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
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.
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.
(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 shall not be adversely affected.
(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.
(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 shall 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. Designing mines to prevent or control
gravity drainage of acid waters;
9.
Sealing;
10. Controlling
subsidence;
11. Preventing acid
mine drainage; and
12. 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 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.
(c) Sediment control methods shall include:
1. 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);
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;
3.
Retaining sediment within disturbed areas;
4. Diverting run-off away from disturbed
areas;
5. Diverting run-off using
protected channels or pipes through disturbed areas so as not to cause
additional erosion;
6. 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;
7. Treating with
chemicals;
8. Treating mine
drainage in underground sumps; 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, 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 runoff, 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;
(c) Fly ash from a
coal-fired facility;
(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;
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, 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 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;
(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 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;
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 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.
(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 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.