405 KAR 8:030 - Surface coal mining permits
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
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.
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
(c) Mining and reclamation plan
information.
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:
1. Applicant;
2. Applicant's resident agent; and
3. Person who will pay the abandoned mine
land reclamation fee;
(c) For each person who owns or controls the
applicant:
1. The person's name, address,
Social Security number, and employer identification number;
2. The person's ownership or control
relationship to the applicant, including percentage of ownership and location
in organizational structure;
3. 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;
4. 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
5. 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:
1. 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
2. Ownership or
control relationship to the applicant, including percentage of ownership and
location in organizational structure;
(e) The names and addresses of:
1. Every legal or equitable owner of record
of the property to be mined;
2. The
holders of record of any leasehold interest in the property to be mined;
and
3. 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:
1. 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
2. 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:
1. Identification number and date of issuance
of the permit, and date and amount of bond or similar security;
2. Identification of the authority that
suspended or revoked the permit or forfeited the bond and the stated reasons
for that action;
3. The current
status of the permit, bond, or similar security involved;
4. The date, location, and type of any
administrative or judicial proceedings initiated concerning the suspension,
revocation, or forfeiture; and
5.
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:
1. 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;
2. A brief description of the particular
violation alleged in the notice;
3.
The final resolution of each violation notice, if any; and
4. 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(2).
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:
1. Needed in
preparing the cumulative impact assessment; and
2. 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.
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.
1. 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.
2. 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.
3. 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.
4. 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)
1. 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
2. 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:
1. The structural geology and lithology of
overburden strata and the stratum immediately below the lowest coal seam to be
mined;
2. The thickness and
chemical characteristics of each overburden stratum and the stratum immediately
below the lowest coal seam to be mined; and
3. 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 hydro-logic 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
(c) Seasonal temperature ranges.
(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;
(c) National Lists of Plant Species that
Occur in Wetlands and Biological Reports and Summary; and
(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:
1. Propose extension into a
wetland;
2. Propose significant
disturbance in a new watershed in which the permit area or adjacent area
includes an important stream;
3.
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;
4.
Propose extension of the permit boundary that involves a new surface
disturbance of five (5) acres or more; or
5. 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:
1. 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
2.
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;
(c) Extent of
coal or other minerals removed;
(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 hydro-logic 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.
1. 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.
2. 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.
3. 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) :
1. Dams,
embankments, and other impoundments;
2. Overburden and topsoil handling and
storage areas and structures;
3.
Coal removal, handling, storage, cleaning, and transportation areas and
structures;
4. Spoil, coal
processing waste, and noncoal waste removal, handling, storage, transportation,
and disposal areas and structures;
5. Mine facilities; and
6. 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:
1. Buildings, utility corridors, and
facilities to be used;
2. The area
of land to be affected within the proposed permit area, according to the
sequence of mining and reclamation;
3. Each area of land for which a performance
bond or other equivalent guarantee will be posted under 405 KAR Chapter
10;
4. Each coal storage, cleaning,
and loading area;
5. Each topsoil,
spoil, coal waste, and noncoal waste storage area;
6. Each water diversion, collection,
conveyance, treatment, storage, and discharge facility to be used;
7. Each air pollution collection and control
facility;
8. Each source of waste
and each waste disposal facility relating to coal processing or pollution
control;
9. Each facility to be
used to protect and enhance fish and wildlife and related environmental
values;
10. Each explosive storage
and handling facility; and
11.
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 revegeta-tion;
(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
405 KAR
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;
(c) Approximate dates on which construction
of the existing structure was begun and completed; and
(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
(c) The
methods to be applied in controlling the adverse effects of blasting
operations.
(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:
1. Meet applicable water quality statutes,
administrative regulations, standards, and effluent limitations as required by
405 KAR
16:060, Section 1(3);
2. Avoid acid or toxic drainage as required
by
405 KAR
16:060, Sections 4, 5, and 6;
3. Control the discharge of sediment to
streams located outside the permit area as required by
405 KAR
16:060, Section 2;
4. 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;
5.
Restore the approximate premining recharge capacity of the permit area as
required by
405 KAR
16:060, Section 5; and
6. 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.
(c) For surface water systems, the
determination shall, at a minimum, include probable impacts on:
1. Peak discharge rates, emphasizing the
potential for flooding;
2.
Settleable solids at peak discharge;
3. Low-flow discharge rates, emphasizing the
potential for water supply diminution;
4. Suspended solids at low flow;
and
5. 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:
1. 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
2. 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:
1. Identify the quantity and quality
parameters to be monitored, sampling frequency, and monitoring site locations;
and
2. 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
405 KAR
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:
1. Propose extension into a
wetland;
2. Propose significant
disturbance in a new watershed in which the permit area or adjacent area
includes an important stream;
3.
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;
4.
Propose extension of the permit boundary that involves a new surface
disturbance of five (5) acres or more; or
5. 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.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.