NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires
the cabinet to promulgate administrative regulations pertaining to surface coal
mining and reclamation operations under the permanent regulatory program. This
administrative regulation establishes definitions for terms used in 405 KAR
Chapter 12.
Section 1. Definitions.
(1) "Adjacent area" means land located
outside the affected area or permit area, depending on the context in which
"adjacent area" is used, where air, surface, or groundwater, fish, wildlife,
vegetation, or other resources protected by KRS Chapter 350 could be adversely
impacted by surface coal mining and reclamation operations.
(2) "
Affected area" means any land or water
area that is used to facilitate, or is physically altered by, surface
coal
mining and reclamation operations. The
affected area includes:
(a) The disturbed area;
(b) Any area upon which surface coal mining
and reclamation operations are conducted;
(c) Any adjacent lands the use of which is
incidental to surface coal mining and reclamation operations;
(d) All areas covered by new or existing
roads used to gain access to, or for hauling coal to or from, surface coal
mining and reclamation operations, except as established in this
definition;
(e) Any area covered by
surface excavations, workings, impoundments, dams, ventilation shafts,
entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm
banks, tailings, holes or depressions, repair areas, storage areas, or shipping
areas;
(f) Any areas upon which are
sited structures, facilities, or other property or material on the surface
resulting from, or incident to, surface coal mining and reclamation
operations;
(g) The area located
above underground workings associated with underground mining
activities;
(h) Auger mining or in
situ mining; and
(i) Every road
used for the purposes of access to, or for hauling
coal to or from, surface
coal mining and reclamation operations, unless the road:
1. Was designated as a public road pursuant
to the laws of the jurisdiction where it is located;
2. Is maintained with public funds and
constructed in a manner similar to other public roads of the same
classification within the jurisdiction; and
3. There is substantial (more than
incidental) public use.
(3) "Application" means the documents and
other information filed with the cabinet seeking issuance of permits,
revisions; amendments, renewals, and transfer, assignment or sale of permit
rights for surface coal mining and reclamation operations or, if required,
seeking approval for coal exploration.
(4) "Cabinet" is defined by
KRS
350.010.
(5) "C.F.R." means Code of Federal
Regulations.
(6) "Coal" means
combustible carbonaceous rock, classified as anthracite, bituminous,
sub-bituminous, or lignite by ASTM Standard D 388-77.
(7) "
Coal exploration" means the field
gathering of:
(a) Surface or subsurface
geologic, physical, or chemical data by mapping, trenching, drilling,
geophysical, or other techniques necessary to determine the quality and
quantity of overburden and coal of an area; or
(b) Environmental data to establish the
conditions of an area before beginning surface coal mining and reclamation
operations under the requirements of 405 KAR Chapters 7 through 24 if the
activity could cause any disturbance of the land surface or could cause any
appreciable effect upon land, air, water, or other environmental
resources.
(8) "Day"
means calendar day unless otherwise specified to be a working day.
(9) "Department" means the Department for
Natural Resources.
(10) "Disturbed
area" means an area where vegetation, topsoil, or overburden is removed or upon
which topsoil, spoil, coal processing waste, underground development waste, or
noncoal waste is placed by surface coal mining operations. Those areas are
classified as "disturbed" until reclamation is complete and the performance
bond or other assurance of performance required by 405 KAR Chapter 10 is
released.
(11) "Imminent danger to
the health and safety of the public" means the existence of any condition or
practice, or any violation of a permit or other requirements of KRS Chapter
350, in a surface coal mining and reclamation operation, which could reasonably
be expected to cause substantial physical harm to persons outside the permit
area before the condition, practice, or violation can be abated. A reasonable
expectation of death or serious injury before abatement exists if a rational
person, subjected to the same condition or practice giving rise to the peril,
would avoid exposure to the danger during the time necessary for
abatement.
(12) "KAR" means
Kentucky administrative regulations.
(13) "Monitoring" means the collection of
environmental data by either continuous or periodic sampling methods.
(14) "Notice of noncompliance and order for
remedial measures" means a written document and order prepared by an authorized
representative of the cabinet that establishes with specificity the violations
of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit conditions that
the authorized representative of the cabinet determines to have occurred based
upon an inspection, and the necessary remedial actions, if any, and the time
schedule for completion thereof, necessary and appropriate to correct the
violations.
(15) "Operations" is
defined by
KRS
350.010.
(16) "Operator" is defined by
KRS
350.010.
(17) "
Order for cessation and immediate
compliance" means a written document and order issued by an authorized
representative of the cabinet when:
(a) A
person to whom a notice of noncompliance and order for remedial measures was
issued has failed, as determined by a cabinet inspection, to comply with the
terms of the notice of noncompliance and order for remedial measures within the
time limits set therein, or as subsequently extended; or
(b) The authorized representative finds, on
the basis of a cabinet inspection, any condition or practice or any violation
of KRS Chapter 350, 405 KAR Chapters 7 through 24, or any condition of a
permit
or exploration approval that:
1. Creates an
imminent danger to the health or safety of the public; or
2. Is causing or can reasonably be expected
to cause significant, imminent environmental harm to land, air, or water
resources.
(18) "
Performance bond" means a surety bond,
a collateral bond, or a combination thereof, or bonds filed pursuant to the
provisions of the Kentucky Bond Pool Program (405 KAR
10:200,
KRS
350.595, and
KRS 350.700 through
350.755), by which a
permittee assures faithful performance of all the requirements of KRS Chapter
350, 405 KAR Chapters 7 through 24, and the requirements of the
permit and
reclamation plan.
(19) "Permit"
means written approval issued by the cabinet to conduct surface coal mining and
reclamation operations.
(20)
"Permit area" means the area of land, indicated on the approved map submitted
by the permittee with an application, required to be covered by the permittee's
performance bond pursuant to 405 KAR Chapter 10 and that includes the area of
land upon which the permittee proposes to conduct surface coal mining and
reclamation operations pursuant to the permit, including all disturbed areas.
Areas adequately bonded under another valid permit, pursuant to 405 KAR Chapter
10, could be excluded from the permit area.
(21) "Permittee" means an operator or a
person holding or required by KRS Chapter 350 or 405 KAR Chapters 7 through 24
to hold a permit to conduct surface coal mining and reclamation operations
during the permit term and until all reclamation obligations imposed by KRS
Chapter 350 and 405 KAR Chapters 7 through 24 are satisfied.
(22) "Person" is defined by
KRS
350.010.
(23) "Person having an interest which is or
may be adversely affected" or "
person with a valid legal interest" includes any
person:
(a) Who uses any resource of economic,
recreational, aesthetic, or environmental value that could be adversely
affected by coal exploration or surface coal mining and reclamation operations,
or by any related action of the cabinet; or
(b) Whose property is or could be adversely
affected by coal exploration or surface coal mining and reclamation operations,
or by any related action of the cabinet.
(24) "Reclamation" is defined by
KRS
350.010.
(25) "Secretary" is defined by
KRS
350.010.
(26) "
Significant, imminent environmental
harm" means an adverse impact on land, air, or water resources which resources
include plant and animal life.
(a) An
environmental harm is imminent, if a condition, practice, or violation exists
that:
1. Is causing environmental harm;
or
2. Could reasonably be expected
to cause environmental harm at any time before the end of the reasonable
abatement time that would be set by the cabinet's authorized agents pursuant to
the provisions of KRS Chapter 350.
(b) An environmental harm is significant if
that harm is appreciable and not immediately reparable.
(27) "Surface coal mining and reclamation
operations" is defined by
KRS
350.010.
(28) "Surface coal mining operations" is
defined by
KRS
350.010.
(29) "
Unwarranted failure to comply" means
the failure of the
permittee due to indifference, lack of diligence, or lack of
reasonable care:
(a) To prevent the
occurrence of any violation of any applicable requirement of KRS Chapter 350,
405 KAR Chapters 7 through 24, or permit conditions; or
(b) To abate any violation of any applicable
requirement of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit
conditions.
(30)
"Willfully" and "willful violation" mean that a person acted either
intentionally, voluntarily, or consciously, and with intentional disregard or
plain indifference to legal requirements, in authorizing, ordering, or carrying
out an act or omission that constituted a violation of SMCRA, KRS Chapter 350,
405 KAR Chapters 7 through 24, or a permit condition, or that constituted a
failure or refusal to comply with an order issued pursuant to SMCRA, KRS
Chapter 350, or 405 KAR Chapters 7 through 24.