(b) Coal processing waste shall not be disposed of in fills designed and approved for excess spoil. Underground development waste may be disposed of in excess spoil fills if such disposal is specifically approved by the cabinet and is made a condition of the permit and if such underground development waste is:

Placed in accordance with 405 KAR 16:140, Section 4;
Demonstrated to be nontoxic-forming and nonacid-forming; and
Demonstrated to have no adverse effect upon the stability of the fill.

Section 2. Valley Fills and Head-of-hollow Fills. Valley fills and head-of-hollow fills shall meet all of the requirements of Section 1 of this administrative regulation and the additional requirements of this section, except as provided in Sections 3 and 4 of this administrative regulation.

(1) A subdrainage system for the fill shall be constructed in accordance with Section 1(6)(c) or (d) of this administrative regulation and with the following:

(a) Be installed along the natural drainageways;

(b) Extend from the toe to the head of the fill; and

(2) Surface water run-off from the area above the fill shall be diverted away from the fill and into stabilized diversion channels designed to pass safely the run-off from a 100-year, twenty-four (24) hour precipitation event or larger event specified by the cabinet. Surface run-off from the fill surface shall be diverted to stabilized channels off the fill which will safely pass the run-off from a 100-year, twenty-four (24) hour precipitation event. Diversion designs shall comply with the applicable requirements of 405 KAR 16:080.

Section 3. Rock-Core Chimney Drains.

(1) A rock core chimney drain may be used in a head-of-hollow fill instead of the subdrain and surface run-off diversion system normally required, as long as the fill is not located in an area containing an intermittent or perennial stream. A rock-core chimney drain may be used in a valley fill if the fill volume does not exceed 250,000 cubic yards of material and if upstream drainage is diverted around the fill.

(2) The rock core chimney drain shall be designed and constructed as follows:

(a) The fill shall have, along the vertical projection of the main buried stream channel or rill, a vertical core of durable rock at least sixteen (16) feet thick which shall extend from the toe of the fill to the head of the fill and from the base of the fill to the surface of the fill. A system of lateral rock underdrains shall connect this rock core to each area of potential drainage or seepage in the disposal area. The underdrain system and the rock core shall be designed and constructed to carry, away from the fill, the maximum anticipated seepage of water due to precipitation and the maximum anticipated seepage and discharge from seeps and springs in the foundation of the disposal area. Rocks used in the rock core and underdrains shall meet the requirements of Section 1(6)(c) of this administrative regulation.

(b) A filter system to ensure the proper long-term functioning of the rock core shall be designed and constructed using current, prudent engineering practices.

(c)

The grading of the fill surface shall drain run-off away from the outslope of the fill and may drain run-off toward the rock core. In no case, however, shall intermittent or perennial streams be diverted into the rock core. The maximum slope of the top of the fill shall be 33h:1v (three (3) percent). Terraces on the fill shall be graded with a three (3) to five (5) percent slope toward the fill and a one (1) percent slope toward the rock core.
A drainage pocket may be maintained at the head of the fill during and after construction to intercept and collect surface run-off and to discharge the run-off through or over the rock drain, if it is demonstrated to the satisfaction of the cabinet in the application and certified by a qualified, registered professional engineer that the stability of the fill will not be impaired. In no case shall this drainage pocket have a potential for impounding more than 10,000 cubic feet of water.

(3) The drainage control system shall be capable of safely passing the run-off from a 100-year, twenty-four (24) hour precipitation event or a larger event if specified by the cabinet.

Section 4. End-dumped Fills. The cabinet may approve the alternative method of disposal of excess durable rock spoil by gravity placement in single or multiple lifts provided the following conditions are met:

(1) Except as provided in this section, the requirements of Sections 1 and 2 of this administrative regulation are met.

(2)

(a)

The excess spoil is nontoxic-forming and nonacid-forming and consists of at least eighty (80) percent, by volume, of durable rock that is free of coal, clay, and nondurable material.
Durable rock means rock that does not slake in water and that is not reasonably expected to degrade to such a size or condition as to block, cause failure of, or otherwise impair or restrict the effectiveness of the internal drainage system. The cabinet shall consider rock to be durable if it is demonstrated, to the satisfaction of the cabinet in the application, that the rock has an SDI value of ninety (90) or greater as determined by the Kentucky Department of Transportation "Method for Determination of Slake Durability Index" (Kentucky Method 64-513-79) incorporated herein by reference (copies of which may be obtained from the department; the Kentucky Transportation Cabinet, Division of Materials, Wilkinson Boulevard, Frankfort, Kentucky 40601; or the Kentucky Transportation Cabinet, Division of Management Services, State Office Building, Frankfort, Kentucky 40601). The cabinet may accept other test methods of demonstrating that rock is durable if it is demonstrated to the satisfaction of the cabinet that the alternative test methods yield equivalent measure of durability based upon correlation of results with Kentucky Method 64-513-79.
Adequate samples shall be collected at sufficient geographic and stratigraphic locations and shall be tested and analyzed pursuant to this subsection to determine, to the satisfaction of the cabinet, the characteristics of all variations of materials to be placed in the end-dumped fill. The results of such tests and analyses shall be provided in the permit application.

(b) All noncemented and poorly cemented shale, clay, soil, and nondurable excess spoil materials disposed of in the fill shall be distributed, to the satisfaction of the cabinet, within the fill by selective dumping or other adequate methods of placement to avoid localized concentrations of nondurable materials which would adversely affect the stability or internal drainage of the fill.

(3) The fill shall be designed and constructed to attain a minimum long-term static safety factor of one and five-tenths (1.5) and a minimum earthquake safety factor of one and one-tenth (1.1).

(4) The underdrain system may be constructed simultaneously with excess spoil placement by the natural segregation of dumped materials provided that the resulting underdrain system is capable of carrying, away from the fill, the maximum anticipated seepage of water due to precipitation and the maximum anticipated seepage and discharge from seeps and springs in the foundation of the disposal area and provided that the other requirements for drainage control are met. For situations (such as the dumping of fill material from an insufficient height or on an insufficient slope) in which, in the judgment of the cabinet, the natural segregation of dumped materials will not form an adequate underdrain system, the underdrain system shall be separately constructed in accordance with Section 1(6) of this administrative regulation.

(5) Upon the request of the cabinet, the permittee shall, under the direction of a qualified, registered professional engineer, obtain adequate samples from the fill or other locations as necessary to demonstrate, to the satisfaction of the cabinet, compliance with this section. Such samples shall be tested by a qualified laboratory and the results of such testing shall be analyzed by the qualified, registered professional engineer. The obtaining of samples, the testing, and the analyses shall be in the detail, scope, and time frame required by the cabinet to demonstrate, to the satisfaction of the cabinet, compliance with this section. The results of such analyses shall be certified by the qualified, registered professional engineer under whose direction the samples were obtained and tested, and the results of the testing and the results of the analyses shall be submitted immediately to the department's appropriate regional office. The results of the testing and the results of analyses, or copies thereof, shall be reviewed by the qualified, registered professional engineer or specialist performing the inspections pursuant to Section 1(8) of this administrative regulation and shall be included in the certified report immediately following the analyses.

(6) The surface drainage control system shall be designed and constructed in accordance with Sections 1 and 2 of this administrative regulation except that in all situations surface water run-off from areas adjacent to and above the fill and any appurtenant structures shall not flow onto the fill and shall be diverted into stabilized diversion channels designed to meet the applicable requirements of 405 KAR 16:080 and to safely pass the run-off from a 100 year, twenty-four (24) hour precipitation event.

Section 5. Disposal on Existing Benches.

(1) If approved by the cabinet, excess spoil may be disposed of on preexisting benches that have not been reclaimed to the standards of 405 KAR and for which there is no continuing responsibility to reclaim to such standards, provided that all of the requirements set forth in Section 1(1), 2(a), (4) through (8), and (10) of this administrative regulation and the requirements of this section are met.

(a) Excess spoil shall be placed only on the solid portion of the preexisting bench.

(b) The excess spoil shall be placed in horizontal lifts, concurrently compacted as necessary to ensure mass stability and prevent mass movement with a long-term static safety factor of one and three-tenths (1.3), and graded to allow surface and subsurface drainage compatible with the natural surroundings. The final graded slopes shall not exceed 2h:1v (fifty (50) percent) except the cabinet may approve steeper slopes which provide a minimum long-term static safety factor of one and three-tenths (1.3), provide adequate control over erosion, and closely resemble the surface configuration of the land prior to mining.

Achieve the most moderate slope possible which does not exceed the angle of repose; and
Eliminate the highwall to the maximum extent technically practicable.

(2) Gravity transport of excess spoil.

(a) Disposal of excess spoil from an upper actively mined bench to a lower preexisting bench by means of gravity transport may be approved by the cabinet if the applicant identifies the gravity transport courses on a map in the permit application and the applicant demonstrates, to the satisfaction of the cabinet, that the plan for gravity transport will minimize hazards to the environment and to the health and safety of the public and that the plan ensures that damage between benches and downslope of the preexisting bench will be minimized if spoil moves in an unapproved manner during activities related to the disposal of the spoil or after placement of the spoil on the preexisting bench.

(b) The disposal of material in accordance with this subsection shall comply with the following:

All excess spoil placed on the lower bench by gravity transport, including the spoil immediately below the points of gravity transport, shall be rehandled and placed as required under subsection (1) of this section. Spoil remaining on the lower bench from prior operations need not be rehandled unless such rehandling is necessary to ensure stability of the fill.
A safety berm shall be constructed on the solid portion of the lower bench prior to gravity transport of the excess spoil to the lower bench. The safety berm shall be of sufficient height, width, and length to prevent the gravity transported spoil from moving off the lower bench to the downslope. If there is insufficient material from previous operations on the lower bench to construct the safety berm, only that amount of excess spoil necessary for construction of the safety berm may be gravity transported to the lower bench prior to construction of the safety berm. The safety berm shall be removed during final grading operations.
Excess spoil shall not be allowed on the downslope below the upper bench and above the highwall of the preexisting bench except on designated gravity transport courses properly prepared according to 405 KAR 16:050. Upon completion of the fill, no excess spoil shall be allowed to remain on the designated gravity transport courses between the two (2) benches and each transport course shall be reclaimed in accordance with the applicable requirements of this chapter.

Section 6. Applicability of Amendments to this Administrative Regulation.

(1) Any excess spoil fill on which the final grading is conducted prior to the effective date of amendments to this administrative regulation shall, in lieu of the requirements of the amendments, comply with the requirements which preceded the amendments, the approved permit application, and the conditions of permit issuance.

(2) Any excess spoil fill in a construction phase beyond initial site preparation prior to ninety (90) days following the effective date of amendments to this administrative regulation shall, beginning on the effective date of these amendments, comply with all provisions of this administrative regulation as amended, except that for situations in which any requirement of an amendment to this administrative regulation would affect the design and construction of the fill to the extent that the design plans previously approved in the permit would have to be revised, such requirement shall not apply and the fill may be constructed in accordance with the previously approved design plans. However, the permittee may, if desired, apply for a permit revision in accordance with 405 KAR 8:010, Section 20 to modify the design of the fill to comply with the amendments to this administrative regulation.

(3) Any excess spoil fill for which construction begins on or after the 90th day following the effective date of amendments to this administrative regulation shall comply with all provisions of this administrative regulation as amended. If necessary in order to comply with this requirement, the permittee shall obtain a permit revision in accordance with 405 KAR 8:010, Section 20 prior to initial preparation of the fill site.

(4) With regard to any excess spoil fill approved in a permit issued prior to the effective date of these amendments, the permittee shall not be required to have slake durability index tests conducted solely for the purpose of including the results of such tests in the permit application; however, the permittee shall have such tests performed if required by the cabinet under Section 1(6)(c)4 or 4(5) of this administrative regulation. This exemption shall not apply to any such excess spoil fill approved in a permit issued prior to the effective date of these amendments for which construction begins on or after one (1) year following the effective date of these amendments.

History

RELATES TO: KRS 350.090, 350.410, 350.440, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth specific requirements for the location of areas used for the disposal of excess spoil materials and the design, construction, and inspection of fill structures composed of such materials.
History: 405 KAR 016:130. 8 Ky.R. 1541; 9 Ky.R. 703; eff. 1-6-1983; 11 Ky.R. 1842; 12 Ky.R. 189; eff. 8-13-1985; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:140 Disposal of coal mine waste {#sec-405-kar-16-140 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:140}

Section 1. General Requirements.

(1) All coal mine waste shall be hauled and conveyed in a controlled manner approved by the cabinet in disposal areas approved by the cabinet for this purpose. These areas shall be within a permit area. The disposal area shall be designed, constructed, and maintained:

(a) In accordance with 405 KAR 16:130, Sections 1 and 2, and this administrative regulation; and

(b) To prevent combustion.

(2) Coal mine waste materials from activities located outside the permit area, such as those activities at other mines or abandoned mine waste banks may be disposed of in the permit area only if approved by the cabinet. Approval shall be based on a showing by the permittee, using hydrologic, geotechnical, physical, and chemical analyses, that disposal of these materials does not:

(a) Adversely affect water quality, water flow, or vegetation;

(b) Create public health hazards; or

Section 2. Site Inspection.

(1) All coal mine waste banks shall be inspected on behalf of the permittee by a qualified professional engineer or other qualified person under the direct supervision of the responsible professional engineer.

(a) Inspections shall occur at least quarterly, beginning within seven (7) days after preparation of the disposal area begins.

The cabinet may require more frequent inspection based upon an evaluation of the potential danger to the health or safety of the public and the potential harm to land, air, or water resources.
Inspections shall terminate if the coal mine waste bank has:

a. Been graded;

b. Been covered in accordance with Section 4(4)(a) of this administrative regulation; or

c. Had topsoil distributed on the bank in accordance with 405 KAR 16:050, Section 4.

(b) Inspections shall include observations and tests as may be necessary to evaluate the potential hazard to human life and property, to ensure that all organic material and topsoil have been removed and that proper construction and maintenance are occurring in accordance with the plan submitted under 405 KAR 8:030, Section 34, and approved by the cabinet.

Steepness of slopes;
Seepage;
Other visible factors that may indicate potential failure; and
The results of failure with respect to the threat to human life and property.

(d)

The responsible registered professional engineer shall certify to the cabinet within two (2) weeks after each inspection that the coal mine waste bank has been constructed as specified in the design approved by the cabinet.
Copies of the inspection findings shall be maintained at the mine site.

(2) If an inspection discloses that a potential hazard exists, the cabinet shall be informed within twenty-four (24) hours promptly of the finding and of the emergency procedures formulated for public protection and remedial action.

(a) If adequate procedures cannot be formulated or implemented, the cabinet shall be notified immediately.

(b) The cabinet shall then notify the appropriate emergency agencies that other emergency procedures shall be required to protect the public from the coal mine waste area.

Section 3. Water Control Measures.

(1) Unless the cabinet approves alternative practices that ensure structural integrity of the waste bank and protection of ground and surface water quality, a properly designed subdrainage system shall be provided, which shall:

(a) Intercept all ground water sources;

(b) Be protected by an adequate filter; and

(2) During and after construction, surface drainage from the area above the coal mine waste bank and from the crest and face of the waste disposal area shall be diverted, in accordance with 405 KAR 16:130, Section 2(2).

(3)

(a) Slope protection shall be provided to minimize surface erosion at the site.

(b) Disturbed areas, including diversion ditches that are not riprapped, shall be vegetated upon completion of construction.

(4) Water discharged from a coal mine waste bank shall comply with 405 KAR 16:060, Sections 1, 2, and 9; 16:070; 16:090; and 16:110.

Section 4. Construction Requirements.

(1) Coal mine waste banks shall be constructed in compliance with 405 KAR 16:130, Sections 1 and 2, except to the extent that the requirements of those sections are varied in this section.

(2) Coal mine waste banks shall have a minimum static safety factor of one and five-tenths (1.5).

(3) Compaction requirements during construction or modification of a coal mine waste bank shall meet the requirements of this subsection, instead of those specified in 405 KAR 16:130, Section 1(5)(b).

(a) The coal mine waste shall be:

Spread in horizontal layers not more than twenty-four (24) inches in thickness; and
Compacted to attain ninety (90) percent of the maximum dry density to prevent spontaneous combustion and to provide the strength required for stability of the coal mine waste bank. Dry densities shall be determined in accordance with the American Association of State Highway and Transportation Officials (AASHTO) Specification T99-74 (12th Edition) (1974) as incorporated by reference in 405 KAR 7:015, Section 3(7), or an equivalent method.

(b) Variations may be allowed in these requirements for the disposal of dewatered fine coal waste (minus twenty-eight (28) sieve size) with approval of the cabinet or an equivalent method agreed upon by the cabinet and the permit applicant.

(4)

(a) Following grading of the coal mine waste bank, the site shall be covered with a minimum of four (4) feet of the best available nontoxic and noncombustible material, in accordance with 405 KAR 16:050, Section 2(5), and in a manner that does not impede flow from subdrainage systems.

(b) The coal mine waste bank shall be revegetated in accordance with 405 KAR 16:200.

(c) The cabinet may allow less than four (4) feet of cover material based on physical and chemical analyses that show that the requirements of 405 KAR 16:200 shall be met.

Section 5. Burning Coal Waste. Coal mine waste fires shall be extinguished by the permittee, in accordance with a plan approved by the cabinet and the MSHA. The plan shall contain, at a minimum, provisions to ensure that only persons authorized by the permittee, and who have an understanding of the procedures to be used, shall be involved in the extinguishing operations.

Section 6. Burned Waste Utilization.

(1) Before any burned coal mine waste, other materials, or refuse is removed from a permitted disposal area, approval shall be obtained from the cabinet.

(2) A plan for the method of removal, with maps and appropriate drawings to illustrate the proposed sequence of the operation and method of compliance with this chapter shall be submitted to the cabinet.

(3) Consideration shall be given in the plan to potential hazards that may be created by removal to persons working or living in the vicinity of the disposal area.

(4) The plan shall be prepared by a qualified professional engineer.

Section 7. Return to Underground Workings. Coal mine waste may be returned to underground mine workings only in accordance with the waste disposal program approved by the cabinet and MSHA pursuant to 405 KAR 8:040, Section 27.

History

RELATES TO: KRS 350.410, 350.420, 350.465, EO 2009-538
STATUTORY AUTHORITY: KRS 350.028, 350.465, EO 2009-538
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028 and 350.465 require the cabinet to promulgate administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. EO 2009-538, effective June 12, 2009 establishes the new Energy and Environment Cabinet. This administrative regulation establishes requirements for the disposal of coal mine waste, including design and construction requirements for coal mine waste banks, site inspection requirements, water control measures, provisions for extinguishing burning coal waste and utilization of burned coal waste, and the return of coal mine waste to underground mine workings.
History: 405 KAR 016:140. 8 Ky.R. 1545; 9 Ky.R. 706; eff. 1-6-1983; 10 Ky.R. 817; eff. 4-23-1984; 36 Ky.R. 648; 1021; eff. 11-17-2009; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:150 Disposal of noncoal mine waste {#sec-405-kar-16-150 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:150}

Section 1. Storage and Disposal.

(1) Storage. Noncoal mine wastes including, but not limited to, grease, lubricants, paints, flammable liquids, garbage, abandoned mining machinery, lumber and other combustibles generated during surface mining activities shall be placed and stored in a controlled manner in a designated portion of the permit area. Placement and storage shall ensure that leachate and surface run-off do not degrade surface or ground water, that fires are prevented, and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings.

(2) Disposal. Final disposal of such noncoal mine wastes shall be in a designated disposal site in the permit area or a state-approved solid waste disposal area. Disposal sites in the permit area shall be designed and constructed to ensure that leachate and drainage from the site do not degrade surface or ground water. Wastes shall be routinely compacted and covered to prevent combustion and wind-borne waste. When the disposal is completed a minimum of two (2) feet of soil cover shall be placed over the site, slopes stabilized, and revegetation accomplished in accordance with 405 KAR 16:200. Operation of the disposal site shall be conducted in accordance with all local, state, and federal requirements.

(3) At no time shall any noncoal mine waste be deposited in a refuse pile or impounding structure, nor shall any such excavation for waste disposal be located within eight (8) feet of any coal outcrop or coal storage area.

(4) Disposal of hazardous and solid waste other than "coal mining solid waste" (as defined by administrative regulations of the Division of Waste Management) shall not be conducted on the permit area, unless a permit is obtained from the Kentucky Division of Waste Management.

History

RELATES TO: KRS 350.020, 350.090, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for the storage and disposal of wastes other than coal mine waste, soil or rock.
History: 405 KAR 016:150. 8 Ky.R. 1546; eff. 1-6-1983; 15 Ky.R. 471; eff. 12-13-1988; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:160 Coal mine waste dams and impoundments {#sec-405-kar-16-160 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:160}

Section 1. General Requirements.

(1) This administrative regulation applies to dams and impoundments, constructed of coal mine waste or intended to impound coal mine waste, that were completed or are to be completed after August 3, 1977.

(2) Coal mine waste shall not be used in the construction of dams and impoundments unless it has been demonstrated to the cabinet that the stability of the structure conforms with the requirements of Section 3(1) of this administrative regulation. It shall also be demonstrated that the use of coal mine waste will not have a detrimental effect on downstream water quality or the environment due to acid seepage through the dam or impoundment. All demonstrations shall be submitted to and approved by the cabinet.

(3) An impounding structure constructed of coal mine waste or intended to impound coal mine waste shall not be retained permanently as part of the approved postmining land use.

Section 2. Site Preparation. Before coal mine waste is placed at a dam or impoundment site:

(1) All trees, shrubs, grasses, and other organic material shall be cleared and grubbed from the site, and all combustible materials shall be removed and disposed of or stockpiled in accordance with the requirements of this chapter; and

(2) Surface drainage that may cause erosion to the dam or the impoundment features, whether during construction or after completion, shall be diverted away from the dam or impoundment by diversion ditches that comply with the requirements of 405 KAR 16:080, Section 1. Adequate outlets for discharge from these diversions shall be in accordance with 405 KAR 16:060, Section 3. Diversions that are designed to divert drainage from the upstream area away from the impoundment area shall be designed to carry the peak run-off from a 100-year, six (6) hour precipitation event. Twenty-four (24) hours may be used in lieu of six (6) hours for the duration of the 100-year design precipitation event in this subsection. The diversion shall be maintained to prevent blockage, and the discharge shall be in accordance with 405 KAR 16:060, Section 3.

Section 3. Design and Construction.

(1) The design of each dam and impoundment constructed of coal mine waste or intended to impound coal mine waste shall comply with the requirements of 405 KAR 16:100, including the certification requirements thereof, modified as follows:

(a) An impounding structure constructed of coal mine waste or intended to impound coal mine waste that meets the criteria of 30 CFR 77.216(a) shall have sufficient spillway capacity to safely pass, adequate storage capacity to safely contain, or a combination of storage capacity and spillway capacity to safely control, the probable maximum precipitation of a six (6) hour precipitation event. The cabinet may require a duration longer than six (6) hours if safety concerns warrant a longer time period.

(b) An impounding structure with a drainage area of ten (10) square miles or less that does not have an open channel emergency spillway shall have a closed conduit principal spillway that shall meet the requirements of this paragraph. The impounding structure shall have sufficient storage capacity available to store the entire runoff from the probable maximum precipitation event while maintaining the required freeboard against overtopping, disregarding flow through the principal spillway.

The spillway shall have a trash rack designed to provide positive protection against clogging of the spillway at all operating levels, and an elbow designed to facilitate the passage of trash;
The conduit shall be large enough to pass the routed freeboard hydrograph peak discharge while maintaining the required freeboard against overtopping the structure. For structures included in paragraph (a) of this subsection, the probable maximum precipitation event shall be used to determine the freeboard hydrograph;
The conduit shall be large enough to meet the requirements under 401 KAR 4:030 for minimum emergency spillway discharge capacity; and
The spillway shall meet all other applicable requirements under 401 KAR 4:030, 405 KAR 16:100, and this administrative regulation, except the requirement under 401 KAR 4:030 that the conduit have a minimum cross-sectional area of thirty-six (36) square feet. The cross-sectional area of the barrel of the conduit shall be not less than twelve (12) square feet for a Class A structure with a product of storage in acre-feet times effective height in feet of less than 10,000 and shall be not less than twenty (20) square feet for other structures.

(c) The design freeboard between the lowest point on the dam or impoundment crest and the maximum water elevation shall be at least three (3) feet. For structures not included in paragraph (a) of this subsection, the maximum water elevation shall be that determined by the freeboard hydrograph criteria for the appropriate structure hazard classification under 405 KAR 7:040, Section 5, and 401 KAR 4:030.

(d) The dam or impoundment shall have a minimum safety factor of one and five-tenths (1.5) for the normal pool with steady seepage saturation conditions, and the seismic safety factor shall be at least one and two-tenths (1.2).

(e) The dam or impoundment foundation and abutments shall be designed to be stable under all conditions of construction and operation of the impoundment. Sufficient foundation investigations and laboratory testing shall be performed to determine the safety factors of the dam or impoundment for all loading conditions required in paragraph (d) of this subsection or 405 KAR 16:100 and for all increments of construction.

(2) Spillways and outlet works shall be designed to provide adequate protection against erosion and corrosion. Inlets shall be protected against blockage.

(3) Dams or impoundments constructed of or impounding coal mine waste shall be designed so that at least ninety (90) percent of the water stored during the design precipitation event can be removed within a ten (10) day period.

Section 4. Operation. For a dam or impoundment constructed of or impounding coal mine waste, at least ninety (90) percent of the water stored during the design precipitation event shall be removed within the ten (10) day period following the design precipitation event.

History

RELATES TO: KRS 151.100, 151.250(3), 350.425, 30 C.F.R. Parts 730-733, 735, 816.84, 917, 30 U.S.C. 1253, 1255, 1265
STATUTORY AUTHORITY: KRS 350.028, 350.465, 30 C.F.R. Parts 730-733, 735, 816.84, 917, 30 U.S.C. 1253, 1255, 1265
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(2), (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes requirements for coal mine waste dams and impoundments for surface mines. This administrative regulation differs from 30 CFR 816.84. Section 3(1)(b) of this administrative regulation includes detailed requirements for principal spillways in impoundments that do not have an open channel emergency spillway. Section 3(1)(c) of this administrative regulation requires a minimum freeboard of three (3) feet that is not included in the federal regulation. This is necessary to ensure the safety of an impounding structure that may be susceptible to erosion if overtopping occurs.
History: 405 KAR 016:160. 8 Ky.R. 1547; eff. 1-6-1983; 24 Ky.R. 723; 2663; eff. 6-10-1998; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:170 Stabilization of surface areas {#sec-405-kar-16-170 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:170}

Section 1. Stabilization of Surface Areas. All exposed surface areas shall be protected and stabilized to effectively control and limit erosion and air pollution attendant to erosion (fugitive dust).

Section 2. Control Measures. The fugitive dust control measures to be used shall include, as necessary, but not be limited to:

(1) Periodic watering of unpaved roads;

(2) Chemical stabilization of unpaved roads with proper application of nontoxic soil cement or dust palliatives;

(3) Paving of roads;

(4) Prompt removal of coal, rock, soil, and other dust-forming debris from roads and frequent scraping of and compaction of unpaved roads to stabilize the road surfaces;

(5) Revegetating, mulching, or otherwise stabilizing the surfaces of all areas adjoining roads that are sources of fugitive dust;

(6) Restricting the travel of vehicles on areas other than established roads;

(7) Minimizing the area of disturbed land;

(8) Prompt revegetation or other stabilization of disturbed lands; and

(9) Planting of special windbreak vegetation at critical points in the permit area.

History

RELATES TO: KRS 224.033, 350.020, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for the protection of people, property, land, water, natural resources, and aesthetic values during surface mining activities and for the restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for the stabilization of surface areas with specific measures for the control of fugitive dust.
History: 405 KAR 016:170. 8 Ky.R. 1547; eff. 1-6-1983; 11 Ky.R. 1850; eff. 8-13-1985; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

Section 1. General.

(1) The permittee shall, to the extent possible using the best technology currently available, minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, and shall achieve enhancement of those resources where practicable.

(2) Each permittee shall:

(a) To the extent possible using the best technology currently available:

Ensure that electric powerlines and other transmission facilities used for, or incidental to, surface mining activities on the permit area are designed and constructed to minimize electrocution hazards to raptors, except where the cabinet determines that these requirements are unnecessary;
Locate and operate haul and access roads so as to avoid or minimize impacts on important fish and wildlife species or other species protected by state or federal law;
Design fences, overland conveyors, and other potential barriers to permit passage of large mammals, except where the cabinet determines that the designs are unnecessary; and
Fence, cover, or use other appropriate methods to exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials.

(b) Avoid disturbances to, enhance where practicable, restore, or replace, wetlands, and riparian vegetation along rivers and streams and bordering ponds and lakes; and

(c) Avoid disturbances to, enhance where practicable, or restore, habitats of unusually high value for fish and wildlife.

Section 2. Protection of Endangered and Threatened Species.

(1)

(a) No surface mining activity shall be conducted which is likely to jeopardize the continued existence of an endangered or threatened species listed by the Secretary of the Interior or which is likely to result in the destruction or adverse modification of a designated critical habitat of those species in violation of the Endangered Species Act of 1973 as amended (16 USC Sec. 1531 et seq.). The operator shall promptly report to the cabinet any state- or federally-listed endangered or threatened species within the permit area of which the operator becomes aware. Upon notification, the cabinet shall consult with appropriate state and federal fish and wildlife agencies and, after consultation, shall identify whether, and under what conditions, the operator may proceed.

(b) No surface mining activity shall be conducted in a manner which would result in the unlawful taking of a bald or golden eagle, its nest, or any of its eggs. The operator shall promptly report to the cabinet any golden or bald eagle nest within the permit area of which the operator becomes aware. Upon notification, the cabinet shall consult with the U.S. Fish and Wildlife Service and also, where appropriate, the Kentucky Department of Fish and Wildlife Resources and, after consultation, shall identify whether, and under what conditions, the operator may proceed.

(2) Nothing in this title shall authorize the taking of an endangered or threatened species or a bald or golden eagle, its nest, or any of its eggs in violation of the Endangered Species Act of 1973 as amended (16 USC 1531 et seq.) or the Bald Eagle Protection Act as amended (16 USC 668 et seq.).

Section 3. Reclamation Strategies and Wildlife Enhancement Techniques.

(1) Where fish and wildlife is to be a postmining land use, the permittee shall:

(a) Select plant species to be used on reclaimed areas on the basis of the following criteria: their proven nutritional value for fish or wildlife; their use as cover for fish or wildlife; and their ability to support and enhance fish or wildlife habitat after release of performance bonds; and

(b) Group and distribute plants in a manner which optimizes edge effect, cover, and other benefits to fish and wildlife.

(2) Where cropland is to be the postmining land use, and where appropriate for wildlife- and crop- management practices, the permittee shall intersperse the fields with trees, hedges, or fence rows throughout the harvested area to break up large blocks of monoculture and to diversify habitat types for birds and other animals.

(3) Where residential, public service, or industrial uses are to be the postmining land use, and where consistent with the approved postmining land use, the permittee shall intersperse reclaimed lands with greenbelts utilizing species of grass, shrubs, and trees useful as food and cover for wildlife.

History

RELATES TO: KRS 350.020, 350.028, 350.405, 350.435, 350.465, 30 C.F.R. Parts 730-733, 735, 816.57, 816.97, 917, 16 U.S.C. 668 et seq., 1531 et seq., 30 U.S.C. 1253, 1255, 1265, 33 U.S.C. 1344
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465, 30 C.F.R. Parts 730-733, 735, 816.57, 816.97, 917, 16 U.S.C. 668 et seq., 1531 et seq., 30 U.S.C. 1253, 1255, 1265, 33 U.S.C. 1344
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities, and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth specific requirements and measures for the protection of fish, wildlife, and related environmental values, and for the enhancement of those resources where practicable.
History: 405 KAR 016:180. 8 Ky.R. 1548; eff. 1-6-1983; 18 Ky.R. 3017; 3472; eff. 6-24-1992; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:190 Backfilling and grading {#sec-405-kar-16-190 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:190}

Section 1. Timing of Backfilling and Grading. Backfilling and grading shall be conducted in accordance with the requirements for contemporaneous reclamation as set forth in 405 KAR 16:020.

Section 2. General Backfilling and Grading Requirements.

(1) Except as provided in subsection (9) of this section, all disturbed areas shall be returned to their approximate original contour. All spoil shall be transported, placed in a controlled manner, backfilled, compacted (where advisable to ensure stability or to prevent leaching of toxic materials), and graded to:

(a) Eliminate all highwalls (except as otherwise provided in Section 7 of this administrative regulation), spoil piles, and depressions (excluding depressions and impoundments approved pursuant to subsection (5) or (6) of this section);

(b) Ensure a long-term static factor of safety of at least one and three-tenths (1.3) for all portions of the reclaimed land;

(d) Minimize erosion and adverse effects on surface and ground water both on and off the site; and

(e) Support the approved postmining land use.

(2) Spoil, except excess spoil disposed of in accordance with 405 KAR 16:130, shall be returned to the excavated areas.

(3) Disposal of coal processing waste and underground development waste in the mined-out area shall be in accordance with 405 KAR 16:140, except that a long-term static safety factor of one and three-tenths (1.3) shall be achieved.

(4) On approval by the cabinet in order to conserve soil moisture, ensure stability, and control erosion on final graded slopes, cut-and-fill terraces may be allowed, if the terraces are compatible with the approved postmining land use and are appropriate substitutes for construction of lower grades on the reclaimed lands. The terraces shall meet the following requirements:

(a) The width of the individual terrace bench shall not exceed twenty (20) feet, unless specifically approved by the cabinet as necessary for stability, erosion control, or roads included in the approved postmining land use plan.

(b) The vertical distance between terraces shall be as specified by the cabinet, to prevent excessive erosion and to provide long-term stability.

(c) The slope of the terrace outslope shall not exceed 1v:2h (fifty (50) percent). Outslopes which exceed 1v:2h (fifty (50) percent) may be approved, if they have a minimum static safety factor of more than 1.3, provide adequate control over erosion, and closely resemble the surface configuration of the land prior to mining. In no case may highwalls be left as part of terraces.

(d) Culverts and underground rock drains shall be used on the terrace only if approved by the cabinet.

(5) Small depressions may be constructed on backfilled areas, if the depressions:

(a) Are needed to minimize erosion, conserve soil moisture, create or enhance wildlife habitat, or promote vegetation;

(b) Are not disapproved by the cabinet;

(d) Do not adversely affect the stability of the backfilled area; and

(e) Are not located on steep-slope outslopes.

(6) Impoundments on backfilled areas may be approved, if the impoundments:

(a) Meet the applicable requirements of 405 KAR 16:060, Section 10 and 405 KAR 16:100;

(b) Are demonstrated, to the satisfaction of the cabinet in the permit application, to have no adverse effect on the stability of the backfilled area;

(d) Are specifically approved by the cabinet in the permit application; and

(e) Are not located on steep-slope outslopes.

(7) All surface mining activities on slopes above twenty (20) degrees, or on lesser slopes that the cabinet defines as steep slopes, shall comply with the requirements of 405 KAR 20:060.

(8) All final grading; preparation of overburden before replacement of topsoil, topsoil substitutes, and topsoil supplements; and placement of topsoil, topsoil substitutes, and topsoil supplements shall be done along the contour to minimize subsequent erosion and instability. If grading, preparation, or placement along the contour is hazardous to equipment operators, then grading, preparation, and placement in a direction other than generally parallel to the contour may be used. In all cases, grading, preparation, or placement shall be conducted in a manner which minimizes erosion and provides a surface for placement of topsoil, topsoil substitutes, and topsoil supplements which will minimize slippage.

(9) The postmining slope may vary from the approximate original contour if approval is obtained from the cabinet for:

(a) The provisions for thin overburden in Section 4 of this administrative regulation;

(b) The provisions for thick overburden in Section 5 of this administrative regulation;

(d) A variance from approximate original contour requirements in accordance with 405 KAR 8:050, Section 6; or

(e) Incomplete elimination of highwalls in previously mined areas in accordance with Section 7 of this administrative regulation.

Section 3. Disposal of Acid-forming, Toxic-forming, and Combustible Materials and Coverage of Coal Seams.

(1) General. Exposed coal seams, acid-forming materials, toxic-forming materials, and combustible materials which are used, produced, or exposed during surface coal mining and reclamation operations shall be handled; disposed of; treated; and covered with nontoxic-forming, nonacid-forming, and noncombustible materials in a manner which:

(a) Minimizes adverse impacts on surface and ground water, minimizes disturbances to the hydrologic balance, and prevents material damage to the hydrologic balance;

(b) Ensures compliance with 405 KAR 16:060;

(d) Minimizes adverse impacts on plant growth and the approved postmining land use;

(e) Ensures that the affected area is capable of sustaining sufficient vegetation to meet the revegetation requirements of 405 KAR 16:200; and

(f) Ensures that the affected area is capable of meeting the postmining land use requirements of 405 KAR 16:210.

(2) Coverage and treatment. All exposed coal seams, acid-forming materials, toxic-forming materials, and combustible materials which are used, produced, or exposed during surface coal mining and reclamation operations shall be covered and treated as necessary to neutralize toxicity, acidity, and combustibility, in order to ensure long-term and short-term compliance with subsection (1) of this section.

(a) All exposed coal seams shall be covered with a minimum of four (4) feet of nontoxic-forming, nonacid-forming, and noncombustible materials. The cabinet shall require thicker amounts of cover, special compaction of cover, treatment, or other measures as necessary to ensure compliance with subsection (1) of this section and to prevent exposure of the coal seams by erosion.

(b) Excluding exposed coal seams, all acid-forming materials, toxic-forming materials, and combustible materials which are used, produced, or exposed during surface coal mining and reclamation operations shall be:

Selectively blended with nontoxic-forming, nonacid-forming, and noncombustible materials; treated; or selectively handled, or an appropriate combination of those measures shall be used, as necessary to ensure compliance with subsection (1) of this section; and
Covered with a minimum of four (4) feet of nontoxic-forming, nonacid-forming, and noncombustible materials. The cabinet shall require thicker amounts of cover, special compaction of cover, treatment, or other measures as necessary to ensure compliance with subsection (1) of this section and to prevent exposure of the toxic-forming, acid-forming, or combustible materials by erosion. The cabinet may approve lesser amounts of cover, or no cover (other than topsoil, topsoil substitutes, or topsoil supplements), if the applicant demonstrates, to the satisfaction of the cabinet in the permit application, that the lesser amounts are sufficient to ensure compliance with subsection (1) of this section and to maintain coverage of the toxic-forming, acid-forming, and combustible materials;
If required or approved by the cabinet, compacted and placed in an environment which minimizes the oxidation potential of the toxic-forming materials, acid-forming materials, and combustible materials; and
If required or approved by the cabinet, disposed so as to minimize surface and ground water contact with acid-forming materials, toxic-forming materials, and combustible materials. Water contact may be minimized by the encasement of those materials in low-permeability substances and by the compaction and selective placement of those materials in locations other than surface drainage courses, ground water recharge areas, or areas of significant ground water flow. As an alternative to minimizing contact with surface and ground water and if feasible based on site conditions, the cabinet may allow acid-forming materials, toxic-forming materials, and combustible materials to be placed below the permanent water table.

(3) The cabinet shall require measures in addition to those identified in subsection (2) of this section if necessary to ensure protection of the environment or the health or safety of the public.

Section 4. Thin Overburden.

(1) The provisions of this section apply only where the final thickness is less than eight-tenths (0.8) of the initial thickness. Initial thickness is the sum of the overburden thickness and coal thickness prior to removal of coal. Final thickness is the product of the overburden thickness prior to removal of coal times the bulking factor to be determined for each permit area. The provisions of this section apply only if surface mining activities cannot be carried out to comply with Section 2 of this administrative regulation to achieve the approximate original contour.

(2) In surface mining activities carried out continuously in the same limited pit area for more than one (1) year from the day coal removal operations begin and where the volume of all available spoil and suitable waste materials over the permit area is demonstrated to be insufficient to achieve the approximate original contour of the lands disturbed, surface mining activities shall be conducted to meet, at a minimum, the following standards:

(a) Transport, backfill, and grade, using all available spoil and suitable waste materials from the entire mine area, to attain the lowest practicable stable grade, to achieve a static safety factor of 1.3, and to provide adequate drainage and long-term stability of the regraded areas and cover all acid-forming and toxic-forming materials;

(b) Eliminate highwalls by grading or backfilling to stable slopes not exceeding 1v:2h (fifty (50) percent), or to lesser slopes as the cabinet may specify to reduce erosion, maintain the hydrologic balance, or allow the approved postmining land use;

(c) Transport, backfill, grade, and revegetate in accordance with 405 KAR 16:200, to achieve an ecologically sound land use compatible with the prevailing use in unmined areas surrounding the permit area; and

(d) Transport, backfill, and grade, to ensure impoundments are constructed only if:

It has been demonstrated to the cabinet's satisfaction that all requirements of 405 KAR 16:060, 405 KAR 16:070, 405 KAR 16:080, 405 KAR 16:090, 405 KAR 16:100 and 405 KAR 16:110 have been met; and
The impoundments have been approved by the cabinet as suitable for the approved postmining land use and as meeting the requirements of this chapter and all other applicable federal and state laws and regulations.

Section 5. Thick Overburden.

(1) The provisions of this section apply only where the final thickness is greater than one and two-tenths (1.2) of the initial thickness. Initial thickness is the sum of the overburden thickness and coal thickness prior to removal of coal. Final thickness is the product of the overburden thickness prior to removal of coal times the bulking factor to be determined for each permit area. The provisions of this section apply only if surface mining activities cannot be carried out to comply with Section 2 of this administrative regulation to achieve the approximate original contour.

(2) In surface mining activities where the volume of spoil over the permit area is demonstrated to be more than sufficient to achieve the approximate original contour, surface mining activities shall be conducted to meet, at a minimum, the following standards:

(a) Transport, backfill, and grade all spoil and wastes, not required to achieve the approximate original contour of the permit area, to the lowest practicable grade, to achieve a static factor of safety of one and three-tenths (1.3) and cover all acid-forming and other toxic-forming materials;

(b) Transport, backfill and grade excess spoil and wastes only within the permit area and dispose of those materials in accordance with 405 KAR 16:130;

(c) Transport, backfill, and grade excess spoil and wastes to maintain the hydrologic balance, in accordance with 405 KAR 16:060, 405 KAR 16:070, 405 KAR 16:080, 405 KAR 16:090, 405 KAR 16:100 and 405 KAR 16:110 and to provide long-term stability by preventing slides, erosion and water pollution;

(d) Transport, backfill, grade, and revegetate wastes and excess spoil to achieve an ecologically sound land use approved by the cabinet as compatible with the prevailing land uses in unmined areas surrounding the permit area;

(e) Eliminate all highwalls and depressions by backfilling with spoil and suitable waste materials; and

(f) Meet the revegetation requirements of 405 KAR 16:200 for all disturbed areas.

Section 6. Regrading or Stabilizing Rills and Gullies. Except as provided in subsections (a) and (b) of this section, if rills or gullies deeper than nine (9) inches form in areas that have been regraded and topsoiled, the rills and gullies shall be filled, graded, or otherwise stabilized and the area reseeded and replanted according to 405 KAR 16:200.

(1) Rills or gullies less than nine (9) inches deep shall be stabilized and the area reseeded and replanted, if the rills or gullies are disruptive to the approved postmining land use or to the establishment of vegetation, may result in additional erosion and sedimentation, or may cause or contribute to the violation of a water quality standard.

(2) Rills and gullies deeper than nine (9) inches need not be filled, regraded, and revegetated if all of the following criteria are met:

(a) They are incised to solid bedrock or are otherwise stable and not likely to further erode;

(b) They are not disruptive to the approved postmining land use or to the establishment of the vegetative cover; and

Section 7. Remining Previously Mined Areas.

(1) General requirements. Remining operations on previously mined areas, including steep slope areas, that contain a preexisting highwall shall comply with Sections 1 through 6 of this administrative regulation except as provided in this section.

(2) Variances to backfilling and grading requirements for remining operations. The requirements within Section 2(1)(a) of this administrative regulation to completely eliminate highwalls shall apply to remining operations, except for situations in which the volume of all reasonably available spoil is demonstrated, to the satisfaction of the cabinet in the permit application, to be insufficient to completely backfill and eliminate the preexisting or modified highwall. The highwall shall be eliminated to the maximum extent technically practicable in accordance with the following criteria:

(a) All reasonably available spoil shall be used to backfill the area.

(b) The backfill shall be graded to a slope which is compatible with the approved postmining land use and which provides adequate drainage and long-term stability (one and three-tenths (1.3) long-term static factor of safety). The exposed coal seam shall be covered in accordance with Section 3 of this administrative regulation.

(c) Spoil generated or handled by the remining operation shall not be placed on the fill section of any existing or new bench.

(d) Any highwall remnant shall be stable and not pose a hazard to the public health and safety or to the environment. The permittee shall demonstrate, to the satisfaction of the cabinet in the permit application, that the postmining highwall remnant will be stable. If the highwall remnant is determined by the cabinet to be unstable or potentially unstable, the permittee shall perform any corrective measures required by the cabinet to stabilize the highwall remnant.

(e) Spoil placed on the outslope during previous mining operations shall not be disturbed if the disturbance will cause instability of the remaining spoil or otherwise increase the hazard to the public health or safety or to the environment.

History

RELATES TO: KRS 350.020, 350.093, 350.100, 350.405, 350.410, 350.450, 350.465, 30 C.F.R. Parts 730-733, 735, 816.102-.106, 917, 30 U.S.C. 1253, 1255, 1265
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100, 350.465, 30 C.F.R. Parts 730-733, 735, 816.102-.106, 917, 30 U.S.C. 1253, 1255, 1265
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for backfilling and grading, including requirements for highwall elimination, return to approximate original contour, timing of backfilling and grading, use of terraces, thick and thin overburden conditions, covering coal and acid and toxic materials, and regrading or stabilizing rills and gullies.
History: 405 KAR 016:190. 8 Ky.R. 1549; eff. 1-6-1983; 10 Ky.R. 818; eff. 4-23-1984; 12 Ky.R. 939; 1322; eff. 2-4-1986; 15 Ky.R. 473; 1080; eff. 12-13-1988; 18 Ky.R. 420; 1872; eff. 11-26-1991; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:200 Revegetation {#sec-405-kar-16-200 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:200}

Section 1. General Requirements.

(1)

(a) Each permittee shall establish on all affected land a diverse, effective, and permanent vegetative cover that meets the requirements of this administrative regulation and the revegetation provisions of 405 KAR 16:180, and that supports the approved postmining land use.

(b) For prime farmland areas, the requirements of 405 KAR 20:040 shall apply in lieu of the productivity standards of this administrative regulation unless those areas are exempted by 405 KAR 8:050, Section 3, in which case the productivity standards of this administrative regulation shall apply.

(2) All revegetation shall be in compliance with the plans submitted under 405 KAR 8:030, Sections 24(4) and 37, as approved by the cabinet, and shall be carried out in a manner that encourages a prompt vegetative cover and recovery of productivity levels compatible with the approved postmining land use.

(3) If the approved postmining land use is not cropland or pastureland, all disturbed land except water areas, rock areas such as those used for drainage control and wildlife enhancement, and surface areas of roads that are approved as a part of the postmining land use or uses shall be seeded or planted to achieve a permanent vegetative cover of the same seasonal variety native to the region that is capable of soil stabilization, self-regeneration, and plant succession. The vegetative cover shall be considered of the same seasonal variety if it consists of a mixture of species of equal or superior utility for the approved postmining land use when compared with the utility of naturally occurring vegetation during each season of the year.

(4) If the postmining land use is cropland or pastureland, establishment of crops or pasture species normally grown in the mine vicinity and normal husbandry practices, and compliance with 405 KAR 16:180, Section 3(2) for cropland, will meet the requirements of subsection (1)(a) of this section.

(5)

(a) Plant species used for revegetation shall be compatible with the plant and animal species of the area, and shall meet the requirements of applicable state and federal laws or regulations for seeds, poisonous and noxious plants, and introduced species.

(b) Except for cropland, selection of species, distribution patterns, seeding rates, and planting arrangements shall be approved case-by-case by the cabinet based upon this administrative regulation and TRM #21, "Plant Species, Distribution Patterns, Seeding Rates, and Planting Arrangements for Revegetation of Mined Lands", Kentucky Department of Fish and Wildlife Resources, Kentucky Department of Natural Resources, Division of Forestry, and Kentucky Department for Natural Resources (January 6, 1995). This document is incorporated by reference. It may be reviewed, copied, or obtained at the Department for Surface Mining Reclamation and Enforcement, 300 Sower Boulevard, Frankfort, KY 40601, Monday through Friday, 8 a.m. through 4:30 p.m. Two (2) or more permanent legume species and two (2) or more permanent grasses shall be established on pastureland unless fewer species are approved by the cabinet based on a pasture management plan specifically tailored to the species mix.

(6) Subject to the approval of the cabinet, small incidental areas related to the fulfillment of the postmining land use may be exempted from the revegetation standards if no adverse environmental impact will occur if the exemption is granted.

(7) The extended liability period under the performance bond requirements of 405 KAR Chapter 10 shall begin after the last time of augmented seeding, fertilizing, irrigating, or other related work, and shall continue for not less than five (5) years; except:

(a) Discrete areas of 0.25 acre or less needing reseeding due to circumstances specified in subparagraphs 1 through 5 of this paragraph may be reseeded (including reliming, refertilizing, and remulching) without restarting the five (5) year liability period. The total acreage of these areas reseeded during the liability period shall not exceed three (3) percent of the permit area acreage. This paragraph shall only apply to:

Reseeding associated with repair of rills and gullies;
Reseeding areas where vegetation was disturbed by vehicular traffic not under the control of the permittee;
Reseeding areas where vegetation was disturbed by the installation or removal of oil and gas wells or utility lines;
Reseeding areas where there was poor seed germination of the initial seeding; and
Reseeding areas where vegetation was unavoidably disturbed in the course of conducting some other necessary reclamation activity.

(b) Liming, fertilizing, mulching, seeding, or stocking of haul roads, locations where sedimentation ponds and off-site temporary diversions that divert water to or away from sedimentation ponds have been removed, and locations where collected sediment and embankment material from sedimentation pond removal have been disposed shall not restart the five (5) year liability period. Vegetation established in these areas shall be in place for at least two (2) years before Phase III bond release;

(c) For cropland, the five (5) year liability period shall commence at the date of initial planting for the long-term intensive agricultural postmining land use;

(d) Irrigating, reliming, and refertilizing cropland and pastureland; reseeding cropland; and renovating pastureland by overseeding with legumes after Phase II bond release and after three (3) years from the initial seeding shall be considered normal husbandry practices and shall not restart the liability period if the amount and frequency of these practices do not exceed normal agricultural practices used on unmined land within the region; and

(e) Other normal husbandry practices that may be conducted without restarting the liability period are disease, pest, and vermin control; pruning; and transplanting and replanting of trees and shrubs in accordance with Section 6 of this administrative regulation.

(8) For pastureland, and for cropland except prime farmland subject to 405 KAR 20:040, ground cover and productivity success standards shall be met during the growing seasons of any two (2) years of the liability period except the first year; and areas approved for other uses shall equal or exceed the applicable success standards during the growing season of the last year of the liability period.

Section 2. Use of Introduced Species. Introduced species may be substituted for native species only if approved by the cabinet under the following conditions:

(1) The species shall meet the applicable requirements of Section 1(2), (3), (4), and (5) of this administrative regulation.

(2)

(a) Appropriate field trials or other studies shall be conducted or published literature shall be submitted to demonstrate to the satisfaction of the cabinet that proposed, unproven, introduced species are desirable and are necessary for achieving the postmining land use; or

(b) The species are necessary to achieve a quick, temporary, and stabilizing cover that aids in controlling erosion; and measures to establish permanent vegetation are included in the approved plan submitted under 405 KAR 8:030, Sections 24(4)(e) and 37.

Section 3. Timing. Seeding and planting of disturbed areas with permanent species shall be conducted no later than during the first normal period for favorable planting conditions after final preparation. The normal period for favorable planting shall be that planting time generally accepted locally, or as approved by the cabinet in the permit, for the type of plant materials selected. In accordance with Section 4 of this administrative regulation and 405 KAR 16:020, a disturbed area shall be seeded and mulched, as contemporaneously as practicable with the completion of backfilling and grading, to establish a temporary cover of small grains, grasses, or legumes until a permanent cover is established.

Section 4. Soil Amendments and Stabilization.

(1) Nutrients and soil amendments shall be applied to regraded areas in accordance with 405 KAR 16:050, Section 5.

(2) Suitable mulch or other soil stabilizing practices shall be used in addition to temporary cover on all regraded and topsoiled areas to control erosion, to promote germination of seeds, and increase the moisture retention capacity of the soil. The cabinet may, on a case-by-case basis, waive the requirement for mulch if the cabinet finds, based on seasonal, soil, and slope factors, that the temporary vegetative cover will achieve proper erosion control until a permanent cover is established, except that no waiver shall be granted for any area having a slope greater than ten (10) percent.

(3) For areas within the permit boundary to be used as cropland, the area shall be seeded or planted in order to maintain a vegetative cover effective in controlling erosion until the permittee chooses to grow crops.

Section 5. Success Standards for Ground Cover and Productivity.

(1) Determination of success of ground cover and productivity may be made on the basis of reference areas from unmined lands in the vicinity of the operation, where applicable, or by application of the specific ground cover and productivity standards of this section (tree and shrub stocking standards are set forth in Section 6 of this administrative regulation).

(2)

(a) For an approved postmining land use of pastureland or cropland used for the production of hay (except prime farmland subject to 405 KAR 20:040);

Ground cover (percent) and productivity (tons of forage per acre) shall be at least ninety (90) percent of that of an approved reference area with a statistical confidence of ninety (90) percent; or
Ground cover shall be at least ninety (90) percent, and productivity shall be at least ninety (90) percent of the average yield for that hay in the county in the three (3) years prior to the year of measurement, as determined from "Kentucky Agricultural Statistics 1989-1990", "Kentucky Agricultural Statistics 1990-1991", "Kentucky Agricultural Statistics 1991-1992", "Kentucky Agricultural Statistics 1992-1993", and Kentucky Agricultural Statistics 1993-1994", with a statistical confidence of ninety (90) percent.
"Kentucky Agricultural Statistics 1989-1990" "Kentucky Agricultural Statistics 1990-1991", "Kentucky Agricultural Statistics 1991-1992", "Kentucky Agricultural Statistics 1992-1993", and "Kentucky Agricultural Statistics 1993-1994", Kentucky Agricultural Statistics Service, Kentucky Department of Agriculture, and National Agricultural Statistics Service, U.S. Department of Agriculture, are incorporated by reference. These documents may be reviewed, copied, or obtained at the Department for Natural Resources, 300 Sower Boulevard, Frankfort, KY 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

(b) For areas within the permit boundary where row crops will be planted (except prime farmland subject to 405 KAR 20:040);

Ground cover on any area not planted in row crops shall be at least ninety (90) percent with a statistical confidence of ninety (90) percent; and
Crop production shall be at least ninety (90) percent of that of an approved reference area or at least ninety (90) percent of the average yield for the crop in the county in the three (3) years prior to the year of measurement, as determined from "Kentucky Agricultural Statistics 1989-1990", "Kentucky Agricultural Statistics 1990-1991", "Kentucky Agricultural Statistics 1991-1992", "Kentucky Agricultural Statistics 1992-1993", and "Kentucky Agricultural Statistics 1993-1994", with a statistical confidence of ninety (90) percent.

(c) Forest land, or other areas within the permit boundary where woody plants are stocked, shall have at least eighty (80) percent ground cover with a statistical confidence of ninety (90) percent, with no sign of significant erosion as set forth in 405 KAR 16:190, Section 6.

(d) For all other land uses, ground cover shall be at least eighty (80) percent with a statistical confidence of ninety (90) percent, with no sign of significant erosion as set forth in 405 KAR 16:190, Section 6.

(e) For all land uses other than cropland planted in row crops, at Phase III bond release there shall be no discrete bare area or sparsely covered (less than fifty (50) percent ground cover) area greater than 0.25 acre in size.

(3) For previously mined areas that were not reclaimed to the requirements of 405 KAR Chapters 16 through 20, the ground cover of living plants shall not be less than the ground cover existing before the redisturbance and shall be at least eighty (80) percent with a statistical confidence of ninety (90) percent, with no sign of significant erosion as set forth in 405 KAR 16:190, Section 6.

Section 6. Tree and Shrub Stocking. This section sets forth stocking standards and criteria for counting woody plants for measuring stocking success, and shall apply in addition to Section 5 of this administrative regulation, where the approved postmining land use or the approved fish and wildlife protection and enhancement plan requires the planting of trees or shrubs.

(1) If forest land is the approved postmining land use, a minimum stocking density of 300 trees or trees and shrubs per acre determined with a statistical confidence of ninety (90) percent, with tree (not shrub) species comprising at least seventy-five (75) percent of the total stock, shall be achieved on at least seventy (70) percent of the area stocked.

(a) For noncommercial (unmanaged) forest land, at least four (4) species of trees or trees and shrubs shall be planted in a mixed distribution pattern with each of the four (4) species comprising at least ten (10) percent of the total stock; however, none of the species shall comprise more than fifty (50) percent of the total stock.

(b) For commercial (managed) forest land, at least seventy-five (75) percent of the total stock shall be tree (not shrub) species providing good to excellent commercial value. The species shall be selected from those listed in TRM #21, except the cabinet may approve other species on a case-by-case basis.

(2) For other postmining land uses:

(a) If fish and wildlife is the postmining land use, at least thirty (30) percent of the area shall be planted in multiple rows or plots of trees or shrubs.

(b) For subareas within the permit boundary where trees or shrubs will be planted for the purpose of creating wildlife habitat (either for a fish and wildlife postmining land use or for fish and wildlife enhancement of other postmining land uses):

The stocking density of woody plants shall be at least 300 plants per acre, including volunteers. At least four (4) species of trees or shrubs listed in Appendix A of TRM #21, including at least one (1) hard mast species, one (1) conifer species, and two (2) soft mast or shrub species, shall be present and the stocking densities of these species shall be at least ninety (90) hard mast plants per acre, thirty (30) conifer plants per acre, and thirty (30) plants per acre for each of the two (2) soft mast or shrub species. Stocking densities shall be determined with a statistical confidence of ninety (90) percent.
In place of the requirements of subparagraph 1 of this paragraph the cabinet may, if requested by the applicant, approve stocking densities and woody plant species that are recommended by the Kentucky Department of Fish and Wildlife Resources for the permit area based upon site-specific considerations, except the stocking density of recommended species shall be at least 150 woody plants per acre, including volunteers. Stocking densities shall be determined with a statistical confidence of ninety (90) percent.
Tree and shrub species shall be selected, grouped, and distributed in a manner which optimizes edge effect, cover, and food for wildlife.
This amendment to this paragraph shall apply to original applications for permits and applications for permit amendments submitted after the effective date of this amendment. Permits issued or applications submitted prior to the effective date of this amendment may be revised to comply fully with this paragraph.

(c) For subareas within the permit boundary where trees and shrubs will be planted for the purposes of creating recreation areas, green belts, fence rows, woodlots, or shelter belts for wildlife, or otherwise facilitating the postmining land use, the minimum stocking density shall be 300 woody plants per acre, unless a lesser density is approved by the cabinet based on site-specific considerations.

(3) For determining tree or shrub stocking success for areas within the permit boundary to be stocked with woody plants, the following criteria shall apply:

(a) At Phase II bond release, each tree or shrub counted shall be alive and healthy and shall have been in place for not less than one (1) growing season. At Phase III bond release, each tree or shrub counted shall be alive and healthy and shall have been in place for not less than two (2) growing seasons:

(b) At Phase III bond release each tree or shrub counted shall have at least one-third (1/3) of its height in live crown;

(c) At Phase III bond release, only woody plants over one (1) foot in height shall be counted, and if multiple stems occur on the same plant, only the tallest stem shall be counted;

(d) Up to a cumulative twenty (20) percent of the woody plants needed to meet the approved stocking may be replanted during the liability period without restarting the liability period;

(e) At Phase III bond release, at least eighty (80) percent of the trees and shrubs used to determine success shall have been in place for three (3) years or more;

(f) Volunteer plants that meet all applicable requirements of this administrative regulation may be counted; and

(g) Portions of the site occupied by approved rock areas, brush piles, permanent impoundments, permanent roads, and surface drainageways shall be excluded from the stocking success determinations.

Section 7. Use of Reference Areas.

(1) Access.

(a) If the reference area is not under the control of the permittee, there shall be a written agreement between the permittee and the landowner specifying that the area may be used for the purposes of a reference area;

(b) The agreement shall also specify that representatives of the cabinet and OSM have right of entry for the purpose of observing and measuring vegetation; and

(c) The agreement shall be effective until final bond release on the permit area, and a copy of the agreement shall be submitted in the permit application.

(2) Selection and management.

(a) Reference areas shall be:

Located in unmined areas;
Of sufficient area to allow meaningful vegetation measurements and comparisons with the permit area;
As close to the permit area as practicable;
Representative of the geology, soil, and slope of the permit area, and have the same vegetative type or crops proposed for the postmining land use; and
Delineated on the vegetation map pursuant to 405 KAR 8:030, Section 19 or on another appropriate map.

(b) Management of the reference area shall be comparable to that which is required for the approved land use of the permit area.

Section 8. Planting Report.

(1) Prior to or simultaneously with the submittal of an application for Phase I bond release on an area, the permittee shall file a certified planting report with the cabinet, on a form prescribed and furnished by the cabinet, giving the following information:

(a) Identification of the operation;

(b) The type of planting or seeding, including mixtures and amounts;

(d) The area of land planted or seeded; and

(e) Any other relevant information that the cabinet requires.

(2) A planting report as described in subsection (1) of this section shall also be submitted to the cabinet if any augmentive reseeding or replanting, or other augmentive work, is performed within the permit area.

Section 9. Measurement of Vegetation Success.

(1) "TRM #19, Field Sampling Techniques for Determining Ground Cover, Productivity, and Stocking Success of Reclaimed Surface Mined Lands", Department for Natural Resources, June 28, 1991, is hereby incorporated by reference. This document may be reviewed or obtained at the Department for Natural Resources, 300 Sower Boulevard, Frankfort, KY 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

(2) Ground cover and tree and shrub stocking shall be measured using the techniques outlined in TRM #19.

(3) Productivity for pastureland and cropland shall be measured by either:

(a) The techniques established in TRM #19 or alternatives approved under subsection (4) of this section; or

(b) Harvesting and weighing the entire crop or forage by the permittee to determine total yield from the entire permit area or the entire portion designated as cropland (including prime farmland) or pastureland. Representative samples shall be taken to determine moisture content. Procedures for determining total yields under this option shall be approved in advance by the cabinet.

(4) The cabinet may approve alternative sampling and measurement techniques for productivity determinations in addition to those established by TRM #19 if:

(a) A complete description and justification of the methodology is submitted to the cabinet;

(b) The cabinet determines that use of the methodology would provide substantial benefit to the user in terms of cost, efficiency, or accuracy of measuring productivity;

(c) The methodology is determined by the cabinet to be procedurally and statistically valid and in compliance with this administrative regulation;

(d) Methodologies used for prime farmland shall be approved in consultation with SCS; and

(e) Alternative methodologies shall not be used unless they are approved by OSM.

(5) Measurements of ground cover, tree and shrub stocking, and productivity for Phase II and Phase III bond release shall be made by the cabinet, except the permittee may measure productivity.

(a) If the permittee intends to measure productivity, he shall notify the department's appropriate regional office of the measurement dates in order to provide the opportunity for cabinet personnel to observe the measurements. This notification shall be provided in writing at least thirty (30) days prior to the anticipated measurement dates and shall be provided by telephone or in person within two (2) days prior to the measurement dates.

(b) If the permittee measures productivity, he shall ensure that the measurements are made by qualified persons.

(c) The cabinet may make measurements or take other appropriate action as deemed necessary to verify measurements made by the permittee.

(6) All crop and forage yields shall be adjusted to standard moisture content: fifteen (15) percent for pasture and hay, fifteen and five-tenths (15.5) percent for corn, and twelve and five-tenths (12.5) percent for soybeans and wheat.

(7) Whether measured by the cabinet or the permittee, vegetation success shall be measured prior to the submittal of an application for a Phase II or Phase III bond release.

History

RELATES TO: KRS 350.093, 350.095, 350.100, 350.405, 350.410, 350.420, 350.435, 350.465, 30 C.F.R. Parts 730-733, 735, 816.111-816.116, 917, 30 U.S.C. 1253, 1255, 1265
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100, 350.465, 30 C.F.R. Parts 730-733, 735, 816.111-816.116, 917, 30 U.S.C. 1253, 1255, 1265
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for revegetation of areas affected by surface mining activities, including requirements for temporary and permanent vegetative cover, use of introduced species, timing of revegetation, mulching and other soil stabilizing practices, standards for measuring revegetation success, and reporting requirements.
History: 405 KAR 016:200. 8 Ky.R. 1551; eff. 1-6-1983; 18 Ky.R. 424; 1117; 2237; eff. 12-17-1991; 21 Ky.R. 535; 1347; 2121; eff. 2-22-1995; TAm eff. 8-9-2007; TAm eff. 7-6-2016; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:210 Postmining land use capability {#sec-405-kar-16-210 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:210}

Section 1. General.

(1) Prior to the final release of performance bond, affected areas shall be restored in a timely manner:

(a) To conditions capable of supporting the uses that the areas were capable of supporting before any mining; or

(b) To conditions capable of supporting higher or better alternative uses as approved by the cabinet under Section 4 of this administrative regulation.

(2) The following land uses shall apply under this administrative regulation:

(a) Cropland;

(b) Pastureland;

(d) Residential;

(e) Industrial or commercial;

(f) Recreation;

(g) Fish and wildlife;

(h) Developed water resources; and

(i) Undeveloped land or no current use or land management.

Section 2. Premining and Postmining Land Use.

(1) The premining uses of land to which the postmining land use is compared shall be those uses that the land previously supported if the land has not been previously mined. The premining land use for a specific area shall be determined based on the prevalent or dominant use, vegetative types, and features present at that area. More than one (1) land use may exist within a proposed permit boundary.

(2)

(a) The postmining land use for land that has been previously mined, and not reclaimed in compliance with 405 KAR Chapters 7 through 24, shall be judged on the basis of the land use that existed prior to any mining.

(b) If the land cannot be reclaimed to the land use that existed prior to any mining because of the previously mined condition, the postmining land use shall be judged on the basis of the highest and best use that can be achieved that is compatible with surrounding areas and does not require the disturbance of areas previously unaffected by mining.

(3) Prime farmland that has been historically used for cropland that is not exempted by 405 KAR 8:050, Section 3 shall have a postmining land use of cropland.

(4)

(a) The land use category of "undeveloped land or no current use or land management" shall not be used to designate a postmining land use.

(b) If the premining land use is "undeveloped land or no current use or land management", and if consistent with subsection (2) of this section and Section 3 of this administrative regulation:

If trees are dominant on the area prior to mining, the area may be designated as forestland for the postmining land use without compliance with the procedures and criteria for an alternative postmining land use; or
For all other cases, the area may be designated as fish and wildlife for the postmining land use without compliance with the procedures and criteria for an alternative postmining land use.

(5) Slope limitations for specific postmining land uses. The limitations in this subsection shall apply to permits issued after November 26, 1991. Portions of the permit area with slopes greater than twenty (20) percent (eleven and three-tenths (11.3) degrees) shall not be designated as cropland, including hay production.

(6) Steep slope operations with variances from approximate original contour shall comply with the requirements of 405 KAR 20:060, Section 3(2), and mountaintop removal operations shall comply with 405 KAR 8:050, Section 4(3).

Section 3. Historical Land Use. If the premining use of the land was changed within five (5) years of the date of application for a permit to conduct surface coal mining and reclamation operations, the historical use of the land as well as the land use immediately preceding the date of application shall be considered in establishing the premining capability of the land to support a variety of feasible uses.

Section 4. Alternative Postmining Land Use. Higher or better alternative postmining land uses shall be approved by the cabinet if the following criteria are met:

(1) There is a reasonable likelihood that the land use will be achieved;

(2) The use will not be impractical or unreasonable;

(3) The landowner or the land management agency having jurisdiction over the lands has been consulted, and the proposed alternative postmining land use is consistent with applicable land use policies and plans;

(4) The proposed use will not present an actual or probable hazard to public health or safety or threat of water pollution or diminution of water availability;

(5) The proposed use will not involve unreasonable delays in implementation; and

(6) The proposed use will not cause or contribute to violation of federal, state, or local law.

History

RELATES TO: KRS 350.093, 350.095, 350.100, 350.405, 350.410, 350.450, 350.465, 30 C.F.R. Parts 730-733, 735, 816.133, 917, 30 U.S.C. 1253, 1255, 1265
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.465, 30 C.F.R. Parts 730-733, 735, 816.133, 917, 30 U.S.C. 1253, 1255, 1265
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.465 requires the cabinet to promulgate administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation establishes requirements for restoring land use capability after completion of surface mining activities and specific criteria for approval of postmining land uses that differ from the premining land use.
History: 8 Ky.R. 1553; eff. 1-6-1983; 18 Ky.R. 431; 1875; 2243; eff. 11-26-1991; Crt eff. 7-3-2018; 46 Ky.R. 1351, 2274; eff. 5-5-2020.

405 KAR 16:220 Roads {#sec-405-kar-16-220 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:220}

Section 1. General.

(1) Each permittee shall design, construct, utilize, and maintain roads and restore the area to meet the requirements of this administrative regulation and to control or minimize erosion and siltation, air and water pollution, and damage to public or private property.

(2) To the extent possible using the best technology currently available, roads shall not cause damage to fish, wildlife and related environmental values and shall not cause additional contributions of suspended solids to stream flow or to run off outside the permit area. Any such contributions shall not be in excess of limitations of state or federal law.

(3) The design and construction of roads shall be certified by a qualified registered professional engineer as being in accordance with Sections 2 through 5 of this administrative regulation, except to the extent that alternative specifications are used. Alternative specifications may be used only after approval by the cabinet upon a demonstration by a qualified registered professional engineer that they will result in performance, with regard to safety, stability and environmental protection, equal to or better than that resulting from roads complying with the specifications of this administrative regulation.

(4) All roads shall be removed and the affected land regraded and revegetated in accordance with the requirements of Section 7 of this administrative regulation unless:

(a) Retention of the road is approved as part of the approved postmining land use or as being necessary to control erosion adequately;

(b) The necessary maintenance is assured; and

Section 2. Location.

(1) Roads shall be located, insofar as possible, on ridges or on the most stable available slopes to minimize erosion.

(2) No part of any road shall be located in the channel of an intermittent or perennial stream unless specifically approved by the cabinet.

(3) Stream fords are prohibited unless they are specifically approved by the cabinet as temporary routes during periods of construction. The fords shall not adversely affect stream sedimentation or fish, wildlife, and related environmental values. All other stream crossings shall be made using bridges, culverts, or other structures designed, constructed, and maintained to meet the requirements of Section 4 of this administrative regulation.

Section 3. Design and Construction. Roads shall be designed and constructed in compliance with the following standards in order to control subsequent erosion and disturbance of the hydrologic balance.

(1) The roadway width shall be appropriate for the anticipated volume of traffic and the size, weight, and speed of vehicles to be used.

(2) Vertical alinement. Except where lesser grades are necessary to control site-specific conditions, maximum road grades shall be as follows:

(a) The maximum grade shall not exceed lv:6.5h (fifteen (15) percent).

(b) There shall be not more than 300 feet of grade exceeding ten (10) percent within any consecutive 1,000 feet of road.

(3) Horizontal alinement. Roads shall have horizontal alinement as consistent with the existing topography as possible, and shall provide the alinement required to meet the performance standards of this administrative regulation. The alinement shall be determined in accordance with the anticipated volume of traffic and weight and speed of vehicles to be used. Horizontal and vertical alinement shall be coordinated to ensure that one will not adversely affect the other and to ensure that the road will not cause environmental damage.

(4) Temporary erosion control measures shall be implemented during construction to minimize sedimentation and erosion until permanent control measures can be established.

(5) Excess or unsuitable material from excavations shall be disposed of in accordance with 405 KAR 16:060, Section 4; 405 KAR 16:140, Section 1; 405 KAR 16:190, Section 3.

(6) Vegetation shall not be cleared for more than the width necessary for road and associated ditch construction, to serve traffic needs and for utilities.

(7) Road cuts.

(a) Cut slopes shall not be steeper than specifically authorized by the cabinet, and shall not be steeper than lv:1.5h in unconsolidated materials or lv:0.25h in rock, except that steeper slopes may be specifically authorized by the cabinet if geotechnical analysis demonstrates that a minimum safety factor of one and five-tenths (1.5) can be maintained.

(b) All cut slopes except solid rock cut slopes shall be revegetated as soon as possible to minimize erosion.

(8) Road embankments. Embankment sections shall be constructed in accordance with the following provisions:

(a) All vegetative material and topsoil shall be removed from the embankment foundation during construction to increase stability, and no vegetative material or topsoil shall be placed beneath or in any road embankment.

(b) Where an embankment is to be placed on side slopes exceeding lv:5h (twenty (20) percent), the existing ground shall be plowed, stepped, or, if in bedrock, keyed in a manner which increases the stability of the fill. The keyway shall be a minimum of ten (10) feet in width and shall extend a minimum of two (2) feet below the toe of the fill.

(c) Embankment shall be placed in horizontal layers and shall be compacted as necessary to ensure that the embankment is adequate to support the anticipated volume of traffic and weight and speed of vehicles to be used. In selecting the method to be used for placing embankment material, consideration shall be given in the design to such factors as the foundation, geological structure, soils, type of construction, and equipment to be used.

(d) Embankment slopes shall not be steeper than lv:2h, except that where the embankment material is a minimum of eighty-five (85) percent rock, slopes shall not be steeper than lv:1.35h if it has been demonstrated to the cabinet that embankment stability will result.

(e) The minimum safety factor for all embankments shall be 1.25, or such higher factor as the cabinet may specify.

(f) The road surface shall be sloped to prevent ponding of water on the surface.

(g) All material used in embankments shall be reasonably free of organic material, coal or coal blossom, frozen or excessively wet materials, peat material, natural soils containing organic matter, or any other material considered unsuitable by the cabinet for use in embankment construction.

(h) Acid-producing materials shall be permitted for constructing embankments for only those roads constructed on coal processing waste banks and only if it has been demonstrated to the cabinet that no additional acid will leave the confines of the coal processing waste bank. In no case shall acid-bearing refuse material be used outside the confines of the coal processing waste bank. Restoration of the road shall be in accordance with the requirements of 405 KAR 16:190, Sections 3 through 6; and 405 KAR 16:200.

(i) All embankment slopes shall be revegetated as soon as possible to minimize erosion.

Section 4. Drainage.

(1) General. Each road shall be designed, constructed, and maintained to have adequate drainage, using structures such as, but not limited to, ditches, cross drains, and ditch relief drains. The water-control system shall be designed to safely pass, at a minimum, the peak run-off from a ten (10) year, twenty-four (24) hour precipitation event or a greater event if required by the cabinet.

(2) Natural drainage. Natural channel drainageways shall not be altered or relocated for road construction without the prior approval of the cabinet in accordance with 405 KAR 16:080. The cabinet may approve alterations and relocations only if the natural channel drainage is not blocked and there is no adverse impact on adjoining landowners.

(3) Stream crossings. Drainage structures are required for stream channel crossings. Drainage structures shall not adversely affect fish migration and aquatic habitat or related environmental values, and shall not adversely affect the normal flow or gradient of the stream or cause increased flow depths which would adversely affect upstream properties outside the permit area.

(4) Ditches.

(a) Drainage ditches shall be placed at the toe of all cut slopes. A ditch shall be provided on both sides of a through-cut and on the inside shoulder of a cut-and-fill section, with ditch relief cross drains spaced according to grade. Water shall be intercepted before reaching a switchback or large fill and drained safely away in accordance with this section. Water from a fill or switchback shall be released below the fill, through conduits or in riprapped channels, and shall not be discharged onto the fill.

(b) Trash racks and debris basins shall be installed in drainage ditches wherever debris from the drainage area is likely to impair the functions of drainage and sediment control structures.

(5) Culverts and bridges.

(a)

Culverts shall pass the ten (10) year, twenty-four (24) hour precipitation event without causing overtopping of the road and without causing adverse effects upon upstream properties outside the permit area. Bridges and approach fills shall pass the 100 year flood event or where appropriate the 100 year, twenty-four (24) hour precipitation event or a larger event, as specified by the cabinet, without causing increases in flow depths which would adversely affect upstream properties outside the permit area.
Drainage pipes and culverts shall be constructed to avoid plugging or collapse and erosion at inlets and outlets.
All culverts shall be covered by compacted fill to a minimum depth of one (1) foot.
Culverts shall be designed, constructed, and maintained to sustain the structural load from the fill and the weight of vehicles to be used.

(b) Culverts for road surface drainage only shall be constructed in accordance with the following:

Unless otherwise authorized or required under subparagraphs 2 or 3 of this paragraph, culverts shall be spaced as follows: spacing shall not exceed 1,000 feet on grades of zero to three (3) percent; spacing shall not exceed 800 feet on grades of three (3) to six (6) percent; spacing shall not exceed 500 feet on grades of six (6) to ten (10) percent; spacing shall not exceed 300 feet on grades of ten (10) percent or greater.
Culverts at closer intervals than the maximum in subparagraph 1 of this paragraph shall be installed if required by the cabinet as appropriate for the erosive properties of the soil or to accommodate flow from small intersection drainages.
Culverts may be constructed at greater intervals than the maximum indicated in subparagraph 1 of this paragraph if authorized by the cabinet upon a finding that greater spacing will not increase erosion.
The inlet end shall be protected by a rock headwall or other protection approved by the cabinet as adequate protection against erosion at the inlet. The water shall be discharged below the toe of the fill through conduits or in riprapped channels and shall not be discharged onto the fill.

Section 5. Surfacing.

(1) Roads shall be surfaced with rock, crushed gravel, asphalt, or other material approved by the cabinet as sufficiently durable for the anticipated volume of traffic and weight and speed of vehicles to be used.

(2) Acid- or toxic-forming substances shall not be used in road surfacing.

Section 6. Maintenance.

(1) Roads shall be maintained in such a manner that the required or approved design standards are met throughout the life of the road.

(2) Road maintenance shall include repairs to the road surface such as grading, filling of potholes, and replacement of surfacing. It shall include revegetating of cut and fill slopes, watering for dust control, and minor reconstruction as necessary.

(3) Roads damaged by events such as floods or landslides, or by structural failures such as sliding or slumping of the embankment, shall be repaired as soon as practicable after the damage has occurred.

Section 7. Restoration.

(1) As soon as practicable after a road is no longer needed for mining and reclamation operations or monitoring, unless the cabinet approves retention of a road as suitable for the approved postmining land use:

(a) The road shall be closed to vehicular traffic;

(b) The natural-drainage patterns shall be restored;

(d) Roadbeds shall be ripped, plowed, and scarified;

(e) Fill slopes shall be rounded or reduced and shaped to conform the site to adjacent terrain and to meet natural-drainage restoration standards;

(f) Cut slopes shall be shaped to blend with the natural contour;

(g) Cross drains, dikes, and water bars shall be constructed to minimize erosion;

(h) Terraces shall be constructed as necessary to prevent excessive erosion and to provide long-term stability in cut-and-fill slopes; and

(i) Road surfaces shall be topsoiled in accordance with 405 KAR 16:050, Section 4(2) and revegetated in accordance with 405 KAR 16:200, Sections 1 through 6.

(2) Unless otherwise authorized by the cabinet, all road surfacing materials shall be removed and disposed of under 405 KAR 16:150, Section 1.

History

RELATES TO: KRS 350.020, 350.028, 350.085, 350.465
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for the location, design, construction, maintenance, and removal or permanent retention of roads and associated drainage structures.
History: 405 KAR 016:220. 8 Ky.R. 1554; 9 Ky.R. 707; eff. 1-6-1983; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

405 KAR 16:250 Other facilities {#sec-405-kar-16-250 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:250}

Section 1. Other Transportation Facilities. Railroad loops, spurs, sidings, surface conveyor systems, chutes, aerial tramways, or other transportation facilities within the permit area shall be designed, constructed, and maintained, and the area restored, to:

(1) Prevent, to the extent possible using the best technology currently available:

(a) Damage to fish, wildlife, and related environmental values; and

(b) Additional contributions of suspended solids to stream flow or run off outside the permit area. Any such contributions shall not be in excess of limitations of state and federal law.

(2) Control and minimize diminution or degradation of water quality and quantity;

(3) Control and minimize erosion and siltation;

(4) Control and minimize air pollution; and

(5) Prevent damage to public or private property.

Section 2. Support Facilities and Utility Installation.

(1) Support facilities required for, or used incidentally to, the operation of the mine, including, but not limited to, mine buildings, coal loading facilities at or near the mine site, coal storage facilities, equipment-storage facilities, fan buildings, hoist buildings, preparation plants, sheds, shops, and other buildings shall be designed, constructed, and located to prevent or control erosion and siltation, water pollution, and damage to public or private property. Support facilities shall be designed, constructed, maintained and used in a manner which prevents, to the extent possible using the best technology currently available:

(a) Damage to fish, wildlife, and related environmental values; and

(b) Additional contributions of suspended solids to stream flow or run off outside the permit area. Any such contributions shall not be in excess of limitations of state or federal law.

(2) All surface mining activities shall be conducted in a manner which minimizes damage, destruction, or disruption of services provided by oil, gas, and water wells; oil, gas, and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under, or through the permit area, unless otherwise approved by the owner of those facilities and the cabinet.

History

RELATES TO: KRS 350.020, 350.028, 350.151, 350.465
STATUTORY AUTHORITY: KRS 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth general requirements for the design, construction, and maintenance of support facilities and transportation facilities other than roads, and the restoration of areas affected by such facilities.
History: 405 KAR 016:220. 8 Ky.R. 1557; eff. 1-6-1983; Crt eff. 7-3-2018; Crt eff. 6-10-2025.

Chapter 18 Performance Standards for Underground Mining Activities

405 KAR 18:001 Definitions for 405 KAR Chapter 18 {#sec-405-kar-18-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:001}

Section 1. Definitions.

(5) "Affected area" means any land or water area which 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;

(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;

(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:

Was designated as a public road pursuant to the laws of the jurisdiction in which it is located;
Is maintained with public funds and constructed in a manner similar to other public roads of the same classification within the jurisdiction; and
There is substantial (more than incidental) public use.

(6) "Angle of draw" means the angle of inclination between the vertical at the edge of the underground mine workings and the point of zero vertical displacement at the edge of a subsidence trough.

(8) "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.

(9) "Approximate original contour" is defined by KRS 350.010.

(10) "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.

(11) "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.

(12) "Best technology currently available" means equipment, devices, systems, methods, or techniques that will prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area and minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife, and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, methods, or techniques that are currently available anywhere as determined by the cabinet, even if they are not in routine use. The term includes construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with 405 KAR Chapters 16 and 18. The cabinet shall have the discretion to determine the best technology currently available, as authorized by KRS Chapter 350 and 405 KAR Chapters 7 through 24.

(13) "Blaster" means a person who is directly responsible for surface blasting operations in surface coal mining and reclamation operations or coal exploration operations.

(14) "Bond pool" or "Kentucky Bond Pool" means the voluntary alternative bonding program established at KRS 350.700 through 350.755.

(15) "Cabinet" is defined by KRS 350.010.

(16) "C.F.R." means Code of Federal Regulations.

(17) "Coal" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77.

(18) "Coal exploration" means the field gathering of:

(19) "Coal mine waste" means coal processing waste and underground development waste.

(20) "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.

(21) "Coal processing waste" means materials that are separated from the product coal during the cleaning, concentrating, or other processing or preparation of coal.

(23) "Combustible material" means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

(24) "Community or institutional building" means a structure, other than a public building or occupied dwelling, that is used:

(a) For meetings, gatherings, or functions of:

A local civic organization; or
Other community group;

(b) As a facility for the following purposes:

Educational;
Cultural;
Historic;
Religious;
Scientific; or
Correctional;

(d) To supply water;

(e) To generate power;

(f) To treat sewage; or

(g) For another public service.

(25) "Compaction" means increasing the density of a material by reducing the voids between the particles by mechanical effort.

(26) "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.

(27) "Cumulative impact area" means the area, including the permit area, within which impacts resulting from the proposed operation could interact with the impacts of all anticipated mining on surface and groundwater systems. Anticipated mining includes, at a minimum, the entire projected lives through bond release of:

(a) The proposed operation;

(b) All existing operations;

(d) All operations required to meet diligent development requirements for leased federal coal for which there is actual mine development information available.

(28) "Day" means calendar day unless otherwise specified to be a working day.

(29) "dB" means decibels.

(30) "Department" means the Department for Natural Resources.

(31) "Developed water resources land" means land used for storing water for beneficial uses such as stockponds, irrigation, fire protection, flood control, and water supply.

(33) "Diversion" means a channel, embankment, or other manmade structure constructed to divert water from one (1) area to another.

(34) "Downslope" means the land surface below the projected outcrop of the lowest coalbed being mined along each highwall.

(35) "Durable rock" means rock that:

(a) Does not slake in water;

(b) Is not reasonably expected to degrade to a size or condition that will block, cause failure of, impair, or restrict the effectiveness of the internal drainage system; and

The "Method of Determination of Slake Durability Index (Kentucky Method 64-513-79)"; or
A test method that yields an equivalent measure of durability based upon correlation of results with Kentucky Method 64-513-79.

(36) "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.

(37) "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.

(38) "Excess spoil":

(a) Means spoil disposed of in a location other than the coal extraction area; and

(b) Does not mean Spoil material used to achieve the approximate original contour.

(39) "Fish and wildlife land use", as used in 405 KAR 16:210 and in similar situations when referring to a premining or postmining land use, means land dedicated wholly or partially to the production, protection, or management of fish or wildlife. Areas considered as having the fish and wildlife land use are typically characterized by a diversity of habitats in which use by wildlife is the dominant characteristic, whether actively managed or not.

(40) "Forest land" means land used or managed for the long term production of wood, wood fiber, or wood derived products.

(41) "Fugitive dust" means that particulate matter that becomes airborne due to wind erosion from exposed surfaces.

(43) "Groundwater" means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated.

(45) "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.

(46) "Higher or better uses" means postmining land uses that have a higher economic value or nonmonetary benefit to the landowner or the community than the premining land uses.

(47) "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.

(48) "Highwall remnant" means that portion of highwall that remains after backfilling and grading of a remining permit area.

(49) "Historically used for cropland" means land that:

(a) Has been used for cropland for any of five (5) years or more of the ten (10) years immediately preceding the:

Application; or
Acquisition of the land for the purpose of conducting a surface coal mining and reclamation operation;

(c) Falls outside the five (5) of ten (10) years criteria, but the cabinet determines is clearly cropland on the basis of additional cropland history of:

Surrounding land; and
The land under consideration.

(50) "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.

(51) "Hz" means hertz.

(52) "Impounding structure" means a dam, embankment, or other structure used to impound water, slurry, or other liquid or semiliquid material.

(53) "Impoundment" means a water, sediment, slurry, or other liquid or semiliquid holding structure or depression, either naturally formed or artificially built.

(54) "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.

(55) "In situ process" means:

(a) In situ gasification;

(b) In situ leaching;

(d) Solution mining;

(e) Borehole mining;

(f) Fluid recovery mining; or

(g) Another activity conducted on the surface or underground in connection with:

In-place distillation;
Retorting;
Leaching; or
Chemical or physical processing of coal.

(56) "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.

(57) "KAR" means Kentucky administrative regulations.

(58) "KPDES" means Kentucky Pollutant Discharge Elimination System.

(59) "KRS" means Kentucky Revised Statutes.

(60) "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.

(61) "Material damage", as used in 405 KAR 18:210 means:

(a) Any functional impairment of surface lands, features, structures, or facilities;

(c) Any significant change in the condition, appearance, or utility of any structure or facility from its presubsidence condition.

(62) "Modified highwall" means either:

(a) The highwall resulting from remining where the preexisting highwall face is removed; or

(b) The highwall resulting from remining where the preexisting highwall is vertically enlarged.

(63) "Monitoring" means the collection of environmental data by either continuous or periodic sampling methods.

(64) "MRP" means mining and reclamation plan.

(65) "MSHA" means Mine Safety and Health Administration.

(66) "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.

(67) "Noncommercial building":

(b) Does not mean any building used only for commercial agricultural, industrial, retail, or other commercial enterprises is excluded.

(68) "Occupied residential dwelling and structures related thereto":

(a) Means, for purposes of 405 KAR 8:040, Section 26 and 405 KAR 18:210:

Any building or other structure that, at the time the subsidence occurs, is used either temporarily, occasionally, seasonally, or permanently for human habitation; and
Any building, structure, or facility installed on, above, or below, or a combination thereof, the land surface if that building, structure or facility is adjunct to or used in connection with an occupied residential dwelling. Examples of these structures include garages; storage sheds and barns; greenhouses and related buildings; utilities and cables; fences and other enclosures; retaining walls; paved or improved patios, walks, and driveways; septic sewage treatment facilities; and lot drainage and lawn and garden irrigation systems; and

(b) Does not mean any structure used only for commercial agricultural, industrial, retail, or other commercial purposes.

(69) "Operations" is defined by KRS 350.010.

(70) "Operator" is defined by KRS 350.010.

(71) "OSM" means Office of Surface Mining Reclamation and Enforcement, United States Department of the Interior.

(72) "Other treatment facilities" means any chemical treatments, such as flocculation or neutralization, or mechanical structures, such as clarifiers or precipitators, that have a point source discharge and are utilized:

(a) To prevent additional contributions of dissolved or suspended solids to streamflow or runoff outside the permit area; or

(b) To comply with 405 KAR 18:070.

(73) "Outslope" means the face of the spoil or embankment sloping downward from the highest elevation to the toe.

(74) "Overburden" is defined by KRS 350.010.

(75) "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.

(76) "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."

(77) "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 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.

(78) "Permanent diversion" means a diversion remaining after surface coal mining and reclamation operations are completed that has been approved for retention by the cabinet and other appropriate Kentucky and federal agencies.

(79) "Permit" means written approval issued by the cabinet to conduct surface coal mining and reclamation operations.

(80) "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 shall include 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.

(81) "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 required by KRS Chapter 350 and 405 KAR Chapters 7 through 24 are satisfied.

(82) "Person" is defined by KRS 350.010.

(83) "Precipitation event" means a quantity of water resulting from drizzle, rain, snowmelt, sleet, or hail in a specified period of time.

(84) "Previously mined area" means land that was affected by coal mining operations conducted prior to August 3, 1977, that has not been reclaimed to the standards of this title.

(85) "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 above.

(86) "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.

(87) "Public building" means any structure that is owned or leased, and principally used by a governmental agency for public business or meetings.

(88) "Public road" means any publicly owned thoroughfare for the passage of vehicles.

(89) "RAM" means Reclamation Advisory Memorandum.

(90) "Reasonably available spoil" means spoil and suitable coal mine waste material generated by the remining operation and other spoil or suitable coal mine waste material located in the permit area that is accessible and available for use and that if rehandled will not cause a hazard to public safety or significant damage to the environment. For this purpose, the permit area includes all spoil of this nature located in the immediate vicinity of the mining operation.

(91) "Reclamation" is defined by KRS 350.010.

(92) "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.

(93) "Reference area" means a land unit maintained under appropriate management for the purpose of measuring vegetative ground cover, productivity, and plant species diversity that are produced naturally or by crop production methods approved by the cabinet.

(94) "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.

(95) "Remining" means conducting surface coal mining and reclamation operations that affect previously mined areas.

(96) "Residential land" means tracts employed for single and multiple-family housing, mobile home parks, and other residential lodgings.

(97) "Road":

(98) "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.

(99) "SCS" means Soil Conservation Service.

(100) "Sedimentation pond" means a primary sediment control structure:

(a) Designed, constructed, or maintained pursuant to 405 KAR 16:090 or 405 KAR 18:090;

(b) That could include a barrier, dam, or excavated depression to:

Slow water runoff; and
Allow suspended solids to settle out; and

(c) That does not include secondary sedimentation control structures, including a straw dike, riprap, check dam, mulch, dugout, or other measure that reduces overland flow velocity, reduces runoff volume, or trap sediment, to the extent that the secondary sedimentation structure drains into a sedimentation pond.

(101) "Shadow area" means the surface area overlying underground mine works and surface areas associated with auger and in situ mining.

(102) "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 could also be expressed as a percent or in degrees.

(103) "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.

(104) "SMCRA" means Surface Mining Control and Reclamation Act, 30 U.S.C. Chapter 25.

(105) "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:

(d) "C horizon." The deepest layer of soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity.

(106) "Spoil" means overburden and other materials, excluding topsoil, coal mine waste, and mined coal, that are excavated during surface coal mining and reclamation operations.

(107) "Stabilize" means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties, such as by providing a protective surface coating.

(108) "Steep slope" means any slope of more than twenty (20) degrees.

(109) "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.

(110) "Surface blasting operations":

(a) Means the on-site storage, transportation, and use of explosives in association with:

A coal exploration operation;
Surface mining activities; or
A surface disturbance of underground mining activities; and

(b) Includes the following activities:

Design of an individual blast;
Implementation of a blast design;
Initiation of a blast;
Monitoring of an airblast and ground vibration; and
Use of access control, warning and all-clear signals, and similar protective measures.

(111) "Surface coal mining and reclamation operations" is defined by KRS 350.010.

(112) "Surface coal mining operations" is defined by KRS 350.010.

(113) "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.

(114) "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).

(115) "Temporary diversion" means a diversion of a stream or overland flow which is used during coal exploration or surface coal mining and reclamation operations and not approved by the cabinet to remain after reclamation as part of the approved postmining land use.

(116) "Ton" means 2000 pounds avoirdupois (.90718 metric ton).

(117) "Topsoil" means the A and E soil horizon layers of the four (4) master soil horizons.

(118) "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.

(119) "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.

(120) "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.

(121) "TRM" means Technical Reclamation Memorandum.

(122) "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.

(123) "Underground mining activities" means a combination of:

(124) "Undeveloped land or no current use or land management" means land that is undeveloped or, if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession.

(125) "U.S. EPA" means United States Environmental Protection Agency.

(126) "Valley fill" means a fill structure consisting of any material other than coal waste and organic material that is placed in a valley where side slopes of the existing valley measured at the steepest point are greater than twenty (20) degrees or the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than ten (10) degrees.

(127) "Valuable environmental resources" means:

(a) Listed or proposed endangered or threatened species of plants or animals or their critical habitats listed by the Secretary of the Interior under the Endangered Species Act of 1973, as amended (16 U.S.C. Sec. 1531 et seq.), or those species or habitats protected by similar state statutes; and

(b) Habitats of unusually high value for fish and wildlife, as determined by the cabinet in consultation with state and federal agencies with responsibilities for fish and wildlife.

(128) "Water table" means the upper surface of a zone of saturation, where the body of groundwater is not confined by an overlying impermeable zone.

(129) "Water transmitting zone" means a body of consolidated or unconsolidated rocks that, due to their greater primary or secondary permeability relative to the surrounding rocks, can reasonably be considered to function as a single hydraulic medium for the flow of groundwater.

(130) "Wetland" means land that has a predominance of hydric soils and that is inundated or saturated by surface or groundwater 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.

(b) "Hydrophytic vegetation" means a plant growing in:

Water; or
A substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content.

History

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
STATUTORY AUTHORITY: KRS 350.028(1), (5), 350.465, 30 C.F.R. Parts 730-733, 735, 917, 30 U.S.C. 1253, 1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes definitions for terms used in 405 KAR Chapter 18. This administrative regulation differs from federal regulations by including the definition of "angle of draw". This definition is necessary to determine areas subject to subsidence requirements and to comply with the intent of federal regulations.
History: 405 KAR 018:001. 18 Ky.R. 2482; 2849; eff. 4-3-1992; 24 Ky.R. 725; 2664; eff. 6-10-1998; TAm eff. 8-9-2007; TAm eff. 7-6-2016; 44 Ky.R. 638, 1011, 1316; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:010 General provisions {#sec-405-kar-18-010 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:010}

Section 1. Applicability. The provisions of this chapter shall be applicable to all underground mining activities including coal processing plants, conducted pursuant to 405 KAR Chapters 7 through 24. The requirements of 405 KAR Chapter 18 shall also apply to those special categories of underground mining activities for which performance standards are established in 405 KAR 20:020 through 405 KAR 20:080, except to the extent that a provision of those administrative regulations specifically exempts a particular category from a particular requirement of 405 KAR Chapter 18.

Section 2. Coal Recovery. Underground mining activities shall be conducted so as to maximize the utilization and conservation of the coal, while utilizing the best appropriate technology currently available to maintain environmental integrity, so that reaffecting the land in the future through surface coal operations shall be minimized.

Section 3. Slides. At any time a slide occurs that may have a potential adverse effect on property, health, safety, or the environment, the permittee shall notify the cabinet by the fastest available means and comply with any remedial measures required by the cabinet pursuant to 405 KAR Chapters 7 through 24.

Section 4. Permanent Abandonment of Operations.

(1) Notice required. On or before the date of permanent abandonment of operations, the permittee shall provide written notice to the cabinet that permanent abandonment is intended.

Section 5. Temporary Cessation of Operations.

(1) Notice required. Prior to a temporary cessation of operations that the permittee intends to last for thirty (30) days or more, or as soon as it is known to the permittee that an existing temporary cessation will last beyond thirty (30) days, the permittee shall provide written notice to the cabinet that temporary cessation is anticipated. The notice shall state to what extent equipment will be removed from the site during the temporary cessation, and shall state the approximate date on which the permittee intends that operations will be resumed.

(2) Temporary cessation shall not relieve a permittee of the obligation to comply with 405 KAR 18:070, Section 1(1)(g), the surface and groundwater monitoring requirements of 405 KAR 18:110, and the obligation to comply with all applicable conditions of the permit during the cessation.

(3) During temporary cessations, equipment and facilities necessary to environmental monitoring or to compliance with performance standards shall be made secure to the extent practicable.

Section 6. Protection Against Sudden Release of Water Accumulated in Underground Workings to the Land Surface.

(1) Except where surface openings are approved in the permit, an unmined barrier of coal shall be left where the underground workings dip toward and approach the land surface. The cabinet shall waive this requirement if the proposed operation complies with all other applicable requirements of 405 KAR Chapters 7 through 24, KRS Chapter 350, and either:

(a) The applicant has demonstrated in the permit application to the satisfaction of the cabinet, based upon the geologic and hydrologic conditions in the permit area and shadow area, that accumulation of water in the underground workings cannot reasonably be expected to occur; or

(b) Adequate measures to prevent accumulation of water in the underground workings have been included in the permit application and have been approved by the cabinet.

(2) If an unmined barrier of coal is required pursuant to subsection (1) of this section, it shall be of sufficient width to prevent failure and sudden release of water accumulated in underground workings to the land surface.

(a) The cabinet shall determine on a case-by-case basis the width of the unmined barrier of coal that shall be required to comply with this subsection in accordance with paragraph (b) of this subsection.

(b)

The width of the unmined barrier of coal shall not be less than the width given by the following formula: W = 50 + H, where W is the minimum width in feet and H is the maximum hydrostatic head in feet that can build up on the unmined barrier of coal.
The cabinet shall approve, for the purpose of protecting against the sudden release of water accumulated in underground workings to the land surface, a width less than the minimum width determined by this formula if the applicant has demonstrated in the permit application to the satisfaction of the cabinet that the lesser width shall achieve the purpose of this subsection.

History

RELATES TO: KRS 350.020, 350.090, 350.093, 350.151, 350.410, 350.440, 350.465, 30 C.F.R. Parts 730-733, 735, 817.59, 817.99, 817.131-.132, 917, 30 U.S.C. 1253, 1255, 1266
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.151, 350.465, 30 C.F.R. Parts 730-733, 735, 817.59, 817.99, 817.131-.132, 917, 30 U.S.C. 1253, 1255, 1266
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation contains general performance standards for maximizing coal recovery, prevention, and correction of landslides, temporary cessation of operations, permanent abandonment of operations, and protection against the sudden release of water accumulated in underground workings to the land surface.
History: 405 KAR 018:010. 8 Ky.R. 1557; eff. 1-6-1983; Am. 15 Ky.R. 478; eff. 12-13-1988; 21 Ky.R. 539; 1351; 1497; eff. 12-12-1994; 44 Ky.R. 644, 1321; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:020 Contemporaneous reclamation {#sec-405-kar-18-020 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:020}

Section 1. Contemporaneous Reclamation. Reclamation operations, including, but not limited to, backfilling, grading, soil preparation and revegetation, of all areas affected by surface operations of underground mining shall occur as contemporaneously as practicable with surface operations.

History

RELATES TO: KRS 350.093, 350.100, 350.151, 350.405, 350.465
STATUTORY AUTHORITY: KRS 350.028, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth general requirements for keeping reclamation operations, including backfilling, grading, soil preparation and revegetation, as contemporaneous as practicable with surface operations of underground mining.
History: 405 KAR 018:020. 8 Ky.R. 1558; eff. 1-6-1983; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:030 Signs and markers {#sec-405-kar-18-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:030}

Section 1. Specifications. Signs and markers required under this chapter shall:

(1) Be posted, maintained, and removed by the permittee;

(2) Be of a uniform design throughout the activities that can be easily seen and read;

(3) Be made of durable material; and

(4) Conform to local laws and regulations.

Section 2. Duration of Maintenance. Signs and markers shall be maintained during all activities to which they pertain.

Section 3. Mine and Permit Identification Signs.

(1) Identification signs shall be displayed at each point of access to the permit area from public roads.

(2) Signs will show the name, business address, and telephone number of the permittee and the person, if any, who conducts the surface coal mining and reclamation operation on behalf of the permittee and the identification number of the current cabinet permit authorizing underground mining activities under KRS Chapter 350.

(3) Signs shall be retained and maintained until after the release of all bonds for the permit area.

Section 4. Perimeter Markers. The perimeter of all areas to be affected by surface operations or facilities shall be clearly marked before the beginning of mining activities.

Section 5. Buffer Zone Markers. Buffer zones required by 405 KAR 18:060, Section 9 shall be clearly marked to prevent disturbance by surface operations and facilities.

Section 6. Blasting Signs. Permittees shall:

(1) Prevent unauthorized entry to the immediate vicinity of charged holes by guarding or by conspicuous posting or flagging of the immediate vicinity.

(2) Place at all entrances to areas of surface operations and facilities in the permit area, from public roads or highways, conspicuous signs which state "Warning: Explosives in Use."

Section 7. Topsoil Markers. Where topsoil or other vegetation supporting material is segregated and stockpiled as required under 405 KAR 18:050, Section 3, the stockpiled material shall be clearly marked.

History

RELATES TO: KRS 350.151, 350.200, 350.430, 350.465
STATUTORY AUTHORITY: KRS 350.028, 350.151, 350.200, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural res, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth location and informational requirements for signs and markers at mine access points, perimeters of surface operations, stream buffer zones, surface blasting areas, and topsoil storage areas.
History: 405 KAR 018:030. 8 Ky.R. 1558; eff. 1-6-1983; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:040 Casing and sealing of underground openings {#sec-405-kar-18-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:040}

Section 1. General Requirements.

(1) Each exploration hole, other drill hole or borehole, shaft, well, or other exposed underground opening shall be cased, lined, or otherwise managed as approved by the cabinet, as necessary to prevent acid or other toxic drainage from entering ground and surface waters, to minimize disturbance to the prevailing hydrologic balance, and to ensure the safety of people, livestock, fish and wildlife, and machinery in the permit area, shadow area, and adjacent area.

(2) Each exploration hole, drill hole or borehole or well that is uncovered or exposed by mining activities within the permit area or shadow area shall be permanently closed, unless approved for water monitoring or otherwise managed in a manner approved by the cabinet in accordance with 405 KAR Chapters 7 through 24.

(3) Use of a drilled hole or monitoring well as a water well shall comply with 405 KAR 18:060, Section 6.

(4) This section shall not apply to holes drilled and used for blasting, in the area affected by surface operations.

Section 2. Temporary.

(1) Each mine entry that is temporarily inactive, but has a further projected useful service under the approved permit application, shall be protected by barricades or other covering devices, fenced, and posted with signs, to prevent access into the entry and to identify the hazardous nature of the opening. These devices shall be periodically inspected and maintained in good operating condition by the person who conducts the underground mining activities.

(2) Each exploration hole, other drill hole or borehole, shaft, well, or other exposed underground opening that has been identified in the approved permit application for use to return underground development waste, coal processing waste or water to underground workings, or to be used to monitor ground water conditions, shall be temporarily sealed until actual use.

Section 3. Permanent.

(1) If no longer needed for monitoring or other use approved by the cabinet upon a finding of no adverse effects, or unless approved for transfer as a water well pursuant to 405 KAR 18:060, Section 6, each shaft, drift, adit, tunnel, exploratory hole, entryway, or other opening to the surface from underground shall be capped, sealed, backfilled, or otherwise properly managed, as required by the cabinet in accordance with Section 1 of this administrative regulation and 405 KAR 18:060, Section 5 and consistent with 30 C.F.R. 75.1711.

(2) Permanent closure measures shall be designed to prevent access to the mine workings by people, livestock, fish and wildlife, machinery, and to keep acid or other toxic drainage from entering ground or surface waters.

History

RELATES TO: KRS 350.151, 350.420, 350.465
STATUTORY AUTHORITY: KRS 350.028, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation establishes requirements for temporary and permanent casing, sealing, or other management of drill holes, boreholes, shafts, wells, or other exposed underground openings.
History: 405 KAR 018:040. 8 Ky.R. 1559; eff. 1-6-1983; 44 Ky.R. 646, 1322; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:050 Topsoil {#sec-405-kar-18-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:050}

Section 1. General Requirements.

Section 2. Removal.

(1)

(4) The B horizon and portions of the C horizon and/or other underlying layers demonstrated to have qualities for comparable root development shall be removed, segregated, and replaced as subsoil if the cabinet determines that either of these is necessary to comply with the revegetation requirements of 405 KAR 18:200 or to ensure soil productivity consistent with the approved postmining land use.

(a) The results of chemical and physical analyses of the substitute or supplement materials and the topsoil, which must be submitted in the permit application. These investigations shall include:

Analyses performed by a qualified soil scientist, qualified agronomist, or other qualified specialist consisting of evaluations of the thicknesses of the soil horizons, the thicknesses of the substitute or supplement materials, the total depths of the soils, the areal extents of the different kinds of soils, and the areal extents of the substitute or supplement materials;
Analyses performed by a qualified laboratory consisting of evaluations of pH, net acidity or alkalinity, phosphorus, potassium, texture, and percent coarse fragments; and
Other analyses performed by qualified individuals, if required by the cabinet, including but not limited to additional chemical and physical evaluations, field-site trials, greenhouse tests, and other investigations to establish the feasibility of using the substitute or supplement materials.

(6) The cabinet may choose not to require the removal of topsoil for minor disturbances which:

(a) Occur at the site of small structures such as power poles, signs, and fence lines; or

(b) Will not destroy the existing vegetation and will not cause erosion.

Section 3. Storage.

(a) Protection measures shall be accomplished either by:

An effective cover of nonnoxious, quick-growing annual and perennial plants seeded or planted during the first normal seeding or planting period after removal and resown as necessary thereafter; or
Other methods demonstrated to and approved by the cabinet to provide equal protection.

(b) Unless approved by the cabinet, stockpiled topsoil and/or other materials shall not be moved until required for redistribution on a regraded area.

(a) Such action will not permanently diminish the capability of the topsoil and/or other materials of the host site; and

(b) The materials will be retained in a condition more suitable for redistribution than if stockpiled.

Section 4. Redistribution.

(2) Topsoil and/or other materials shall be redistributed in a manner that:

(a) Achieves an approximate uniform, stable thickness consistent with the approved postmining land uses, contours, and surface water drainage systems;

(b) Prevents excessive compaction of the topsoil and/or other materials; and

(4) The cabinet may choose not to require the redistribution of topsoil and/or other materials on approved postmining embankments of permanent impoundments and of roads if it determines that:

(a) Placement of topsoil and/or other materials on such embankments is inconsistent with the requirement to use the best technology currently available to minimize sedimentation; and

(b) Such embankments will be otherwise stabilized.

Section 5. Nutrients and Soil Amendments. Nutrients and soil amendments, in the amounts determined by soil tests, shall be applied to the redistributed materials so that they are sufficient to sustain the approved postmining land use and to sustain vegetation which is sufficient to meet the revegetation requirements of 405 KAR 18:200. All soil tests shall be performed by a qualified laboratory using standard methods approved by the cabinet.

History

RELATES TO: KRS 350.151, 350.405, 350.415, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth requirements for the removal, storage and redistribution of topsoil and requirements for substitution of other materials for topsoil.
History: 405 KAR 018:050. 8 Ky.R. 1560; eff. 1-6-1983; 11 Ky.R. 1851; eff. 8-13-1985; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:060 General hydrologic requirements {#sec-405-kar-18-060 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:060}

Section 1. General Requirements.

(1) All underground mining activities shall be planned and conducted to minimize disturbance of the hydrologic balance in the permit area, shadow area, and adjacent areas, in order to:

(a) Prevent material damage to the hydrologic balance outside the permit area; and

(b) Support the approved postmining land uses in accordance with the terms and conditions of the approved permit and the performance standards of this administrative regulation.

(3) In no case shall federal or state water quality statutes, regulations, standards, or effluent limitations be violated.

(4) Operations shall be conducted to minimize water pollution and, if necessary, treatment methods shall be used to control water pollution.

(b) Acceptable practices to control and minimize water pollution shall include:

Stabilizing disturbed areas through land shaping;
Diverting run-off;
Achieving quickly germinating and growing stands of temporary vegetation;
Regulating channel velocity of water;
Lining drainage channels with rock or vegetation;
Mulching;
Selectively placing and sealing acid-forming and toxic-forming materials;
Designing mines to prevent or control gravity drainage of acid waters;
Sealing;
Controlling subsidence;
Preventing acid mine drainage; and
Implementing sediment control measures in Section 2 of this administrative regulation.

Section 2. Sediment Control Measures.

(1) Appropriate sediment control measures shall be designed, constructed, and maintained using the best technology currently available to:

(a) Prevent, to the extent possible, additional contributions of sediment to stream flow or to run off outside the permit area;

(b) Meet the requirements of 405 KAR 18:070, Section 1(1)(g); and

(2) Sediment control measures shall include practices carried out within and adjacent to the disturbed area.

(a) The sediment storage capacity of measures in and downstream from the disturbed areas shall reflect the degree to which successful mining and reclamation techniques are applied to reduce erosion and control sediment.

(b) Sediment control measures consist of the utilization of proper mining and reclamation methods and sediment control practices, singly or in combination.

Disturbing the smallest practicable area at any one (1) time during the mining operation through progressive backfilling, grading, and prompt revegetation as required in 405 KAR 18:200, Section 1(2);
Stabilizing the backfilled material to promote a reduction in the rate and volume of run-off, in accordance with the requirements of 405 KAR 18:190;
Retaining sediment within disturbed areas;
Diverting run-off away from disturbed areas;
Diverting run-off using protected channels or pipes through disturbed areas so as not to cause additional erosion;
Using straw dikes, riprap, check dams, mulches, vegetative sediment filters, dugout ponds, and other measures that reduce overland flow velocity, reduce run-off volume, or trap sediment;
Treating with chemicals;
Treating mine drainage in underground sumps; and
Using sedimentation ponds as required in 405 KAR 18:070.

Section 3. Discharge Structures. Discharge from sedimentation ponds, permanent and temporary impoundments, coal processing waste dams and embankments, and diversions shall be controlled, by energy dissipators, riprap channels, and other devices, if necessary, to reduce erosion, to prevent deepening or enlargement of stream channels, and to minimize disturbance of the hydrologic balance. Discharge structures shall be designed according to standard engineering design procedures.

Section 4. Acid-forming and Toxic-forming Materials. Acid drainage and toxic drainage shall be avoided by:

(1) Identifying, burying, and treating, in accordance with 405 KAR 18:190, Section 3, materials that may adversely affect water quality, or be detrimental to vegetation or to public health and safety if not buried and treated;

(2) Storage, burial, or treatment practices consistent with other material handling and disposal provisions of this chapter; and

(3) Burying or otherwise treating all acid-forming or toxic-forming underground development waste and spoil within thirty (30) days after they are first exposed on the mine site, or within a lesser period required by the cabinet.

(a) Temporary storage of these materials may be approved by the cabinet upon a finding that burial or treatment within thirty (30) days is not feasible and will not result in any material risk of water pollution or other environmental damage.

(b) Storage shall be limited to the period until burial or treatment first becomes feasible.

(c) Acid-forming or toxic-forming underground waste and spoil to be stored shall be placed on impermeable material and protected from erosion and contact with surface water.

Section 5. Groundwater Protection. In order to protect the hydrologic balance, surface mining activities shall be conducted according to 405 KAR 8:040, Section 32(1) and (2) and groundwater quality shall be protected by handling earth materials and run-off in a manner that minimizes acidic, toxic, or other harmful infiltration to groundwater systems and by managing excavations and other disturbances to prevent or control the discharge of pollutants into the groundwater.

Section 6. Surface Water Protection. In order to protect the hydrologic balance, surface mining activities shall be conducted according to 405 KAR 8:040, Section 32(1) and (2) and:

(1) Surface water quality shall be protected by handling earth materials, groundwater discharges, and run-off in a manner that:

(a) Minimizes the formation of acidic or toxic drainage;

(b) Prevents, to the extent possible using the best technology currently available, additional contribution of suspended solids to stream flow outside the permit area; and

(c) Shall not cause or contribute to a violation of any federal or state effluent limitations or water quality standards.

(2) If drainage control, restabilization and revegetation of disturbed areas, diversion of run-off, mulching, or other reclamation and remedial practices are not adequate to meet the requirements of this section and 405 KAR 18:070, the operator shall use and maintain the necessary water-treatment facilities or water quality controls for as long as treatment is required pursuant to 405 KAR Chapter 18; and

(3) Surface water quantity and flow rates shall be protected by handling earth materials and run-off in accordance with the steps established in the plan approved pursuant to 405 KAR 8:040, Section 32(1) and (2).

Section 7. Transfer of Wells. Before final release of bond, exploratory or monitoring wells shall be sealed in a safe and environmentally sound manner in accordance with 405 KAR 18:040.

(1) With the prior approval of the cabinet in accordance with 405 KAR 16:040, Section 1 and 405 KAR 18:040, Section 1, wells may be transferred to another party for further use.

(2) At a minimum, the conditions of a transfer shall comply with state and local law, and the permittee shall remain responsible for the proper management of the well until bond release in accordance with 405 KAR 18:040.

Section 8. Gravity Discharges from Underground Mines. Surface entries and accesses to underground workings shall be located and managed to prevent or control gravity discharge of water from the mine.

(1) Gravity discharges of water from an underground mine, other than a drift mine subject to subsection (2) of this section, may be allowed by the cabinet if it is demonstrated that the untreated or treated discharge complies with the performance standards of 405 KAR Chapter 18 and any additional KPDES permit requirements.

(2) Notwithstanding anything to the contrary in subsection (1) of this section, the surface entries and accesses of drift mines first used after May 18, 1982 and located in acid-producing or iron-producing coal seams shall be located in a manner as to prevent any gravity discharge from the mine.

Section 9. Discharges Into an Underground Mine.

(1) Discharges into an underground mine shall be prohibited, unless specifically approved by the cabinet after a demonstration that the discharge will:

(a) Minimize disturbance to the hydrologic balance on the permit area, prevent material damage outside the permit area and otherwise eliminate public hazards resulting from surface mining activities;

(b) Not result in a violation of applicable water quality standards or effluent limitations;

(c) Be at a known rate and quality that shall comply with the effluent limitations of 405 KAR 18:070 for pH and total suspended solids, except that the pH and total suspended-solids limitations may be exceeded, if approved by the cabinet based on site conditions; and

(d) Comply with the approval of the Mine Safety and Health Administration.

(2) Discharges shall be limited to:

(a) Coal processing waste;

(b) Underground mine development waste;

(d) Sludge from an acid mine drainage treatment facility;

(e) Flue gas desulfurization sludge;

(f) Inert materials used for stabilizing underground mines; and

(g) Water.

(3) If water from one (1) underground mine is diverted into other underground workings, it shall be according to the requirements of this section and as approved in the permit.

Section 10. Postmining Rehabilitation of Sedimentation Ponds, Diversions, Impoundments, and Treatment Facilities. Before abandoning the permit area, the permittee shall renovate all permanent sedimentation ponds, diversions, impoundments, and treatment facilities as necessary to comply with criteria established in the detailed design plan for the permanent structures and impoundments.

Section 11. Stream Buffer Zones.

(1) Land within 100 feet of an intermittent or perennial stream shall not be disturbed by underground mining activities unless the cabinet specifically authorizes underground mining activities closer to, or through the stream. The cabinet may authorize this activity only upon finding, as a result of evaluating a permit application, that:

(a) Underground mining activities will not cause or contribute to the violation of applicable state or federal water quality standards;

(b) Underground mining activities will not cause significant detrimental effects on the water quantity or quality of the intermittent or perennial stream. This paragraph shall not apply to any reach of that stream that is upstream of an impounding structure located within the permit area and within the stream channel;

(c) Underground mining activities will not cause significant detrimental effects on other valuable environmental resources, as determined by the cabinet in accordance with 401 KAR Chapters 5 and 10, of the stream; and

(d) If there will be a temporary or permanent stream-channel diversion, it shall comply with 405 KAR 18:080.

(2) The area that is not to be disturbed shall be designated a buffer zone, shall be adequately shown in the permit application, and shall be marked by the permittee as established in 405 KAR 18:030.

(3) Descriptions, drawings, data, and all other information required by the cabinet to make the findings of subsection (1) of this section shall be submitted in a permit application.

(4) The provisions of the amendments to this section shall apply to all underground mining activities.

Section 12. Replacement of Water Supply.

(1)

(a) If the cabinet receives a citizen's complaint pursuant to 405 KAR 12:030 that the person's water supply has been adversely impacted by the activities of a permittee named in the complaint, the cabinet shall promptly notify the permittee of the complaint.

(b) The permittee or operator shall promptly replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source, if the water supply has been adversely impacted by contamination, diminution, or interruption proximately resulting from the underground mining activities conducted after July 16, 1994. Baseline geologic and hydrologic information required in 405 KAR 8:040, Sections 12 through 16, and other relevant information available to the cabinet, shall be used to determine the impact of mining activities upon the water supply.

(2) If replacement of a water supply is required pursuant to subsection (1) of this section the permittee shall:

(a) If the water supply to be replaced is a domestic supply, provide water supply on both a temporary and permanent basis in accordance with this paragraph;

Within forty-eight (48) hours after receiving notice from the cabinet that the water supply was adversely impacted by mining, provide drinking water on an emergency basis;
Within two (2) weeks after receiving notice from the cabinet that the water supply was adversely impacted by mining, provide a temporary water supply connected to the existing plumbing, if any, that provides water for all ordinary household purposes including drinking, cooking, bathing, sanitation, laundry, and drinking water for poultry, livestock, and domestic animals, and water for noncommercial domestic agricultural and horticultural activities;
Within two (2) years after receiving notice from the cabinet that the water supply was adversely impacted by mining, provide a permanent water supply that complies with 401 KAR Chapter 8;

(b) If the water supply to be replaced is other than a domestic supply, provide water supply on both a temporary and permanent basis on a schedule established by the cabinet;

(d) Provide an equivalent water delivery system; and

A one (1) time payment in an amount that covers the present worth of the increased annual operation and maintenance costs for a period of twenty (20) years, or other period agreed to by the permittee and the owner of interest;
A uniform series of payments whose present worth equals or exceeds the present worth of the increased annual operation and maintenance costs for a period of twenty (20) years, or other period agreed to by the permittee and the owner of interest; or
Other reasonable compensation arrangements that fairly compensate the owner for the future operation and maintenance costs for a period of twenty (20) years, or other period agreed to by the permittee and the owner of interest.

(4)

(a) If contamination, diminution, or interruption to a water supply protected pursuant to subsection (1) of this section occurs, the cabinet shall require the permittee to obtain additional performance bond in the amount of the estimated cost to replace the protected water supply, until the replacement is completed. If replacement is completed within ninety (90) days of the occurrence, additional bond shall not be required. The cabinet may extend the ninety (90) day time frame, but shall not exceed one (1) year, if the permittee demonstrates and the cabinet finds in writing that not all reasonably anticipated changes affecting the protected water supply have occurred, and that therefore it would be unreasonable to complete the replacement within ninety (90) days.

(b) If the permittee demonstrates that the permittee's liability insurance policy pursuant to 405 KAR 10:030, Section 4 covers the replacement, the additional bond amount required pursuant to paragraph (a) of this subsection may be reduced by the amount of the insurance coverage applicable to the replacement. The existence of applicable insurance coverage shall not prevent forfeiture of a performance bond under 405 KAR 10:050.

(c) The cabinet may promptly release or return the additional bond amount established pursuant to paragraph (a) of this subsection if the cabinet determines, based upon an application and information submitted by the permittee, the cabinet's own investigation as appropriate, and other information available to the cabinet, that the permittee has satisfactorily completed the required replacement.

History

RELATES TO: KRS 350.100, 350.151, 350.420, 350.421, 350.440, 350.465, 30 C.F.R. Parts 701.5, 730-733, 735, 817.41, 817.45, 817.47, 817.56, 817.57, 917, 30 U.S.C. 1253, 1255, 1266, 1309a
STATUTORY AUTHORITY: KRS 350.028, 350.100, 350.151, 350.420, 350.465, 30 C.F.R. Parts 730-733, 735, 817.41, 817.45, 817.47, 817.56, 917, 30 U.S.C. 1253, 1255, 1266, 1309a
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1) and (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes the requirements for the protection of the hydrologic balance, protection of surface and groundwater quantity and quality, control of erosion and sediment, control of acid-forming and toxic-forming materials, protection of streams, and the replacement of water supplies for underground mines. This administrative regulation differs from federal regulations as follows: KRS 350.421(2) requires replacement of water supplies for domestic, agricultural, industrial, or other legitimate use. The federal regulation, 30 C.F.R. 817.41(j), requires replacement of water for drinking, domestic, or residential uses. Section 12(1) follows the state requirement. Section 12(2)(a) of this administrative regulation, regarding replacement of domestic water supplies, includes requirements for emergency, temporary, and permanent replacement that are not included in the federal counterpart at 30 C.F.R. 817.41(j) but are included in the definition of "replacement of water supply" at 30 C.F.R. 701.5, including specific time frames for replacement that are not included in the federal regulations but are suggested in the preamble (60 FR 16727, March 31, 1995) to the federal regulations and are needed for fair and consistent enforcement of the requirement to promptly replace domestic water supplies. Section 12(2)(e) of this administrative regulation, regarding payment of excess delivery costs, includes a base time period of twenty (20) years that is not included in the federal regulations, and also includes more flexible payment options than the federal regulations. This time period is discussed as an example in the preamble at 60 FR 16726, March 31, 1995 and is needed for fair and consistent enforcement of the requirement to pay excess delivery costs. Section 12(4)(b) of this administrative regulation, regarding coverage of water replacement by liability insurance rather than additional performance bond, is not included in the federal counterpart at 30 C.F.R. 817.41(j) or the federal subsidence regulation at 30 C.F.R. 817.121(c)(5), but the federal bonding regulation at 30 C.F.R. 800.14(c) provides that the permittee's financial responsibility for repairing material damage resulting from subsidence under 30 C.F.R. 817.121(c) may be satisfied by the liability insurance policy required under 30 C.F.R. 800.60. Section 12(4)(c) of this administrative regulation, regarding prompt release or return of additional bond posted for water replacement, is not included in the federal regulations. This administrative regulation is consistent with the purpose of the federal regulations because the bond cannot be released or returned until after the permittee has completed the water supply replacement that the bond is intended to guarantee.
History: 405 KAR 018:060. 8 Ky.R. 1561; 9 Ky.R. 709; eff. 1-6-1983; 12 Ky.R. 944; 1326; eff. 2-4-1986; 13 Ky.R. 1887; eff. 7-2-1987; 24 Ky.R. 732; 1347; 25 Ky.R. 66; eff. 7-7-1998; 44 Ky.R. 648, 1323; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:070 Water quality standards and effluent limitations {#sec-405-kar-18-070 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:070}

Section 1. Water Quality Standards and Effluent Limitations.

(1)

(a) Any discharges to surface waters of water from disturbed areas, underground workings, coal processing plants, and other surface facilities, shall be treated by passing through sedimentation ponds or other approved treatment facilities before leaving the permit area. The cabinet may grant exemptions from the requirement for sedimentation ponds or treatment facilities where the drainage is demonstrated by the permittee to meet the requirements of paragraph (g) of this subsection, and:

The drainage is from underground workings; or
The drainage is from surface areas which are adequately stabilized by vegetation or other protection against erosion so as to prevent the formation of rills and gullies; or
The disturbed surface drainage area is small; or
The drainage is a mixture of surface drainage meeting subparagraphs 2 or 3 of this paragraph and drainage from underground workings, and each type of drainage is demonstrated by the applicant to meet the requirements of paragraph (g) of this subsection prior to being mixed.

(b) Sedimentation ponds and other treatment facilities for surface drainage from disturbed areas shall be properly maintained and shall not be removed until all disturbed areas in the drainage area above the facility have been backfilled, graded and revegetated in accordance with this chapter and:

The vegetation has successfully survived two (2) years after the last augmented seeding;
The vegetation meets the ground cover standards of 405 KAR 16:200; and
The permittee has demonstrated to the satisfaction of the cabinet that retention of the pond or other treatment facility is not necessary in order to meet the requirements of paragraph (g) of this subsection.

(c) Sedimentation ponds and treatment facilities for discharges from underground workings shall be maintained until either the discharge continuously meets the requirements of paragraph (g) of this subsection without treatment or until the discharge has permanently ceased.

(d) For the purposes of this administrative regulation only, disturbed area shall not include those areas affected by surface operations in which only diversion ditches, sedimentation ponds, or roads are installed in accordance with this chapter and the upstream area is not otherwise disturbed by the permittee.

(e) Sedimentation ponds required by this administrative regulation shall be constructed in accordance with 405 KAR 18:090 and 401 KAR 18:100, in appropriate locations before beginning any underground mining activities in the affected drainage area.

(g) Discharges of water from areas disturbed by underground mining activities shall at all times be in compliance with all applicable federal and state water quality standards and either:

If the operation does not have a KPDES permit, the effluent limitations guidelines of coal mining promulgated by the U.S. EPA in 40 CFR 434; or
The effluent limitations established by the KPDES permit for the operation.

(2) Adequate facilities shall be installed, operated, and maintained to treat any water discharged from disturbed areas or discharged from underground mine workings, when necessary to ensure that the discharge complies with all federal and state laws and regulations and the requirements of this administrative regulation. Except where a lower pH is authorized by the KPDES permit for the operation, if the pH of water to be discharged from the disturbed area or mine is less than six (6.0), a neutralization process approved by the cabinet shall be installed, operated, and maintained.

History

RELATES TO: KRS 350.020, 350.090, 350.100, 350.151, 350.405, 350.420, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100, 350.151, 350.420, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation identifies water quality standards and effluent limitations which must be met, identifies the waters to which they apply and the periods of time in which they apply, requires water treatment for sediment control, and provides certain exemptions.
History: 405 KAR 018:070. 8 Ky.R. 1563; eff. 1-6-1983; 15 Ky.R. 480; eff. 12-13-1988; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:080 Diversions {#sec-405-kar-18-080 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:080}

Section 1. General Requirements.

(1) Surface flow from mined areas abandoned before May 3, 1978 and any flow from undisturbed or reclaimed areas, after meeting the criteria of 405 KAR 18:070 and 405 KAR 18:090 for siltation structure removal, may be diverted around the disturbed area and water treatment facilities by means of temporary or permanent diversions.

(2) Diversions shall not be constructed or operated to divert water into underground mines without the approval of the cabinet under 405 KAR 18:060, Section 9.

(b) Excess excavated material not necessary for diversion channel geometry or regrading of the channel shall be disposed of in accordance with 405 KAR 18:130 and 405 KAR 18:190.

(d) Channel protection shall be used to prevent erosion of the ditch. The following criteria shall be used unless the cabinet specifies otherwise:

Except when located in solid rock or when riprap or other nonerodible, nondegradable materials are used, diversion ditches are to be fertilized, seeded, and mulched to comply with the requirements of 405 KAR 18:200 after the ditch is constructed.
Riprap or other nonerodible, nondegradable materials shall be used when a diversion ditch is not located in solid rock or the design velocity is five (5) feet per second or greater for the peak discharge used in the design of the ditch. Material used shall be free of acid-forming material and toxic-forming material and riprap shall comply with the durability requirements of 405 KAR 18:130, Section 1(6)(c)2, except that sand and gravel shall not be used.

(e) Side slopes shall be no steeper than 1h:4v for solid rock, 1h:1v for riprap lined, and 2h:1v for grass protected ditches.

The channel of any diversion ditch which diverts run-off around a sediment control structure, water treatment facility, or impoundment, excluding dugout structures, shall be adequate to pass the peak discharge from the design storm for the hydraulic capacity of the sediment control structure, water treatment facility, or impoundment (i.e. if the impoundment is designed to pass the 100 year, twenty-four (24) hour storm event so shall the ditch). This size requirement shall not apply if the hydraulic capacity of the sediment control structure, water treatment facility, or impoundment takes into account the entire area contributing drainage, as though the bypass diversion ditch did not exist.
The channel of any diversion ditch which diverts run-off to a sediment control structure or water treatment facility shall be adequate, at a minimum, to pass the peak discharge of a ten (10) year, twenty-four (24) hour storm event.
The channel, bank, and flood plain configuration of any diversion ditch, which diverts a perennial or intermittent stream, shall be adequate to pass the peak discharge of a ten (10) year, twenty-four (24) hour storm event for temporary ditches and the 100 year, twenty-four (24) hour event for permanent ditches. However, the capacity of the channel itself shall be equal to or greater than the capacity of the unmodified stream channel immediately upstream and downstream of the diversion.
The channel of any other diversion ditch which diverts ephemeral streams or overland flow shall be adequate to pass the peak discharge of the two (2) year, twenty-four (24) hour storm for temporary ditches and the ten (10) year, twenty-four (24) hour storm for permanent ditches.

(4) No diversion shall be located so as to increase the potential for land slides. No diversion shall be constructed on existing land slides, unless approved by the cabinet.

(6) Diversion ditches shall be maintained to pass their respective design storms.

(7)

(a) When no longer needed to achieve the purpose for which they were authorized, all temporary diversions shall be removed and the affected land regraded and revegetated, in accordance with 405 KAR 18:050, Sections 4 and 5; 405 KAR 18:190; and 405 KAR 18:200. At the time diversions are removed, downstream water treatment facilities previously protected by the diversion shall be modified or removed to prevent overtopping or failure of the facilities. This requirement shall not relieve the permittee from maintenance of a water treatment facility otherwise required under 405 KAR or the permit.

(b) Each ephemeral stream channel affected by surface coal mining and reclamation operations shall be reclaimed or permanently diverted in a channel designed and constructed so as to restore or approximate the premining characteristics of the original stream channel (including natural riparian vegetation) to promote the recovery and enhancement of the aquatic habitats, except for situations in which a reach of a stream channel cannot be restored to such characteristics because of the existence of an excess spoil fill, permanent stream-crossing, permanent impoundment, or coal mine waste disposal area constructed in accordance with 405 KAR 18:100, 405 KAR 18:130, 405 KAR 18:140, 405 KAR 18:160, and 405 KAR 18:230 as applicable.

Section 2. Diversions of Perennial and Intermittent Streams.

(1) Flow from perennial and intermittent streams within the permit area may be diverted, if the diversions:

(a) Are approved by the cabinet after making the findings called for in 405 KAR 18:060, Section 11;

(b) Comply with other requirements of 405 KAR Chapters 7 through 24; and

(2) When permanent diversions are constructed or stream channels restored, after temporary divisions, the permittee shall:

(a) Restore, enhance where practicable, or maintain natural riparian vegetation on the banks of the stream;

(b) Establish or restore the stream to an environmentally acceptable alignment, as determined by the cabinet;

(d) Comply with 405 KAR 18:180.

(3) Where the cabinet approves the placement of a coal refuse pile, coal waste impoundment, or an excess spoil fill in an intermittent or perennial stream under 405 KAR 18:060, Section 11, and it is not practicable to comply with subsection (2) of this section, then the diversion of the stream channel shall comply with the requirements for diversions set forth in the performance standards for those structures.

Section 3. Applicability of Amendments to this Administrative Regulation.

(2) The provisions of Section 1(3)(f)1 shall apply on and after May 5, 1986 to each surface coal mining and reclamation operation which includes an impoundment classified, pursuant to 405 KAR 7:040, Section 5, as a (B) or (C) structure. Permits issued before that date shall be revised as necessary.

History

RELATES TO: KRS 350.085, 350.100, 350.151, 350.405, 350.420, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100, 350.151, 350.420, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth requirements for design and construction of temporary and permanent diversions of overland flow, shallow groundwater flow, ephemeral streams, and intermittent and perennial streams.
History: 405 KAR 018:080. 8 Ky.R. 1564; eff. 1-6-1983; 12 Ky.R. 948; 1329; eff. 2-4-1986; 15 Ky.R. 482; 1083; eff. 12-13-1988; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:090 Sedimentation ponds {#sec-405-kar-18-090 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:090}

Section 1. General Requirements. Sedimentation ponds shall be used individually or in series and shall:

(1) Comply with Sections 1 through 6 of this administrative regulation and 405 KAR 18:100;

(2)

(a) In accordance with 405 KAR 18:100, Section 1(2), be designed and certified by a qualified registered professional engineer as meeting the requirements of Sections 1 through 6 of this administrative regulation and 405 KAR 18:100;

(b) In accordance with 405 KAR 18:100, Section 1(9), be inspected during construction by or under the direct supervision of the responsible registered professional engineer, and after construction be certified by the responsible registered professional engineer as having been constructed in accordance with the approved design plans;

(3) Be constructed and certified under subsection (2) of this section before any disturbance in the watershed that drains into the sedimentation pond and prior to any discharge of water to surface waters from underground mine workings; and

(4) Be located as near as possible to the disturbed area and out of perennial streams, unless approved by the cabinet, pursuant to the cabinet's authority in KRS 350.050.

Section 3. Detention Time. Sedimentation ponds shall be designed, constructed, and maintained to:

(1) Provide detention time such that discharges from the sedimentation pond shall meet the requirements of 405 KAR 18:070, Section 1(1)(g); and

(2)

Section 5. Other Requirements.

(1) Each permittee shall design, construct, and maintain sedimentation ponds to prevent short-circuiting to the extent possible.

(3) The design shall take into account the volume of water and sediment contributed by the underground mine discharge.

(4) Sediment shall be removed from sedimentation ponds in accordance with the approved clean-out plan.

(5) Spillways shall be provided in accordance with 405 KAR 18:100. Emergency spillway grades and allowable velocities shall be approved by the cabinet.

(6) Sedimentation ponds shall be properly maintained and shall not be removed until the requirements of 405 KAR 18:070, Section 1(1)(b) have been met.

(7) Sedimentation ponds shall be removed prior to final release of bond liability for the permit area unless retention of the pond is approved by the cabinet under subsection (8) of this section. After a sedimentation pond is removed, the affected land shall be regraded and revegetated in accordance with 405 KAR 18:190 and 405 KAR 18:200.

(8) If the cabinet approves retention of a sedimentation pond as a permanent impoundment, the sedimentation pond shall meet all the requirements for permanent impoundments under 405 KAR 18:060, Section 10, and 405 KAR 18:100.

Section 6. Other Treatment Facilities.

(1)

(a) This section applies to "other treatment facilities" as defined in 405 KAR 18:001.

(b) Other treatment facilities may be used in conjunction with sedimentation ponds.

(a) Be located as near as possible to the disturbed area and out of perennial streams unless approved by the cabinet, pursuant to the cabinet's authority in KRS 350.050;

(c) Provide adequate detention time so that the discharges shall meet the requirements of 405 KAR 18:070, Section 1(1)(g);

(d) Minimize short circuiting to the extent possible; and

History

RELATES TO: KRS 151.100, 151.250(3), 350.020, 350.100, 350.151, 350.420, 350.465, 30 C.F.R. Parts 730-733, 735, 817.46, 917, 30 U.S.C. 1253, 1255, 1266
STATUTORY AUTHORITY: KRS 350.028, 350.151(1), 350.465(2), 30 C.F.R. Parts 730-733, 735, 817.46, 917, 30 U.S.C. 1253, 1255, 1266
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes the requirements for the location, design, construction, certification, maintenance, removal, and retention of sedimentation ponds for underground mines.
History: 405 KAR 018:090. 8 Ky.R. 1565; 9 Ky.R. 711; eff. 1-6-1983; 10 Ky.R. 821; eff. 4-23-1984; 24 Ky.R. 738; 2670; eff. 6-10-1998; 29 Ky.R. 548; 943; eff. 10-9-2002; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:100 Permanent and temporary impoundments {#sec-405-kar-18-100 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:100}

Section 1. General Requirements. The requirements of this section apply to both temporary and permanent impoundments.

(1)

(b) All impoundments classified as Class B-moderate hazard or Class C-high hazard, and all permanent "dams," as defined in KRS 151.100(12), shall comply with 405 KAR 7:040, Section 4 and with 401 KAR 4:030.

(2) Design certification. The design of impoundments shall be certified by a qualified licensed professional engineer as designed to meet the requirements of this administrative regulation using current, prudent engineering practices, and any design criteria established by the cabinet in 405 KAR Chapters 7 through 24. The qualified licensed professional engineer shall be experienced in the design and construction of impoundments.

(3) Stability.

(a)

Permanent and temporary impoundments meeting the criteria of MSHA, 30 C.F.R. 77.216(a), all Class B and C impoundments, and all permanent impoundments, shall have a minimum static safety factor of 1.5 for the normal pool with steady seepage saturation conditions, and a seismic safety factor of at least 1.2.
Impoundments not included in subparagraph 1 of this paragraph, except coal mine waste impoundments, shall have a minimum static safety factor of 1.3 for the normal pool with steady state seepage saturation conditions.

(b) The constructed height of the dam shall be increased a minimum of five (5) percent over the design height to allow for settlement. Upon request, the minimum height increase may be reduced if the material used and the design shall ensure against all settlement.

(c) The minimum top width of the embankment shall not be less than the quotient of (H+35)/5, where H is the height, in feet, of the embankment as measured from the upstream toe of the embankment.

(g) The entire embankment including the surrounding areas disturbed by construction shall be stabilized with respect to erosion by a vegetative cover or other means immediately after the embankment is completed. The active upstream face of the embankment where water will be impounded may be riprapped or otherwise stabilized. Areas in which the vegetation is not successful or where rills and gullies develop shall be repaired and revegetated in accordance with 405 KAR 18:190, Section 4.

(h) Slope protection shall be provided to protect against surface erosion at the site and protect against sudden drawdown.

(4) Freeboard. Impoundments shall have adequate freeboard to resist overtopping by waves and by sudden increases in storage volume. The minimum elevation at the top of the settled embankment shall be one (1.0) foot above the water surface in the pond with the emergency spillway flowing at design depth. For embankments subject to settlement, this one (1.0) foot minimum elevation requirement shall apply at all times, including the period after settlement. Freeboard requirements shall not apply to incised impoundments that have no embankment or levee.

(5) Foundation.

(a)

Foundation and abutments for the impounding structure shall be designed to be stable under all conditions of construction and operation of the impoundment and shall be designed based on adequate and accurate information on the foundation conditions.
For permanent and temporary impoundments meeting the criteria of MSHA, 30 C.F.R. 77.216(a), for all Class B and C impoundments, and for all permanent impoundments, foundation investigations as well as any necessary laboratory testing of materials shall be performed in order to determine the design requirements for foundation and embankment stability.
If an approved temporary impoundment has been constructed and the permittee subsequently seeks a permit revision to upgrade the structure to a permanent impoundment, the cabinet may waive the foundation investigations and laboratory testing required by subparagraph 2 of this paragraph under the following circumstances:

a. The structure has been recently verified as being a Class A-low hazard structure;

b. The structure does not meet the definition of the term "dam," as defined at KRS 151.100; and

c. The cabinet approves conservative, assumed values for the strength parameters used in the stability analyses to ensure compliance with subsection (3)(a) of this section.

(b) All vegetative and organic materials shall be removed and foundations excavated and prepared to resist failure. Cutoff trenches shall be installed if necessary to ensure stability.

(6) Impoundments shall include a combination of principal and emergency spillways that shall be designed and constructed to safely pass the design precipitation event specified in this subsection, unless the cabinet requires a design based on a larger precipitation event due to site specific conditions. Twenty-four (24) hours may be used in lieu of six (6) hours for the duration of a design precipitation event specified in this subsection.

(a) Except as provided in paragraph (c) of this subsection, Class A structures that do not meet the criteria of MSHA, 30 C.F.R. 77.216(a), shall pass the:

Twenty-five (25) year, six (6) hour precipitation event if it is a temporary structure; or
The fifty (50) year, six (6) hour precipitation event if it is a permanent structure.

(b) Class A structures that do meet the criteria of MSHA, 30 C.F.R. 77.216(a), shall pass the 100 year, six (6) hour precipitation event.

(c) Class B and C structures and all permanent dams as defined in KRS 151.100(12) shall comply with the criteria established in 401 KAR 4:030.

(7) Class A impoundments not meeting the criteria of MSHA, 30 C.F.R. 77.216(a), may use a single spillway (if allowed pursuant to subsection (1)(b) of this section) if the spillway:

(a) Is an open channel of nonerodible construction and capable of maintaining sustained flows; and

(b) Is not earth or grass lined.

(9) Engineer inspections. A qualified licensed professional engineer or other qualified professional specialist, under the direction of the professional engineer, shall inspect the impoundment. The professional engineer or specialist shall be experienced in the design and construction of impoundments.

(a) Inspections shall be made regularly during construction, upon completion of construction, and at least yearly until removal of the structure or release of the performance bond.

(b) The qualified licensed professional engineer shall promptly, after each inspection, provide to the cabinet a certified report that the impoundment has been constructed and maintained as designed and in accordance with the plan approved in the permit and 405 KAR Chapters 7 through 24. The report shall include discussion of any appearances of instability, structural weakness or other hazardous conditions, depth and elevation of any impounded waters, existing storage capacity, any existing or required monitoring procedures and instrumentation, and any other aspects of the structure affecting stability. The report shall also confirm the hazard classification of the impoundment, or if the hazard classification has changed, the report shall contain a detailed explanation of the change and the conditions causing the change. A copy of the report shall be retained at or near the mine site.

(10) Operator examinations.

(a) Impoundments subject to 30 C.F.R. 77.216, and Class B and C impoundments, shall be examined in accordance with 30 C.F.R. 77.216-3.

(b) Impoundments not included in paragraph (a) of this subsection shall be examined at least quarterly by a qualified person designated by the operator for appearance of structural weakness and other hazardous conditions. Quarterly examinations shall be conducted each calendar quarter (i.e., January-March, April-June, July-September, and October-December) and no two (2) examinations shall be within thirty (30) days of each other unless additional examinations within a quarter are required based on evidence of structural weakness or hazardous conditions. Reports of the examinations shall be retained at or near the mine site. An impoundment with no embankment structure, that is completely incised or is created by a depression left by backfilling and grading, shall be exempt from this paragraph.

(11) Emergency procedures. If any examination or inspection discloses that a potential hazard exists, the person who examined the impoundment shall immediately notify the department and the Kentucky Division of Water, or if these agencies cannot be reached, Kentucky Emergency Management. The permittee shall immediately implement emergency procedures formulated for public protection and remedial action. If adequate emergency procedures cannot be formulated or implemented by the permittee, the cabinet shall be notified, and the cabinet shall notify the appropriate agencies that other emergency procedures are required to protect the public.

(12) Maintenance. An owner or operator of an impoundment shall:

(a) Cut vegetative growth where necessary to facilitate inspection and repairs;

(b) Clean any ditches and spillways; and

(c) Remove any combustible material present on the surface, other than that used for stability such as mulch or dry vegetation.

Section 2. Permanent Impoundments. A permanent impoundment of water may be created, if authorized by the cabinet in the approved permit based upon the following demonstration:

(1) The size and configuration of the impoundment will be adequate for its intended purposes.

(2) The quality of impounded water will be suitable on a permanent basis for its intended use and, after reclamation, will meet applicable state and federal water quality standards, and discharges from the impoundment will meet applicable effluent limitations and will not degrade the quality of receiving water below applicable state and federal water quality standards.

(3) The water level will be sufficiently stable and be capable of supporting the intended use.

(4) Final grading will provide for adequate safety and access for proposed water users. Perimeter slopes shall be stable and shall be protected against erosion.

(5) The impoundment will not result in the diminution of the quality and quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses.

(6) The impoundment will be suitable for the approved postmining land use.

History

RELATES TO: KRS 151.100, 151.250(3), 350.100, 350.151, 350.420, 350.455, 350.465, 30 C.F.R. 77.216, 77.216-3, Parts 730-733, Part 735, 817.49, Part 917, 30 U.S.C. 1253, 1255, 1266
STATUTORY AUTHORITY: KRS 350.028(1), (5), 350.151(1), 350.465(2), 30 C.F.R. Parts 730-733, Part 735, 817.49, Part 917, 30 U.S.C. 1253, 1255, 1266
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5), 350.151(1), and 350.465(2) authorize the Energy and Environment Cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes the requirements for the design, construction, certification, inspection, and maintenance of temporary and permanent impoundments for underground mines. This administrative regulation differs from federal regulations as follows: (1) Section 1 of this administrative regulation provides criteria related to the stability, settlement, embankment height and width, and freeboard of impoundments, which are not found in the federal regulations. These criteria have been retained because they have long been effective guidelines for embankment safety and stability. (2) Section 1(9)(c) of this administrative regulation provides an exemption from engineering inspection for certain types of impoundments without embankments. These inspections are unnecessary because the embankments do not present a safety hazard or environmental concern that would warrant routine, detailed inspection. (3) Section 1(10)(b) of this administrative regulation provides an exemption from quarterly inspections for certain small nonhazardous impoundments without embankment structures. These inspections are unnecessary because the structures cannot develop the hazardous conditions which the inspections were intended to detect.
History: 8 Ky.R. 1566; eff. 1-6-1983; 15 Ky.R. 485; 1085; eff. 12-13-1988; 24 Ky.R. 741; 2672; eff. 6-10-1998; Crt eff. 7-3-2018; 46 Ky.R. 1353, 2274; eff. 5-5-2020.

405 KAR 18:110 Surface and groundwater monitoring {#sec-405-kar-18-110 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:110}

Section 1. General Requirements.

(1) Surface and groundwater monitoring shall be conducted in a manner acceptable to the cabinet in accordance with 405 KAR Chapters 7 through 24 and utilize, at a minimum, a sufficient number of appropriately located groundwater monitoring wells (or springs), surface water monitoring stations, and quantity and quality parameters to demonstrate if:

(a) The mining and reclamation operations are conducted to minimize disturbances to the hydrologic balance within the permit area, shadow area, and adjacent area pursuant to 405 KAR 18:060;

(b) The mining operation is meeting applicable effluent limitations and stream standards as required by 405 KAR 18:060, Section 1(3);

(d) The mining operation complies with water quality criteria for bond release pursuant to 405 KAR 10:040.

(4) Except as established pursuant to subsection (7) of this section:

(a) Surface and groundwater monitoring data collection shall begin during the calendar quarter of initial disturbance and continue during mining and reclamation until final bond release; and

(6) The cabinet may require the installation of additional groundwater monitoring wells and surface water monitoring stations, the collection of additional quantity and quality parameters, and more frequent data collection and submittal if additional information is needed to meet the requirements of subsection (1) of this section.

(7)

(a) Pursuant to an application for a revision of a permit, the cabinet may approve reduction of the sampling frequency for surface or groundwater, except as required by the KPDES permit, if the permittee demonstrates, using the monitoring data obtained pursuant to this administrative regulation, that the operation has minimized disturbance to the hydrologic balance in the permit area, shadow area, and adjacent areas and prevented material damage to the hydrologic balance outside the permit area, and water quantity and quality shall be suitable to support the postmining land uses.

(b)

The cabinet shall not approve reduction of sampling frequency to less than quarterly until at least thirty (30) months after Phase I bond release on the permit.
The cabinet shall not approve a sampling frequency of less than once per year.

Section 2. Groundwater Monitoring.

(1) Groundwater monitoring shall be conducted according to the requirements of Section 1 of this administrative regulation and the monitoring plan required by 405 KAR 8:040, Section 32(4).

(2) At a minimum, groundwater monitoring shall include the parameters of:

(a) Water levels; and

(b) Total dissolved solids, or specific conductance corrected to twenty-five (25) degrees Centigrade; pH; dissolved iron; dissolved manganese; acidity; alkalinity; and sulfate.

(3) If the applicant can demonstrate, by use of the baseline geologic or hydrologic information, the mining and reclamation plan, and the determination of probable hydrologic consequences, that a particular water transmitting zone in the proposed permit and adjacent area is not one that serves as an aquifer that significantly ensures the hydrologic balance anywhere within the cumulative impact area, then monitoring of that water transmitting zone may be waived by the cabinet.

Section 3. Surface Water Monitoring.

(1) Surface water monitoring shall be conducted according to the requirements of Section 1 of this administrative regulation and the monitoring plan required by 405 KAR 8:040, Section 32(4).

(2) At a minimum, surface water monitoring shall include the parameters of:

(a) Discharge; and

(b) Total dissolved solids, or specific conductance corrected to twenty-five (25) degrees Centigrade; total suspended solids; pH; total iron; total manganese; acidity; alkalinity; and sulfate.

(3) Surface water monitoring for KPDES.

(a) Monitoring of point source discharges pursuant to a KPDES permit shall be conducted in accordance with 40 C.F.R. Parts 122, 123, and 434 and in accordance with the requirements of the KPDES permit. The permittee shall submit a copy of the KPDES monitoring results to the cabinet on the time schedule and in the format required by the KPDES permit. The permittee shall report all noncompliances with the KPDES permit to the cabinet in the manner required by the KPDES permit.

History

RELATES TO: KRS 350.100, 350.151, 350.405, 350.420, 350.465
STATUTORY AUTHORITY: KRS 350.028, 350.151, 350.420, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation establishes requirements for the monitoring and reporting of surface water quality and quantity, groundwater levels and quality and aquifer conditions, and the required duration of monitoring.
History: 405 KAR 018:110. 8 Ky.R. 1567; 9 Ky.R. 713; eff. 1-6-1983; 11 Ky.R. 1854; 12 Ky.R. 197; eff. 8-13-1985; 15 Ky.R. 489; 1088; eff. 12-13-1988; 44 Ky.R. 652, 1352; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:120 Use of explosives {#sec-405-kar-18-120 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:120}

Section 1. General Requirements.

(1) This administrative regulation applies only to surface blasting activities incident to underground mining, including but not limited to, initial rounds of slopes and shafts.

(2) Each permittee and each person who conducts blasting operations shall comply with all applicable local, state, and federal laws and regulations in the use of explosives.

(3) Each permittee shall have all surface blasting operations conducted under the direction of a blaster certified in accordance with 405 KAR 7:070. A certified blaster and at least one (1) other person shall be present at the firing of a blast. Persons responsible for blasting operations at a blasting site shall be familiar with the blasting plan and site-specific performance standards.

(4)

(a) An anticipated blast design shall be submitted if blasting operations will be conducted within:

1,000 feet of any building used as a dwelling; public building; school; church; or commercial, community, or institutional building outside the areas affected by surface operations and facilities; or
500 feet of an active or abandoned underground mine.

(d) The blast design shall be prepared and signed by a certified blaster.

(e) The cabinet may require changes to the design submitted in order to ensure compliance with KRS Chapter 350; SMCRA; and 405 KAR Chapters 7 through 24.

Section 2. Preblasting Survey.

(1) At least thirty (30) days before initiation of blasting, the permittee shall notify, in writing, all residents or owners of dwellings or other structures located within one-half (1/2) mile of the areas affected by surface operations and facilities how to request a preblasting survey in accordance with subsection (2) of this section.

(2) A resident or owner of a dwelling or other structure within one-half (1/2) mile of any part of the areas affected by surface operations and facilities may request a preblasting survey. This request shall be made in writing directly to the permittee or to the cabinet which shall promptly notify the permittee. The permittee shall promptly conduct a preblasting survey of the dwelling or structure. If a structure is renovated, modified, or added to subsequent to a preblasting survey, then, upon request a survey of such additions and renovations shall be performed in accordance with this section.

(5) Any surveys requested more than ten (10) days before the planned initiation of blasting shall be completed by the permittee before the initiation of blasting.

Section 3. Surface Blasting Requirements.

(1) General requirements.

(a) The permittee shall notify, in writing, each residence within one-half (1/2) mile of the areas affected by surface operations and facilities, the appropriate department regional office, and local governments and public utilities of the proposed times and locations of blasting operations and the characters, patterns, and meanings of the warning and all-clear signals. Such notice shall be served no less than twenty-four (24) hours and no more than thirty (30) days before blasting will occur.

A blast that has been prepared during the day must be delayed due to the occurrence of an unavoidable hazardous condition and cannot be delayed until the next day because a potential safety hazard could result that cannot be adequately mitigated;
Prior approval for conducting the blasting between sunset and sunrise is obtained from the Kentucky Office of Mine Safety and Licensing; and
A complete written report of blasting at night is filed by the permittee with the cabinet not later than three (3) days after the night blasting, not including Saturdays, Sundays, or legal holidays. The report shall include a detailed description of the reasons for the delay in blasting including why the blasting could not be held over to the next day, identification of the time at which the blast was actually conducted, a description of the warning notices given, and a copy of the blast record required by Section 5 of this administrative regulation.

(2) Warnings. Warning and all-clear signals of different character or pattern that are audible within a range of one-half (1/2) mile from the point of the blast shall be given. Each person within the areas affected by surface operations and facilities and each person who resides or regularly works within one-half (1/2) mile of the areas affected by surface operations and facilities shall be notified of the meanings of the signals as identified in the blasting notification required in subsection (1) of this section through appropriate communications. These notifications shall be periodically delivered or otherwise communicated to such persons in a manner which can reasonably be expected to inform such persons of the meanings of the signals. Delivery or other appropriate communication of the meanings of such signals to the head of a household or to the person in charge of a place of business shall constitute sufficient notification of the meanings of such signals to all persons at such household or place of business. Each permittee shall maintain signs in accordance with 405 KAR 18:030, Section 6.

(3) Access control. Access to the blasting area shall be controlled to prevent the presence of livestock or unauthorized personnel during blasting until the blaster has reasonably determined:

(a) That no unusual circumstances, such as imminent slides or undetonated charges, exist; and

(b) That access to and travel in or through the blasting area can be safely resumed.

(4)

(a) Airblast. Airblast shall be controlled so that it does not exceed the values specified in Appendix A of this administrative regulation at any dwelling; public building; school; church; or commercial, community, or institutional building outside the areas affected by surface operations and facilities except as provided in subsection (8) of this section.

(d)

To evaluate compliance with the airblast standards of this administrative regulation, throughout surface blasting operations the permittee shall periodically monitor compliance with the airblast standards.
Monitoring pursuant to this paragraph shall be deemed "periodic" if at least three (3) consecutive blasts are monitored one (1) time during the period of January through June and one (1) time during the period of July through December; provided however:

b. If detonation of explosives did not occur during the designated monitoring period, airblast monitoring need not be conducted during that period.

Subsequent to permit issuance, the cabinet may require airblast measurements of any or all blasts and may specify the locations of such measurements.
The results of all airblast monitoring shall be recorded in accordance with Section 5 of this administrative regulation.

(5) Flyrock. Flyrock, including blasted material traveling along the ground, shall not be cast from the blasting site more than half the distance to the nearest dwelling; public building; school; church; commercial, community, or institutional building; or any occupied structure and in no case beyond the boundary of the areas affected by surface operations and facilities, or beyond the area of regulated access required under subsection (3) of this section.

(6) Prevention of adverse impacts. Blasting shall be conducted to prevent injury to persons; damage to public and private properties outside the areas affected by surface operations and facilities; adverse impacts on any underground mine; changes in the courses, channels, and availability of surface waters outside the areas affected by surface operations and facilities; and alterations of the ground water flow systems and ground water availability outside the areas affected by surface operations and facilities.

(7) Ground vibration.

(a) General. In all blasting operations except as otherwise authorized by subsection (8) of this section, the maximum ground vibration shall not exceed the values approved in the blasting plan required under 405 KAR 8:040. The maximum ground vibration at the location of any dwelling; public building; school; church; or commercial, community, or institutional building outside the areas affected by surface operations and facilities shall be established in accordance with either the maximum peak particle velocity limits of paragraph (b) of this subsection, in accordance with the scale-distance equations of paragraph (c) of this subsection, in accordance with the blasting-level equations of paragraph (d) of this subsection, or by the cabinet pursuant to paragraph (e) of this subsection. All other structures in the vicinity of the blasting area, such as water towers, pipelines, and other utilities; tunnels; dams; impoundments; and underground mines shall be protected from damage by establishment of a maximum allowable limit on the ground vibration proposed by the applicant in the blasting plan and approved by the cabinet.

(b) Maximum peak particle velocity. The maximum ground vibration shall not exceed the limits established in Appendix B of this administrative regulation at the location of any dwelling; public building; school; church; or commercial, community, or institutional building outside the areas affected by surface operations and facilities. Seismographic records shall be recorded for each blast.

A permittee may use the scale-distance equations of Appendix C of this administrative regulation to determine the allowable charge weight of explosives to be detonated within any eight (8) millisecond period without seismic monitoring.
The development of a modified scale-distance factor may be authorized by the cabinet based on a written request by the permittee supported by seismographic records of blasting at the mine site. The modified scale distance factor shall be determined such that the particle velocity of the predicted ground vibration will not exceed the limits established in Appendix B of this administrative regulation at a ninety-five (95) percent confidence level.

(8) The maximum airblast and ground vibration standards of this section shall not apply at the following locations:

(a) At structures owned by the permittee and not leased to another party; and

(b) At structures owned by the permittee and leased to another party, if a written waiver by the lessee is submitted to the cabinet prior to blasting.

Section 4. Seismographic Measurements.

(1) The maximum peak particle velocity shall be recorded as either the largest of the peak particle velocities measured in three (3) mutually perpendicular directions or the vector sum thereof.

Section 5. Records of Blasting Operations. A record of each blast, including any required seismograph reports, shall be retained for at least five (5) years and shall be available for inspection by the cabinet and the public on request. The record shall contain the following data:

(1) Name of the permittee.

(2) Location, date, and time of the blast.

(3) Name, signature, certification number, and license number of the blaster in charge of the blast.

(5) Weather conditions, including those which may cause possible adverse blasting effects.

(6) Type of material blasted.

(7) Sketches of the blast pattern including number of holes, burden, spacing, decks, and delay pattern.

(8) Diameter and depth of holes.

(9) Types of explosives used.

(10) Total weight of explosives used.

(11) Total weight of explosives used per hole.

(12) Maximum weight of explosives detonated within any eight (8) millisecond period.

(13) Maximum number of holes detonated within any eight (8) millisecond period.

(14) Type of initiation system.

(15) Type of circuit.

(16) Type and length of stemming.

(17) Mats or other protection used.

(18) Type of delay detonator and delay periods used.

(19) Seismographic and airblast records, if used, which include for each record:

(a) Type of instrument, sensitivity, and either calibration signal or certification of annual calibration;

(b) Exact location of instrument and the date of, time of, and distance from the blast;

(d) Name of the person and firm taking the reading;

(e) Name of the person and firm analyzing the seismographic record; and

(f) As applicable, vibration and airblast levels recorded.

(20) Reasons and conditions for each unscheduled blast.

History

RELATES TO: KRS 350.151, 350.430
STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth specific requirements for the use of explosives for surface blasting, including qualified supervision of blasting, preblasting surveys, warning signals, restrictions on timing and location of blasting, limitations on airblast and ground vibration, seismographic measurements, and records of surface blasting operations.
History: 405 KAR 018:020. 8 Ky.R. 1568; eff. 1-6-1983; 11 Ky.R. 1296; 1603; eff. 5-14-1985; 15 Ky.R. 491; eff. 12-13-1988; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:130 Disposal of excess spoil {#sec-405-kar-18-130 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:130}

Section 1. General Requirements.

(1) General. Excess spoil shall be placed in designated disposal areas, within a permit area, in a controlled manner to:

(a) Minimize the adverse effects of leachate and surface water run-off from the fill on surface and ground water;

(b) Ensure mass stability and prevent mass movement during and after construction; and

(c) Ensure that the final fill is suitable for reclamation and revegetation compatible with the natural surroundings and the approved postmining land use.

(2) Design certification.

(b) The fill shall be designed and constructed to attain a minimum long-term static safety factor of one and five-tenths (1.5). The foundation and abutments of the fill and all other features shall be sufficient to ensure stability of the fill and appurtenant structures under all stages and conditions of construction.

(4) Stability.

(b) If the toe of the fill rests on an area which has a natural land slope in excess of 2.8h:1v (thirty-six (36) percent) or such a lesser slope as may be designated by the cabinet based on local conditions, keyway cuts (excavations to stable bedrock) and/or rock toe buttresses shall be constructed to ensure stability of the fill. Stability analyses shall be performed in accordance with 405 KAR 8:040, Section 28 to determine the sizes of the rock toe buttresses and/or keyway cuts.

(5) Placement of excess spoil.

(a) Vegetative and organic materials shall be removed, either progressively or in a single set of operations, from the disposal area prior to placement of the excess spoil. Topsoil shall be removed, segregated, and stored and/or redistributed in accordance with 405 KAR 18:050. If approved by the cabinet, vegetative material may be used as mulch or may be included in the topsoil to control erosion, promote growth of vegetation, or increase the moisture retention of the soil.

(b) Excess spoil shall be transported and placed in a controlled manner in horizontal lifts not exceeding four (4) feet in thickness (or less if required by the cabinet to achieve the density necessary to ensure mass stability and to prevent mass movement, to avoid adverse impacts on the rock underdrain or rock-core, or to minimize the formation of voids); concurrently compacted as necessary to ensure mass stability and to prevent mass movement during and after construction; graded so that surface and subsurface drainage is compatible with the natural surroundings; and covered with topsoil or substitute material in accordance with 405 KAR 18:050. The cabinet may approve designs which incorporate placement of excess spoil in lifts greater than four (4) feet in thickness if it is demonstrated to the cabinet's satisfaction in the application and certified by a qualified, registered professional engineer that the design ensures the stability of the fill in accordance with all applicable stability requirements of this administrative regulation and that the design complies with all other requirements of this administrative regulation.

(c)

The final configuration of the fill shall be suitable for the approved postmining land use.
The top of the fill shall be graded no steeper than 20h:1v (five (5) percent) toward properly designed drainage channels in natural ground along the periphery of the fill. Surface run-off from the top surface of the fill shall not be allowed to flow over the outslope of the fill. The outslope of the fill shall not exceed 2H:1v (fifty (50) percent) or such a lesser slope as may be required by the cabinet to ensure stability or minimize erosion.
Terraces may be constructed on the outslope of the fill if required for stability, for control of erosion, to conserve soil moisture, or to facilitate the approved postmining land use. Terrace benches shall be graded with a three (3) to ten (10) percent slope toward the fill. The outslope between terrace benches shall not exceed 2h:1v (fifty (50) percent) or such a lesser slope as may be required by the cabinet to ensure stability or minimize erosion. Run-off shall be collected by a ditch along the intersection of each terrace bench and the outslope. This ditch shall route run-off to stabilized diversion channels and shall have a maximum slope that is no greater than 20h:1v (five (5) percent) unless a steeper slope is necessary for permanent roads in conjunction with an approved postmining land use and a steeper slope will not adversely affect the stability of the fill or result in excessive erosion.

(d) Impoundments shall not be allowed on the completed fill.

(e) Excess spoil that is acid-forming, toxic-forming, or combustible may be placed in excess spoil fills provided that it is disposed of in accordance with 405 KAR 18:060 and 405 KAR 18:190, Section 3 and provided further that the disposal plan to be used is approved by the cabinet as part of the permit application.

(6) Drainage control.

(a) The fill design shall include diversions and underdrains as necessary to control erosion, minimize water infiltration into the fill, and ensure stability except the cabinet may waive underdrain requirements if it is demonstrated to the cabinet's satisfaction in the application that underdrains are not necessary because the disposal area does not contain any springs, manmade or natural drainageways, or wet-weather seeps and because seepage of water due to precipitation will not adversely affect the stability of the fill. In no case, except for head-of-hollow fills with rock-core chimney drains approved pursuant to Section 3 of this administrative regulation, shall surface run-off from above the fill be diverted through or under the fill.

(b) Diversions associated with excess spoil fills and appurtenant structures shall comply with the applicable requirements of 405 KAR 18:080 and shall be designed and maintained to safely pass the peak run-off from a ten (10) year, twenty-four (24) hour precipitation event, except as provided in Sections 2, 3, and 4 of this administrative regulation and where flow from an intermittent or perennial stream is diverted the design event shall be the 100 year, twenty-four (24) hour precipitation event.

The minimum cross-sectional dimensions of the underdrain shall be as specified in Appendix A of this administrative regulation unless the applicant demonstrates in the application, through detailed analyses to the satisfaction of the cabinet, that alternative cross-sectional dimensions will provide adequate long-term capacity for drainage at the site. In constructing the underdrain, no more than ten (10) percent of the rock shall be less than twelve (12) inches in size and no single rock shall be larger than twenty-five (25) percent of the width of the segment of the underdrain in which the rock is located.
Underdrains shall be constructed of durable rock that meets the durability requirements of Section 4(2)(a)2 of this administrative regulation with the exception that, for shale material, the minimum SDI value necessary to demonstrate sufficient durability for underdrain material shall be ninety-five (95).
Adequate samples shall be collected at sufficient geographic and stratigraphic locations and shall be tested and analyzed pursuant to this paragraph to determine, to the satisfaction of the cabinet, the characteristics of all variations of materials to be used in the underdrains. The results of such tests and analyses shall be provided in the permit application.
Upon the request of the cabinet, the permittee shall, under the direction of a qualified, registered professional engineer, obtain adequate samples from the underdrain or other locations as necessary to demonstrate, to the satisfaction of the cabinet, compliance with this paragraph. Such samples shall be tested by a qualified laboratory and the results of such testing shall be analyzed by the qualified, registered professional engineer. The obtaining of samples, the testing, and the analyses shall be in the detail, scope, and time frame required by the cabinet to demonstrate, to the satisfaction of the cabinet, compliance with this paragraph. The results of such analyses shall be certified by the qualified, registered professional engineer under whose direction the samples were obtained and tested, and the results of the testing and the results of the analyses shall be submitted immediately to the department's appropriate regional office. The results of the testing and the results of analyses, or copies thereof, shall be reviewed by the qualified, registered professional engineer or specialist performing the inspections pursuant to Section 1(8) of this administrative regulation and shall be included in the certified report immediately following the analyses.

(c)

The certified reports on the drainage system and protective filter shall include color photographs taken during and after construction of the underdrain and protective filter but before the drainage system is covered with excess spoil. If the underdrain system is constructed in phases, each phase shall be certified separately.
For situations in which excess durable rock spoil is placed in single or multiple lifts such that the underdrain system is constructed simultaneously with excess spoil placement by the natural segregation of dumped materials in accordance with Section 4 of this administrative regulation, color photographs shall be taken of the underdrain as the underdrain system is being formed.
The photographs accompanying each certified report shall be taken in adequate size and number and with enough terrain or other physical features of the site shown to provide a relative scale to the photographs and to specifically and clearly identify the site.

(d) A copy of each inspection report shall be retained at or near the mine site.

(10)

Placed in accordance with 405 KAR 18:140, Section 4;
Demonstrated to be nontoxic-forming and nonacid-forming; and
Demonstrated to have no adverse effect upon the stability of the fill.

(11) Spoil resulting from face-up operations for underground coal mine development may be placed in steep slope areas on the downslope at the drift entry as part of a cut and fill structure if the structure is less than 400 feet in length (as measured generally parallel to the mine bench) and if the fill is designed and constructed in accordance with the requirements of this section.

(1) A subdrainage system for the fill shall be constructed in accordance with Section 1(6)(c) or (d) of this administrative regulation and with the following:

(a) Be installed along the natural drainageways;

(b) Extend from the toe to the head of the fill; and

(2) Surface water run-off from the area above the fill shall be diverted away from the fill and into stabilized diversion channels designed to pass safely the run-off from a 100 year, twenty-four (24) hour precipitation event or larger event specified by the cabinet. Surface run-off from the fill surface shall be diverted to stabilized channels off the fill which will safely pass the run-off from a 100 year, twenty-four (24) hour precipitation event. Diversion designs shall comply with the applicable requirements of 405 KAR 18:080.

Section 3. Rock-core Chimney Drains.

(1) A rock-core chimney drain may be used in a head-of-hollow fill instead of the subdrain and surface run-off diversion system normally required, as long as the fill is not located in an area containing an intermittent or perennial stream. A rock-core chimney drain may be used in a valley fill if the fill volume does not exceed 250,000 cubic yards of material and if upstream drainage is diverted around the fill.

(2) The rock-core chimney drain shall be designed and constructed as follows:

(a) The fill shall have, along the vertical projection of the main buried stream channel or rill, a vertical core of durable rock at least sixteen (16) feet thick which shall extend from the toe of the fill to the head of the fill and from the base of the fill to the surface of the fill. A system of lateral rock underdrains shall connect this rock-core to each area of potential drainage or seepage in the disposal area. The underdrain system and the rock-core shall be designed and constructed to carry, away from the fill, the maximum anticipated seepage of water due to precipitation and the maximum anticipated seepage and discharge from seeps and springs in the foundation of the disposal area. Rocks used in the rock-core and underdrains shall meet the requirements of Section 1(6)(c) of this administrative regulation.

(b) A filter system to ensure the proper long-term functioning of the rock-core shall be designed and constructed using current, prudent engineering practices.

(c)

The grading of the fill surface shall drain run-off away from the outslope of the fill and may drain run-off toward the rock-core. In no case, however, shall intermittent or perennial streams be diverted into the rock-core. The maximum slope of the top of the fill shall be 33h:1v (three (3) percent). Terraces on the fill shall be graded with a three (3) to five (5) percent slope toward the fill and a one (1) percent slope toward the rock-core.
A drainage pocket may be maintained at the head of the fill during and after construction to intercept and collect surface run-off and to discharge the run-off through or over the rock drain, if it is demonstrated to the satisfaction of the cabinet in the application and certified by a qualified, registered professional engineer that the stability of the fill will not be impaired. In no case shall this drainage pocket have a potential for impounding more than 10,000 cubic feet of water.

(3) The drainage control system shall be capable of safely passing the run-off from a 100 year, twenty-four (24) hour precipitation event or a larger event if specified by the cabinet.

(1) Except as provided in this section, the requirements of Sections 1 and 2 of this administrative regulation are met.

(2)

(a)

The excess spoil is nontoxic-forming and nonacid-forming and consists of at least eighty (80) percent, by volume, of durable rock that is free of coal, clay, and nondurable material.
Durable rock means rock that does not slake in water and that is not reasonably expected to degrade to such a size or condition as to block, cause failure of, or otherwise impair or restrict the effectiveness of the internal drainage system. The cabinet shall consider rock to be durable if it is demonstrated, to the satisfaction of the cabinet in the application, that the rock has an SDI value of ninety (90) or greater as determined by the Kentucky Department of Transportation "Method for Determination of Slake Durability Index" (Kentucky Method 64-513-79). The cabinet may accept other test methods of demonstrating that rock is durable if it is demonstrated to the satisfaction of the cabinet that the alternative test methods yield equivalent measure of durability based upon correlation of results with Kentucky Method 64-513-79.
Adequate samples shall be collected at sufficient geographic and stratigraphic locations and shall be tested and analyzed pursuant to this subsection to determine, to the satisfaction of the cabinet, the characteristics of all variations of materials to be placed in the end-dumped fill. The results of such tests and analyses shall be provided in the permit application.

(3) The fill shall be designed and constructed to attain a minimum long-term static safety factor of one and five-tenths (1.5) and a minimum earthquake safety factor of one and one-tenth (1.1).

(5) Upon the request of the cabinet, the permittee shall, under the direction of a qualified, registered professional engineer, obtain adequate samples from the fill or other locations as necessary to demonstrate, to the satisfaction of the cabinet, compliance with this section. Such samples shall be tested by a qualified laboratory and the results of such testing shall be analyzed by the qualified, registered professional engineer. The obtaining of samples, the testing, and the analyses shall be in the detail, scope, and time frame required by the cabinet to demonstrate, to the satisfaction of the cabinet, compliance with this section. The results of such analyses shall be certified by the qualified, registered professional engineer under whose direction the samples were obtained and tested, and the results of the testing and the results of analyses shall be submitted immediately to the department's appropriate regional office. The results of the testing and the results of analyses, or copies thereof, shall be reviewed by the qualified, registered professional engineer or specialist performing the inspections pursuant to Section 1(8) of this administrative regulation and shall be included in the certified report immediately following the analyses.

(6) The surface drainage control system shall be designed and constructed in accordance with Sections 1 and 2 of this administrative regulation except that in all situations surface water run-off from areas adjacent to and above the fill and any appurtenant structures shall not flow onto the fill and shall be diverted into stabilized diversion channels designed to meet the applicable requirements of 405 KAR 18:080 and to safely pass the run-off from a 100 year, twenty-four (24) hour precipitation event.

Section 5. Disposal on Existing Benches.

(1) If approved by the cabinet, excess spoil may be disposed of on preexisting benches that have not been reclaimed to the standards of 405 KAR and for which there is no continuing responsibility to reclaim to such standards, provided that all of the requirements set forth in Sections 1(1), (2)(a), (4) through (8) and (10) of this administrative regulation and the requirements of this section are met.

(a) Excess spoil shall be placed only on the solid portion of the preexisting bench.

Achieve the most moderate slope possible which does not exceed the angle of repose; and
Eliminate the highwall to the maximum extent technically practicable.

(2) Gravity transport of excess spoil.

(b) The disposal of material in accordance with this subsection shall comply with the following:

All excess spoil placed on the lower bench by gravity transport, including the spoil immediately below the points of gravity transport, shall be rehandled and placed as required under subsection (1) of this section. Spoil remaining on the lower bench from prior operations need not be rehandled unless such rehandling is necessary to ensure stability of the fill.
A safety berm shall be constructed on the solid portion of the lower bench prior to gravity transport of the excess spoil to the lower bench. The safety berm shall be of sufficient height, width, and length to prevent the gravity transported spoil from moving off the lower bench to the downslope. If there is insufficient material from previous operations on the lower bench to construct the safety berm, only that amount of excess spoil necessary for construction of the safety berm may be gravity transported to the lower bench prior to construction of the safety berm. The safety berm shall be removed during final grading operations.
Excess spoil shall not be allowed on the downslope below the upper bench and above the highwall of the preexisting bench except on designated gravity transport courses properly prepared according to 405 KAR 18:050. Upon completion of the fill, no excess spoil shall be allowed to remain on the designated gravity transport courses between the two (2) benches and each transport course shall be reclaimed in accordance with the applicable requirements of this chapter.

Section 6. Disposal of Underground Development Waste. Underground development waste shall be disposed of in accordance with the coal mine waste requirements of 405 KAR 18:140 and 405 KAR 18:160 as applicable.

Section 7. Applicability of Amendments to this Administrative Regulation.

(4) With regard to any excess spoil fill approved in a permit issued prior to the effective date of these amendments, the permittee shall not be required to have slake durability index tests conducted solely for the purpose of including the results of such tests in the permit application; however, the permittee shall have such tests performed if required by the cabinet under Section 1(6)(c)4 or Section 4(5) of this administrative regulation. This exemption shall not apply to any such excess spoil fill approved in a permit issued prior to the effective date of these amendments for which construction begins on or after one (1) year following the effective date of these amendments.

History

RELATES TO: KRS 350.090, 350.151, 350.410, 350.440, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth specific requirements for the location of areas used for the disposal of excess spoil materials and the design, construction, and inspection of fill structures composed of such materials.
History: 405 KAR 018:130. 8 Ky.R. 1571; 9 Ky.R. 714; eff. 1-6-1983; 11 Ky.R. 1856; 12 Ky.R. 198; eff. 8-13-1985; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:140 Disposal of coal mine waste {#sec-405-kar-18-140 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:140}

Section 1. General Requirements.

(a) In accordance with this administrative regulation and the criteria established in 405 KAR 18:130, Sections 1 and 2; and

(b) To prevent combustion.

(2) Coal mine waste materials from activities located outside the permit area, such as those activities at other mines or abandoned mine waste banks, may be disposed of in the permit area only if approved by the cabinet. Approval shall be based on a showing by the permittee, using hydrologic, geologic, geotechnical, physical, and chemical analyses, that disposal of these materials does not:

(a) Adversely affect water quality, water flow, or vegetation;

(b) Create public health hazards; or

Section 2. Site Inspection.

(a) Inspections shall occur at least quarterly, beginning within seven (7) days after preparation of the disposal area begins.

The cabinet may require more frequent inspections based upon an evaluation of the potential danger to the health or safety of the public and the potential harm to land, air, or water resources.
Inspections shall terminate if the coal mine waste bank has:

a. Been graded;

b. Been covered in accordance with Section 4(4)(a) of this administrative regulation; or

c. Had topsoil distributed on the bank in accordance with 405 KAR 18:050, Section 4.

(b) Inspections shall include observations and tests as may be necessary to evaluate the potential hazard to human life and property, ensure that all organic material and topsoil have been removed and that proper construction and maintenance are occurring in accordance with the plan submitted under 405 KAR 8:040, Section 34, and approved by the cabinet.

Steepness of slopes;
Seepage;
Other visible factors that may indicate potential failure; and
The results of failure with respect to the threat to human life and property.

(d)

The responsible professional engineer shall certify to the cabinet within two (2) weeks after each inspection that the coal mine waste bank has been constructed as specified in the design approved by the cabinet.
Copies of the inspection findings shall be maintained at the mine site.

(a) If adequate procedures cannot be formulated or implemented, the cabinet shall be notified immediately.

(b) The cabinet shall then notify the appropriate emergency agencies that other emergency procedures shall be required to protect the public from the coal mine waste area.

Section 3. Water Control Measures.

(a) Intercept all ground water sources;

(b) Be protected by an adequate filter; and

(3)

(a) Slope protection shall be provided to minimize surface erosion at the site.

(b) Disturbed areas, including diversion ditches that are not riprapped, shall be vegetated upon completion of construction.

(4) Discharges of waters from a coal mine waste bank shall comply with 405 KAR 18:060, Sections 1, 2, and 7; 18:070; 18:090; and 18:110.

Section 4. Construction Requirements.

(1) Coal mine waste banks shall be constructed in compliance with 405 KAR 18:130, Sections 1 and 2, except to the extent that the requirements of those sections are specifically varied in this section.

(2) Coal mine waste banks shall have a minimum static factor of safety of one and five-tenths (1.5).

(3) Compaction requirements during construction or modification of a coal mine waste bank shall meet the requirements of this subsection, instead of those specified in 405 KAR 18:130, 1(5)(b).

(a) The coal mine waste shall be:

Spread in horizontal layers no more than twenty-four (24) inches in thickness; and
Compacted to attain ninety (90) percent of the maximum dry density in order to prevent spontaneous combustion and to provide the strength required for stability of the coal mine waste bank. Dry densities shall be determined in accordance with the American Association of State Highway and Transportation Officials (AASHTO) Specification T99-74 (12th Edition) (1974) as incorporated by reference in 405 KAR 7:015, Section 3(7), or an equivalent method.

(4)

(a) Following grading of the coal mine waste bank, the site shall be covered with a minimum of four (4) feet of the best available nontoxic and noncombustible material, in accordance with 405 KAR 18:050, Section 2(5), and in a manner that does not impede flow from subdrainage systems.

(b) The coal mine waste bank shall be revegetated in accordance with 405 KAR 18:200.

(c) The cabinet may allow less than four (4) feet of cover material based on physical and chemical analyses that show that the requirements of 405 KAR 18:200 shall be met.

Section 5. Burning Coal Waste. Coal mine waste fires shall be extinguished by the permittee, in accordance with a plan approved by the cabinet and the MSHA. The plan shall contain, as a minimum, provisions to ensure that only persons authorized by the permittee, and who have an understanding of the procedures to be used, shall be involved in the extinguishing operations.

Section 6. Burned Waste Utilization.

(1) Before any burned coal mine waste, other materials, or refuse is removed from a disposal area, approval shall be obtained from the cabinet.

(2) A plan for the method of removal, with maps and appropriate drawings to illustrate the proposed sequence of the operation and methods of compliance with this chapter shall be submitted to the cabinet.

(3) Consideration shall be given in the plan to potential hazards that may be created by removal to persons working or living in the vicinity of the disposal area. The plan shall be prepared by a qualified professional engineer.

History

RELATES TO: KRS 350.151, 350.410, 350.420, 350.465, EO 2009-538
STATUTORY AUTHORITY: KRS 350.028, 350.151, 350.465, EO 2009 538
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.28 and 350.465 require the cabinet to promulgate administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. EO 2009-538, effective June 12, 2009, establishes the new Energy and Environment Cabinet. This administrative regulation establishes forth requirements for the disposal of coal mine waste, including design and construction requirements for coal mine waste banks, site inspection requirements, water control measures, provisions for extinguishing burning coal waste and utilization of burned coal waste, and the return of coal mine waste to underground mine workings.
History: 405 KAR 018:140. 8 Ky.R. 1574; 9 Ky.R. 718; eff. 1-6-1983; 10 Ky.R. 823; eff. 4-23-1984; 36 Ky.R. 651; 1023; eff. 11-17-2009; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:150 Disposal of noncoal mine waste {#sec-405-kar-18-150 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:150}

Section 1. Storage and Disposal.

(1) Storage. Noncoal mine wastes including, but not limited to, grease, lubricants, paints, flammable liquids, garbage, abandoned mining machinery, timber and other combustibles generated during underground mining activities shall be placed and stored in a controlled manner in a designated portion of the permit area. Placement and storage shall ensure that leachate and surface run-off do not degrade surface or groundwater, that fires are prevented, and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings.

(2) Disposal. Final disposal of such noncoal mine wastes shall be in a designated disposal site in the permit area or a state-approved solid waste disposal area. Disposal sites in the permit area shall be designed and constructed to ensure that leachate and drainage from the site do not degrade surface or groundwater. Wastes shall be routinely compacted and covered to prevent combustion and wind-borne waste. When the disposal is completed, a minimum of two (2) feet of soil cover shall be placed over the site, slopes stabilized, and revegetation accomplished in accordance with 405 KAR 18:200. Operation of the disposal site shall be conducted in accordance with all local, state, and federal requirements.

(3) At no time shall any noncoal mine waste be deposited in a refuse pile or impounding structure, nor shall any such excavation for waste disposal be placed within eight (8) feet of any coal outcrop or coal storage area.

History

RELATES TO: KRS 350.020, 350.090, 350.151, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth requirements for the storage and disposal of wastes other than coal mine waste, soil or rock.
History: 405 KAR 018:150. 8 Ky.R. 1576; eff. 1-6-1983; 15 Ky.R. 496; eff. 12-13-1988; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:160 Coal mine waste dams and impoundments {#sec-405-kar-18-160 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:160}

Section 1. General Requirements.

(3) An impounding structure constructed of coal mine waste or intended to impound coal mine waste shall not be retained permanently as part of the approved postmining land use.

Section 2. Site Preparation. Before coal mine waste is placed at a dam or impoundment site:

(2) Surface drainage that may cause erosion to the dam or the impoundment features, whether during construction or after completion, shall be diverted away from the dam or impoundment by diversion ditches that comply with the requirements of 405 KAR 18:080, Section 1. Adequate outlets for discharge from these diversions shall be in accordance with 405 KAR 18:060, Section 3. Diversions that are designed to divert drainage from the upstream area away from the impoundment area shall be designed to carry the peak run-off from a 100-year, six (6) hour precipitation event. Twenty-four (24) hours may be used in lieu of six (6) hours for the duration of the 100-year design precipitation event in this subsection. The diversion shall be maintained to prevent blockage, and the discharges shall be in accordance with 405 KAR 18:060, Section 3.

Section 3. Design and Construction.

(1) The design of each dam and impoundment constructed of coal mine waste or intended to impound coal mine waste shall comply with the requirements of 405 KAR 18:100, including the certification requirements thereof, modified as follows:

The spillway shall have a trash rack designed to provide positive protection against clogging of the spillway at all operating levels, and an elbow designed to facilitate the passage of trash;
The conduit shall be large enough to pass the routed freeboard hydrograph peak discharge while maintaining the required freeboard against overtopping the structure. For structures included in paragraph (a) of this subsection, the probable maximum precipitation event shall be used to determine the freeboard hydrograph;
The conduit shall be large enough to meet the requirements under 401 KAR 4:030 for minimum emergency spillway discharge capacity; and
The spillway shall meet all other applicable requirements under 401 KAR 4:030, 405 KAR 18:100, and this administrative regulation, except the requirement under 401 KAR 4:030 that the conduit have a minimum cross-sectional area of thirty-six (36) square feet. The cross-sectional area of the barrel of the conduit shall be not less than twelve (12) square feet for a Class A structure with a product of storage in acre-feet times effective height in feet of less than 10,000 and shall be not less than twenty (20) square feet for other structures.

(d) The dam or impoundment shall have a minimum safety factor of one and five-tenths (1.5) for the partial pool with steady seepage saturation conditions, and the seismic safety factor shall be at least one and two-tenths (1.2).

(2) Spillways and outlet works shall be designed to provide adequate protection against erosion and corrosion. Inlets shall be protected against blockage.

History

RELATES TO: KRS 151.100, 151.250(3), 350.151, 350.425, 30 C.F.R. Parts 730-733, 735, 817.84, 917, 30 U.S.C. 1253, 1255, 1266
STATUTORY AUTHORITY: KRS 350.028, 350.151, 350.465, 30 C.F.R. Parts 730-733, 735, 817.84, 917, 30 U.S.C. 1253, 1255, 1266
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes requirements for coal mine waste dams and impoundments for underground mines. This administrative regulation differs from 30 CFR 817.84. Section 3(1)(b) of this administrative regulation includes detailed requirements for principal spillways in impoundments that do not have an open channel emergency spillway. This is necessary to ensure the safety of a large impoundment that does not have an open channel emergency spillways. Section 3(1)(c) of this administrative regulation requires a minimum freeboard of three (3) feet that is not included in the federal regulation. This is necessary to ensure the safety of an impounding structure that may be susceptible to erosion if overtopping occurs.
History: 405 KAR 018:160. 8 Ky.R. 1576; eff. 1-6-1983; 24 Ky.R. 745; 2675; eff. 6-10-1998; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:170 Stabilization of surface areas {#sec-405-kar-18-170 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:170}

Section 1. Stabilization of Surface Areas. All exposed surface areas shall be protected and stabilized to effectively control and limit erosion and air pollution attendant to erosion (fugitive dust).

Section 2. Control Measures. The fugitive dust control measures to be used shall include, as necessary, but not be limited to:

(1) Periodic watering of unpaved roads;

(2) Chemical stabilization of unpaved roads with proper application of nontoxic soil cements or dust palliatives;

(3) Paving of roads;

(4) Prompt removal of coal, rock, soil, and other dust-forming debris from roads and frequent scraping of and compaction of unpaved roads to stabilize the road surfaces;

(5) Revegetating, mulching, or otherwise stabilizing the surfaces of all areas adjoining roads that are sources of fugitive dust;

(6) Restricting the travel of vehicles on areas other than established roads;

(7) Minimizing the area of disturbed land;

(8) Prompt revegetation or other stabilization of disturbed lands; and

(9) Planting of special windbreak vegetation at critical points in the permit area.

History

RELATES TO: KRS 224.033, 350.020, 350.151, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for the protection of people, property, land, water, natural resources, and aesthetic values during underground mining activities and for the restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth requirements for the stabilization of surface areas with specific measures for the control of fugitive dust.
History: 405 KAR 018:170. 8 Ky.R. 1577; eff. 1-6-1983; 11 Ky.R. 1864; eff. 8-13-1985; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

Section 1. General.

(2) Each permittee shall:

(a) To the extent possible using the best technology currently available:

Ensure that electric powerlines and other transmission facilities used for, or incidental to, underground mining activities on the permit area are designed and constructed to minimize electrocution hazards to raptors, except where the cabinet determines that these requirements are unnecessary;
Locate and operate haul and access roads so as to avoid or minimize impacts on important fish and wildlife species or other species protected by state or federal law;
Design fences, overland conveyors, and other potential barriers to permit passage of large mammals, except where the cabinet determines that the designs are unnecessary; and
Fence, cover, or use other appropriate methods to exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials.

(b) Avoid disturbances to, enhance where practicable, restore, or replace, wetlands, and riparian vegetation along rivers and streams and bordering ponds and lakes; and

(c) Avoid disturbances to, enhance where practicable, or restore, habitats of unusually high value for fish and wildlife.

Section 2. Protection of Endangered and Threatened Species.

(1)

(a) No underground mining activity shall be conducted which is likely to jeopardize the continued existence of an endangered or threatened species listed by the Secretary of the Interior or which is likely to result in the destruction or adverse modification of a designated critical habitat of those species in violation of the Endangered Species Act of 1973 as amended (16 USC Sec. 1531 et seq.). The operator shall promptly report to the cabinet any state- or federally-listed endangered or threatened species within the permit area of which the operator becomes aware. Upon notification, the cabinet shall consult with appropriate state and federal fish and wildlife agencies and, after consultation, shall identify whether, and under what conditions, the operator may proceed.

(b) No underground mining activity shall be conducted in a manner which would result in the unlawful taking of a bald or golden eagle, its nest, or any of its eggs. The operator shall promptly report to the cabinet any golden or bald eagle nest within the permit area of which the operator becomes aware. Upon notification, the cabinet shall consult with the U.S. Fish and Wildlife Service and also, where appropriate, the Kentucky Department of Fish and Wildlife Resources and, after consultation, shall identify whether, and under what conditions, the operator may proceed.

Section 3. Reclamation Strategies and Wildlife Enhancement Techniques.

(1) Where fish and wildlife is to be a postmining land use, the permittee shall:

(b) Group and distribute plants in a manner which optimizes edge effect, cover, and other benefits to fish and wildlife.

(2) Where cropland is to be the postmining land use, and where appropriate for wildlife- and crop-management practices, the permittee shall intersperse the fields with trees, hedges or fence rows throughout the harvested area to break up large blocks of monoculture and to diversify habitat types of birds and other animals.

(3) Where residential, public service, or industrial uses are to be the postmining land use, and where consistent with the approved postmining land use, the permittee shall intersperse reclaimed lands with greenbelts, utilizing species of grass, shrubs, and trees useful as food and cover for wildlife.

History

RELATES TO: KRS 350.020, 350.028, 350.151, 350.405, 350.435, 350.465, 30 C.F.R. Parts 730-733, 735, 817.57, 817.97, 917, 16 U.S.C. 668 et seq., 1531 et seq., 30 U.S.C. 1253, 1255, 1266, 33 U.S.C. 1344
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.151, 350.465, 30 C.F.R. Parts 730-733, 735, 817.57, 817.97, 917, 16 U.S.C. 668 et seq., 1531 et seq., 30 U.S.C. 1253, 1255, 1266, 33 U.S.C. 1344
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities, and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth specific requirements and measures for the protection of fish, wildlife, and related environmental values, and for the enhancement of those resources where practicable.
History: 405 KAR 018:180. 8 Ky.R. 1577; eff. 1-6-1983; 18 Ky.R. 3020; 3473; eff. 6-24-1992; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:190 Backfilling and grading {#sec-405-kar-18-190 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:190}

Section 1. Timing of Backfilling and Grading. Surface areas disturbed incident to underground mining activities shall be backfilled and graded in accordance with a relative time-schedule approved by the cabinet in accordance with 405 KAR 18:020.

Section 2. General Backfilling and Grading Requirements.

(1) Except as provided in subsection (8) of this section, all disturbed areas shall be returned to their approximate original contour. All spoil shall be transported, placed in a controlled manner, backfilled, compacted (where advisable to ensure stability or to prevent leaching of toxic materials), and graded to:

(a) Eliminate all highwalls (except as otherwise provided in Section 5 of this administrative regulation), spoil piles, and depressions (excluding depressions and impoundments approved pursuant to subsection (4) or (5) of this section);

(b) Ensure a long-term static factor of safety of at least one and three-tenths (1.3) for all portions of the reclaimed land;

(d) Minimize erosion and adverse effects on surface and groundwater both on and off the site; and

(e) Support the approved postmining land use.

(2) Spoil, except excess spoil disposed of in accordance with 405 KAR 18:130, shall be returned to the excavated surface areas.

(3) Disposal of coal processing waste and underground development waste in the mined-out surface area shall be in accordance with 405 KAR 18:140, except that a long-term static safety factor of one and three-tenths (1.3) shall be achieved.

(4) Small depressions may be constructed on backfilled areas, if the depressions:

(a) Are needed to minimize erosion, conserve soil moisture, create or enhance wildlife habitat, or promote vegetation;

(b) Are not disapproved by the cabinet;

(d) Do not adversely affect the stability of the backfilled area; and

(e) Are not located on steep-slope outslopes.

(5) Impoundments on backfilled areas may be approved, if the impoundments:

(a) Meet the applicable requirements of 405 KAR 18:060, Section 10 and 405 KAR 18:100;

(b) Are demonstrated, to the satisfaction of the cabinet in the permit application, to have no adverse effect on the stability of the backfilled area;

(d) Are specifically approved by the cabinet in the permit application; and

(e) Are not located on steep-slope outslopes.

(6) All underground mining activities on slopes above twenty (20) degrees, or on lesser slopes that the cabinet defines as steep slopes, shall comply with the requirements of 405 KAR 20:060.

(7) All final grading; preparation of overburden before replacement of topsoil, topsoil substitutes, and topsoil supplements; and placement of topsoil, topsoil substitutes, and topsoil supplements shall be done along the contour to minimize subsequent erosion and instability. If grading, preparation, or placement along the contour is hazardous to equipment operators, then grading, preparation, or placement in a direction other than generally parallel to the contour may be used. In all cases, grading, preparation, and placement shall be conducted in a manner which minimizes erosion and provides a surface for placement of topsoil, topsoil substitutes, and topsoil supplements which will minimize slippage.

(8) The postmining slope may vary from the approximate original contour if approval is obtained from the cabinet for:

(a) A variance from approximate original contour requirements in accordance with 405 KAR 8:050, Section 6;

(b) Incomplete elimination of highwalls in previously mined areas in accordance with Section 5 of this administrative regulation; or

(9) Face-up areas and similar cut slopes created prior to the effective date of SMCRA, as defined at Section 502(a), (b), and (c) therein, that are associated with underground mining activities which were started prior to the effective date of SMCRA and which have continued as existing and ongoing operations pursuant to permits issued under the interim and permanent regulatory programs shall be backfilled and graded in accordance with the requirements of Section 5 of this administrative regulation; except that for the purposes of this subsection "reasonably available spoil" shall not include spoil generated by the operation prior to the effective date of SMCRA which is not accessible and available for use or which would cause a hazard to public safety or significant damage to the environment if rehandled.

Section 3. Disposal of Acid-forming, Toxic-forming, and Combustible Materials and Coverage of Coal Seams.

(a) Minimizes adverse impacts on surface and groundwater, minimizes disturbances to the hydrologic balance, and prevents material damage to the hydrologic balance;

(b) Ensures compliance with 405 KAR 18:060;

(d) Minimizes adverse impacts on plant growth and the approved postmining land use;

(e) Ensures that the affected area is capable of sustaining sufficient vegetation to meet the revegetation requirements of 405 KAR 18:200; and

(f) Ensures that the affected area is capable of meeting the postmining land use requirements of 405 KAR 18:220.

Selectively blended with nontoxic-forming, nonacid-forming, and noncombustible materials; treated; or selectively handled, or an appropriate combination of those measures shall be used, as necessary to ensure compliance with subsection (1) of this section; and
Covered with a minimum of four (4) feet of nontoxic-forming, nonacid-forming, and noncombustible materials. The cabinet shall require thicker amounts of cover, special compaction of cover, treatment, or other measures as necessary to ensure compliance with subsection (1) of this section and to prevent exposure of the toxic-forming, acid-forming, or combustible materials by erosion. The cabinet may approve lesser amounts of cover, or no cover (other than topsoil, topsoil substitutes, or topsoil supplements), if the applicant demonstrates, to the satisfaction of the cabinet in the permit application, that the lesser amounts are sufficient to ensure compliance with subsection (1) of this section and to maintain coverage of the toxic-forming, acid-forming, and combustible materials;
If required or approved by the cabinet, compacted and placed in an environment which minimizes the oxidation potential of the toxic-forming materials, acid-forming materials, and combustible materials; and
If required or approved by the cabinet, disposed so as to minimize surface and groundwater contact with acid-forming materials, toxic-forming materials, and combustible materials. Water contact may be minimized by the encasement of those materials in low-permeability substances and by the compaction and selective placement of those materials in locations other than surface drainage courses, groundwater recharge areas, or areas of significant groundwater flow. As an alternative to minimizing contact with surface and groundwater and if feasible based on site conditions, the cabinet may allow acid-forming materials, toxic-forming materials, and combustible materials be placed below the permanent water table.

(3) The cabinet shall require measures in addition to those identified in subsection (2) of this section if necessary to ensure protection of the environment or the health or safety of the public.

Section 4. Regrading or Stabilizing Rills and Gullies. Except as provided in subsections (1) and (2) of this section, if rills or gullies deeper than nine (9) inches form in areas that have been regraded and topsoiled, the rills and gullies shall be filled, graded, or otherwise stabilized and the area reseeded and replanted according to 405 KAR 18:200.

(2) Rills and gullies deeper than nine (9) inches need not be filled, regraded, and revegetated if all of the following criteria are met:

(a) They are incised to solid bedrock or are otherwise stable and not likely to further erode;

(b) They are not disruptive to the approved postmining land use or to the establishment of the vegetative cover; and

Section 5. Remining Previously Mined Areas.

(1) General requirements. Remining operations on previously mined areas, including steep slope areas, that contain a preexisting highwall shall comply with Sections 1 through 4 of this administrative regulation except as provided in this section.

(a) All reasonably available spoil shall be used to backfill the area.

(c) Spoil generated or handled by the remining operation shall not be placed on the fill section of any existing or new bench.

Section 6. Temporary Storage of Materials.

(1) After excavation, materials to be used for backfilling in compliance with this administrative regulation shall be returned, for backfilling purposes in accordance with this administrative regulation, to a mined-out area within the permit area or shall be temporarily stored in designated storage areas designs of which have been provided in the permit application and thereby approved by the cabinet.

(2) Temporary storage areas shall be designed and constructed in accordance with the requirements of 405 KAR 18:130 or 405 KAR 18:140, depending on the type of material, except as specified in the following:

(a) If the temporary storage area is to exist for six (6) months or longer, the storage area shall be protected by establishment of an effective cover of nonnoxious, quick-growing, annual and perennial plants seeded or planted during the first normal seeding or planting period following placement of the fill material and resown as necessary thereafter.

(b) Topsoil, topsoil substitute, and topsoil supplement materials to be used in final reclamation of the temporary storage area shall either be stockpiled in accordance with 405 KAR 18:050, Section 3(1) through (3) or temporarily redistributed on areas in accordance with 405 KAR 18:050, Section 3(4). The applicant shall submit, in the permit application, a discussion from a qualified soil scientist or qualified agronomist which indicates, to the satisfaction of the cabinet, that the topsoil stockpile or temporary redistribution plan will minimize adverse effects on the quality and quantity of the topsoil, topsoil substitute, and topsoil supplement materials.

(3) Fills designed and constructed in accordance with this section may be retained as permanent structures if:

(a) The cabinet approves a permit revision submitted in accordance with 405 KAR 8:010, Section 20 for retention of the fill as a permanent structure and for the use of alternate materials to backfill areas and return the disturbed areas to their approximate original contour, in accordance with the requirements of this administrative regulation;

(b) Topsoil, topsoil substitute, and topsoil supplement materials are redistributed on the fill in accordance with 405 KAR 18:050;

(c) The fill is revegetated and reclaimed in accordance with 405 KAR 18:200, 405 KAR 18:220, and all other applicable requirements of KRS Chapter 350 and 405 KAR; and

(d) The borrow area or other area from which the alternate backfill material is obtained is permitted under a valid permit from Department for Natural Resources and is reclaimed in accordance with the requirements of KRS Chapter 350 and 405 KAR.

History

RELATES TO: KRS 350.020, 350.093, 350.100, 350.151, 350.405, 350.410, 350.450, 350.465, 30 C.F.R. Parts 730-733, 735, 817.102-.106, 917, 30 U.S.C. 1253, 1255, 1266
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100, 350.151, 350.465, 30 C.F.R. Parts 730-733, 735, 817.102-.106, 917, 30 U.S.C. 1253, 1255, 1266
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth requirements for backfilling and grading of areas affected by surface operations, including requirements for backfilling and grading of face-up areas and other cut slopes and limited exemptions, timing of backfilling and grading, covering coal and acid and toxic materials, and regrading or stabilizing rills and gullies.
History: 405 KAR 018:190. 8 Ky.R. 1578; eff. 1-6-1983; 10 Ky.R. 824; eff. 4-23-1984; 12 Ky.R. 951; 1332; eff. 2-4-1986; 13 Ky.R. 1891; eff. 7-2-1987; 15 Ky.R. 498; 1089; eff. 12-13-1988; 18 Ky.R. 438; 1877; eff. 11-26-1991; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:200 Revegetation {#sec-405-kar-18-200 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:200}

Section 1. General Requirements.

(1)

(a) Each permittee shall establish on all areas affected by surface operations and facilities a diverse, effective, and permanent vegetative cover that meets the requirements of this administrative regulation and the revegetation provisions of 405 KAR 18:180, and that supports the approved postmining land use.

(2) All revegetation shall be in compliance with the plan submitted under 405 KAR 8:040, Sections 24(4) and 37, as approved by the cabinet, and shall be carried out in a manner that encourages a prompt vegetative cover and recovery of productivity levels compatible with the approved postmining land use.

(3) If the approved postmining land use is not cropland or pastureland, all disturbed land except water areas, rock areas such as those used for drainage control and wildlife enhancement, and surface areas of roads that are approved as a part of the postmining land use or uses shall be seeded or planted to achieve a permanent vegetative cover of the same seasonal variety native to the region that is capable of soil stabilization, self-regeneration, and plant succession. The vegetative cover shall be considered of the same seasonal variety if it consists of a mixture of species of equal or superior utility for the approved postmining land use, when compared with the utility of naturally occurring vegetation during each season of the year.

(4) If the postmining land use is cropland or pastureland, establishment of crops or pasture species normally grown in the mine vicinity and normal husbandry practices, and compliance with 405 KAR 18:180, Section 3(2) for cropland, will meet the requirements of subsection (1)(a) of this section.

(5)

(b) Except for cropland, selection of species, distribution patterns, seeding rates, and planting arrangements shall be approved case-by-case by the cabinet based upon this administrative regulation and TRM #21, "Plant Species, Distribution Patterns, Seeding Rates, and Planting Arrangements for Revegetation of Mined Lands", Kentucky Department of Fish and Wildlife Resources, Kentucky Department of Natural Resources, Division of Forestry, and Kentucky Department for Surface Mining Reclamation and Enforcement (January 6, 1995). This document is incorporated by reference. It may be reviewed, copied, or obtained at the Department for Natural Resources, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. Two (2) or more permanent legume species and two (2) or more permanent grasses shall be established on pastureland unless fewer species are approved by the cabinet based on a pasture management plan specifically tailored to the species mix.

(a) Discrete areas of 0.25 acre or less needing reseeding due to circumstances specified in subparagraphs 1 through 5 of this paragraph may be reseeded (including reliming, refertilizing, and remulching) without restarting the five (5) year liability period. The total acreage of these areas reseeded during the liability period shall not exceed three (3) percent of the acreage affected by surface operations and facilities. This paragraph shall only apply to:

Reseeding associated with repair of rills and gullies;
Reseeding areas where vegetation was disturbed by vehicular traffic not under the control of the permittee;
Reseeding areas where vegetation was disturbed by the installation or removal of oil and gas wells or utility lines;
Reseeding areas where there was poor seed germination of the initial seeding; and
Reseeding areas where vegetation was unavoidably disturbed in the course of conducting some other necessary reclamation activity.

(c) For cropland, the five (5) year liability period shall commence at the date of initial planting for the long-term intensive agricultural postmining land use;

(d) Irrigating, reliming, and refertilizing cropland and pastureland; reseeding cropland; and renovating pastureland by overseeding with legumes after Phase II bond release and after three (3) years from the initial seeding shall be considered normal husbandry practices and shall not restart the liability period, if the amount and frequency of these practices do not exceed normal agricultural practices used on unmined land within the region; and

Section 2. Use of Introduced Species. Introduced species may be substituted for native species only if approved by the cabinet under the following conditions:

(1) The species shall meet the applicable requirements of Section 1(2), (3), (4), and (5) of this administrative regulation.

(2)

(b) The species are necessary to achieve a quick, temporary, and stabilizing cover that aids in controlling erosion; and measures to establish permanent vegetation are included in the approved plans submitted under 405 KAR 8:040, Sections 24(4)(e) and 37.

Section 3. Timing. Seeding and planting of disturbed areas with permanent species shall be conducted no later than during the first normal period for favorable planting conditions after final preparation. The normal period for favorable planting shall be that planting time generally accepted locally, or as approved by the cabinet in the permit, for the type of plant materials selected. In accordance with Section 4 of this administrative regulation and 405 KAR 18:020, a disturbed area shall be seeded and mulched, as contemporaneously as practicable with the completion of backfilling and grading, to establish a temporary cover of small grains, grasses, or legumes until a permanent cover is established.

Section 4. Soil Amendments and Stabilization.

(1) Nutrients and soil amendments shall be applied to regraded areas in accordance with 405 KAR 18:050, Section 5.

(2) Suitable mulch or other soil stabilizing practices shall be used in addition to temporary cover on all regraded and topsoiled areas to control erosion, promote germination of seeds, and increase the moisture retention capacity of the soil. The cabinet may, on a case-by-case basis, waive the requirement for mulch if the cabinet finds, based on seasonal, soil, and slope factors, that the temporary vegetative cover will achieve proper erosion control until a permanent cover is established, except that no waiver shall be granted for any area having a slope greater than ten (10) percent.

(3) For areas within the area affected by surface operations and facilities to be used as cropland, the area shall be seeded or planted in order to maintain a vegetative cover effective in controlling erosion until the permittee chooses to grow crops.

Section 5. Success Standards for Ground Cover and Productivity.

(2)

(a) For an approved postmining land use of pastureland or cropland used for the production of hay (except prime farmland subject to 405 KAR 20:040);

Ground cover (percent) and productivity (tons of forage per acre) shall be at least ninety (90) percent of that of an approved reference area with a statistical confidence of ninety (90) percent; or
Ground cover shall be at least ninety (90) percent, and productivity shall be at least ninety (90) percent of the average yield for that hay in the county in the three (3) years prior to the year of measurement, as determined from "Kentucky Agricultural Statistics 1989-1990", "Kentucky Agricultural Statistics 1990-1991", "Kentucky Agricultural Statistics 1991-1992", "Kentucky Agricultural Statistics 1992-1993", and "Kentucky Agricultural Statistics 1993-1994", with a statistical confidence of ninety (90) percent.
"Kentucky Agricultural Statistics 1989-1990", "Kentucky Agricultural Statistics 1990-1991", "Kentucky Agricultural Statistics 1991-1992", "Kentucky Agricultural Statistics 1992-1993", and "Kentucky Agricultural Statistics 1993-1994", Kentucky Agricultural Statistics Service, Kentucky Department of Agriculture, and National Agricultural Statistics Service, United States Department of Agriculture, are incorporated by reference. These documents may be reviewed, copied, or obtained at the Department for National Resources, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. through 4:30 p.m.

(b) For areas within the area affected by surface operations and facilities where row crops will be planted (except prime farmland subject to 405 KAR 20:040):

Ground cover on any area not planted in row crops shall be at least ninety (90) percent with a statistical confidence of ninety (90) percent; and
Crop production shall be at least ninety (90) percent of that of an approved reference area or at least ninety (90) percent of the average yield for the crop in the county in the three (3) years prior to the year of measurement, as determined from "Kentucky Agricultural Statistics 1989-1990", "Kentucky Agricultural Statistics 1990-1991", "Kentucky Agricultural Statistics 1991-1992", "Kentucky Agricultural Statistics 1992-1993", and "Kentucky Agricultural Statistics 1993-1994", with a statistical confidence of ninety (90) percent.

(c) Forest land, or other areas within the area affected by surface operations and facilities where woody plants are stocked, shall have at least eighty (80) percent ground cover with a statistical confidence of ninety (90) percent, with no sign of significant erosion as set forth in 405 KAR 18:190, Section 4.

(2) For other postmining land uses:

(a) If fish and wildlife is the postmining land use, at least thirty (30) percent of the area shall be planted in multiple rows or plots of trees or shrubs.

(b) For subareas within the area affected by surface operations and facilities where trees or shrubs will be planted for the purpose of creating wildlife habitat (either for a fish and wildlife postmining land use or for fish and wildlife enhancement of other postmining land uses):

The stocking density of woody plants shall be at least 300 plants per acre, including volunteers. At least four (4) species of trees or shrubs listed in Appendix A of TRM #21, including at least one (1) hard mast species, one (1) conifer species, and two (2) soft mast or shrub species, shall be present and the stocking densities of these species shall be at least ninety (90) hard mast plants per acre, thirty (30) conifer plants per acre, and thirty (30) plants per acre for each of the two (2) soft mast or shrub species. Stocking densities shall be determined with a statistical confidence of ninety (90) percent.
In place of the requirements of subparagraph 1 of this paragraph the cabinet may, if requested by the applicant, approve stocking densities and woody plant species that are recommended by the Kentucky Department of Fish and Wildlife Resources for the permit area based upon site-specific considerations, except the stocking density of recommended species shall be at least 150 woody plants per acre, including volunteers. Stocking densities shall be determined with a statistical confidence of ninety (90) percent.
Tree and shrub species shall be selected, grouped, and distributed in a manner which optimizes edge effect, cover, and food for wildlife.
This amendment to this paragraph shall apply to original applications for permits and applications for permit amendments submitted after the effective date of this amendment. Permits issued or applications submitted prior to the effective date of this amendment may be revised to comply fully with this paragraph.

(c) For subareas within the area affected by surface operations and facilities where trees and shrubs will be planted for the purposes of creating recreation areas, green belts, fence rows, woodlots, or shelter belts for wildlife, or otherwise facilitating the postmining land use, the minimum stocking density shall be 300 woody plants per acre, unless a lesser density is approved by the cabinet based on site-specific considerations.

(3) For determining tree or shrub stocking success for areas within the area affected by surface operations and facilities to be stocked with woody plants, the following criteria shall apply:

(b) At Phase III bond release each tree or shrub counted shall have at least one-third (1/3) of its height in live crown;

(c) At Phase III bond release, only woody plants over one (1) foot in height shall be counted, and if multiple stems occur on the same plant, only the tallest stem shall be counted;

(d) Up to a cumulative twenty (20) percent of the woody plants needed to meet the approved stocking may be replanted during the liability period without restarting the liability period;

(e) At Phase III bond release, at least eighty (80) percent of the trees and shrubs used to determine success shall have been in place for three (3) years or more;

(f) Volunteer plants that meet all applicable requirements of this administrative regulation may be counted; and

(g) Portions of the site occupied by approved rock areas, brush piles, permanent impoundments, permanent roads, and surface drainageways shall be excluded from the stocking success determinations.

Section 7. Use of Reference Areas.

(1) Access.

(b) The agreement shall also specify that representatives of the cabinet and OSM have right of entry for the purpose of observing and measuring vegetation; and

(c) The agreement shall be effective until final bond release on the permit area, and a copy of the agreement shall be submitted in the permit application.

(2) Selection and management.

(a) Reference areas shall be:

Located in unmined areas;
Of sufficient area to allow meaningful vegetation measurements and comparisons with the area affected by surface operations and facilities;
As close to the area affected by surface operations and facilities as practicable;
Representative of the geology, soil, and slope of the area affected by surface operations and facilities, and have the same vegetative type or crops proposed for the postmining land use; and
Delineated on the vegetation map pursuant to 405 KAR 8:040, Section 19 or on another appropriate map.

(b) Management of the reference area shall be comparable to that which is required for the approved land use of the area affected by surface operations and facilities.

Section 8. Planting Report.

(a) Identification of the operation;

(b) The type of planting or seeding, including mixtures and amounts;

(d) The area of land planted or seeded; and

(e) Any other relevant information that the cabinet requires.

Section 9. Measurement of Vegetation Success.

(1) Ground cover and tree and shrub stocking shall be measured using the techniques outlined in TRM #19. TRM #19, "Field Sampling Techniques for Determining Ground Cover, Productivity, and Stocking Success of Reclaimed Surface Mined Lands", Department for Natural Resources, June 28, 1991, is incorporated by reference. It may be reviewed, copied, or obtained at the Department for Natural Resources, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

(2) Productivity for pastureland and cropland shall be measured by either:

(a) The techniques established in TRM #19 or alternatives approved under subsection (3) of this section;

(b) Harvesting and weighing the entire crop or forage by the permittee to determine total yield from the entire surface operations and facilities area or the entire portion designated as cropland (including prime farmland) or pastureland. Representative samples shall be taken to determine moisture content. Procedures for determining total yields under this option shall be approved in advance by the cabinet.

(3) The cabinet may approve alternative sampling and measurement techniques for productivity determinations in addition to those established by TRM #19 if:

(a) A complete description and justification of the methodology is submitted to the cabinet;

(b) The cabinet determines that use of the methodology would provide substantial benefit to the user in terms of cost, efficiency, or accuracy of measuring productivity;

(c) The methodology is determined by the cabinet to be procedurally and statistically valid and in compliance with this administrative regulation;

(d) Methodologies used for prime farmland shall be approved in consultation with SCS; and

(e) Alternative methodologies shall not be used unless they are approved by OSM.

(4) Measurements of ground cover, tree and shrub stocking, and productivity for Phase II and Phase III bond release shall be made by the cabinet, except the permittee may measure productivity.

(b) If the permittee measures productivity, he shall ensure that the measurements are made by qualified persons.

(c) The cabinet may make measurements or take other appropriate action as deemed necessary to verify measurements made by the permittee.

(5) All crop and forage yields shall be adjusted to standard moisture content: fifteen (15) percent for pasture and hay, fifteen and five-tenths (15.5) percent for corn, and twelve and five- tenths (12.5) percent for soybeans and wheat.

(6) Whether measured by the cabinet or the permittee, vegetation success shall be measured prior to the submittal of an application for a Phase II or Phase III bond release.

History

RELATES TO: KRS 350.093, 350.095, 350.100, 350.151, 350.405, 350.410, 350.420, 350.435, 350.465, 30 C.F.R. Parts 730-733, 735, 817.111-817.116, 917, 30 U.S.C. 1253, 1255, 1266
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100, 350.151, 350.465, 30 C.F.R. Parts 730-733, 735, 817.111-817.116, 917, 30 U.S.C. 1253, 1255, 1266
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth requirements for revegetation of areas affected by surface operations and facilities of underground mining activities, including requirements for temporary and permanent vegetative cover, use of introduced species, timing of revegetation, mulching and other soil stabilizing practices, standards for measuring revegetation success, and reporting requirements.
History: 405 KAR 018:200. 8 Ky.R. 1579; eff. 1-6-1983; 18 Ky.R. 442; 1125; 2248; eff. 12-17-1991; 21 Ky.R. 541; 1352; 2125; eff. 2-22-1995; TAm eff. 8-9-2007; TAm eff. 7-6-2016; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:210 Subsidence control {#sec-405-kar-18-210 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:210}

Section 1. General Requirements.

(1)

(a) The permittee shall adopt:

Measures consistent with known technology that:

a. Prevent subsidence from causing material damage to the extent technologically and economically feasible;

b. Maximize mine stability; and

c. Maintain the value and reasonably foreseeable use of surface land; or

Mining technology that provides for planned subsidence in a predictable and controlled manner.

(b) Nothing in 405 KAR Chapters 7 through 24 shall be construed to prohibit the standard method of room and pillar mining.

(2) If a permittee employs mining technology that provides for planned subsidence in a predictable and controlled manner, the permittee shall take necessary and prudent measures, consistent with the mining method employed, to minimize material damage to the extent technologically and economically feasible to noncommercial buildings and occupied residential dwellings and structures related thereto except that measures required to minimize material damage to these structures are not required if:

(a) The permittee has the written consent of the owners; or

(b) Unless the anticipated damage would constitute a threat to health or safety, the costs of the measures exceed the anticipated costs of repair.

(3) The permittee shall comply with all provisions of the approved subsidence control plan prepared pursuant to 405 KAR 8:040, Section 26.

Section 2. Public Notice.

(1) The permittee shall mail a notification to all owners and occupants of surface property and structures within the area above the underground workings. Each owner or occupant shall be notified by mail at least ninety (90) days prior to mining beneath his property or structure.

(2) If the notice has been properly given, and subsequent emergencies or other unforeseen conditions in underground mining necessitate mining beneath the property or structure sooner than ninety (90) days after the notice, the permittee shall immediately provide additional written notice to the owner or occupant that the mining will be conducted, but in no case shall mining be conducted beneath the property or structure sooner than thirty (30) days after the additional notice is given unless the owner has expressly waived the thirty (30) day period in writing. The waiver shall be granted after the initial notice required under subsection (1) of this section has been given, and shall be separate from any other waiver, lease, deed, easement, agreement, or other conveyance of property or rights.

(3) The notification shall include, at a minimum:

(a) Identification of specific areas in which mining will take place;

(b) Dates that specific areas are anticipated to be undermined; and

Section 3. Repair of Damage.

(1) Repair of damage to surface lands. The permittee shall correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible, by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses that it was capable of supporting before subsidence damage.

(2) Repair or compensation for damage to noncommercial buildings and occupied residential dwellings and related structures existing at the time of mining. The permittee shall promptly repair, or compensate the owner for, material damage resulting from subsidence caused to any noncommercial building or occupied residential dwelling or structure related thereto that existed at the time of mining. If repair is selected, the permittee shall fully rehabilitate, restore or replace the damaged structure. If compensation is selected, the permittee shall compensate the owner of the damaged structure for the full amount of the decrease in value resulting from the subsidence related damage. The permittee may provide compensation by the purchase before mining of a noncancellable, premium prepaid insurance policy.

(3) Repair or compensation for damage to other structures. The permittee shall, to the extent required under applicable provisions of state law, either correct material damage resulting from subsidence caused to any structures or facilities not protected by subsection (2) of this section by repairing the damage or compensate the owner of the structures or facilities for the full amount of the decrease in value resulting from the subsidence. Repair of damage shall include rehabilitation, restoration, or replacement of damaged structures or facilities. Compensation may be accomplished by the purchase before mining of a noncancellable, premium prepaid insurance policy.

(4) Information to be considered in determination of causation. In any determination whether damage to protected structures was caused by subsidence from underground mining, all relevant and reasonably available information shall be considered by the cabinet.

(5) Adjustment of bond amount for subsidence damage.

(a) If subsidence related material damage to land, structures or facilities protected under subsections (1) through (3) of this section occurs, the cabinet shall require the permittee to obtain additional performance bond in the amount of the estimated cost of the repairs if the permittee will be repairing, or in the amount of the decrease in value if the permittee will be compensating the owner, until the repair or compensation is completed. If repair or compensation is completed within ninety (90) days of the occurrence of damage, additional bond shall not be required. The cabinet may extend the ninety (90) day time frame, but not to exceed one (1) year, if the permittee demonstrates and the cabinet finds in writing that subsidence is not complete, or that not all probable subsidence related material damage has occurred to lands or protected structures, and that therefore it would be unreasonable to complete within ninety (90) days the repair of the subsidence related material damage to lands or protected structures.

(b) If the permittee demonstrates that his liability insurance policy under 405 KAR 10:030, Section 4, covers the subsidence damage, the additional bond amount required under paragraph (a) of this subsection may be reduced by the amount of the insurance coverage applicable to the subsidence damage. The existence of applicable insurance coverage shall not prevent forfeiture of a performance bond under 405 KAR 10:050.

Section 4. Buffer Zones.

(1) Underground mining activities shall not be conducted beneath or adjacent to public buildings and facilities; churches, schools, and hospitals; or impoundments with a storage capacity of twenty (20) acre-feet or more or bodies of water with a volume of twenty (20) acre-feet or more, unless the subsidence control plan demonstrates that subsidence will not cause material damage to, or reduce the reasonably foreseeable use of, the features or facilities. If the cabinet determines that it is necessary in order to minimize the potential for material damage to the features or facilities previously described in this subsection or to any aquifer or body of water that serves as a significant water source for any public water supply system, it may limit the percentage of coal extracted under or adjacent to the feature, facility, aquifer, or body of water.

(2) If subsidence causes material damage to any of the features or facilities covered by subsection (1) of this section, the cabinet may suspend mining under or adjacent to the features or facilities until the subsidence control plan is modified to ensure prevention of further material damage to the features or facilities.

(3) The cabinet shall suspend underground mining activities under urbanized areas, cities, towns, and communities, and adjacent to industrial or commercial buildings, major impoundments, or perennial streams, if imminent danger is found to inhabitants of the urbanized areas, cities, towns, or communities.

Section 5. Annual Plan of Underground Workings.

(1) Within forty-five (45) days after the first day of January following each year in which underground mining activities are conducted, and at any other time upon written request by the cabinet, the permittee shall submit two (2) copies of a detailed plan of the existing and proposed underground workings. The detailed plan shall include maps and descriptions, as appropriate, of significant features of the underground mine, including the size, configuration, and approximate location of pillars and entries, extraction ratios, measures taken to prevent or minimize subsidence and related damage, areas of full extraction, the boundaries of the permit area, and other information required by the cabinet.

(2) Copies of the maps required to be filed with the Kentucky Office of Mine Safety and Licensing under KRS 352.450 and 352.480 may be submitted to the cabinet to fulfill the requirements of this section, if the maps include all the information required under subsection (1) of this section.

History

RELATES TO: KRS 350.020, 350.028, 350.151, 350.465, 30 C.F.R. Parts 730-733, 735, 784.20(a)(3), 817.121-.122, 917, 30 U.S.C. 1253, 1255, 1266, 1309a
STATUTORY AUTHORITY: KRS 350.028, 350.151, 350.465, 30 C.F.R. Parts 730-733, 735, 817.121-.122, 917, 30 U.S.C. 1253, 1255, 1266, 1309a
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes requirements for prevention or control of subsidence and for correction of subsidence damage to surface lands and structures. This administrative regulation differs from 30 CFR 817.121 -.122. Section 3(2) of this administrative regulation, regarding repair or compensation for subsidence damage to noncommercial buildings and occupied residential dwellings and related structures existing at the time of mining, is not limited to damage resulting from underground mining activities conducted after October 24, 1992, the effective date of 30 USC 1309a as created by PL 102-486, the Energy Policy Act of 1992. The federal counterpart regulation at 30 CFR 817.121(c)(2) is so limited. Section 3(2) of this administrative regulation is not limited to subsidence damage resulting from underground mining activities conducted after October 24, 1992 because that would retroactively remove protection currently existing under this administrative regulation and applicable state law. Section 3(5)(c) of this administrative regulation allows the additional performance bond amount for subsidence damage to be released or returned promptly after the cabinet determines the permittee has satisfactorily completed the required repair or compensation for subsidence damage. The federal counterpart at 30 CFR 817.121(c)(5) does not include any provision for prompt release of the additional performance bond amount after the subsidence damage is corrected. The purpose of the additional bond is to guarantee that the cabinet will have the money to repair or compensate if the permittee fails to do so. Since the repair or compensation guaranteed by the additional bond amount must be satisfactorily completed before any release or return of the bond can take place, the purpose of the bond will have been fulfilled and thus the cabinet believes the prompt release or return is not inconsistent with the federal regulations. Section 5(1) of this administrative regulation, regarding permittee submission of an annual plan of underground workings, does not provide for confidentiality of the annual plan. The federal counterpart at 30 CFR 817.121(g) provides that information submitted with the plan may be held as confidential in accordance with 30 CFR 773.13(d) if requested by the permittee. The cabinet's counterpart to 30 CFR 773.13(d) is 405 KAR 8:010, Section 12. The cabinet believes it is unlikely that any information submitted in the annual plan of underground workings will qualify for confidentiality under 405 KAR 8:010, Section 12, and that it would be misleading to mention confidentiality in connection with the plan, thereby creating the false impression that the plan generally would be held confidential on request.
History: 405 KAR 018:210. 8 Ky.R. 1582; eff. 1-6-1983; 24 Ky.R. 747; 2676; eff. 6-10-1998; 2563; 3124; 3241; eff. 6-8-2001; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:220 Postmining land use capability {#sec-405-kar-18-220 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:220}

Section 1. General.

(1) Prior to the final release of the performance bond, affected areas shall be restored in a timely manner:

(a) To conditions capable of supporting the uses which the areas were capable of supporting before any mining; or

(b) To conditions capable of supporting higher or better alternative uses as approved by the cabinet under Section 4 of this administrative regulation.

(2) The following land uses shall apply under this administrative regulation:

(a) Cropland;

(b) Pastureland;

(d) Residential;

(e) Industrial/commercial;

(f) Recreation;

(g) Fish and wildlife;

(h) Developed water resources;

(i) Undeveloped land or no current use or land management.

Section 2. Premining and Postmining Land Use.

(1) The premining uses of land to which the postmining land use is compared shall be those uses which the land previously supported if the land has not been previously mined. The premining land use for a specific area shall be determined based on the prevalent or dominant use, vegetative types, and features present at that area; except that more than one (1) land use can exist within an area to be affected by surface operations and facilities.

(2)

(b) If the land cannot be reclaimed to the land use that existed prior to any mining because of the previously mined condition, the postmining land use shall be judged on the basis of the highest and best use that can be achieved which is compatible with surrounding areas and does not require the disturbance of areas previously unaffected by mining.

(3) Prime farmland that has been historically used for cropland that is not exempted by 405 KAR 8:050, Section 3 shall have a postmining land use of cropland.

(4)

(a) The land use category of "undeveloped land or no current use or land management" shall not be used to designate a postmining land use.

(b) If the premining land use is "undeveloped land or no current use or land management", and if consistent with subsection (2) of this section and Section 3 of this administrative regulation:

If trees are dominant on the area prior to mining, the area may be designated as forestland for the postmining land use without compliance with the procedures and criteria for an alternative postmining land use.
For all other cases, the area may be designated as fish and wildlife for the postmining land use without compliance with the procedures and criteria for an alternative postmining land use.

(5) Slope limitations for specific postmining land uses. The limitations in this subsection shall apply to permits issued after November 26, 1991. Portions of the area affected by surface operations and facilities with slopes greater than twenty (20) percent (eleven and three-tenths (11.3) degrees) shall not be designated as cropland, including hay production.

(6) Steep slope operations with variances from approximate original contour shall comply with the requirements of 405 KAR 20:060, Section 3(2).

Section 4. Alternative Postmining Land Use. Higher or better alternative postmining land uses shall be approved by the cabinet if the following criteria are met:

(1) There is a reasonable likelihood that the land use will be achieved;

(2) The use will not be impractical or unreasonable;

(4) The proposed use will not present an actual or probable hazard to public health or safety or threat of water pollution or diminution of water availability;

(5) The proposed use will not involve unreasonable delays in implementation; and

(6) The proposed use will not cause or contribute to violation of federal, state, or local law.

History

RELATES TO: KRS 350.093, 350.095, 350.100, 350.151, 350.410, 350.450, 350.465, 30 C.F.R. Parts 730-733, Part 735, 817.133, Part 917, 30 U.S.C. 1253, 1255, 1266
STATUTORY AUTHORITY: KRS 350.020, 350.028(1), (5), 350.151, 350.465, 30 C.F.R. Parts 730-733, Part 735, 817.133, Part 917, 30 U.S.C. 1253, 1255, 1266
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.465 requires the Energy and Environment Cabinet to promulgate administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation establishes requirements for restoring surface land use capability after completion of underground mining activities, and specific criteria for approval of postmining land uses that differ from the premining land use.
History: 8 Ky.R. 1583; eff. 1-6-1983; 18 Ky.R. 449; 1880; 2254; eff. 11-26-1991; Crt eff. 7-3-2018; 46 Ky.R. 1356, 2277; eff. 5-5-2020.

405 KAR 18:230 Roads {#sec-405-kar-18-230 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:230}

Section 1. General.

(4) All roads shall be removed and the affected land regraded and revegetated in accordance with the requirements of Section 7 of this administrative regulation unless:

(a) Retention of the road is approved as part of the approved postmining land use or as being necessary to control erosion adequately;

(b) The necessary maintenance is assured; and

Section 2. Location.

(1) Roads shall be located, insofar as possible, on ridges or on the most stable available slopes to minimize erosion.

(2) No part of any road shall be located in the channel of an intermittent or perennial stream unless specifically approved by the cabinet.

(1) The roadway width shall be appropriate for the anticipated volume of traffic and the size, weight, and speed of vehicles to be used.

(2) Vertical alinement. Except where lesser grades are necessary to control site-specific conditions, maximum road grades shall be as follows:

(a) The maximum grade shall not exceed lv:6.5h (fifteen (15) percent).

(b) There shall be not more than 300 feet of grade exceeding ten (10) percent within any consecutive 1,000 feet of road.

(4) Temporary erosion control measures shall be implemented during construction to minimize sedimentation and erosion until permanent control measures can be established.

(5) Excess or unsuitable material from excavations shall be disposed of in accordance with 405 KAR 18:060, Section 4; 405 KAR 18:140, Section 1; 405 KAR 18:190, Section 3.

(6) Vegetation shall not be cleared for more than the width necessary for road and associated ditch construction, to serve traffic needs and for utilities.

(7) Road cuts.

(b) All cut slopes except solid rock cut slopes shall be revegetated as soon as possible to minimize erosion.

(8) Road embankments. Embankment sections shall be constructed in accordance with the following provisions:

(e) The minimum safety factor for all embankments shall be 1.25, or such higher factor as the cabinet may specify.

(f) The road surface shall be sloped to prevent ponding of water on the surface.

(i) All embankment slopes shall be revegetated as soon as possible to minimize erosion.

Section 4. Drainage.

(2) Natural drainage. Natural channel drainageways shall not be altered or relocated for road construction without the prior approval of the cabinet in accordance with 405 KAR 18:080. The cabinet may approve alterations and relocations only if the natural channel drainage is not blocked and there is no adverse impact on adjoining landowners.

(4) Ditches.

(b) Trash racks and debris basins shall be installed in drainage ditches wherever debris from the drainage area is likely to impair the functions of drainage and sediment control structures.

(5) Culverts and bridges.

(a)

Culverts shall pass the ten (10) year, twenty-four (24) hour precipitation event without causing overtopping of the road and without causing adverse effects upon upstream properties outside the permit area. Bridges and approach fills shall pass the 100 year flood event or where appropriate the 100 year, twenty-four (24) hour precipitation event, or a larger event as specified by the cabinet, without causing increases in flow depths which would adversely affect upstream properties outside the permit area.
Drainage pipes and culverts shall be constructed to avoid plugging or collapse and erosion at inlets and outlets.
All culverts shall be covered by compacted fill to a minimum depth of one (1) foot.
Culverts shall be designed, constructed, and maintained to sustain the structural load from the fill and the weight of vehicles to be used.

(b) Culverts for road-surface drainage only shall be constructed in accordance with the following:

Unless otherwise authorized or required under subparagraphs 2 or 3 of this paragraph, culverts shall be spaced as follows: spacing shall not exceed 1,000 feet on grades of zero to three (3) percent; spacing shall not exceed 800 feet on grades of three (3) to six (6) percent; spacing shall not exceed 500 feet on grades of six (6) to ten (10) percent; spacing shall not exceed 300 feet on grades of ten (10) percent or greater.
Culverts at closer intervals than the maximum in subparagraph 1 of this paragraph shall be installed if required by the cabinet as appropriate for the erosive properties of the soil or to accommodate flow from small intersecting drainages.
Culverts may be constructed at greater intervals than the maximum indicated in subparagraph 1 of this paragraph if authorized by the cabinet upon a finding that greater spacing will not increase erosion.
The inlet end shall be protected by a rock headwall or other protection approved by the cabinet as adequate protection against erosion at the inlet. The water shall be discharged below the toe of the fill through conduits or in riprapped channels and shall not be discharged onto the fill.

Section 5. Surfacing.

(2) Acid- or toxic-forming substances shall not be used in road surfacing.

Section 6. Maintenance.

(1) Roads shall be maintained in such a manner that the required or approved design standards are met throughout the life of the road.

Section 7. Restoration.

(a) The road shall be closed to vehicular traffic;

(b) The natural-drainage patterns shall be restored;

(d) Roadbeds shall be ripped, plowed, and scarified;

(e) Fill slopes shall be rounded or reduced and shaped to conform the site to adjacent terrain and to meet natural-drainage restoration standards;

(f) Cut slopes shall be shaped to blend with the natural contour;

(g) Cross drains, dikes, and water bars shall be constructed to minimize erosion;

(h) Terraces shall be constructed as necessary to prevent excessive erosion and to provide long-term stability in cut-and-fill slopes; and

(i) Road surfaces shall be topsoiled in accordance with 405 KAR 18:050, Section 4(2) and revegetated in accordance with 405 KAR 18:200, Sections 1 through 6.

(2) Unless otherwise authorized by the cabinet, all road surfacing materials shall be removed and disposed of under 405 KAR 18:150, Section 1.

History

RELATES TO: KRS 350.020, 350.028, 350.085, 350.151, 350.465
STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation sets forth requirements for the location, design, construction, maintenance, and removal or permanent retention of roads and associated drainage structures.
History: 405 KAR 018:230. 8 Ky.R. 1584; 9 Ky.R. 718; eff. 1-6-1983; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 18:260 Other facilities {#sec-405-kar-18-260 omnilex-key=us-ky-regs-official--title-405--405 KAR 18:260}

Section 1. Other Transportation Facilities. Railroad loops, spurs, sidings, surface conveyor systems, chutes, aerial tramways, or other transport facilities within the permit area shall be designed, constructed, and maintained, and the area restored to:

(1) Prevent, to the extent possible using the best technology currently available:

(a) Damage to fish, wildlife, and related environmental values; and

(b) Additional contributions of suspended solids to stream flow or run off outside the permit area. Any such contribution shall not be in excess of limitations of state or federal law.

(2) Control and minimize diminution or degradation of water quality and quantity;

(3) Control and minimize erosion and siltation;

(4) Control and minimize air pollution; and

(5) Prevent damage to public or private property.

Section 2. Support Facilities and Utility Installations.

(1) Support facilities required for, or used incidentally to, the operation of the underground mine, including mine buildings, coal-loading facilities at or near the mine site, coal storage facilities, equipment-storage facilities, fan buildings, hoist buildings, preparation plants, sheds, shops, and other buildings, shall be designed, constructed, and located to prevent or control erosion and siltation, water pollution, and damage to public or private property. Support facilities shall be designed, constructed, maintained, and used in a manner that shall prevent, to the extent possible, using the best technology currently available:

(a) Damage to fish, wildlife, and related environmental values; and

(b) Additional contributions of suspended solids to stream flow and run off outside the permit area. Contributions shall not be in excess of limitations of state or federal law.

(2) All underground mining activities shall be conducted in a manner that minimizes damage, destruction, or disruption of services provided by oil, gas, and water wells; oil, gas, and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines that pass over, under, or through the permit area or shadow area, unless otherwise approved by the owner of those facilities and the cabinet.

History

RELATES TO: KRS 350.020, 350.028, 350.151, 350.465
STATUTORY AUTHORITY: KRS 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during underground mining activities and for restoration and reclamation of surface areas affected by underground mining activities. This administrative regulation establishes general requirements for the design, construction, and maintenance of support facilities and transportation facilities other than roads, and the restoration of areas affected by these facilities.
History: 405 KAR 018; 260. 8 Ky.R. 1586; eff. 1-6-1983; 44 Ky.R. 655, 1327; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

Chapter 20 Special Performance Standards

405 KAR 20:001 Definitions for 405 KAR Chapter 20 {#sec-405-kar-20-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 20:001}

Section 1. Definitions.

(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;

(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;

(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:

Was designated as a public road pursuant to the laws of the jurisdiction in which it is located;
Is maintained with public funds and constructed in a manner similar to other public roads of the same classification within the jurisdiction; and
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.

(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.

(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:

(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.

(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:

The application; or
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:

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
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.

(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":

(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

(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:

(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:

(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.

History

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
STATUTORY AUTHORITY: KRS 350.028, 350.465, 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.
History: 405 KAR 020:001. 18 Ky.R. 2490; 2853; eff. 4-3-1992; TAm eff. 8-9-2007; 44 Ky.R. 656, 1017, 1327; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 20:010 Coal exploration {#sec-405-kar-20-010 omnilex-key=us-ky-regs-official--title-405--405 KAR 20:010}

Section 1. General Responsibility of Persons Conducting Coal Exploration. Each person who conducts coal exploration which substantially disturbs the natural land surface shall comply with the provisions of Section 3 of this administrative regulation.

Section 2. Required Documents. Each person who conducts coal exploration which removes more than twenty-five (25) tons of coal or which is located in an area designated unsuitable for mining pursuant to 405 KAR Chapter 24 shall, while in the exploration area, possess written approval of the cabinet for the activities granted under 405 KAR 8:020, Section 2. The written approval shall be available for review by the authorized representative of the cabinet or OSM upon request.

Section 3. Performance Standards for Coal Exploration. The performance standards in this section are applicable to coal exploration which substantially disturbs land surface. For any cross-references to the 405 KAR Chapter 8 permitting requirements made within those administrative regulations of 405 KAR Chapter 16 that are referenced in this section, the permitting requirements shall only apply to the extent set forth in 405 KAR 8:020 and this administrative regulation.

(1) Habitats of unique or unusually high value for fish, wildlife, and other related environmental values and critical habitats of threatened or endangered species identified pursuant to the Endangered Species Act of 1973 (16 USC 1531 et seq.) shall not be disturbed during coal exploration.

(2) The person who conducts coal exploration shall, to the extent practicable, measure important environmental characteristics of the exploration area during the operations, to minimize environmental damage to the area and to provide supportive information for any permit application that person may submit under 405 KAR Chapter 8.

(3)

(a) Vehicular travel on other than established graded and surfaced roads shall be limited by the person who conducts coal exploration to that absolutely necessary to conduct the exploration. Travel shall be confined to graded and surfaced roads during periods when excessive damage to vegetation or rutting of the land surface could result.

(b) Any new road in the exploration area shall comply with the provisions of 405 KAR 16:220.

All applicable federal, state, and local requirements shall be met.
If the road is significantly altered for exploration, including, but not limited to, change of grade, widening, or change of route, or if use of the road for exploration contributes additional suspended solids to stream flow or run-off, then subsection (7) of this section shall apply to all areas of the road which are altered or which result in the additional contributions of suspended solids.
If the road is significantly altered for exploration activities and will remain as a permanent road after exploration activities are completed, the person conducting exploration shall ensure that the requirements of 405 KAR 16:220 are met for the design, construction, alteration, and maintenance of the road.

(d) Promptly after exploration activities are completed, existing roads used during exploration shall be reclaimed either:

To a condition equal to or better than their preexploration condition; or
To the condition required for permanent roads under 405 KAR 16:220.

(4) If excavations, artificial flat areas, or embankments are created during exploration, these areas shall be returned to the approximate original contour promptly after these features are no longer needed for coal exploration.

(5) Topsoil shall be removed, stored, and redistributed on disturbed areas as necessary to assure successful revegetation or as required by the cabinet.

(6) All areas disturbed by coal exploration activities shall be revegetated in a manner that encourages prompt revegetation and recovery of a diverse, effective, and permanent vegetative cover. Revegetation shall be accomplished in accordance with the following:

(a) All areas disturbed by coal exploration activities shall be seeded or planted to the same seasonal variety native to the areas disturbed. If the preexploration land use was intensive agriculture, planting of the crops normally grown shall meet the requirements of this paragraph.

(b) The vegetative cover shall be capable of stabilizing the soil surface from erosion.

(7) Diversions of overland flows and ephemeral, perennial, or intermittent streams shall be made in accordance with 405 KAR 16:080.

(8) Each exploration hole, borehole, well, or other exposed underground opening created during exploration shall meet the requirements of 405 KAR 16:040.

(9) All facilities and equipment shall be removed from the exploration area promptly when they are no longer needed for exploration, except for those facilities and equipment that may remain to:

(a) Provide additional environmental quality data;

(b) Reduce or control the on- and off-site effects of the exploration activities; or

(c) Facilitate future surface mining and reclamation operations by the person conducting the exploration, under an approved permit.

(10) Coal exploration shall be conducted in a manner which minimizes disturbance of the prevailing hydrologic balance in accordance with 405 KAR 16:060 through 405 KAR 16:110. The cabinet may specify additional measures which shall be adopted by the person engaged in coal exploration.

(11) Toxic- or acid-forming materials shall be handled and disposed of in accordance with 405 KAR 16:060, Section 4 and 405 KAR 16:190, Section 3. If specified by the cabinet, additional measures shall be adopted by the person engaged in coal exploration.

Section 4. Requirements for a Permit. Except as provided in 405 KAR 8:020, Section 4(2), any person who extracts coal for commercial use or sale during coal exploration operations that are subject to 405 KAR 8:020, Section 2 shall first obtain a permit to conduct surface coal mining operations under 405 KAR 8:010.

History

RELATES TO: KRS 350.057, 350.465, 30 C.F.R. Parts 730-733, 735, 815, 917, 30 U.S.C. 1253, 1255, 1262
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.057, 350.465, 30 C.F.R. Parts 730-733, 735, 815, 917, 30 U.S.C. 1253, 1255, 1262
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to regulate coal exploration operations which substantially disturb the natural land surface. This administrative regulation sets forth the performance standards applicable to coal exploration operations which substantially disturb the land surface.
History: 405 KAR 020:010. 8 Ky.R. 1587; eff. 1-6-1983; 15 Ky.R. 502; eff. 12-13-1988; 18 Ky.R. 452; eff. 12-17-1991; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 20:030 Auger mining {#sec-405-kar-20-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 20:030}

Section 1. Additional Performance Standards.

(1) All auger mining operations shall be conducted so as to maximize the utilization and conservation of coal in accordance with 405 KAR 16:010 and shall be planned and conducted to maximize recoverability of mineral reserves remaining after the mining and reclamation activities are completed. Each permittee who conducts auger mining operations shall leave areas of undisturbed coal to provide access for removal of coal reserves by future underground mining activities unless the cabinet determines that the coal reserves have been depleted or are limited in thickness or extent to the point that it will not be practicable to recover the remaining coal reserves. The cabinet shall make such a determination only upon presentation of appropriate technical evidence by the permittee. Except where the applicant designates specific areas where the applicant plans to develop future entryways for underground mining, undisturbed areas of coal shall be left in unmined sections which:

(a) Are a minimum of 250 feet wide at any point between each group of auger openings to the full depth of the auger hole;

(b) Are no more than 2,500 feet apart measured from the center of one (1) section to the center of the next section unless a greater distance is set forth in the permit application under 405 KAR 8:050, Section 2; and

(c) For multiple seam mining, have a width of at least 250 feet plus fifty (50) feet for each subjacent workable coal seam. The centers of all unmined sections shall be aligned vertically.

(2) No auger hole shall be made closer than 500 feet in horizontal distance to any abandoned or active underground mine workings except as approved in accordance with 405 KAR 16:010, Section 3.

(3) In order to prevent pollution of surface and groundwater and to reduce fire hazards, each auger hole, except as provided in subsection (4) of this section, shall be plugged so as to prevent the discharge of water from the hole and access of air to the coal as follows:

(a) Each auger hole discharging water containing toxic-forming or acid-forming material shall be plugged within seventy-two (72) hours after completion by backfilling and compacting noncombustible and impervious material into the hole to a depth sufficient to form a watertight seal. All discharges shall be treated as necessary to meet the requirements of 405 KAR 16:070, Section 1(1)(g) until the hole is properly sealed; and

(b) Each auger hole not discharging water containing acid-forming or toxic-forming material shall be sealed as in paragraph (a) of this subsection to close the opening within thirty (30) days following completion.

(4) An auger hole need not be plugged if the cabinet finds that:

(a) Impoundment of the water which would result from plugging the hole may create a hazard to the environment or public health or safety;

(b) Drainage from the auger hole will not pose a threat of pollution to surface water and will comply with the requirements of 405 KAR 16:060, Section 1 and 405 KAR 16:070; and

(5) The cabinet shall prohibit auger mining if it determines that:

(a) Adverse water quality impacts cannot be prevented or corrected;

(b) Fill stability cannot be achieved; or

(c) The prohibition is necessary to maximize the utilization, recoverability, or conservation of the solid fuel resources.

(6) Auger mining shall comply with the performance standards for subsidence at 405 KAR 18:210.

History

RELATES TO: KRS 350.010, 350.028, 350.090, 350.410, 350.420, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate environmental protection performance standards for surface coal mining operations, including auger mining. This administrative regulation sets forth additional performance standards for auger mining. This administrative regulation specifies certain distances between auger holes, criteria for plugging auger holes, and situations in which an auger hole need not be plugged.
History: 405 KAR 020:030. 8 Ky.R. 1589; eff. 1-6-1983; 11 Ky.R. 1865; eff. 8-13-1985; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 20:040 Prime farmland {#sec-405-kar-20-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 20:040}

Section 1. Scope and Purpose. This administrative regulation establishes special environmental protection performance, reclamation, and design standards for surface coal mining and reclamation operations on prime farmland.

Section 2. Responsibilities.

(1) 30 C.F.R. Part 823 requires the U.S. Soil Conservation Service (SCS) within each state to establish specifications for prime farmland soil removal, storage, replacement, and reconstruction. The Kentucky specifications are established in "Soil Conservation Service, Kentucky Standard and Specifications for Land Restoration, Currently Mined Prime Farmland."

(2) 30 C.F.R. Part 823 requires the cabinet to use the soil-reconstruction specifications established by the SCS, as referenced in subsection (1) of this section, to carry out its responsibilities.

Section 3. Applicability. The requirements of this administrative regulation, including the SCS prime farmland specifications of Section 2 of this administrative regulation, shall apply to prime farmland affected by surface coal mining and reclamation operations except that which has been excluded in accordance with 405 KAR 8:050, Section 3(1).

Section 4. Soil Removal and Stockpiling.

(1) Prime farmland soils shall be removed from the areas to be disturbed before drilling, blasting, or mining.

(2) The minimum depth of soil and soil materials to be removed and stored for use in the reconstruction of prime farmland shall be sufficient to meet the requirements of Section 5(1) of this administrative regulation.

(3) Soil removal and stockpiling operations on prime farmland shall be conducted to:

(a) Separately remove the topsoil, or remove other suitable soil materials where the other soil materials will create a final soil having a greater productive capacity than that which exists prior to mining. If not utilized immediately, this material shall be placed in stockpiles separate from the spoil and all other excavated materials; and

(b)

Except as provided by subparagraph 2 of this paragraph, separately remove the B or C horizon or other suitable soil material to provide the thickness of suitable soil required by Section 5(1) of this administrative regulation. If not utilized immediately, each horizon or other material shall be stockpiled separately from the spoil and all other excavated materials.
If combinations of the soil materials created by mixing have been shown to be equally or more favorable for plant growth than the B horizon, separate handling shall not be required.

(4) Stockpiles shall be placed within the permit area where they will not be disturbed or be subject to excessive erosion. If left in place for more than thirty (30) days, stockpiles shall meet the requirements of 405 KAR 16:050 or 18:050.

Section 5. Soil Replacement.

(1) The minimum depth of soil and substitute soil material to be reconstructed shall be forty-eight (48) inches, or a lesser depth equal to the depth to a subsurface horizon in the natural soil that inhibits or prevents root penetration, or a greater depth if determined necessary to restore the original soil productive capacity. The determination of whether a horizon inhibits or prevents root penetration shall be in accordance with the SCS specifications under Section 2 of this administrative regulation.

(2) The operator shall replace and regrade the soil horizons or other root-zone material with proper compaction and uniform depth.

(3) The operator shall replace the B horizon, C horizon, or other suitable material specified in Section 4(3)(b) of this administrative regulation to the thickness needed to meet the requirements of subsection (1) of this section.

(4) The operator shall replace the topsoil or other suitable soil materials specified in Section 4(3)(a) of this administrative regulation as the final surface soil layer. This surface soil layer shall equal or exceed the thickness of the original surface soil layer, as determined by the soil survey.

Section 6. Revegetation and Restoration of Soil Productivity.

(1) Revegetation and demonstration of successful restoration of soil productivity shall comply with the requirements established in "Kentucky Prime Farmland Revegetation and Crop Production Restoration After Mining," Kentucky Department for Natural Resources in consultation with the U.S. Soil Conservation Service.

(2) Data on crop yields from restored prime farmland soils shall be verified by the cabinet. The permittee shall notify the appropriate regional office of the department of harvest dates in order to provide the opportunity for cabinet personnel to monitor yield measurements. This notification shall be in writing at least thirty (30) days prior to anticipated harvest dates and shall be followed up by telephone prior to actual harvest dates.

(3) This section shall also apply to prime farmland mined under the interim regulatory program under 30 C.F.R. Part 715.

Section 7. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Soil Conservation Service, Kentucky Standard and Specifications for Land Restoration, Currently Mined Prime Farmland", January 1986;

(b) "Kentucky Prime Farmland Revegetation and Crop Production Restoration after Mining", June 1985.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Mine Permits, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

History

RELATES TO: KRS 350.100, 350.405, 350.415, 350.450, 350.465, 30 C.F.R. Parts 715, 823
STATUTORY AUTHORITY: KRS 350.020, 350.028(1), (5), 350.100, 350.450, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.020, 350.028(1), (5), and 350.450 require the Energy and Environment Cabinet to promulgate environmental protection performance standards specifically including special requirements for the protection of prime farmland. This administrative regulation establishes special requirements for the removal, stockpiling, replacement, and revegetation of prime farmland.
History: 8 Ky.R. 1590; eff. 1-6-1983; 12 Ky.R. 955; 1336; eff. 2-4-1986; TAm eff. 8-9-2007; Crt eff. 7-3-2018; 46 Ky.R.1358; 2277; eff. 5-5-2020.

405 KAR 20:050 Mountaintop removal {#sec-405-kar-20-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 20:050}

Section 1. Performance Standards. Surface coal mining activities may be conducted under a variance from the requirement of 405 KAR Chapters 16 through 20 for restoring affected areas to their approximate original contour, if:

(1) The cabinet grants the variance under a permit, in accordance with 405 KAR 8:050;

(2) The activities involve the mining of an entire coal seam running through the upper fraction of a mountain, ridge, or hill, by removing all of the overburden and creating a level plateau or gently rolling contour with no highwalls remaining;

(3) An industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use is proposed and approved for the affected land;

(4) The alternative land-use requirements of 405 KAR 16:210 are met;

(5) All applicable requirements of 405 KAR Chapters 7 through 24, other than the requirement to restore affected areas to their approximate original contour, are met;

(6) An outcrop barrier of sufficient width, consisting of the toe of the lowest coal seam, and its associated overburden, are retained to prevent slides and erosion, except that the cabinet may permit an exemption to the retention of the coal barrier requirement if the following conditions are satisfied:

(a) The proposed mine site was mined prior to May 3, 1978, and the toe of the lowest seam has been removed; or

(b) A coal barrier adjacent to a head-of-hollow fill may be removed after the elevation of a head-of-hollow fill attains the elevation of the coal barrier if the head-of-hollow fill provides the stability otherwise ensured by the retention of a coal barrier;

(7) The final graded slopes on the mined area are less than lv:5h, so as to create a level plateau or gently rolling configuration, and the outslopes of the plateau do not exceed lv:2h except where engineering data substantiates, and the cabinet finds, in writing, and includes in the permit under 405 KAR 8:050, that a minimum static safety factor of one and five-tenths (1.5) will be attained;

(8) The resulting level or gently rolling contour is graded to drain inward from the outslope, except at specified points where it drains over the outslope in stable and protected channels. The drainage shall not be through or over a valley or head-of-hollow fill;

(9) Natural watercourses below the lowest coal seam mined are not damaged;

(10) All waste and acid-forming or toxic-forming materials, including the strata immediately below the coal seam, are covered with nontoxic spoil to prevent pollution and achieve the approved postmining land use; and

(11) Spoil is placed on the mountaintop bench as necessary to achieve the postmining land use approved under subsections (3) and (4) of this section. All excess spoil material not retained on the mountaintop shall be placed in accordance with 405 KAR 16:130.

History

RELATES TO: KRS 350.010, 350.028, 350.133, 350.405, 350.450, 350.465
STATUTORY AUTHORITY: KRS 350.028, 350.133, 350.450, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate environmental protection performance standards for surface coal mining operations, including the mountaintop removal method. This administrative regulation sets forth special performance standards and variance procedures for conducting mountaintop removal.
History: 405 KAR 020:050. 8 Ky.R. 1591; eff. 1-6-1983; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 20:060 Steep slopes {#sec-405-kar-20-060 omnilex-key=us-ky-regs-official--title-405--405 KAR 20:060}

Section 1. Applicability.

(1) Surface coal mining and reclamation operations on steep slopes shall meet the requirements of this administrative regulation.

(2) The standards of this administrative regulation shall not apply to:

(a) Mining conducted on a flat or gently rolling terrain with an occasional steep slope through which the mining proceeds and leaves a plain or predominantly flat area; or

(b) Operations covered by 405 KAR 20:050.

Section 2. Performance Standards.

(1) Surface coal mining and reclamation operations conducted on steep slopes shall comply with requirements of this section and all other requirements of 405 KAR Chapters 7 through 24, except to the extent a variance is approved under Section 3 of this administrative regulation.

(2)

(a) The permittee shall prevent the following materials from being placed or allowed to remain on the downslope:

Spoil;
Waste materials, including waste mineral matter;
Debris, including that from clearing and grubbing of haul road construction; and
Abandoned or disabled equipment.

(b) Nothing in this subsection shall prohibit the placement of material in road embankments located on the downslope, if the material used and embankment design comply with the requirements for roads and other transportation facilities in 405 KAR Chapters 16 and 18 and the material is moved and placed in a controlled manner.

(3) The highwall shall be completely covered with compacted spoil and the disturbed area graded to comply with the provisions of 405 KAR Chapters 16 and 18, with respect to backfilling and grading, including the return of the site to the approximate original contour. The permittee shall demonstrate to the cabinet, using standard geotechnical analyses, that the minimum static factor of safety for the stability of all portions of the reclaimed land is at least one and three-tenths (1.3).

(4) Land above the highwall shall not be disturbed unless the cabinet finds that the disturbance facilitates compliance with the requirements of 405 KAR Chapters 16 through 20, provided, however, that the land disturbed above the highwall shall be limited to that amount necessary to facilitate compliance.

(5) Material in excess of that required by the grading and backfilling provisions of subsection (3) of this section shall be disposed of in accordance with the requirements of 405 KAR 16:130 or 405 KAR 18:130.

(6) Woody materials shall not be buried in the backfilled area unless the cabinet determines that the proposed method for placing woody material within the backfill will not deteriorate the stable condition of the backfilled area as required in subsection 3 of this section. Woody materials may be chipped and distributed over the surface of the backfill as mulch, if special provision is made for their use and approved by the cabinet.

(7) Unlined or unprotected drainage channels shall not be constructed on backfills unless approved by the cabinet as stable and not subject to erosion.

Section 3. Limited variances for nonmountaintop removal, steep slope sites. Surface coal mining operations may be conducted under a variance from the requirement to restore disturbed areas to their approximate original contour, if the following requirements are satisfied:

(1) The cabinet grants the variance and the operation is conducted and reclaimed in accordance with the plan approved under 405 KAR 8:050, Section 6.

(2)

(a) After reclamation, the lands to be affected by the variance within the permit area shall be suitable for an industrial, commercial, residential, or public postmining land use (including recreational facilities);

(b) After consultation with the appropriate land use planning agencies, if any, the potential use is shown to constitute an equal or better economic or public use;

(d) Federal, state, and local government agencies with an interest in the proposed land use have an adequate period in which to review and comment on the proposed use.

(3) The applicant has demonstrated in the permit application that the watershed of lands within the proposed permit and adjacent areas will be improved by the operations when compared with the condition of the watershed before mining or with its condition if the approximate original contour were to be restored. The watershed shall be deemed improved only if:

(a) The amount of total suspended solids or other pollutants discharged to ground or surface water from the permit area will be reduced, so as to improve the public or private uses or the ecology of ground or surface water, or flood hazards from precipitation events or thaws within the watershed containing the permit area will be reduced by decreasing the peak flow discharge, or there will be an increase in stream flow during times of the year when streams within the watershed are normally at low flow or dry and the increase in stream flow is determined by the cabinet to be beneficial to public or private users or to the ecology of the streams;

(b) The total volume of flow from the proposed permit area, during every season of the year, will not vary in a way that adversely affects the ecology of any surface water or any existing or planned use of surface or groundwater; and

(4) The proposed use is designed and certified by a qualified, registered, professional engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site.

(5) The surface landowner of the permit area has knowingly requested, in writing in the permit application, that a variance be granted, so as to render the land, after reclamation, suitable for an industrial, commercial, residential, or public postmining land use (including recreational facilities).

(6) All applicable requirements of KRS Chapter 350 and 450 KAR Chapters 7 through 24, other than the requirement to restore disturbed areas to their approximate original contour, are met.

(7) The highwall is completely backfilled with spoil material, in a manner which results in a static factor of safety of at least one and three-tenths (1.3), using standard geotechnical analysis.

(8) Only the amount of spoil as is necessary to achieve the postmining land use, ensure the stability of spoil retained on the bench, and meet all other applicable requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24 is placed off the mine bench. All spoil not retained on the bench shall be placed in accordance with 405 KAR 16:130.

History

RELATES TO: KRS 350.090, 350.093, 350.100, 350.405, 350.410, 350.445, 350.450, 350.465, 30 C.F.R. Parts 730-733, 735, 785.15, 785.16, 816.107, 817.107, 917, 30 U.S.C. 1253, 1255, 1257, 1258, 1265(d)
STATUTORY AUTHORITY: KRS 350.028, 350.093, 350.100, 350.151(1), 350.445, 350.450, 350.465, 30 C.F.R. parts 730-733, 735, 785.15, 785.16, 816.107, 817.107, 917, 30 U.S.C. 1253, 1255, 1257, 1258, 1265(d), 1265(e)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1) and (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes special performance standards and limited variance procedures for operations conducted on steep slopes.
History: 405 KAR 020:060. 8 Ky.R. 1591; eff. 1-6-1983; 10 Ky.R. 635; eff. 12-2-1983; 15 Ky.R. 505; eff. 12-13-1988; 26 Ky.R. 1697; 1946; eff. 5-22-2000; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 20:070 Off-site coal processing plants {#sec-405-kar-20-070 omnilex-key=us-ky-regs-official--title-405--405 KAR 20:070}

Section 1. Applicability. This administrative regulation establishes performance standards for coal processing plants that are not located within the permit area for a specific mine. This administrative regulation shall not apply to coal processing plants which are located at the site of ultimate coal use.

Section 2. Performance Standards. Construction, operation, maintenance, modification, reclamation, and removal activities at coal processing plants shall comply with the provisions of 405 KAR Chapter 16 and 405 KAR 20:040, except as provided in this section and Section 5 of this administrative regulation.

(1) Those provisions of 405 KAR 16:060 related to stream buffer zones shall not apply except that the findings required for approval of a stream buffer zone variance shall apply to any proposal to divert an intermittent or perennial stream.

(2) 405 KAR 16:010, Section 2, coal recovery, shall not apply.

(3) 405 KAR 16:010, Section 4, slide and erosion barriers, and Section 5, slides, shall not apply.

(4) 405 KAR 18:020 shall apply in lieu of 405 KAR 16:020.

(5) 405 KAR 16:040, casing and sealing of drilled holes, shall not apply.

(6) 405 KAR 16:120, use of explosives, shall not apply.

(7) 405 KAR 16:190, Section 5, thick overburden, shall not apply.

(8) 405 KAR 16:250, Section 2(2), minimize damage, destruction or disruption of utility services, shall not apply.

(9) 405 KAR 20:060, steep slopes, shall not apply.

Section 3. Nearby Underground Mining Activities. Adverse effects upon, or resulting from, nearby underground mining activities shall be minimized by appropriate measures, including but not limited to, compliance with 405 KAR 16:010, Section 3.

Section 4. Water Supply Replacement. Any permittee shall replace the water supply of an owner of interest in real property who obtains all or part of his or her supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source, when the water supply has been adversely impacted by contamination, diminution, or interruption proximately resulting from the coal processing plant activities.

Section 5. Previously Exempted Operations. Those coal processing plants in existence on December 1, 1985 which had been previously exempted from the requirements of 405 KAR Chapters 7 through 24 by the provisions of KRS 350.060(22) and which became subject to the provisions of this administrative regulation on December 1, 1985 shall comply with all provisions of Sections 1 through 4 of this administrative regulation, except as provided in this section.

(1) 405 KAR 16:010, Section 3, shall not apply to areas disturbed prior to December 1, 1985.

(2) For surface areas that are without suitable topsoil, 405 KAR 16:050, Section 1(3) shall apply.

(3) The requirements of 405 KAR 16:070, Section 1(1)(a) shall not apply until final action on the permit application by the cabinet and the sedimentation pond or other treatment facility design has been approved by the cabinet or the exemption provided by 405 KAR 16:070, Section 1(1)(c) has been granted. The cabinet, as a condition of the permit, may approve a reasonable time to construct or modify water treatment facilities.

(4) Any coal processing plant in existence on May 3, 1978, may comply with the backfilling and grading requirements of 405 KAR 16:190, Section 7.

(5) 405 KAR 20:040, prime farmland, shall not apply to any prime farmland disturbed prior to December 1, 1985.

(6) The groundwater monitoring requirements of 405 KAR 16:110 shall not apply until final action on the permit application by the cabinet and the groundwater monitoring plan is approved.

History

RELATES TO: KRS 350.010, 350.151, 350.465
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate environmental protection performance standards for all surface coal mining and reclamation operations. This administrative regulation sets forth certain performance standards for off-site coal processing plants.
History: 405 KAR 020:070. 8 Ky.R. 1592; eff. 1-6-1983; 12 Ky.R. 959; 1339; eff. 2-4-1986; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 20:080 In situ processing {#sec-405-kar-20-080 omnilex-key=us-ky-regs-official--title-405--405 KAR 20:080}

Section 1. Performance Standards.

(1) The permittee who conducts in situ processing activities shall comply with 405 KAR Chapter 18 and this section.

(2) In situ processing activities shall be planned and conducted to minimize disturbance to the prevailing hydrologic balance by:

(a) Avoiding discharge of fluids into holes or wells, other than as approved by the cabinet through a permitting action;

(b) Injecting process recovery fluids only into geologic zones or intervals approved as production zones by the cabinet in accordance with KRS Chapter 353 and 805 KAR Chapter 1;

(d) Preventing discharge of process fluid into surface waters.

(3) Each permittee who conducts in situ processing activities shall submit for approval as part of the application for permit pursuant to 405 KAR 8:050, and follow after approval, a plan that ensures that all acid-forming, toxic-forming, or radioactive gases, solids, or liquids constituting a fire, health, safety, or environmental hazard and caused by the mining and recovery process shall be promptly treated, confined, or disposed of, in a manner that shall prevent contamination of ground and surface waters, damage to fish, wildlife and related environmental values, and threats to the public health and safety.

(4) Each permittee who conducts in situ processing activities shall prevent flow of the process recovery fluid:

(a) Horizontally beyond the affected area identified in the permit; and

(b) Vertically into overlying or underlying aquifers.

(5) Each permittee who conducts in situ processing activities shall restore the quality of affected groundwater in the permit area and adjacent area, including groundwater above and below the production zone, to the approximate premining levels or better, to ensure that the potential for use of the groundwater shall not be diminished.

Section 2. Monitoring.

(1) Each permittee who conducts in situ processing activities shall monitor the quality and quantity of surface and groundwater and the subsurface flow and storage characteristics, in a manner approved by the cabinet under 405 KAR 18:110, to measure changes in the quantity and quality of water in surface and groundwater systems in the permit area, shadow area, and in adjacent areas.

(2) Air and water quality monitoring shall be conducted in accordance with monitoring programs approved by the cabinet as necessary according to appropriate federal and state air and water quality standards.

History

RELATES TO: KRS 350.010, 350.151, 350.465, Chapter 353
STATUTORY AUTHORITY: KRS 350.028, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations that establish environmental protection performance standards for all surface coal mining and reclamation operations. This administrative regulation establishes certain performance standards for in situ processing activities.
History: 405 KAR 020:080. 8 Ky.R. 1593; eff. 1-6-1983; 44 Ky.R. 660, 1330; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 20:090 Underground only permits {#sec-405-kar-20-090 omnilex-key=us-ky-regs-official--title-405--405 KAR 20:090}

Section 1. Coal Recovery. Underground only mining activities shall be conducted to maximize the utilization and conservation of the coal, while utilizing the best appropriate technology currently available to maintain environmental integrity.

Section 2. Permanent Abandonment of Operations.

(1) Notice required. On or before the date of permanent abandonment of underground only operations, the permittee shall provide written notice to the cabinet that permanent abandonment is intended.

(2) Prior to permanent abandonment, and prior to removal of necessary equipment from the site, all affected areas shall be closed, in accordance with the requirements of KRS Chapter 350, the administrative regulations of KAR Title 405, and the permit.

Section 3. Temporary Cessation of Operations.

(2) Temporary cessation shall not relieve a permittee of the obligation to comply with the surface and groundwater monitoring requirements of 405 KAR 18:110, and the obligation to comply with all applicable conditions of the permit during the cessation.

(3) During temporary cessations, equipment and facilities necessary to environmental monitoring or to compliance with performance standards shall be made secure to the extent practicable.

History

RELATES TO: KRS 350.151, 350.465
STATUTORY AUTHORITY: KRS 350.028, 350.151, 350.465
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.465 authorizes the cabinet to promulgate administrative regulations to establish environmental protection performance standards for all surface coal mining and reclamation operations. This administrative regulation establishes certain performance standards for underground only permits.
History: 405 KAR 020:090. 44 Ky.R. 703, 1331; eff. 1-5-2018; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

Chapter 24 Areas Unsuitable for Mining

405 KAR 24:001 Definitions for 405 KAR Chapter 24 {#sec-405-kar-24-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 24:001}

Section 1. Definitions.

(1) "Affected area" means any land or water area which is used to facilitate, or is physically altered by, surface coal mining and reclamation operations. The affected area includes the disturbed area; any area upon which surface coal mining and reclamation operations are conducted; any adjacent lands the use of which is incidental to surface coal mining and reclamation operations; 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 provided in this definition; 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, shipping areas; 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; and the area located above underground workings associated with underground mining activities, auger mining, or in situ mining. The affected area shall include 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:

(a) Was designated as a public road pursuant to the laws of the jurisdiction in which it is located;

(b) Is maintained with public funds, and constructed in a manner similar to other public roads of the same classification within the jurisdiction; and

(2) "Applicant" means any person(s) 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.

(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) "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.

(5) "Area", as used in 405 KAR Chapter 24, means a geographic unit in which the criteria alleged in the petition pursuant to 405 KAR 24:020, Sections 3 and 4 and 405 KAR 24:030, Section 8 occur throughout and form a significant feature.

(6) "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 shall also include 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.

(7) "Cabinet" is defined in KRS 350.010.

(8) "Cemetery" means any area where human bodies are interred.

(9) "C.F.R." means Code of Federal Regulations.

(10) "Coal" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77.

(11) "Coal exploration" means the field gathering of:

(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 may cause any disturbance of the land surface or may cause any appreciable effect upon land, air, water, or other environmental resources.

(12) "Coal mine waste" means coal processing waste and underground development waste.

(13) "Coal processing waste" means materials which are separated from the product coal during the cleaning, concentrating, or other processing or preparation of coal.

(14) "Community or institutional building" means any structure, other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings, or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental health, or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation, or sewage treatment.

(15) "Complete and accurate application" means an application for permit approval, or approval for coal exploration if required, which the cabinet determines to contain all information required under, and necessary to comply with, KRS Chapter 350 and 405 KAR Chapters 7 through 24, in order to make decisions concerning its administrative and technical acceptability and whether a permit or exploration approval may be issued.

(16) "Day" means calendar day unless otherwise specified to be a working day.

(17) "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.

(18) "Federal lands" 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. It does not include Indian lands.

(19) "Fragile lands" means areas containing natural, ecologic, scientific, or aesthetic resources that could be significantly damaged by surface coal mining operations. Examples of fragile lands include uncommon geologic formations, paleontological sites, national natural landmarks, valuable habitats for fish or wildlife, areas where mining may result in flooding, critical habitats for endangered or threatened species of animals or plants, wetlands, environmental corridors containing a concentration of ecologic and aesthetic features, state-designated nature preserves and wild rivers, and areas of recreational value due to high environmental quality.

(20) "Groundwater" means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated.

(21) "Growing season" means the period during a one (1) year cycle, from the last killing frost in the spring to the first killing frost in the fall, in which climatic conditions are favorable for plant growth. In Kentucky, this period normally extends from mid-April to mid-October.

(22) "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.

(23) "Historic lands" means areas containing historic, cultural, or scientific resources. Examples of historic lands include properties listed on or eligible for listing on a state or national register of historic places, national historic landmarks, archaeological sites, properties having religious or cultural significance to native Americans or religious groups, and properties for which historic designation is pending.

(24) "Impoundment" means a closed basin, naturally formed or artificially built, which is dammed or excavated for the retention of water, sediment, or waste.

(25) "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, but is not limited to, in situ gasification, in situ leaching, slurry mining, solution mining, borehole mining, and fluid recovery mining.

(26) "KAR" means Kentucky administrative regulations.

(27) "KRS" means Kentucky Revised Statutes.

(28) "Natural hazard lands" means geographic areas in which natural conditions exist that pose or, as a result of surface coal mining operations, may pose a threat to the health, safety, or welfare of people, property, or the environment, including, but not limited to, areas subject to landslides, cave-ins, subsidence, substantial erosion, unstable geology, or frequent flooding.

(29) "Occupied dwelling" means any building that is currently being used on a regular or temporary basis for human habitation.

(30) "Operations" is defined in KRS 350.010.

(31) "Operator" is defined in KRS 350.010.

(32) "Overburden" is defined in KRS 350.010.

(33) "Permit" means written approval issued by the cabinet to conduct surface coal mining and reclamation operations.

(34) "Person" is defined in KRS 350.010.

(35) "Person having an interest which is or may be adversely affected" or "person with a valid legal interest" shall include any person:

(b) Whose property is or may be adversely affected by coal exploration or surface coal mining and reclamation operations, or by any related action of the cabinet.

(36) "Petitioner" means a person who submits a petition under 405 KAR Chapter 24 to designate a specific area as unsuitable for all or certain types of surface coal mining and reclamation operations, or who submits a petition under 405 KAR Chapter 24 to terminate such a designation.

(37) "Public building" means any structure that is owned or leased, and principally used by a governmental agency for public business or meetings.

(38) "Publicly-owned park" means a public park that is owned by a federal, state, or local governmental entity.

(39) "Public park" means an area dedicated or designated by any federal, state, or local agency primarily for public recreational use, despite whether the use is limited to certain times or days. It includes any land leased, reserved, or held open to the public because of that use.

(40) "Public road" means any publicly owned thoroughfare for the passage of vehicles.

(41) "RAM" means Reclamation Advisory Memorandum.

(42) "Reclamation" is defined in KRS 350.010.

(43) "Renewable resource lands" means geographic areas which contribute significantly to the long-range productivity of water supplies or of food or fiber products, these lands to include aquifers and aquifer recharge areas.

(44) "Road" 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. The term does not include 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.

(45) "Secretary" is defined in KRS 350.010.

(46) "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.

(47) "SMCRA" means Surface Mining Control and Reclamation Act of 1977 (PL 95-87), as amended.

(48) "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:

(d) "C horizon." The deepest layer of soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity.

(49) "Spoil" means overburden and other materials, excluding topsoil, coal mine waste, and mined coal, that are excavated during surface coal mining and reclamation operations.

(50)

Improvement or modification of coal lands within, for access to, or in support of surface coal mining and reclamation operations in the petitioned area;
Acquisition of capital equipment for use in, for access to, or for use in support of surface coal mining and reclamation operations in the petitioned area; and
Exploration, mapping, surveying, and geological work, as well as expenditures of engineering and legal fees, associated with the acquisition of the property or preparation of an application to conduct surface coal mining and reclamation operations in the petitioned area.

(b) The costs of acquiring the coal in place or the right to mine such coal are not sufficient to constitute a substantial legal and financial commitment in the absence of other investments as described in paragraph (a) of this subsection.

(51) "Surface coal mining and reclamation operations" is defined in KRS 350.010.

(52) "Surface coal mining operations" is defined in KRS 350.010.

(53) "Topsoil" means the A and E soil horizon layers of the four (4) master soil horizons.

(54) "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.

(55) "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.

(56) "Underground mining activities" means a combination of:

(57) "Valid existing rights" means:

(a) Except for haul roads, property rights in existence on August 3, 1977, that were created by a legally binding conveyance, lease, contract or other instrument which authorizes the applicant to produce coal and the person proposing to conduct a surface coal mining operation on the lands either:

Had been validly issued or had made a good faith effort to obtain, on or before August 3, 1977, all state and federal permits necessary to conduct surface coal mining operations on those lands, application for the permits being deemed to constitute good faith efforts to obtain the permits; or
Can demonstrate to the cabinet that the coal is both needed for, and immediately adjacent to, an ongoing surface coal mining operation for which all permits were obtained prior to August 3, 1977.

(b) For haul roads:

A recorded right-of-way, recorded easement, or a permit for coal haul road recorded as of August 3, 1977; or
Any other road in existence as of August 3, 1977.

(c) Valid existing rights does not mean the mere expectation of a right to conduct surface coal mining operations or the right to conduct underground coal mining.

(58) "Wetland" means land that has a predominance of hydric soils and that is inundated or saturated by surface or groundwater 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.

(b) "Hydrophytic vegetation" means a plant growing in:

Water; or
A substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content.

History

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
STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465, 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 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations under the permanent regulatory program. This administrative regulation provides for the defining of certain essential terms used in 405 KAR Chapter 24.
History: 405 KAR 024:001. 18 Ky.R. 2495; eff. 4-3-1992; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 24:020 Petition requirements {#sec-405-kar-24-020 omnilex-key=us-ky-regs-official--title-405--405 KAR 24:020}

Section 1. General. Under the following procedures, persons may petition the cabinet to designate areas as unsuitable for all or certain types of surface coal mining operations. Additionally, there are procedures for citizens to petition the cabinet to terminate a designation of unsuitability for mining.

Section 2. Right to Petition. Any person having an interest which is or may be adversely affected has the right to petition the cabinet to have an area designated as unsuitable for all or certain types of surface coal mining operations, or to have an existing designation terminated. However, a person having an interest which is or may be adversely affected must demonstrate how he or she meets an "injury in fact" test by describing the injury to his or her specific affected interests and demonstrate how he or she is among the injured.

Section 3. Designation Petition.

(1) A petitioner shall file a petition containing all information that the cabinet requires pursuant to this section using forms provided by the cabinet.

(2) The petition for designation shall include the following information:

(a) The petitioner's name, address, telephone number, and notarized signature.

(b) Identification of the petitioner's interest which is or may be adversely affected, including a statement demonstrating how the petitioner satisfies the requirements of Section 2 of this administrative regulation.

(c) A USGS seven and one-half (7 1/2) minute topographic map(s) marked to show the location and size of the geographic area covered by the designation petition.

(d) A description of how surface coal mining operations in the area have or may adversely affect people, land, air, water or other resources.

(e) Allegations of facts and objective evidence which would tend to establish that the area, as defined in 405 KAR 7:020, is unsuitable for all or certain types of surface coal mining operations, assuming that contemporary mining practices required under 405 KAR Chapters 7 through 24 would be followed if the area were to be mined. Each of the allegations of fact should be specific as to the mining operation, if known; the portion(s) of the petitioned area and the petitioner's interests to which the allegation applies; and be supported by evidence that tends to establish the validity of the allegations for the mining operation or portion of the petitioned area. The allegations shall address one (1) or more of the following:

Reclamation is not technologically and economically feasible under the provisions of 405 KAR Chapters 7 through 24; or
Surface coal mining and reclamation operations will be:

a. Be incompatible with existing land use policies, plans, or programs adopted by state, area-wide, or local agencies with management responsibilities for the areas which would be affected by such surface coal mining and reclamation operations;

b. Affect fragile or historic lands in which the surface coal mining operations could result in significant damage to important historic, cultural, scientific, or aesthetic values or natural systems;

c. Affect lands in which the surface coal mining operations could result in a substantial loss or reduction in the long-range availability of water supplies, to include aquifers and aquifer recharge areas;

d. Affect renewable resource lands in which the surface coal mining operations could result in a substantial loss or reduction in the long-range productivity of food or fiber products; or

e. Affect natural hazard lands in which surface coal mining operations could substantially endanger life and property.

(3) The cabinet may request that the petitioner provide other supplementary information which is readily available. However, failure to provide such information shall not render the petition incomplete.

(4) Petitions shall be mailed or delivered to: Kentucky Cabinet for Natural Resources and Environmental Protection, Lands Unsuitable Program, Department of Natural Resources, Frankfort, Kentucky 40601.

Section 4. Termination Petition.

(1) A petitioner shall file a petition for termination of designation of an area as unsuitable for all or certain types of surface coal mining operations using forms provided by the cabinet. The petition for termination may cover all or any portion of the specific geographical area that was previously designated as unsuitable for surface coal mining operations and shall address those criteria upon which designation was based.

(2) The petition for termination shall include the following information:

(a) The petitioner's name, address, telephone number, and notarized signature.

(b) Identification of the petitioner's interest which is or may be adversely affected by the continuation of the designation of the area as unsuitable for all or certain types of surface coal mining operations, including a statement demonstrating how the petitioner satisfies the requirements of Section 2 of this administrative regulation.

(c) A USGS seven and one-half (7 1/2) minute topographic map(s) marked to show the location and size of the geographic area covered by the termination petition.

(d) Allegation of facts and objective evidence covering the area for which the termination is proposed. Each of the allegations of fact shall be specific as to the mining operation, if any, and to portions of the petitioned area and the petitioner's interests to which the allegation applies. The allegations shall be supported by evidence, not contained in the record of the designation proceeding, that tends to establish the validity of the allegations for the mining operation or portion of the petitioned area, assuming that contemporary mining practices required under 405 KAR Chapters 7 through 24, would be followed were the area to be mined. For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence must be presented in the petition. Allegations and supporting evidence should also be specific to the basis for which the designation was made and tend to establish that the designation should be terminated on one (1) or more of the following bases:

Reclamation is now technologically and economically feasible, if the designation was based on a finding that reclamation was either technologically and economically unfeasible; or
Surface coal mining operations:

a. Will not now be incompatible with land use policies, plans, or programs adopted by state, area-wide, or local agencies with management responsibilities for the designated area, if the designation was based on a finding of such incompatibility;

b. Will not now result in significant damage to important historic, cultural, scientific, or aesthetic values or natural systems related to fragile or historic lands, if the designation was so based;

c. Will not now result in substantial loss or reduction of long-range availability of water supplies if the designation was so based;

d. Will not now result in substantial loss or reduction of long-range productivity of food and fiber products, if the designation was so based; or

e. Will not now affect natural hazard lands in which the surface coal mining operation could have substantially endangered life and property, if the designation was so based.

(4) Termination petitions shall be mailed or delivered to: Kentucky Cabinet for Natural Resources and Environmental Protection, Lands Unsuitable Program, Department of Natural Resources, Frankfort, Kentucky 40601.

History

RELATES TO: KRS 350.465(2)(b), 350.610
STATUTORY AUTHORITY: KRS Chapter 13A, 350.465(2), 350.610
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.465(2) and 350.610 require the cabinet to prepare, develop, and promulgate a permanent program for the implementation of SMCRA containing procedures similar to that Act. This administrative regulation sets forth requirements for petitions seeking designation of certain lands as unsuitable for all or certain types of surface coal mining operations and for the termination of such designations.
History: 405 KAR 024:020. 8 Ky.R. 1594; eff. 1-6-1983; 15 Ky.R. 508; eff. 12-13-1988; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 24:030 Process and criteria for designating lands unsuitable for surface mining operations {#sec-405-kar-24-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 24:030}

Section 1. General. The following procedures and criteria establish a process enabling objective decisions to be made on land areas, if any, which are unsuitable for all or certain types of surface coal mining operations. These decisions shall be based on the best available, scientifically sound data and other relevant information.

Section 2. Lands Exempt From Designation.

(1) Petitions for designating lands as unsuitable for all or certain surface coal mining operations will not be considered for:

(a) Lands on which surface coal mining operations were being conducted on August 3, 1977;

(b) Lands covered by a permit issued under KRS Chapter 350 or a permit application for which the public comment period has closed according to Section 3(6) of this administrative regulation;

(c) Lands where substantial legal and financial commitments were in existence prior to January 4, 1977 in such surface coal mining operations.

(2)

Improvement or modification of coal lands within, for access to, or in support of surface coal mining and reclamation operations in the petitioned area;
Acquisition of capital equipment for use in, for access to, or for use in support of surface coal mining and reclamation operations in the petitioned area; and
Exploration, mapping, surveying, and geological work, as well as expenditures of engineering and legal fees, associated with the acquisition of the property or preparation of an application to conduct surface coal mining and reclamation operations in the petitioned area.

Section 3. Initial Processing of Petitions.

(1) Within thirty (30) days of the receipt of a petition to designate or terminate, the cabinet shall notify the petitioner by certified mail whether or not the petition is complete. A petition shall be deemed incomplete if the cabinet finds that the petition does not contain all information required by 405 KAR 24:020, Sections 3 and 4.

(2) If the cabinet determines that the petition is incomplete, it shall be returned to the petitioner with a written statement of the reasons for the determination and the categories of information needed to make the petition complete.

(3) The cabinet shall determine whether any identified coal resources exist in the area described in the petition. Should the cabinet find that there are no identified coal resources in that area, the petition shall be returned to the petitioner with a statement of findings.

(4) If the cabinet determines the petition to be frivolous or that the petition does not meet the requirements of 405 KAR 24:020, Section 2, it shall be returned to the petitioner with a written statement of the reasons for the determination and the categories of information needed to make the petition complete. A frivolous petition is one in which the allegations of harm lack serious merit.

(5) When considering a petition for an area which was previously and unsuccessfully proposed for designation, the cabinet shall determine if the new petition presents substantial new allegations of facts and objective evidence. If the petition does not contain new and substantial allegations of facts, the cabinet shall return the petition with a statement of its findings and a reference to the record of the previous designation proceedings.

(6) Petitions received after the close of the public comment period on a permit application relating to the same area shall not prevent the cabinet from issuing a decision on that permit application. The cabinet may return such a petition to the petitioner with a statement of why the cabinet will not consider the petition. For the purposes of this administrative regulation, the close of the public comment period shall mean at the close of the period for filing written comments and objections under 405 KAR 8:010, Sections 9 and 10.

Section 4. Notification and Request for Information.

(1) The cabinet shall periodically notify the petitioner of applications for a permit received which propose to include any area covered by the petition. The cabinet shall begin this notification procedure only after it has determined that the petition is complete and has so notified the petitioner.

(2) Within twenty-one (21) days after the determination that a petition is complete, the cabinet shall circulate copies of the petition form to, and request submission of relevant information from:

(a) Other interested government agencies;

(b) Area-wide development district agencies;

(d) Intervenors; and

(e) Other persons known to the cabinet to have an interest in the property.

(3) Within twenty-one (21) days of the final determination that the petition is incomplete or frivolous, the cabinet shall notify the general public of the receipt of the petition and the cabinet's determination that the petition is incomplete or frivolous by one (1) newspaper advertisement in the newspapers specified in subsection (4)(a) and (b) of this section.

(4) Within twenty-one (21) days after the determination that a petition is complete, the cabinet shall notify the general public by newspaper advertisement. The notice shall identify the petitioner and provide the mailing address of the petitioner. The notice shall request submissions of relevant information; and shall request that persons with an ownership or other interest of record in the property covered by the petition, who wish to be notified of any hearing, identify themselves to the cabinet. The advertisement shall be placed once a week for two (2) consecutive weeks:

(a) In the newspaper of largest bona fide circulation, according to the definition in KRS 424.110 to 424.120, in the county of the area covered by the petition; and

(b) In the newspaper of largest circulation in the state.

(5) Until three (3) days before the cabinet holds a public hearing on the petition pursuant to Section 7 of this administrative regulation, any person may intervene in the preceding, by filing:

(a) The intervenor's name, address, telephone number, and notarized signature;

(b) Identification of the intervenor's interest which is or may be adversely affected;

(d) Allegations of fact and objective evidence which would tend to establish or dispute the allegations found in the petition.

Section 5. Data Base and Inventory System.

(1) The cabinet will develop and maintain a data base and inventory system which will permit evaluation of reclamation feasibility in areas covered by petitions.

(2) The cabinet will include in the data base and inventory system, information relevant to the criteria in Section 8 of this administrative regulation.

(3) The cabinet will include in the data base and inventory system sufficient information to prepare the statements required in Section 8(4) of this administrative regulation, including information on:

(a) The coal sources of Kentucky;

(b) The demand for Kentucky coal;

(d) The economy of Kentucky and its coal mining regions; and

(e) The environment and natural resources of Kentucky.

(4) The cabinet will include in the data base and inventory system relevant information that comes available from petitions, publications, studies, experiments, permit applications, surface coal mining operations, and other sources. The cabinet will also include relevant information received from the U.S. Fish and Wildlife Service, the Kentucky Heritage Commission, and the cabinet's Division of Air Pollution Control.

Section 6. Public Information.

(1) Beginning immediately after the cabinet receives a petition, it shall compile and maintain a record consisting of the petition and all documents relating to the petition filed with or prepared by the cabinet. This record shall be maintained at the central office of the department in Frankfort and the regional office within whose district the petition site is located.

(2) The cabinet shall make the record, data base and information system available for public inspection, pursuant to KRS 61.870 et seq.

(3) The cabinet shall provide information on the petition procedures necessary to designate (or terminate a designation of) an area as unsuitable for surface coal mining operations.

(4) The cabinet shall describe how the inventory and data base can be used.

(5) Notwithstanding the requirements in subsections (1) through (4) of this section, if the cabinet determines that the disclosure of information relating to the location of properties proposed to be nominated to, or listed in the National Register of Historic Places would create a risk of destruction or harm to such properties, such disclosure will not be made.

(6) The cabinet shall make available to any person any information within its control regarding designations, including mineral or elemental content which is potentially toxic in the environment. The cabinet will not, however, provide proprietary information on the chemical and physical properties of coal.

Section 7. Hearing Requirements.

(1) Within ten (10) months after receipt of a complete petition, the cabinet shall hold a public hearing in the locality of the area covered by the petition. However, when a permit application is pending before the cabinet and such application involves an area in a petition, the cabinet shall hold the hearing on the petition within ninety (90) days of its receipt. If all petitioners and intervenors agree, the hearing need not be held. The hearing shall be legislative in nature, without cross-examination of witnesses. No person shall bear the burden of proof or persuasion. The cabinet shall make a verbatim record of the hearing.

(2) The cabinet shall give notice of the date, time, and location of the hearing to:

(a) Local, area-wide, state, and federal agencies which may have an interest in the decision on the petition;

(b) The petitioner and the intervenors; and

(c) Any person with an ownership or other interest in the area covered by the petition who has identified himself or herself to the cabinet as set forth in Section 4(3) of this administrative regulation or who is otherwise actually known to the cabinet.

(3) Notice of the hearing shall be sent by certified mail to the petitioner and any intervenors and by regular mail to the persons designated in subsection (2)(a) and (c) of this section, and be postmarked not less than thirty (30) days before the scheduled date of the hearing.

(4) The cabinet shall notify the general public of the date, time, and location of the hearing by placing an advertisement in the newspaper of largest circulation according to the definition in KRS 424.110 to 424.120, in the county of the are covered by the petition once a week for two (2) consecutive weeks and once during the week prior to the scheduled date of the public hearing. The consecutive weekly advertisement must be published four (4) and five (5) weeks before the scheduled date of the public hearing.

(5) The cabinet may consolidate in a single hearing, the hearings required for each of several petitions which relate to areas in the same locale.

(6) In the event that all petitioners and intervenors stipulate agreement prior to the hearing, the petition may be withdrawn from consideration.

Section 8. Criteria and Decision.

(1) The cabinet shall designate an area as unsuitable for all or certain types of surface coal mining operations if, upon petition, it determines that reclamation is not technologically and economically feasible under the performance standards of 405 KAR Chapters 7 through 24 at the time of designation.

(2) The cabinet may designate an area as unsuitable for all or certain types of surface coal mining operations if, upon petition, it is determined that the surface coal mining operations will:

(a) Be incompatible with existing land use policies, plans, or programs adopted by state, area-wide, or local agencies with management responsibilities for the areas which would be affected by such surface coal mining operations;

(b) Affect fragile or historic lands in which the surface coal mining and reclamation operations could result in significant damage to important historic, cultural, scientific, and aesthetic values and natural systems;

(c) Affect renewable resource lands in which the surface coal mining operations could result in substantial loss or reduction of the long-range availability of water supplies;

(d) Affect renewable resource lands in which the surface coal mining operations could result in substantial loss or reduction of the long-range productivity of food and fiber products; or

(e) Affect natural hazard lands in which the surface coal mining operations could substantially endanger life and property.

(3) If the cabinet does not designate a petitioned area under subsection (2) of this section, the secretary may direct that any future permits issued for the area contain specific requirements for minimizing the impact of surface coal mining operations on the feature that was the subject of the petition.

(4) Prior to designating any land areas as unsuitable for surface coal mining operations, the cabinet shall prepare a detailed statement, using existing and available information, on the potential coal resources of the area, the effect of the action on demand for, and supply of, Kentucky coal, and the environmental and economic impacts of designation.

(5) In reaching a decision, the secretary shall use:

(a) The relevant information contained in the data base and inventory system;

(b) Relevant information provided by other governmental agencies;

(d) Any other relevant information or analysis submitted during the comment period and public hearing.

(6) A final written decision shall be issued by the secretary including a statement of reasons, within sixty (60) days of completion of the public hearing, or, if no public hearing is held, then within twelve (12) months after receipt of the complete petition. The cabinet shall simultaneously send the decision by certified mail to the petitioner, all intervenors, and to the Regional Director of the Office of Surface Mining, U.S. Department of the Interior; and by regular mail to all other persons involved in the proceedings.

Section 9. Administrative and Judicial Review.

(1) Following any order or determination of the cabinet concerning completeness or frivolousness of a petition, any person with an interest which is or may be adversely affected may request a hearing on the reasons for the order or determination, in accordance with 400 KAR 1:110, Section 9. Any person with an interest which is or may be adversely affected and who has participated in an administrative hearing under this subsection shall have the right to judicial review as provided in KRS 350.610(6).

(2) Any person with an interest which is or may be adversely affected by a final decision of the secretary under Section 8(6) of this administrative regulation shall have the right to judicial review as provided in KRS 350.610(6).

Section 10. Map. The cabinet shall maintain a current map of areas designated as unsuitable for all or certain types of surface coal mining operations at each regional office and at the central office in Frankfort. Copies of such maps will be available for inspection and copying as prescribed in the Open Records Act, KRS 61.872 to 61.884. Such maps will periodically be distributed to appropriate federal, state, area-wide, and local government agencies.

History

RELATES TO: KRS 350.465(2)(b), 350.610
STATUTORY AUTHORITY: KRS Chapter 13A, 350.465(2), 350.610
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.465(2) and 350.610 require the cabinet to prepare, develop, and promulgate a permanent regulatory program for the implementation of SMCRA containing procedures similar to that Act. This administrative regulation sets forth procedures and criteria for reviewing petitions seeking designation of lands as unsuitable for all or certain types of coal mining operations and for the termination of designations.
History: 405 KAR 024:030.8 Ky.R. 1595; 9 Ky.R. 721; eff. 1-6-1983; 12 Ky.R. 582; eff. 12-10-1985; 15 Ky.R. 515; eff. 12-13-1988; TAm eff. 5-4-2018; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

405 KAR 24:040 Areas unsuitable for mining {#sec-405-kar-24-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 24:040}

Section 1. General. The cabinet shall prohibit or limit surface coal mining and reclamation operations on or near certain private, federal, and other public lands designated by Congress in SMCRA, except for operations which existed on August 3, 1977, or were subject to valid existing rights on that date. The cabinet shall also prohibit certain surface coal mining operations on lands designated unsuitable for all or certain types of surface coal mining and reclamation operations under 405 KAR 24:030.

Section 2. Permit Application Review. Except for operations which existed on August 3, 1977, unless the required approvals or waivers have been obtained, upon receipt of a complete and accurate application for a surface coal mining and reclamation operation permit, and subject to valid existing rights, the cabinet shall review the application and deny the permit if it determines that the lands on which the proposed operation would be conducted include:

(1) Lands within the boundaries of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act (16 USC 1276(a)) or study rivers or study river corridors as established in any guidelines pursuant to that Act, and the National Recreation Areas designated by Act of Congress;

(2) Lands within 300 feet, measured horizontally, of any public park, public building, school, church, community or institutional building; or

(3) Lands within 100 feet, measured horizontally, of a cemetery; except that cemeteries may be relocated if authorized by applicable state law or administrative regulations;

(4) Lands where mining will adversely affect any publicly-owned park or any places included on the National Register of Historic Places unless jointly approved by the cabinet and the federal, state, or local agency with jurisdiction over the park or place as set forth in paragraphs (a) and (b) of this subsection.

(a) The cabinet shall transmit to the federal, state, or local government agency with jurisdiction over the park or place a copy of applicable parts of the permit application, together with a request for that agency's approval or disapproval of the operation, and a notice to that agency that it has thirty (30) days from receipt of the request within which to respond and that failure to interpose a timely objection will constitute approval. The cabinet, upon request by the appropriate agency, may grant an extension to the thirty (30) day period of an additional thirty (30) days. Failure to interpose an objection within thirty (30) days or the extended period granted shall constitute an approval of the proposed permit by the agency.

(b) A permit for a surface coal mining and reclamation operation shall not be issued unless jointly approved by all affected agencies.

(5) Lands within 300 feet, measured horizontally, from any occupied dwelling, unless the owner of the dwelling has provided a written waiver consenting to surface coal mining operations closer than 300 feet.

(a) The applicant shall submit with the permit application a written waiver by lease, deed, or other conveyance from the owner of the dwelling, clarifying that the owner and signator had the legal right to deny mining and knowingly waived that right. The waiver shall act as consent to the operation within a closer distance of the dwelling specified in the waiver. Valid waivers obtained prior to August 3, 1977 shall be valid for the purposes of this paragraph. Waivers obtained from previous owners shall remain effective for subsequent owners who had actual or constructive knowledge of the existing waiver when the dwelling was purchased. A subsequent owner shall be deemed to have constructive knowledge if the waiver has been properly filed in public property records pursuant to state law or if the mining has proceeded to within the 300-foot limit prior to the date of purchase.

(b) The waiver shall be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver. In this case, a copy of the lease or deed shall be included with the permit application.

(c) This subsection shall not apply when the part of the mining operation which is within 300 feet of the dwelling is a haul road or access road which connects with an existing public road on the side of the public road opposite the dwelling.

(6) Lands within 100 feet, measured horizontally, of the outside right-of-way line of any public road (except where mine access roads or haulage roads join the right-of-way). The cabinet may allow areas within 100 feet to be affected or may allow the public road to be closed or relocated, provided that, the cabinet shall:

(a) Require the applicant to obtain any necessary approval of the governmental authority with jurisdiction over the public road;

(b) Provide opportunity for a public hearing in the locality of the proposed mining operations for the purpose of determining whether the interests of the public and affected landowners will be protected;

(c) Publish notice in a newspaper of largest bona fide circulation according to the definition in KRS 424.110 to 424.120 in the county of the affected area at least two (2) weeks before the public hearing;

(d) Make a written finding within thirty (30) days after the hearing or after any public comment period ends if no hearing is held, on the basis of information received at the public hearing as to whether the interests of the public and affected landowners will be protected. No mining shall be allowed within 100 feet of the outside right-of-way line of a road nor may a road be relocated or closed unless the cabinet determines that the interests of the public and affected landowners will be protected.

(7) Federal lands within the boundaries of any national forest, unless specifically approved by the Secretary of the Interior.

Section 3. Assistance Review.

(1) If the cabinet is unable to determine whether the proposed surface coal mining operation is located within the distances or boundaries of any of the lands identified in Section 2 of this administrative regulation, the cabinet shall transmit a copy of the relevant portions of the permit application to the appropriate federal, state, or local government agency for a determination or clarification of the relevant boundaries or distances, with a notice to the agency that it shall respond in writing within thirty (30) days of receipt of the request.

(2) The National Park Service or the U.S. Fish and Wildlife Service shall be notified of any request for a determination of valid existing rights pertaining to areas within the boundaries of areas under their jurisdiction and shall have thirty (30) days from receipt of notification in which to respond.

(3) The cabinet, upon request by the appropriate agency, shall grant an extension to the thirty (30) day period of an additional thirty (30) days. If no response is received within the thirty (30) day period or within the extended period granted, the cabinet may make the necessary determination based upon the information it has available.

Section 4. Valid Existing Rights.

(1) Except for haul roads, "valid existing rights" means property rights in existence on August 3, 1977, that were created by a legally binding conveyance, lease, contract or other instrument which authorizes the applicant to produce coal and the person proposing to conduct a surface coal mining operation on the lands either:

(a) Had been validly issued or had made a good faith effort to obtain, on or before August 3, 1977, all state and federal permits necessary to conduct surface coal mining operations on those lands, application for the permits being deemed to constitute good faith efforts to obtain the permits; or

(b) Can demonstrate to the cabinet that the coal is both needed for, and immediately adjacent to, an ongoing surface coal mining operation for which all permits were obtained prior to August 3, 1977.

(2) For haul roads, "valid existing rights" means:

(a) A recorded right-of-way, recorded easement, or a permit for coal haul road recorded as of August 3, 1977; or

(b) Any other road in existence as of August 3, 1977.

(3) "Valid existing rights" does not mean the mere expectation of a right to conduct surface coal mining operations or the right to conduct underground coal mining.

(4) Interpretation of the terms of the documents relied upon to establish existing rights shall be based upon the laws of Kentucky.

(5) A determination that coal is "needed" shall be based upon, but not be limited to, a finding that additional production originating on adjacent land is necessary to preclude a financial hardship on the mining operation measured by standard accounting and financial procedures, provided that:

(a) A fair rate-of-return on invested capital is not achievable on existing permitted land;

(b) A less than fair rate-of-return on invested capital is attributable to this chapter; and

(6) Where an area comes under the protection of Section 2 of this administrative regulation after August 3, 1977, valid existing rights shall be found if, on the date the protection comes into existence, a validly authorized surface coal mining operation exists on that area.

Section 5. Exploration on Land Designated as Unsuitable for Surface Coal Mining Operations. Designation of any area as unsuitable for all or certain types of surface coal mining operations pursuant to this chapter does not prohibit coal exploration operations in the area, if conducted in accordance with KRS Chapter 350 and 405 KAR Chapters 7 through 20. Exploration operations on any lands designated unsuitable for surface coal mining operations shall be approved only when the cabinet finds that the proposed exploration does not interfere with any value for which the area has been designated unsuitable for surface coal mining operations.

Section 6. Lands Designated Unsuitable.

(1) If the cabinet determines that the proposed surface coal mining operation is not prohibited by Section 2 of this administrative regulation, it may nevertheless, pursuant to appropriate petitions, designate the lands as unsuitable for all or certain types of surface coal mining operations pursuant to 405 KAR 24:030.

(2) The cabinet shall not issue permits which are inconsistent with designations made pursuant to 405 KAR 24:030 and this administrative regulation.

History

RELATES TO: KRS 350.465(2)(b), 350.610
STATUTORY AUTHORITY: KRS Chapter 13A, 350.465(2), 350.610
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.465(2) and 350.610 require the cabinet to prepare, develop, and promulgate a permanent regulatory program for the implementation of SMCRA containing procedures similar to that Act. This administrative regulation sets forth procedures for reviewing applications for surface coal mining and reclamation operation permits to determine whether surface coal mining and reclamation operations are limited or prohibited.
History: 405 KAR 024:040. 8 Ky.R. 1597; eff. 1-6-1983; 15 Ky.R. 515; eff. 12-13-1988; 1897; eff. 6-28-1989; Crt eff. 7-3-2018; Crt eff. 6-26-2025.

Chapter 30 Oil Shale Operations

405 KAR 30:010 Definitions {#sec-405-kar-30-010 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:010}

Section 1. Definitions. Unless otherwise specifically defined or otherwise clearly indicated by their context, terms in 405 KAR Chapter 30 shall have the meanings given in this administrative regulation.

(1) "Acid drainage" means water with a pH of less than six (6.0) and in which total acidity exceeds total alkalinity, discharged from active, inactive or abandoned oil shale mines, waste disposal areas, and reclamation operations or from other affected areas.

(2) "Acid-forming materials" means earth materials that have a pH of less than four and five-tenths (4.5) or that contain sulfide minerals or other materials which, if exposed to air, water, weathering, or microbiological processes, form acids that may 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 and wildlife, vegetation soils, or other resources protected by KRS Chapter 350 may be adversely impacted by an oil shale operation.

(4) "Affected area" means any land or water upon which surface oil shale operations are conducted or located, and the land or water which is located above or within underground mine workings.

(5) "Agricultural use" means the use of any tract of land for the production of animal or vegetable life. The uses include, but are not limited to, the pasturing, grazing, and watering of livestock, and the cropping, cultivation, and harvesting of plants.

(6) "Applicant" means any person seeking a permit from the cabinet to conduct oil shale operations pursuant to KRS Chapter 350 and all applicable administrative regulations.

(7) "Application" means the documents and other information filed with the cabinet for a permit.

(8) "Aquifer" means a zone, stratum, or group of strata that can store and transmit water in sufficient quantities for a specific use.

(9) "Atmospheric water" means water that has traveled back to the atmosphere through evaporation from surfaces and transpiration through the porous outer barriers of plants and animals.

(10) "Barrel" means the unit of liquid volume for the petroleum and related products equal to forty-two (42) gallons (158.9 liters).

(11) "Best technology currently available" means equipment, devices, systems, methods, or techniques which will prevent, to the extent possible, additional contributions of suspended solids to stream flow or run off outside the permit area, but in no event will result in contributions of suspended solids in excess of requirements set by applicable Kentucky or federal laws; and minimize, to the extent possible, disturbances and adverse impact on fish, wildlife, and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, methods, or techniques which are currently available anywhere as determined by the cabinet, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with applicable laws and administrative regulations. The cabinet shall have the discretion to determine the best technology currently available on a case-by-case basis, as authorized by KRS Chapters 350 and 224 and administrative regulations promulgated pursuant thereto.

(12) "Borehole" means a narrow, cylindrical hole drilled into the ground, usually for the purpose of geological or hydrological investigation and for placement of charges for blasting operations.

(13) "Cabinet" means the Environmental and Public Protection Cabinet.

(14) "Casing" means a metal or plastic pipe or tube used as lining for water, oil or gas wells.

(15) "Combustible material" means material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

(16) "Compaction" means increasing the density of a material by reducing the voids between the particles by mechanical effort.

(17) "Complete application" means an application for a permit, which contains all information required under 405 KAR Chapter 30.

(18) "Corehole" means a cylindrical sample of rock or other strata obtained through the use of a hollow drill bit which cuts and retains a section of rock or other strata penetrated.

(19) "Critical areas" means areas which are considered irreplaceable resources and include national parks, state parks, national forests, Kentucky fish and wildlife management areas, state forests, university owned scientific and educational areas, important species habitat, karst areas, wetlands, natural preserves, unique geological features, Kentucky Wild Rivers, natural national landmarks, ecological areas, and private conservation areas.

(20) "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. 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 land use categories.

(21) "Deposit" means a consolidated or unconsolidated material that has accumulated by a natural process or agent.

(22) "Developed water resources land" means land used for storing water for beneficial uses such as stock ponds, irrigation, fire protection, flood control, recreation, and water supply.

(23) "Disturbed area" means an area where vegetation, topsoil, or overburden is removed or upon which topsoil, spent shale, and mining or processing waste is placed during oil shale 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 30 is released.

(24) "Diversion" means a channel, embankment, or other manmade structure constructed to divert water from one (1) area to another.

(25) "Downslope" means the land surface below the projected outcrop of the lowest bench elevation from which oil shale is being mined.

(26) "Ecological areas" are areas which have been identified to be significant reservoirs of Kentucky's natural heritage including areas containing rare plant and animal species, old growth or undisturbed forests, and intact wetlands.

(27) "Effluent limitations" means any restrictions or prohibitions established under state law which include, but are not limited to, effluent limitations, standards of performance for new sources, and toxic effluent standards on quantities, rates and concentrations of chemical, physical, biological and other constituents which are discharged into the waters.

(28) "Embankment" means an artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads or railways, or for other similar purposes.

(29) "Ephemeral stream" means a stream which flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow or ice and which has a channel that is always above the local water table.

(30) "Fish and wildlife habitat" means land dedicated wholly or partially to the production, protection or management of species of fish or wildlife.

(31) "Flood plain" means the area in a watershed that is subject to inundation by a particular size precipitation event.

(32) "Forest land" means land used or managed for the long-term production of wood, wood fiber, or wood derived products. Land used for facilities in support of forest harvest and management operations which is adjacent to or an integral part of these operations is also included.

(33) "Fragile lands" means geographic areas containing significant natural, ecologic, scientific or aesthetic resources that could be damaged or destroyed by oil shale operations. These lands may include, but are not limited to, uncommon geologic features, national natural landmark sites, valuable habitats for fish and wildlife, critical habitats for endangered or threatened species of animals and plants, wetlands, environmental corridors containing concentrations of ecologic and aesthetic features, state-designated nature preserves and wild rivers, areas of recreational value due to high environmental quality, buffer zones around areas where oil shale operations are prohibited, and important, unique or highly productive soils or mineral resources.

(34) "Fragipan" is a loamy, brittle, subsurface horizon low in porosity and content of organic matter and low or moderate in clay but high in silt or very fine sand. A fragipan appears cemented and restricts roots. When dry, it is hard or very hard and has a higher bulk density than the horizon or horizons above. When moist, it tends to rupture suddenly under pressure rather than to deform slowly.

(35) "Fugitive dust" means that particulate matter which becomes airborne due to wind erosion or mechanical operations.

(36) "Government-financed construction" means construction funded fifty (50) percent or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds, but shall not mean government financing agency guarantees, insurance, loans, funds equivalent, or in-kind payments.

(37) "Grazing land" means grassland and forest lands where the indigenous vegetation is actively managed for grazing, browsing, or occasional hay production. Land used for facilities in support of grazing operations which are adjacent to or an integral part of these operations is also included.

(38) "Groundwater" means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated.

(39) "Head-of-hollow fill" means a fill structure consisting of any material, other than 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.

(40) "Highwall" means the face of exposed overburden and/or oil shale in an open cut of a surface oil shale mining operation.

(41) "Historic lands" means historic or cultural districts, places, structures or objects, including but not limited to sites listed on a state or national register of historic places, national historic landmarks, archaeological and paleontological sites, cultural or religious districts, places, or objects.

(42) "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, run-off, evaporation, and changes in ground and surface water storage.

(43) "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 and applicable administrative regulations in an oil shale 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.

(44) "Impermeable" means materials which exhibit a coefficient of permeability (K) value less than 10-6 cm/sec.

(45) "Impoundment" means a closed basin, naturally formed or artificially built, which is dammed or excavated for the retention of water, sediment, or waste.

(46) "Industrial/commercial lands" means lands used for:

(a) Extraction or transformation of materials for fabrication of products, wholesaling of products or for long-term storage of products; and heavy and light manufacturing facilities such as lumber and wood processing, chemical manufacturing, petroleum refining, and fabricated metal products manufacture. Land used for facilities in support of these operations which is adjacent to or an integral part of that operation is also included. Support facilities include, but are not limited to railroads, roads, and other transportation facilities.

(b) Retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments. Land used for facilities in support of commercial operations which is adjacent to or an integral part of these operations is also included. Support facilities include, but are not limited to, parking, storage or shipping facilities.

(47) "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 oil shale. The term includes, but is not limited to, in situ gasification, in situ leaching, solution mining, borehole mining, and fluid recovery mining.

(48) "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 run-off and groundwater discharge.

(49) "Land use" means specific uses or management-related activities rather than the vegetation or cover of the land, and may be identified in combination when joint or seasonal uses occur.

(50) "Leaching" means the removal of soluble constituents from a solid substance by the action of a percolating liquid.

(51) "Leachate" means the liquid that has passed through or emerged from any solid and contains soluble, suspended or miscible materials removed from such solids.

(52) "Logging" means the measurement of physical properties of the strata penetrated by a borehole; accomplished by lowering instruments down the hole and recording measurements at the surface.

(53) "Monitoring" means the collection of environmental, scientific, or engineering data by either continuous or periodic sampling methods.

(54) "Mulch" means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, thus providing microclimatic conditions suitable for germination and growth.

(55) "Natural hazard lands" means geographic areas in which natural conditions exist that pose or, as a result of oil shale operations, may pose a threat to the health, safety, or welfare of people, property or the environment, including but not limited to, areas subject to landslides, cave-ins, subsidence, substantial erosion, unstable geology, or frequent flooding.

(56) "Noxious plants" means species classified under KRS 250.010 as noxious plants.

(57) "Occupied dwelling" means any building that is being used on a regular or temporary basis for human habitation at the time of application for permit.

(58) "Oil shale" is a laminated, sedimentary rock which contains refractory, insoluble organic material (kerogen) that can be treated by pyrolysis to yield liquid fuels.

(59) "Oil shale exploration" means the field gathering of surface or subsurface geologic, physical, or chemical data by mapping, trenching, drilling, geophysical, or other techniques necessary to determine the quality, quantity, and composition of overburden and oil shale of an area.

(60) "Operations" means oil shale extraction experimentation, exploration, processing, waste disposal and reclamation activities, all of the premises, facilities, roads and equipment used in the mining and processing of oil shale from a designated area, or removing overburden for the purpose of determining the location, quality or quantity of a natural oil shale deposit or the activity to facilitate or accomplish the extraction or removal of oil shale.

(61) "Operator" means any person, partnership, or corporation engaged in oil shale extraction, exploration, processing, waste disposal, reclamation or related operations which includes but is not limited to those who remove or intend to remove oil shale or shale oil from the earth, or who remove overburden for the purpose of determining the location, quality or quantity of a natural oil shale deposit, or those who engage in oil shale processing. Government-financed construction activities in which oil shale is incidentally extracted are excluded from this definition.

(62) "Outslope" means the face of the spoil, waste, or embankment sloping downward from the highest elevation to the toe.

(63) "Overburden" means material of any nature, consolidated or unconsolidated, that overlies an oil shale deposit, excluding topsoil and vegetation.

(64) "Pastureland/hayland" 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 or land occasionally cut for hay which is adjacent to or an integral part of these operations is also included.

(65) "Perennial stream" 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 run-off. The term does not include intermittent stream or ephemeral stream.

(66) "Permanent diversion" means a diversion remaining after oil shale mining, processing, waste disposal, reclamation or related operations are completed which has been approved for retention by the cabinet and other appropriate Kentucky and federal agencies.

(67) "Permit" means written approval issued by the cabinet to conduct oil shale operations.

(68) "Permit area" means the area of land and water within boundaries designated in the approved permit application, which shall include, at a minimum, all areas which are or will be affected by any oil shale operations under a particular permit.

(69) "Permittee" means any person, partnership, or corporation engaged in oil shale extraction, exploration, processing, waste disposal, reclamation or related operations which includes, but is not limited to, those who remove or intend to remove oil shale or shale oil from the earth, or who remove overburden for the purpose of determining the location, quality or quantity of a natural oil shale deposit or those who engage in oil shale processing. In all cases a permittee shall be considered an operator.

(70) "Person" means an individual, partnership, association, society, joint venture, joint stock company, firm, company, government agency, utility, corporation, or other business organization.

(71) "pH" means the negative logarithm (base 10) of the hydrogen ion concentration of a solution and is a measure of the acidity or alkalinity of a solution.

(72) "Precipitation event" means a quantity of water resulting from drizzle, rain, snow, sleet, or hail in a specified period of time.

(73) "Processing" means the crushing, preparation, distillation, refining, upgrading, retorting, or any other operation used in the extraction of shale oil or other products from oil shale.

(74) "Property to be mined" means both the surface and mineral estates on and underneath lands which are within the permit area.

(75) "Public office" means a facility under the direction and control of a governmental entity which is open to public access on a regular basis during reasonable business hours.

(76) "Public park" means an area dedicated or designated by any federal, state, or local agency for public recreational use, despite whether such use is limited to certain times or days. It includes any land leased, reserved or held open to the public because of that use.

(77) "Public road" means any publicly owned thoroughfare for the passage of vehicles.

(78) "Recharge capacity" means the ability of the soils and underlying materials to allow precipitation and run-off to infiltrate and reach the zone of saturation.

(79) "Reclamation" means the reconditioning and restoration of areas affected by any oil shale operation as required by KRS Chapter 350, Chapter 224 and all administrative regulations promulgated pursuant thereto under a plan approved by the cabinet.

(80) "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, hunting, and other undeveloped recreational uses.

(81) "Recurrence interval" means the interval of time in which an event is expected to occur once, on the average.

(82) "Reference area" means a land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity and plant species diversity that are produced naturally or by crop production methods approved by the cabinet. Reference areas must be representative of geology, soil, slope, and vegetation in the permit area.

(83) "Renewable resource lands" means aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands.

(84) "Residential land" means tracts used for single and multiple-family housing, mobile home parks, and other residential lodgings. Also included is land used for support facilities which is adjacent to or an integral part of these operations such as vehicle parking, open space, and other facilities which directly relate to the residential use of the land.

(85) "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.

(86) "Sedimentation pond" means a primary sediment control area designed, constructed and maintained in accordance with 405 KAR 30:330 and including but not limited to a barrier, dam, excavation or diversion which slows down water run-off to allow suspended solids to settle out. A sedimentation pond shall not include secondary sedimentation control structures, such as straw dikes, riprap, check dams, mulches, dugouts and other measures that reduce run-off volume or trap sediment to the extent that such secondary sedimentation structures drain to a sedimentation pond.

(87) "Shale fines" means those shale particles which have been produced through handling, crushing, transporting, and other associated processes.

(88) "Shale oil" is a volatile and condensable crude-oil-like material produced upon pyrolysis or oil shale or kerogen from oil shale.

(89) "Significant, imminent environmental harm" is an adverse impact on land, air, or water resources which include, but are not limited to, plant and animal life as further defined in this subsection.

(a) An environmental harm is imminent, if a condition, practice, or violation exists which:

Is causing such harm; or
May reasonably be expected to cause such 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.

(90) "Slurry" means a suspension of pulverized solid in a liquid.

(91) "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 may also be expressed as a percent or in degrees.

(92) "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 three (3) major soil horizons are:

(a) "A horizon." The uppermost soil 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) "B horizon." The layer that typically is immediately beneath the A horizon and often called the subsoil. This middle layer commonly contains more clay, iron, or aluminum than the A or C horizons.

(c) "C horizon." The deepest layer of soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity.

(93) "Soil survey" means a field and other investigation resulting in a map showing the geographic distribution of different kinds of soil and an accompanying report that describes, classifies, and interprets such soils for use. Soil surveys must meet the standards of the National Cooperative Soil Survey.

(94) "Spent shale" means the solid waste material after oil shale has been subjected to a process (chemical, mechanical, or thermal) to recover the oil and gas contained in the raw material.

(95) "Spoil" means overburden that has been removed during oil shale operations.

(96) "Stabilize" means to control movement of soil, spoil piles, spent shale, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties, such as providing a protective surface coating.

(97) "Surber" is a method of taking quantitative bottom samples of streams. The surber covers one (1) square foot and is designed for use in flowing waters of shallow streams and cannot be used satisfactorily in fast water over eighteen (18) inches in depth or in bottoms where the substrata is composed of large rubble and boulders.

(98) "Surface water" means water, either flowing or standing, on the surface of the earth.

(99) "Suspended solids," expressed as milligrams per liter, means organic or inorganic materials carried or held in the liquid phase in the procedure outlined by the Environmental Protection Agency's administrative regulations for waste water and analyses.

(100) "Temporary diversion" means a diversion of a stream or overland flow which is used during oil shale operations and not approved by the cabinet to remain after reclamation as part of the approved postmining land use.

(101) "Ten (10) year, twenty-four (24) hour frequency event" means the maximum twenty-four (24) hour precipitation event with a probable reoccurrence interval of once in ten (10) years as defined by the National Weather Service and Technical Paper No. 40, "Rainfall Frequency Atlas of the U.S.," May, 1961, and subsequent amendments, or equivalent regional or rainfall probability information developed therefrom.

(102) "Topsoil" means the A horizon soil layer.

(103) "Toxic-forming materials" means earth materials or wastes which, if acted upon by air, water, weathering, or biological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water.

(104) "Toxic mine drainage" means water that is discharged from active or abandoned mines or other areas affected by oil shale operations, which contains a substance that through chemical or microbiological action, or physical effects is likely to kill, injure, or impair biota commonly present in the area that might be exposed to it.

(105) "Undeveloped land" means land that is undeveloped or, if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession.

(106) "Valley fill" means a fill structure consisting of any material that is placed in a valley where side slopes of the existing valley measured at the steepest point are greater than twenty (20) degrees or the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than ten (10) degrees.

(107) "Waste" means:

(a) "Mining waste" means those wastes which are generated during and incident to the mining and extraction of oil shale and related overburden from the earth. Such wastes shall include, but not be limited to, woody vegetation, spoil, lean shale, grease, lubricants, paints, flammable liquids, garbage, abandoned machinery, and lumber resultant to the mining operation.

(b) "Processing wastes" means any solid, liquid, semisolid, slurry or sludge material (excluding spent shale) produced by any physical, chemical, mechanical, or thermal process which is considered of low economic value. Such wastes shall include but not be limited to raw shale fines, scrubber sludges, tank bottoms, filter cakes, and spent catalysts.

(c) "Spent shale" means the solid waste material left after oil shale has been subjected to processing (chemical, mechanical, or thermal) to remove the oil and gas contained in the raw material.

(108) "Water table" means the upper surface of a zone of saturation, where the body of groundwater is not confined by an overlying impermeable zone.

(109) "Wetlands" are areas containing much soil moisture due to the groundwater table being at or near the earth's surface.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation provides for the defining of certain essential terms used in 405 KAR Chapter 30.
History: 405 KAR 030:010. 8 Ky.R. 87; 460; eff. 3-1-1982; 9 Ky.R. 941; 10 Ky.R. 280; eff. 10-5-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:015 Documents incorporated by reference {#sec-405-kar-30-015 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:015}

Section 1. Documents Referred to in these Administrative Regulations. The following documents which are referred to in 405 KAR Chapter 30 are incorporated herein by reference for the purposes of 405 KAR Chapter 30.

(1) Agriculture Handbook 282, "Rainfall-Erosion Losses from Cropland", U.S. Department of Agriculture. Copies may be obtained from the U.S. Department of Agriculture, Washington, D.C.

(2) Engineering Memorandum No. 5, "Design Criteria for Dams and Associated Structures", KY Division of Water. Copies may be obtained from the Division of Water, Frankfort, Kentucky 40601.

(3) "Soil Taxonomy", Agriculture Handbook 436, 1975, USDA - Soil Conservation Service. Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(4) "Soil Survey Manual", Agriculture Handbook No. 18, 1951, U.S. Department of Agriculture. Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(5) "Environmental Criteria for Electric Transmission Lines", 1970, U.S. Department of the Interior, U.S. Department of Agriculture. Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(6) REA Bulletin 61-10, "Protection of Bald and Golden Eagles from Powerlines", 1972 U.S. Department of Agriculture. Copies may be obtained from the U.S. Department of Agriculture, Washington, D.C.

(7) "Kentucky Standard and Specification for Pond (378)", 1978 U.S. Soil Conservation Service. Copies may be obtained from the Soil Conservation Service, 333 Waller Ave., Lexington, Kentucky.

(8) ANSI S1.4-1971, "Specification for Sound Level Meters", 1971, American National Standards Institute, Inc. Copies may be obtained from the American National Standards Institute, Inc., 1430 Broadway, New York, New York.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the cabinet to adopt administrative regulations for oil shale operations. This administrative regulation provides for incorporation by reference of documents referred to in these administrative regulations.
History: 405 KAR 030:015. 10 Ky.R. 1218; eff. 8-7-1984; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:020 General provisions {#sec-405-kar-30-020 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:020}

Section 1. Applicability. The administrative regulations in 405 KAR Chapter 30 shall apply to any oil shale operation conducted on or after the effective date of these administrative regulations on land containing oil shale deposits and any other lands used, disturbed, or redisturbed in connection with or to facilitate such operations or to comply with the requirements of KRS Chapter 350 and the requirements of this chapter except:

(1) The extraction of oil shale by a land owner for his own noncommercial use on land owned or leased by him; and

(2) The extraction of oil shale as an incidental part of government-financed construction. Provided, however, that any person extracting oil shale incidental to government financed construction shall maintain, on the site of the extraction operation and available for inspection, documents which show:

(a) A description of the construction project;

(b) The exact location of the construction, right-of-way or the boundaries of the area which will be directly affected by the construction; and

Section 2. Conflicting Provisions. The provisions of 405 KAR Chapter 30 are to be construed as being compatible with and complementary to each other. In the event that provisions within this chapter are found to be contradictory, the more stringent provisions shall apply.

Section 3. Severability. In the event that any provision or administrative regulation in 405 KAR Chapter 30 is found to be invalid, the remaining provisions of this chapter shall not be affected nor diminished thereby.

Section 4. Obligations of Persons Engaged in Oil Shale Operations.

(1) General obligations:

(a) No person shall engage in an oil shale operation or related activity without having obtained from the cabinet a valid permit covering the area of land to be affected.

(b) A person engaged in any oil shale operation shall not throw, pile, dump or permit the throwing, piling, dumping or otherwise placing of any overburden, stones, rocks, shale, earth, soil, dirt, debris, trees, wood, logs, or any other materials or substances of any kind or nature beyond or outside of the area of land which is under permit and for which bond has been posted pursuant to 405 KAR Chapter 30, or place such materials herein described in such a way that normal erosion or slides brought about by natural physical changes will permit such materials to go beyond or outside of the area of land which is under permit and for which bond has been posted pursuant to this chapter.

(c) A person engaged in an oil shale operation shall not engage in any activities which result in a condition or constitute a practice that creates an imminent danger to the health or safety of the public.

(d) A person engaged in an oil shale operation shall not engage in any operations which result in a condition or constitute a practice that causes or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources.

(e) Upon development of any emergency conditions which threaten the life, health, or property of the public, a person engaged in an oil shale operation shall immediately notify the person or persons whose life, health, or property are so threatened, shall take any and all reasonable actions to eliminate the condition creating the emergency, and shall immediately provide notice of the emergency conditions to the cabinet, to local law enforcement officials, and to local government officials. Any emergency action taken by a person engaged in an oil shale operation pursuant to this paragraph shall not relieve that person of other obligations under this chapter or of obligations under other applicable local, state, or federal laws and regulations.

(f) Compliance with the requirements of this chapter does not relieve any person engaged in an oil shale operation from compliance with other applicable administrative regulations of the cabinet.

(2) Sedimentation structures.

(a) The responsible design engineer shall determine the structure hazard classification of all sedimentation structures whether new or proposed reconstructed structures according to the classification descriptions in paragraph (b). For structures classified (B) - moderate hazard or (C) - high hazard, the person engaged in an oil shale operation shall obtain a permit from the cabinet, Division of Water, pursuant to KRS 151.250, and administrative regulations adopted pursuant thereto, prior to construction or reconstruction.

(b) Structure hazard classifications are as follows:

The following broad classes of structures are established to permit the association of criteria with the damage that might result from a sudden major breach of the structure:

a. Class (A); low hazard: structures located such that failure would cause loss of the structure itself but little or no additional damage to other property. Such structures will generally be located in rural or agricultural areas where failure may damage farm buildings other than residences, agricultural lands, or county roads.

b. Class (B); moderate hazard: structures located such that failure may cause significant damage to property and project operation, but loss of human life is not envisioned. Such structures will generally be located in predominantly rural agricultural areas where failures may damage isolated homes, main highways or major railroads, or cause interruption of use or service of relatively important public utilities.

c. Class (C); high hazard: structures located such that failure may cause loss of life, or serious damage to homes, industrial or commercial buildings, important public utilities, main highways or major railroads. This classification must be used if failure would cause probable loss of human life.

The responsible engineer shall determine the classification of the structure after considering the characteristics at the valley below the site and probable future development. Establishment of minimum criteria does not preclude provisions for greater safety when deemed necessary in the judgment of the engineer. Considerations other than those mentioned in the above classifications may require that the established minimum criteria may be exceeded as determined by the cabinet. A statement of the classification established by the responsible engineer shall be clearly shown on the first sheet of the drawings.
When structures are spaced so that the failure of an upper structure could endanger the safety of a lower structure, the possibility of a multiple failure must be considered in assigning the structure classification of the upstream structure.

Section 5. Reports. A person engaged in an oil shale operation shall submit such data, reports, documentation, certifications, or other information as the cabinet may require, or as may be required by KRS Chapter 350 and administrative regulations adopted pursuant thereto. The cabinet may impose any monitoring or data collection requirements upon the permittee as are deemed necessary for the cabinet to adequately assess the possible adverse environmental impacts of such activities. Such information shall be submitted at intervals and in a format specified by the cabinet.

Section 6. Extraction and Processing Operations.

(1) Any person engaged in an oil shale operation shall demonstrate to the cabinet utilizing necessary technical, scientific, and engineering data the impacts their operation will have on the environment. Such data used in the justification shall have been generated on eastern shales having comparable characteristics to the shales in the location of the proposed project area.

(2) In the event the applicant cannot demonstrate to the cabinet's satisfaction the extent and magnitude of possible adverse environmental impacts of the facility and reasonable control of these impacts, its size shall be limited to a total surface disturbance of 100 acres per year. Total surface disturbance shall include, but not be limited to, areas upon which mining activities occur or where such activities disturb the natural land surface, lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site and for haulage, lands accommodating conveyor systems, and excavations, workings, impoundments, dams, ventilation shafts, entry ways, spent shale banks, spent shale disposal sites, dumps, stockpiles, overburden piles, spoil piles, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or materials on the surface, resulting from or incident to such activities.

Section 7. Nothing in this chapter shall be construed to relieve the permittee of any responsibility for any of the obligations of 405 KAR Chapter 30.

Section 8. Hearings.

(1) The provisions of KRS 224.081 shall apply to any cabinet order or determination made pursuant to 405 KAR Chapter 30.

(2) Hearings shall be conducted pursuant to KRS 224.083 and appeals may be taken from any final order of the cabinet as allowed by KRS 224.085.

History

RELATES TO: KRS 151.250, 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth general provisions which apply in this chapter with regard to applicability, conflicting provisions, severability, obligations of permittees, technology assessment, reporting requirements, and hearings.
History: 405 KAR 030:020. 8 Ky.R. 91; 465; eff. 3-1-1982; 9 Ky.R. 945; eff. 11-2-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:025 Experimental practices {#sec-405-kar-30-025 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:025}

Section 1. General.

(1) Applicability. This administrative regulation shall apply to any person who conducts or intends to conduct oil shale operations under a permit authorizing the use of alternative mining practices on an experimental basis if the practices require a variance from the environmental protection performance standards of Title 405, Chapter 30, and such variance is not otherwise obtainable under Title 405, Chapter 30.

(2) This administrative regulation sets forth requirements for the permitting of oil shale operations that encourage advances in mining and reclamation practices or allow postmining land use for industrial, commercial, residential, or public use (including recreational facilities) on an experimental basis.

(3) Experimental practices need not comply with specific environmental protection performance standards of Title 405, Chapter 30, if approved pursuant to this administrative regulation.

Section 2. Approval Procedures.

(1) Approval required. No person shall engage in or maintain any experimental practice, unless that practice is first approved in a permit by the cabinet.

(2) Application requirements. Each person who desires to conduct an experimental practice shall submit a permit application for the approval of the cabinet. The permit application shall contain appropriate descriptions, maps, and plans which show:

(a) The nature of the experimental practice;

(b) How use of the experimental practice:

Encourages advances in mining and reclamation technology; or
Allows a postmining land use for industrial, commercial, residential, and public use (including recreational facilities), on an experimental basis, when the results are not otherwise attainable under the administrative regulations of Title 405, Chapter 30.

(c) That the oil shale operations proposed for using an experimental practice are not larger or more numerous than necessary to determine the effectiveness and economic feasibility of the experimental practice;

(d) That the experimental practice:

Is potentially more or at least as environmentally protective, during and after the proposed oil shale operations, as those required under Title 405, Chapter 30; and
Will not reduce the protection afforded public health and safety below that provided by the requirements of Title 405, Chapter 30.

(e) That the applicant will conduct special monitoring with respect to the experimental practice during and after the operations involved. The monitoring program shall:

Insure the collection and analysis of sufficient and reliable data to enable the cabinet to make adequate comparisons with other oil shale operations employing similar experimental practices; and
Include requirements designed to identify, as soon as possible, potential risks to the environmental and public health and safety from the use of the experimental practice.

(f) Each application shall set forth the environmental protection performance standards of Title 405, Chapter 30 which will be implemented in the event the objective of the experimental practice is a failure.

(3) Public notice. All experimental practices for which variances are sought shall be specifically identified through newspaper advertisements by the applicant and the written notifications by the cabinet required under 405 KAR 30:130, Section 5.

(4) Criteria for approval. No permit authorizing an experimental practice shall be issued unless the cabinet finds in writing upon the basis of both a complete application filed in accordance with the requirements of this administrative regulation and Title 405, Chapter 30, that:

(a) The experimental practice meets all of the requirements of subsection (2)(b) through (e) of this section;

(b) The experimental practice is based on a clearly defined set of objectives which can reasonably be expected to be achieved; and

Limit the experimental practice authorized to that granted by the cabinet;
Impose enforceable alternative environmental protection requirements; and
Require the person to conduct the periodic monitoring, recording and reporting program set forth in the application with such additional requirements as the cabinet may require.

Section 3. Periodic Review.

(1) Each permit which authorizes the use of an experimental practice shall be reviewed in its entirety at least every three (3) years by the cabinet or at least once prior to the middle of the permit term. After review the cabinet shall require by order, supported by written findings, any reasonable revision or modification of the permit provisions necessary to ensure that the operations involved are conducted to protect fully the environment and public health and safety.

(2) Administrative review of modification order. Any person who is or may be adversely affected by an order pursuant to subsection (1) shall be provided with an opportunity for a hearing as established in 405 KAR 30:020.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation governs the permitting of experimental practices that encourage advances in mining and reclamation technology and will yield useful information to the cabinet about agricultural, environmental, technological and postmining land use problems relating to oil shale operations.
History: 405 KAR 030:025. 8 Ky.R. 573; 1411; eff. 6-25-1983; 9 Ky.R. 947; 10 Ky.R. 215; eff. 10-5-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:035 General requirements for performance bond and liability insurance {#sec-405-kar-30-035 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:035}

Section 1. Applicability. This administrative regulation sets forth the minimum requirements for filing and maintaining performance bonds and insurance for oil shale operations.

Section 2. Requirement to File a Bond.

(1) After an application for a new, revised or renewed permit to conduct oil shale operations has been approved but before such permit is issued, the applicant shall file with the cabinet a performance bond payable to the cabinet. A condition of the performance bond will be the faithful completion of all the requirements of the applicable statutes, the pertinent administrative regulations promulgated pursuant thereto, and the provisions of the reclamation plan and permit.

(2) The performance bond liability shall apply to all oil shale operations and related activities conducted within the permit area. Liability shall continue until requirements established by the cabinet have been met. After the amount of the bond has been determined for the permit area, the permittee or applicant shall file the performance bond in accordance with Section 4 of this administrative regulation.

Section 3. Requirement to File a Certificate of Liability Insurance. Each applicant shall file as a part of the permit application evidence that the applicant has obtained liability insurance.

(1) Method "S" - single area bonding. A single area bond is a bond which covers the entire permit area as a single undivided area, for which the applicant must file the entire bond amount required by the cabinet prior to issuance of the permit. Liability under the bond shall extend to every part of the permit area at all times. There shall be no release of all or part of the bond amount for completion of a particular phase of reclamation on any part of the permit area under 405 KAR 30:070 until that phase of reclamation has been successfully completed on the entire permit area.

(2) Method "C" - cumulative bonding. A cumulative bond is a bond which covers the entire permit area at all times, which may be filed by the permittee in partial bond amounts as operations progress through the permit area, with credit for successful reclamation on previously reclaimed sections of the permit area.

(a) For purposes of filing partial bond amounts, but not for purposes of bond release or bond forfeiture, the permit area shall be divided into sectional areas which shall be subject to approval by the cabinet. These sections shall be clearly identified on maps submitted in the permit application under 405 KAR 30:130 and the applicant shall describe the approximate time schedule for beginning operations in each section.

(b) Prior to issuance of the permit, the applicant shall file the partial bond amount which the cabinet determines is necessary for the first section of the permit area. The partial bond amount filed for the initial section shall not be less than the minimum bond required for the permit area under 405 KAR 30:040.

(c) The permittee shall not engage in any oil shale operations on any section of the permit area unless and until the partial bond amount determined by the cabinet for that section has been filed with the cabinet. The permittee shall file with the cabinet the partial bond amount required for any section at least thirty (30) days prior to beginning operations in that section. In determining the partial bond amount required to be filed for any section of the permit area, the cabinet may allow credit for reclamation successfully completed on previously reclaimed sections of the permit area according to 405 KAR 30:070.

(d) The boundaries of sections for which the required partial bond amounts have been filed shall be physically marked at the site in a manner approved by the cabinet.

(e) Although the bond amount is filed with the cabinet in partial amounts as additional sections of the permit area are affected, liability under the bond extends at all times to the entire permit area, and the entire accumulated bond amount is applicable to the entire permit area. There shall be no release of bond for completion of a particular phase of reclamation on any part of the permit area until that phase of reclamation has been successfully completed on the entire permit area.

(3) Method "I" - incremental bonding. Incremental bonding is a method of bonding in which the permit area is divided into individual increments, each of which is bonded separately and independently, and for which bond is filed as operations proceed through the permit area.

(a) The permit area shall be divided into distinct increments which shall be subject to approval by the cabinet. Where the approved postmining land use is of such nature that successful implementation of the postmining land use capability depends upon an area being integrally reclaimed, then that area must be contained within a single increment. These increments shall be clearly identified on maps submitted in the permit application under 405 KAR 30:130, and the applicant shall describe the approximate time schedule for beginning operations in each increment.

(b) Prior to issuance of a permit, the applicant shall file with the cabinet the full bond amount required by the cabinet for the first increment of the permit area, which shall be not less than the minimum bond required for the permit area required under 405 KAR 30:040.

(c) The permittee shall not engage in any oil shale operations on any increment of the permit area unless and until the full bond amount required by the cabinet has been filed for that increment. The full bond amount required for any increment shall be filed with the cabinet at least thirty (30) days prior to beginning operations in that increment. No credit shall be given for reclamation on other increments.

(d) The boundaries of each increment for which bond has been filed shall be physically marked at the site in a manner approved by the cabinet.

(e) The bond amount for an increment shall be released or forfeited independently of any other increment of the permit area, and liability under the performance bond shall extend only to the increment expressly covered by the bond. A single bond amount may be filed to cover more than one (1) increment, in which case the increments so covered shall be treated as a single increment.

(f) There shall be no release of bond for completion of a phase of reclamation on any part of an increment until that phase of reclamation has been successfully completed on the entire increment.

(g) When the bond for an increment is completely released under 405 KAR 30:070, the increment shall be deleted from the permit area.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth the general requirements for performance bonds and liability insurance.
History: 405 KAR 030:035. 8 Ky.R. 574; 1412; eff. 6-25-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:040 Amount and duration of performance bonds {#sec-405-kar-30-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:040}

Section 1. Determination of Bond Amounts. The standard applied by the cabinet in determining the amount of performance bond shall be the estimated cost to the cabinet if it had to perform the reclamation, restoration and abatement work required of a person who conducts oil shale operations under KRS Chapter 350, all other applicable statutes, and the administrative regulations promulgated pursuant thereto, as well as such additional work as would be required to achieve compliance with the standards for revegetation under these oil shale administrative regulations. The amount of bond shall be further based on, but not be limited to, such other cost information as may be required by or available to the cabinet. In calculating the initial amount of the performance bond, the cabinet shall take into consideration the three (3) phases of reclamation and the percentages to be released upon completion of each phase. The three (3) phases of reclamation and the percentages to be released upon completion of each phase are set forth in 405 KAR 30:070 entitled Procedures, Criteria and Schedule for Release of Performance Bonds.

Section 2. Minimum Amount. For oil shale operation permits the minimum amount of bond shall be $20,000.

Section 3. Period of Liability.

(1) Liability under performance bonds applicable to a permit shall continue until completion of all reclamation work required of persons who conduct oil shale operations under the requirements of these oil shale administrative regulations and the conditions of the permit have been completed.

(2) In addition to the period necessary to achieve compliance with the requirements of all applicable statutes and administrative regulations and the conditions of the permit, the period of liability under performance bonds shall continue for a period of seven (7) years beginning with the last year of substantially augmented seeding, fertilizing, irrigation or other work. The period of liability shall begin again whenever substantially augmented seeding, fertilizing, irrigation or other work is required or conducted on the site prior to bond release. A portion of a bonded area requiring extended liability because of substantial augmentation may be separated from the original area and bonded separately upon approval by the cabinet; provided, however, that such separation comes only following a good faith attempt to reclaim the entire permit area. The original bond amount shall apply to the area which has not required substantial augmentation. A new bond, in an amount determined by the cabinet, shall be posted for the area which has been substantially augmented. Before determining that extended liability should apply to only a portion of the original bonded area, the cabinet shall determine that such area portion:

(a) Is not significant in extent in relation to the entire area under bond; and

(b) Is limited to a distinguishable contiguous portion of the bonded area.

(3) If the cabinet approves a long-term intensive agricultural postmining land use, pursuant to these oil shale administrative regulations, the seven (7) year period of liability shall commence at the date of initial planting for such long-term intensive agricultural land use. Such approval shall not constitute a grant of an exception to the bond-liability periods of this section.

(4) If an area is separated under subsection (2) of this section, that portion shall be bonded separately and the period of liability shall commence anew. The period of liability for the remaining area shall continue in effect without extension. The amount of bond on the original bonded area may be adjusted in accordance with Section 4 of this administrative regulation.

Section 4. Adjustment of Amount.

(1) The amount of the bond shall be reviewed and may be adjusted at any time during the life of a permit. The amount of the performance bond liability applicable to a permit shall be adjusted by the cabinet as the acreage in the permit area is increased or when the cabinet determines that the cost of future reclamation, restoration or abatement work has changed substantially. It shall be the obligation of the permittee to secure any additional bond that the cabinet determines is necessary. An increase in bond liability shall not affect the previously existing obligations of sureties.

(2) A permittee may request reduction of the required performance bond amount at any time if the permittee's method of operation or other circumstances will reduce the maximum estimated cost to the cabinet to complete the reclamation responsibilities; provided, however, that under no circumstances will the bond amount be reduced where such a reduction will decrease the bond amount to a level less than that necessary for full reclamation.

History

RELATES TO: KRS 350.060
STATUTORY AUTHORITY: KRS 151.125, 224. 033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth specified criteria upon which to base determination of bond amounts and requires certain periods of liability during which bonds must remain in effect.
History: 405 KAR 030:040. 8 Ky.R. 93; 467; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:050 Bonding requirements for long-term facilities and structures {#sec-405-kar-30-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:050}

Section 1. Applicability.

(1) Operations subject to the provisions of this administrative regulation are:

(a) Portions of oil shale operations which will continuously disturb the surface for a period in excess of five (5) years and surface construction activities related to drainage treatment and subsidence control measures;

(b) Oil shale processing facilities to be operated for more than five (5) years from the date a permit is first issued;

(d) Oil shale facilities to be operated for more than five (5) years from the date a permit is first issued; and

(e) Long-term oil shale related facilities to be permitted for operation longer than five (5) years in accordance with 405 KAR 30:130.

(2) Such operations conducted within a permit area for a mine including areas or facilities not subject to this administrative regulation may be bonded as a separate increment of the mine permit area. If bonded separately, provisions of this administrative regulation shall apply to that increment. If bonded as part of the permit area which included areas or facilities not subject to this administrative regulation, bond liability shall continue in accordance with 405 KAR 30:040.

Section 2. Amount of Bond Required.

(1) The cabinet shall determine the bond amount necessary to complete reclamation of the area in accordance with 405 KAR 30:040.

(2) The area considered in the reclamation plan shall include the entire area disturbed.

(3) The amount of bond necessary to obtain a permit is the entire performance bond required during the term of the permit.

Section 3. Period of Liability. Liability under performance bonds shall be as set forth in 405 KAR 30:040, Section 5.

Section 4. Type of Bond. Performance bonding may be authorized by the cabinet in accordance with the methods listed in 405 KAR 30:060.

Section 5. Applicability of Other Administrative Regulations. Except to the extent that provisions of 405 KAR Chapter 30 conflict with this administrative regulation, all other provisions of 405 KAR Chapter 30, shall apply to bonding requirements for facilities subject to this administrative regulation.

Section 6. Bond Forfeiture. The cabinet may forfeit a bond pursuant to this administrative regulation if the cabinet determines that a permittee is subject to forfeiture under the criteria of 405 KAR 30:080.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.151, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth procedures to determine bond amounts, periods of liability, types of bonds, and forfeiture for certain long-term facilities and structures. This administrative regulation is applicable to portions of oil shale operations which will disturb the surface for more than five (5) years and certain other structures and facilities.
History: 405 KAR R030:050. 8 Ky.R. 575; eff. 6-2-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:060 Form, terms and conditions of performance bonds and liability insurance {#sec-405-kar-30-060 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:060}

Section 1. Types of Performance Bond.

(1) The form for the performance bond shall be prescribed by the cabinet.

(2) The performance bond shall be either:

(a) A surety bond;

(b) A collateral bond; which includes cash, negotiable certificates of deposit, or an irrevocable letter of credit of any bank organized and authorized to transact business in the United States; or

Section 2. Terms and Conditions of Performance Bond.

(1) The performance bond shall be in an amount determined by the cabinet.

(2) The performance bond shall be payable to the cabinet and not subject to cancellation by anyone until released by the cabinet.

(3) The performance bond shall be conditioned upon the faithful performance of all of the requirements of the applicable statutes and administrative regulations and the conditions of the reclamation plan and permit.

(4) The surety, by certified mail, will give prompt notice to the permittee and the cabinet of any notice received or action filed alleging any violations of state or federal regulatory requirements which could result in suspension or revocation of the surety's license to do business.

(a) In the event that the surety becomes unable to fulfill its obligations under the bond for any reason, written notice shall be given promptly to the permittee and the cabinet by certified mail.

(b) Upon the incapacity of a surety for any reason whatsoever, including but not limited to bankruptcy, insolvency, or suspension or revocation of its license, the permittee shall be deemed to be without bond coverage. The cabinet shall issue a notice of noncompliance against any permittee who is without bond coverage. The notice shall specify a reasonable period to replace bond coverage, not to exceed ninety (90) days. During this period, the cabinet shall conduct weekly inspections to ensure continuing compliance with other requirements of 405 KAR and the permit.

(5) Collateral bonds, except for letters of credit, shall be subject to the following conditions:

(a) The cabinet shall obtain possession of all collateral bonds which shall be kept in an appropriate account. Possession will be maintained until authorized for release or replacement.

(b) The cabinet shall require that certificates of deposit be assigned to the cabinet and the issuing bank in writing.

(c) The cabinet shall not accept an individual certificate of deposit for a denomination in excess of the maximum insurable amount as determined by the Federal Deposit Insurance Corporation and the Federal Savings and Loan Insurance Corporation.

(d) The cabinet shall require the issuer of the certificates of deposit to waive all rights of setoff or liens which it might have had against the certificates.

(e) The cabinet shall accept only those certificates of deposit that are automatically renewable.

(f) The cash value of any instrument pledged as collateral shall be at least equal to the bond amount.

(6) Letters of credit shall be subject to the following conditions:

(a) The letter of credit shall be irrevocable. Only a bank authorized to do business in the United States may issue a letter of credit.

(b) The letter of credit, by its express terms, must be payable in full to the cabinet upon receipt from the cabinet of a Notice of Forfeiture.

(c) The letter of credit shall provide that in the event the issuer becomes unable to fulfill its obligations under the letter of credit for any reason, notice, by certified mail, shall be given immediately to the permittee and the cabinet.

Section 3. Substitution of Bonds.

(1) Substitution of bonds shall be in the discretion of the cabinet.

(2) In effecting a requested substitution of bonds, the cabinet shall not release the existing prior performance bond until the permittee has submitted and the cabinet has approved acceptable substitute performance bonds.

Section 4. Terms and Conditions for Liability Insurance.

(1) The cabinet shall require the applicant to submit at the time of permit application, proof that the applicant has a public liability insurance policy in full force and effect for the oil shale operation for which the permit is sought. The public liability insurance policy shall provide for personal injury and property damage protection in an amount adequate to compensate all persons injured or property damaged as a result of oil shale operations, including such injury or damage by use of explosives and injury or damage to water wells. Minimum insurance coverage for bodily injury shall be $300,000 for each occurrence and $500,000 aggregate; and minimum insurance coverage for property damage shall be $300,000 for each occurrence and $500,000 aggregate.

(2) The public liability insurance policy shall be maintained in full force during the term of the permit or any renewal thereof, and until completion of all reclamation operations under these oil shale administrative regulations.

(3) The policy shall include a clause requiring that the insurer notify the cabinet whenever any change whatsoever is made in the policy, including any termination of a policy or failure to renew the policy.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.033 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth minimum bonding and insurance standards. The administrative regulation specifies the types, terms, and conditions of liability insurance.
History: 405 KAR 030:060. 8 Ky.R. 94; 468; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:070 Procedures, criteria and schedule for release of performance bond {#sec-405-kar-30-070 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:070}

Section 1. Procedures for Seeking Release of Performance Bond.

(1) The permittee, or any person authorized in writing to act on his behalf, may file an application on a form provided by the cabinet for a release of all or part of the performance bond liability applicable to a particular permit after all reclamation, restoration and abatement work in a particular reclamation phase, as defined by these oil shale administrative regulations, has been completed on the entire permit area.

(a) Bond release applications will be considered at times or seasons that allow the cabinet to evaluate properly the reclamation operations alleged to have been completed.

(b) The application for bond release shall include copies of notices sent to the surface owners and adjoining property owners, notifying them of the permittee's intention to seek release of performance bonds. These notices shall be sent to the persons listed above before the permittee files the application for release with the cabinet.

(c) Within thirty (30) days after filing the application for release the permittee shall submit proof of publication of the advertisement required by subsection (2) of this section. Such proof of publication shall be considered part of the bond release application.

(2) At the time of filing an application under this section for a bond release, the permittee shall advertise pursuant to KRS 424.110 to 424.130. The advertisement shall:

(a) List the name of the permittee, including the number and date of issuance and/or renewal of the permit;

(b) Describe the precise location and the number of acres of the lands subject to the application;

(c) List the total amount of bond in effect for the permit area, the type of release sought, and the amount for which release is sought;

(d) Be filed with the cabinet and made a part of the complete permit application; and

(e) State that written comments, objections, and requests for a hearing pursuant to these oil shale administrative regulations must be submitted within thirty (30) days of the last publication date, provide the appropriate address of the cabinet, and the closing date by which comments, objections, and requests must be received.

(3) Written objections to the proposed bond release and requests for a hearing may be filed with the cabinet by any person having an interest which is or may be adversely affected by the proposed bond release. Such written objection must be filed within thirty (30) days of the date of the last advertisement of the filing for the bond release application.

(4) The cabinet shall inspect and evaluate the reclamation work allegedly performed by the permittee. Such inspection shall be completed within thirty (30) days after receiving a proper application for bond release, or as soon thereafter as weather conditions permit; provided however, that the bond release application is filed during a time or season that allows the cabinet to properly evaluate the reclamation operations.

(5)

(a) If a hearing is held it shall be pursuant to KRS 224.083.

(b) The notice of the decision by the cabinet shall state the reasons for the decision, recommend any corrective actions necessary to secure the release, and notify the permittee, and all interested parties of their right to seek administrative or judicial review of the decision.

(6) Procedures for bond credit in cumulative bonding.

(a) Application. The permittee or any person authorized to act on his or her behalf may file an application with the cabinet to receive bond credit for completion of all reclamation, restorations, and abatement work in a reclamation phase on a sectional area approved under 405 KAR 30:035, Section 4, for cumulative bonding. Bond credit applications may only be filed at times or seasons that allow the cabinet to evaluate properly the reclamation operations alleged to have been completed. The application shall be of such form and content as the cabinet may require and shall include, but not be limited to:

The name of the permittee, the permit number, and the date of issuance or renewal of the permit;
The location, identification, and acreage of the section(s) for which credit is sought and the section(s) to which the credit is requested to be applied;
The total bond amount in effect for the entire permit area and the bond amounts originally calculated for the section(s) identified under subparagraph 2 of this paragraph, and any credits previously given for such section(s); and
A description of the reclamation, restoration, and abatement work completed on the section(s) for which credit is sought.

(b) Inspection and evaluation. The cabinet shall inspect and evaluate the reclamation work on the section(s) involved within thirty (30) days after receiving a completed application for bond credit, or as soon thereafter as weather conditions permit.

(c) Notice of decision. The cabinet shall, within thirty (30) days after its inspection and evaluation, notify the permittee of its decision to grant or deny the requested bond credit. The notice of the decision shall state the reasons for the decision, recommend any corrective actions necessary to secure the bond credit, and notify the permittee of his or her right to request within thirty (30) days of notice a public hearing.

(d) Hearing. In the event that a public hearing has been requested pursuant to paragraph (c) of this subsection, the cabinet shall inform the permittee of the time, date, and place of the hearing and publish notice of the hearing in the newspaper of largest bona fide circulation according to the definition in KRS 424.110 to 424.120 in the county in which the permit area is located once a week for two (2) consecutive weeks before the hearing. The hearing shall be held pursuant to 405 KAR 30:020, Section 8, within sixty (60) days of the cabinet's decision, in the locality of the permit area, or the central office of the cabinet in Frankfort, Kentucky, at the option of the permittee.

Section 2. Criteria and Schedule for Release of Performance Bond.

(1) There shall be no release of performance bonds until the permittee has met the requirements of the applicable reclamation phases as defined in subsection (4) of this section. The cabinet may release portions of the liability under performance bonds applicable to a permit or increment following completion of reclamation phases on the entire permit area or sections designated in the permit plan.

(2) There shall be three (3) phases of reclamation and release of performance bonds shall be calculated under the following percentages:

(a) Sixty (60) percent of the bond shall be released if reclamation phase one (1) is completed on the acreage; and

(b) An additional twenty-five (25) percent of the bond amount shall be released if reclamation phase two (2) is completed on the acreage; and

(c) The remaining fifteen (15) percent of the bond amount shall be released if reclamation phase three (3) is completed on the acreage.

(3) The cabinet shall not release any liability under performance bonds applicable to a permit if such release would reduce the total remaining liability under performance bonds to an amount less than that necessary for the cabinet to complete the approved reclamation plan, achieve compliance with the requirements of all applicable statutes and administrative regulations, and abate any significant environmental harm to air, water or land resources or danger to the public health and safety which might occur prior to the release of all performance bond liability for the permit area. Where the permit includes an alternative postmining land use plan approved by the cabinet, the cabinet shall retain a sufficient amount of bond in order for the cabinet to complete any additional work which would be required to achieve compliance with the general standards for revegetation set forth in these oil shale administrative regulations in the event the permittee fails to implement the approved alternative postmining land use plan within the period of time required by these oil shale administrative regulations.

(4) For the purposes of this section:

(a) Reclamation phase one (1) shall be deemed to have been completed when the permittee completes backfilling, regrading, topsoil replacement, drainage control including soil preparation, seeding, planting and mulching in accordance with the approved reclamation plan, and a planting report for the area has been submitted to the cabinet; and

(b) Reclamation phase two (2) shall be deemed to have been completed when:

Revegetation has been established in accordance with the approved reclamation plan and the standards for the success of revegetation are met;
All water quality performance standards and parameters are met, drainage control is satisfactory to the cabinet, the affected area is not contributing suspended solids to stream flow, run-off outside the permit area is not in excess of the requirements of applicable laws and administrative regulations, and excess suspended solids are not contributed to stream flow or run off outside the permit area;
With respect to prime farmlands, soil productivity has been restored as required by these oil shale administrative regulations and the plan approved pursuant to the permit; and
The provisions of a plan approved by the cabinet for the sound future management of any permanent impoundment by the permittee or landowner have been implemented to the satisfaction of the cabinet.

(c) Reclamation phase three (3) will be deemed to have been completed when the permittee has successfully completed all oil shale operations in accordance with the approved reclamation plan, such that the land is capable of supporting the postmining land use approved by the cabinet, and the permittee has achieved compliance with the requirements of these oil shale administrative regulations and the applicable liability period.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.003, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth the procedures, criteria, and schedule for release of performance bonds.
History: 405 KAR 030:070. 8 Ky.R. 95; 469; eff. 3-1-1982; 9 Ky.R. 948; eff. 10-5-1983; TAm eff. 8-9-2007; Crt eff. 7-7-2018; Crt eff. 6-30-2025.

405 KAR 30:080 Bond forfeiture {#sec-405-kar-30-080 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:080}

Section 1. General. The cabinet may forfeit any bond held by it upon failure of the principal to perform.

Section 2. Procedures. In the event forfeiture of the bond is required by Section 3 of this administrative regulation, the cabinet shall:

(1) Send written notification by certified mail, return receipt requested, to the permittee and the surety on the bond, of the cabinet's determination to initiate forfeiture of the bond and the reasons for the forfeiture, including the amount proposed to be forfeited.

(2) Advise the permittee and those responsible on the bond of their right to a hearing.

Section 3. Criteria for Forfeiture.

(1) The cabinet shall have the authority to forfeit a bond if:

(a) The cabinet finds that the oil shale operations have not been conducted in accordance with all applicable statutes and administrative regulations or the conditions of the permit or the reclamation plan within the time required by the statutes or administrative regulations; or

(b) The cabinet finds that the permit for the area under bond should be revoked; or

(c) The cabinet finds that the permittee or surety, or the party responsible on the bond, has failed to comply with a compliance schedule. The cabinet may withhold forfeiture if the permittee or the party responsible on the bond agrees to a compliance schedule to correct the violations of the permit or bond conditions; or

(d) For such other good cause as the cabinet determines is sufficient.

(2) The cabinet shall forfeit the entire amount of the bond and deposit the forfeited amount in an appropriate account for use in the payment of all costs associated with the conduct of reclamation, restoration or abatement activities by the cabinet on the permit area to which the forfeited bond applies.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth the procedures and criteria by which a bond may be forfeited to the cabinet.
History: 8 Ky.R. 96; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018.

405 KAR 30:090 General provisions for inspection and enforcement {#sec-405-kar-30-090 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:090}

Section 1. Applicability. The provisions of this administrative regulation shall apply to all oil shale operations.

Section 2. Inspection and Enforcement. In accordance with the provisions of this administrative regulation, the cabinet shall conduct or cause to be conducted such inspections, studies, investigations or other determinations as it deems reasonable and necessary to obtain information and evidence which will ensure that oil shale operations are conducted in accordance with the provisions of all applicable statutes and administrative regulations, and all terms and conditions of the permit.

Section 3. Timing and Conduct of Inspections.

(1) Right of entry and access. Authorized employees of the cabinet shall have unrestricted right of entry and access to all parts of the oil shale operation for any purpose associated with their proper duties pursuant to 405 KAR, including but not limited to, making inspections and delivering documents or information of any kind to persons associated with the operation or receiving documents or information from persons associated with the operation.

(2) Prior notice. The cabinet shall have no obligation to give prior notice that an inspection will be conducted.

(3) Timing. Inspections shall ordinarily be conducted at irregular and unscheduled times during normal workdays, but may be conducted at night or on weekends or holidays when the cabinet deems such inspections necessary to properly monitor compliance with all applicable laws and administrative regulations.

(4) Frequency of inspections. The cabinet shall conduct periodic inspections of all oil shale operations.

Section 4. Penalties and Sanctions. Any person who violates any provision of KRS 350.600, any provision of 405 KAR, any other applicable statutes or administrative regulations, or any permit condition, or who fails to perform the duties imposed by such provisions, or who fails to comply with a determination or order of the cabinet pursuant to such provisions, shall be subject to civil penalties as set forth in KRS 350.990(6) or any other applicable provision of law. Violations by any person conducting oil shale operations on behalf of the permittee shall be attributed to the permittee.

Section 5. Public Participation. Any person having an interest which is or may be adversely affected by an oil shale operation shall have the opportunity to cause an inspection and to participate in enforcement actions of the cabinet as provided in 405 KAR 30:110.

Section 6. Formal Review. Any person having an interest which is or may be adversely affected by the issuance, modification, vacation, or termination of a notice or order, may request review of that action by filing a request for hearing, within thirty (30) days after receiving notice of the action. The filing of a request for a hearing shall not operate as a stay of any notice or order or any modification, termination or vacation thereof.

History

RELATES TO: KRS 350.600, 350.990
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600, 350.990
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth an enforcement and inspection policy for the cabinet. This administrative regulation directs that inspections be made periodically and without need of a warrant or prior notice to the operator.
History: 405 KAR 030:090. 8 Ky.R. 96; 470; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:100 Enforcement {#sec-405-kar-30-100 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:100}

Section 1. Notice of Noncompliance and Order for Remedial Measures.

(1) Issuance. An authorized employee of the cabinet shall issue a notice of noncompliance and order for remedial measures if, on the basis of inspection, he finds a violation of KRS 350.600, the administrative regulations promulgated pursuant thereto, any permit condition, or any other applicable statute or administrative regulation.

(2) Form and content. A notice of noncompliance and order for remedial measures issued pursuant to this section shall be in writing and shall be signed by the authorized employee who issued it. The notice shall set forth with reasonable specificity:

(a) The nature of the violation;

(b) The remedial action required, if any, which may include accomplishment of interim steps, if appropriate;

(c) A reasonable time for remedial action, if any, which may include time for accomplishment of interim steps, if appropriate; and

(d) A reasonable description of the portion of the oil shale operation to which the notice applies.

(3) Service. Service of a notice of noncompliance and order for remedial measures shall be in the manner set forth in Section 3 of this administrative regulation.

(4) Extension. An authorized employee may extend the time set for remedial action or for accomplishment of an interim step, if the failure to meet the time previously set was not caused by lack of diligence on the part of the person to whom the notice of noncompliance and order for remedial measures was issued. The total time for remedial action under such notice, including all extensions, shall not exceed ninety (90) days from the date of issuance of the notice, except upon a showing by the permittee that it is not feasible to abate the violation within ninety (90) days.

(5) Modification and termination. An authorized employee may modify or terminate an order for remedial measures for good cause.

Section 2. Notice of Inspection of Noncompliance.

(1) Issuance. If an authorized employee issues a notice of noncompliance and order for remedial measures he shall reinspect the permit area on or soon after the date given in the notice or order for completion of remedial measures. At the time of this reinspection, the authorized representative shall issue a notice of inspection of noncompliance.

(2) Form and content. The notice of inspection of noncompliance shall set forth whether:

(a) The remedial measures have been completed, and the notice or order is therefore terminated;

(b) The remedial measures have not been completed, but the notice or order is modified or extended for good cause; or

(3) Service. Service of a notice of inspection of noncompliance shall be in the manner set forth in Section 3 of this administrative regulation.

(4) The correction of a violation shall not affect the right of the cabinet to assess civil penalties for that violation pursuant to 405 KAR or to impose any other applicable sanctions as authorized by law.

Section 3. Service of Notices and Orders.

(1) Any notice of noncompliance and order for remedial measures, any notice of inspection of noncompliance, and any other order of the cabinet shall be served on the person to whom it is issued, in person or by mailing it to the permanent address shown on the permit and application; or by hand to the designated agent or to the individual who, based upon reasonable inquiry by the authorized employee, appears to be in charge at the site of the oil shale operation. Service, whether by hand or by mail, shall be complete upon tender of the notice or order and shall not be deemed incomplete because of refusal to accept. If no person is present at the site of the operation, service by mail upon the permittee shall by itself be sufficient notice.

(2) Designation by any person of an agent for service of notices and orders shall be made a part of the permit application. Such person shall continue as agent for service of process until such time as written revision of the permit is made which designates another person as agent.

(3) The cabinet may furnish copies of notices and orders to any person having an interest in the oil shale operation.

Section 4. Suspension or Revocation of Mining Permits and Exploration Permits.

(1) The cabinet may, after hearing pursuant to KRS Chapter 224, suspend or revoke a permit if the cabinet determines that a pattern of violations of any requirement of KRS 350.600, the administrative regulations promulgated pursuant thereto, any other applicable statutes or administrative regulations, or any permit condition, exists or has existed.

(2) The cabinet may determine that a pattern of violations exists or has existed, based on two (2) or more inspections of the permit area after considering the circumstances, including:

(a) The number of violations cited on more than one (1) occasion as to same or related requirements of KRS 350.600, the administrative regulations promulgated pursuant thereto, any other applicable statutes or administrative regulations, or permit conditions;

(b) The number of violations cited on more than one (1) occasion as to different requirements of KRS 350.600, the administrative regulations promulgated pursuant thereto, any other applicable statutes and administrative regulations, or permit conditions; and

(3) If the cabinet revokes or suspends the permit, the permittee shall immediately cease oil shale operations on the permit area and shall:

(a) If the permit is revoked, complete reclamation within the time specified in the order; or

(b) If the permit is suspended, complete all affirmative obligations to abate all conditions, practices or violations, as specified in the order.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth various kinds of notices and orders to be issued by authorized representatives of the cabinet. The administrative regulation requires that a notice of noncompliance and order for remedial measures be issued for violations of KRS 350.600, the administrative regulations promulgated pursuant thereto, any permit condition, or any other applicable statute or administrative regulation. The administrative regulation sets forth the general form of the notices, and hearing procedures.
History: 405 KAR 030:100. 8 Ky.R. 97; 471; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:110 Public participation in inspection and enforcement {#sec-405-kar-30-110 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:110}

Section 1. Citizen Request for Inspection.

(1) Any person having an interest which is or may be adversely affected by an oil shale operation, may request that the cabinet conduct an inspection by furnishing to an authorized employee, a signed, written statement, giving the authorized employee reason to believe that a violation, condition, or practice in violation of applicable laws and administrative regulations or permit conditions exists, and setting forth a telephone number and address at which the person can be contacted.

(2) The identity of any person supplying information to the cabinet relating to a possible violation or imminent danger or harm shall remain confidential with the cabinet, if requested by that person, unless disclosure is required by law.

(3) Within ten (10) days of the inspection, or if there is no inspection, within fifteen (15) days of receipt of the person's written statement, the cabinet shall send to the person the following:

(a) If no inspection was conducted, an explanation of the reasons why no inspection was conducted;

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation provides for citizen participation in the inspection and enforcement process. The administrative regulation provides for citizen request for inspection.
History: 405 KAR 030:110. 8 Ky.R. 98; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:121 Oil shale exploration {#sec-405-kar-30-121 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:121}

Section 1. Exploration of Less than 250 Tons.

(1) Any person who intends to conduct oil shale exploration during which less than 250 tons of oil shale will be removed in the area to be explored shall, at least twenty-one (21) days prior to conducting the exploration, file with the cabinet a written notice of intention to explore.

(2) The notice shall include:

(a) The name, address, and telephone number of the person seeking to explore;

(b) The name, address, and telephone number of the representative who will be present at and responsible for conducting the exploration activities;

(d) A statement of the period of intended exploration;

(e) The names and addresses of the owner of record of the surface land and of the subsurface mineral estate of the area to be explored; and

(f) A description of the practices proposed to be followed to protect the environment from adverse impacts as a result of the exploration activities.

(3) The cabinet shall, in accordance with Section 3 of this administrative regulation, place such notices on public file and make them available for public inspection and copying at the appropriate regional office of the cabinet.

(4) Any person who conducts oil shale exploration activities pursuant to this section which substantially disturb any natural land surface shall comply with 405 KAR 30:125.

Section 2. Exploration of More than 250 Tons.

(1) General. Any person who intends to conduct oil shale exploration in which more than 250 tons of oil shale are removed in the area to be explored, shall, prior to conducting the exploration, obtain the written approval of the cabinet in accordance with this section.

(2) Contents of application for approval. Each application for approval in the number and form required by the cabinet, shall contain, at a minimum, the following information:

(a) The name, address, and telephone number of the applicant;

(b) The name, address, and telephone number of the representative of the applicant who will be present at and be responsible for conducting the exploration;

A narrative description of the proposed exploration area, cross-referenced to the map required under paragraph (e) of this subsection, including surface topography; geological, surface water, and other physical features; vegetative cover; the distribution and important habitats of fish, wildlife, and plants, including, but not limited to, any endangered or threatened species listed pursuant to the Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.); districts, sites, buildings, structures or objects listed on or eligible for listing on the National Register of Historic Places; and known archaeological resources located within the proposed exploration area;
A narrative description of the methods to be used to conduct oil shale exploration and reclamation, including, but not limited to, the types and uses of equipment, drilling, blasting, road or other access route construction, and excavated earth and other debris disposal activities;
An estimated timetable for conducting and completing each phase of the exploration and reclamation;
The estimated amounts of oil shale to be removed and a description of the methods to be used to determine those amounts;
A description of the measures to be used to comply with the applicable requirements of 405 KAR 30:125;

(d) The name and address of the owner of record of the surface land and of the subsurface mineral estate of the area to be explored;

(e)

A USGS seven and one-half (7 1/2) minute topographic map marked showing the area of land to be affected and location of drill holes or excavations, and
A map at a scale of 1:6000 (one (1) inch equals 500 feet) or larger, showing the areas of land which may be affected by the proposed exploration and reclamation. The map shall also specifically show existing roads, occupied dwellings, and pipelines; proposed location of trenches, roads, and other access routes and structures to be constructed; the location of land excavations to be conducted; water or oil shale exploratory holes and wells to be drilled or altered; earth or debris disposal areas; existing bodies of surface water; historic, cultural, topographic, and drainage features; and habitats of any endangered or threatened species listed pursuant to the Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.); and

(3) Public notice and opportunity to comment. Public notice of the complete application and opportunity to comment shall be provided as follows:

(a) As contemporaneously as possible with receipt of written notification from the cabinet under subsection (4)(a) of this section that the application is determined to be complete, public notice of the filing of the complete application with the cabinet shall be published by the applicant in the newspaper of largest bona fide circulation, according to the definition in KRS 424.110 to 424.120, in the county in which the exploration area is located.

(b) The public notice shall state the name and business address of the person seeking approval, the date of the filing of the complete application, the address of the cabinet at which written comments on the application may be submitted, the closing date of the public comment period under paragraph (c) of this subsection, and a description of the general area of exploration.

(c) Any person with an interest which is or may be adversely affected shall have the right to file with the cabinet written comments on the complete application within thirty (30) days of the publication of the public notice under paragraph (a) of this subsection.

(4) Processing of applications.

(a) Within twenty-one (21) days of receipt of an application for approval of oil shale exploration, the cabinet shall provide written notification to the applicant as to the completeness of the application. The date of such written notification shall be deemed the date of filing of the complete application. A determination by the cabinet that the application is complete shall not be construed to mean that the application is technically sufficient.

(b) The cabinet shall act upon a complete application within sixty (60) days after the filing of the complete application.

(c) The cabinet shall approve a complete application filed in accordance with this administrative regulation if it finds in writing that the applicant has demonstrated that the exploration and reclamation described in the application:

Will be conducted in accordance with KRS 350.600, 405 KAR 30:125, and this administrative regulation;
Will not jeopardize the continued existence of an endangered or threatened species listed pursuant to Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) or result in the destruction or adverse modification of critical habitat of those species;
Will not adversely affect any cultural resources or districts, sites, buildings, structures, or objects listed or eligible for listing on the National Register of Historic Places, unless the proposed exploration has been approved by both the cabinet and the agency with management responsibility over such area.

(5) Terms of approval and bond requirement.

(a) Each approval issued by the cabinet may contain conditions necessary to ensure that the exploration and reclamation will be conducted in compliance with KRS 350.600, 405 KAR 30:125, and this administrative regulation.

(b) Length of approval. An exploration approval shall be valid for two (2) years. A valid exploration approval shall carry with it the right of successive renewal upon expiration of the term of the approval.

(c) Bond requirement. If an application reveals that there will be a substantial disturbance to the natural land surface, a bond shall be posted in accordance with the requirements of 405 KAR 30:040, Section 1.

(6) Notice and hearing.

(a) The cabinet shall notify the applicant and any other party who has requested such notification, in writing, of its decision to approve or disapprove the application. If the application is disapproved, the notice to the applicant shall include a statement of the reason for disapproval.

(b) Any person with interests which are or may be adversely affected by a decision of the cabinet pursuant to paragraph (a) of this subsection shall have the opportunity for administrative and judicial review.

Section 3. Public Availability of Information. All information submitted to the cabinet under this administrative regulation shall be made available for public inspection and copying pursuant to Kentucky open record statutes KRS 61.870 to 61.884, and 405 KAR 30:150.

Section 4. Compliance. All oil shale exploration and reclamation operations which substantially disturb the natural land surface or which remove more than 250 tons of oil shale shall be conducted in accordance with this administrative regulation and 405 KAR 30:125, and any conditions on approval for exploration and reclamation imposed by the cabinet.

History

RELATES TO: KRS 61.870-61.884, 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 224.035, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth requirements for conducting oil shale exploration.
History: 405 KAR 030:121. 8 Ky.R. 576; eff. 6-2-1982; 9 Ky.R. 949; eff. 10-5-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:125 Oil shale exploration performance standards {#sec-405-kar-30-125 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:125}

Section 1. General Responsibility of Persons Conducting Oil Shale Exploration.

(1) Each person who conducts oil shale exploration which substantially disturbs the natural land surface and in which 250 tons or less of oil shale are removed shall file the written notification to explore required under 405 KAR 30:121, Section 1, and shall comply with Section 3 of this administrative regulation.

(2) Each person who conducts oil shale exploration which substantially disturbs the natural land surface and in which more than 250 tons of oil shale are removed in the area described by the written approval from the cabinet shall comply with the procedures described in the exploration and reclamation operations plan approved under 405 KAR 30:121, Section 2, and shall comply with Section 3 of this administrative regulation.

Section 2. Required Documents. Each person who conducts oil shale exploration which substantially disturbs the natural land surface and which removes more than 250 tons of oil shale shall, while in the exploration area, possess written approval of the cabinet for the activities granted under 405 KAR 30:121, Section 2. The written approval shall be available for review by the authorized representative of the cabinet or the Department for Natural Resources upon request.

Section 3. Performance Standards for Oil Shale Exploration. The performance standards in this section are applicable to oil shale exploration which substantially disturbs land surface.

(1) Habitats of unique value for fish, wildlife, and other related environmental values and areas identified in 405 KAR 30:121, Section 2(2)(c)1, shall not be disturbed during oil shale exploration.

(2) The person who conducts oil shale exploration shall, to the extent practicable, measure important environmental characteristics of the exploration area during the operations, to minimize environmental damage to the area and to provide supportive information for any permit application that person may submit under 405 KAR 30:130.

(3)

(a) Vehicular travel on other than established graded and surfaced roads shall be limited by the person who conducts oil shale exploration to that absolutely necessary to conduct the exploration. Travel shall be confined to graded and surfaced roads during periods when excessive damage to vegetation or rutting of the land surface could result.

(b) Any new road in the exploration area shall comply with the provisions of 405 KAR 30:260.

All applicable federal, state, and local requirements shall be met.
If the road is significantly altered for exploration, including, but not limited to, change of grade, widening, or change of route, or if use of the road for exploration contributes additional suspended solids to stream flow or run-off, then subsection (7) of this section shall apply to all areas of the road which are altered or which result in such additional contributions.
If the road is significantly altered for exploration activities and will remain as a permanent road after exploration activities are completed, the person conducting exploration shall ensure that the requirements of 405 KAR 30:260 are met for the design, construction, alteration, and maintenance of the road.

(d) Promptly after exploration activities are completed, existing roads used during exploration shall be reclaimed either:

To a condition equal to or better than their preexploration condition; or
To the condition required for permanent roads under 405 KAR 30:260.

(4) Topsoil shall be removed, stored, and redistributed on disturbed areas as necessary to assure successful revegetation or as required by the cabinet.

(5) Revegetation of areas disturbed by oil shale exploration shall be performed by the person who conducts the exploration or his agent. If more than 250 tons of oil shale are removed from the exploration area, all revegetation shall be in compliance with the plan approved by the cabinet and carried out in a manner that encourages prompt vegetative cover and recovery of productivity levels compatible with approved postexploration land use and in accordance with the following:

(a) All disturbed land shall be seeded or planted to the same seasonal variety native to the disturbed area. If both the preexploration and postexploration land uses are intensive agriculture, planting of the crops normally grown will meet the requirements of this paragraph.

(b) The vegetative cover shall be capable of stabilizing the soil surface in regards to erosion.

(6) With the exception of small and temporary diversions of overland flow of water around new roads, drill pads, and support facilities, no ephemeral, intermittent or perennial stream shall be diverted during oil shale exploration activities. Overland flow of water shall be diverted in a manner that:

(a) Prevents erosion;

(b) To the extent possible using the best technology currently available, prevents additional contributions or suspended solids to stream flow or run-off outside the exploration area; and

(7) Each exploration hole, borehole, well, or other exposed underground opening created during exploration must meet the requirements of 405 KAR 30:270.

(8) All facilities and equipment shall be removed from the exploration area promptly when they are no longer needed for exploration, except for those facilities and equipment that may remain to:

(a) Provide additional environmental quality data;

(b) Reduce or control the on- and off-site effects of the exploration activities; or

(c) Facilitate future surface mining and reclamation operations by the person conducting the exploration under an approved permit.

(9) Oil shale exploration shall be conducted in a manner which minimizes disturbance of the prevailing hydrologic balance, and shall include sediment control measures such as those listed in 405 KAR 30:330. The cabinet may specify additional measures which shall be adopted by the person engaged in oil shale exploration.

(10) Toxic or acid-forming materials shall be handled and disposed of in accordance with the plan approved by the cabinet under 405 KAR 30:121, Section 2(2)(c).

Section 4. Requirements for a Permit. Any person who extracts oil shale for commercial sale during oil shale exploration operations must obtain a permit for those operations from the cabinet under 405 KAR 30:130. No permit is required if the cabinet makes a prior determination that the sale is to test for oil shale properties necessary for the development of oil shale operations for which a permit application is to be submitted at a later time.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 224.035, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth performance standards applicable to oil shale exploration operations which substantially disturb the land surface.
History: 405 KAR 030:125. 8 Ky.R. 578; eff. 6-2-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:130 Oil shale operation permits {#sec-405-kar-30-130 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:130}

Section 1. Applicability. The provisions of this administrative regulation shall apply to permits for all oil shale operations except for oil shale exploration operations.

Section 2. Permit Required. No person shall engage in oil shale operations without first having obtained a permit from the cabinet.

Section 3. Term of Permits.

(1) Each permit shall be issued for a fixed term not to exceed five (5) years. A longer fixed permit term may be granted at the discretion of the cabinet only if:

(a) The application is full and complete for the specified longer term; and

(b) The applicant shows that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing of the operation, and this need is confirmed, in writing, by the applicant's proposed source for the financing.

(2) A permit shall terminate if the permittee has not begun the oil shale operation covered by the permit within three (3) years of the issuance of the permit. The permittee shall be deemed to have commenced oil shale operations at the time that the construction of the processing plant is initiated or at the time that mining of the shale begins, whichever is first.

(a) The cabinet may grant reasonable extensions of the time for commencement of these operations, upon receipt of a written statement showing that such extensions of time are necessary, if:

Litigation precludes the commencement or threatens substantial economic loss to the permittee; or
There are conditions beyond the control and without the fault or negligence of the permittee.

(b) Extensions of time granted by the cabinet under this subsection shall be specifically set forth in the permit and notice of the extension shall be made to the public.

Section 4. Preliminary Requirements. A person desiring a permit shall submit to the cabinet the necessary preliminary application as prescribed by the cabinet. The preliminary application shall contain pertinent information including, but not limited to, a U.S. geological survey seven and one-half (7 1/2) minute topographic map and a 1:6000 map marked to show the boundaries of the area of land to be affected, and the location of the oil shale deposits to be mined, access roads, haul roads, spoil disposal areas, and sedimentation ponds. Areas so delineated on the map shall be physically marked at the site in a manner prescribed by the cabinet. Personnel of the cabinet shall conduct, within thirty (30) days after filing, an on-site examination of the area with the person or his representatives after which the person may submit a permit application.

Section 5. Publication of Notice of Intention to Mine.

(1) An applicant for a permit shall place an advertisement in the newspaper of largest bona fide circulation, according to the definition of KRS 424.110 to 424.120, in the county or counties wherein the proposed oil shale operation is to be located.

(2) The advertisement shall be published at least once each week for four (4) consecutive weeks, with the first advertisement being published not less than ten (10) nor more than thirty (30) days prior to the filing of the permit application with the cabinet.

(3) The public notice of the intention to file an application shall be entitled "Notice of Intention to Conduct Oil Shale Mining" and shall be in a manner and form prescribed by the cabinet and shall include, but not be limited to, the following:

(a) The name and address of the applicant;

(b) The permit application number;

Clearly describe towns, rivers, streams, or other bodies of water, local landmarks, and any other information, including routes, streets, or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area;
Clearly describe the exact location and boundaries of the proposed permit area; and
State the name(s) of the U.S. geological survey seven and one-half (7 1/2) minute quadrangle map(s) which contains the area shown or described.

(d) A description of the kind of mining activity proposed, together with a statement of the amount of acreage affected by the proposed operation;

(e) The address of the cabinet to which interested persons may submit written comments on the application; and

(f) The location where a copy of the application is available for public inspection.

(4) The applicant for a permit required under this administrative regulation shall establish the date and place at which the "Notice of Intention to Conduct Oil Shale Mining" was published by attaching to his application an affidavit from the publishing newspaper certifying the time, place and content of the published notice.

(5) Public inspection of the application. The applicant shall make a full copy of the complete application for a permit available for the public to inspect and copy. This shall be done by filing a copy of the application submitted to the cabinet at the courthouse of the county where the mining is proposed to occur.

(6) Any person with an interest which is or may be adversely affected shall have the right to file with the cabinet written comments on the application within thirty (30) days of the final notice of the application in the newspaper.

Section 6. Contents of the Permit Application.

(1) A person desiring a permit shall submit the necessary application as prescribed by the cabinet. The application shall be on forms provided by the cabinet, and originals and copies of the application shall be prepared, assembled and submitted in the number, form and manner prescribed by the cabinet with such attachments, plans, maps, certifications, drawings, calculations or other such documentation or relevant information as the cabinet may require.

(2) The application shall include the following information:

(a) Each application shall contain the names and addresses of:

The permit applicant, including his or her telephone number;
Every owner of the surface of the area of land to be affected by the permit;
The owners of record of all surface areas contiguous to any part of the proposed permit area;
Every owner of the oil shale to be mined;
The holders of any leasehold interest in the property to be mined;
The contractor or other person, if different from the applicant, who will conduct surface mining activities on behalf of the applicant, including his telephone number; and
The resident agent of the applicant who will accept service of process, including his telephone number.

(b) Each application shall contain the following information:

A detailed description of the location and area of land to be affected by the operation, specifying the permit boundaries;
A description of access to the site from the nearest public highway;
The source of the applicant's legal right to mine oil shale on the land affected by the permit;
A copy of the applicant's published notice of intention to mine and an affidavit from the publisher, pursuant to Section 5 of this administrative regulation;
The name of the proposed mine and the Mine Safety and Health Administration identification number for the mine and all sections, if applicable;
Proof, such as a power of attorney or a resolution of the board of directors, that the individual signing the application has the authority to represent the applicant in the permit matter;
Whether or not the applicant, any subsidiary, or affiliate; or any officer, partner, or director, or any individual owning, of record or beneficially, ten (10) percent or more of any class of stock of the applicant, holds or has held any other federal or state oil shale or any surface coal mining permit issued by the cabinet and the identification of such permits.

A statement of whether the applicant, any subsidiary, or affiliate; or any officer, partner, director, or any individual owning, of record or beneficially, ten (10) percent or more of any class of stock of the applicant, has:

a. Had an oil shale or surface coal mining permit of the United States or any state suspended or revoked; or,

b. Forfeited an oil shale or surface coal mining performance bond or similar security deposited in lieu of bond.

If any such suspension, revocation, or forfeiture has occurred, the application shall contain a statement of the facts involved, including:

a. Identification number and date of issuance of the permit, and date and amount of bond or similar security;

b. Identification of the authority that suspended or revoked the permit or forfeited the bond and the stated reasons for that action;

c. The current status of the permit, bond, or similar security involved;

d. The date, location, and type of any administrative or judicial proceedings initiated concerning the suspension, revocation, or forfeiture; and

e. The current status and results of these proceedings.

Each application shall contain a list of each violation notice pertaining to federal oil shale mining laws and the regulations promulgated pursuant thereto, and oil shale mining laws and applicable administrative regulations of any state, received by the applicant in connection with any oil shale mining operation during the three (3) year period before the application date. Each application shall also contain a list of each violation notice pertaining to air or water environmental protection received by the applicant in connection with any oil shale mining operation during the three (3) year period before the application date. The application shall contain a statement of the facts involved, including:

a. The date of issuance and identity of the issuing regulatory authority, cabinet, or agency;

b. A brief description of the particular violation alleged in the notice;

c. The date, location, and type of any administrative or judicial proceedings initiated concerning the violation; and

d. The current status and results of these proceedings.

(3) Maps. The application shall include one (1) copy of a United States Geological Survey seven and one-half (7 1/2) minute topographic map or other such map acceptable to the cabinet on which the operator has indicated the location of the operation, the course which would be taken by drainage from the operation to the stream or streams to which such drainage would normally flow, the name of the applicant and date, and the name of the person who located the operation on the map.

(4) Enlarged maps. The application shall include one (1) copy of an enlarged United States Geological Survey seven and one-half (7 1/2) minute topographic map or other such map enlarged to a scale of 1:6000 or larger acceptable to the cabinet and meeting the requirements of paragraphs (a) through (h) of this subsection. The map shall:

(a) Be prepared and certified by a professional engineer, registered under the provisions of KRS Chapter 322. The certification shall read as follows: "I, the undersigned, hereby certify that this map is correct, and shows to the best of my knowledge and belief all the information required by the oil shale mining laws of this state." The certification shall be signed and notarized. The cabinet may reject any map as incomplete if its accuracy is not so attested;

(b) Show adjacent surface, underground, and in situ mining operations and the boundaries of surface properties and names of owners of the affected area and owners of properties contiguous to any part of the affected area;

(d) Show the names and locations of all streams, lakes, creeks, or other bodies of public water, roads, buildings, cemeteries, oil and gas wells, public parks, public property, and utility lines on the area of land affected within 1,000 feet of such area;

(e) Show by appropriate markings the boundaries of the area of land to be affected, the deposit of oil shale to be mined, and the total number of acres involved in the area of land to be affected;

(f) Show the date on which the map was prepared, the north point and the quadrangle name; and

(g) Show the drainage plan on and away from the area of land to be affected. Such plan shall indicate the directional flow of water, constructed drainways, natural waterways used for drainage, and the streams or tributaries receiving the discharge.

(5) Prime farmland. If the area to be mined has been designated as prime farmland, the application shall include a plan for the mining and restoration of prime farmland consistent with the requirements of 405 KAR 30:280.

(6) Postmining land use plan. The application shall include a plan for postmining land use which shall demonstrate to the satisfaction of the cabinet that the proposed operation will comply with the requirements of 405 KAR 30:220 regarding postmining land use.

(7) Use of explosives plan. The application shall include a plan for use of explosives which shall demonstrate to the satisfaction of the cabinet that the proposed operation will comply with the requirements of 405 KAR 30:250 with regard to use of explosives.

(8) Topsoil handling and restoration plan. The application shall include a plan for the handling and restoration of topsoil which shall demonstrate to the satisfaction of the cabinet that the proposed operation will comply with the requirements of 405 KAR 30:290 with regard to topsoil handling.

(9) Backfilling and grading plan. The application shall include a plan for backfilling and grading which shall demonstrate to the satisfaction of the cabinet that the proposed operation will comply with the requirements of 405 KAR 30:390 with regard to backfilling and grading.

(10) Revegetation plan. The application shall include a plan for the revegetation of all disturbed areas which shall demonstrate to the satisfaction of the cabinet that the proposed operation will comply with the requirements of 405 KAR 30:400 with regard to revegetation.

(11) Spoil and spent shale disposal plan. The application shall include a plan for the disposal of spoil and spent shale in excess of that required to meet the backfilling and grading requirements of 405 KAR 30:390 which shall demonstrate to the satisfaction of the cabinet that the proposed operation will comply with the requirements of 405 KAR 30:370 with regard to disposal of spoil and spent shale.

(12) Plan for handling of waste materials and acid-forming and toxic-forming materials. The application shall include a plan for the handling of acid-forming and toxic-forming materials, waste materials or other unstable materials which shall demonstrate to the satisfaction of the cabinet that the operation will comply with the requirements of 405 KAR 30:360, Waste management provisions.

(13) Surface water control and monitoring plan. The application shall contain a plan for the control and monitoring of surface water, which shall demonstrate to the satisfaction of the cabinet that the proposed operation will comply with the requirements of:

(a) 405 KAR 30:300 with regard to protection of the hydrologic system;

(b) 405 KAR 30:320 with regard to water quality standards and surface water monitoring;

(d) 405 KAR 30:310 with regard to diversions of surface flows and water withdrawal.

(14) Groundwater control and monitoring plan. The application shall include a plan for the control and monitoring of groundwater, which shall demonstrate to the satisfaction of the cabinet that the operation will comply with the requirements of:

(a) 405 KAR 30:300 with regard to protection of the hydrologic system;

(b) 405 KAR 30:320 with regard to groundwater; and

(15) Air resources protection plan. The application shall include an air resources protection plan which shall demonstrate to the satisfaction of the cabinet that the proposed operation will comply with the requirements of 405 KAR 30:230 with regard to air resources protection.

(16) Fish and wildlife plan. The application shall include a fish and wildlife plan which shall demonstrate to the satisfaction of the cabinet that the operation will comply with the requirements of 405 KAR 30:240 with regard to fish and wildlife.

(17) In the required operational plans specified in subsections (5) through (16) of this section and in the other requirements of this section, the cabinet may require all such supporting documentation as the cabinet may deem necessary to ensure that the provisions of this chapter will be met. Such documentation may include but not be limited to detailed engineering drawings, engineering calculations, and monitoring and documentation prepared by qualified persons in other appropriate technical fields or sciences.

(18) Each application submitted to the Department for Natural Resources for an oil shale operation permit shall be accompanied by a fee determined by the cabinet. The amount of such fee shall be $500, plus fifty (50) dollars for each acre or fraction thereof of the area of land to be affected under the permit; provided however, such fee shall not exceed the actual or anticipated cost of reviewing the permit. The fee shall accompany the application in the form of a cashier's check or money order payable to the Kentucky State Treasurer. No application shall be processed unless such fee has been paid. The payment of such fee shall only cover the permit required by the Department for Natural Resources and shall not relieve the applicant from the obligation to pay additional fees for any other permits required from the cabinet.

Section 7. Procedures for Processing of Application.

(1) Five (5) separate copies of the complete application shall be submitted to the cabinet at the location and address prescribed by the cabinet. The cabinet will provide written acknowledgment of receipt of the application.

(2) Within twenty-one (21) days of receipt of an application for a permit to conduct oil shale operations, the cabinet shall provide written notification to the applicant as to the completeness of the application. A determination by the cabinet that the application is complete shall not be construed to mean that the application is technically sufficient.

(3) The cabinet shall act upon a complete application within 120 days after the filing of the complete application.

(4) The cabinet shall approve a complete application filed in accordance with this administrative regulation, if it finds, in writing, that the applicant has demonstrated that the oil shale operation described in the application:

(a) Will be conducted in accordance with applicable statutes and administrative regulations;

(b) Will not jeopardize the continued existence of an endangered or threatened species listed pursuant to Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) or result in the destruction or adverse modification of critical habitat of those species; and

(c) Will not adversely affect any cultural resources or districts, sites, buildings, structures, or objects listed on the National Register of Historic Places, unless the proposed exploration has been approved by both the cabinet and the agency with management responsibility over such areas.

Section 8. Notice and Hearing.

(1) The cabinet shall notify the applicant and any person who requests such notification, in writing, of its decision to approve or disapprove the application. If the application is disapproved, the notice to the applicant shall include a statement of the reason for disapproval.

(2) Any person with an interest which is or may be adversely affected by a decision of the cabinet pursuant to paragraph (1) of this section, shall have the opportunity for administrative and judicial review.

Section 9. Compliance.

(1) Permit conditions. Permits issued by the cabinet may contain certain conditions necessary to ensure that the oil shale operation will be conducted in compliance with all applicable statutes and administrative regulations.

(2) All oil shale operations shall be conducted in accordance with all applicable statutes and administrative regulations and any conditions imposed by the cabinet on the permit.

Section 10. Cabinet Review of Outstanding Permits.

(1) The cabinet shall review each permit issued and outstanding under this chapter during the term of the permit. This review shall occur not later than the middle of the permit term.

(2) After this review, the cabinet may, by order, require revision or modification of the permit provisions or may increase the amount of the bond to ensure compliance with all applicable statutes and administrative regulations.

(3) Copies of the decision of the cabinet shall be sent to the permittee.

(4) Any order of the cabinet which requires revision or modification of the permit or increases the amount of the bond shall be based upon written findings and shall be subject to the provisions for administrative and judicial review.

Section 11. Permit Revisions.

(1) A revision to a permit shall be obtained:

(a) For changes in the oil shale operation described in the original application and approved under the original permit;

(b) When required by an order issued under Section 10 of this administrative regulation; or

(2) The application for a revision shall be filed with the cabinet sixty (60) days prior to the date on which the permittee expects to revise the oil shale operation. The term of a permit shall remain unchanged by a revision.

(3) Application for changes in the method of operation or when required by an order issued under Section 10 of this administrative regulation:

(a) An application for a revision under subsections (1)(a) or (b) of this section shall meet the following requirements:

The application for revision shall be submitted in the form prescribed by the cabinet.
The permittee shall submit, in the manner prescribed by the cabinet, all revised or updated information required by the cabinet. Such information shall include, but not be limited to, an updated operational plan current to the date of the request for the revision, showing the status and extent of all oil shale operations on the existing permit.
The permittee shall provide evidence of any additional bond which the cabinet might require.
The permittee shall provide public notice as required under Section 5 of this administrative regulation.

(b) The revision shall be granted provided that:

The permittee is in compliance with the terms and conditions of the existing permit.
The present oil shale mining and reclamation operation is in compliance with all applicable statutes and administrative regulations.

(c) The permit for the revision may contain conditions necessary to ensure compliance with all applicable statutes and administrative regulations.

(4) Application for a revision to increase the area under permit. Upon application by the operator, the cabinet may amend a valid existing permit so as to increase the permitted area of land to be affected by operations under that permit. Such applications for amendment may be filed at any time during the term of the permit.

(a) Application. The permittee shall file an application in the same form and with the same content as required for an original application under this administrative regulation.

(b) Fees. The application submitted to the Department for Natural Resources for a revision to an oil shale operation permit shall be accompanied by a fee determined by the cabinet. The amount of such fee shall be $500, plus fifty (50) dollars for each acre or fraction thereof of the increased area; provided however, such fee shall not exceed the actual or anticipated cost of reviewing the permit. The fee shall accompany the application in the form of a cashier's check or money order payable to the Kentucky State Treasurer. No application for a revision will be processed unless such fee has been paid. The payment of such fee shall only cover the permit required by the Department for Natural Resources and shall not relieve the applicant from the obligation to pay additional fees for any other permits required from the cabinet.

(c) The operator shall file with the cabinet a supplemental bond in an amount to be determined as provided under 405 KAR 30:040 for each acre or fraction of an acre of the increased area.

(5) Notice and hearing.

(a) The cabinet shall notify the applicant and any person who requests such notification, in writing, of its decision to approve or disapprove the application. If the application is disapproved, the notice to the applicant shall include a statement of the reason for disapproval.

(b) Any person with an interest which is or may be adversely affected by a decision of the cabinet pursuant to paragraph (1) of this section shall have the opportunity for administrative and judicial review.

Section 12. Permit Renewals.

(1) Any valid permit issued pursuant to KRS 350.600 and the administrative regulations promulgated pursuant thereto shall carry with it the right of successive renewal upon expiration of the term of the permit. Successive renewal shall be available only for those areas specifically within the boundaries of the existing permit.

(2) Any permit renewal shall be for a term not to exceed the period of the original permit.

(3) An application for renewal of a permit shall be filed with the cabinet at least sixty (60) days before the expiration date of the permit.

(4) If an application for renewal of a valid existing permit includes a proposal to extend the operation beyond the boundaries authorized in the existing permit, the portion of the application which addresses any new land areas shall be subject to the full standards applicable to a new application pursuant to KRS 350.600 and the administrative regulations promulgated pursuant thereto, and a new and original application shall be required for such areas.

(5) The permit renewal shall be issued provided that the requirements of paragraphs (a) through (f) of this subsection are met.

(a) The application for renewal shall be submitted in the form prescribed by the cabinet.

(b) The operator shall submit all revised or updated information required by the cabinet. Such information shall include, but not be limited to, an updated operational plan current to the date of request for renewal, showing the status and extent of all oil shale operations on the existing permit.

(d) The present oil shale operation is in compliance with all applicable statutes and administrative regulations.

(e) The permittee shall provide evidence of any additional bond which the cabinet might require.

(f) The permittee shall provide public notice as provided for under Section 5 of this administrative regulation.

(6) Notice and hearing.

(b) Any person with an interest which is or may be adversely affected by a decision of the cabinet pursuant to this section shall have the opportunity for administrative and judicial review.

Section 13. Criteria for Permit Approval and Denial. No application for a permit and no oil shale operation shall be approved or allowed, unless the application affirmatively demonstrates and the cabinet determines on the basis of information set forth in the application, and other available information as necessary, that:

(1) The permit application is accurate, complete and that all requirements of KRS Chapters 151, 224, and 350 and the administrative regulations promulgated pursuant thereto have been complied with.

(2) The oil shale operations proposed can be carried out under the method of operation contained in the application in a manner that will satisfy all requirements of KRS Chapters 151, 224, and 350, and the administrative regulations promulgated pursuant thereto.

(3) The oil shale operations proposed have been designed to minimize adverse effects to the hydrologic balance.

(4) The proposed operation will not constitute a hazard to, or do physical damage to life, to a dwelling house, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, other public property or to members of the public, their real and personal property. All necessary measures shall be included in the method of operation in order to eliminate such hazard or damage. If it is not technologically feasible to eliminate such hazard or damage by adopting specifications in the method of operation, then that part of the operation which constitutes the cause of the hazard or damage shall be deleted from the application.

(5) The proposed operation will not adversely affect:

(a) A wild river established pursuant to KRS Chapter 146;

(b) The continued existence of an endangered or threatened species listed pursuant to Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533), or result in the destruction or adverse modifications of the habitat of such a species;

(c) Fragile or historic lands in which the oil shale operations could result in significant damage to important historic, cultural, scientific, aesthetic values and natural systems;

(d) Renewable resource lands in which the oil shale operations could result in substantial loss or reduction of the long-range availability of water supplies;

(e) Renewable resource lands in which the oil shale operations could result in substantial loss or reduction of the long-range productivity of food and fiber products; and

(f) Natural hazard lands in which oil shale operations could substantially endanger life and property.

(6) The applicant has with respect to prime farmland obtained either a negative determination or satisfied the requirements of Section 6(5) of this administrative regulation and 405 KAR 30:280.

(7) The proposed operation will not be inconsistent with other oil shale operations anticipated to be performed in areas adjacent to the proposed permit area.

(8) The proposed permit area is:

(a) Not included within the boundaries of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act, and the National Recreation Areas designated by Act of Congress;

(b) Not included within 300 feet, measured horizontally, of any public park, public building, school, church, community or institutional building;

(d) Not within 100 feet, measured horizontally, of the outside right-of-way line of any public road, except where mine access roads or haulage roads join such right-of-way. The cabinet may permit such roads to be relocated or, in the area affected, to lie within 100 feet of such road, if the applicant has obtained necessary approval from the governmental authority with jurisdiction over the public road and if after public notice and opportunity for public hearing a written finding is made by the cabinet that the interest of the public and the landowner affected thereby will be protected. The public notice required shall be published in the counties of the affected area in the newspaper(s) of largest bona fide circulation according to the definition in KRS Chapter 424;

(e) Not within 300 feet, measured horizontally, of an occupied dwelling unless the applicant submits with the permit application a written waiver from the owner of the dwelling consenting to such an operation within a closer distance of the dwelling specified in the waiver. The waiver must be knowingly and intelligently given and be separate from a lease or deed unless the lease or deed contains an explicit waiver; and

(f) Not within 100 feet of an intermittent or perennial stream unless the cabinet specifically authorizes operations at a closer distance to, or through, the stream. Such authorization shall not be given unless the applicant demonstrates to the satisfaction of the cabinet that such authorization is environmentally sound and that all other applicable laws and administrative regulations have been complied with.

(9) If the cabinet is unable to determine whether the proposed oil shale operation is located within the distances or boundaries of any of the lands identified in subsections (5), (6), and (8) of this section, the cabinet shall transmit a copy of the relevant portions of the permit application to the appropriate federal, state, or local government agency for a determination or clarification of the relevant boundaries or distances, with a notice to the agency that it must respond in writing within thirty (30) days of receipt of the request. Upon failure of the agency to respond in writing within the thirty (30) day period, the cabinet shall presume that the proposed oil shale operation is not located within the boundaries of any such lands.

Section 14. Denial of Permit for Past Violations.

(1) An operator or person whose permit has been revoked or suspended shall not be eligible to receive another permit or begin another operation, or be eligible to have suspended permits or operations reinstated until he shall have complied with all the requirements of KRS Chapter 350 with respect to all permits issued him.

(2) An operator or person who has forfeited any bond shall not be eligible to receive another permit or begin another operation unless the land for which the bond was forfeited has been reclaimed without cost to the state, or the operator or person has paid such sum as the cabinet finds is adequate to reclaim such lands.

(3) If the applicant, operator, any subcontractor of the applicant, or any person acting on behalf of the applicant, has either conducted activities with a demonstrated pattern of willful violations of KRS Chapter 350 or has repeatedly been in noncompliance of KRS Chapter 350, then the application should be denied; provided nothing contained herein shall be construed as to relieve a permittee of responsibility with respect to any permit issued to him.

(4) If the cabinet determines that any activity regulated pursuant to KRS Chapter 350 which is owned or controlled by the applicant is currently in violation of any environmental law or administrative regulation of the Commonwealth, then the cabinet shall require the applicant, before the issuance of the permit, to either:

(a) Submit proof which is satisfactory to the cabinet that the violation:

Has been corrected, or
Is in the process of being corrected in good faith; or

(b) Establish to the satisfaction of the cabinet that the applicant has filed and is presently pursuing a good faith administrative or judicial appeal to contest the validity of the violation.

(5) If the applicant submits the proof specified in either subsection (4)(a)2 or (b) of this section, then the cabinet may issue the permit with an appropriate condition that either the reclamation work be continued in good faith until completion or that, if the applicant loses his action contesting the violation, such violation be corrected within a specified time. Failure to comply with any conditions shall be grounds for revocation of the permit.

(6) If the applicant disagrees with the cabinet's determination under this section then the applicant has the right to request an administrative hearing pursuant to KRS 224.081(2).

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 146.270, 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Department for Natural Resources to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth the requirements for obtaining an oil shale mining permit.
History: 405 KAR 030:130. 8 Ky.R. 100; 472; eff. 8-2-1981; 9 Ky.R. 951; eff. 10-5-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:140 Written approval required for transfer of permit; successor in interest {#sec-405-kar-30-140 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:140}

Section 1. No Transfer or Succession Without Prior Written Approval.

(1) No permit issued pursuant to this chapter shall be transferred by sale, assignment, lease, or otherwise except upon the prior written approval of the cabinet. There shall be no succession on the permitted area without the prior written approval of the cabinet. The initial permittee must notify the cabinet in writing of any proposed succession, sale, assignment, lease or other transfer. The cabinet may release the first operator from reclamation responsibility under this chapter as to that particular operation; provided, however, there shall be no release until the successor operator has been issued a permit and has otherwise complied with the requirements of this chapter, and, further provided, that the successor immediately assumes as a part of his obligation under this chapter all liability for the reclamation of the area of land affected by the former permitted operation.

(2) If the cabinet has given its prior written approval to the transfer, a successor in interest to a permittee who applies for a new permit within thirty (30) days of succeeding to such interest, and who obtains immediate bond coverage at least equivalent to the amount of the bond of the original permittee, may continue oil shale operations according to the approved permit plan of the original permittee until such successor's application is granted or denied. The bond coverage provided by the successor in interest must take effect immediately upon the commencement of operations by the successor.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth criteria for transfer for succession of permits.
History: 405 KAR 030:140. 8 Ky.R. 105; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:150 Oil shale records open to public inspection; confidential nature of certain data {#sec-405-kar-30-150 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:150}

Section 1. Designation of Records. Any record or other information furnished to or obtained by the cabinet relating to the prospecting, exploration, testing, development, mining, processing and reclamation of oil shale operations shall be open to reasonable public inspection except for any record or information which constitutes a trade secret or confidential business information and is designated as such by the cabinet upon a satisfactory showing by the owner of such record.

Section 2. Access to Public Records.

(1) Upon written application to the cabinet, any person may, after adequately identifying the records, inspect and make abstracts and memoranda of the contents of any public record except those designated to be a trade secret or confidential business information. Copies of the proper written material shall be furnished to any person requesting them upon payment of a fee; copies of photographs, maps and other nonwritten material and records stored in the computer files or libraries if not of a confidential nature or a trade secret shall be furnished to any person requesting them upon payment of a fee equal to the actual cost to the cabinet of producing the copies. The fee shall be collected before the copies are handed or sent to the person requesting them.

(2) The inspection of public records of the cabinet shall in all cases be made in the presence of an employee of the cabinet on cabinet premises during the usual office hours.

Section 3. Procedure for Designation that a Record Constitutes a Trade Secret or Confidential Business Information.

(1) Any owner of records furnished to or obtained by the cabinet may assert a business confidentiality claim or any other claim applicable under KRS 61.870 et seq. Allegedly confidential portions or documents should be clearly identified by the owner and may be submitted separately to facilitate identification and handling. All assertions of a claim of confidentiality shall be made in writing to the appropriate department commissioner.

(2) No record or information designated by the owner to be either a trade secret or confidential business information shall be released to the public, to the federal government or to any other agency, cabinet or officer of the Commonwealth without providing the owner fifteen (15) days written notice of the proposed cabinet action.

Section 4. Cabinet Reports, Analyses or Summaries. Nothing herein shall be construed to prevent the use of records or information by the cabinet in compiling or publishing reports, analyses or summaries relating to general conditions in the environment, nor shall anything herein prevent the use of any record or other information for the purposes of administration or enforcement of any federal, state or local law. No such report, analyses, summary or use shall directly or indirectly publicly reveal information otherwise confidential under this section.

History

RELATES TO: KRS 61.870-61.884, 350.600
STATUTORY AUTHORITY: KRS 61.870-61.884, 224.033, 224.035, 224.036, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Natural Resources and Environmental Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth records open to public inspection and methods for determining the confidential nature of certain data.
History: 405 KAR 030:150. 8 Ky.R. 106; eff. 3-1-1982; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:160 Data requirements {#sec-405-kar-30-160 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:160}

Section 1. General. This administrative regulation applies to any person who engages in an oil shale operation with the exception of exploration operations. The extent and duration of data collection will be determined by the cabinet. Such determination will be made based on the proposed activity by the applicant and its potential for adverse environmental impacts on the area to be affected by such activity.

Section 2. Baseline and Background Data Requirements.

(1) Any permit applicant shall submit with the application as determined by the cabinet data collected on the following environmental parameters: air quality and climatology, water quality, water quantity, aquatic flora and fauna, terrestrial flora and fauna, and historic, geologic, pedologic, and archaeological features. In the design and operation of the baseline data collection and monitoring programs, the permittee shall strive to collect data for the greatest period of time practicable as approved by the cabinet with emphasis on acquisition of quality data. The permittee shall establish and implement a quality assurance program approved by the cabinet to assure high quality data collection. This quality assurance program shall include but not be limited to: quality control by standard reference materials such as those available through the National Bureau of Standards; data validation through established criteria of acceptability; method and frequency of calibration and maintenance; and testing programs to identify and quantify data anomalies.

(2) Air quality and climatology monitoring by the applicant shall be in accordance with KRS Chapter 224 and the administrative regulations promulgated pursuant thereto.

(3) Surface water monitoring by the applicant shall include monitoring sites established on major streams, upstream and downstream from anticipated sources of pollution including adjacent impacted tributaries. Seasonal sampling (winter, spring, summer, and fall) is required with a minimum of six (6) samples taken in each affected perennial stream per year. A minimum of two (2) samples shall be taken during high flow and a minimum of two (2) samples shall be taken during low flow. Sampling for metals, organic compounds, and water quality assessment shall be performed during low flow periods. Sampling of intermittent streams shall be during the maximum flow regime. The sampling parameters for intermittent streams shall be recommended by the applicant and approved by the cabinet. All sampling shall be performed by qualified personnel and the analyses performed by a qualified laboratory. The number and location of sampling sites shall be recommended by the applicant for approval by the cabinet.

(4) Water sampling parameters shall include but not be limited to the following:

(a) Physical parameters monitored will include: total dissolved solids or specific conductance, total suspended solids, and temperature.

(b) Chemical parameters will include ph, acidity, alkalinity, sulfate, iron, manganese, silver, arsenic, barium, cadmium, chromium, mercury, lead, selenium, nickel, molybdenum, vanadium, boron, fluorine, copper, total organic carbon (TOC), total phenols, inorganic carbon, cyanides, sulfides, ammonia, and thiocyanates.

(d) Radiological parameters will include gross alpha (once in high flow and once in low flow) and further testing as prescribed by the Environmental and Public Protection Cabinet if radioactivity is found.

(e) All chemicals and their by-products that will be involved in processing the shale will be identified by the applicant. The applicant shall recommend a monitoring plan for approval by the cabinet.

(5) Groundwater will be monitored for the same parameters as surface water with the exceptions of biochemical oxygen demand (BOD), chemical oxygen demand (COD) and dissolved oxygen (DO). Sampling will be performed on a biannual basis during periods of surface high flow and low flow regimes and accomplished by using test wells whose number and location will be determined by the site plan. The wells will be placed after the submission of the site plan and prior to the start-up of the operation.

(6) Water quantity will be assessed during minimum, maximum, and average discharge conditions to identify critical low flow and peak discharge rates of streams to identify seasonal variations.

(7) Aquatic flora and fauna will be sampled at a minimum of five (5) stations. These stations will include at least one (1) above the point source, one (1) at the point source, at least one (1) in the same stream below the point source and one (1) in the next order higher stream below the point source. The location of these stations and the duration of the data collection shall be recommended by the applicant for approval by the cabinet.

(a) Invertebrates will be sampled for qualitatively using a minimum of three (3) surber samples or three (3) samples collected using an equivalent methodology at a riffle at each station. If no riffles exist in the stream, then the pool at each station should be sampled by dredge.

(b) Fishes will be qualitatively sampled for at a pool and riffle at each station using small mesh minnow seines and portable electroshockers. For streams which contain pools with water depths greater than four (4) feet, this data will be supplemented by using gill or trammel nets.

(d) Sampling and identification will be performed by qualified personnel acceptable to the Environmental and Public Protection Cabinet. The specimens will be identified at the collection site if possible and returned to place of capture unless record of species existence or further identification is needed whereupon the specimens will be deposited in a university museum or herbarium in the state.

(8) Terrestrial flora and fauna will be qualitatively sampled for species composition. The duration of data collection shall be recommended by the application for approval by the cabinet.

(a) Plant communities will be sampled to include canopy understory and ground cover. General age characteristics of forest communities will be assessed by either coring (preferably) or measuring the diameter breast high of three (3) of the largest trees and five (5) of the average size trees.

(b) Existing agencies should be utilized to determine if any federally listed, proposed or under review threatened or endangered plant or animal species are known on the proposed permit site or its vicinity and search shall be conducted for any species which could occur there. This search should take place at the peak flowering or activity season for each species which may be involved.

(c) Mammals should be sampled by randomly selecting three (3) plots per habitat type and trapping for four (4) nights with twenty-five (25) traps regularly placed in each plot. The plots should be selected from a grid based on twenty-five (25) x twenty-five (25) meters. The results should be reported in number of specimens per species per plot per season. Equivalent sampling techniques may be approved by the cabinet.

(d) Bird species should be observed for one (1) hour periods in early morning, midday, and late afternoon or early evening. The observations should take place within areas representative of each distinct habitat type. The results should be reported as number of individuals per species per unit time per season.

(e) Reptiles and amphibians should be searched for within areas representative of each distinct habitat type. The results should be reported in the same manner as the bird data.

(f) Wetlands, critical habitats and ecological areas which are off site but could be affected by the mining or processing should be identified.

(g) The data should be collected by qualified personnel acceptable to the Environmental and Public Protection Cabinet.

(h) All specimens of flora and fauna should be deposited at a university museum or herbarium in the state, in accordance with this administrative regulation.

(9) The following geologic and hydrologic data shall be submitted to the cabinet:

(a) Each application shall contain a description of the geology and hydrology of lands within the proposed permit area and adjacent areas. The description shall include information on the characteristics of surface and groundwaters within these areas, and any water which will flow into or receive discharges of water from these areas.

(b) Hydrologic data including water quality and quantity, and geologic data related to hydrology of areas outside the permit area and within the adjacent areas shall be submitted to the cabinet. This data may be obtained from appropriate federal or state agencies. If the cabinet determines that this data is not sufficient, the applicant will be required to collect such additional data as determined by the cabinet and submit it as part of the permit application.

(c) Geologic data shall include a general statement of the geology within the proposed permit area and adjacent areas down to and including the first aquifer which may be affected below the lowest oil shale stratum to be mined.

(d) Test borings or core samples from the proposed permit area shall be collected and analyzed down to and including the stratum immediately below the lowest oil shale stratum to be mined, to provide the following data:

Location of subsurface water, if encountered;
Logs of drill holes showing the lithologic characteristics and thickness of each stratum and each oil shale stratum;
Physical properties of each stratum within the overburden;
Chemical analyses of each stratum within the overburden, and including the stratum immediately below the lowest oil shale stratum to be mined to identify, at a minimum, those horizons which contain potential acid-forming, toxic-forming, or alkalinity producing materials; and,
Analyses of the oil shale stratum including, but not limited to, an analysis of the total sulfur and pyritic sulfur content.

(e) If required by the cabinet, geologic data shall be collected and analyzed to greater depths within the proposed permit area and adjacent areas to provide for evaluation of the impact of the proposed activities on the hydrologic balance.

(10) Historical, pedological, and archaeological data should be gathered from the appropriate agencies. Where insufficient data exists, the cabinet may require the applicant to collect such data. Where no archaeological information exists, a survey or prediction analysis should be done in accordance with current methods used by the Kentucky Heritage Council and the Office of State Archaeology.

Section 3. Technical and Engineering Data Requirements.

(1) As determined by the applicant and approved by the cabinet, sampling and monitoring locations used in the collection of baseline data shall be operated by the applicant during the active life of the operation and thereafter as deemed necessary to assess the environmental impacts of the operation.

(2) The cabinet shall have the power to require the applicant to collect any technical or engineering data related to a specific oil shale operation as the cabinet deems necessary to assess the impacts of such activities on the environment and natural resources of the affected area. The parameters to be monitored and the method of monitoring shall be determined on a case-by-case basis.

(3) Data and information required in this section shall be subject to the provisions of 405 KAR 30:150 relating to confidentiality.

Section 4. Variance Procedures.

(1) The cabinet may authorize in writing such exceptions and variances to the requirements of this administrative regulation as the cabinet may deem necessary to reasonably and properly address site specific conditions. A written finding shall be made by the cabinet that the public and the environment will, in the administration of this variance, be provided adequate protection consistent with the purposes of KRS 350.600. The permittee shall publish a Notice of Intention to Request a Variance.

(2) Publication of notice of intention to request a variance. An applicant for a variance shall place an advertisement in the newspaper of largest bona fide circulation, according to the definition of KRS 424.110 to 424.120, in the county or counties wherein the proposed oil shale operation is to be located. The advertisement shall be published at least once each week for four (4) consecutive weeks with the first advertisement to be published not less than ten (10) nor more than thirty (30) days prior to the filing of the variance application with the cabinet. The public notice of intention to file an application for a variance shall be entitled "Notice of Intention to File for a Variance from Kentucky Oil Shale Mining Administrative Regulations" and shall be in a manner and form prescribed by the cabinet and shall include, but not be limited to the following:

(a) The name and address of the applicant;

(b) The permit or permit application number;

(d) A brief description of the kind of variance proposed together with a statement of the amount of acreage affected by the proposed variance and the number of the cabinet administrative regulation from which a variance is being sought;

(e) The address of the cabinet to which interested persons may submit written comments on the variance; and

(f) The location where a copy of the variance application is available for public inspection.

(3) The applicant for a variance shall establish the date and place at which the "Notice of Intention to File for a Variance from Kentucky Oil Shale Mining Administrative Regulations" was published by attaching to his application an affidavit from the publishing newspaper certifying the time, place, and content of the published notices. The applicant shall make a full copy of the complete application for a variance available for the public to inspect and copy. This shall be done by filing a copy of the variance submitted to the cabinet at the courthouse of the county or counties where the mining is proposed to occur. Any person with an interest which is or may be adversely affected shall have the right to file with the cabinet written comments on the application for a variance within thirty (30) days of the final publication in the newspaper.

(4) If the data requirements listed in this administrative regulation duplicate regulation requirements of other federal or state permits, a completed copy of the reporting form supplied to meet the requirements of the federal or state permit may be submitted to the cabinet to replace the duplicated portions of this administrative regulation. The submission of this data will satisfy the requirements of the duplicated portions of this administrative regulation, provided the applicant has requested such in writing and the cabinet has approved the request. The applicant's request for exception of duplicated requirements will not be subject to the requirement to publish a Notice of Intention to Request a Variance.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth various data collection requirements.
History: 405 KAR 030:160. 9 Ky.R. 983; 10 Ky.R. 286; 757; eff. 11-2-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:170 Citizen demands for enforcement {#sec-405-kar-30-170 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:170}

Section 1. Citizen Demands for Enforcement. Any citizen of this Commonwealth having knowledge that any of the statutes and administrative regulations pertaining to oil shale operations which it is the cabinet's duty to enforce may bring such failure to enforce to the attention of the department according to the provisions of this administrative regulation.

Section 2. Procedure.

(1) All demands to enforce the law must be in writing, under oath, with facts set forth specifically stating the nature of the failure to enforce the law with sufficient information to identify the statutory provision, administrative regulation, order, or permit condition allegedly violated and the act or omission alleged to constitute a violation.

(2) The demand shall state the name, address and telephone number of the person making the demand.

(3) The demand shall state the name, address and telephone number of legal counsel, if any, of the person making the demand.

(4) The knowing statement of false facts and charges in such affidavit shall constitute perjury and shall subject the affiant to penalties under the law of perjury.

(5) The cabinet shall investigate the allegations made in the demand and respond, in writing, to the person making such demand. The response shall specifically state the results of the investigation and the action, if any, the cabinet has taken or intends to take.

Section 3. Citizen Suits. If the cabinet neglects or refuses for any unreasonable time but in no event longer than sixty (60) days after demand to enforce such provisions, any such citizen shall have the right to bring an action of mandamus in the circuit court of the county in which the operation which relates to the alleged lack of enforcement is being conducted. However, such action may be brought immediately after a demand for enforcement when the violation or order complained of constitutes an imminent threat to the health or safety of the complaining citizen or would immediately affect a legal interest of the complaining citizen.

History

RELATES TO: KRS 224.091, 350.250, 350.600
STATUTORY AUTHORITY: KRS 224.033, 224.091, 350.028, 350.050, 350.250, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation pertains to demands by citizens upon the cabinet to enforce the statutes and administrative regulations pertaining to oil shale operations which it is the cabinet's duty to enforce. This administrative regulation also delineates the procedural requirements of such demands.
History: 405 KAR 030:170. 8 Ky.R. 108; 477; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:180 Petitions for rulemaking {#sec-405-kar-30-180 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:180}

Section 1. Petitions for Rulemaking.

(1) Any person may petition the secretary to initiate a proceeding for the issuance, amendment, or repeal of any administrative regulation promulgated pursuant to KRS Chapter 350. The cabinet will not accept a petition relating to a administrative regulation that is in the process of being promulgated or amended under the normal promulgation procedures of KRS Chapter 13 since the petitioner is provided an opportunity to be heard under those procedures. Similarly, the cabinet will not accept a petition on an emergency administrative regulation where the cabinet is intending to or has initiated the regular promulgation process under KRS Chapter 13.

(2) The person petitioning for a rulemaking shall make his petition in writing and shall set forth the facts, technical justification and law which support the petition. The facts and the technical justification must be sufficient for the cabinet to make a decision as to the merits of the petition within the time required below. Insufficient facts and technical justification shall be grounds for denial of the petition. The petition shall set forth the basis in law for the proposed rulemaking and shall justify the proposal as being consistent with the cabinet's statutory duties.

(3) Upon submission of a petition, the petitioner shall publish notice of submission of the petition in newspapers pursuant to KRS Chapter 424. The notice shall briefly identify the subject of the petition, state that copies are on file for public review at the Frankfort office of the cabinet, and state that any person may within fifteen (15) days of publication of the notice request a public hearing on the petition by written request to the cabinet. The notice shall also state that anyone requesting a hearing will be informed by letter from the cabinet of the time and place of the hearing.

(5) The cabinet will hold the requested public hearing within thirty (30) days of the filing of the complete petition. The hearing shall be legislative in nature.

(7) If a petition is granted proposing the issuance, amendment or repeal of administrative regulations which were the subject of the petition, the secretary shall initiate a rulemaking proceeding pursuant to KRS Chapter 13 within thirty (30) days of the final order granting the petition.

(8) Any participant in the petition proceedings may seek review of an order of the secretary denying all or any portion of the action requested in a petition in the Franklin County Circuit Court.

Section 2. Frivolous Petitions. Nothing in this administrative regulation shall require the cabinet to process frivolous petitions. Should the cabinet find that the petition is frivolous it shall notify the petitioner in writing and specify the reasons for the determination.

History

RELATES TO: KRS 350.255, 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. Such administrative regulations are to be based on sound scientific and engineering data and are to be reasonably necessary to protect the people and environment of the Commonwealth. This administrative regulation specifies how any person may petition the secretary of the cabinet to initiate rulemaking procedures. The administrative regulation sets forth petition requirements, time limits, and other aspects of the rulemaking petition process.
History: 405 KAR 030:180. 8 Ky.R. 109; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:210 Signs and markers {#sec-405-kar-30-210 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:210}

Section 1. General. All signs required to be posted shall be of a standard design that can be seen and read easily and shall be made of a durable material. Signs and other markers shall be maintained by the permittee during all operations to which they pertain and shall be kept legible and visible and shall conform to all local ordinances and codes. The cabinet may establish standards for construction of signs and markers as necessary to accomplish the purposes of this administrative regulation.

Section 2. Mine and Permit Identification Signs.

(1) Signs identifying the mine area shall be displayed at all points of access to the permit area from public roads and highways. Signs shall clearly identify the name, business address, and telephone number of the permittee and identification numbers of current oil shale operation permits or other authorizations to operate. Such signs shall not be removed until after release of all bonds. Failure to post such signs shall be grounds for revocation of the permit.

(2) Signs constructed pursuant to this section shall be constructed of a durable material, with the sign face to be at least two (2) feet in height and four (4) feet in width, and the top of the sign to stand not less than six (6) feet above the ground.

Section 3. Perimeter Markers. The perimeter of the permit area shall be clearly marked by durable and easily recognized markers. Perimeter markers shall have permit numbers permanently affixed and, except on heavily vegetative areas, shall be located so that adjacent markers are clearly visible.

Section 4. Buffer Zone Markers. Land areas as determined in 405 KAR 30:310, Section 3(1), shall not be disturbed unless specifically authorized by the cabinet. Such areas to be undisturbed are to be designated as buffer zones and shall be marked along the interior boundary of the buffer zone in a manner consistent with perimeter markers.

Section 5. Blasting Signs. If blasting is necessary to conduct oil shale extraction operations, signs reading "Blasting Area" shall be displayed conspicuously at the edge of blasting areas along access and haul roads within the mine property. Signs reading "Blasting Area" and explaining the blasting warning and all-clear signals shall be posted at all entrances to the permit area.

Section 6. Topsoil Markers. Both stockpiles and areas where topsoil or other vegetation-supporting material are segregated shall be marked. Each soil horizon stockpile shall have a separate and appropriately marked sign. Placement and quantity of markers shall be sufficient to clearly define such stockpiles. Markers shall remain in place until the material is removed.

Section 7. Monuments Marking Permit Areas. The permittee shall place a monument along the exterior permit area at each point where the boundary changes bearing. Such monument shall consist of a metal pipe, at least three (3) inches in diameter, which shall be permanently fixed by the operator to protrude at least three (3) feet above the surface of the ground. The permit number shall be placed on the monument.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth requirements relating to the use of signs and markers at oil shale extraction and processing operations.
History: 405 KAR 030:210. 8 Ky.R. 112; 479; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:220 Postmining land use {#sec-405-kar-30-220 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:220}

Section 1. General. Prior to the final release of performance bond liability for affected areas, the areas shall be restored in a timely manner:

(1) To conditions capable of supporting the uses which the areas were capable of supporting before any mining; or

(2) To conditions capable of supporting higher or better alternative uses of which there is reasonable likelihood, as approved by the cabinet under Section 5 of this administrative regulation.

Section 2. Land Use Categories. Land use is categorized as follows and shall carry the meaning as defined in 405 KAR 30:010:

(1) Cropland;

(2) Developed water resources land;

(3) Fish and wildlife habitat;

(4) Forest land;

(5) Grazing land;

(6) Industrial/commercial land;

(7) Pastureland/hayland;

(8) Recreation land;

(9) Residential land; or

(10) Underdeveloped land.

Section 3. Determining Minimum Acceptable Postmining Land Use Capability for Lands to be Restored to the Premining Land Use.

(1) Unmined lands. On lands which have not been previously mined and have received proper management, the postmining land use capability shall equal or exceed the premining capability of the land to support the actual premining uses and a variety of other feasible uses.

(2) Previously mined lands. On lands which have been previously mined, the postmining land use capability shall equal or exceed the capability of the land prior to any mining to support the actual uses and a variety of other feasible uses, except that allowances shall be made for any irreparable damages to the land which have resulted from the previous mining.

(3) Improperly managed lands. On lands which have received improper management as compared to similar lands in surrounding areas, the postmining land use capability shall equal or exceed the capability of the land under proper levels of management to support the actual premining uses or a variety of other feasible uses, except that allowances shall be made for any irreparable damages to the land which have resulted from improper management.

Section 4. Historical Land Use. If the premining use of the land was changed within five (5) years of the date of application for a permit to conduct oil shale operations, the historical use of the land as well as the land use immediately preceding the date of application shall be considered in establishing the premining capability of the land to support a variety of feasible uses. The determination of minimum acceptable postmining land use capability shall be based upon the potential utility of the land to support a variety of feasible uses, and not only upon premining land uses which may have resulted from underutilization.

Section 5. Alternative Postmining Land Use. Alternative postmining land uses may be approved by the cabinet after consultation with the landowner or the land management agency having jurisdiction over the lands, if the criteria of this section are met:

(1)

(a) The proposed postmining land use is compatible with adjacent land use and, where applicable, with existing local, state, or federal land use policies and plans.

(b) Authorities with statutory responsibilities for land use policies and plans shall have been provided opportunity to submit written statements of their views to the cabinet within sixty (60) days of notice by the cabinet.

(c) Any required approval of local, state, or federal land management agencies, including any necessary zoning or other changes required for the proposed alternative land use, shall be obtained and remain valid throughout the mining activities.

(2) Specific plans are prepared and submitted to the cabinet which show the feasibility of the postmining land use as related to projected land use trends and markets, and that include a schedule showing how the proposed land use will be developed and achieved within a reasonable time after mining. The cabinet may require appropriate demonstrations to show that the planned procedures are feasible, reasonable, and integrated with mining and reclamation, and that the plans will result in successful reclamation.

(3) The applicant has demonstrated that there is reasonable likelihood that any necessary public facilities will be provided.

(4) Specific and feasible plans are submitted to the cabinet which show that financing, attainment and maintenance of the postmining land use are feasible.

(5) Plans for the postmining land use are designed under the supervision of a registered professional engineer, who will ensure that the plans conform to applicable accepted standards for adequate land stability, drainage, vegetative cover, and esthetic design appropriate for the intended postmining use of the site.

(6) The proposed use or uses will neither present actual or probable hazard to public health or safety nor will they pose any actual or probable threat of water pollution or diminution of water availability.

(7) The proposed use will not involve unreasonable delays in reclamation.

(8) Necessary approval of measures to prevent or mitigate adverse effects on fish, wildlife, and related environmental values and threatened or endangered plants is obtained from the cabinet, and appropriate state and federal fish and wildlife management agencies have been provided a sixty (60) day period in which to review the plan.

(9) Proposals to change premining land uses of fish and wildlife habitat, forest land, hayland, or pasture to a postmining cropland use, where the cropland would require continuous maintenance such as seeding, plowing cultivation, fertilization, or other similar practices to be practicable or to comply with applicable federal, state, and local laws, are reviewed by the cabinet to ensure that:

(a) The applicant has demonstrated that there is reasonable likelihood that the landowner or land manager will provide sufficient crop management after release of applicable performance bonds under 405 KAR 30:070, in order that the proposed postmining cropland use will remain practical and reasonable;

(b) There is sufficient water available and committed to maintain crop production; and

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth requirements for restoring land use capability after completion of mining activities, and specific criteria for approval of postmining land uses which differ from the premining land use.
History: 405 KAR 030:220. 8 Ky.R. 113; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:230 Air resources protection {#sec-405-kar-30-230 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:230}

Section 1. Fugitive Dust Control. Each permittee shall plan and employ fugitive dust control measures as an integral part of an oil shale operation.

Section 2. Control Measures During Mining and Reclamation Operations. The fugitive dust control measures to be used shall include, as necessary, but not limited to:

(1) Periodic watering of unpaved roads;

(2) Chemical stabilization of unpaved roads with proper application of nontoxic soil cement or dust palliatives;

(3) Paving of roads;

(4) Prompt removal of necessary dust-forming debris from roads and frequent scraping and compaction of unpaved roads to stabilize the road surface;

(5) Revegetating, mulching, or otherwise stabilizing the surface of all areas adjoining roads that are sources of fugitive dust;

(6) Restricting the travel of vehicles on other than established roads;

(7) Minimizing the area of disturbed land;

(8) Prompt revegetation or other stabilization of disturbed lands including disposal sites; and

(9) Planting of special windbreak vegetation at critical points in the permit area.

Section 3. Additional Measures. Where the cabinet determines that application of fugitive dust control measures listed in Section 2 of this administrative regulation is inadequate, the cabinet may require additional measures and practices as necessary.

Section 4. Each permittee shall comply with all applicable requirements of 401 KAR Chapters 50 through 65.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth requirements for the control and monitoring of air pollution from oil shale operations, with specific measures for the control of fugitive dust.
History: 405 KAR 030:230. 8 Ky.R. 114; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

Section 1. Protection of Fish, Wildlife, and Related Environmental Values.

(1) Any permittee shall, to the extent possible using the best technology currently available, minimize disturbances and adverse impacts of the activities on fish, wildlife, and related environmental values, and achieve enhancement of such resources where practicable.

(2) A permittee shall promptly report to the cabinet the presence in the permit area of any critical habitat of a threatened or endangered species listed by the Secretary of the Interior, any plant or animal listed by the Commonwealth of Kentucky as threatened or endangered, or any bald or golden eagle, of which that person becomes aware and which was not previously reported to the cabinet by that person.

(3) A permittee shall ensure that the design and construction of electric power lines and other transmission facilities used for or incidental to the oil shale operation on the permit area are in accordance with the guidelines set forth in "Environmental Criteria for Electric Transmission System" (USDI, USDA (1970)), or in alternative guidance manuals approved by the cabinet. Distribution lines shall be designed and constructed in accordance with REA Bulletin 61-10 "Powerline Contacts by Eagles and Other Large Birds" or in alternative guidance manuals approved by the cabinet.

(4) Each permittee shall to the extent possible using the best technology currently available:

(a) Locate and operate haul and access roads and overland conveyor systems so as to avoid or minimize impacts to important fish and wildlife species or other species protected by state or federal law;

(b) Fence roadways where specified by the cabinet to guide locally important wildlife to roadway underpasses. No new barrier shall be created in known and important wildlife migration routes;

(c) Fence, cover, or use other appropriate methods to exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials;

(d) Restore, enhance where practicable, or avoid disturbances to habitats of unusually high value for fish and wildlife;

(e) Restore, enhance where practicable, or maintain natural reparian vegetation on the banks of streams, lakes, and other wetland areas;

(f) Afford protection to aquatic communities by avoiding stream channels or restoring stream channels as required in 405 KAR 30:310, Section 2;

(g) Not use persistent pesticides on the area during operations unless approved by the cabinet;

(h) To the extent possible prevent, control, and suppress fires which are not approved by the cabinet as part of a management plan;

(i) If fish and wildlife habitat is to be a primary or secondary postmining land use, the operator shall, in addition to the requirements of 405 KAR 38:400:

Select plant species to be used on reclaimed areas, based on the following criteria: their proven nutritional value for fish and wildlife; their uses as cover for fish and wildlife; and their ability to support and enhance fish and wildlife habitat after release of bonds; and
Distribute plant groupings to maximize benefit to fish and wildlife. Plants should be grouped and distributed in a manner which optimizes edge effect, cover, and other benefits for fish and wildlife;

(j) Where cropland is to be the alternative postmining land use on lands diverted from a fish and wildlife premining land use, and where appropriate for wildlife and crop management practices, intersperse the fields with trees, hedges or fence rows throughout the harvested area to break up large blocks of monoculture and to diversify habitat types of birds and other animals. Wetlands shall be preserved or created rather than drained or otherwise permanently abolished; and

(k) Where the primary land use is to be residential, public service, or industrial land use, intersperse reclaimed lands with greenbelts, utilizing species of grass, shrubs and trees useful as food and cover for birds and small animals, unless such greenbelts are inconsistent with the approved postmining land use.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth specific requirements and measures for the protection of fish, wildlife, and related environmental values and the enhancement of such resources where practicable.
History: 405 KAR 030:240. 8 Ky.R. 114; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:250 Use of explosives {#sec-405-kar-30-250 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:250}

Section 1. General.

(1) The permittee shall comply with all applicable local, state and federal laws and regulations and the requirements of this administrative regulation in the storage, handling, preparation, and use of explosives.

(2) Blasting operations that use more than the equivalent of five (5) pounds of TNT shall be conducted according to a time schedule approved by the cabinet.

(3) All blasting operations shall be conducted by experienced, trained, and competent persons who understand the hazards involved. Persons working with explosive materials shall:

(a) Have demonstrated a knowledge of, and a willingness to comply with, safety and security requirements;

(b) Be capable of using mature judgment in all situations;

(d) Possess current knowledge of the local, state, and federal laws and regulations applicable to the work; and

(e) Have obtained a certificate of completion of training and qualifications as required by KRS 351.315.

Section 2. Blasting Plan. A blasting plan shall be submitted with the permit application for approval by the cabinet. The blasting plan shall contain the following in addition to any other blasting procedures which may be peculiar to the proposed operation or which may be required by a preblasting survey:

(1) The blasting schedule stipulating the hours during which blasting will be conducted;

(2) Types of audible warning and all-clear signals which will be used before and after blasting;

(3) Whether the permittee intends to use seismograph measurements for every blast or whether the formula in Section 7 of this administrative regulation will be followed;

(4) Location of where record of each blast will be retained and will be available for inspection by the cabinet and the public;

(5) Name and address of newspapers in which the blasting schedule will be published;

(6) Names and addresses of local governments and public utilities to which blasting schedules will be mailed; and

(7) A description of how emergency situations as defined in Section 6(2) of this administrative regulation will be handled when it may be necessary to blast at times other than those described in the schedule.

Section 3. Preblasting Survey. The cabinet may require that a preblasting survey be made and may determine the area to be included in the survey.

(1) On the request to the cabinet of a resident or owner of a manmade dwelling or structure that is located within one-half (1/2) mile of any part of the permit area, the permittee shall promptly conduct a preblasting survey of the dwelling or structure and submit a report of the survey to the cabinet.

(2) Personnel approved by the cabinet shall conduct the survey to determine the condition of the dwelling or structure and to document any preblasting damage and other physical factors that could reasonably be affected by the blasting. Assessments of structures such as pipes, cables, transmission lines, and wells and other water systems shall be limited to surface condition and other readily available data. Special attention shall be given to the preblasting condition of wells and other water systems used for human, animal, or agricultural purposes and to the quantity and quality of the water.

(3) A written report of the survey shall be prepared and signed by the person or persons who conducted the survey and prepared the written report. The report shall include recommendations for any special considerations or proposed adjustments to the blasting procedures outlined in Sections 6 through 9 of this administrative regulation which should be incorporated into the blasting plan to prevent damage. Copies of the report shall be provided to the person requesting the survey and to the cabinet.

Section 4. Public Notice of Blasting Schedule. At least ten (10) days, but not more than twenty (20) days before beginning a blasting program in which explosives that use more than the equivalent of five (5) pounds of TNT are detonated, the permittee shall publish a blasting schedule in a newspaper of general circulation in the locality of the proposed site. Copies of the schedule shall be distributed by mail to local governments and public utilities and to each residence within one-half (1/2) mile of the blasting sites described in the schedule. Copies sent to residences shall be accompanied by information advising the owner or resident how to request a preblasting survey. The permittee shall republish and redistribute the schedule by mail at least every three (3) months. Blasting schedules shall not be so general as to cover all working hours, but shall identify as accurately as possible the location of the blasting sites and the time periods when blasting will occur. The blasting schedule shall contain at a minimum:

(1) Identification of the specific areas in which blasting will take place. The specific blasting areas described shall not be larger than 300 acres with a generally contiguous border;

(2) Dates and time when explosives are to be detonated expressed in increments of not more than four (4) hours;

(3) Methods to be used to control access to the blasting area;

(4) Types of audible warnings and all-clear signals to be used before and after blasting; and

(5) A description of possible emergency situations as defined in Section 6(2) of this administrative regulation when it may be necessary to blast at times other than those described in the schedule.

Section 5. Public Notice of Changes to Blasting Schedules. Before blasting in areas not covered by a previous schedule or whenever the proposed frequency of individual detonations are materially changed, the permittee shall prepare a revised blasting schedule in accordance with the procedures in Section 4 of this administrative regulation. If the change involves only a temporary adjustment of the frequency of blasts, the permittee may use alternate methods to notify the governmental bodies and individuals to whom the original schedule was sent.

Section 6. Blasting Procedures.

(1) All blasting shall be conducted only during daytime hours, defined as sunrise to sunset. Based on public requests or other considerations, including the proximity to residential areas, the cabinet may specify more restrictive time periods.

(2) Blasting may not be conducted at times different from those announced in the blasting schedule except in emergency situations where rain, lightning, other atmospheric conditions, or the safety of the operator or public requires unscheduled detonation.

(3) Warning and all-clear signals shall be given which are of different character and are audible within a range of one-half (1/2) mile from the point of the blast. All persons within the permit area shall be notified of the meaning of the signals through appropriate instructions and signs posted as required by 405 KAR 30:210 relating to signs and markers.

(4) Access to the blasting area shall be regulated to protect the public and livestock from the effects of blasting. Access to the blasting area shall be controlled to prevent unauthorized entry beginning at least ten (10) minutes before each blast and lasting until the permittee's authorized representative had determined that no unusual circumstances such as imminent slides or undetonated charges exist and that access to and travel in or through the area can safely resume.

(5) Areas in which charged holes are awaiting firing shall be guarded, barricaded and posted, or flagged against unauthorized entry.

(6) Airblast shall be controlled such that it does not exceed the values specified in Appendix A of this administrative regulation at any dwelling, public building, school, church, or commercial or institutional structure, unless such structure is owned by the permittee and is not leased to any other person. If a building owned by the permittee is leased to another person, the lessee may sign a waiver relieving the permittee from meeting the airblast limitations of this subsection.

(a) In cases except the C-weighted, slow-response, the measuring systems used shall have a flat frequency response of at least 200 Hz at the upper end. The C-weighted shall be measured with a Type 1 sound level meter that meets the standard American National Standards Institute (ANSI) S1.4-1971 specifications.

(b) The permittee may satisfy the provisions of this subsection by meeting any of the four (4) specifications in the chart in Appendix A of this administrative regulation.

(c) The cabinet may require an airblast measurement of any or all blasts, and may specify the location of such measurements.

(7) Except where lesser distances are approved by the cabinet, based upon a preblasting survey, seismic investigations, or other appropriate investigations, and based upon the provisions of 405 KAR 30:130, blasting shall not be conducted within:

(a) 1,000 feet of any building used as a dwelling, school, church, hospital, or nursing facility;

(b) 500 feet of facilities including, but not limited to, disposal wells, petroleum or gas-storage facilities, fluid-transmission pipelines, municipal water-storage facilities, gas or oil-collection lines, or water and sewage lines; or

(c) 500 feet of an underground mine not totally abandoned, except with the concurrence of the Mine Safety and Health Administration of the United States Department of Labor.

Section 7. Blasting Standards.

(1) Blasting shall be conducted to prevent injury to persons, damage to public or private property outside the permit area, adverse impacts on any underground mine, or change in the course, channel, or availability of ground or surface waters outside the permit area.

(2) In all blasting operations, except as otherwise stated, the maximum peak particle velocity of the ground motion in any direction shall not exceed one (1) inch per second at the immediate location of any dwelling, public building, school, church, or commercial or institutional building. The cabinet may reduce the maximum peak particle velocity allowed, if it determines that a lower standard is required because of density of population or land use, age or type of structure, geology or hydrology of the area, frequency of blasts, or other factors.

(3) Provided that blasting is conducted in such manner as to prevent adverse impacts on any underground mine and changes in the course, channel, or availability of ground or surface water outside the permit area, then the maximum peak particle velocity limitation of this section shall not apply at the following locations:

(a) At structures owned by the permittee or the person conducting the blasting operation, and not leased to another party; and

(b) At structures owned by the permittee or the person conducting the blasting operation, and leased to another party, if a written waiver by the lessee is submitted to the cabinet prior to blasting.

(4) The maximum weight of explosives to be detonated within any eight (8) millisecond period shall be determined by the formula W = (D/60) squared, where W = the maximum weight of explosives, in pounds, that can be detonated in any eight (8) millisecond period, and D = the distance, in feet, to the nearest dwelling, school, church, or commercial or institutional building. If the blasting is conducted in accordance with this equation, the cabinet will consider the vibrations to be within the one (1) inch-per-second limit.

Section 8. Seismograph Measurements.

(1) Where a seismograph is used to monitor the velocity of ground motion and the peak particle velocity limit of one (1) inch per second is not exceeded, the equation in Section 7(4) of this administrative regulation need not be used. However, if the equation is not being used, a seismograph record shall be obtained for every shot. The seismograph record shall include:

(a) The seismograph reading, including the exact location of the seismograph and its distance from the blast;

(b) The name of the person taking the seismograph reading; and

(2) The use of a modified equation to determine maximum weight of explosives for blasting operations at a particular site may be approved by the cabinet on receipt of a petition accompanied by reports including seismograph records of test blasting on the site. However, in no case shall the cabinet approve the use of a modified equation where the peak particle velocity limit of one (1) inch per second required in Section 7(2) of this administrative regulation would be exceeded.

(3) The cabinet may require a seismograph recording of any or all blasts.

Section 9. Record of Blasting Operations. A record of each blast, including seismograph records, shall be retained for at least three (3) years and shall be available for inspection by the cabinet and the public on request. The record shall contain the following data:

(1) Name of person conducting the blast;

(2) Location, date, and time of blast;

(3) Name, signature, and license number of blaster-in-charge;

(4) Direction and distance, in feet, to nearest dwelling, school, church, or commercial or institutional building neither owned nor leased by the permittee;

(5) Weather conditions, including temperature, wind direction, and approximate velocity;

(6) Type of material blasted;

(7) Number of holes, burden, and spacing;

(8) Diameter and depth of holes;

(9) Types of explosives used;

(10) Total weight of explosives used;

(11) Maximum weight of explosives detonated within any eight (8) millisecond period;

(12) Maximum number of holes detonated within any eight (8) millisecond period;

(13) Initiation system;

(14) Type and length of stemming;

(15) If mats or other protections were used;

(16) Type of delay detonator used, and delay periods used;

(17) Sketch of the delay pattern;

(18) Number of persons in the blasting crew; and

(19) Seismograph records, if required pursuant to Section 8 of this administrative regulation.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth the requirements relating to the use of explosives.
History: 405 KAR 030:260. 8 Ky.R. 115; eff. 3-1-1982; 9 Ky.R. 957; 10 Ky.R. 288; eff. 10-5-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:260 Access roads, haul roads, overland conveyor systems, pipelines, and other transport facilities {#sec-405-kar-30-260 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:260}

Section 1. General.

(1) Access, haul roads and associated bridges, culverts, ditches, and road rights-of-way shall be constructed, maintained, and reclaimed to prevent additional contributions of suspended solids to stream flow or to run off outside the permit area to the extent possible, using the best technology currently available. In no event shall the contributions be in excess of requirements set by state or federal law.

(2) The effluent limitations of 405 KAR 30:320 shall not apply to drainage from access and haul roads located outside the disturbed area, as defined in 405 KAR 30:320, unless otherwise specified by the cabinet.

Section 2. Construction. All access and haul roads shall be constructed in accordance with the requirements of this section.

(1) Roads shall not be constructed or maintained in a manner that increases erosion or causes significant sedimentation or flooding.

(2) All roads, insofar as possible, shall be located on ridges or on the available flatter and more stable slopes to minimize erosion.

(3) Roads shall not be located in active stream channels.

(4) Stream fords are prohibited unless they are specifically approved by the cabinet as temporary routes across dry streams that will not adversely affect sedimentation and will not be used for haulage.

(5) Other stream crossings shall be made using bridges, culverts, or other structures designed and constructed to meet the requirements of this administrative regulation.

(6) In order to minimize erosion and subsequent disturbances of the hydrologic balance, roads shall be constructed in compliance with the grade restrictions of this subsection or other grades determined by the cabinet to be necessary to control erosion.

(a) The overall sustained grade shall not exceed lv:10h (ten (10) percent).

(b) The maximum grade greater than ten (10) percent shall not exceed lv:5h (twenty (20) percent) for more than 300 feet.

(7) Access and haul roads shall be surfaced with durable material. Toxic-forming or acid-forming materials shall not be used.

(8) Vegetation may be cleared only for the essential width necessary for road and associated ditch construction and to serve traffic needs.

(9) All fill slopes and earth cut slopes shall be seeded in accordance with this chapter.

Section 3. Drainage.

(1) All access and haul roads shall be adequately drained using structures such as, but not limited to, ditches, water barriers, pipes, culverts, cross drains, and ditch relief drains.

(2) For access and haul roads that are to be maintained for more than one (1) year, water-control structures shall be designed with a discharge capacity capable of passing the peak run-off from a ten (10) year, twenty-four (24) hour precipitation event.

(3) Ditch-relief and cross drains shall be spaced according to grade in order to minimize erosion.

(4) Drainage pipes and culverts shall be constructed to avoid plugging or collapse and erosion at inlets and outlets.

(5) Drainage ditches shall be provided at the toe of all cut slopes formed by the construction of roads.

(6) Trash racks and debris basins shall be installed in the drainage ditches wherever debris from the drainage area could impair the functions of drainage and sediment control structures.

Section 4. Maintenance.

(1) Access and haul roads shall be routinely maintained by means such as, but not limited to, wetting, scraping, or surfacing.

(2) Ditches, culverts, drains, trash racks, debris basins and other structures serving to drain access and haul roads shall not be restricted or blocked in any manner that impedes drainage or adversely affects the intended purpose of the structure.

Section 5. Removal and Reclamation. All access and haul roads shall be removed and the land affected shall be regraded and revegetated consistent with the requirements of 405 KAR 30:390 and 405 KAR 30:400, unless retention of a road is approved as part of a postmining land use under 405 KAR 30:220 as being necessary to support the postmining land use or necessary to adequately control erosion and the necessary maintenance is assured.

Section 6. Overland Conveyor Systems. All overland conveyor systems shall be designed, constructed, and maintained in a manner to control degradation of the air, water, vegetation and other natural resources of the surrounding area. Such protection shall be provided using the best control technology currently available. All such systems shall be completely removed and disposed of and the area reclaimed in accordance with this chapter.

Section 7. Pipelines. All pipelines shall be designed, constructed, and maintained in a manner to minimize effects on the environmental resources of the surrounding area. Such protection shall be provided using the best control technology currently available. All pipelines shall be completely removed and disposed of unless otherwise approved by the cabinet and the area reclaimed in accordance with this chapter.

Section 8. Other Transport Facilities. Railroad loops, spurs, sidings and other transport facilities shall be constructed, maintained and reclaimed to control diminution or degradation of water quality and quantity and to prevent additional contributions of suspended solids to stream flow or to run off outside the permit area to the extent possible, using the best technology currently available. In no event shall contributions be in excess of requirements set by applicable state or federal law.

Section 9. The cabinet may at any time develop standards to achieve the requirements of this administrative regulation.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth the requirements for design, construction, maintenance and reclamation of access roads, haul roads, overland conveyor systems, pipelines, and other transport facilities.
History: 405 KAR 030:260. 8 Ky.R. 117; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:270 Casing and sealing of drilled holes {#sec-405-kar-30-270 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:270}

Section 1. General Requirements. Each exploration hole, other drill hole or borehole, well, or other exposed underground opening shall be cased, sealed, or otherwise managed as approved by the cabinet, as necessary to prevent acid or other toxic drainage from entering ground or surface waters, to minimize disturbance to the prevailing hydrologic balance and to ensure the safety of people, livestock, fish and wildlife, and machinery in the permit area and adjacent area. If these openings are uncovered or exposed by mining activities within the permit area, they shall be permanently closed, unless approved for water monitoring, or otherwise managed in a manner approved by the cabinet. Use of a drilled hole or borehole or monitoring well as a water well must meet the provisions of Section 4 of this administrative regulation. This section does not apply to holes solely drilled and used for blasting.

Section 2. Temporary. Each exploration hole, other than drill or boreholes, wells and other openings approved by the cabinet used to monitor groundwater conditions, shall be temporarily sealed before use and protected during use by barricades, fences, or other protective devices approved by the cabinet. These devices shall be periodically inspected and maintained in good operating condition by the permittee or other person approved by the cabinet.

Section 3. Permanent. When no longer needed for monitoring or other use approved by the cabinet upon a finding of no adverse effects, or unless approved for transfer as a water well under Section 4 of this administrative regulation, each exploration hole, other drilled hole or borehole, well, and other exposed underground opening shall be capped, sealed, backfilled, or otherwise properly managed as required by the cabinet under Section 1 of this administrative regulation. Permanent closure measures shall be designed to prevent access to the workings by people, livestock, fish and wildlife, and machinery and to keep acid or other toxic drainage from affecting ground or surface waters.

Section 4. Transfer of Wells.

(1) An exploratory or monitoring well may only be transferred by the permittee for further use as a water well with the prior approval of the cabinet. That person and the surface owner of the land where the well is located shall jointly submit a written request to the cabinet for that approval.

(2) Upon an approved transfer of a well, the transferrer shall:

(a) Assume primary liability for damage to persons or property from the well;

(b) Plug the well when necessary, but not later than abandonment of the well; and

(c) Assume primary responsibility for compliance with other requirements of this administrative regulation with respect to the well.

(3) Upon an approved transfer of a well, the transferrer shall be secondarily liable for the transferrer's obligations under subsection (2) of this section, until release of the bond or other equivalent guarantee required by 405 KAR 30:070 for the area in which the well is located.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth requirements for temporary and permanent casing, sealing or other management of drill holes, boreholes, wells, or other exposed underground openings.
History: 405 KAR 030:270. 8 Ky.R. 118; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:280 Prime farmland {#sec-405-kar-30-280 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:280}

Section 1. Prime Farmland Definition. The criteria used by the United States Department of Agriculture, Soil Conservation Service for identification of prime farmland published in the Federal Register on August 23, 1977, is the basis of the definition for prime farmland to be used in these administrative regulations. The definition is based on soil characteristics and the terms used are defined in United States Department of Agriculture publications: Soil Taxonomy Agricultural Handbook 436; Soil Survey Manual, Agricultural Handbook 18; Rainfall-Erosion Losses from Cropland, Agricultural Handbook 282.

Section 2. Prime Farmland Determination. The applicant shall before making a permit application investigate the proposed permit area to determine whether lands within the area may be prime farmland.

(1) Land shall not be considered prime farmland where the applicant can demonstrate one (1) of the following:

(a) The slope of the land is ten (10) percent or greater;

(b) Other relevant factors exist, which would preclude the soils from being defined as prime farmland according to 7 C.F.R. 657, such as a very rocky surface, or the land is flooded during the growing season more often than once in two (2) years, and the flooding has reduced crop yields; or

(c) On the basis of a soil survey of lands within the permit area, there are no soil map units that have been designated prime farmland by the U.S. Soil Conservation Service.

(2) If the investigation establishes that the lands are not prime farmland, the applicant shall submit with the permit application a request for a negative determination and results of the investigation which show that the land for which the negative determination is sought meets one (1) of the criteria of subsection (1) of this section.

(3) If the investigation indicates that lands within the proposed permit area may be prime farmlands, the applicant shall contact the U.S. Soil Conservation Service to determine if a soil survey exists for those lands and whether the applicable soil map units have been designated as prime farmlands. If a soil survey exists, the applicant shall file for a positive or negative determination of prime farmland on the bases of the soil survey characteristics as interpreted in the U.S. Department of Agriculture publications referenced in Section 1 of this administrative regulation.

(4) A soil survey may be conducted by either soil scientists from the United States Department of Agriculture, Soil Conservation Service or the Kentucky Environmental and Public Protection Cabinet, Division of Conservation, who have experience and knowledge in conducting soil surveys in accordance with the standards and procedures of the National Cooperative Soil Survey program. If no soil survey has been made for the lands within the proposed permit area, the applicant shall cause such a survey to be made.

(5) Soil survey for prime farmland determination shall include the following and any other data deemed necessary by the cabinet:

(a) Location of permit boundaries, flood frequency data, water table, erosion characteristics, permeability and other information needed to make the prime farmland determination in accordance with the prime farmland definition in Section 1 of this administrative regulation;

(b) The map must also delineate the exact location and extent of prime farmland;

(d) A detailed soil description of the representative soil of each soil mapping unit in the permit area.

(6) Positive prime farmland determination. When a soil survey of the acreage within the proposed permit area contains soil mapping units which have been designated as prime farmlands, the applicant shall submit an application, in accordance with 405 KAR 30:130, Section 6(5) for such designated land and must meet the requirements of Sections 3 through 9 of this administrative regulation.

(7) Negative prime farmland determination. When a soil survey of the acreage within the proposed permit area contains soil mapping units which have not been designated as prime farmland after review by either the United States Department of Agriculture, Soil Conservation Service or Kentucky Environmental and Public Protection Cabinet, Division of Conservation soil scientist, the applicant shall submit with the permit application a request for negative determination. The applicant shall then submit an application, in accordance with 405 KAR 30:130, Section 6(8) for such nondesignated prime farmland permits and must meet the requirements of 405 KAR 30:290 and 405 KAR 30:400.

Section 3. Restoration Plan for Prime Farmland Areas. The applicant shall submit to the cabinet a plan for the mining and restoration of any prime farmland within the proposed permit boundaries. This plan shall be used by the cabinet in judging the technological capability of the applicant to restore prime farmlands. The plan shall include the following and any other data required by the cabinet:

(1) Information contained in the soil survey as required in Section 2 of this administrative regulation;

(2) A description of the original undisturbed soil profile, as determined from the soil survey of the permit area, showing the depth and thickness of each of the soil horizons to be removed, stored, and replaced in accordance with Sections 6, 7, and 8 of this administrative regulation;

(3) The location of areas to be used for the separate stockpiling of the soil horizons and plans for soil stabilization during stockpiling;

(4) The proposed method and type of equipment to be used for removal, storage, and replacement of the soil;

(5) Plans for seeding or cropping the final graded mine land and the conservation practices to control erosion and sedimentation during the first twelve (12) months after regrading is completed. Proper adjustments for seasons must be made so that final graded land is not exposed to erosion during seasons when vegetation or conservation practices cannot be established due to weather conditions; and

(6) Separate small areas of prime farmland located in the permit boundary may be combined and restored as one larger manageable prime farmland area upon the approval of the cabinet. The number of prime farmland acres restored must be at least equal the number of prime farmland acres disturbed.

Section 4. Restoration Plan Approval and Consultation. The cabinet will evaluate each proposed prime farmland mining restoration plan to assure the following:

(1) The applicant has the technological capability to restore the prime farmland within the proposed permit area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management; and

(2) Will achieve compliance with the standards of Section 5 of this administrative regulation.

(3) Before any permit is issued for areas that include prime farmlands, the cabinet shall consult with the United States Soil Conservation Service and Kentucky Division of Conservation or other agencies to provide a review of the proposed method of soil reconstruction and comment on possible revisions that will result in a more complete and adequate restoration.

Section 5. Special Requirements. Oil shale operations conducted on prime farmland areas shall meet the following requirements:

(1) Soil materials to be used in the reconstruction of the prime farmland soil shall be removed before drilling, blasting, or mining, in accordance with Section 6 of this administrative regulation and handled in a manner that prevents mixing, compacting, or contaminating these materials with less desirable materials. Where removal of soil materials results in erosion or increased storm-water run-off that may cause air and water pollution, the permittee shall take appropriate action as approved by the cabinet to control erosion or storm-water run-off from freshly exposed soil materials.

(2) Soil productivity will be restored to support equivalent or higher levels of yield as equally managed nonmined prime farmland of the same soil type in the surrounding area.

Section 6. Soil Removal. Oil shale operations on prime farmland shall be conducted to:

(1) Remove separately the entire A horizon, B horizon, C horizon, a combination of B horizon and underlying C horizon, or other favorable soil material which will create a final soil having an equal or greater productive capacity than that which existed prior to mining.

(2) The minimum depth of soil and soil material (A horizon, B horizon, C horizon, a combination of B horizon and underlying C horizon, or other favorable soil materials) to be removed for use in reconstruction of prime farmland soils shall be sufficient to meet the soil replacements standards in Section 8 of this administrative regulation.

Section 7. Soil Stockpiling. If not utilized immediately, the A horizon, B horizon, or other suitable soil materials specified in Section 6 of this administrative regulation shall be stored separately from each other and from soil. The stockpiles must be placed within the permit area and where they will not be disturbed or exposed to erosion by water or wind before the stockpiled horizons can be redistributed on terrain graded to final contour. Stockpiles in place for more than thirty (30) days shall be protected. Measures to accomplish this can be either of the following:

(1) An effective cover of nonnoxious, quick-growing annual and perennial plants, seeded or planted during the first normal period after removal for favorable planting conditions; or other methods demonstrated to and approved by the cabinet to provide equal protection.

(2) Stockpiling of separate soil horizons shall also meet the requirements of 405 KAR 30:290, Section 3, with regard to storage of topsoil.

(3) Unless approved by the cabinet, stockpiled soil and other materials shall not be moved until required for redistribution on a regraded area.

Section 8. Soil Replacement. Oil shale operations on prime farmland shall be conducted according to the following:

(1) The minimum depth of soil and soil material to be reconstructed for prime farmland shall be forty-eight (48) inches, or a depth equal to the depth of a subsurface horizon in the natural soil that inhibits root penetration, whichever is shallower. The cabinet shall specify a depth greater than forty-eight (48) inches wherever necessary to restore productive capacity due to favorable soil horizons at greater depths. Soil horizons shall be considered as inhibiting root penetration if their densities, chemical properties, or water supplying capacities restrict or prevent penetration by roots of plants common to the vicinity of the permit area and can be proven to have little or no beneficial effect on soil productive capacity. However, in the case of a fragipan, if it can be shown that destruction of the fragipan material during soil removal proves beneficial and as a result is beneficial to plant growth, fragipan destruction will be allowed.

(2) Replace soil material only on land which has first been returned to final grade and scarified according to 405 KAR 30:390, unless site-specific evidence is provided and approved by the cabinet showing that scarification will not enhance the capability of the reconstructed soil to achieve equivalent or higher levels of yield.

(3) Soil replacement starts with those soil horizons in the reverse order in which they were removed and stockpiled. The replacement of each soil horizon or other suitable soil material shall be done in such a manner that avoids excessive compaction.

(a) Replace the C horizon material or other suitable material approved for use as specified in Section 6(1)(a) and (b) of this administrative regulation to the thickness needed to meet the requirements of subsection (1) of this section.

(b) Replace the B horizon material or other suitable material approved for use as specified in Section 6(1)(a) and (b) of this administrative regulation to the thickness needed to meet the requirements of subsection (1) of this section.

(c) Replace the A horizon material or other suitable material approved for use as specified in Section 6(1)(a) and (b) of this administrative regulation as the final surface soil layer. This surface soil layer shall equal or exceed the thickness of the original soil A horizon.

(4) The replacement of all soil horizons shall be done in a manner which prevents excessive compaction of the soil. Permeability shall not be less than the permeability rate existing in the original soil or less than 0.06 inches per hour in the upper twenty (20) inches of the reconstructed soil profile, whichever permeability rate is lower.

(5) After the reconstruction of the soil profile is complete the soil shall be protected in such a manner to prevent erosion from wind and water before it is seeded or planted.

(6) Apply nutrients and soil amendments as needed to establish quick vegetative growth.

Section 9. Revegetation. Each permittee who conducts oil shale operations on prime farmland shall meet the following revegetation requirements during reclamation:

(1) Following soil replacement, the permittee shall establish a vegetative cover capable of stabilizing the soil surface with respect to erosion. All vegetation shall be in compliance with the plan approved by the cabinet under Section 3 of this administrative regulation, and carried out in a manner that encourages prompt vegetative cover and recovery of productive capacity. The timing and mulching provisions of 405 KAR 30:400, Sections 3 and 4, shall be met.

(2) The period of liability under the performance bond for prime farmland areas shall be for not less than seven (7) years. The liability period begins at the last time of substantially augmented seeding necessary to ensure successful revegetation.

(a) For the purposes of erosion control and soil reconstruction, during the first two (2) or three (3) growing seasons, grasses and legumes will be allowed upon the approval of the cabinet.

(b) If crop comparisons are to be used to demonstrate successful restoration of prime farmland, the remaining four (4) or five (5) years must be used for crops commonly grown, such as corn, soybeans, grain, sorghum, wheat, oats, barley, or other crops on surrounding prime farmland. Crops may be grown in rotation with hay or pasture crops as long as the crop shows equal or higher yields as compared to other rotation crops on surrounding prime farmland.

(c) If a soil survey is to be used to demonstrate successful restoration of prime farmland, the prime farmland area should be maintained in vegetation in accordance with 405 KAR 30:400, until the cabinet has determined if the prime farmland has been restored successfully under subsection (3)(a) of this section.

(3) Success of prime farmland restoration. Soil productivity shall be restored to support equivalent or higher levels of yield as nonmined prime farmland of the same soil type in the surrounding area under equivalent levels of management. Successful restoration of soil productivity shall be demonstrated by either:

(a) A soil survey of the restored permit area. The soil survey must meet the standards of and be conducted by an individual with experience and knowledge of the standards and procedures of the National Cooperative Soil Survey and in accordance with the procedures set forth in United States Department of Agriculture Handbooks 436 (Soil Taxonomy, 1975) and 18 (Soil Survey Manual, 1951). In addition, the cabinet may require other chemical and physical data, laboratory test and information to evaluate soil productivity of the permit area. The cabinet shall make the determination on the success of restoration of prime farmland areas after consultation with United States Soil Conservation Service, Kentucky Division of Conservation, and other appropriate agencies; or

(b) A comparison of actual average annual crop production on the restored area for three (3) consecutive years prior to bond release, with predetermined estimated average annual yields (target yields) of similar crops on nonmined prime farmland of the same soil type in the surrounding area under equivalent levels of management. The cabinet, in consultation with other appropriate agencies, shall develop the predetermined target yields for prime farmland soils for the area, in which crop comparison shall be evaluated to determine that the soil productivity has been restored.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and environment of the Commonwealth. This administrative regulation specifies definition, determination and special requirements for the removal, stockpiling and replacement of soil, and revegetation of prime farmland to assure its productivity for the production of food and fiber.
History: 405 KAR 030:280. 8 Ky.R. 119; 480; eff. 3-1-1982; 9 Ky.R. 960; eff. 10-5-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:290 Topsoil {#sec-405-kar-30-290 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:290}

Section 1. General.

(1) The applicant shall before making a permit application investigate the proposed permit area to determine whether lands within the area may be prime farmland according to 405 KAR 30:280, Section 2.

(2) The applicant shall before making a permit application have soil survey data prepared for the proposed permit area if survey data is not available from the U.S. Soil Conservation Service. The soil survey data shall include:

(a) Location of permit boundaries, flood frequency data, water table, erosion characteristics, permeability, and other information needed to characterize existing topsoil conditions.

(b) A description of the existing soil profile showing the depth and thickness of each of the soil horizons to be removed, stored, and replaced in accordance with Sections 2, 3, and 4 of this administrative regulation.

(3) Topsoil removal shall be as specified in Section 2 of this administrative regulation, storage as specified in Section 3 of this administrative regulation, and replacement as specified in Section 4 of this administrative regulation.

(4) For surface areas which are without suitable topsoil, the cabinet shall approve and/or specify, on a site-specific basis, alternative practices designed to utilize those available materials which are most suitable for supporting successful revegetation. The cabinet requires the application of nutrients and soil amendments as necessary for supporting successful revegetation.

(5) Topsoil handling and restoration plan. The applicant shall submit to the cabinet a plan for the handling and restoration of topsoil material within the proposed permit boundaries. This plan shall be used by the cabinet in judging the technological capability of the applicant to restore topsoil material. The plan shall include the following and any other data required by the cabinet:

(a) Information contained in the soil survey as required in Section 1(2) of this administrative regulation;

(b) A description of amount and source of proposed soil amendments, overburden materials or topsoil borrow areas proposed as substitutes for existing topsoil;

(c) The location of areas to be used for the separate stockpiling of the soil horizons and plans for soil stabilization during stockpiling;

(d) The proposed method and type of equipment to be used for removal, storage, and replacement of the soil;

(e) Plans for reclaiming the final graded mine land and the conservation practices to control erosion and sedimentation during the first twelve (12) months after regrading is completed. Proper adjustments for seasons must be made so that final graded land is not exposed to erosion during seasons when vegetation or conservation practices cannot be established due to weather conditions; and

(f) Before any permit is issued the cabinet may consult with the United States Soil Conservation Service and Kentucky Division of Conservation or other agencies to provide a review of the proposed method of soil reconstruction and comment on possible revisions that will result in a more complete and adequate restoration.

Section 2. Removal.

(1) Topsoil shall be removed from areas to be disturbed, after vegetative cover that would interfere with the use of the topsoil is cleared from those areas, but before any drilling, blasting, mining, or other surface disturbance of those areas. The minimum depth of topsoil and subsoil material or topsoil substitute material to be restored on nonprime farmland areas shall be twenty-four (24) inches, in accordance with Section 4 of this administrative regulation.

(2) All topsoil and subsoil material shall be removed in a separate layer from the areas to be disturbed, unless use of substitute or supplemental materials is approved by the cabinet in accordance with subsection (6) of this section. If use of substitute or supplemental materials is approved, all materials to be redistributed shall be removed.

(3) A soil survey providing an inventory of the topsoil on the permit area will assist in determining the type of removal and handling required for the topsoil material.

(4) The A horizon as identified by the soil survey shall be removed as provided in this section and then replaced on disturbed areas as the surface soil layer.

(a) If the A horizon is less than six (6) inches, a six (6) inch layer that includes the A horizon and the necessary subsoil or unconsolidated material immediately below the A horizon as required to meet the twenty-four (24) inch minimum (or all unconsolidated material if the total available is less than six (6) inches and the necessary substitute material to meet the twenty-four (24) inch minimum), shall be removed and the mixture segregated and redistributed as the surface soil layer at a total minimum depth of twenty-four (24) inches.

(b) If the A horizon is more than six (6) inches, all of the A horizon and necessary subsoil shall be removed separately and restored to meet the twenty-four (24) inch minimum depth.

(5) The cabinet shall require that a portion or all of the subsoil (B and C horizons) or other underlying layers demonstrated to have comparable quality for root development be segregated and replaced as necessary to obtain the minimum twenty-four (24) inch requirement or to obtain productivity consistent with the approved postmining land use.

(6)

(a) Selected overburden materials or soil amendment may be substituted for or used as a supplement to, topsoil, if the cabinet determines that the substitute material would be equal to or more suitable for sustaining vegetation than is the available topsoil or subsoil and the substitute material is the best available material in the permit area to support revegetation. This determination shall be based on:

The results of chemical and physical analyses of overburden and topsoil. These analyses shall include determinations of active soil pH, lime requirements from a SMP buffer or other potential acidity test, phosphorus, potassium, texture class, and other analyses as required by the cabinet. The cabinet may also require field-site trials, greenhouse tests or other demonstrations by the applicant to establish the feasibility of using these overburden materials.
Results of analyses, trials, and tests shall be submitted to the cabinet. Certification of trials and tests shall be made by a laboratory approved by the cabinet, stating that: the proposed substitute material is equal to or more suitable for sustaining the vegetation than is the available topsoil; the substitute material is the best available material to support the vegetation; and the trials and tests were conducted using approved standard testing procedures.
Consultation. Before any permit is approved for substitute materials, the cabinet shall consult with the United States Soil Conservation Service and the Kentucky Division of Conservation or other appropriate agencies to provide a review of the proposed substitute material and comment on possible revisions that will result in a more favorable substitute material within the permit area to support revegetation.

(b) Substituted or supplemental overburden material shall be removed, segregated, and replaced in compliance with the requirements for topsoil under this section.

(7) Where the removal of vegetative material, topsoil, or other materials may result in erosion which may cause air or water pollution:

(a) The size of the area from which topsoil is removed at any one time shall be limited;

(b) The soil horizons or substitute material shall be redistributed during favorable conditions in which temporary or permanent vegetative cover can be established to minimize erosion and protect the physical and chemical properties of the material; and

Section 3. Storage.

(1) Topsoil and other materials removed under Section 2 of this administrative regulation shall be stockpiled only when it is impractical to promptly redistribute such materials on regraded areas.

(2) Stockpiled materials shall be selectively placed on a stable area within the permit area, not disturbed, and protected from wind and water erosion, unnecessary compaction, and contaminants which lessen the capability of the materials to support vegetation when redistributed.

(a) Protection measures shall be accomplished by:

An effective cover of nonnoxious, quick-growing annual and perennial plants, seeded or planted during the first normal period after removal for favorable planting conditions; or
Other methods demonstrated to and approved by the cabinet to provide equal protection.

(b) Unless approved by the cabinet, stockpiled topsoil and other materials shall not be moved until required for redistribution on a regraded area.

Section 4. Redistribution.

(1) After final grading and before the replacement of topsoil and other materials segregated in accordance with Section 2 of this administrative regulation, regraded land shall be scarified or otherwise treated as required by the cabinet to eliminate slippage surfaces and to promote root penetration. If the permittee shows, through appropriate tests, and the cabinet approves, that no harm will be caused to the topsoil and vegetation, scarification may be conducted after topsoiling.

(2) Topsoil and other materials shall be redistributed in a manner that:

(a) Soil replacement starts with those soil horizons in the reverse order in which they were removed or substitute and overburden materials replaced first with topsoil material last. The minimum depth of material to be redistributed is twenty-four (24) inches, in accordance with Section 2 of this administrative regulation.

(b) Achieves an approximate uniform stable thickness consistent with the approved postmining land uses, contours, and surface water drainage system;

(d) Protects the topsoil from wind and water erosion before and after it is seeded and planted.

Section 5. Nutrients and Soil Amendments. Nutrients and soil amendments in the amounts determined by soils tests shall be applied to the redistributed surface soil layer, so that it supports the approved postmining land use and meets the revegetation requirements of 405 KAR 30:400. All soil tests shall be performed by a qualified laboratory using standard methods approved by the cabinet.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and environment of the Commonwealth. This administrative regulation sets forth requirements for the removal, storage and redistribution of topsoil, and requirements for substitution of other materials for topsoil.
History: 405 KAR 030:290. 8 Ky.R. 122; 483; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:300 Protection of the hydrologic system {#sec-405-kar-30-300 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:300}

Section 1. General.

(1) Surface, underground, and in situ oil shale operations shall be planned and conducted in such manner as to minimize disturbance to the prevailing hydrologic balance in order to prevent long-term adverse changes in the hydrologic balance that could result from such operations, both on and off site.

(2) Changes in water quality and quantity, in the depth to groundwater, and in the location of surface water drainage channels shall be minimized such that the postmining land use of the disturbed land is not adversely affected and applicable federal and state statutes and regulations are not violated.

(3) Operations shall be conducted so as to minimize water pollution and shall, where necessary, use treatment methods to control water pollution. The permittee shall emphasize practices which will prevent or minimize water pollution and changes in flows in preference to the use of water treatment facilities. Such practices include, but are not limited to, stabilizing disturbed areas through grading, diverting run-off, achieving quick growth stands of temporary vegetation, lining drainage channels with rock or vegetation, mulching, sealing acid-forming and toxic-forming materials and selectively placing waste materials in backfill and disposal areas. If pollution can be controlled only by treatment, necessary water treatment facilities shall be constructed, operated, and maintained by the permittee for as long as treatment is required.

Section 2. Sealing of Surface Openings.

(1) All exploration holes, other drill or boreholes, or wells shall be sealed in accordance with the provisions of 405 KAR 30:270 relating to the casing and sealing of drilled holes unless otherwise approved by the cabinet.

(2) Shafts and other openings not covered under subsection (1) of this section shall be sealed or otherwise managed to prevent pollution of surface or groundwater and to prevent mixing of groundwater of significantly different quality.

(3) Water rights and replacement. The permittee shall replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate uses from an underground or surface source where such supply has been affected by contamination, diminution, or interruption resulting from an oil shale operation by the permittee.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth requirements for minimizing disturbances to the hydrologic system.
History: 405 KAR 030:300. 8 Ky.R. 123; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:310 Diversion of flows and water withdrawal {#sec-405-kar-30-310 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:310}

Section 1. Diversions and Conveyance of Overland Flow and Shallow Groundwater Flow, and Ephemeral Streams. Overland flow, including flow through litter, and shallow groundwater flow from undisturbed areas, and flow in ephemeral streams, may be diverted away from disturbed areas by means of temporary or permanent diversions, if required or approved by the cabinet as necessary to minimize erosion, to reduce the volume of water to be treated, and to prevent or remove water from contact with acid-forming or toxic-forming materials. The following requirements shall be met for all diversions and for all collection drains that are used to transport water into water treatment facilities and for all diversions of overland and shallow groundwater flow and ephemeral streams:

(1) Temporary diversions shall be constructed to pass safely the peak run-off from a precipitation event with a two (2) year recurrence interval, or a larger event as specified by the cabinet.

(2) To protect fills and property and to avoid danger to public health and safety, permanent diversions shall be constructed to pass safely the peak run-off from a precipitation event with a ten (10) year recurrence interval, or a larger event as specified by the cabinet. Permanent diversions shall be constructed with gently sloping banks that are stabilized by vegetation. Asphalt, concrete, or other similar linings shall be used only when approved by the cabinet to prevent seepage or to provide stability.

(3) Diversions shall be designed, constructed, and maintained in a manner which prevents additional contributions of suspended solids to stream flow and to run off outside the permit area, to the extent possible using the best technology currently available. Appropriate sediment control measures for these diversions may include, but not be limited to, maintenance of appropriate gradients, channel lining, revegetation, roughness structures, and detention basins.

(4) No diversion shall be located so as to increase the potential for land slides. No diversion shall be constructed on existing land slides, unless approved by the cabinet.

(5) When no longer needed, each temporary diversion shall be removed and the affected land regraded, topsoiled, and revegetated in accordance with 405 KAR 30:290, 405 KAR 30:390, and 405 KAR 30:400.

(6) Diversion design shall incorporate the following:

(a) Channel lining shall be designed using standard engineering practices to pass safely the design velocities.

(b) Freeboard shall be no less than three-tenths (0.3) feet. Protection shall be provided for transition of flows and for critical areas such as swales and curves. Where the area protected is a critical area as determined by the cabinet, the design freeboard may be increased.

(c) Energy dissipators shall be installed, when necessary, at discharge points, where diversions intersect with natural streams and exit velocity of the diversion ditch flow is greater than that of the receiving stream.

(d) Excess excavated material not necessary for diversion channel geometry or regrading of the channel shall be disposed of in accordance with the plan approved by the cabinet and submitted under 405 KAR 30:130, Section 6(13).

(e) Topsoil shall be handled in compliance with 405 KAR 30:290.

Section 2. Stream Channel Diversions.

(1) Flow from perennial and intermittent streams within the permit area may be diverted, if the diversions:

(a) Comply with applicable local, state, and federal statutes and regulations;

(b) Pass the design flow (100 year storm) without causing an increase of more than one (1) foot over existing flood heights or an increase in potential flood hazard to life and/or property; and

(2) When stream flow is allowed to be diverted, the stream channel diversion shall be designed, constructed, and removed, in accordance with the following:

(a) The longitudinal profile of the stream, the channel, and the flood plain shall be designed and constructed to remain stable and to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to stream flow or to run off outside the permit area. These contributions shall not be in excess of requirements of state or federal law. Erosion control structures such as channel lining structures, retention basins, and artificial roughness structures shall be used in diversions only when approved by the cabinet as being necessary to control erosion. These structures shall be approved for permanent diversions only where they are stable and will require infrequent maintenance.

(b) The combination of channel, bank, and flood plain configurations shall be adequate to pass safely the peak run-off of a ten (10) year, twenty-four (24) hour precipitation event for temporary diversions, a 100-year, twenty-four (24) hour precipitation event for permanent diversions, with drainage areas less than 200 acres, or larger events specified by the cabinet for drainage areas greater than 200 acres. However, the capacity of the channel itself should be at least equal to the capacity of the unmodified stream channel immediately upstream and downstream of the diversion.

(3) When no longer needed to achieve the purpose for which they were authorized, all temporary stream channel diversions shall be removed and the affected land regraded and revegetated, in accordance with 405 KAR 30:290, 405 KAR 30:390, and 405 KAR 30:400. At the time diversions are removed, downstream water treatment facilities previously protected by the diversion shall be modified or removed to prevent overtopping or failure of the facilities. This requirement shall not relieve the permittee from maintenance of a water treatment facility otherwise required under 405 KAR or the permit.

(4) When permanent diversions are constructed or stream channels restored, after temporary diversions, the permittee shall:

(a) Restore, enhance where practicable, or maintain natural riparian vegetation on the banks of the stream;

(b) Establish or restore the stream to an environmentally acceptable meandering shape and gradient, as determined by the cabinet; and

Section 3. Stream Buffer Zones.

(1) No land within 100 feet of a perennial stream or a stream with a biological community determined according to subsection (3) of this section shall be disturbed by oil shale operations unless the cabinet specifically authorizes such activities closer to or through such a stream under the following conditions.

(a) Any temporary or permanent diversion shall comply with all provisions of this administrative regulation and shall be constructed prior to any disturbance of the buffer zone;

(b) That the original stream channel will be restored or relocated in a manner satisfactory to the cabinet; and

(c) During and after the mining, the water quantity and quality from the stream section within 100 feet of the surface mining activities shall not be adversely affected.

(2) The area not to be disturbed shall be designated a buffer zone and marked as specified in 405 KAR 30:210.

(3) A stream with a biological community shall be determined by the existence in the stream at any time of an assemblage of two (2) or more species of arthropods or mulluscan animals which are:

(a) Adapted to flowing water for all or part of their life cycle;

(b) Dependent upon a flowing water habitat;

(d) Longer than two (2) millimeters at some stage of the part of their life cycle spent in the flowing water habitat.

Section 4. Water Withdrawals, Transfers or Diversions. Water withdrawals, transfers or diversions from public water shall comply with requirements set forth in KRS 151.140, KRS 151.150, KRS 151.160, KRS 151.170, KRS 151.200 and 401 KAR 4:010.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and environment of the Commonwealth. This administrative regulation sets forth requirements for design and construction of temporary and permanent diversions of overland flow, shallow groundwater flow, ephemeral streams, and intermittent and perennial streams and water withdrawals.
History: 405 KAR 030:310. 8 Ky.R. 124; 485; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:320 Water quality standards, effluent limitations, and monitoring {#sec-405-kar-30-320 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:320}

Section 1. Water Quality Standards.

(1) For the purpose of this administrative regulation, disturbed area shall not include those areas in which only diversion ditches or roads are installed and the upstream area is not otherwise disturbed by the oil shale operations. All sedimentation ponds required shall be constructed in accordance with this chapter and in appropriate locations prior to any mining in the affected drainage area in order to control sedimentation or otherwise treat water. Sedimentation ponds shall be certified by a qualified registered engineer as having been constructed as designed and as approved by the cabinet.

(2) The discharges from areas disturbed by oil shale operations must meet all applicable federal and state laws and administrative regulations and at a minimum in the numerical limitations in Appendix A of this administrative regulation. As sufficient data becomes available, the cabinet may establish effluent limitations for other parameters.

(3) The permittee shall install, operate, and maintain adequate facilities to treat any water discharged from the disturbed area that violates applicable federal or state laws or administrative regulations or the effluent limitations listed in Appendix A of this administrative regulation.

(4) If the pH of waters discharged from the disturbed area is normally less than six (6.0) an automatic line feeder or other neutralization process approved by the cabinet shall be installed, operated, and maintained. If the cabinet finds that small and infrequent treatments are required to meet effluent limitations and do not necessitate use of an automatic neutralization process, the cabinet may approve the use of a manual system if the cabinet finds that consistent and timely treatment can be assured by the permittee.

Section 2. Surface Water Monitoring.

(1) A surface water monitoring program which meets the requirements of this section shall be prepared and submitted with the permit application, and this program shall be subject to the approval of the cabinet. The program shall:

(a) Provide adequate monitoring to characterize all discharges from the disturbed area;

(b) The frequency of sampling shall be twice a month or as deemed necessary by the cabinet;

(c) Provide adequate data to describe the likely daily and seasonal variation in discharges from the disturbed area to the satisfaction of the cabinet;

(d) Provide monitoring at appropriate frequencies to measure normal and abnormal variations in concentrations;

(e) Provide an analytical quality control system including standard methods of analysis as specified in 40 CFR 136; and

(f) Provide a regular quarterly of all measurements and analyses to the cabinet, unless violations of permit conditions occur in which case the cabinet shall be notified immediately after receipt of analytical results by the permittee. If the discharge is subject to administrative regulation by a federal or state permit issued in compliance with the Federal Water Pollution Control Act Amendments of 1972 (33 USC 1251-1378) a copy of the reporting form supplied to meet the permit requirements may be submitted to the cabinet to satisfy the reporting requirements of this administrative regulation if the data meet the sampling frequency and other requirements of this section.

(2) After disturbed areas have been regraded and stabilized in accordance with the provisions of these administrative regulations, the permittee shall monitor surface water flow and quality. Data from this monitoring shall be used to demonstrate that the quality and quantity of run-off without treatment will be consistent with the requirements of this chapter to minimize disturbance to the prevailing hydrologic balance and to attain the approved postmining land use. These data shall provide a basis for approval by the cabinet for removal of water quality or flow control systems and for determining when the requirements of this administrative regulation are met. The cabinet shall approve the nature of data, frequency of collection, and reporting requirements.

(3) Equipment, structures, and other measures necessary to adequately measure and sample the quality and quantity of surface water discharges from the disturbed area of the permit area shall be properly installed, maintained, and operated and shall be removed when no longer required as determined by the cabinet.

Section 3. Recharge Capacity of Reclaimed Lands. The disturbed area shall be reclaimed to restore approximate premining recharge capacity, except when otherwise approved by the cabinet, through restoration of the capability of the reclaimed areas as a whole to transmit water to the groundwater system. The recharge capacity shall be restored to support the approved postmining land use and to minimize disturbances to the prevailing hydrologic balance to the mined area and in associated off-site areas. The permittee shall be responsible for monitoring according to Section 5 of this administrative regulation to ensure that operations conform to this requirement.

Section 4. Groundwater Systems. Backfilled materials shall be placed to minimize adverse effects on groundwater flow and quality, to minimize off-site effects and to support the approved postmining land use. The permittee shall be responsible for performing monitoring according to Section 5 of this administrative regulation to ensure that operations conform to this requirement.

Section 5. Groundwater Monitoring. Groundwater levels, infiltration rates, subsurface flow and storage characteristics, and the quality of groundwater shall be monitored in a manner approved by the cabinet to determine the effects of oil shale operations on the recharge capacity of reclaimed lands and on the quantity and quality of water in groundwater systems at the mine area and in associated off-site areas. When operations are conducted in such a manner that may affect the groundwater system, groundwater levels and groundwater quality shall be periodically monitored using wells that can accurately reflect changes in groundwater quantity and quality resulting from such operations. Sufficient water wells must be used by the permittee. The cabinet may require drilling and development of additional wells if needed to adequately monitor the groundwater system. As specified and approved by the cabinet, additional hydrologic tests, such as infiltration tests, and aquifer tests, must be undertaken by the permittee to demonstrate compliance with Sections 3 and 4 of this administrative regulation.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth water quality standards and monitoring requirements.
History: 405 KAR 030:320. 8 Ky.R. 125; 486; eff. 3-1-1982; 9 Ky.R. 962; eff. 10-5-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:330 Sediment control measures {#sec-405-kar-30-330 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:330}

Section 1. Sediment Control Required. Appropriate sediment control measures shall be designed, constructed, and maintained to prevent additional contributions of sediment to stream flow or to run off outside the permit area using the best technology currently available. In no event shall contributions be in excess of requirements set by applicable state or federal law.

(1) Sediment control measures include practices carried out within and adjacent to the disturbed area. For the purpose of this administrative regulation, disturbed area shall not include those areas in which only diversion ditches, sedimentation ponds, or roads are installed and the upstream area is not otherwise disturbed by the mining operation. The scale of downstream practices shall reflect the degree to which successful techniques are applied at the sources of the sediment. Sediment control measures consist of the utilization of proper mining, reclamation methods, and sediment control practices (singly or in combination) including but not limited to:

(a) Disturbing the smallest practicable area for good site management during the mining operation through progressive backfilling and grading, and timely revegetation;

(b) Consistent with the requirements of this chapter, shaping the backfill material to promote a reduction of the rate and of run-off;

(d) Diversion of overland and channelized flow from undisturbed areas around or in protected crossings through the disturbed area;

(e) Utilization of straw dikes, riprap, check dams, mulches, vegetative sediment filters, dugout ponds, and other measures that reduce overland flow velocity, reduce run-off volume, or entrap sediment; and

(f) Sedimentation ponds.

(2) Maximum utilization shall be made of on-site sediment control practices.

(3) All surface drainage from the disturbed area including disturbed areas which have been graded, seeded, or planted shall be passed through a sedimentation pond or a series of sedimentation ponds before leaving the permit area. Sedimentation ponds shall be retained until drainage from the disturbed area has met the water quality requirements and the revegetation requirements of these administrative regulations have been met. All sedimentation ponds required shall be constructed in accordance with this chapter and in appropriate locations prior to any mining in the affected drainage area in order to control sedimentation or otherwise treat water. Sedimentation ponds shall be certified by a qualified registered engineer as having been constructed as designed and as approved by the cabinet. Sedimentation ponds may be used individually or in series, and should be located as near as possible to the disturbed area and where possible out of major stream courses.

(4) Sediment shall be removed from sedimentation ponds so as to assure maximum sediment removal efficiency and attainment and maintenance of effluent limitations. Sediment removal shall be done in a manner that minimizes adverse effects on surface waters due to its chemical and physical characteristics, on infiltration, on vegetation, and on surface and groundwater quality. Sediment that has been removed from sedimentation ponds and that meets the requirements for topsoil may be redistributed over graded areas in accordance with 405 KAR 30:290.

(5) All sediment ponds shall be designed by a registered professional engineer and at a minimum shall meet the following:

(a) Sediment ponds shall be designed, constructed, and maintained to prevent short-circuiting.

(b) Sediment ponds shall provide a detention period such that discharges from the pond resulting from the water inflow or run-off entering the pond from a ten (10) year, twenty-four (24) hour precipitation event and lesser events shall meet the effluent limitations of Appendix A of 405 KAR 30:320.

(c) There shall be no outflow through the emergency spillway during the passage through the sedimentation pond of the inflow or run-off resulting from the ten (10) year, twenty-four (24) hour precipitation event or lesser events.

(d) An appropriate combination of principal and emergency spillways shall be provided to safely discharge the run-off from a twenty-five (25) year, twenty-four (24) hour precipitation event, or larger event specified by the cabinet. The elevation of the crest of the emergency spillway shall be a minimum of one (1) foot above the crest of the principal spillway. Emergency spillway grades and allowable velocities shall be approved by the cabinet.

(e) Sediment control structures having an embankment that is more than twenty-five (25) feet in height, as measured from the natural bed of the stream or intercourse of the downstream toe of the embankment to the low point in the top of the embankment or a maximum impounding capacity of fifty (50) acre-feet or more shall be designed, constructed, and maintained in accordance with KRS Chapter 151 and administrative regulations promulgated pursuant thereto.

(f) All sediment control structures shall be designed and constructed to achieve a minimum static safety factor of one and five-tenths (1.5) or larger if specified by the cabinet.

(6) In the design of sedimentation ponds pursuant to this administrative regulation, the responsible design engineer shall determine the structure hazard classification as set forth in 405 KAR 30:020 and the structure hazard classification shall be clearly shown on the first sheet of the design drawings.

(7) Sedimentation ponds classified (B) - moderate hazard or (C) - high hazard shall be approved by the cabinet, designed, constructed and maintained according to the provisions of KRS 151.250 and administrative regulations adopted pursuant thereto.

Section 2. The permittee shall forward a certified copy of "as built" engineering plans for all dams or structures which meet either of the following criteria to the Environmental and Public Protection Cabinet, Division of Water, Frankfort, Kentucky 40601. Such plans shall be provided immediately after construction is completed.

(1) The embankment is twenty-five (25) feet or more in height measured from the natural bed of the stream or watercourse at the downstream toe of the fill to the low point in the top of the embankment; or

(2) The structure has an impounding capacity of fifty (50) acre-feet or more at the lowest point in the top of the embankment.

Section 3. The cabinet may require other actions necessary to ensure that the provisions of this administrative regulation are met.

History

RELATES TO: KRS 151.250, 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 380.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth requirements for sediment control measures.
History: 405 KAR 030:330. 8 Ky.R. 127; Am. 488; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:340 Leachate control {#sec-405-kar-30-340 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:340}

Section 1. General. The permittee shall, using the best technology currently available, control the quantity and quality of leachate produced at an oil shale operation.

Section 2. Preventive Measures. The permittee shall control the quantity of leachate by limiting the exposure of leachate producing materials to contact with water utilizing, but not limited to, the following practices:

(1) Constructing diversion structures around sources of leachate. Such structures shall meet the provisions of 405 KAR 30:310, Section 1(2).

(2) Placing such materials on impermeable surfaces;

(3) Minimizing exposure to precipitation;

(4) Protecting disposal areas from water by placing impermeable boundaries around leachate-producing materials; and

(5) Construction of leachate containment structures.

Section 3. Leachate Containment Structures. Where deemed necessary by the cabinet, leachate containment structures shall be constructed below sources of leachate not meeting water quality standards as specified in 405 KAR 30:320. Such structures shall, at a minimum, meet the following provisions:

(1) Leachate containment structures shall be sized to contain all leachate until such leachate can be treated to meet applicable standards or otherwise disposed of as approved by the cabinet;

(2) Leachate containment structures shall be lined with an impermeable material to prevent seepage;

(3) Leachate containment structures shall be located as close as possible to the source;

(4) Leachate containment structures shall not be used for sediment control unless specifically approved by the cabinet;

(5) Leachate containment structures shall be maintained in a manner approved by the cabinet and retained until leachate meets applicable water quality standards;

(6) Leachate containment areas shall be marked by signs meeting the criteria in 405 KAR 30:210;

(7) Leachate containment areas shall be fenced to prevent entry of livestock, wildlife, and unauthorized persons.

Section 4. The cabinet may approve other criteria upon adequate demonstration by the permittee based on sound engineering principals that the requirements of this administrative regulation are met.

Section 5. All leachate shall be handled, treated, and disposed of in accordance with all applicable federal and state laws and regulations.

Section 6. All areas containing leachate-producing materials shall remain under bond until the leachate being produced meets all applicable water quality standards.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth requirements for leachate control.
History: 405 KAR 030:340. 8 Ky.R. 128; 489; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:350 Permanent impoundments {#sec-405-kar-30-350 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:350}

Section 1. General.

(1) Permanent impoundments are prohibited unless authorized by the cabinet, upon the basis of the following demonstration:

(a) The quality of the impounded water shall be suitable on a permanent basis for its intended use, and discharge of water from the impoundment shall not degrade the quality of receiving waters to less than the water quality standards established pursuant to applicable state and federal laws.

(b) The level of water shall be sufficiently stable to support the intended use.

(d) Water impoundments shall not result in the diminution of the quality or quantity of water used by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses.

(e) The design, construction, and maintenance of dams or hazardous structures shall achieve the minimum design requirements as set forth in 401 KAR 4:030, 401 KAR 4:040 and Division of Water Engineering Memorandum No. 5 entitled, "Design Criteria for Dams and Associated Structures." Structures not meeting the size criteria of a dam as defined in KRS 151.100(13) shall be designed, constructed and maintained in accordance with the criteria set forth in the United States Soil Conservation Service, Kentucky Standard and Specification for Pond (378) as a minimum.

(f) The size of the impoundment is adequate for its intended purposes.

(g) The impoundment will be suitable for its intended purposes.

(2) Excavations that will impound water during or after the mining operation shall have perimeter slopes that are stable and shall not be steeper than 1v:2h (fifty (50) percent). Where surface run-off enters the impoundment area, the side slope shall be protected against erosion.

(3) Slope protection shall be provided to minimize surface erosion at the site and sediment control measures shall be required where necessary to reduce the sediment leaving the site.

Section 2. Dams and Embankments.

(1) All dams and embankments of permanent impoundments, and the surrounding areas and diversion ditches disturbed or created by construction, shall be graded, fertilized, seeded, and mulched to comply with the requirements of 405 KAR 30:400 immediately after the dam or embankment is completed, provided that the active, upstream face of the embankment where water will be impounded may be riprapped or otherwise stabilized. Areas in which the vegetation is not successful or where rills and gullies develop shall be repaired and revegetated to comply with the requirements of 405 KAR 30:390, Section 7, and 405 KAR 30:400.

(2) All dams and embankments meeting the size or other criteria of KRS 151.100(13) shall be routinely inspected by a qualified registered professional engineer, or by someone under the supervision of a qualified registered professional engineer, in accordance with KRS 151.295.

(3) All dams and embankments shall be routinely maintained during the mining operations. Vegetative growth shall be cut where necessary to facilitate inspection and repairs. Ditches and spillways shall be cleaned. Any combustible material present on the surface, other than material such as mulch or dry vegetation used for surface stability, shall be removed and all other appropriate maintenance procedures followed.

(4) All dams and embankments that meet or exceed the size or other criteria of KRS 151.100(13) shall be certified to the cabinet by a qualified registered professional engineer, immediately after construction and annually thereafter, as having been constructed and/or maintained to comply with the requirements of this administrative regulation. All dams and embankments that do not meet the size or other criteria of KRS 151.100(13) shall be certified by a qualified registered professional engineer. Certification reports shall include statements on:

(a) Existing and required monitoring procedures and instrumentation;

(b) The design depth and elevation of any impounded waters at the time of the initial certification report or the average and maximum depths and elevations of any impounded waters over the past year for the annual certification reports;

(d) Any other aspects of the dam or embankment affecting stability.

(5) Plans for any enlargement, reduction in size, reconstruction, or other modification of dams or impoundments shall be submitted to the cabinet and shall comply with the requirements of this administrative regulation. Except where a modification is required to eliminate an emergency condition constituting a hazard to public health, safety, or the environment, the cabinet shall approve the plans before modification begins.

Section 3. The permittee shall forward a certified copy of "as built" engineering plans for all dams or structures which meet either of the following criteria to the Environmental and Public Protection Cabinet, Division of Water, Frankfort, Kentucky 40601. Such plans shall be provided immediately after construction is completed.

(1) The embankment is twenty-four (24) feet or more in height measured from the natural bed of the stream or watercourse at the downstream toe of the fill to the low point in the top of the embankment.

(2) The structure has an impounding capacity of fifty (50) acre-feet or more at the lowest point in the top of the embankment.

History

RELATES TO: KRS 151.100, 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and environment of the Commonwealth. This administrative regulation sets forth requirements for permanent water impoundments.
History: 405 KAR 030:350. 8 Ky.R. 128; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:360 Waste management provisions {#sec-405-kar-30-360 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:360}

Section 1. General Requirements.

(1) Mining waste not disposed in the mine workings shall be transported and placed in designated disposal areas within the permit area in a manner approved by the cabinet. The mining waste shall be placed in a controlled manner to ensure:

(a) That leachate and surface run-off from the disposal site will not degrade surface or groundwater or exceed the effluent limitations as specified in 405 KAR 30:320;

(b) That the area designated as the disposal site is suitable for reclamation and revegetation compatible with the natural surroundings; and

(2) At a minimum, the permit applicant shall conduct tests to determine the active and potential acid levels from disposal of mining wastes and an EP toxicity test. The cabinet will use the results of these tests to determine if the proposed disposal methods will fulfill the requirements of subsection (1) of this section. The cabinet may require additional tests as necessary to make this determination.

(3) The permit applicant shall determine if the mining waste streams are hazardous as regulated in 401 KAR Chapters 30 through 47. If a mining waste stream exhibits the characteristics of a hazardous waste or is a listed hazardous waste as described in 401 KAR Chapter 31, then the mining waste must be handled and disposed of in accordance with KRS Chapter 224 and administrative regulations promulgated pursuant thereto.

Section 2. Acid-forming and Toxic-forming Mining Wastes. Drainage from acid-forming and toxic-forming materials in soil, overburden, spoil, spent shale, mining waste, and in other materials, shall be controlled in accordance with 405 KAR 30:340, or shall be prevented from entering groundwater and surface water. Methods of prevention may include but shall not be limited to:

(1) Identifying, burying, and treating, where necessary, spoil or other materials that, in the judgment of the cabinet, will be toxic to vegetation or that will adversely affect water quality if not treated or buried.

(2) Preventing or removing water from contact with acid-producing or toxic-producing deposits.

(3) Burying or otherwise treating all toxic or harmful materials within thirty (30) days, if such materials are subject to wind and water erosion, or within a lesser period designated by the cabinet. If storage of such materials is approved, the materials shall be placed on impermeable material and protected from erosion and contact with surface water.

(4) Acid-forming or toxic-forming material shall not be buried or stored in proximity to a drainage course so as to cause or pose a threat of water pollution or otherwise violate the provisions of these administrative regulations.

(5) All acid-forming or toxic-forming materials that are exposed, used, or produced during oil shale operations shall be covered with a minimum of four (4) feet of nontoxic and nonacid forming material. Covering the material with an impermeable liner(s) may be required by the cabinet. If necessary, such materials shall be treated in order to prevent water pollution or sustained combustion and to minimize adverse effects on plant growth and land uses. Where necessary to protect against upward migration of salts or exposure to erosion, to provide an adequate depth for plant growth, or to otherwise meet local conditions, the cabinet shall specify greater depths of cover using nontoxic material.

(6) All methods of material placement and compaction pursuant to this section shall be approved by the cabinet.

Section 3. Other Mining Wastes.

(1) Wastes including, but not limited to, grease, lubricants, paints, flammable liquids, garbage, abandoned machinery, lumber and other combustibles generated during the mining operation shall be placed and stored in a controlled manner in a designated portion of the permit area. If any of these other mining wastes are hazardous wastes, then these other mining wastes shall be managed in accordance with KRS Chapter 224 and the administrative regulations promulgated pursuant thereto. Placement and storage shall ensure that leachate and surface run-off do not degrade surface or groundwater as specified in 405 KAR 30:320, fires are prevented, and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings.

(2) Final disposal of such other mining wastes shall be in a designated disposal site in the permit area or other appropriate disposal areas approved by the cabinet. Disposal sites shall be designed and constructed with appropriate water barriers on the bottom and sides of the designated site. Appropriate water barriers shall include but not be limited to impervious liners, impermeable liners or subdrainage systems as specified in Section 3(2) of 405 KAR 30:370. Other mining wastes shall be routinely compacted and covered to prevent combustion and becoming wind-borne. When the disposal is completed a minimum of four (4) feet of nontoxic and nonacid forming material shall be placed over the site. Soil material shall be replaced as specified in 405 KAR 30:290, slopes shall be stabilized consistent with 405 KAR 30:390, and the revegetation accomplished in accordance with 405 KAR 30:400. Operation of the disposal site shall be conducted in accordance with all local, state, and federal requirements concerning the permit area.

Section 4. All processing wastes shall be disposed of in accordance with the requirements set forth in KRS Chapter 224 and administrative regulations promulgated pursuant thereto.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth the requirements for the handling and disposal of wastes other than excess spoil and spent shale.
History: 405 KAR 030:360. 9 Ky.R. 1072; eff. 11-2-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:370 Disposal of excess spoil materials and spent shale {#sec-405-kar-30-370 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:370}

Section 1. General Requirements.

(1) Spoil and spent shale not disposed of in the mine workings shall be transported and placed in designated disposal areas within a permit area in a manner approved by the cabinet. The spoil and spent shale shall be placed in a controlled manner to ensure:

(a) That leachate and surface run-off from the fill will not degrade surface or groundwaters or exceed the effluent limitations of 405 KAR 30:320;

(b) Stability of the fill; and

(c) That the land mass designated as the disposal area is suitable for reclamation and revegetation compatible with the natural surroundings.

(2) The fill shall be designed using recognized professional standards, certified by a registered professional engineer, and approved by the cabinet.

(3) Vegetative and organic materials shall, either progressively or in a single operation, be removed from the disposal area and the topsoil shall be removed, segregated, and stored or replaced under 405 KAR 30:290. If approved by the cabinet, organic material may be used as mulch or may be included in the topsoil to control erosion, promote growth of vegetation, or increase the moisture retention of the soil.

(4) All surface drainage from the undisturbed area above the fill shall be diverted away from the fill. Diversion design shall conform with the requirements of 405 KAR 30:310. All disturbed areas, including diversion ditches that are not riprapped, shall be vegetated upon completion of construction.

(5) The disposal areas shall be located on the most moderately sloping and naturally stable areas available as approved by the cabinet. Slope protection shall be provided to minimize surface erosion at the site. If such placement provides additional stability and prevents mass movement, fill materials suitable for disposal shall be placed upon or above a natural terrace, bench, or berm.

(6) The spoil and spent shale shall be transported and placed in horizontal lifts in a controlled manner, concurrently compacted as necessary to ensure mass stability and prevent mass movement, covered, and graded to allow surface and subsurface drainage to be compatible with the natural surroundings and ensure a long-term static safety factor of one and three-tenths (1.3).

(7) A minimum of four (4) feet of nontoxic and nonacid forming material shall be placed on the final layer of spent shale. In addition, the cabinet may require an impermeable cover between the final layer of spent shale and the four (4) feet of nontoxic and nonacid forming material. Greater depths may be specified by the cabinet if deemed necessary. This four (4) foot cover does not include the topsoil required in 405 KAR 30:290.

(8) The final configuration of the fill must be suitable for proposed postmining land uses approved in accordance with 405 KAR 30:220, except that no impoundments shall be allowed on the completed fill, and no depressions shall be allowed on the completed fill unless they are determined by the cabinet to have no potential adverse effect on the stability of the fill and to have no potential for interference with the approved postmining land use.

(9) Fills shall not be constructed in the 100-year flood plain of any perennial stream. A stream channel may not be changed to circumvent this requirement.

(10) Terraces may be utilized to control erosion and enhance stability.

(11) Where the natural land slope in the disposal area exceeds 1v:2.8h (thirty-six (36) percent), or such lesser slope as may be designated by the cabinet based on local conditions, keyway cuts (excavations to stable bedrock) or rock toe buttresses shall be constructed to stabilize the fill. Where the toe of the spoil rests on a downslope, stability analyses shall be performed to determine the size of rock toe buttresses and keyway cuts.

(12) The fill shall be inspected for stability by a registered engineer or other qualified person under the direct supervision of the responsible registered professional engineer experienced in the construction of earth and rockfill embankments at least monthly throughout construction and during the following critical construction periods: removal of all organic material and topsoil; placement of underdrainage systems; installation of surface drainage systems; placement and compaction of fill materials; and revegetation. The responsible registered professional engineer shall provide to the cabinet a certified report within two (2) weeks after each inspection that the fill has been constructed as specified in the design approved by the cabinet. A copy of the report shall be retained at the mine site.

(13) Leachate ponds shall be constructed below all spent shale disposal areas at locations approved by the cabinet. Ponds shall be sized to contain all leachate from excess spoil and spent shale disposal areas. Leachate ponds shall be constructed in accordance with the requirements of 405 KAR 30:340.

(14) Oil shale processing wastes and spent shale shall not be disposed of in head-of-hollow or valley fills with excess spoil unless specific approval is granted by the cabinet.

(15) If the disposal area contains springs, natural or manmade watercourses, or wet-weather seeps, an underdrain system consisting of durable rock shall be constructed from the wet areas in a manner that prevents infiltration of the water into the spoil material. The underdrain system shall be protected by an adequate filter and shall be designed and constructed using standard geotechnical engineering methods.

(16) The foundation and abutments of the fill shall be stable under all conditions of construction and operation. Sufficient foundation investigation and laboratory testing of foundation materials shall be performed in order to determine the design requirements for stability of the foundation. Analyses of foundation conditions shall include the effect of underground mine workings, if any, upon the stability of the structure.

Section 2. Additional Requirements for Spent Shale Disposal.

(1) At a minimum, the permit applicant shall conduct tests to determine the active and potential acid levels of spent shale and an EP toxicity test to identify toxic contaminants. The results of these tests shall be submitted to the cabinet prior to receiving a permit. The cabinet will use the results of these tests to determine if the proposed handling method for spent shale in conjunction with excess spoil will fulfill the requirements of Section 1(1) of this administrative regulation. The cabinet may require additional tests as necessary to make this determination.

(2) If the cabinet determines that the proposed handling method for spent shale in combination with excess spoil will not adequately fulfill the requirements of Section 1(1) of this administrative regulation spent shale shall be handled according to the provisions of 405 KAR 30:360. Excess spoil shall be handled in accordance with the provisions of Section 1 of this administrative regulation excluding subsections (7) and (13) of that section.

(3) Spent shale shall be cooled to a temperature approved by the cabinet, prior to disposal.

Section 3. Valley Fills and Head-of-hollow Fills. Disposal of excess spoil in valley fills and head-of-hollow fills shall meet all requirements of Section 1 of this administrative regulation and the additional requirements of this section, except as provided in Section 2 of this administrative regulation.

(1) The fill shall be designed to attain a long-term static safety factor of one and three-tenths (1.3) based upon data obtained from subsurface exploration, geotechnical testing, foundation design, and accepted engineering analyses.

(2) A subdrainage system for the fill shall be constructed in accordance with the following:

(a) A system of underdrains constructed of durable rock shall meet the requirements of paragraph (d) of this subsection and:

Be installed along the natural drainage system;
Extend from the toe to the head of the fill; and
Contain lateral drains to each area of potential drainage or seepage.

(b) A filter system to insure the proper functioning of the rock underdrain system shall be designed and constructed using standard geotechnical engineering methods.

(c) In constructing the underdrains, no more than ten (10) percent of the rock may be less than twelve (12) inches in size and no single rock may be larger than twenty-five (25) percent of the width of the drain. Rock used in underdrains shall meet the requirement of paragraph (d) of this subsection. The main underdrain shall be sized so as to function properly under all probable conditions and must meet the approval of the cabinet.

(d) Underdrains shall consist of nondegradable, nonacid or toxic forming rock such as natural sand and gravel, sandstone, limestone, or other durable rock that will not slake in water and will be free of coal, clay or shale.

(3) Spoil shall be transported and placed in a controlled manner and concurrently compacted as specified by the cabinet, in lifts no greater than four (4) feet. The cabinet may require lifts of less than four (4) feet in order to:

(a) Achieve the densities designed to ensure mass stability;

(b) Prevent mass movement;

(d) Prevent formation of voids.

(4) Surface water run-off from the area above the fill shall be diverted away from the fill and into stabilized diversion channels designed to pass safely the run-off from a 100-year, twenty-four (24) hour precipitation event or larger event specified by the cabinet. Surface run-off from the fill surface shall be diverted to stabilized channels off the fill which will safely pass the run-off from a 100-year, twenty-four (24) hour precipitation event. Diversion design shall comply with the requirements of 405 KAR 30:310, Section 1(2).

(5) The tops of the fill and any terrace constructed to stabilize the face shall be graded no steeper than 1v:20h (five (5) percent). The vertical distance between terraces shall not exceed fifty (50) feet.

(6) Drainage shall not be directed over the outslope of the fill.

(7) The outslope of the fill shall not exceed 1v:2h (fifty (50) percent). The cabinet may require a flatter slope.

(8) The cabinet may approve other methods of design and construction if demonstrated by the applicant using sound engineering principles that such design and construction meets or exceeds the requirement of this administrative regulation.

Section 4. Other Disposal Requirements. The cabinet may require other measures to ensure the protection of fish and wildlife, water, vegetation, and other environmental resources of the area as well as public health and safety.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth specific requirements for the location of areas used for the disposal of excess spoil materials and spent shale and the design, construction, and inspection of fill structures composed of such materials.
History: 405 KAR 030:370. 9 Ky.R. 986; eff. 10-5-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:390 Backfilling and grading {#sec-405-kar-30-390 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:390}

Section 1. Postmining final graded slopes need not be uniform nor does the mined area have to be backfilled to achieve the approximate original contour of the land surface.

Section 2. Spoil, spent shale and other wastes may be disposed of in the mined area provided it is demonstrated to the satisfaction of the cabinet by hydrological means and chemical and physical analyses that these waste materials are suitable for use as fill material and that use of these materials will not adversely affect water quality, water flow, and vegetation; will not present hazards for public health and safety; and will not cause instability in the backfilled area.

Section 3. Covering and Stabilizing.

(1) Any acid-forming or toxic-forming materials, combustible materials, or any other mining waste materials that are exposed, used, or produced during mining shall be covered with a minimum of four (4) feet of nontoxic and nonacid forming material; or, if necessary, treated in order to prevent water pollution and sustained combustion, and to minimize adverse effects on plant growth and land uses. These four (4) feet of nontoxic, nonacid forming material do not include the topsoil or topsoil substitute material required in 405 KAR 30:290 relating to topsoil and 405 KAR 30:280 covering prime farmland. Acid-forming or toxic-forming material shall not be buried or stored in proximity to a drainage course so as to pose a threat of water pollution or otherwise adversely affect the hydrologic balance.

(2) Backfilled materials shall be selectively placed and compacted as necessary to prevent leaching of acid-forming and toxic-forming materials into surface or subsurface waters and wherever necessary to ensure the stability of the backfilled materials. The method of compacting backfill material and the design specifications shall be approved by the cabinet before the acid-forming or toxic-forming materials are covered.

(3) Where highwalls are created during mining which contain various geologic zones with substantially different weathering rate, the permittee shall, at a minimum, backfill all zones which are overlain by a formation with a much slower weathering rate.

(4) All backfilling shall be placed and compacted to achieve a minimum static safety factor of one and three-tenths (1.3) or higher if deemed necessary by the cabinet based on specific site conditions.

(5) Spent shale shall be disposed of in mined areas in accordance with the requirements of 405 KAR 30:370, Sections 1(1) and 2 of this administrative regulation.

Section 4.

(1) Where deemed necessary by the cabinet impervious liner(s) will be required in backfill areas to protect water quality, water flow, water quantity, and vegetation, and to prevent hazards to public health and safety.

(2) The cabinet shall approve the type and order in which all materials are backfilled.

Section 5. Grading Along the Contour. All final grading, preparation of overburden before replacement of topsoil or topsoil substitute, and placement of topsoil, in accordance with the provisions of 405 KAR 30:290, shall be conducted in a manner which minimizes erosion and provides a surface for replacement of topsoil which will minimize slippage.

Section 6. Regrading or Stabilizing Rills and Gullies. When rills or gullies deeper than nine (9) inches form in areas that have been regraded and the topsoil or topsoil substitute material replaced but vegetation has not yet been established, the permittee shall fill, grade, or otherwise stabilize the rills and gullies and reseed or replant the areas in accordance with 405 KAR 30:400 with regard to revegetation. The cabinet shall specify that rills or gullies of lesser size be stabilized if the rills or gullies will be disruptive to the approved postmining land use or may result in additional erosion and sedimentation.

Section 7. Small Depressions. If approved by the cabinet, small depressions may be constructed to minimize erosion, conserve soil moisture, or promote revegetation. The depressions shall be compatible with the approved postmining land use and shall not be inappropriate substitutes for construction of lower grades on the reclaimed lands. Depressions approved under this section shall have a holding capacity of less than one (1) cubic yard of water or, if it is necessary that they be larger, shall not restrict normal access throughout the area or constitute a hazard.

Section 8. Permanent Impoundments. If approved in the postmining land use plan, permanent impoundments may be retained on mined and reclaimed areas. No impoundments shall be constructed on top of areas in which mining and processing waste materials or spent shale are deposited. Impoundments shall not be used to meet the requirements of Section 4 of this administrative regulation with regard to covering of acid-forming and toxic-forming materials, spent shale or other waste materials.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth requirements relating to the backfilling and grading of areas affected by oil shale operations.
History: 405 KAR 030:390. 8 Ky.R. 133; 489; eff. 3-1-1982; 9 Ky.R. 964; eff. 10-5-1983; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

405 KAR 30:400 Revegetation {#sec-405-kar-30-400 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:400}

Section 1. General Requirements.

(1) Each permittee shall establish on all affected land a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the region or species that supports the approved postmining land use. For areas designated as prime farmland, the requirements of 405 KAR 30:280 shall apply.

(2) All revegetation shall be in compliance with the plans submitted under 405 KAR 30:130, as approved by the cabinet, and carried out in a manner that encourages a prompt vegetative cover and recovery of productivity levels compatible with the approved postmining land use.

(a) All disturbed land, except water areas and surface areas of roads that are approved as a part of the postmining land use, and other small incidental areas related to the fulfillment of the postmining land use plan subject to approval by the cabinet, shall be seeded or planted to achieve a permanent vegetative cover of the same seasonal variety native to the region.

(b) The vegetative cover shall be capable of stabilizing the soil surface from erosion.

(c) Vegetative cover shall be considered of the same seasonal variety when it consists of a mixture of species of equal or superior utility for the approved postmining land use, when compared with the utility of naturally occurring vegetation during each season of the year.

(d) If both the premining and postmining land uses are cropland, successful establishment of the crops normally grown will meet the requirements of paragraphs (a), (b) and (c) of this subsection.

(e) Subject to the approval of the cabinet, small incidental areas related to the fulfillment of the postmining land use may be exempted from the revegetation standards where no adverse environmental impact will occur if the exemption is granted.

Section 2. Use of Introduced Species. Introduced species may be substituted for native species only if approved by the cabinet under the following conditions:

(1) The species are compatible with the natural plant and animal species of the region;

(2) The species meet the requirements of applicable state and federal seed or introduced species statutes and are not poisonous or noxious; and

(3)

(a) After appropriate field trials or other demonstrations or studies satisfactory to the cabinet have shown that the introduced species, if proposed as the permanent vegetation, can establish an effective and permanent cover compatible with the vegetation on surrounding areas and compatible with the approved postmining land use; or

(4) The cabinet may require the use of particular species or mixtures when such species are determined to enhance fish and wildlife resources, to be more effective in controlling erosion, to be more effective in establishing permanent vegetation or to be more effective in achieving the approved postmining land use.

Section 3. Timing. Seeding and planting of a disturbed area shall be conducted during the first normal period for favorable planting conditions after final preparation. The normal period for favorable planting shall be that planting time generally accepted locally, or as established by the cabinet, for the type of plant materials selected. When necessary to effectively control erosion, any disturbed area shall be seeded and planted, as contemporaneously as practicable, within thirty (30) days of the completion of backfilling and grading, to establish a temporary cover of small grains, grasses, or legumes until a permanent cover is established.

Section 4. Mulching and Other Soil Stabilizing Practices.

(1) Suitable mulch or other soil stabilizing practices shall be used on all regraded and topsoiled areas to control erosion, to promote germination of seeds, or increase the moisture retention capacity of the soil. The cabinet may, on a case-by-case basis, suspend the requirement for mulch, if the cabinet finds that alternative procedures proposed by the permittee will achieve the requirements of Section 6 of this administrative regulation and do not cause or contribute to air or water pollution.

(2) When required by the cabinet, mulches shall be mechanically or chemically anchored to the soil surface to assure effective protection of the soil and vegetation.

(3) Annual grasses and grains may be used alone, as in situ mulch, or in conjunction with another mulch, when the cabinet determines that they will provide adequate soil erosion control and will later be replaced by perennial species approved for the postmining land use.

(4) Chemical soil stabilizers alone, or in combination with appropriate mulches, may be used in conjunction with vegetative covers approved for the postmining land use.

Section 5. Grazing. When the approved postmining land use is grazing or pasture land, the permittee may demonstrate successful revegetation by using the reclaimed land for livestock grazing at a grazing capacity approved by the cabinet approximately equal to that for similar nonmined lands, for at least the last two (2) full years of liability required under Section 6(2) of this administrative regulation, or by other appropriate demonstration approved by the cabinet. It is recommended that grazing capacity be accomplished gradually so that overgrazing does not occur and damage the vegetation cover.

Section 6. Standards for Success.

(1) Success of revegetation shall be measured by techniques approved by the cabinet after consultation with appropriate state and federal agencies. Comparison of ground cover and productivity may be made on the basis of reference areas or through the use of technical guidance procedures published by USDA or other procedures approved by the cabinet for assessing ground cover and productivity. Management of the reference area, if applicable, shall be comparable to that which is required for the approved postmining land use of the permit area.

(2)

(a) Ground cover and productivity of living plants on the revegetated area within the permit area shall be at least equal to the ground cover and productivity of living plants on the approved reference area, or to the standards in technical guides approved by the cabinet. Ground cover and productivity shall equal the approved standard for the last three (3) consecutive years of the responsibility period.

(b) Except as provided in subsection 2(c) of this section, the period of extended responsibility under the performance bond requirements of this administrative regulation begins at the last time of substantially augmented seeding, fertilizing, irrigation or other work necessary to ensure successful vegetation, and continues for not less than seven (7) years.

(c) The ground cover and productivity of the revegetated area shall be considered equal if they are at least ninety (90) percent of the ground cover and productivity of the reference area with ninety (90) percent statistical confidence, or with eighty (80) percent statistical confidence on shrublands, or ground cover and productivity are at least ninety (90) percent of the standards in a technical guide approved pursuant to paragraph (a) of this subsection. Exceptions may be authorized by the cabinet under the following standards:

For areas to be developed for industrial or residential use within two (2) years after regrading is completed, the ground cover of living plants shall not be less than the cabinet determines to be necessary to control erosion; and
For areas to be used for cropland, success in revegetation of cropland shall be determined on the basis of crop production from the mined area as compared to approved reference areas or other approved technical guidance procedures. For the purposes of erosion control and for efforts to rebuild the organic content in the soils, the first two (2) years grasses and legumes will be allowed upon approval of the cabinet. Crop production from the mined area shall be equal to or greater than that of the approved standard for at least two (2) consecutive growing seasons out of the remaining five (5) year liability period established in paragraph (b) of this subsection. Production shall not be considered equal if it is less than ninety (90) percent of the production of the approved standard with ninety (90) percent statistical confidence. The applicable seven (7) year period of responsibility for revegetation shall commence at the date of initial planting of the crop being grown. Within thirty (30) days of planting, the permittee shall notify the cabinet that the initial planting of the crop has been completed. Promptly thereafter, the cabinet shall inspect the area to verify that the initial planting has been completed.
On areas to be developed for fish and wildlife management or forestland, success of vegetation shall be determined on the basis of tree, shrub or half-shrub stocking and ground cover. The tree, shrub, or half-shrub stocking shall meet the standards described in Section 7 of this administrative regulation. The area seeded to a ground cover shall be considered acceptable if it is at least seventy (70) percent of the ground cover of the reference areas with ninety (90) percent statistical confidence or if the ground cover is determined to be adequate to control erosion by the cabinet. This subsection shall determine the responsibility period and the frequency of ground cover measurement.

(3) The permittee shall:

(a) Maintain any necessary fences and proper management practices; and

(b) Conduct periodic measurements of vegetation, soils, and water prescribed or approved by the cabinet, to identify conditions during the applicable period of liability specified in subsection (2) of this section.

(4) For purposes of this section, herbaceous species means grasses, legumes, and nonleguminous forbs; woody plants means woody shrubs, trees, and vines; and ground cover means the area of ground covered by the combined aerial parts of vegetation and the litter that is produced naturally on-site, expressed as a percentage of the total area of measurement.

Section 7. Tree and Shrub Stocking. This section sets forth standards for revegetation of areas for which the approved postmining land use requires woody plants as the primary vegetation, to ensure that a cover of commercial tree species, noncommercial tree species, shrubs or half-shrubs, sufficient for adequate use of available growing space, is established after mining activities.

(1) Stocking, i.e., the number of stems per unit area, will be used to determine the degree to which space is occupied by well-distributed, countable trees, shrubs or half-shrubs.

(a) Root crown or root sprouts over one (1) foot in height shall count as one (1) toward meeting the stocking requirements. Where multiple stems occur only the tallest stem will be counted.

(b) A countable tree or shrub means a tree that can be used in calculating the degree of stocking under the following criteria:

The tree or shrub shall be in place at least three (3) growing seasons;
The tree or shrub shall be alive and healthy; and
The tree or shrub shall have at least one-third (1/3) of its length in live crown.

(2) The following are the minimum performance standards for areas where commercial forest land is the approved postmining land use:

(a) The area shall have a minimum stocking of 450 trees or shrubs per acre.

(b) A minimum of seventy-five (75) percent of countable trees or shrubs shall be commercial trees species; and

(c) The number of trees or shrubs and the ground cover shall be determined using procedures described in Section 6(2)(c) of this administrative regulation and subsection (1) of this section of this administrative regulation, and the sampling method approved by the cabinet.

(d) Upon expiration of the seven (7) year responsibility period and at the time of request for bond release, each permittee shall provide documentation showing that the stocking of trees and shrubs and the ground cover on the revegetated area satisfy Section 6(2)(c)3 of this administrative regulation and this subsection.

(3) The following are the minimum performance standards for areas where woody plants are used for wildlife management, recreation, shelter belts, or forest uses other than commercial forest land:

(a) The stocking of trees, shrubs, half-shrubs and the ground cover established on the revegetated area shall approximate the stocking and ground cover on the reference area, or shall approximate the stocking and ground cover as approved in the mining and reclamation plan as appropriate for the approved postmining land use.

(b) Where a reference area is utilized, an inventory of trees, half-shrubs and shrubs shall be conducted on established reference areas according to methods approved by the cabinet. This inventory shall contain but not be limited to:

Site quality;
Stand size;
Stand condition;
Site and species relations;
Appropriate forest land utilization considerations; and
Species types.

(c) Upon expiration of the seven (7) year responsibility period and at the time of request for bond release, each permittee shall provide documentation showing that:

The woody plants established on the revegetated site are equal to or greater than ninety (90) percent of the stocking of live woody plants of the same life form on the reference area or of the life form as approved in the permittee's mining and reclamation plan, with eighty (80) percent statistical confidence; and
The ground cover on the revegetated area satisfies Section 6(2)(c)3 of this administrative regulation. Species diversity, seasonal variety and regenerative capacity of the vegetation of the revegetated area shall be evaluated on the basis of the results which could reasonably be expected using the revegetation methods described in the mining and reclamation plan.

Section 8. Planting Report. Prior to, or simultaneously with, the submittal of an application for the initial bond release on an area, the permittee shall file a certified planting report with the cabinet, on a form prescribed and furnished by the cabinet, giving the following information:

(1) Identification of the operation;

(2) Permit number;

(3) The type of planting or seeding, including mixtures and amounts;

(4) The date of planting or seeding;

(5) Fertilizer rates or amounts and types of other soil amendments applied;

(6) The area of land planted; and

(7) Such other relevant information as the cabinet may require.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and the environment of the Commonwealth. This administrative regulation sets forth requirements for revegetation of areas affected by oil shale operations, including requirements for temporary and permanent vegetative cover, use of introduced species, timing of revegetation, mulching and other soil stabilizing practices, standards for measuring revegetation success, and reporting requirements.
History: 8 Ky.R. 134; Am. 490; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018.

405 KAR 30:410 In situ operations {#sec-405-kar-30-410 omnilex-key=us-ky-regs-official--title-405--405 KAR 30:410}

Section 1.

(1) In situ operations shall be planned and conducted in a manner which minimizes disturbances to the prevailing hydrologic balance by:

(a) Avoiding discharge of fluids into holes or wells, other than those approved by the cabinet;

(b) Injecting process recovery fluids only into geologic zones or intervals approved by the cabinet;

(d) Preventing discharge of process fluid into surface waters; and

(e) Preventing radioactive gases or other hazardous gases from escaping into adjacent geologic zones.

(2) Anyone who conducts in situ operations shall submit to the cabinet a plan that ensures that all acid-forming, toxic-forming, or radioactive gases, solids, or liquids constituting a fire, health, safety, or environmental hazard and caused by the mining and recovery process are promptly treated, confined, or disposed of in a manner that prevents contamination of ground and surface waters, damage to fish, wildlife, and related environmental values, and threats to the public health and safety.

(3) Each permittee who conducts in situ operations shall prevent flow of the process recovery fluid:

(a) Horizontally beyond the affected area identified in the permit; and

(b) Vertically into overlaying or underlying aquifers.

(4) Each permittee who conducts in situ operations shall restore the quality of affected groundwater in the permit area and adjacent area, including groundwater above and below the production zone to a state which equals or exceeds the premining level, to ensure that the potential for use of the groundwater is not diminished.

Section 2. Anyone engaging in in situ operations shall submit a reclamation plan to the cabinet as part of the application package which meets the cabinet's approval.

Section 3. The terms of a permit for in situ operations may be modified by the cabinet at any time if it determines that more stringent measures are necessary to protect the ground or surface waters, fish, wildlife, and related environmental values, or health and safety of the public.

Section 4. Monitoring.

(1) Each person who engages in in situ operations shall monitor the quality and quantity of surface and groundwater and the subsurface flow and storage characteristics as required by the cabinet to measure changes in the quantity and quality of water in surface and groundwater systems in the permit area and in the adjacent area.

History

RELATES TO: KRS 350.600
STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.028, 350.050, 350.600
NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.600 requires the Environmental and Public Protection Cabinet to develop administrative regulations for oil shale operations to minimize and prevent their adverse effects on the citizens and environment of the Commonwealth. This administrative regulation sets forth certain requirements for in situ operations.
History: 405 KAR 030:410. 8 Ky.R. 136; eff. 3-1-1982; TAm eff. 8-9-2007; Crt eff. 7-3-2018; Crt eff. 6-30-2025.

Title 405 KAR — Energy and Environment Cabinet - Department for Natural Resources

Chapter 2 General Coal Mining Practices

405 KAR 2:010 Waiving liens against privately-owned land {#sec-405-kar-2-010 omnilex-key=us-ky-regs-official--title-405--405 KAR 2:010}

Chapter 5 Surface Effects of Noncoal Mining

405 KAR 5:002 Definitions for 405 KAR Chapter 5 {#sec-405-kar-5-002 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:002}

405 KAR 5:015 General provisions {#sec-405-kar-5-015 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:015}

405 KAR 5:021 Permit fees {#sec-405-kar-5-021 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:021}

405 KAR 5:032 Permit requirements {#sec-405-kar-5-032 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:032}

405 KAR 5:036 Signs and markers {#sec-405-kar-5-036 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:036}

405 KAR 5:040 Access roads and haul roads {#sec-405-kar-5-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:040}

405 KAR 5:042 Blasting {#sec-405-kar-5-042 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:042}

405 KAR 5:048 Protection of environmental resources {#sec-405-kar-5-048 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:048}

405 KAR 5:050 Protection of surface water quantity and quality {#sec-405-kar-5-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:050}

405 KAR 5:055 Permanent and temporary impoundments {#sec-405-kar-5-055 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:055}

405 KAR 5:062 Handling of materials {#sec-405-kar-5-062 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:062}

405 KAR 5:065 Premining and postmining land use {#sec-405-kar-5-065 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:065}

405 KAR 5:070 Revegetation {#sec-405-kar-5-070 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:070}

405 KAR 5:078 Contemporaneous reclamation {#sec-405-kar-5-078 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:078}

405 KAR 5:082 Reclamation bond {#sec-405-kar-5-082 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:082}

405 KAR 5:085 Enforcement {#sec-405-kar-5-085 omnilex-key=us-ky-regs-official--title-405--405 KAR 5:085}

Chapter 7 General Provisions

405 KAR 7:001 Definitions for 405 KAR Chapter 7 {#sec-405-kar-7-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:001}

405 KAR 7:015 Documents incorporated by reference {#sec-405-kar-7-015 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:015}

405 KAR 7:030 Applicability {#sec-405-kar-7-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:030}

405 KAR 7:035 Exemption for coal extraction incidental to the extraction of other minerals {#sec-405-kar-7-035 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:035}

405 KAR 7:040 General obligations of operators and permittees {#sec-405-kar-7-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:040}

405 KAR 7:050 Coal processing waste disposal sites {#sec-405-kar-7-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:050}

405 KAR 7:060 Experimental practices mining {#sec-405-kar-7-060 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:060}

405 KAR 7:070 Certification of blasters {#sec-405-kar-7-070 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:070}

405 KAR 7:080 Small operator assistance {#sec-405-kar-7-080 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:080}

405 KAR 7:095 Assessment of civil penalties {#sec-405-kar-7-095 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:095}

405 KAR 7:097 Reclamation in lieu of cash payment of civil penalties {#sec-405-kar-7-097 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:097}

405 KAR 7:100 Notice of citizen suits {#sec-405-kar-7-100 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:100}

405 KAR 7:110 Petitions for rulemaking {#sec-405-kar-7-110 omnilex-key=us-ky-regs-official--title-405--405 KAR 7:110}

Chapter 8 Permits

405 KAR 8:001 Definitions for 405 KAR Chapter 8 {#sec-405-kar-8-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:001}

405 KAR 8:010 General provisions for permits {#sec-405-kar-8-010 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:010}

405 KAR 8:020 Coal exploration {#sec-405-kar-8-020 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:020}

405 KAR 8:030 Surface coal mining permits {#sec-405-kar-8-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:030}

405 KAR 8:040 Underground coal mining permits {#sec-405-kar-8-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:040}

405 KAR 8:050 Permits for special categories of mining {#sec-405-kar-8-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 8:050}

Chapter 10 Bond and Insurance Requirements

405 KAR 10:001 Definitions for 405 KAR Chapter 10 {#sec-405-kar-10-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:001}

405 KAR 10:015 General bonding provisions {#sec-405-kar-10-015 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:015}

405 KAR 10:025 Extension of performance bond subsidization {#sec-405-kar-10-025 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:025}

405 KAR 10:030 General requirements for liability insurance {#sec-405-kar-10-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:030}

405 KAR 10:035 Procedures, criteria and hearing requirements for cancellation of surety bonds after notice of noncompliance issued for failure to maintain contemporaneous reclamation {#sec-405-kar-10-035 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:035}

405 KAR 10:040 Procedures, criteria and schedule for release of performance bond {#sec-405-kar-10-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:040}

405 KAR 10:050 Bond forfeiture {#sec-405-kar-10-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:050}

405 KAR 10:070 Kentucky reclamation guaranty fund {#sec-405-kar-10-070 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:070}

405 KAR 10:080 Full-cost bonding {#sec-405-kar-10-080 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:080}

405 KAR 10:090 Production fees {#sec-405-kar-10-090 omnilex-key=us-ky-regs-official--title-405--405 KAR 10:090}

Chapter 12 Inspection and Enforcement

405 KAR 12:001 Definitions for 405 KAR Chapter 12 {#sec-405-kar-12-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 12:001}

405 KAR 12:010 General provisions for inspection and enforcement {#sec-405-kar-12-010 omnilex-key=us-ky-regs-official--title-405--405 KAR 12:010}

405 KAR 12:020 Enforcement {#sec-405-kar-12-020 omnilex-key=us-ky-regs-official--title-405--405 KAR 12:020}

405 KAR 12:030 Public participation in inspection and enforcement {#sec-405-kar-12-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 12:030}

Chapter 16 Performance Standards for Surface Mining Activities

405 KAR 16:001 Definitions for 405 KAR Chapter 16 {#sec-405-kar-16-001 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:001}

405 KAR 16:010 General provisions {#sec-405-kar-16-010 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:010}

405 KAR 16:020 Contemporaneous reclamation {#sec-405-kar-16-020 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:020}

405 KAR 16:030 Signs and markers {#sec-405-kar-16-030 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:030}

405 KAR 16:040 Casing and sealing of drilled holes {#sec-405-kar-16-040 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:040}

405 KAR 16:050 Topsoil {#sec-405-kar-16-050 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:050}

405 KAR 16:060 General hydrologic requirements {#sec-405-kar-16-060 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:060}

405 KAR 16:070 Water quality standards and effluent limitations {#sec-405-kar-16-070 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:070}

405 KAR 16:080 Diversions {#sec-405-kar-16-080 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:080}

405 KAR 16:090 Sedimentation ponds {#sec-405-kar-16-090 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:090}

405 KAR 16:100 Permanent and temporary impoundments {#sec-405-kar-16-100 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:100}

405 KAR 16:110 Surface and groundwater monitoring {#sec-405-kar-16-110 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:110}

405 KAR 16:120 Use of explosives {#sec-405-kar-16-120 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:120}

405 KAR 16:130 Disposal of excess spoil {#sec-405-kar-16-130 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:130}

405 KAR 16:140 Disposal of coal mine waste {#sec-405-kar-16-140 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:140}

405 KAR 16:150 Disposal of noncoal mine waste {#sec-405-kar-16-150 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:150}

405 KAR 16:160 Coal mine waste dams and impoundments {#sec-405-kar-16-160 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:160}

405 KAR 16:170 Stabilization of surface areas {#sec-405-kar-16-170 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:170}

405 KAR 16:180 Protection of fish, wildlife, and related environmental values {#sec-405-kar-16-180 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:180}

405 KAR 16:190 Backfilling and grading {#sec-405-kar-16-190 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:190}

405 KAR 16:200 Revegetation {#sec-405-kar-16-200 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:200}

405 KAR 16:210 Postmining land use capability {#sec-405-kar-16-210 omnilex-key=us-ky-regs-official--title-405--405 KAR 16:210}