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
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.
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:
1.
Stabilizing disturbed areas through land shaping;
2. Diverting run-off;
3. Achieving quickly germinating and growing
stands of temporary vegetation;
4.
Regulating channel velocity of water;
5. Lining drainage channels with rock or
vegetation;
6. Mulching;
7. Selectively placing and sealing
acid-forming and toxic-forming materials;
8. Selectively placing waste materials in
backfill areas; and
9. 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;
(c) Minimize erosion to the extent
possible.
(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;
(c) Retaining sediment within disturbed
areas;
(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
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 hydro-logic 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
(c) Will 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
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 runoff 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;
1. 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;
2. 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;
3. 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;
(c) Provide water supply
equivalent to premining quantity and quality;
(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:
1.
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;
2. 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
3. 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;
(c) Sludge
from an acid mine drainage treatment 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)
1.
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.
2. 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.