HomeMy WebLinkAboutApplication form - Kentucky
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Application for Surface Disturbance Mini
Non-Coal Mining ~
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1. Company Name
2. Permanent Address
Telephone (
3. If the company has undergone a name change or changes during the past five (5) years, list name(s).
4. Applicant's legal structure ...L. individual ..L partnership ~ corporation -..L other
5. If an individual or partnershp, and business is performed under an assumed name, specify county and state where name is
registered.
county
6. If a corporation, indicate state of incorporation
Is corporation with Kentucky Secretary of State? ...L. yes ..Lno
state
Give name of registered agent for service of process.
Name
Telephone (
Address
7. If an individual or partnership, list owners. If a corporation, list all officers and stockholders owning 10 percent or more stock.
Name
Social Security #
Address
Name
Social Security #
Address
Name
Social Security #
Address
8. Previous Kentucky Permits
If other permits are now held or have been held by you or any other person, partnership, or corporation associated with you,
list below:
Pennit #
Company Name
9. Do you hold a valid license from the Division of Field Services ...L. yes ..L no
If yes, list the following: effective date:
expiration date:
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Application Number
10. TYPE OF APPLICATION IT] ORIGINAL PERMIT rn AMENDMENT TO rn REVISION TO 0 REPERMIT OF
[!] SUCCESSION m RENEWAL OF PERMIT NUMBER
11. ENGINEER REGISTRATION NUMBER
ADDRESS
ASSOCIATED WITH
12. CORRESPONDENCE CONCERNING THIS APPLICATION SHOULD BE ADDRESSED TO IT] COMPANY m ENGINEER
13. LOCAL ADDRESS
14. CONTACT PERSON AT SITE TELEPHONE NUMBER l }
15. LOCATION OF PROPOSED OPERATION: LATITUDE LONGITUDE
NEAREST COMMUNITY
NEAREST NAMED STREAM
NEAREST PUBLIC ROAD INTERSECTION
USGS QUADRANGLE
16. DESIGNATE BELOW, BY COUNTIES, THE DISTURBANCES AND ACREAGES INVOLVED IN THE PROPOSED MINING OPERATION.
TYPE OF COUNTY
DISTURBANCE
MINING
ROADS
SILT STRUCTURES
STORAGE AREAS
WASTE AREAS
OTHER
'7O'7AL
17. MINERAL TO BE EXTRACTED: IT] CLAY II] LIMESTONE rn GRAVEL o SAND [II FLUORSPAR m STONE
[2] ROCK ASPHALT [II OTHER
18. MAJOR WATERSHED(S} AFFECTED: IT] BIG SANDY RIVER m CUMBERLAND RIVER (UPPER) rn CUMBERLAND RIVER {LOWER}
8J GREEN RIVER [II KENTUCKY RIVER m LICKING RIVER m LITRE SANDY RIVER [!] MISSISSIPPI RIVER
rn OHIO RIVER 1}2] SALT RIVER [ill TENNESSEE RIVER @] TRADEWATER RIVER @I TYGAR7S CREEK
19. IF AN ACTIVE DISCHARGE INTO THE WATERSHED FROM OTHER MINING OPERATIONS WILL AFFECT YOUR PROPOSED
OPERATION, GIVE pH OF DISCHARGE AND SOURCE
20. WILL UNDERGROUND WORKS BE ENCOUNTERED? IT] YES ITJ NO
21. INDICATE DISTANCE TO THE NEAREST ACTIVE DEEP MINE. FEET.
22. WHICH OF THE FOLLOWING SURFACE DISTURBANCE WILL BE INVOLVED? IT] CONTOUR MINE II] PROCESSING AREAS
rn IMPOUNDMEN7S m TRANSPORTATION AREAS [II ROADS m MINE MANAGEMENT AREAS
m SPOIL STORAGE AREAS rn QUARRY MINING
23. PERMIT FEE m CHECK OR II] MONEY ORDER NUMBER
24. BOND AMOUNT PER ACRE , TOTAL AMOUNT BOND TYPE?
IT] CASH m SURETY rn CERTIFICATE OF DEPOSIT 8J LETTER OF CREDIT
IF 2, GIVE BOND NUMBER AND SURETY
IF 3, GIVE BANK NAME AND CD NUMBER
IF 4, GIVE BANK NAME AND LETTER OF CREDIT NUMBER
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Application Number
25. EQUIPMENT INVENTORY
LIST BELOW THE EQUIPMENT TO BE USED TO REMOVE OVERBURDEN AND COMPLETE THE RECLAMATION OF THE AREA OF LAND AFFECTED.
EQUIPMENT MODEL CONDITION
26. SPOIL HANDLING PLAN
DESCRIBE BELOW THE HANDLING OF ALL SPOIL INCLUDING ALL CALCULATIONS OF THE GENERATION AND DISPOSAL OF SPOIL.
27. TOXIC MATERIALS
IF TOXIC ARE TO BE ENCOUNTERED, DESCRIBE HOW THEY WILL BE HANDLED.
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Application Number
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28. BACKFILLING AND GRADING PLAN
DESCRIBE THE PLAN FOR GRADING AND BACKFILLING THE AREA OF LAND AFFECTED.
29. REVEGETATION PLAN
1. SPECIFY MATERIAL THAT WILL BE REDISTRIBUTED ON THE REGRADED AREA AS A TOPSOIL MEDIUM.
2. DETAIL RESULTS OF CHEMICAL AND PHYSICAL ANALYSIS OF THE TOPSOIL MATERIAL.
pH _ NITROGEN _ POTASSIUM _ ORGANIC MATERIAL _ PHOSPHOROUS _ TEXTURE CLASS -
3. SPECIFY THE MINIMUM APPLICATION FEE RATE, IN TONS/ACRE OF AGRICULTURAL LIMESTONE.
4. ANALYSIS AND MINIMUM APPLICATION RATE OF FERTILIZERS REQUIRED:
N, P, K,@ LBS/ACRE; N, P, K,@ LBS/ACRE;
N, P, K,@ LBS/ACRE; N, P, K,@ LBS/ACRE
5. SEEDING DATE(S)
GRASSES, SPECIFY SPECIES: @ LBS/ACRE; @ LBS/ACRE;
@ LBS/ACRE; @ LBS/ACRE
LEGUMES, SPECIFY SPECIES: @ LBS/ACRE: @ LBS/ACRE;
@ LBS/ACRE; @ LBS/ACRE
6. TREE PLANTING DATE(S) NUMBER OF ACRES
TREES, SPECIFY SPECIES: @ NO/ACRE; @ NO/ACRE
@ NO/ACRE; @ NO/ACRE
7. AREA TO RECEIVE MULCH (ACRES) INDICATE MULCHING RATE PER ACRE
OJ STRAW OR HAY, TONS IT! WOOD FIBER, LBS m WOOD BARK, Cu. YDS.
rn OTHER
AREA TO RECEIVE SMALL GRAIN IN UEU OF MULCH (AREAS)
30. SURFACE OWNERS OF THE AREA PROPOSED FOR DISTURBANCE UNDER THIS APPLICATION.
31. MINERAL OWNERS OF THE AREA PROPOSED FOR DISTURBANCE UNDER THIS APPLICATION.
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Application Number
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32. SURFACE OWNERS WITHIN 500 I OF THE BORDERS OF PROPOSED DISTURBANCE
33. PROTECTION OF THE HYDROLOGIC SYSTEM
(i) INDICATE THE NUMBER OF SEDIMENT PONDS PROPOSED AND
COMPLETE THE FOllOWING TABLE:
STRUCTURE DRAINAGE AREA SEDIMENT STORAGE STORAGE CAPACITY AT STORAGE CAPACITY AT SmUCTURE HBGHT AT
MJMBER TOTAL DISTURBED CAPACITY PRINCIPAL SPILLWAY EMERGENCY SPILLWAY EMERGENCY SPILLWAY
(ii) IF SEDIMENT REMOVAL BECOMES NECESSARY, DESCRIBE HOW THE SEDIMENT Will BE REMOVED AND THE
DISPOSAL METHOD.
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Application Number
34. LAND USE PLAN
.
m PREMINING LAND USE: IT] FOREST LAND [II HAYLAND OR PASTURE [!] CROPLAND 0 FISH & WILDLIFE HABI7AT
m RECREATION m IMPOUNDMENT m RESIDENTIAL [!] HEAW INDUSmlAL m LIGHT INDUSmlAL
[!Q] COMMERCIAL [ill PUBLIC SERVICES @I RANGELAND
(ii) PROPOSED POST MINING LAND USE: IT] FOREST LAND [II HAYLAND OR PASTURE [!] CROPLAND
o FISH & WILDLIFE HABI7AT m RECREATION m IMPOUNDMENT [2] RESIDENTIAL [!] HEAW INDUSmlAL
m LIGHT INDUSmlAL ~ COMMERCIAL [ill PUBLIC SERVICES @I RANGELAND
35. THE ATTACHMENTS CHECKED BELOW ARE ENCLOSED AND MADE PART OF THIS APPLICATION:
[II SEDIMENT CONmOL SmUCTURES [II HOLLOW FILL DESIGNS [!] ROAD PLANS 0 TRANSPOR7ATlON PLAN
m ENLARGED USGS MAP
THE APPLICANT, BEING FIRST DULY SWORN, STATES THAT TO THE BEST OF HIS KNOWLEDGE AND BELIEF THAT:
(1) THE SOURCE OF HIS LEGAL RIGHT TO MINE THE AREA DELINEATED IN THIS APPLICATION FOR THE MINERAL SPECIFIED
IN THIS APPLICATION IS BY
FROM
DATED
AND;
(2) NEITHER HE, NOR ANY OFFICER, PARTNER, DIRECTOR, OR ANY OTHER INDIVIDUAL, OWNING OF RECORD
OR BENEFICIALLY (ALONE OR WITH ASSOCIATES), IF KNOWN, TEN (1Q) PERCENT OR MORE OF ANY CLASS OF THE
OPERATORS STOCK, HAS HAD A PERMIT REVOKED OR A BOND FORFEITED BY REASON OF BEING IN NON-COMPLlANCE
WITH ANY APPLICABLE MINING LAWS; AND
(3) ALL STATEMENTS AND REPRESENTATIVES MADE IN THIS APPLICATION ARE TRUE AND CORRECT; AND
(4) (APPLICABLE ONLY TO CORPORATIONS) ON
THE BOARD OF DIRECTORS OF
ADOPTED A RESOLUTION GRANTING SIGNATURE AUTHORITY WHICH WOULD EXTEND TO EXECUTING ALL
DOCUMENTS REQUIRED UNDER THIS APPLICATION TO THE BELOW NAMED APPLICANT.
APPLICANT'S NAME
TITLE
APPLICANT'S SIGNATURE
DATE
SUBSCRIBED AND SWORN TO BEFORE ME BY
THIS THE
DAY OF
19
NOTARY PUBLIC
MY COMMISSION EXPIRES
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NA TURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
REGULATIONS FOR
NONCOAL MINERAL
OPERATIO'NS
February 22, 1995
Informational copy, Printed with State Funds
KENTUCKY DEPARTMENT FOR SURFACE
MINING RECLAMA TlON AND ENFORCEMENT
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TABLE OF CONTENTS
405 KAR 5:001
405 KAR 5:015
405 KAR 5:021
405 KAR 5:030
405 KAR 5:035
405 KAR 5:038
405 KAR 5:040
405 KAR 5:045
405 KAR 5:050
405 KAR 5:055
405 KAR 5:060
405 KAR 5:065
405 KAR 5:070
405 KAR 5:075
405 KAR 5:080
405 KAR 5:085
405 KAR 5:095
DEFINITIONS FOR 405 KAR CHAPTER 5
GENERAL PROVISIONS
PERMIT FEES
PERMIT REQUIREMENTS
SIGNS AND MARKERS
BLASTING
ACCESS ROADS AND HAUL ROADS
PROTECTION OF ENVIRONMENTAL RESOURCES
PROTECTION OF OF SURFACE WATER QUANTITY AND QUALITY
PERMANENT AND TEMPORARY IMPOUNDMENTS
HANDLING OF MATERIALS
PREMINING AND POSTMINING LAND USE
REVEGETATION
CONTEMPORANEOUS RECLAMATION
RECLAMATION BOND
ENFORCEMENT
ADMINISTRATIVE HEARINGS, INFORMAL SETTlEMENT CONFERENCES, AND
GENERAL PRACTICE PROVISIONS
REPEAL OF 405 KAR 5:010 & 5:020
405 KAR 5:096
The Natural Resources and Environmental Protection Cabinet does not discriminate on the basis of race, color,
national origin, sex, age, religion, or disability and provides, on request, reasonable accommodations including
auxiliary aids and services necessary to afford an indMdual with a disabirrty an equal opportunity to participate
in aD services, programs, and activities.
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405 KAR 5:001.
Section 1.
405 KAR 5:015.
Section 1.
Section 2.
Section 3.
Section 4.
405 KAR 5:021.
Section 1.
Section 2.
405 KAR 5:030.
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Section 24.
Section 25.
Section 26.
Section 27.
Section 28.
Section 29.
Section 30.
Section 31.
Section 32.
405 KAR 5:035.
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
405 KAR 5:038.
Section 1.
Section 2.
405 KAR 5:040.
Section 1.
Section 2.
405 KAR 5:045.
Section 1.
EXPANDED TABLE OF CONTENTS
Definitions for 405 KAR Chapter 5.
Definitions.
General provisions.
Applicability .
Conflicting provisions.
Severability.
General obligations of persons engaged in mineral operations.
Permit fees.
Permit fees.
Method of payment.
Permit requirements.
General.
Identification of interests.
Bond information.
Equipment inventory.
Waivers and approvals.
Right to mine.
Verification of application.
Map requirements.
General site information.
Cultural resource information.
Environmental resources information.
Surface water quantity and quality protection plan.
Permanent and.temporary impoundments.
Spoil handling plan.
Toxic materials handling plan.
Backfilling and grading plan.
Topsoil handling and restoration plan. .
land use plan.
Revegetation plan.
Designs and attachments.
Newspaper advertisement: Publication of Notice of Intention to Mine.
Permit revisions.
Permit amendments.
Permit renewals.
Permit succession.
Review of permits.
Criteria for permit approval and denial.
Permit conditions; permit term.
Denial of a permit for past violations.
Permit conference and public comment.
Existing mineral operations.
Documents incorporated by reference.
Signs and markers.
General.
Mine and permit identification signs.
Stream buffer zone markers.
Blasting signs.
Topsoil markers.
Blasting.
General.
Blasting signs.
Access roads and haul roads.
General.
Specifications for access and haul roads.
Protection of environmental resources.
Environmental resources.
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405 KAR 5:050.
Section 1.
Section 2.
Section 3.
405 KAR 5:055.
Section 1.
Section 2.
405 KAR 5:060.
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
405 KAR 5:065.
Section 1.
Section 2.
405 KAR 5:070.
Section 1.
Section 2.
Section 3.
Section 4.
405 KAR 5:075.
Section 1.
405 KAR 5:080.
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
405 KAR 5:085.
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
405 KAR 5:095.
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Section 1.
Section 2.
Section 3.
Section 4.
405 KAR 5:096.
Section 1.
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Protection of surface water quantity and quality.
General.
Pond design specifications.
Sediment removal.
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Permanent and temporary Impoundments.
Requirements for permanent and temporary impoundments.
Additional requirements for permanent impoundments.
Handling of materials.
Backfilling and grading.
Waste materials.
Acid-forming or toxic-forming materials.
Topsoil handling.
Disposal of excess spoil.
Additional performance standards for mineral operations on slopes of more than twenty (20)
degrees.
Premlnlng and postmlnlng land use.
General.
Land use selection.
Revegetation.
General.
Soil stabilization and amendments.
Revegetation success.
Inspection and reporting procedures.
Contemporaneous reclamation.
Contemporaneous reclamation.
Reclamation bond.
Applicability .
Bond amount.
Type of paxment.
Bond forfeiture.
Bonding forms.
Enforcement.
General.
Inspections.
Notice of noncompliance and order for remedial measures.
Order for cessation and immediate compliance.
Notice of inspection of noncompliance.
Service of notices and orders.
Penalties.
Administrative hearings, Informal settlement conferences, and general practice
provisions.
Conduct of administrative hearings.
Service.
Temporary Relief.
Orders to Abate and Alleviate.
Repeal of 405 KAR 5:010 and 405 KAR 5:020.
Repeal.
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NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:001. Definitions for 405 KAR Chapter 5.
RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350.240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation provides for the defining of certain
essential terms used in KAR Trtle 405, Chapter 5.
Section 1. Definitions.
(1) "Access Road" means a road designed and
constructed to gain access from a public road to the
mineral operation.
(2) "Acid drainage" means water with a pH of less
than 6.0 and in which total acidity exceeds total alkalinity,
discharge from an active, inactive or abandoned mine or
from an area affected by a mineral operation.
(3) "Acid-forming materials" means earth materials or
rock tllat contain sulfide minerals or other minerals which,
if exposed to air, water or weathering processes, form
acids that may create acid drainage.
(4) "Affected area" means any land area which is
used to facilitate, or is physically altered by strip mining;
surface disturbance from an underground mine; surface
disturbance from dredging operations; any area covered by
dams, ventilation shafts, entryways, refuse banks, dumps,
stockpiles, overburden piles, holes or depressions, repair
areas, roads, storage areas, shipping areas and processing
plants.
(5) "Backfill" means excavated overburden material
used to regrade a mined area.
(6) "Cabinet" is defined in KRS 350.010.
(7) "Check dam" means a small structure placed in
ditches, usually constructed of rock, intended to reduce
runoff velocity for deterring erosion.
(8) "Clay" means a natural substance or soft rock
which, when finely ground and mixed with water, forms a
pasty, moldable mass that preserves its shape when air
dried; the particles soften and coalesce upon being highly
heated and form a stony mass upon cooling_
(9) "Compaction" means the reduction of pore spaces
among the particles of soil or rock generally as a result of
running heavy equipment over the materials.
(10) "Cropland" means land used for the production of
adapted crops for harvest alone or in rotation with grasses
or legumes, and includes: row crops, small grain crops,
hay crops, nursery crops, orchard crops and other similar
specialty crops. land used for facilities in support of
cropland farming operations which is adjacent to, or an
integral part of, these operations is also included for
purposes of this land use category.
(11) "Department" means the Kentucky Department for
Surface Mining Reclamation and Enforcement.
(12) "Disturbed area" means an area where vegetation,
topsoil, or overburden is removed or upon which topsoil,
spoil, mineral processing waste, underground development
waste or similar waste is placed by mining activities. The
disturbed area also includes those areas in which diversion
ditches, sedimentation ponds, roads, or other features
related to a mineral operation, are instaDed. Those areas
are classified as "disturbed" until reclamation is complete,
bond monies or permit have been released and processing
plant and stockpile areas have been moved.
(13) "Diversion ditch" means a channel constructed to
direct water from one location to another.
(14) "Division" means the Division of Field Services of
the Kentucky Department for Surface Mining Reclamation
and Enforcement.
(15) "Dolomite" means a sedimentary rock composed
primarily of the crystalline carbonate mineral dolomite,
CaMg(C03)2. Many limestones contain small amounts of
Dolomite; however, the term Dolomite is reserved for rocks
which contain 15% or more Magnesium Carbonate.
(16) "Dredging operation" means surface disturbance
of dredging river or creek sand and gravel.
. (17) "Edge effect" means the phenomena by which
wildlife is enhanced and wildlife diversity is typically
increased as a result of two or more different habitat types
occurring in close proximity to each other. Where two
habitats meet is referred to as an "edge".
(18) "Embankment" means an artificial deposit of
material that is raised above the. natural surface of land
and used to contain, divert, or store water, support roads
or railways, or other similar purposes.
(19) "Ephemeral stream" means a stream which only
flows in direct response to precipitation in the immediate
watershed, or in response to the melting of a cover of snow
and ice, and which has a channel bottom that is always
above the local water table
(20) "Erosion" means the detachment and movement
of soil or rock fragments by water, wind, ice, or gravity.
(21) "FISh and wildlife land use" means an area which
is characterized by an intermixed combination of habitat
types including: woodlots or forested areas, shrub-scrub
areas, grass-legume or open areas, and wetland or open
water areas arranged in a manner as to promote edge
effect for wildlife.
(22) "Roodplain" means the area along, adjacent to
and including, a stream which is inundated by a 100 year
frequency flood.
(23) "Ruorspar" means an ore of the mineral Ruorite
CaF2. This occurs in veins and as bedding replacements
found in Westem Kentucky, as part of a mining district
referred to as the Cave-In-Rock District and in Central
Kentucky, as the Central Kentucky Vein and Fault System.
Its origin is the result of hydrothermal activity.
(24) "Forest land" means lands dominated by canopy
forming trees, or from a postmining land use standpoint,
areas planted throughout with trees.
(25) "General permit" means any KPDES permit
authorizing a category of discharges under KRS 224 within
a geographical area, issued under 401 KAR 5:055.
(26) "Gravel" means a sedimentary rock type that
implies a loosely, compacted, coarse sediment that is
generally larger than 4mm, but smaller than boulders; a
naturally occurring aggregate.
(27) "Ground cover" means the area of ground covered
by the combined aerial parts of live vegetation and the litter
produced and distributed naturally and seasonally on site,
expressed as a percentage of the total area of
measurement.
(28) "Ground water" means water which is in the zone
of saturation or any subterranean waters flowing in well
defined channels and having a demonstrable hydrologic
connection with the surface. It is differentiated from water
held in the soil, from water in downward motion under the
force of gravity in the unsaturated zone, and from water
405 KAR 5:001 - 1
Effective Date: February 22, 1995
held in chemical or electrostatic bondage.
(29) RGrowing seasonR means the period during a one
(1) year cycle, from the last killing frost in spring to the first
killing frost in fall, in which climatic conditions are favorable
for plant growth. In Kentucky, this period normally extends
from mid-April to mid-October.
(30) "HighwallR means the face of exposed overburden
and mineral to be mined, in an open cut of a strip mine or
for entry to an underground mine.
(31) "Hollowfill" means a fill structure placed in a
hollow where the side slopes of the existing hollow,
measured at the steepest point, are greater than twenty
(20) degrees or the average slope of the profile of the
hollow, from the toe of the fill to the top of the fill, is greater
than ten (10) degrees.
(32) "Imminent danger to. the health and safety of the
publicR means the existence of any condition, or practice,
or any violation of a permit or other requirement of
applicable state laws and administrative regulations in a
mineral operation; which condition, practice, or violation
could reasonably be expected to cause substantial,
physical harm to persons outside the permit area before
the condition, practice, or violation can be abated. A
reasonable expectation of death or serious injury before.
abatement exists if a rational person, subjected to the
same condition or practice giving rise to the peril, would
not -expose himself to the danger during the time necessary
for the abatement.
(33) "Impoundment" means a closed basin formed
naturally or artificially built, which is dammed or excavated
for the retention of water, sediment, or waste.
(34) "Industrial/commercial land use" means lands
used for:
(a) The extraction or transformation of materials, for
fabrication of products, wholesaling of products or for long
term storage.. of products; and heavy and light
manufacturing facilities. Land used for facilities in support
of these operations, which is adjacent to, or an integral part
of, that operation is also included; or
(b) The retail or trade of goods or services, including:
hotels, motels, stores, restaurants, and other commercial
establishments. land used for facilities in support of these
operations, which is adjacent to, or an integral part of, that
operation is also included.
(35) "Intermittent stream" means: .
(a) A stream, or reach of stream, that drains a
watershed of one (1) square mile or more but does not flow
continuously throughout the calendar year; or
(b) A stream, or reach of stream, that is below the
local water table for at least some part of the year, and
obtains its flow from both surface water and ground water
discharge. This term does not include ephemeral streams.
(36) "land useR means the specific functions, uses, or
management related activities of the proposed permit area,
including both premining use and postmining use.
(37) "Umestone" means a crystalline sedimentary rock
that is primarily composed of the mineral Calcite CaCCh.
However, it may be considered as any sedimentary rock
composed essentially of carbonates, chiefly Calcite or
Dolomite, but may contain small amounts of
iron-carbonates (Siderite).
(38) RMastR means nuts, acorns, and fruit produced by
certain woody plant species.
(39) "Mineral operation" means noncoal mIning
activities including: mining of limestone and dolomite;
mining of sand and gravel, surface disturbance of dredging
of river or creek sand and gravel; mining of clay; mining of
fluorspar and other vein minerals. Mineral operations
include the surface disturbance of underground mining as
well as strip mining. This term includes mining activities
and all activities necessary and incident to the reclamation
of the mine or dredging operation as required by this Title.
This term does not include coal mining, tar sand mining c
oil shale mining.
(40) RMineral operator" means any person, partnership,
or corporation engaged in mineral operations.
(41) RMineral permitteeR means a mineral operator or
person holding a permit, or required under KRS Chapter
350 or KAR Title 405, Chapter 5, to hold a permit to
conduct mineral operations during the permit term and until
all reclamation obligations imposed by KRS 350 and 405
KAR, Chapter 5 are satisfied.
(42) RNatural drainways" means ephemeral areas,
gullies, ravines, streams, and similar topographical
features occurring naturally in an area which control the
direction of surface water flow.
(43) RNatural hazard lands" means geographic areas in
which natural conditions exist that pose or, as a result of
mineral operations, may pose a threat to the health, safety,
or welfare of people, property, or the environment,
including, but not limited to, areas subject to landslides,
cave-ins, subsidence, substantial erosion, unstable
geology, or frequent flooding.
(44) "Noxious plantsR means species that have been
included on state and federal lists of noxious plants.
(45) ROutslope" means the face of the spoil, natural
ground, or embankment sloping downward from the
highest elevation to the lowest elevation.
(46) ROutstanding resource waters" means surface
waters designated by the cabinet, pursuant to 401 KAR
5:031, Section 7.
(47) RPasturelandR means land used primarily for the
long term production of adapted, domesticated, forag.-
plants to be grazed by livestock or occasionally cut anc.
cured for livestock feed. land used for facilities in support
of pastureland which is adjacent to, or an integral part of,
these operations is also included.
(48) RPerennial stream" means a stream, or stream
reach, that flows continuously during all of the calendar
year as a result of ground water discharge or surface runoff.
(49) RPermanent impoundmentR means an impounded
body of water, that is formed in the pit during mining or
retained by a constructed embankment or dugout, which
will be retained after mineral operations are complete and
which has been approved for retention by the cabinet and
other appropriate Kentucky and federal agencies.
(50) RPermitR means written approval issued by the
cabinet to conduct mineral operations.
(51) RPermit area" means the area of land and water
within boundaries designated in the approved permit
application, which shall include, at a minimum, all areas
which are or will be affected by mineral operations under
that permit.
(52) "pW means the index used to describe the
hydrogen ion activity of a system defined as the reciprocal
of the logarithm of the hydrogen ion concentration at base
10. The range of this index is 0 to 14, with 7 being neutral.
(53) RPlSR means pure live seed.
(54) RPoint sourceR is defined in 401 KAR 5:050.
(55) "Recreation land. useR means land used for public
or private leisure time use, including developed recreation
facilities such as, parks, camps, and amusement areas, as
well as areas for less intensive uses such as, hiking
canoeing, and other undeveloped recreational uses.
(56) RResidential land useR means tracts employed for
single and multifamily housing, mobile home parks, and
405 KAR 5:001 - 2
Effective Date: February 22, 1995
~
other residential lodgings. Also included, is land used for
support facilities such as, vehicle parking, open space, and
other facilities which directly relate to the residential use of
the land.
(57) "Roads" means haul roads and access roads
constructed, used, reconstructed, improved or maintained
for use in mining and stockpiling finished products, within
permit boundaries. The term excludes any roadways
located in the mining pit area.
(58) "Runoff" means precipitation that flows overland
before entering a defined stream channel and becoming
stream flow.
(59) "Safety factor" means the ratio of the available
shear strength to the developed shear stress, or the ratio
of the sum of the resisting forces to the sum of the loading
or driving forces, as determined by engineering practices.
(60) "Sand" means a sedimentary rock type that
implies a loosely, compacted, fine sediment that is
generally composed of particles that range in size from
1/16mm to 2mm. Most sands are predominantly
composed of quartz grains or fragments of siliceous rocks.
(61) "Sediment" means undissolved organic and
inorganic material transported or deposited by water.
(62) "Sedimentation pond" means any natural or
artificial structure or depression used to remove sediment
from water and store sediment or other debris.
(63) "Significant, imminent environmental harm to land,
air, or water resources" means a situation which is
determined as follows:
(a) An environmental harm is an adverse impact on
land, air, or water resources, including, but not limited to,
plant and animal life.
(b) An environmental harm is imminent if a condition,
practice, or violation exists which:
1. Is causing the harm; or
2. May be reasonably expected to cause the harm at
any time before the end of the reasonable abatement time.
(c) An environmental harm is significant, if that harm
is appreciable, and not immediately reparable.
(64) "Slope" means average inclination of a surface,
measured from the horizontal, generally expressed as the
ratio of a unit of vertical distance to a given number of units
of horizontal distance. It may also be expressed as a
percent or in degrees.
(65) "Soil horizons" means contrasting layers of soil
parallel, or nearly parallel to, the land surface. Soil
horizons are differentiated on the basis of field
characteristics and laboratory data. The four (4) master
soil horizons are:
(a) "A horizon". The uppermost mineral layer, often
called the surface soil. It is the part of the soil in which
organic matter is then most abundant, and leaching of
soluble or suspended particles is typically the greatest.
(b) "E horizon". The layer commonly near the surface
below the A horizon and above the 8 horizon. The E
horizon is most commonly differentiated from the overlying
A horizon by a lighter color' and generally measurably less
organic matter. The E horizon is most commonly
differentiated from the 8 horizon in the same sequence by
color of higher value or lower chroma, by coarser texture or
by a combination of these properties.
(c) "8 horizon". The layer that is immediately below
the E horizon and often called the subsoil. This middle
layer commonly contains more clay, iron, or aluminum than
the A, E, or C horizons.
(d) "C horizon". The deepest layer of soil profile. It
consists of loose material or weathered rock that is
relatively unaffected by biological activity.
(66) "Spoil" means overburden which has been
removed during mineral operations.
(67) "Stabilize" means any method used to prevent
movement of soil, spoil piles, or areas of disturbed earth,
and includes increasing bearing capacity, increasing shear
strength, draining, compacting, riprapping, or by vegetation.
(68) "Stream buffer zone" means an area of forest or
field left untouched and undisturbed by the mineral
operator during mining, including haul road construction.
(69) "Strip mining" is defined in KRS 350.010.
(70) "Surface disturbance of dredging river or creek
sand and graver means the surface and land disturbed on
the banks of a creek or river for haul roads, storage areas,
processing areas, maintenance and repair areas, or any
other disturbance to the banks and land created by the
dredging of sand and gravel out of rivers or creeks.
(71) "Surface disturbance of underground mining"
means above ground activities incidental to subsurface
mineral extraction or in situ processing, including
construction, use, maintenance, and reclamation of roads;
above-ground repair areas, storage areas, processing
areas, and shipping areas; areas upon which are sited
support facilities including, hoist and ventilating ducts,
areas used for the disposal and storage of waste, and
areas on which materials incidental to underground mining
activities are placed. . .
(72) "Surface waters" means those waters having well
defined banks and beds, either constantly or intermittently
flowing; lakes and impounded waters; and marshes and
wetlands. Effluent ditches and lagoons used for waste
treatment which are situated on property owned, leased, or
under valid easement by a permitted discharger, are not
considered to be surface waters of the Commonwealth.
(73) "Suspended solids" means organic or inorganic
materials carried or held in suspension in water that will
remain on a.45 micron filter.
(74) "Temporary mineral operation" means a mineral
operation that operates for a total of six (6) months or less
at a location.
(75) "Topsoil" means the A and E horizon layers of the
four (4) master soil horizons.
(76) "Toxic-forming materials" means earth materials
or wastes which, if acted upon by air, water, weathering, or
microbiological processes, are likely to produce chemical or
physical conditions in soils or water that are detrimental to
biota or uses of water.
(77) "Waste" means materials which are washed,
(otherwise separated or left from a mineral product)
slurried or otherwise transported from the processing
facilities or preparation plants of any kind.
(78) "Water table" means the upper surface of a zone
of saturation, where the body of ground water is not
confined by an overlying impermeable zone.
(79) "Water withdrawal permit" means the written
approval issued by the cabinet involving the actual removal
or taking of water from any stream, water course, or other
body of public water pursuant to KRS 151.140.
(80) "Wetland" means land that has a predominance of
hydric soils and that is inundated or saturated by surface or
ground water at a frequency and duration sufficient to
support, and that under normal circumstances does
support, a prevalence of hydrophytic vegetation typically
adapted for life in saturated soil conditions.
(a) "Hydric soil" means soil that, in its undrained
condition, is saturated, flooded, or ponded long enough
during the growing season to develop an anaerobic
condition (without oxygen) that supports the growth and
regeneration of hydrophytic vegetation.
405 KAR 5:001 - 3
Effective Date: February 22, 1995
(b) "Hydrophytio vegetation" means a plant growing in:
1 . Water; or
2. A substance that is at least periodically deficient in
oxygen during a growing season as a result of excessive
water content.
(81) "Wild river" means a water which has been
designated as a wild river by the General Assembly
pursuant to KRS 146.
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405 KAR 5:001 - 4
Effective Date: February 22, 1995
~
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:015. General provisions.
RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028,350.029,350240,350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth general provisions
which apply to this chapter with regard to applicability,
conflicting provisions, severability, obligations of mineral
permittees, and the need for a preliminary walk.
Section 1. Applicability.
(1) This administrative regulation designates 405 KAR
Chapter 5 as applicable to mineral operations and any
lands used, disturbed or redlsturbed, in connection with, or
to facilitate those mineral operations, or any other activity
related to mineral operation development conducted on or
after the effective date of these administrative regulations.
(2) Mineral operations subject to 405 KAR Chapter 5,
include: mining of limestone and dolomite; mining of sand
and gravel, surface disturbance of dredging of river or
creek sand and gravel; mining of clay; mining of fluorspar
and other vein minerals. Mineral operations include the
surface disturbance of underground mining as well as strip
mining.
(3) Except for the provision of Section 4(2) of this
regulation, 405 KAR Chapter 5 does not apply to the
mining of coal.
SectIon 2. ConflictIng provIsIons. The provisions of
405 KAR Chapter 5 are to be construed as being
compatible and complimentary with each other. If
provisions within this chapter are found to be contradictory,
the more stringent provisions shall apply.
SectIon 3. Severability. If any provision or
administrative regulation of Chapter 5, Title 405, is found
to be invalid, the remaining provisions of this chapter shall
not be affected nor diminished thereby.
SectIon 4. General obligatIons of persons engaged
In minerai operatIons.
(1) No person shall engage in a mineral operation or
related activity without having obtained from the cabinet, a
permit for the mineral being mined, as required and
described under 405 KAR 5:030.
(2) No person shall remove and commercially use or
sell coal from a mineral operation except where an
exemption has been obtained under 405 KAR 7:035.
(3) A person engaged in a mineral operation, shall not
throw, pile, dump, or permit, the throwing, piling, dumping,
or otherwise placing of any: overburden, stones, rocks,
shale, earth, soil; dirt, debris, trees, wood, logs, or any
other materials or substances of any kind or nature beyond
or outside of the area of land which is under permit; or
push materials over outslopes in such a way that normal
erosion or slides brought about by natural, physical,
changes will permit the materials to go beyond or outside
of the area of land, which is under permit.
(4) A person engaged in a mineral operation shall not
engage in any activities, which will result in a condition or
constitute a practice that, creates an imminent danger to
the health or safety of the public.
(5) A person engaged in a mineral operation shall not
engage in any activities which will result in a condition or
constitute a practice that, causes or can reasonably be
expected to cause significant, imminent environmental
harm, to land, air, or water resources.
(6) Mineral operations shall be conducted in a manner
which minimizes damage, destruction, or disruption of
services provided by oil, gas, and water wells; oil, gas, and
coal slurry pipelines; railroads; electric and telephone lines;
and water and sewage lines which pass over, under, or
through the mineral operation, unless otherwise approved
by the owner of these facilities and the cabinet.
(7) Upon development of any emergency conditions
which threaten the life, health, or property of the public, a
person engaged in a mineral operation shall immediately
notify the person or persons whose life, health, or property
are so threatened; shall take all reasonable actions to
eliminate the condition creating the emergency, and shall
immediately provide notice of the emergency conditions to
the division, to local law enforcement officials, and to local
government officials. Any emergency action taken by a
person engaged in a mineral operation, pursuant to this
paragraph, shall not relieve that person of other obligations
under this chapter or of obligations under other applicable
local, state, or federal laws and regulations.
(8) Compliance with the requirements of this chapter
does not relieve any person engaged in a mineral
operation from compliance with other applicable
administrative regulations of the cabinet and other
agencies.
lP
405 KAR 5:015 - 1
Effective Date: February 22, 1995
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:021. Permit fees.
RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their aclverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation provides for the payment of
permit fees.
Section 1. Permit fees.
(1) Each application for an original permit,
amendment, renewal, and transfer shall be accompanied
by a permit fee.
(2) The permit fee shall be twenty five (25) dollars for
each year of the permit term. For amendments and
transfers the fee shall be assessed for the years remaining
in the permit term. The permit term may be for one (1) to
(5). years.
Section 2. Method of payment. Fees are to paid to
the Kentucky State Treasurer; payable by cash, company
check, cashier's check, or money order.
lP
405 KAR 5:021 - 1
Effective Date: February 22, 1995
.'
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:030. Permit requirements.
RELATES TO: KRS 350.010(2), 350.130, 350.240,
350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations; to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation specifies certain information to be
submitted by the applicant relating to legal status, financial
information, general site information, map requirements,
cultural and environmental resource information, and
mining and reclamation plans. This administrative
regulation also addresses the waivers and approvals
necessary to conduct noncoal mineral operations, including
those of other agencies. Also contained herein, are
provisions concerning review of permits and other permit
related procedural matters.
Section 1. General.
(1) This administrative regulation pertains to any
person who applies for a permit to conduct mineral
operations.
(2) Preliminary permit requirements. A person or
mineral operator desiring a permit shall submit a
preliminary map at a scale one (1) inch equals four
hundred (400) feet or five hundred (500) feet, marked to
show the proposed permit area and adjacent areas;
including but not limited to, location of access roads, spoil
or waste areas, and sedimentation ponds. Personnel of
the Cabinet shall conduct, within fifteen (15) working days
after filing, an on-site investigation of the area with
appropriate persons including appropriate representatives
of the applicant.
(3) Permanent permit requirements. An original and
two (2) complete, separately bound and distinct copies of
the application shall be submitted to the cabinet, at the
location and address prescribed by the cabinet.
Section 2. Identification of Interests.
(1) Each permit application shall contain the names
and addresses of:
(a) The applicant, including his phone number;
(b) The registered agent for service of process, if
applicable, including his phone number;
(c) Any owners, partners, or if a corporation, any
officers or stockholders owning ten (10) percent or more
stock;
(d) The project engineer, along with his registration
number and name of associated firm;
(e) The company and engineer in which
correspondence concerning the subject permit shall be
addressed to;
(1) Surface owners of record within the area
proposed for mining, including areas overlying
underground workings;
(g) Mineral owners of record within the area proposed
for mining, including areas overlying underground
workings; and
(h) Surface owners of record within five hundred
(500) feet of the proposed permit boundary and areas
overlying underground workings.
(2) If the company has undergone a name change or
changes during the previous five (5) years, list the names.
(3) Specify the applicant's legal structure.
(4) If the business is owned by an individual or is a
partnership, and is performed under an assumed name,
specify the county and state where the name is registered.
(5) list previous Kentucky permits held by the
applicant or any individual, partnership or corporation
associated with the applicant.
(6) Provide the name of the contact person at the
site, including his phone number.
(7) Specify the type of application, along with the
permit number.
Section 3. Bond Information. When bond is required,
as specified under 405 KAR 5:080, the following
information shall be provided in the permit application:
(1) The bond amount per acre;
(2) The total amount of bond; and
(3) The bond type:
(a) If a surety is used, provide the bond number and
surety.
(b) If a certificate of deposit is used, provide the bank
name and CD number.
(c) If a letter of credit is used, provide the bank name
and letter of credit number.
Section 4. Equipment Inventory. The permit
application shall contain a list of all equipment, model
numbers, and condition of the equipment proposed to be
used for removing overburden and reclaiming the affected
area of the proposed mineral operation.
Section 5. Waivers and approvals.
(1) If blasting will occur within three hundred (300)
feet of an occupied dwelling or if mineral extraction will
occur within one hundred (100) feet of an occupied
dwelling, the permit application shall contain a waiver from
the owner, acknowledging approval of the activity.
(2) Except where mine access roads or haul roads
join the right-of-way, if the proposed mineral operation will
occur within one hundred (100) feet of the right-of-way of a
public road, or if relocation of a public road is proposed,
the permit application shall contain proof of notification to
and any required approvals from the appropriate agency or
local government with jurisdiction over the road.
(3) If a permanent pond other than a final pit
impoundment with no embankment is proposed, approval
from the landowner for the structure and a written
acknowledgement from the landowner that the mineral
permittee will have no continuing maintenance
responsibility after permit release is required.
(4) If relocation, channelization, or other significant
disturbance to an intermittent or perennial stream is
proposed, or if the proposed mineral operation will occur
within, or in any way impact, a floodplain, wetland, or other
water of the Commonwealth, the applicant shall obtain the
appropriate permits and approvals from the United States
Army Corps of Engineers and the Kentucky Division of
Water. Approval shall also be required by the cabinet for
any disturbances within one hundred (100) feet of an
intermittent or perennial stream.
(5) If a sedimentation pond or any other point source
discharge is proposed, a KPDES permit from the Kentucky
Division of Water is required.
(6) If water withdrawal is proposed, a Water
405 KAR 5:030 - 1
Effective Date: February 22, 1995
Withdrawal Permit shall be obtained from the Kentucky
Division of Water.
(7) If there are local zoning regulations, state this in
the application.
(8) If applicable, approval from the owner of the
utilities and facilities as provided in 405 KAR 5:015,
Section 4(6).
Section 6. Right to mine. The permit application shall
contain a signed statement by the applicant attesting that
the applicant has the legal right to mine, along with the
appropriate date.
Section 7. Verification of application. The permit
application shall contain a statement, signed by the
applicant, acknowledging that all statements and
representatives, made in the application. are true and
correct.
Section 8. Map requirements. The permit application
shall include original and two copies of a section of the
appropriate United States Geological Survey
Topographical Map which shall:
(1) Delineate the proposed permit area and any areas
overlying proposed underground workings;
(2) Be of a scale of not more than one (1) inch to four
hundred (400) feet;
(3) Show all other mine operations within five hundred
(500) feet, of the proposed permit boundaries and
proposed underground workings, including those within the
proposed permit boundaries;
(4) Delineate the property boundaries of all
landowners within the proposed permit area and areas
overlying proposed underground workings and all
landowners within five hundred (500) feet of the proposed
permit boundary and areas overlying proposed
underground workings, along with the names of all the
landowners;
(5) Delineate all proposed access roads onto the
proposed mineral operation;
(6) .Show the site slope;
(7) Show the name and location of all streams, rivers,
lakes, Outstanding Resource Waters pursuant to 401 KAR
5:026 and 5:031, or other public water bodies; proposed
stream buffer zones; roads, cemeteries, houses, churches,
schools and other public buildings; oil and gas wells; public
properties such as, parks, wildlife management areas, and
nature preserves, and utility lines on the area to be
affected, and within one thousand (1,000) feet of the
proposed permit boundary.
(8) Locate any sites listed on the National Register of
Historic Places and any known archaeological sites.
(9) Delineate any wetlands which may be affected by
the proposed mineral operation.
(10) Show the drainage pattern on and away from the
area to be affected, including the direction of flow,
proposed constructed drainways, natural drainways to be
used for drainage, and the streams or tributaries to receive
discharges from the proposed mineral operation.
(11) Show any proposed pit area, sediment structures,
storage areas, and any other facilities and features related
to the mineral operation.
(12) Provide a north point arrow.
(13) Contain a legend which shall:
(a) Provide the company name;
(b) Provide the application number;
(c) Provide the county and quadrangle names;
(d) Provide the site coordinates;
(e) Provide the site address;
(1) Provide the map scale and contour interval;
(g) Provide a description of the site location including:
1. The nearest stream; and
2. The distance and direction from the nearest roa'
intersection or town;
(h) Identify each insignia, symbol, number, or letter
used to designate features, facilities, or areas;
(i) Provide acreage breakdowns of the various
mineral operation features and facilities including, pit
areas, storage areas, sediment structures, access roads,
and the total number of acres of area to be affected; and
0> Specify the deposit to be mined.
(14) Provide a signed, notarized statement that the
map has been prepared and certified by a professional
engineer, registered under the provisions of KRS Chapter
322. This statement shall read, "I, the undersigned, hereby
certify that this map is correct, and shows to the best of my
knowledge and belief all the information required by the
mineral operation laws and administrative regulations of
the state". This statement shall include:
(a) The engineer's registration number; and
(b) The date on which the map was prepared.
Section 9. General site Information. The permit
application shall contain the following general site
information:
(1) Location of the mineral operation to include:
(a) Latitude and longitude;
(b) The nearest community;
(c) The name of the nearest stream;
(d) The nearest public road intersection;
(e) The name of the United States Geological Survey
quadrangle or quadrangles, in which the proposed mineral
operation will occur.
(2). A county by county list of the types 0,
disturbances planned, accompanied by the acreage to be
involved with each disturbance.
(3) Specification of the mineral to be extracted.
(4) Specification of the major watershed or
watersheds, which will be affected, . by the proposed
mineral operation.
(5) Specification of whether any active discharges
exist which may affect the proposed mineral operation. If
so, provide the following information:
(a) The pH of the discharge; and
(b) The source of the discharge.
(6) Specification of whether underground workings
will be encountered, and the distance, in feet, to the
nearest active deep mine.
(7) Specification of the types of disturbances planned
for the proposed mineral operation.
Section 10. Cultural resource Information. The
applicant shall specify whether any sites listed on the
National Register of Historic Places or any known
archaeological sites exist within, or adjacent to, the
proposed permit boundary.
Section 11. Environmental resources Information.
(1) The applicant shall indicate whether there are any
wildlife management areas, wildlife refuges, nature
preserves, state or national parks, state or national forests,
or similar public lands within the vicinity of the proposed
mineral operation. If these lands exist, delineate them or
the map.
(2) The applicant shall indicate whether disturbances
within the channel of, or within one hundred (100) feet of,
405 KAR 5:030 - 2
Effective Date: February 22, 1995
an intermittent or perennial stream are proposed.
(3) The applicant shall indicate whether there are any
Outstanding Resource Waters, pursuant to 401 KAR 5:026
and 5:031, within the vicinity of the proposed mineral
operation. If so, delineate these waters on the map.
Section 12. Surface water quantity and quality
protection plan. The permit application shall contain a
surface water quantity and quality protection plan which
shall demonstrate to the satisfaction of the cabinet
compliance with 405 KAR 5:050 and 5:055, and shall
include the following information:
(1) The number of sedimentation ponds proposed;
accompanied by designs, drawings and specifications for
each structure to include:
(a) The structure number;
(b) The number of acres to be disturbed within the
drainage area;
(c) The number of acres in the drainage area;
(d) Sediment storage capacity;
(e) Storage capacity at the principal spillway;
(1) Storage capacity at the emergency spillway;
(g) Spillway capacities;
(h) Structure height measured from the downstream
toe; and .
(i) All other engineering designs, dimensions and
calculations required to demonstrate compliance with 405
KAR 5:050 and 5:055 or otherwise required by the cabinet.
(2) If sediment removal becomes necessary, the
permit application shall contain a description of how
sediment will be removed and disposed.
(3) The applicant shall state whether any permanent
sedimentation ponds are proposed.
(4) The permit application shall contain descriptions,
designs, diagrams, figures, and calculations as necessary
to adequately explain and illustrate all other sediment
control structures.
(5) The permit application shall contain descriptions,
designs, diagrams, figures, and calculations as necessary
to adequately explain and illustrate any other methods
proposed for protecting surface waters.
Section 13. Permanent and temporary
Impoundments. If an impoundment is part of the plan of
reclamation or method of mineral operation, the permit
application shall contain detailed designs and specifications
for the impoundment which demonstrates compliance with
405 KAR 5:055.
Section 14. Spoil handling plan. The perm it
application shall contain or be accompanied by a plan for
the handling and disposal of spoil, in excess of that
involved with backfilling and grading, which shall
demonstrate to the satisfaction of the cabinet, compliance
with the requirements of 405 KAR 5:060.
Section 15. Toxic materials handling plan. The
permit application shall contain, or be accompanied by, a
plan for the handling of acid-forming or toxic-forming
materials, waste materials, or other unstable materials
which shall demonstrate, to the satisfaction of the cabinet,
compliance with the requirements of 405 KAR 5:060.
Section 16. Backfilling and grading plan. The permit
application shall contain, or be accompanied by, a plan for
backfilling and grading, which shall demonstrate to the
satisfaction of the cabinet, compliance with the
requirements of 405 KAR 5:060.
Section 17. Topsoil handling and restoration plan.
The permit application shall contain, or be accompanied
by, a plan for the handling and restoration of topsoil, which
shall demonstrate to the satisfaction of the cabinet,
compliance with the requirements of 405 KAR 5:060.
Section 18. Land use plan.
(1) The permit application shall contain a land use
plan, which demonstrates compliance with 405 KAR 5:065,
and is consistent with 405 KAR 5:070, that:
(a) Specifies the premining use or uses within, and
adjacent to, the proposed permit boundary.
(b) Specifies the intended postmining land use for the
proposed permit area.
(c) If the postmining land use is different from the
premining land use, shall provide a discussion justifying the ..
change.
(2) The land uses are listed at 405 KAR 5:065, and
are defined in 405 KAR 5:001.
Section 19. Revegetation plan. The permit
application shall contain a revegetation plan which shall
demonstrate, to the satisfaction of the cabinet, compliance
with the requirements of 405 KAR 5:070, and is consistent
with,
405 KAR 5:065, and that provides the following information:
(1) Identification of the material that will be
redistributed on the regraded area as a plant growth
medium.
(2) Permanent grass species, permanent legume
species, and quick cover species to be seeded during
revegetation, along with their application rates
(pounds/acre).
(3) Tree and shrub species to be planted during
revegetation, along with their stocking rates (number/acre).
(4) The type of mulch to be used, along with the
mulching rate (pounds or tons/acre), or other soil
stabilization practices to be incorporated.
Section 20. Designs and attachments.
(1) The permit application shall be accompanied by
appropriate descriptions, designs, diagrams, figures, and
calculations as necessary to adequately explain and
illustrate proposed sediment control structures, as required
under sections 12 and 13 of this administrative regulation;
spoil disposal fills; access and haul roads; stream
crossings; and ditches.
(2) Access and haul road designs shall conform to the
specifications established in 405 KAR 5:040.
(3) The designs and plans shall demonstrate, to the
satisfaction of the cabinet, compliance with all pertinent
requirements of Trtle 405, Chapter 5, and shall be certified
by a Kentucky registered professional engineer.
Section 21. Newspaper advertisement: Publication
of NoUce of Intention to Mine.
(1) A prospective applicant for a new permit required
under KRS 350, shall publish at least once, a public notice
of his intention to file an application for that permit. The
publication shall be made by advertisement in the
newspaper of largest bona fide circulation, in the county
wherein the proposed mining site is located. If the
proposed mining site is in more than one (1) county,
publication is required in the newspaper of largest bona
fide circulation in each county.
(2) The publication shall be made not less than ten
(10) nor more than thirty (30) days prior to the filing of the
permit application with the Department.
405 KAR 5:030 - 3
Effective Date: February 22, 1995
(3) The public notice of the intention to file an
application shall be entitled, 'Notice of Intention to Mine
Noncoal Minerals', and shall be in a manner and form
prescribed by the department and shall include, though not
be limited to, the following:
(a) Name and address of the applicant;
(b) Permit application number;
(c) The location of the proposed mining site.
(d) A brief description of the kind of mining activity
proposed, together with a statement of the amount of
acreage affected by the proposed mineral operations.
(4) The applicant for a new permit required by KRS
350, shall establish the date and place at which the, 'Notice
of Intention to Mine Noncoal Minerals', was published; by
attaching to his application proof satisfactory to the cabinet
of the time, place and content of the published notice.
Section 22. Permit revisions. A revision to a permit
shall be obtained when the mineral permittee desires to
modify his mineral operations or make changes to the
original permit that does not involve increased acreage.
The following stipulations shall apply to permit revisions:
(1) The application for revision shall be filed with the
cabinet and approved prior to the date on which the
mineral permittee expects to revise the mineral operation;
(2) The term of a permit shall remain unchanged by a
revision; and
(3) The application for revision shall be submitted in
the form prescribed by the cabinet.
Section 23. Permit amendments. Upon application by
the mineral permittee, the cabinet may amend a valid
existing permit, so as to increase the permitted area to be
affected by mineral operations under the permit.
Applications for amendment may be filed at any time
during the term of the permit.
(1) The mineral permittee shall file an application in
the same form and with the same content as required for
an original permit under this administrative regulation.
(2) The mineral permittee may need to file a
supplemental bond with the cabinet in an amount to be
determined, as provided under 405 KAR 5:080, for each
additional acre or fraction thereof.
Section 24. Permit renewals. Any valid permit issued
pursuant to this chapter shall carry with it, the right of
successive renewal upon expiration of the term of the
permit. Successive renewal shall be allowed only for those
areas specifically within the boundaries of the existing
permit.
(1) An application for renewal of a permit shall be
filed with the cabinet at least sixty (60) days prior to the
expiration date of the permit.
(2) If an application for renewal of a valid existing
permit includes a proposal to extend the mineral operation
beyond the boundaries authorized under the existing
permit, the portion of the application which addresses any
new land areas shall be subject to all applicable
requirements of this chapter, and a new original permit
application shall be required for these areas.
(3) The permit renewal shall be issued if the following
requirements are met:
(a) The application for renewal shall be submitted in
the form prescribed by the cabinet;
(b) The mineral permittee shall submit all revised or
updated information required by the cabinet, including but
not limited to:
1. An updated operational plan current to the date of
request for renewal; and
2. Specification of the status and extent of all mineral
operations on the existing permit area;
(c) The present mineral operation is in compliance
with all applicable statutes and administrative regulationl
and
(d) The mineral permittee shall provide any additional
bond that the cabinet may require.
Section 25. Permit succession.
(1) There shall be no succession on the permitted
area without the prior written approval of the cabinet.
(2) The initial mineral permittee shall notify the
cabinet, in writing, of any proposed succession.
(3) The cabinet may release the first mineral operator
from reclamation responsibility under this chapter as to that
particular mineral operation, however:
(a) There shall be no release until the successive
mineral operator has been issued a permit and has
otherwise complied with the requirements of this chapter;
and
(b) The successor shall immediately assume, as a
part of his obligation under this chapter, all liability for the
reclamation of the area affected by the former permitted
mineral operation.
(4) If the cabinet has given its prior written approval to
the succession, a successor in interest to a mineral
permittee who applies for a successor permit within thirty
(30) days of succeeding to the interest, and who obtains
immediate bond coverage at least equivalent to the amount
of the bond of the original mineral permittee, may continue
mineral operations according to the approved permit plan
of the original mineral permittee until the successor's
application is granted or denied.
(5) The bond coverage provided by the successor in
interest shall take effect immediately upon the
commencement of mineral operations by the successor.
Section 26. Review of permits.
(1) Within thirty (30) working days of receiving the
permit application, the cabinet shall make one (1) of three
(3) decisions:
(a) To technically withdraw the permit application;
(b) To deny the permit application; or
(c) To approve the permit application.
(2) If the permit application is technically withdrawn or
denied, the thirty (30) working day period shall be stopped
on the date of this decision.
(3) The time period shall restart on the date when the
permit application is returned with deficiencies corrected.
(4) If the application is not approved, the cabinet shall
set forth the reasons, in writing, for which the application is
not approved; and the cabinet may propose modifications,
delete areas; or reject the entire application.
(5) If the mineral permittee disagrees with the
decision of the cabinet he may, by written notice, request a
hearing by the cabinet, pursuant to 405 KAR 5:095.
(6) The cabinet shall notify the applicant by registered
mail within twenty (20) days after a decision is made.
Section 'ZT. Criteria for permit approval and denial.
No application for a permit and no mineral operation shall
be approved, unless the application affirmatively
demonstrates and the cabinet determ ines on the basis of
information set forth in the application, and other available
pertinent information, that:
(1) The permit application is accurate, complete, and
that all requirements of Title 405, Chapter 5 have been
405 KAR 5:030 - 4
Effective Date: February 22, 1995
complied with.
(2) The mineral operation proposed can be carried
out under the method of mineral operation outlined in the
permit application in a manner that will satisfy all
requirements of Title 405, Chapter 5.
(3) The proposed mineral operation will not constitute
a hazard to, or do physical damage to life, to an occupied
dwelling, public building, school, church, cemetery,
commercial or institutional building, public road, stream,
lake, other public property or to members of the public, or
their real and personal property.
(a) All necessary measures shall be included in the
method of mineral operation in order to eliminate the
hazard or damage.
(b) If it is not technologically feasible to eliminate the
hazard or damage by adopting specifications in the method
of mineral operation, then that part of the mineral operation
which constitutes the cause of the hazard or damage shall
be deleted from the application and mineral operation.
(4) The proposed mineral operation will not adversely
affect natural hazard lands or a wild river established
pursuant to KRS Chapter 146.
(5) The proposed mineral operation will not be
inconsistent with other mineral operations anticipated In
areas adjacent to the proposed permit area.
(6) The proposed permit area is:
(a) Not included within the boundaries of the National
Park System, the National Wildlife Refuge System,
including study rivers designated under Section 5(a) of the
Wild and Scenic Rivers Act (16 U.S.C. 1276(a)), and the
National Recreation Areas designated by Act of Congress;
(b) Not included within 300 feet, measured
horizontally, of any public park, public building, school,
church, community or institutional building;
(c) Not included within 100 feet, measured
horizontally, of a cemetery, and access to be provided to a
cemetery at all times;
(d) Not within 100 feet, measured horizontally, of the
outside right-of-way line of any public road, except:
1. Where mine access roads or haul roads join the
right-of-way; or.
2. Where the cabinet allows the roads to be
relocated or allows disturbances within 100 feet of the
roads, once the applicant has obtained necessary approval
from the governmental authority with jurisdiction over the
public road, as required under section 50f this
administrative regulation; and if atter public notice and
opportunity for public hearing a written finding is made, by
the cabinet, that the interest of the public and the
landowners affected thereby will be protected.
(e) Not within the distances specified in section 5 of
this administrative regulation, measured horizontally, of an
occupied dwelling unless the applicant submits with the
permit application a written affidavit from the owner of the
dwelling specifying an allowance, as required by section 5
of this administrative regulation. This waiver shall be
knowingly and intelligently executed, and be separate from
a lease or deed, unless the lease or deed contains an
explicit waiver. Waivers obtained from previous owners
shall remain effective for subsequent owners who had
actual or constructive knowledge of the existing waiver
when the dwelling was purchased. A subsequent owner
shall be deemed to have constructive knowledge if the
waiver has been properly filed in public property records
pursuant to state law or if the mining has proceeded to
within the distance limit prior to the date of purchase; and
(f) Not within 100 feet of an intermittent or perennial
stream unless appropriate permits and approvals, required
under section 5 of this administrative regulation, have been
obtained authorizing mineral operations at a closer
distance to, or through, the stream. The authorization shall
not be given unless the applicant demonstrates to the
satisfaction of the cabinet that the authorization is
environmentally sound and that all other applicable laws
and administrative regulations have been satisfied.
Section 28. Permit conditions; permit term.
(1) Permits issued by the cabinet may contain certain
concfrtions necessary to ensure that the mineral operation
will be conducted in compliance with all applicable statutes
and administrative regulations.
(2) All mineral operations shall be conducted in
accordance with all applicable statutes and administrative
regulations and any conditions imposed by the cabinet on
the permit.
(3) Each permit shall be issued for a fixed term not to
exceed five (5) years.
Section 29. Denial of a permit for past violations.
(1) A mineral operator or person whose permit has
been revoked or suspended shall not be eligible to receive
another permit or begin another mineral operation, or be
eligible to have suspended permits or mineral operations
reinstated until he has complied with all applicable
requirements of KRS Chapter 350 and Title 405, Chapter 5
with respect to all permits issued him.
(2) A mineral operator or person whose surface coal
mining operation permit has been revoked or suspended
shall not be eligible to. receive another permit or begin
another mineral operation, or be eligible to have
suspended permits or mineral operations reinstated until
he has complied with all applicable requirements of KRS
Chapter 350, Title 405 KAR Chapters 1 and 3, and Title
405 Chapters 7 through 24 with respect to all surface coal
mining operation permits issued him.
(3) A mineral operator or person who has forfeited
any bond filed with the cabinet for any mineral operation or
any surface coal mining operation shall not be eligible to
receive another permit or begin another mineral operation
unless;
(a) The land for which the bond was forfeited has
been reclaimed without cost to the state; or
(b) The mineral operator or person has paid a sum as
. the cabinet finds is adequate to reclaim the lands.
(4) If the applicant, mineral operator, any
subcontractor, or any person acting on behalf of the
applicant, has either conducted activities with a
demonstrated pattern of willful violations of Chapter 5, or
has repeatedly been in noncompliance of this chapter, then
the permit application shall be denied; however nothing
contained herein shall be construed as to relieve a mineral
permittee of responsibility with respect to any permit issued
to him.
(5) If the cabinet determines that any activity of the
applicant regulated pursuant to 405 KAR Chapter 5 is
currently in violation of any environmental law or
environmental administrative regulation of the
Commonwealth, then the cabinet shall require the
applicant, before the issuance of the permit, to either:
(a) Submit proof which is satisfactory to the cabinet
that the violation has been corrected, or is in the process of
being corrected in good faith; or
(b) Establish, to the satisfaction of the cabinet, that
the applicant has filed and is presently pursuing, a good
faith administrative or judicial appeal to contest the validity
of the violation.
405 KAR 5:030 - 5
Effective Date: February 22, 1995
(6) If the applicant submits the proof specified under
subsection (5) of this section, then the cabinet may issue
the permit with an appropriate condition that either the
reclamation work be continued in good faith until
completion or that if the applicant loses his action
contesting the violation that the violation be corrected
within a specified time. Failure to comply with any
conditions shall be grounds for revocation of the permit.
(7) If the applicant disagrees with the cabinet's
determination under. this section, then he has the right to
request an administrative hearing pursuant to 405 KAR
5:095.
Section 30. Permit conference and public comment.
(1) Procedures for requests. Any person whose
interests are or may be adversely affected by the issuance
of the application, including the officer or head of any
Federal, State or local government agency or authority,
may request that the Cabinet hold an informal conference
on any application for a permit. The request shall:
(a) Briefly summarize the issues to be raised by the
requester at the conference.
(b) Be filed with the cabinet within fifteen (15) days of
the newspaper advertisement.
(2)(a)The conference shall be held at the Division of
Reid Services.
(b) The conference shall be held within fifteen (15)
days of the date of the request. The date, time,. and
location of the conference shall be sent to the applicant
and parties requesting the conference.
(c) The conference shall be conducted by a
representative of the Cabinet who may accept oral or
written statements and any other relevant information from
any party to the conference.
(d) If all parties requesting the conference stipulate
agreement before the requested conference and withdraw
their requests, the conference need not be held.
(e) All comments and evidence will be taken into
consideration by the Division of Field Services in Frankfort
before a final decision is made on the disposition of the
application. .
(f) The record shall be maintained and shall be
accessible to the parties during the life of the mineral
operation.
(2) Any person whose interests are or may be
adversely affected by the issuance of the application,
including the officer or head of any Federal, State or Local
government agency or authority, may submit written
comments to the cabinet.
Section 31. Existing minerai operations.
(1) Existing mineral operations that were not
permitted or regulated prior to the effective date of this
administrative regulation shall obtain a permit within one
hundred eighty (180) days of the effective date of this
administrative regulation.
(2) The cabinet may grant limited variances from the
distance limitations of Section 27(6) of this administrative
regulation where an existing disturbance within those limits
was made prior to the effective date of this administrative
regulation by an existing mineral operation that was not
permitted or regulated prior to the effective date of this
administrative regulation. These variances shall only be
granted when no practical and reasonable remedial
compliance measure can be identified.
(3) The distance limitations of section 27(6). of this
administrative regulation shall not apply where lesser
distance limitations have been approved in a valid permit
issued prior to the effective date of this administrative
regulation. The distance limitations established in those
permits shall continue to apply.
Section 32. Documents Incorporated by reference.
(1) The following form is hereby incorporated by
reference: Application for Surface Disturbance Mining
Permit Noncoal Mining, NCR-2, March, 1990.
(2) This form may be reviewed or obtained at the
Department for Surface Mining Reclamation and
Enforcement, #2 Hudson Hollow, Frankfort, Kentucky
40601, Monday through Friday, 8:00 a.m. to 4:30 p.m.
LP
405 KAR 5:030 - 6
Effective Date: February 22, 1995
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:035. Signs and markers.
RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth provisions concerning
signs and markers for noncoal mineral operations.
Section 1. General.
(1) All signs required to be posted shall be of a
standard design that can be seen and read easily and shall
be made of durable material.
(2) Signs and other markers shall be maintained by
the mineral permittee during all mineral operations, to
which they pertain, and shall be kept legible and visible
and shall conform to all local ordinances and codes.
(3) Signs constructed pursuant to this administrative
regulation shall be constructed of durable material, with the
sign face to be at least two (2) feet in height and four (4)
feet in width, and the top of the sign to stand not less than
six (6) feet above the ground.
Section 2. Mine and permit Ident!flcatlon signs.
(1) Signs identifying the mine area shall be displayed
at all points of access to the permit area from public roads
and highways.
(2) Signs shall clearly Identify the name, business
address, and telephone number of the mineral permittee
and identification numbers of current mineral operation
permits or other authorizations to operate.
(3) The signs shall not be removed until after release
of permit.
(4) Failure to post the signs shall be grounds for
revocation of the permit.
(5) The permit boundaries shall be clearly marked by
durable and easily recognized markers for the purposes of
the permit walk.
Section 3. Stream buffer zone markers. Except
where specifically approved, lands within one hundred
(100) feet of perennial and intermittent streams shall not
be disturbed. These areas are to be designated as buffer
zones, and shall be marked along the interior boundary of
the buffer zone by durable and easily recognized markers.
Section 4. Blasting signs. Blasting signs shall be
posted in accordance with the requirements of the
Department of Mines and Minerals.
Section 5. Topsoil markers.
(1) If applicable, stockpiles, and other areas where
topsoil or other plant growth material are segregated, shall
be marked.
(2) If soil horizons are removed and stored
separately, each soil horizon stockpile shall have a
separate and appropriately marked sign.
(3) Placement and quantity of markers shall be
sufficient to clearly define the stockpiles.
(4) Markers shall remain in place until the material is
removed.
lP
405 KAR 5:035 - 1
Effective Date: February 22, 1995
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:038. Blasting.
RELATES TO: KRS 350.010(2),350.240,350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350.240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation relates to the use of explosives
for noncoal mineral operations.
Section 1. General.
(1) If blasting is planned for the proposed mineral
operation, it shall be conducted in accordance with the
laws and administrative regulations of the Kentucky
Department of Mines and Minerals, 805 KAR, Chapter 4.
(2) If f1yrock falls outside the permit boundary, or if
property damage occurs outside of the permit boundary, as
a result of flyrock, then appropriate mitigative measures, as
determined by the cabinet, shall be taken.
Section 2. Blasting signs. Warning signs shall be
posted if explosives are to be used, in accordance with 405
KAR 5:035.
LP
405 KAR 5:038 - 1
Effective Date: February 22, 1995
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:040. Access roads and haul roads.
RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028,350.029,350.240,350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth general provisions and
specifications for constructing haul roads and access roads
for noncoal mineral operations.
Section 1. General.
(1) Each mineral permittee shall design, construct,
utilize, and maintain roads and restore the area to meet the
requirements of this administrative regulation and to
control or minimize erosion and siltation, air and water
pollution, and to prevent damage to public or private
property.
. (2) To the extent possible using the best technology
currently available, roads shall not cause damage to fish,
wildlife, and related environmental values and shall not
cause additional contributions of suspended solids to
streamflow or to runoff outside the permit area. Any
additional contributions shall not be in excess of limitations
of state or fede~~lI law.
(3) The design of roads shall be certified by a
qualified registered professional engineer as being in
accordance with specifications of this administrative
regulation, except to the extent that alternative
specifications are used. Alternative specifications may be
used only after approval by the cabinet upon a
demonstration by a qualified registered professional
engineer that they will result in performance, with regard to
safety, stability and environmental protection, equal to or
better than, that resulting from roads complying with the
specifications of this administrative regulation.
(4) Use of a preexisting private road, or any portion
thereof by the mineral operator requires:
(a) That the road be kept open and in a condition that
local traffic can use it without damage to their means of
transportation.
(b) That if any disturbance by the mineral operator
makes the road impassable, a detour of comparable
usability shall be provided.
(5) No part of any road shall be located in the channel
of an intermittent or perennial stream unless specifICally
approved by the cabinet for stream crossings.
(6) Stream fords are prohibited unless they are
specifically approved by the cabinet as temporary routes
during periods of construction. The fords shall not
adversely affect stream sedimentation or fish, wildlife, and
related environmental values. All other stream crossings
shall be made using bridges, culverts, or other structures
designed, constructed, and maintained to meet the
requirements of Section 4. .
(7) Access roads, haul roads, and any yard areas or
parking areas shall be maintained with proper surface
materials to prevent erosion.
(8) The deposition of mud and other debris on public
roads shall be minimized to the extent possible in order to
prevent public nuisance.
Section 2. Specifications for access and haul roads.
(1) The grade of an access road shall be such that:
(a) There shall be no more than four hundred (400)
feet of grade exceeding ten (10) percent.
(b) The maximum grade shall not exceed fifteen (15)
percent for three hundred (300) feet. .
(c) There shall not be more than three hundred (300)
feet of maximum grade for each consecutive 1,000 feet of
road constructed.
(d) All grades referred to in this subsection shall be
subject to a tolerance of two (2) percent grade.
(2) Appropriate drainage control shall be provided for
access and haul roads conforming to the following
stipulations:
(a) A ditch shall be provided on both sides of a
throughcut, and on the inside shoulder of a cut-fill section,
with ditch relief cross drains being spaced according to
grade.
(b) Water shall be intercepted before reaching a
switch back or large fill and be led off.
(c) Water on a fill or switch back shall be released
below the fill, not over it.
(d) Ditch relief structures shall be installed, where
possible, according to Appendix A of this administrative
regulation which represents spacing in terms of percent of
ditch line grade on the basis of one hundred (100) square
inch openings per culvert.
(3) Cut slopes shall not be steeper than specifically
authorized by the cabinet, and shall not be steeper than
1v:1.5H in unconsolidated materials or 1v:O.25h in rock,
except that steeper slopes may be specifically authorized
by the cabinet if geotechnical analysis demonstrates that a
minimum safety factor of 1.5 can be maintained.
(4) Embankment slopes shall not be steeper than
1v:2H, except where the embankment material is a
minimum of eighty five (85) percent rock. Slopes with
eighty five (85) percent rock shall not be steeper than
1v:1.35H.
(5) If a berm is produced in skimming the road, it shall
not be left on the ditch side.
(6) Access roads shall not be surfaced with any
acid-forming or toxic-forming material, the surface being
that part of the road exposed to the elements of wind, rain,
and sun.
(7) No bridges, culverts, stream crossings, or similar
structures, shall be removed until the reclamation is
completed.
(8) When an access road is to be abandoned, surface
drainage and vegetative cover shall be provided to
minimize erosion.
(a) Regardless of the future use of the road,
adequate surface drainage shall be provided.
(b) A road will be considered to be abandoned when
the mineral operator has ceased to use the road and has
not turned the road over to another party for his use.
(c) When adequate surface drainage and vegetative
cover has been provided, the mineral operator shall be
relieved of all further obligations in maintaining the road.
(9) All measurements referred to in this section,
including grade limitations, shall be subject to a tolerance
of plus or minus fIVe (5) percent of measurement.
(10) Typical section showing width of road cut, fill
slopes, surface material of road, a center line profile with
grades, pipe location and size, shall be included in the
permit application.
405 KAR 5:040 - 1
Effective Date: February 22, 1995
Appendix A of 405 KAR 5:040
Ditch line Gradient
(percent)
2
3
4
5
6
Spacing of Culverts (feet)
(Shall not exceed)
600
500
400
320
275
LP
405 KAR 5:040 - 2
Effective Date: February 22, 1995
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:045. Protection of environmental
resources.
RELATES TO: KRS 350.010(2), 350.240,350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncosl mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth provisions for the
protection of fish and wildlife values and other
environmental features.
Section 1. Environmental resources.
(1) Any mineral permittee shall, to the extent
possible, minimize disturbances and adverse impacts to
fish and wildlife, and related environmental values.
(2) No mineral operation shall be conducted which will
result in the adverse effects to or modification of a wetland
without the appropriate permits and approvals.
(3) No mineral operation shall be conducted within
the boundaries of the National Park System; the National
Wildlife Refuge System; the National System of Trails; the
National Wilderness Preservation System; National
Recreational Areas; state nature preserves dedicated
pursuant to KRS 146.410; or state wildlife management
areas; the Wild and Scenic Rivers System, including study
rivers designated under section 5(a), of the Wild and
Scenic Rivers Act (16 U.S.C. Sec. 1276 (a)), or rivers or
study river corridors as established in any guidelines
pursuant to that Act; rivers and their corridors designated
under the state Wild Rivers Act pursuant to KRS 146; or
similar public lands.
(4) No land within one hundred feet of an intermittent
or perennial stream shall be disturbed by mineral
operations, except where appropriate permits or approvals
have been obtained.
(5) The cabinet shall prohibit any mineral operation
on a natural hazard land if necessary to protect the health,
safety, or welfare of people, property, or the environment
LP
405 KAR 5:045 - 1
Effective Date: February 22, 1995
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:050. Protection of surface water quantity
and quality.
RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noneaal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth general provisions and
specifications for the protection of surface waters from
noncoal mineral operations.
Section 1. General.
(1) Appropriate protection measures shall be
designed, constructed, and maintained to minimize
disturbance of surface water quantity and quality within the
permit area, to prevent material damage to surface water
quantity and quality outside the permit area, and to prevent
additional contributions of sediment to streamflow or to
runoff outside the permit area.
(2) Protection measures include practices carried out
within and adjacent to the disturbed area.
(3) The scale of downstream practices shall reflect
the degree to which successful techniques are applied at
the sources of the disturbance.
(4) Surface water quantity and quality protection
measures consist of the utilization of proper mining,
reclamation methods, and incorporated practices, singly or
in combination, including but not limited to:
(a) Disturbing the smallest practicable area at any
one time during the mineral operation through progressive
backfilling and grading. and timely revegetation;
(b) Shaping the backfill material to encourage a
reduction in the velocity of runoff, to an extent which is
consistent with the requirements of this chapter;
(c) Retention of sediment within the pit and disturbed
area;
(d) Utilization of straw dikes, riprap, check dams,
mulches, vegetative buffer zones, dugout ponds, silt fence,
and other measures that reduce overland flow velocity,
reduce runoff volume, and entrap sediment;
(e) Utilization of other appropriate treatment facilities
such as chemical treatment for acid and metals; and
(f) Sedimentation ponds.
(5) Maximum utilization shall be made of on site
sediment control practices.
(6) All surface drainage from the disturbed area,
including disturbed areas which have been graded,
seeded, or planted, shall pass through sediment control
structures and, where necessary, other treatment facilities
that have been approved by the Cabinet, before leaving
the permit area.
(a) For the purpose of this administrative regulation,
disturbed area shall not include those areas in which only
diversion ditches, sedimentation ponds, or roads are
installed in accordance with 405 KAR Chapter 5 and the
upstream area is not otherwise disturbed by the mineral
permittee.
(b) Sediment control structures shall be retained until
untreated drainage from the disturbed area has met the
water quality requirements of the administrative regulations
of the Division of Water and the revegetation requirements
of 405 KAR 5:070, have been met.
(c) All sedimentation ponds required shall be
constructed in accordance with this chapter and placed in
appropriate locations prior to any mining in the affected
drainage area in order to control sedimentation or
otherwise treat water.
(d) .Sedimentation ponds may be used individually or
in series, and shall be located as near as possible to the
disturbed area, and where possible, out of major stream
courses.
(7) No mineral operation shall violate any state or
federal water quality standard or the effluent limitations
established in the administrative regulations of the Division
of Water.
(8) The cabinet may require other actions, above and
beyond the requirements of this administrative regulation,
as necessary to ensure that surface waters are protected.
Section 2. Pond design specifications. At a
minimum, all sedimentation ponds shall be designed to
meet the requirements for impoundments in 405 KAR
5:055 and the following additional specifications:
(1) Sedimentation ponds shall be designed,
constructed, and maintained to prevent short circuiting.
(2) Sedimentation ponds shall be designed so that
discharges from the pond shall meet the effluent limitations
of the administrative regulations of the Division of Water.
(3) The elevation of the crest of the emergency
spillway shall be a minimum of one and one-half (1.5) feet
above the crest of the principal spillway.
Section 3. Sediment removal.
(1) Sediment shall be removed from sedimentation
ponds so as to assure maximum sediment removal
efficiency and attainment and maintenance of effluent
limitations of the administrative regulations of the Division
of Water or as directed by the cabinet.
(2) Sediment removal shall be done in a manner that
minimizes adverse effects on surface waters due to its
chemical and physical characteristics, on infiltration, on
vegetation, and on surface and ground water quality.
(3) Sediment that has been removed from
sedimentation ponds and that meets the requirements for
topsoil may be redistributed over graded areas.
LP
405 KAR 5:050 - 1
Effective Date: February 22, 1995
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:055. Permanent and temporary
Impoundments.
RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth provisions for
impoundments.
Section 1. Requirements for permanent and
temporary Impoundments.
(1) Design certification. The design of impoundments
shall be certified by a qualified registered professional
engineer as designed to meet the requirements of this
administrative regulation using current, prudent
engineering practices, and any design criteria established
by. the cabinet. The qualified registered professional
engineer shall be experienced in the design and
construction of impoundments.
(2) All impoundments classified as Class B-moderate
hazard or Class C-high hazard, and all permanent "dams,"
as defined in KRS 151.100, shall comply with 401 KAR
4:030. Criteria for the hazard classifications are
established by 401 KAR 4:030.
(3) Stability.
(a)1. Permanent and temporary "dams" (as defined in
KRS 151.100), permanent and temporary Class B and C
impoundments, and all permanent impoundments, shall
have a minimum static safety factor of 1.5 for the normal
pool with steady seepage saturation conditions, and a
seismic safety factor of at least 1.2.
2. Impoundments not included in subparagraph .1 of
this paragraph shall have a minimum static safety factor of
1.3 for the normal pool with steady state seepage
saturation conditions.
(b) The constructed height of the dam shall be
increased a minimum of five (5) percent over the design
height to allow for settlement, unless it has been
demonstrated to the cabinet that the material used and the
design will ensure against all settlement.
(c) The minimum top width of the embankment shall
not be less than the quotient of (H+35)/5, where H is the
height, in feet, of the embankment as measured from the
upstream toe of the embankment to the top of the
embankment.
(d) Unless the cabinet approves steeper slopes,
based upon a satisfactory demonstration of stability by the
applicant acceptable to the cabinet, the sum of the
upstream and downstream side slopes (hIv) of the settled
embankment shall not be less than 5h:1v, with neither
slope steeper than 2h:1v. Slopes shall be designed to be
stable in all cases, even if flatter side slopes are required.
(e) The fill material shall be free of sod, large roots,
other large vegetative matter, and frozen soil.
(f) The placing and spreading of fill material shall be
started at the lowest point of the foundation. The fill shall
be brought up in horizontal layers of such thickness as is
required to facilitate compaction and meet the design
requirement of this administrative regulation. Compaction
shall be conducted as specified in the design approved by
the cabinet.
(g) The entire embankment including the surrounding
areas disturbed by construction shall be stabilized with
respect to erosion by a vegetative cover or other means
immediately after the embankment is completed. The
active upstream face of the embankment where water will
be impounded may be riprapped or otherwise stabilized
and no vegetative cover is needed. Areas in which the
vegetation is not successful or where rills and gullies
develop shall be repaired and revegetated.
(h) Slope protection shall be provided to protect
against surface erosion at the site and protect against
sudden drawdown.
(i) Measures shall be taken to control seepage in
order to ensure stability of the embankment.
(4) Freeboard. Impoundments shall have adequate
freeboard to resist overtopping by waves and by sudden
increases in storage volume. The minimum elevation at
the top of the settled embankment shall be one (1.0) foot
above the water surface in the impoundment with the
emergency spillway flowing at design depth. For
embankments subject to settlement, this one (1.0)-foot
minimum elevation requirement shall apply at all times,
including the period after settlement. Freeboard
requirements shall not apply to incised impoundments
which have no embankment or levee.
(5) Foundation.
(a)1. Foundation and abutments for the impounding
structure shall be designed to be stable under all
conditions of construction and operation of the
impoundment and shall be designed based on adequate
and accurate information on the foundation conditions.
2. For permanent and temporary "dams" (as defined
in KRS 151.100), for permanent and temporary Class B
and C impoundments, and for all permanent
impoundments, foundation investigations as well as any
necessary laboratory testing of materials shall be
performed in order to determine the design requirements
for foundation and embankment stability.
3. Where an approved temporary impoundment has
been constructed and the mineral permittee subsequently
seeks a permit revision to upgrade the structure to a
permanent impoundment, the cabinet may waive the
foundation investigations and laboratory testing required by
subparagraph 2 of this paragraph under the following
circumstances:
a. The structure has been recently verified as being
a Class A-low hazard structure;
b. The structure does not meet the definition of the
term "dam," as defined at KRS 151.100; and
c. The cabinet approves conservative, assumed
values for the strength parameters used in the stability
analyses to ensure compliance with subsection (3)(a) of
this section.
(b) All vegetative and organic materials shall be
removed and foundations excavated and prepared to resist
failure. Cutoff trenches shall be installed if necessary to
ensure stability.
(6) Spillways. Impoundments shall include a
combination of principal and. emergency spillways which
shall be designed and constructed to safely pass the
design precipitation event specified in this subsection,
unless the cabinet requires a larger event. Twenty-four
(24) hours may be used in lieu of six (6) hours for the
duration of a design precipitation event specified in this
subsection.
405 KAR 5:055 - 1
Effective Date: February 22, 1995
(a) Class A impoundments that are not "dams" (as
defined in KRS 151.100) shall pass the:
1. Twenty-five (25) year, six (6) hour precipitation
event if it is a temporary impoundment; or
2. The fifty (50) year, six (6) hour precipitation event
if it is a permanent impoundment.
(b) Temporary class A impoundments that are "dams"
(as defined in KRS 151.100) shall pass the one hundred
(100) year, six (6) hour precipitation event.
(c) Permanent and temporary class B and C
impoundments and all permanent "dams" (as defined in
KRS 151.100) shall comply with the criteria established in
401 KAR 4:030.
(d) Emergency spillway grades and allowable
velocities shall be.approved by the cabinet.
(7) Single spillway. Class A impoundments that are
not "dams" (as defined in KRS 151.100) may use a single
spillway if the spillway:
(a) Is an open channel of non-erodible construction
and capable of maintaining sustained flows; and
(b) Is not earth or grass lined.
(8) Temporary impoundments existing on the effective
date of this administrative regulation that are, and continue
to be, Class A hazard, shall not be required to be modified
to meet the requirements of subsections (1) through (7) of
this section unless the cabinet, based upon an inspection,
determines that modification to meet some or all of these
requirements is necessary to protect the public health or
safety or to protect the environment.
(9) Emergency procedures. If any examination or
inspection of an impoundment discloses that a potential
hazard exists, the person who examined the impoundment
shall immediately notify the department and the Kentucky
Division of Water, or if these agencies cannot be reached,
Disaster and Emergency Services. The mineral permittee
shall immediately implement emergency procedures
formulated for public protection and remedial action. If
adequate emergency procedures cannot be formulated or
implemented by the mineral permittee, the cabinet shall be
notified, and the cabinet shall notify the appropriate
agencies that other emergency procedures are required to
protect the pubOc.
SectIon 2. AddItIonal requIrements for permanent
Impoundments.
(1) General.
(a) The retention of a permanent impoundment is
subject to the approval of the cabinet.
(b) Permanent pit impoundments with no
embankment are encouraged.
(c) It shall be demonstrated to the cabinet's
satisfaction that adequate sources of water are available to
maintain the water level of the impoundment at a
reasonable elevation at all times. Adequate sources of
water supply for impoundments may be from springs,
drainage areas of sufficient size, ground water percolation,
a flowing stream, or any combination of these sources.
(d) In accordance with 405 KAR 5:030, if a permanent
impoundment is proposed, an affidavit from the landowner
approving the impoundment and acknowledging that the
mineral permittee will have no continuing maintenance
responsibility after permit release, is required, except for
final pit impoundments with no embankment.
(e) Permanent impoundments shall be demonstrated
to be a part of the approved postmining land use.
(2) If a permanent impoundment is proposed, the
following stipulations shall be met:
(a) Adequate means of access, such as roads or
ramps, are left or provided to the water impoundment.
(b) A terrace shall be provided above, but in near
proximity to, the high water level of the permanent
impoundment, except on the portion of the impoundment
comprising the highwall of the pit.
(c) Any spoil above the terrace shall be graded until n
is rounded off and blended into the area contour above the
terrace.
(d) All spoil piles adjoining access roads to permanent
impoundments shall be graded to minimize erosion and
blend into the surrounding area.
(e) The angle of the slope from the roadbed to the top
of the spoil may be greater than the surrounding area if
adequate drainage measures are taken to prevent erosion
of the slope, including but not limited to, terracing and
vegetation.
(f) The roadbed shall be adequately drained and
culverts shall be provided so as to prevent it from being
eroded.
(g) The area above the highwall on any permanent
water impoundment shall be protected by a landscape
barrier or a fence approved by the Department for Surface
Mining Reclamation and Enforcement.
LP
405 KAR 5:055 - 2
Effective Date: February 22, 1995
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:060. Handling of materials.
RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth provisions concerning
backfilling and grading, handling of wastes, handling of
acid or toxic-forming materials, topsoil handling and
conditioning, disposal of excess spoil, and additional
performance standards for mineral operations on steep
slopes.
Section 1. Backfilling and grading.
(1) General statement concerning backfilling. All
overburden that is not placed in approved excess spoil fills
shall be placed back in existing pits and graded.
(2) Surface drainage.
(a) Natural drainways in the area affected by the
mineral operation shall be kept free from overburden
except where approved by the cabinet.
(b) If, during the mineral operation, it is necessary to
cross a natural drainway, proper drainage structures shall
be provided. .
(c) Sufficient water retarding structures, silt control
structures, and diversion ditches, constructed as approved
by the cabinet, shall be placed to control all runoff from the
mineral operation before the work begins. These
structures shall be located as near as possible to the
disturbed area, and out of perennial streams unless
approved by the cabinet.
(d) Any water accumulating on a bench or similar
area where the drainage is off the mineral operation shall
be pumped or siphoned into sediment control structures.
(e) The moving of overburden to release accumulated
water shall be prohibited unless a drainway can be
constructed with the approval of the cabinet.
(3) If the mineral operation produces a highwall, at
least one (1) suitable access shall be provided to lands
above the highwall within each four thousand (4,000) feet
of distance along the highwall. In addition, access shall be
provided as necessary so no landowner is prevented
access to his property.
(4) Spoil or overburden removed shall be placed,
graded, and stabilized so that soil erosion, surface
disturbance, and stream sedimentation will be minimized.
(5) All grading shall be kept current and shall be
completed before equipment pertinent to the mineral
operation is moved from the site unless approved, in
writing, by the cabinet's inspector.
(6) If conditions develop in the mineral operation so
that the approved reclamation plan and backfilling and
grading plan cannot be carried out as planned,
modifications of the plan shall be submitted by the mineral
operator to the cabinet for approval.
Section 2. Waste materials.
(1) The conduct of mining and the handling of refuse
and other mining wastes shall be done in such a way as to
405 KAR 5:060-1
reduce adverse effects in the area and to protect the public
and adjoining landowners from damage to their lands, to
streams, and to other property.
(2) Upon final abandonment, all buildings, structures,
metal, lumber, and other refuse resulting from the mineral
operation shall be removed or buried.
(3) Spoil,.. overburden, refuse, or any other mining
waste shall not be placed on a previous or potential slide
area. The placement of the material shall be subject to
approval by the cabinet.
(4) Unless specifically authorized by the cabinet by a
permit from the Division of Waste Management, household
wastes or other wastes, generated off site, shall not be
placed within the pit area or within the permit boundary of
a mineral operation.
Section 3. Acid-forming or toxic-forming materials.
(1) All acid or toxic-forming material shall be buried
with not less than four (4) feet of clean fill as cover.
(2) Measures shall be taken to. prevent stream and
soil pollution, such as placement of acid or toxic-forming
materials outside of natural drainways.
(3) The mineral permittee shall conduct testing of
materials as directed by the cabinet.
Section 4. Topsoil handling.
(1) General requirements.
(a) If practicable, all topsoil or subsoil to be saved for
redistribution, specified under subsection. (2) of this
section, shall be removed as a separate layer or layers
from the area to be disturbed and shall be segregated from
other materials.
(b) If practicable, after removal, these materials shall
be redistributed immediately to backfill areas, or otherwise
stockpiled.
(c) After red!stribution, if the topsoil becomes
encrusted and hard, it shall be scarified prior to seeding,
(2) Soil removal. For areas where topsoil is to be
removed and saved as a plant growth medium:
(a) Vegetative cover that would interfere with the
salvage or use of the topsoil shall be cleared. Herbaceous
vegetation and other small plant forms which will add to the
organic constituency of the topsoil, but do not interfere with
topsoil salvaging, may be retained along with the topsoil.
(b) All the topsoil present in the area to be disturbed
shall be removed and segregated for redistribution.
1. If less than six (6) inches of topsoil is present,
then at least the upper six (6) inches of soil shall be
removed and segregated for redistribution, except where
less than six (6) inches of soil is present.
2. Where less than six (6) inches of soil is present,
whatever soil and subsoil is available, at the area to be
disturbed, shall be removed and segregated for
redistribution.
(3) Soil storage.
(a) Soil materials removed pursuant to subsection (2)
shall be stockpiled only if it is impractical to promptly
redistribute the materials on regraded areas.
(b) Stockpiled soil shall be selectively. placed on
stable areas, outside of water drainways and shall:
1. Be protected from wind and water erosion through
the seeding of quick cover grasses or legumes and
application of mulch;
2. Be seeded with perennial grasses and legumes if
the soil is to be stockpiled for more than two (2) years; and
3. Be protected from unnecessary compaction.
(4) Soil amendments.
(a) Lime shall be applied to redistributed topsoil in an
Effective Date: February 22, 1995
amount to obtain a buffer pH of 6.4.
(b) Adequate fertilizer shall be applied to redistributed
topsoil. At a minimum, one hundred (100) pounds of
nitrogen (N) and one hundred (100) pounds of phosphate
(P20S) shall be appned per acre.
(c) Areas where topsoil has been redistributed shall
be seeded with quick cover and permanent grasses and
legumes as soon. as possible during first normal period of
favorable planting.
(d) Suitable mulch or other soil stabilizing practices
shall be used in addition to temporary cover on all
regraded and topsoiled areas to control erosion, promote
germination of seeds, and increase the moisture retention
capacity of the soil. The cabinet may, on a case-by-case
basis, waive the requirement for mulch if the cabinet finds,
based on seasonal, soil, and slope factors, that the
temporary vegetative cover will achieve proper erosion
control until a permanent cover is established, except that
no waiver shall be granted for any area having a slope
greater than ten (10) percent.
Section s. Disposal of excess spoil.
(1) General. Excess spoil shall be placed in
designated disposal areas, within a permit area, in a
controlled manner to:
(a) Minimize the adverse effects of leachate and
surface water runoff from the fill on surface and ground
water;
(b) Ensure mass stability and prevent mass
movement during and after construction; and
(c) Ensure that the final fill is suitable for reclamation
and revegetation compatible with the natural surroundings
and the approved postmining land use.
(2) Location. Where possible, placement in pits shall
be the preferred location for disposal. Otherwise the
disposal area shall be located on the most moderately
sloping and naturally stable area available among those
upon which, in the judgment of the cabinet, spoil could be
placed in compliance with all applicable requirements of
TItle 405, Chapter 5, and shall be placed, where possible,
upon or above a natural terrace, bench, or berm if such
placement provides additional stability and prevents mass
movement.
(3) Placement in pits. On' a case-by-case basis, the
cabinet may waive all or part of the requirements of
subsections {4} through (7) of this subsection where spoil is
placed in pits where there is no potential for mass
movement or substantial erosion.
(4) Design certification.
{a} The fill and appurtenant structures shall be
designed using current, prudent engineering practices by a
qualified, registered professional engineer experienced in
the design of earth and rock fills who shall certify the
design of the fill and appurtenant structures.
(b) The fill shall be designed and constructed to attain
a minimum long-term slatic safety factor of 1.5. The
foundation and abutments of the fill and all other features
shall be sufficient to ensure stability of the fill and
appurtenant structures under all stages and conditions of
construction.
(5) Stability.
(a) Stability analyses shall be performed by a
qualified, registered professional engineer. Parameters
used in the stability analyses shall be based upon
adequate investigations of foundation and fill material, as
approved by the cabinet, including field reconnaissance;
subsurface investigations; and data obtained from
laboratory analyses of the materials or, if approved by the
cabinet, data obtained from other sources that yield results
which ensure compliance with the applicable stability
requirements of this administrative regulation. The
analyses of foundation conditions shall take into
consideration the effect of underground mine workings, if
any exist in the area, upon the stability of the fill and
appurtenant structures.
(b) If the toe of the fill rests on an area which has a
natural land slope in excess of 2.8h:1v {thirty-six (36)
percent} or a lesser slope as may be designated by the
cabinet based on local conditions, keyway cuts
(excavations to stable bedrock), rock toe buttresses, or a
combination of these shall be constructed to ensure
stability of the fill.
(6) Placement of excess spoil.
(a) Vegetative and organic materials shall be
removed, either progressively or in a single set of
operations, from the disposal area prior to placement of the
excess spoil. Topsoil shall be removed, segregated, and
stored and redistributed in accordance with Section 4 of
this administrative regulation. If approved by the cabinet,
vegetative material may be used as mulch or may be
included in the topsoil to control erosion, promote growth of
vegetation, or increase the moisture retention of the soil.
(b) Excess spoil shall be transported and placed in a
controlled manner in horizontal lifts of a thickness
approved by the cabinet; concurrently compacted as
necessary to ensure mass stability and to prevent mass
movement during and after construction; graded so that
surface and subsurface drainage is compatible with the
natural surroundings; and covered with topsoil or substitute
material.
(c)1. The final configuration of the fill shall be suitable
for the approved postmining land use.
2. The top of the fill shall be graded no steeper than
20h:1 v (five {5} percent) toward properly designed
drainage channels in natural ground along the periphery of
the fill. Surface runoff from the top surface of the fill shall
not be allowed to flow over the outslope of the fill. The
outslope of the fill shall not exceed 2h:1v (fifty (50)
percent) or a lesser slope as may be required by the
cabinet to ensure stability or minimize erosion.
3. Terraces may be constructed on the outslope of
the fill. Terrace benches shall be graded with a three (3) to
ten (10) percent slope toward the fill. The outslope
between terrace benches shall not exceed 2h:1v (fifty (50)
percent) or a lesser slope as may be required by the
cabinet to ensure stability or minimize erosion. Runoff
shall be collected by a ditch along the intersection of each
terrace bench and the outslope. This ditch shall route
runoff to stabilized diversion channels and shall have a
maximum slope that is no greater than 20h:1v (five (5)
percent) unless a steeper slope is necessary for permanent
roads in conjunction with an approved postmining larid use
and a steeper slope will not adversely affect the stability of
the fill or result in excessive erosion.
(d) Impoundments shall not be allowed on the fill.
(7) Drainage control.
(a) The fill design shall include diversions and
underdrains as necessary to control erosion, minimize
water infiltration into the fill, and ensure stability except the
cabinet may waive underdrain requirements for fills that are
not hollowfills if it is demonstrated to the cabinet's
satisfaction in the application that underdrains are not
necessary because the disposal area does not contain any
springs, man-made or natural drainways, or wet-weather
seeps and because seepage of water due to precipitation
will not adversely affect the stability of the fill. In no case
405 KAR 5:060 - 2
Effective Date: February 22, 1995
shall surface runoff from above the fill be diverted through
or under the fill.
(b) Surface water runoff from the area above the fill
shall be diverted away from the fill and into stabilized
diversion channels. Surface runoff from the fill surface
shall be diverted to stabilized channels off the fill.
Diversions associated with excess spoil fills and
appurtenant structures shall be designed and maintained to
safely pass the peak runoff from a ten (10) year,
twenty-four (24) hour precipitation event, except that
diversions associated with hollowfills and where flow from
an intermittent or perennial stream is diverted the design
event shall be the 100 year, twenty-four (24) hour
precipitation event.
(c) Underdrains shall be constructed of durable,
nonacid-forming, and nontoxic-forming rock; shall be free
of coal, clay, and nondurable material; and shall be
designed and constructed using current, prudent
engineering practices. The underdrain system shall be
protected from piping and contamination bya filter system
designed and constructed to ensure proper long-term
functioning of the underdrain using current, prudent
engineering practices. For hollowfills a subdrainage
system for the fill shall be constructed in accordance with
the following:
1. Be installed along the natural drainways;
2. Extend from the toe to the head of the fill; and
3. Contain lateral drains to each area of potential
drainage or seepage.
(d) The cabinet may approve diversions. located on fill
material where necessary due to topography and
configuration of the fill, if the cabinet determines that there
will be no adverse impacts to the excess spoil fill, the
public health and safety, and the environment.
(8) Surface area stabilization. During and after
construction of the fill and appurtenant structures, slope
protection shall be provided to minimize surface erosion at
the site of excess spoil disposal and at the locations of
appurtenant structures. All disturbed areas, including
diversion channels that are not riprapped or otherwise
protected, shall be revegetated upon completion of
construction.
Section 6. Additional performance standards for
minerai operations on slopes of more than twenty (20)
degrees.
(1) The mineral permittee shall prevent the following
materials from being placed or allowed to remain on the
downslope:
(a) Spoil;
(b) Waste materials, including waste mineral matter;
(c) Debris, including that from clearing and grubbing
of haul road construction; and
(d) Abandoned or disabled equipment.
(2) Nothing in this section shall prohibit the placement
of material in road embankments located on the
downslope, so long as the material used and embankment
design comply with the requirements for roads and other
transportation facilities in Title 405 Chapter 5 and the
material is moved and placed in a controlled manner.
(3) Woody materials shall not be buried in the
backfilled area unless the cabinet determines that the
proposed method for placing woody material within the
backfill will not deteriorate the stable condition of the
backfilled area. Woody materials may be chipped and
distributed over the surface of the backfill as mulch, if
special provision is made for their use and approved by the
cabinet.
(7) Unlined or unprotected drainage channels shall
not be constructed on backfills unless approved by the
cabinet as stable and not subject to erosion.
lP
405 KAR 5:060 - 3
Effective Date: February 22, 1995
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:065. Premlnlng and postmlnlng land use.
RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth provisions concerning
land use decisions for noncoal mineral operations.
Section 1. General. All areas within the permit
boundary to be reclaimed shall be restored:
(1) To conditions capable of supporting the uses
which those areas supported prior to the mineral operation;
or
(2) To conditions capable of supporting a reasonable,
alternative land use, as approved by the cabinet under
section (2) of this administrative regulation.
Section 2. Land use selection.
(1) The following is a list of land use categories to be
applied under this administrative regulation. These land
uses are defined under 405 KAR 5:001, as is the definition
of land use:
(a) Cropland;
(b) Fish and wildlife;
(c) Forest land;
(d) IndustriaVcommercial;
(e) Pastureland; .
(f) Recreation; and
(g) . Residential.
(h) Permanent Water Impoundment
(2) The premining land use selection, required under
405 KAR 5:030, shall be derived from the list of land uses
established under subsection (1) of this section.
(3) The postrnining land use selection, required under
405 KAR 5:030, shall be derived from the list of land uses
established under subsection (1) of this section. The
premining land use shall be strongly considered and be
given the highest priority for the postmining land use
selection.
(4) A land use for fish and wildlife shall be
characterized by an intermixed combination of habitat
types or vegetative types, such as a mix of forest land or
woodlots, shrub/scrub areas, grass/legume areas, and
wetland or open water areas, arranged in a manner as to
maximize edge effect. In addition, the following
specifications shall apply to a postmining land use
selection for fish and wildlife:
(a) At least thirty (30) percent of the revegetated area
shall be planted with trees and shrubs. The plantings may
be arranged in clumps, blocks, or strips intermingled within
open grassllegume areas.
(b) Plant species which provide special benefit as
food or cover for wildlife shall be a central criteria for
selection of plant species for revegetation.
(5) Various wildlife enhancement features and
techniques may be allowed, if approved by the cabinet, for
the fish and wildlife postmining land use, as well as the
other land uses, such as:
(a) Brush piles, not to exceed an aerial coverage of
twenty eight hundred (2800) square feet;
(b) Windrowed brush;
(c) Rock piles, not to exceed an aerial coverage of
three hundred (3oo) square feet;
(d) Permanent impoundments and other open water
areas;
(e) Food plots of small grains or similar crops; and
(f) Bird houses or similar structures.
lP
405 KAR 5:065 - 1
Effective Date: February 22, 1995
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:070. RevegetatIon.
RELATES TO: KRS 350.010(2),350.240,350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028,350.029,350240,350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth provisions for the
reestablishment of vegetation on noncoal mineral
operations.
Section 1. General.
(1) Each mineral permittee shall establish on all lands
disturbed during the course of the mineral operation, a
condition which will result in a permanent vegetative cover,
effective in controlling erosion, and which supports the
approved postmining land use.
(2) Plant species for revegetation shall be selected on
the basis of:
(a) Their ability to achieve the approved postmining
land use;
(b) Their ability to control erosion, both in the short
term and in the future, but which will allow for plant
succession for areas to be returned to forest land or fish
and wildlife habitat;
(c) Their ability to promote soil rebuilding; and
(d) Their benefit to wildlife.
(3) Regraded areas shall be seeded or planted as
soon as possible; however, the seeding or planting shall be
conducted during the appropriate time of year for the plant
materials selected in accordance with accepted agricultural
or reforestation practices.
(4) Experimental seeding or stocking of trees or
shrubs, not typically used, may be allowed if no more than
twenty (20) percent of the permit area is seeded or planted
with these species; except that, any species used shall
meet the requirements of subsection (1) of this section,
shall not be in violation of applicable state and federal
introduced species statutes, and are not considered
poisonous or noxious.
(5) Roads shall be seeded to legumes and perennial
grasses only, unless the cabinet determines that the
roadway will not contribute to significant off site damage to
the public, the environment, or adjacent property owners if
left unreclaimed.
(6) If conditions warrant, the cabinet may allow
exceptions to this administrative regulation, if the
exceptions are consistent with Title 405, Chapter 5.
SectIon 2. Soli stabilizatIon and amendments.
Liming, fertilization, mulching and related practices shall be
conducted in accordance with 405 KAR 5:060 section 4. If
there is a problem in reestablishing vegetation, soil tests
shall be performed to determine necessary remedial
measures.
SectIon 3. Revegetation success.
(1) Success of revegetation shall primarily be
determined on the basis of ground cover, and if applicable,
tree and shrub stocking.
405 KAR 5:070 - 1
(2) Ground cover.
(a) For establishing ground cover for the various
postmining land uses, at least four (4) grass and legume
species shall be seeded, one (1) of which may be a quick
cover species. At least one (1) permanent legume species,
. in addition to two (2) or more permanent grasses, shall be
required for the pasture land postmining land use.
(b) At least one (1) quick cover grass or legume
species shall be seeded. However, annual grasses and
small grains shall be considered only as a tool in
establishing temporary vegetative cover for restoration,
and shall not be included in the evaluation of revegetation
success.
(c) Ground cover shall be at least ninety (90) percent
for areas where the postmining land use is pastureland, or
where the area will be seeded to grasses and legumes
under the cropland land use.
(d) Ground cover shall be at least eighty (80) percent
for all other postmining land uses.
(e) For the selection of ground cover species, the
mineral permittee shall consider, but not necessarily be
limited to, the seeding mixtures listed in Appendix A of this
administrative regulation.
(3) Tree and shrub stocking.
(a) For areas to be reforested, at least three hundred
(300) trees or shrubs shall be present per acre, including
volunteers, during the success evaluation required under
section 4 of this administrative regulation; except, where a
greater stocking rate is required for shrubplantings for
wildlife pursuant to paragraph (d) of this subsection. A
lesser stocking rate may be approved by the cabinet if the
tree or shrub planting is only for cosmetic purposes or for
similar reasons.
(b) At least four (4) species of trees or shrubs shall be
stocked for areas to be reforested with each of the four (4)
principal species c~mprising at least ten (10) percent of the
total stocking, of which none shall exceed fifty (50) percent
of the total stocking. A lesser diversity may be approved
by the cabinet if tree or shrub planting is only for cosmetic
purposes or for similar reasons. Only one (1) species of
tree is required if a commercial pine plantation is
established.
(c) Of the four (4) or more species referenced in
paragraph (3)(b), at least one (1) conifer species and at
least one (1) hardwood or mast producing species shall be
selected for the forest land and fish and wildlife land uses.
For forestland, at least fifty (50) percent of the woody
plants shall be trees.
(d) For areas within the permit boundary where
shrubs, and no trees, are stocked for wildlife a stocking
rate of six hundred (600) stems per acre shall be required.
(e) If used, black locust (Robina psuedoacacia) shall
not exceed twenty five (25) percent of the woody plant
mixture; and European black alder (Alnus glutinosa) shall
not exceed fifty (50) percent of the total woody plant
mixture.
(1) Black locust seed shall be scarified, except if used
in fall and spring seeding.
(g) All trees and shrubs counted for success shall be
alive and healthy.
(h) Only canopy forming trees shall be stocked for a
postmining land use of forest land.
(i) Tree and shrub stocking for wildlife may include
border plantings, clump plantings, or strip plantings.
(j) For areas to be reforested, the use of competitive
ground cover species such as KY 31 tall fescue (Festuca
arundinaria), crown vetch (Coronilla varia), alfalfa (Medigo
spp.), and the nonprostate, highway variety of sericea
Effective Date: February 22, 1995
lespedeza (Lespedeza cuneata) shall be limited.
(k) The area above the highwall on any water
impoundment shall be planted with trees in order to provide
a protective barrier and screen.
(I) On very stony areas that cannot be hand planted
without difficulty, direct seeding of woody species will be
permitted; otherwise, woody species shall be hand planted,
except for black locust.
(4) The cabinet may approve a seeding mixture other
than those established in Appendix A of this administrative
regulation if the mineral permittee submits adequate
justification to the cabinet.
(5) Bare areas within the revegetated area shall not
exceed one-fourth (.25) acre in size.
(6) Where a seam or stratum of solid rock at the
surface makes revegetation impractical, none shall be
required.
Section 4. Inspection and reporting procedures.
(1) When planting is completed a planting report shall
be filed with the cabinet. The olVision's planting report
form shall be used for compiling this information.
(2) Inspection and evaluation for vegetation success
shall be made during appropriate seasons in order to
determine if satisfactory vegetation has been established.
In no instance shall this inspection be made until after the
completion of two (2) growing seasons. The appropriate
report forms shall be used for compiling this information.
(3) The following form is hereby incorporated by
reference: Noncoal Planting Report, NCR-18, March, 1990.
(4) This form may be reviewed or obtained at the
Department for Surface Mining Reclamation and
Enforcement, #2 Hudson Hollow, Frankfort, Kentucky
40601, Monday through Friday, 8:00 a.m. to 4:30 p.m.
405 KAR 5:070 - 2
Effective Date: February 22, 1995
APPENDIX A OF 405 KAR 5:070
RECOMMENDED HERBACEOUS MIXTURES FOR REVEGETATION
Note: A species enclosed in parenthesis may be substituted for the species to the left. Its seeding rate is enclosed in
parenthesIs.
Species Mixture
Seeding Rate
(Pounds/acre PLS)
Spring - February 15 to May 15
1. Orchardgrass
White or Ladino clover
Red clover
2. Orchardgrass
White or Ladino clover
Red clover
Korean or Kobe lespedeza or mix of these
3. Orchardgrass
Birdsfoot trefoil (Alfalfa)
Red clover
10
2
6
10
1
4
10
10
8 (15)
6
25 (32)
10
10
5
5
6
4. Wheat (Spring oats)
Switchgrass
Indiangrass
Big bluestem
Little bluestem
Birdsfoot trefoil
Except for mixture 4, add one of the following quick cover species to the selected permanent spring seeding mixture:
Wheat (before April 15)
Spring oats (before April 15)
Balbo rye (before April 15)
Perennial ryegrass
Annual ryegrass
Weeping lovegrass (after April 1 )
30
32
30
10
5
2
Summer - May 15 to August 1
Orchardgrass
Korean or Kobe lespedeza or mix of these
Red clover
White clover (Birdsfoot trefoil)
Alfalfa
10
15
4
1 (6)
12
Add one of the following quick cover species to the permanent summer seeding mixture:
Sorghum
Foxtail (German) millet
Japanese millet
Soybeans
Cowpeas
Pearl millet
20
12
15
40
40
10
405 KAR 5:070 - 3
Effective Date: February 22, 1995
Species Mixture
Seeding Rate
(Pounds/acre PlS)
Fall - August 1 to October 1
3.
Deertongue
Birdsfoot trefoil
Red clover
10
2
6
10
15 (8)
6
12
8
6
1.
Orchardgrass
White or ladino clover
Red clover
OrchardgraSs
Alfalfa (Birdsfoot trefoil)
Red clover
2.
Add one of the following quick cover species to the selected permanent fall seeding mixture:
Winter wheat 30
Balbo rye or Winter rye 30
Winter oats 32
Perennial rye grass 10
Annual ryegrass 5
Mixtures for Wet or Poorly Drained Areas and Pond Borders
Spring - February 15 to May 15
Japanese millet
Redtop (Reed canarygrass)
Alsike clover
Common annuallespedeza (quick cover species)
10 .
3 (15)
4
10
Fall - August 1 to October 1
Redtop
Reed canarygrass
Alsike clover
Common annuallespedeza (quick cover species)
3
15
6
10
Mixture for Areas to be Stocked With Woody Plants
Spring or Fall Seeding
Redtop
Perennial ryegrass
Birdsfoot trefoil (Appalow lespedeza)
Foxtail millet (quick cover species)
If both Appalow lespedeza and birdsfoot trefoil are used, cut their seeding rates in half.
3
5
10 (20)
5
Note: Seeding Rates are for Pure live Seed. Seeding rates of the permanent species can be increased if desired, but do
. not exceed the seeding rate of the temporary species.
Use only one of the temporary species at the rates shown. If more than one are used, reduce the seeding rates of
each temporary species appropriately.
lP
405 KAR 5:070 - 4
Effective Date: February 22, 1995
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:075. Contemporaneous Reclamation.
RELATES TO: KRS 350.010(2), 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth performance standards
for timing of reclamation.
Section 1. Contemporaneous Reclamation.
(1) On lands where the method of mineral operation
produce a bench or where the surface mining is done on
the contour, grading shall be kept current with the removal
of the mineral, which shall mean within ninety (90) days
following the mineral removal. Where special conditions
warrant, these requirements may be modified by the
cabinet.
(2) On lands where the method of mineral operation
is of the quarry type that produces a deep pit, the final
reclamation of the site shall follow completion of mining
within one hundred eighty (180) days.
(3) On lands where the method of mineral operation
is of the underground type, the final reclamation of the site
shall follow completion of mining within one hundred eighty
(180) days.
(1) The following form is hereby incorporated by
reference: Request for Noncoal Reclamation Deferral,
NCR-15, March, 1990.
(2) This form may be reviewed or obtained at the
Department for Surface Mining Reclamation and
Enforcement, #2 Hudson Hollow, Frankfort, Kentucky
40601, Monday through Friday, 8:00 a.m. to 4:30 p.m.
LP
405 KAR 5:075 - 1
Effective Date: February 22, 1995
"
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:080. Reclamation bond.
RELATES TO: KRS 350.010(2}, 350.240, 350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028,350.029,350240,350.300
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth provisions concerning
when bond is required, bond amount and how it is to be
paid, and bond forfeiture for noncoal mineral operations.
Section 1. Applicability. No reclamation bond shall
be required except if the Cabinet:
(1) Rnds the mineral operation to be temporary; or
(2) Rnds that.the applicant previously has not had a
mineral operation in the Commonwealth of Kentucky with a
compliance record acceptable to the cabinet
Section 2. Bond amount.
(1) If a reclamation bond is required, pursuant to
section 1 of this administrative regulation, the mineral
operator shall file, with the cabinet, a bond payable to the
Commonwealth of Kentucky with surety satisfactory to the
cabinet in the penal sum of not less than one hundred
($100.00) dollars, nor more than fIVe hundred ($5oo.00)
dollars for each acre or fraction thereof, with a minimum
bond of two thousand ($2,000.00) dollars, for the permitted
area.
(2) A mineral permittee may request reduction of the
required reclamation bond amount at any time if the
mineral permittee's method of mineral operation or other
circumstances will reduce the maximum estimated cost to
the cabinet to complete the reclamation responsibilities and
if the mineral operation complies with all applicable
statutes and administrative regulations and the permit plan.
Section 3. Type of payment.
(1) Reclamation bond shall be either a surety bond or
a cash bond which may include:
(a) Certificates of deposit;
(b) Letters of credit;
(c) Acceptable escrow accounts; or
(d) A combination of these bonding methods.
(2) If a surety bond is filed, it must be accompanied
by a Power of Attorney affidavit allowing the surety to act
on behalf of the mineral permittee with respect to
reclamation.
Section 4. Bond forfeiture.
(1) The cabinet shall have the authority to forfeit a
bond if the mineral operation is not conducted in
accordance with the statutes, administrative regulations,
and the permit plan as approved by the cabinet.
(2)(a)The entire bond may be forfeited and deposited in
an appropriate account for use in the payment of all costs
associated with the reclamation and restoration of the
permit area to which the forfeited bond applies.
(b) If forfeiture of the bond is required, the cabinet
shall send written notification by certified mail, return
receipt requested, to the mineral permittee and the surety
holding the bond of the cabinet's decision. This notification
shall:
1 . Explain the reasons for the forfeiture;
2. Indicate the amount to be forfeited; and
3. Advise the mineral permittee and those
responsible for the bond of their right to a hearing.
Section 5. Bonding forms.
(1) The following forms are hereby incorporated by
reference :
(a) Noncoal Performance Bond, NCR-9, February,
1992.
(b) Letter of Credit, NCR-10, March, 1990.
(c) Escrow Agreement, NCR-11, March, 1990.
(d) Requestfor Bond Release, NCR-12, March, 1990.
(2) These forms may be reviewed or obtained at the
Department for Surface Mining Reclamation and
Enforcement, #2 Hudson Hollow, Frankfort, Kentucky
40601, Monday through Friday, 8:00 a.m. to 4:30 p.m.
LP
405 KAR 5:080 - 1
Effective Date: February 22, 1995
l' (
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:085. Enforcement.
RELATES TO: KRS 350.010(2), 350.130, 350.240,
350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028,350.029, 350240, 350.300, 350.990
NECESSITY AND FUNCTION: KRS Chapter 350 in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth provisions governing
the issuance of the various notices and orders to be issued
by authorized representatives of the cabinet. The
administrative regulation directs that there be issued a
notice of noncompliance and order for remedial measures
if there is a violation. The administrative regulation
requires that an order for cessation and immediate
compliance be issued for failure to abate a violation during
a specified abatement period or for situations of an
imminent danger to the health or safety of the public or
significant, imminent environmental harm to land, air, or
water resources. The administrative regulation sets forth
the general form of the notices and orders and authority to
vacate, modify, or terminate the orders or notices.
Section 1. General.
(1) The secretary of the cabinet may from time to time
or for a definite period designate, by written order or by
other means appropriate under the circumstances,
authorized representatives to perform duties pursuant to
the administrative regulations contained in Title 405,
Chapter 5.
(2) Unless the secretary has made a written order
contrary to the terms of this subsection, personnel
authorized by the Commissioner of the Department for
Surface Mining Reclamation and Enforcement are deemed
the authorized representatives of the cabinet for the
purposes of this administrative regulation.
Section 2. Inspections.
(1) General. In accordance with the provisions of this
chapter, the cabinet shall conduct or cause to be
conducted such inspections, studies, investigations or other
determinations as it deems reasonable and necessary to
obtain information and evidence which will ensure that
mineral operations are conducted in accordance with the
provisions of all applicable statutes and . administrative
regulations, and all terms and conditions of the permit.
(2) Right of entry and access. Authorized employees
of the cabinet shall have unrestricted right of entry to all
parts of the mineral operation for any purpose associated
with their proper duties pursuant to this chapter, including
but not limited to, making inspections, and delivering
documents or information of any kind to persons
associated with the mineral operation.
(3) Timing and frequency of inspections.
(a) The cabinet shall conduct periodic inspections of
all mineral operations.
(b) Inspections shan ordinarily be conducted at
irregular and unscheduled times during normal workdays,
but may be conducted at night or on weekends or holidays
when the cabinet deems these inspections necessary to
properly monitor compliance with all applicable laws and
administrative regulations.
(c) The cabinet shall have no obligation to give prior
notice that an inspection will be conducted or to obtain a
warrant.
(4) Citizens request for inspections.
(a) Any citizen may request that the cabinet conduct
an inspection by furnishing to the cabinet, a signed, written
statement, or an oral report followed by a signed written
statement, giving the cabinet reason to believe that a
violation, condition, or practice in violation of KRS Chapter
350, administrative regulations promulgated pursuant
thereto, or permit conditions exists, and setting forth a
telephone number and address at which the person can be
contacted.
(b) The identity of any person supplying information to
the cabinet relating to. a possible violation or imminent
danger or harm shall remain confidential with the cabinet if
requested by that person, unless disclosure is required by
law.
(c) Within a reasonable time, the cabinet shall send to
the person the following:
1 . If no inspection was conducted, an explanation of
the reasons why no inspection was conducted;
2. If an inspection was conducted, a description of
the enforcement action taken, if any, or an explanation of
why no enforcement action was taken.
Section 3. Notl~ of noncompliance and order for
remedial measures.
(1) Any authorized representative of the cabinet shan
issue a notice of noncompliance and order for remedial
measures if, on the basis of an inspection, he finds a
violation of KRS Chapter 350, 405 KAR Chapter 5, any
permit condition, or any other applicable requirement.
(2) A notice of noncompliance and order for remedial
measures issued pursuant to this section shall be in writing
and shall be signed by the authorized employee who
issued it. The notice shall contain- the following information:
(a) The nature of the violations;
(b) The remedial measures required, if any, which
may include accomplishment of interim steps, if
appropriate;
(c) A reasonable time table for remedial action, if any,
which may include a time table for accomplishment of
interim steps, if appropriate and
(d) An adequate description of the portion of the
mineral operation to which the notice applies.
(3) An authorized employee may modify an order for
remedial measures for good causes.
(4) Extensions and modifications of notices for
remedial action. An authorized employee may extend the
time set for remedial action or for accomplishment of an
interim step, if the failure to meet the time previously set
was not caused by lack of diligence on the part of the
person to whom the notice of noncompliance and order for
remedial measures was issued.
(a) The total time for remedial action under the notice,
including all extensions, shall not exceed ninety (90) days
from the date of issuance of the notice except upon a
showing by the mineral permittee that it is not feasible to
abate the violation within ninety (90) calendar days due to
one or more of the circumstances set forth in paragraph (b)
of this subsection. An abatement period exceeding ninety
(90) days pursuant to this subsection shall not be granted
for situations in which the mineral permittee's failure to
abate within ninety (90) days has been caused by a lack of
diligence or intentional delay by the mineral permittee in
405 KAR 5:085 - 1
Effective Date: February 22, 1995
completing the remedial action required.
(b) The following circumstances may qualify mineral
operations for an abatement period of more than ninety
(90) days:
1. The mineral permittee of the ongoing mineral
operation has timely applied for and diligently pursued a
permit renewal or other necessary approval of designs or
plans, but the permit or approval, for reasons not within the
control of the mineral permittee, has not been and will not
be issued prior to 90 days after the valid permit or approval
expires or is required;
2. There is a valid judicial order precluding
abatement within ninety (90) days to which the mineral
permittee has diligently pursued all rights of appeal and to
which he has no other effective legal remedy;
3. The mineral permjttee cannot abate within ninety
(90) days due to a labor strike; or
4. Weather conditions preclude abatement within
ninety (90) days; due to weather conditions abatement
within ninety (90) days would clearly cause more
environmental harm than it would prevent; or abatement
within ninety (90) days requires action that would violate
safety standards established by statute or regulation under
the Mine Safety and Health Act.
(c) If an abatement period in excess of ninety (90)
days is approved by the cabinet, interim abatement
measures shall be imposed to the extent necessary to
minimize harm to the public and the environment.
(d) If any of the conditions in paragraph (b) of this
subsection exist, the mineral permittee may request the
authorized representative of the cabinet to grant an
abatement period exceeding ninety (90) days. The
authorized representative of the cabinet shall not grant
such an abatement period without the approval of the
Director of the Division of Field Services or his designee,
and the abatement period granted shall not exceed the
shortest possible time necessary to abate the violation.
The mineral permittee shall have the burden of establishing
by clear and convincing proof that he is entitled to an
extension under the provisions of this subsection. In
determining whether or not to grant an abatement period
exceeding ninety (90) days, the authorized representative
of the cabinet may consider relevant written or oral
information from the mineral permittee and other sources.
The authorized representative of the cabinet shall promptly
and fully document in the applicable file his
recommendation for granting or denying the request and
the reasons therefor. The authorized- representative's
immediate supervisor shall review this document before
approving or disapproving the extended abatement period
and shall promptly and fully document the reasons for his
approval or disapproval In the applicable file.
(e) A determination made under paragraph (d) of this
subsection shall be in writing and shaD be subject to
administrative and judicial review pursuant to 405 KAR
5:095.
(f) No extension grarited under this subsection may
exceed ninety (90) days in length. For situations in which
the condition or circumstance that prevented abatement
within ninety (90) days exists at the expiration of the
extension, the mineral permittee may request a further
extension in accordance with the procedures of this
subsection.
(5) Based upon the written recommendation of
authorized representative of the cabinet who issued the
notice or noncompliance and order for remedial measures,
the director of the Division of Field Services may vacate a
notice of noncompliance and order for remedial measures
determined to be issued in error.
Section 4. Order for cessation and Immediate
compliance.
(1) Issuance.
(a) If the person to whom a notice of noncompliancx
and order for remedial measures has been issued fails to
comply with the terms of the notice within the time for
remedial action established in the notice or as
subsequently extended, an authorized representative of the
cabinet shall immediately issue to the person an order for
cessation and immediate compliance.
(b) An authorized representative of the cabinet shall
immediately issue an order for cessation and immediate
compliance if he finds, on the basis of an inspection, any
condition or practice; any violation of KRS Chapter 350;
any violation of Title 405, Chapter 5; or any violation ofa
term or condition of the applicable permit which:
1. Creates an imminent danger to the health or
safety of the public; or
2. Is causing or can reasonably be expected to
cause significant, imminent environmental harm to land,
air, or water resources.
(c) An authorized representative of the cabinet shall
immediately issue an order for cessation and immediate
compliance if he finds, on the basis of an inspection, that
mineral operations are being conducted by a person
without a valid mineral operations permit for the activities in
accordance with this chapter.
(2) Form and content.
(a) An order for cessation and immediate compliance
shall be in writing and shall be signed by the authorized
representative of the cabinet who issued it. The order shall
set forth with reasonable specificity:
1. The nature of the violation;
2. A reasonable description of the portions of tht.
mineral operations to which it applies;
3. The remedial measures, if any, necessary to
abate the violation in the most expeditious manner
possible; and
4. The time established for abatement, if
appropriate, including the time for complying with any
interim steps.
(b) At the same time that the authorized
representative of the cabinet issues an order for cessation
and immediate compliance pursuant to subsection (1 )(b) or
(c) of this section, he shall also issue a notice of
noncompliance and order for remedial measures.
(3) Effect.
(a) The order for cessation and immediate
compliance shall require the cessation of all mineral
operations or the portions or operations thereof relevant to
the condition, practice, or violation covered by the order.
The order shall require the person to whom it is issued to
take any affirmative steps which the authorized
representative of the cabinet deems necessary to abate the
condition, practice, or violation in the most expeditious
. manner possible. The order may require the use of
existing or additional personnel and equipment. -
(b) The order shall remain in effect until the condition,
practice, or violation has been abated; until the order is
vacated, modified, or terminated in writing pursuant to
subsection (4) of this section; or until it is vacated,
modified, or terminated by a hearing officer.
(c) Reclamation operations and other activitier
intended to protect public health and safety and th
environment shall continue during the period of any order
unless the order states that the reclamation operations and
405 KAR 5:085 - 2
Effective Date: February 22, 1995
, '
other activities shall cease.
(4) Modification, extension, vacation, and termination.
(a) An authorized representative of the cabinet may,
by written notice, modify or terminate an order for
cessation and immediate compliance issued under this
section for good cause and may extend the time for
abatement if the failure to abate within the time previously
set was not caused by lack of diligence on the part of the
person to whom it was issued.
(b) The secretary or his authorized representative
shall terminate an order for cessation and immediate
compliance, by written notice to the person to whom the
order was issued, when he determines that all conditions,
practices, and violations listed in the order have been
abated. Termination shall not affect the right of the cabinet
to assess civil penalties for those violations or to impose
any other applicable sanctions as authorized by law.
(c) Based upon the written recommendations of the
regional administrator and the authorized representative of
the cabinet who issued the order for cessation and
immediate compliance, the director of the division of field
services may vacate an order for cessation and immediate
compliance determined to have been issued in error.
(5) Within sixty (60) days after issuing an order for
cessation and immediate compliance, the cabinet shall
notify in writing a person who has been identified as
owning or controlling the mineral permittee, that the
cessation order was issued and that the person has been
identified as an owner or controller.
Section 5. Notice of Inspection of noncompliance.
(1) Issuance. If an authorized representative of the
cabinet issues a notice of noncompliance and order for
remedial measures or an order for cessation and
immediate compliance, he shall re-inspect the areas
affected by the mineral operations on or soon after the
date given in the notice or order for completion of remedial
measures. At the time of this re-inspection, the authorized
representative of the cabinet shall issue a notice of
inspection of noncompliance.
(2) Form and content. The notice of inspection of
noncompliance shall set forth whether:
(a) The remedial measures have been completed,
and the notice or order is therefore terminated;
(b) The remedial measures have not been completed,
but the notice or order is modified or extended for good
cause; or
(c) The remedial measures have not been
completed. Following such a determination, the cabinet
shall:
1. For situations in which the inspection was a
re-inspection of a notice of noncompliance and order for
remedial measures, issue an order for cessation and
immediate compliance; and
2. For situations in which the inspection was a
re-inspection of an order for cessation and immediate
compliance and if the order for cessation and immediate
compliance has not been abated, initiate an administrative
hearing for suspension or revocation of the permit or
approval, initiate an administrative hearing for bond
forfeiture, or initiate administrative hearings for other
appropriate relief.
Section 6. Service of notices and orders.
(1) Any notice of noncompliance and order for
remedial measures, any order for cessation and immediate
compliance, and any notice of inspection of noncompliance
shall be served on the person to whom it was issued or the
person's designated agent promptly after issuance.
(2) Each notice or order shall be served by hand, by
certified mail (return receipt requested), or by registered
mail to the person to whom the notice or order has been
issued or to his designated agent for service. The notice or
order shall also be served by hand to the individual who,
based upon reasonable inquiry by the authorized
representative, appears to be in charge at the site of the
mineral operations referred to in the notice or order. If no
such individual can be located at the site, a copy of the
notice or order may be tendered to any incflVidual at the
site who appears to be an employee or agent of the person
to whom the notice or order has been issued. Service,
whether by hand or by mail, shall be complete upon tender
of the notice or order and shall not be deemed. incomplete
because of refusal to accept. For mineral operations,
service by mail shall be addressed to the designated agent
for service; to the permanent address of the minerai
permittee as identified on the permit or in the application;
or, if no address is Identified for the mineral permittee in
the application, to such other address as is known to the
cabinet. If no person is present at the site of the mineral
operations, services by mail shall by itself be sufficient
notice.
(3) Designation by any person of an agent for service
of notices and orders issued pursuant to this administrative
regulation and notices of hearing issued pursuant to 405
KAR 5:085, shall be made a part of the applicable permit
application. The person shall continue as agent for service
of process until written revision of the permit is approved
which designates another person as agent.
(4) The cabinet may fumish copies of notices and
orders to any person having an interest which is or may be
adversely affected by the mineral operations and any
person having an interest in the permit.
Section 7. Penalties. The cabinet may assess
penalties pursuant to KRS 350.990.
LP
405 KAR 5:085 - 3
Effective Date: February 22, 1995
i'. "
..
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:095. Administrative hearings, Informal
settlement conferences, and general practice
provisions.
RELATES TO: KRS 350.010(2), 350.240, 350.300,
350.990,224.10-410
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350.050, 350.0301,350.240, 350.300
NECESSITY AND FUNCTION: KRS Chapter 350, in
pertinent part, requires the cabinet to promulgate
administrative regulations pertaining to noncoal mineral
operations to minimize their adverse effects on the citizens
and the environment of the Commonwealth. This
administrative regulation sets forth provisions governing
requests for administrative hearings, initiation of
administrative hearings by the cabinet, informal settlement
conferences, procedures for the conduct of administrative
hearings, service, and administrative hearings for orders to
abate and alleviate.
Section 1. Conduct of administrative hearings.
(1 )(a) Requests for an administrative hearing by persons
other. than the cabinet. Any person aggrieved by an order
or determination of the cabinet may request in writing that
an administrative hearing be conducted by the cabinet.
The request shall be filed with the Office of Administrative
Hearings in Frankfort. The request for an administrative
hearing shall include a short and plain statement identifying
the basis of the request and the order or determination
being contested. If the request for an administrative
hearing involves a notice of noncompliance, order for
cessation and. immediate compliance or proposed penalty
assessment, the request shall plainly identify the notice or
order being contested. The request shall not operate as a
stay of any order or notice. The right to demand an
administrative hearing shall be limited to a period of thirty
(30) days after the requester has had actual notice of the
action, or could reasonably have had the notice.
(b) Burden of proof. In review of notices of
noncompliance and orders for remedial measures or orders
for cessation and immediate compliance or the
modification, vacation, or termination thereof under this
section, the cabinet shall have the burden of going forward
to establish a prima facie case as to the propriety of the
notice, order, or modification, vacation, or termination
thereof. The ultimate burden of persuasion shall rest with
the petitioner. In all other cases where the administrative
hearing is requested by persons other than the cabinet, the
petitioner shall have the burden of going forward to
establish a prima facie case and the ultimate burden of
persuasion as to the requested relief.
(2) Initiation of an administrative hearing by the
cabinet.
(a) The cabinet may initiate an administrative hearing
and may seek suspension or revocation of the permit and
forfeiture of the bond if:
1. It has reason to believe that a violation of KRS
Chapter 350; KAR Title 405, Chapter 5; or a permit
condition has occurred or is occurring; or
2. A mineral permittee has failed to pay a civil
penalty assessed in a final order of the cabinet or to
undertake remedial measures mandated by a final order of
the cabinet or to abate violations it was determined to have
committed by a final order of the cabinet; or
3. The cabinet has reason to believe that additional
remedies should be sought or that an order should be
entered against any person to protect the environment or
the health and safety of the public; or
4. The criteria of 405 KAR 5:080 apply.
(b) Burden of proof. If the cabinet initiates an
administrative hearing, the cabinet shall have the ultimate
burden of persuasion. The. responding party shall have the
burden of persuasion to establish an affirmative defense.
(3) At any administrative hearing held pursuant to
subsection (1) or (2) of this section, the cabinet may seek
any combination of the following:
(a) Permit suspension or revocation;
(b) Bond forfeiture;
(c) Civil penalties;
(d) A determination, pursuant to KRS 350.060,
350.085, and 350.130, that a person or persons shall not
be eligible to receive another permit or conduct future
mineral operations;
(e) Any other relief to which it may be entitled by KRS
Chapter 224 and KRS Chapter 350.
(4) If the cabinet revokes or suspends the permit,
mining operations on the permit area shall immediately
cease, and the mineral permittee shall:
(a) If the permit is revoked, complete reclamation
within the time specified in the order; or
(b) If the permit is suspended, complete all affirmative
obligations to abate all conditions, practices, and violations
as specified in the order.
(5) Informal settlement conferences. As an
alternative to the administrative hearings provided at
subsection (1) of this section, a permittee or other person
issued a notice of noncompliance, order for cessation and
immediate compliance or proposed penalty assessment
may request an .informal conference with the director,
Division of Reid Services, by submitting a written request
for an informal conference to the office of the director. The
time for requesting an informal conference shall be limited
to a period of thirty (30) days following issuance of the
notice of noncompliance, order for cessation and
immediate compliance or proposed penalty assessment. A
request for informal conference shall not toll the time for
requesting an administrative hearing pursuant to
subsection (1).
(6) Administrative summons. Upon request pursuant
to subsection (1) of this section, or upon initiation by the
cabinet pursuant to subsection (2) of this section, the
cabinet shall schedule an administrative hearing before the
cabinet to be held not less than twenty-one (21) days after
the notice of demand for an administrative hearing, unless
the person complained against waives, in writing, the
twenty-one (21) day period. The administrative summons,
including a notice of administrative hearing, shall be served
in accordance with Section 2 of this administrative
regulation and shall include the following: a statement of
the time, place, and nature of the administrative hearing; a
statement of the legal authority for the administrative
hearing; reference to the statutes and administrative
regulations involved; and a short statement of the reason
for granting of the administrative hearing. For all
administrative hearings initiated pursuant to subsection (2)
of this section, notice shall also be mailed to any
intervenors, and shall be posted at the department's
appropriate regional office.
(7) Prior to an administrative hearing under this
administrative regulation, and upon seven (7) days' written
notice to all parties, the hearing officer may hold a
405 KAR 5:095 - 1
Effective Date: February 22, 1995
pre hearing conference to consider simplification of the
issues, consolidation of actions, admission of facts and
documents which will avoid unnecessary proof, limitation of
the number of witnesses, and other matters as will aid in
the disposition of the matter. Rnal disposition of the
matter may be made at the conference by stipulation,
settlement, agreed order, summary disposition, or default
for nonappearance. The parties may hold additional
conferences as may be proper to resolve any issue in
dispute.
(8) Any party to an administrative hearing may be
represented by counsel, make oral or written argument,
offer testimony, cross-examine witnesses, or take any
combination of these actions. The cabinet may compel the
attendance of witnesses and the production of documents
by the issuance of subpoenas. An independent hearing
officer shall preside at the administrative hearing, shall
keep order, and shall conduct the administrative hearing in
accordance with reasonable administrative practice. Oaths
and affirmations shall be administered by the hearing
officer or court reporter. The provisions of 400 KAR 1 :030
and 400 KAR 1 :040 shall apply to cases before the
cabinet, consistent with KRS Chapters 224 and 350. The
hearing officer shall permit any party to represent himself,
except a corporate party shall only be represented by an
attorney licensed to practice law in the Commonwealth of
Kentucky. The failure of a corporate party to appear by
counsel, without good cause, shall be grounds for default.
Failure to appear without good cause or failure to comply
with any pre hearing or interlocutory order of the hearing
officer shall be grounds for default.
(9) Irrelevant, immaterial, or unduly repetitious
evidence shall be excluded. If necessary to ascertain facts
not reasonably susceptible of proof under judicial rules of
evidence, evidence not admissible thereunder may be
admitted, except if precluded by statute, if it is of a type
commonly relied upon by reasonable and prudent persons
in the conduct of their affairs. Hearing officers shall give
effect to the rules of privilege recognized by law.
Objections may be made and shall be noted in the record.
Subject to these requirements, if an administrative hearing
will be expedited and the interests of the parties will not be
prejudiced substantially, any part of the evidence may be
received in written form. Documentary evidence may be
received in the form of copies or excerpts. Upon request,
parties shall be given an opportunity to compare the copy
with the original. A party may conduct cross-examinations
required for a full and true disclosure of the facts. Notice
may be taken of generally recognized technical or scientific
facts within the cabinet's specialized knowledge. Parties
shall be notified either before or during the administrative
hearing, or by reference in preliminary reports or
otherwise, of the material noticed, including any staff
memoranda or data, and they shall be afforded an
opportunity to contest the material so noticed. The
cabinet's experience, technical competence, and
specialized knowledge may be utilized in the evaluation of
the evidence.
(10) Each administrative hearing shall be recorded,
and a transcript made available on the motion of any party
or by order of the hearing officer. Unless otherwise
agreed, the party requesting the transcript shall pr~vide
payment for the original, and all others desiring copies
shall pay the cost thereof. The record of the administrative
hearing, consisting of: all pleadings, motions, and rulings;
documentary and physical evidence received or
considered; a statement of matters officially noticed;
questions and offers of proof, objections, and rulings
thereon; proposed findings and recommended orders; and
legal briefs, shall be open to public inspection and copies
thereof shall be made available to any person upon
payment of the actual cost of reproducing the original
except as provided in KRS 224. If certified by the cabine'
as a true and correct copy of the testimony, the transcript
shall constitute the official transcript of the evidence.
(11 )(a) After the administrative hearing, the he~lring
officer shall issue a determination based on the
preponderance of evidence appearing in the record as a
whole. The determination shall set forth whether, in fact,
the violation did occur. If the violation occurred, the
determination shall specify a recommended penalty and
recommended remedial or compliance actions to be taken
by the mineral permittee or the person conducting the
mineral operation.
(b) In addition to the requirements of paragraph (a) of
this subsection:
1. The hearing officer may recommend suspension
or revocation of the permit or forfeiture of the bond if the
mineral permittee has violated any provision of KRS
Chapter 350; KAR Title 405, Chapter 5; a permit condition;
or a final order, including failure to pay a civil penalty
assessed in a final order of the cabinet;
2. The hearing officer may recommend, pursuant to
KRS 350.060, 350.085, and 350.130, that a person or
persons shall not be eligible to receive another permit or
conduct future mineral operations;
3. The hearing officer may recommend that a person
or persons be required to abate, repair, alleviate, or
prevent violations of KRS Chapter 350; KAR Title 405,
Chapter 5; or a permit condition, if the violations are found
to exist on the basis of a preponderance of the evidence;
and
4. For permit determinations, the hearing officer may
recommend that a permit was issued in violation of
applicable statutory and regulatory criteria, and may
recommend suspension or revocation of the permit and
may further recommend remedial or compliance actions to
be taken by the mineral permittee.
(12) The hearing officer shall recommend the amount
of a civil penalty pursuant to KRS 350.990(1) and (2) and
the recommendation shall be based exclusively on the
record of the administrative hearing. The hearing officer
may compute the amount of the penalty to be assessed
irrespective of any computation offered by any party, and
shall state with particularity the reason, supported by the
record of the administrative hearing, for the penalty
assessed in the final written report.
(13) The hearing officer shall, within thirty (30) days of
the close of the administrative hearing record, make a
report and a recommended order to the secretary. The
report and recommended order shall contain the
appropriate findings of fact and conclusions of law. If the
secretary finds upon written request of the hearing officer
that additional time is needed, then the secretary may
grant a reasonable extension. The hearing officer shall
mail, postage prepaid, a copy of the report and
recommended order to all parties. The parties may file,
within fourteen (14) days of receipt of the hearing officer's
report and recommended order, exceptions to the report
and recommended order. There shall be. no other or
further submissions.
(14) The secretary shall consider the report and
recommended order and any exceptions filed and pass
upon the case within a reasonable time. The secreta!)
may remand the matter to the hearing officer, adopt the
report and recommended order of the hearing officer as
405 KAR 5:095 - 2
Effective Date: February 22, 1995
. .
;-
the cabinefs final order, or issue his or her own final order.
(15) The cabinet shall mail the final decision of the
cabinet to the parties. If any extension of time is granted
by the secretary for a hearing officer to complete the
report, the cabinet shall notify all parties at the time of the
granting of the extension.
(16) The secretary shall not grant an extension of time
to the hearing officer for more than thirty (30) days for any
one (1) extension, and no more than two (2) extensions
shall be granted.
(17) A final order of the cabinet shall be based on
substantial evidence appearing in the record as a whole
and shall set forth the decision of the cabinet and the facts
and law upon which the decision is based.
(18) There shall be no ex parte communications
between the parties or representatives of the parties and
the hearing officer.
(19) Any person aggrieved by a final order of the
cabinet may seek judicial review as set forth in KRS
224.10-470 (pertaining to abate and alleviate orders),
350.0305(2) and 350.032(2).
(20) Nothing herein shall prevent the cabinet from
taking appropriate action in circuit court.
Section 2. Service.
(1) Except as provided in subsections (3) and (4) of
this section, any proposed penalty assessment, notice of
administrative hearing, or other document required to be
served in accordance with this section shall be served by
one (1) of the following methods:
(a) The cabinet may place a copy of the document to
be served in an envelope, and address the envelope to the
person to be served at the address set forth in the caption
or at the address set forth in written instructions furnished
by the initiating party. The cabinet shall affix adequate
postage and place the sealed envelope in the United
States mail as certified mail return receipt requested. The
cabinet shall forthwith enter the fact of mailing in the record
and make a similar entry when the return receipt is
received. If the envelope is returned with an endorsement
showing failure of delivery, that fact shall be entered in the
record. Service by certified mail is complete upon delivery
of the envelope or as provided by subsection (2) of this
section. The return receipt shall be proof of the time, place
and manner of service. To the extent that the United
States postal regulations permit authorized representatives
of local, state, or federal governmental offices to accept
and sign for "addressee only" mail, signature by the
authorized representative shall constitute service on the
addressee; or
(b) The cabinet may cause the document, with
necessary copies, to be transferred for service to any
person authorized by the secretary or by any statute to
deliver them, or to any person authorized to deliver service
for the purpose of an action in a court of law who shall
serve the documents, and the return endorsed thereon
shall be proof of the time ani:l manner of service.
(2) Service is effective upon acceptance of the
document by any mineral permittee at the permit address,
upon refusal to accept the document by any person at the
permit address, upon the United States Postal Service's
inability to deliver the document if properly addressed
pursuant to subsection (1)(a), or upon failure to claim the
document prior to its return to the cabinet by the United
States Postal Service. The return receipt shall be proof of
the acceptance, refusal, inability to deliver, or failure to
claim the document.
(3) Any other method of service authorized by statute,
administrative regulation, or the civil rules for an action in a
court of law shall be supplemental to and shall be accepted
as an alternative to any of the methods of service specified
in this section.
(4) In addition to the provisions of subsection (1)
through (3) of this administrative regulation, the provisions
of 400 KAR 1 :030, shall apply to service resulting from or
attendant to administrative hearings under this
administrative regulation.
Section 3. Temporary Relief.
(1)( a) Pending completion of the investigation and
administrative hearings provided for in this administrative
regulation, a hearing officer may, subject to review by the
secretary, grant temporary relief from a notice or order
issued pursuant to KRS Chapter 350 or the administrative
regulations or a determination by the cabinet to issue a
permit or release a bond.
(b) A petition for temporary relief shall be in writing,
shall be filed with the Office of Administrative Hearings,
with notice to the Department of Law, and shall contain the
following:
1 . A detailed statement setting forth reasons why
temporary relief should be granted;
2. A showing that there is a substantial likelihood
that the petitioner will prevail on the merits upon a final
determination of the proceeding;
3. A statement that the relief sought will not
adversely affect the health or safety of the public or cause
significant, imminent environmental harm to land, air or
water resources;
4. If the petition relates to an order for cessation and
immediate compliance, a statement of whether the
requirement for a decision on the petition within five (5)
working days is waived; and
5. A statement of the specific relief requested.
(2) A hearing officer may grant temporary relief atter
making a written finding that the relief is warranted, and
shall state the reasons for the finding. The hearing officer
shall grant or deny relief expeditiously; however, if the
petition relates to an order for cessation and immediate
compliance relief shall be granted or denied within five (5)
working days of receipt by the office of the petition. A
hearing officer may grant temporary relief from notices and
orders issued pursuant to 405 KAR Chapter 5 or a
determination by the cabinet to issue a permit or release a
bond, upon conditions as are deemed appropriate, only
upon a finding that:
(a) The parties were given an opportunity to be heard
in a location acceptable to both the cabinet and the
petitioner;
(b) The petitioner has shown that there is a
substantial likelihood that the findings on the merits in an
administrative hearing conducted before the cabinet will be
favorable to the petitioner;
(c) The relief will not adversely affect the health or
safety of the public or cause significant, imminent
environmental harm to land, air or water resources; and
(d) The relief sought is not the issuance of a permit if
a permit has been denied, in whole or in part, by the
cabinet, nor the release of a bond if a bond release request
has been denied.
Section 4. Orders to Abate and Alleviate. If the
secretary issues an order to abate and alleviate pursuant
to KRS 224.10-410 the cabinet shall provide the permittee
or person to whom the order was issued an opportunity to
be heard not more than ten (10) days following issuance of
405 KAR 5:095 - 3
Effective Date: February 22, 1995
. .
the order, unless waived in writing by the permittee or
person. The order to abate and alleviate shall be filed with
the Office of Administrative Hearings, which shall issue an
administrative summons pursuant to Section 1 (6) of this
administrative regulation. Neither the scheduling nor
holding of an administrative hearing pursuant to this
section shall operate to terminate or stay the order, nor
operate to relieve the permittee or person(s) named in the
order from performing the affirmative obligations imposed
in the order to abate and alleviate, unless the hearing
officer shall find on the record that the obligations have
been met or that the order was improper or inappropriate.
LP
405 KAR 5:095 - 4
Effective Date: February 22, 1995
c.
,.
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
c Department for Surface Mining Reclamation and
Enforcement
405 KAR 5:096. Repeal of 405 KAR 5:010 and 405
KAR 5:020.
RELATES TO: KRS 350.010(2), 350.240,350.300
STATUTORY AUTHORITY: KRS Chapter 13A, KRS
350.028, 350.029, 350240, 350.300
NECESSITY AND FUNCTION: 405 KAR 5:010 and 405
KAR 5:020 are no longer required because they have been
superceded by the adoption of a new comprehensive
regulatory program for noncoal mineral operations. This
administrative regulation repeals those administrative
regulations.
Section 1. Repeal. 405 KAR 5:010, Clay mining;
reclamation of areas disturbed and 405 KAR 5:020
Auorspar, sand and gravel, stone and rock asphalt mining;
reclamation of disturbed areas, are hereby repealed.
LP
405 KAR 5:096 - 1
Effective Date: February 22, 1995