RELATES TO:
KRS
350.062,
350.093,
350.100,
350.405,
350.410,
350.435,
350.450,
350.465,
30 C.F.R. 730-733, 735,
816.100,
917,
30 U.S.C. 1253,
1255
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires
the cabinet to promulgate administrative regulations establishing performance
standards for protection of people and property, land, water, and other natural
resources, and aesthetic values, during surface mining activities and for
restoration and reclamation of surface areas affected by mining activities.
This administrative regulation establishes requirements for keeping reclamation
operations, including backfilling, grading, soil preparation, and revegetation,
contemporaneous with mining operations.
Section
1. Definition. "Completed reclamation" means completion of
reclamation phase I as established in
405
KAR 10:040, Section 2(4)(a).
Section 2. General. Reclamation operations,
including, backfilling, grading, topsoil redistribution, liming, fertilizing,
other soil preparation, seeding, planting, mulching, and revegetation of all
land that is disturbed by surface mining activities, shall occur as
contemporaneously as practicable with mining operations and in accordance with
this administrative regulation.
Section
3. Backfilling and Grading. Backfilling and grading operations
shall proceed as concurrently with mining operations as possible and in
accordance with the requirements of this section, except that specific time and
distance criteria established in the approved plan for backfilling and grading
shall take precedence over corresponding criteria in this administrative
regulation.
(1) The approved backfilling and
grading plan may specify time and distance criteria less restrictive than those
established in this administrative regulation, and may allow more than one (1)
pit per permit area, if the permittee has demonstrated through detailed written
analysis in the permit application that other criteria or additional pits are
essential to the proposed mining and reclamation operations, and if the
requested criteria or additional pits will not likely cause adverse
environmental impacts.
(2) If
alternative distance limits are approved or additional pits allowed, then the
applicant shall provide supplemental assurance in accordance with
405 KAR
10:015, Section 11.
(3)
(a)
Area mining. Backfilling and grading to approximate original contour on a
disturbed area shall be completed within 180 calendar days following the
removal of coal from that area and shall not be more than four (4) spoil ridges
behind the pit being mined, with the spoil from the pit being mined being
considered the first spoil ridge.
(b) There shall be only one (1) pit allowed
per permit area.
(4)
Auger mining. Coal removal in a given location shall be completed within sixty
(60) calendar days after the initial excavation for the purpose of removal of
topsoil or overburden at that location.
(b) Backfilling and grading to approximate
original contour shall follow coal removal by not more than sixty (60) days and
by not more than 1,500 linear feet.
(c) There shall be only one (1) auger mining
operation allowed per permit area.
(5) Contour mining.
(a) Coal removal in a given location shall be
completed within sixty (60) calendar days after the initial excavation for the
purpose of removal of topsoil or overburden at that location.
(b) Backfilling and grading to approximate
original contour shall follow coal removal by not more than sixty (60) calendar
days and by not more than 1,500 linear feet.
(c) There shall be only one (1) pit allowed
per permit area.
(6)
Multiple-seam contour mining.
(a) If
overlapping multiple cuts producing a benched highwall are made to remove more
than one (1) coal seam at a given location, backfilling, and grading at that
location shall be completed within sixty (60) calendar days after removal of
the last coal seam at that location and shall follow the advancing cut of the
last coal seam by not more than 1,500 feet.
(b) Removal of all coal seams shall proceed
as concurrently as possible and in a timely manner, in order to minimize the
time period in which disturbed areas are exposed prior to
reclamation.
(c) There shall be
only one (1) multiple seam operation allowed per permit area.
(7) Combined contour mining and
auger mining.
(a) Coal removal by contour
mining at a given location shall be completed within the time frame established
in subsection (5) or (6) of this section as appropriate.
(b) Auger mining at a given location shall be
completed within thirty (30) calendar days after coal removal by contour mining
at that location.
(c)
1. Sealing of auger holes and backfilling and
grading shall then be completed as required in subsection (4) of this
section.
2. There shall be only one
(1) contour mining pit and one (1) auger mining operation allowed per permit
area.
(8)
Mountaintop removal. Backfilling and grading on a disturbed area shall be
completed within 180 calendar days following the removal of coal from that
area. If the mountaintop removal operation begins by mining a contour cut
around all or a part of the mountaintop, the time and distance limits for
contour mining shall apply to that cut unless alternative limits are approved
pursuant to Section 3 of this administrative regulation and
405 KAR
10:015, Section 11.
(9) All final backfilling and grading shall
be completed before equipment necessary for backfilling and grading is removed
from the site.
Section
4. Soil Preparation and Revegetation.
(1) When backfilling and grading have been
completed on an area, the required topsoil redistribution, liming, fertilizing,
other soil preparation, seeding, planting, and mulching of that area shall be
completed as soon as possible in a manner consistent with the approved plans
for topsoil handling and revegetation and in accordance with
405 KAR 16:200,
Section 3.
(2) The time allowed for
soil preparation and revegetation pursuant to subsection (1) of this section
may exceed thirty (30) calendar days only if specifically authorized in the
approved plans for topsoil handling and revegetation or if authorized pursuant
to Section 5 or 6 of this administrative regulation.
Section 5. Deferments.
(1) The cabinet may allow a permittee to
defer the time criteria for coal removal and contemporaneous reclamation
requirements on specified areas if the permittee can demonstrate that the
deferment is necessary to address at least one (1) of the following:
(a) Adverse condition including weather,
labor, or other conditions clearly beyond the permittee's control;
(b) Combined surface and underground mining
activities subject to the provisions of
405 KAR
8:050, Section 7, and 405 KAR
20:020; or
(c) Coal marketing problems.
(2) Application for a deferment
pursuant to this section shall be made through submittal of the Coal Marketing
Deferment, MPA-10, which is incorporated by reference in
405 KAR
8:010, Section 26. Approval of the deferment request
shall be made in writing. The approval shall state that the deferment is
justified and that environmental damage shall not occur during the period of
deferment.
(a) Application for a deferment
pursuant to subsection (1)(a) of this section for adverse conditions shall be
made in writing and shall include documentation of the adverse conditions
beyond the operator's control and demonstration of impossibility of conducting
coal removal and contemporaneous reclamation in a timely manner due to those
conditions.
1. The application shall be filed
at the appropriate regional office of the department.
2. Upon a successful demonstration that the
adverse conditions exist, the regional administrator may grant a reclamation
deferment for a maximum of thirty (30) days.
3. At least seven (7) days prior to the
expiration of the deferment, the permittee may request, in writing, an
additional extension, again stating the reason for the request and providing
appropriate additional documentation.
4. The regional administrator may renew the
original extension once upon request, but the renewal shall not exceed thirty
(30) days.
5. The need for
additional time shall be demonstrated to the Division of Mine Reclamation and
Enforcement in Frankfort by written request.
6. The request shall initially be submitted
to the regional office at least two (2) weeks prior to the expiration of the
renewed deferment.
7. Upon
recommendation of the regional administrator, the director of the Division of
Mine Reclamation and Enforcement shall issue his decision on or before
expiration of the deferment.
(b) Application for a deferment pursuant to
subsection (1)(b) of this section for combined surface and underground mining
shall be made according to
405 KAR
8:050, Section 7.
(c) Application for a deferment pursuant to
subsection 1(c) of this section for coal marketing problems shall be made
according to Section 6 of this administrative regulation.
(3) The applicant has the burden of
establishing the need for a deferment.
(a) The
applicant shall demonstrate that reclamation on the site is contemporaneous as
of the date of the request for deferment and that distance requirements for
contemporaneous reclamation shall be met during the period of
deferment.
(b) The permittee shall
continue to comply with the time limits of the coal removal and contemporaneous
reclamation requirements until the deferment is issued.
(4)
(a)
Reclamation deferments shall be approved for a period reasonably related to the
specified conditions justifying the deferment.
(b) The deferral shall not extend beyond the
expiration date of the permit and in no event shall the aggregate deferral
period exceed thirty (30) months, except if approved combined mining is being
carried out under subsection (1)(b) of this section.
(5) The cabinet shall periodically reexamine
and update the amount of the bond on the permit area so that the amount of the
bond is sufficient to assure completion of reclamation if the work had to be
performed by the cabinet in the event of forfeiture.
Section 6. Additional Requirements for
Deferments for Coal Marketing Problems. Upon written application conforming to
the requirements of KRS Chapter 350 and 405 KAR
7 through
24, the cabinet may
grant a deferment of coal removal and contemporaneous reclamation for a period
not to exceed thirty (30) months pursuant to
KRS
350.093.
(1) Application requirements.
(a) An application shall contain at least the
following:
1. A demonstration of the need for
the deferment, including documentation of the coal marketing problem;
2. A plan consisting of a detailed narrative
description of the method by which the applicant shall conform to each of the
performance standards established in subsection (2) of this section;
3. A detailed schedule for implementation of
each of the performance standards of subsection (2) of this section, which may
not extend beyond thirty (30) days from the issuance by the cabinet of a
deferment from coal removal and contemporaneous reclamation;
4. An itemized estimate of the total cost of
reclamation of the area proposed for deferment. The estimate shall, at a
minimum, include calculations and supporting data demonstrating the volume of
spoil necessary for backfilling and grading all open pits and highwalls, the
cost of backfilling those pits and highwalls, the cost of final grading and
revegetation of the entire disturbed area, and the cost of moving necessary
reclamation equipment to the job site; and
5. Written consent of the surety for the
deferment if the permit area or increment is covered by a surety
bond.
(b) The applicant
shall place an advertisement in the newspaper of largest bona fide circulation
in each county in which the permit is located.
1. The advertisement shall be published
within ten (10) days after the date the application is submitted to the cabinet
and shall contain, at a minimum, the location of the area for which coal
removal and contemporaneous reclamation are proposed to be deferred, the reason
for which the deferment is sought, and the duration of the requested
deferment.
2. The advertisement
shall also indicate that the deferment shall not exceed six (6) months
initially, but may be renewed for additional six (6) months periods up to a
maximum of thirty (30) months.
3.
The applicant shall submit proof of the advertisement to the cabinet within
fifteen (15) days after application for the deferment.
4. The application shall not be deemed
complete until the proof is submitted.
(c) The applicant shall also notify, in
writing, the owners of the surface of the permit area and adjacent areas as
listed on the permit application.
1. The
applicant shall provide proof of this notice to the cabinet.
2. The application shall not be deemed
complete until the proof is submitted. Within five (5) days after receipt of a
complete application, the cabinet shall notify those other persons, if any, who
have an interest that is or may be adversely affected by the proposed
deferment.
(d) A person
with an interest that is or may be adversely affected may file written comments
and objections to the application for a deferment. The comments or objections
shall be filed within ten (10) days after receipt of the written notice or
publication of the newspaper notice, whichever is later.
(e) Upon receipt of the application, the
cabinet shall examine the data and calculations submitted pursuant to
subsection (1)(a)4 of this section and shall cause an inspection of the area
subject to the proposed deferment to be made by an authorized agent of the
cabinet.
1. Based upon the data supplied and
the inspection, the Division of Permits of the cabinet shall determine if the
existing bond for the entire permit or increment is sufficient for the cabinet
to completely reclaim the entire disturbed area of the permit or increment at
the expiration of the deferment.
2.
If the existing bond is insufficient, then the cabinet shall require, prior to
approving the deferment, that the applicant file additional bond sufficient for
the cabinet to completely reclaim the disturbed area.
(f) The cabinet shall consider the
application, other submittals from the applicant, and comments received from
the public, and shall render a final decision on the application within thirty
(30) days of receipt of the complete application.
1. If the applicant has satisfied the
requirements for a deferment from coal removal and contemporaneous reclamation
established in
KRS
350.093(2) and in this
administrative regulation, then the cabinet shall grant a deferment to the
applicant for a period not to exceed six (6) months.
2. Upon approval by the cabinet, the plan and
schedule proposed by the applicant and conditions imposed on the approval by
the cabinet shall become conditions of the permit.
(2) Performance standards. Each
permittee subject to a deferment shall, at a minimum:
(a) Complete final reclamation including
backfilling, grading, topsoiling, and revegetation on all disturbed areas;
except that those areas of the pit, work area, excess spoil disposal areas,
topsoil storage areas, and access road necessary to allow resumption of coal
extraction without redisturbance of finally reclaimed areas may be exempted
from this requirement for the duration of the deferment. In order to meet this
requirement, the permittee may be required to reclaim closer to the pit than
the distance limits specified in the contemporaneous reclamation administrative
regulation;
(b) Mulch or establish
quick growing temporary vegetation, or both, on all areas exempted pursuant to
paragraph (a) of this subsection (except for haul road surfaces), such as
excess spoil disposal areas, work areas, topsoil storage areas, and all other
areas that have been cleared of vegetation, to the extent technically
practicable to achieve erosion control or stability. The permittee shall
maintain the cover on all these areas to minimize erosion throughout the
deferment period;
(c) Acid- or
toxic-producing spoil shall not be left exposed but shall be covered or treated
in accordance with Section 3 of
405 KAR
16:190 and
405 KAR
18:190;
(d) Supplemental sediment control measures
such as straw dikes and fabric filter fences shall be required if necessary to
minimize additional contributions of sediment to the stream flow or run-off;
and
(e) If accumulation of water in
the pit may adversely impact the hydrologic balance, public health and safety
or the environment, the cabinet shall require measures necessary to minimize
adverse impacts. These may include:
1.
Providing drainage from the pit to prevent breaching of the undisturbed berm;
or
2. Pumping the water to a
treatment facility if accumulation of acid or toxic water in the pit may result
in contamination of the ground water.
(3) Deferment implementation.
(a) The permittee shall implement the terms
of the approved plan within the time schedule approved by the cabinet and
consistent with this administrative regulation.
(b) Except as expressly modified by the
approved plan, schedule, and conditions in the deferment approval, the
permittee shall comply with all of the requirements of 405 KAR Chapters 7
through 24 and the permit conditions that would apply to the operation had the
deferment not been granted. These requirements include:
1. All discharges of water from the permitted
area shall be continually treated to meet the applicable effluent
limitations;
2. All water quality
monitoring and reporting otherwise required shall continue;
3. All diversion ditches, sedimentation
ponds, haul road drainage ditches and culverts, shall be rehabilitated as
necessary and continually maintained to comply with the applicable performance
standards and with the designs approved in the permit. Sediment shall be
removed from the sedimentation ponds if the design sediment storage volume has
filled with sediment; and
4. Haul
road maintenance, such as grading, replacement of durable surface material, and
cleaning out of ditches and culverts, shall be continually performed as
necessary to comply with the performance standards and the approved permit and
to minimize erosion.
(4) Expiration and renewal.
(a) A deferment from coal removal and
contemporaneous reclamation shall expire six (6) months after the date of
issuance of the deferment by the cabinet.
1. A
deferment from coal removal and contemporaneous reclamation may be renewed upon
written application for a period of no more than six (6) months upon a showing
of need for additional time, and upon a showing that the area subject to
deferment is in compliance with the requirements of 405 KAR Chapters 7 through
24, the permit, and the terms of the deferment.
2. The cabinet shall inspect the area subject
to deferment prior to approval of any renewal.
(b) Regardless of the reasons for the
deferment, deferments or subsequent renewals shall not be granted beyond the
maximum aggregate period of thirty (30) months for a permit area, including
deferment periods issued for adverse conditions. At the expiration of the
thirty (30) month aggregate period, a permittee shall not be granted additional
deferments or renewals unless the permittee can demonstrate that it has
conducted twelve (12) months of continuous active coal removal from the permit
area after the expiration of the thirty (30) month aggregate period, it has
completed reclamation of all previously deferred areas in the permit area, and
it otherwise meets all requirements for a deferment.
(c) The deferment shall terminate upon
resumption of coal extraction activities on the permit area subject to
deferment.
(5)
Enforcement and revocation.
(a) The cabinet
shall inspect the area subject to deferment at least once each month on the
average, during the routine partial and complete inspections made of the permit
area. Upon each inspection, the inspector shall note under the "comments"
section of the Mine Inspection Report form if the area subject to deferment
meets the conditions of the deferment approval, including the plan and
schedule.
(b) If the inspection
shows that a violation of the conditions of the deferment or of 405 KAR
Chapters 7 through 24 or of the conditions of the permit is occurring on the
area subject to deferment, or is causally related to the area subject to
deferment, then the cabinet shall issue a notice of noncompliance and order for
remedial measures or order for cessation and immediate compliance in accordance
with 405 KAR Chapter 12. If the permittee fails to abate the violation within
the time for abatement, or extension thereof, established by the cabinet, then
the cabinet shall revoke the deferment in addition to other enforcement actions
required by 405 KAR Chapters 7 through 24.