KENTUCKY REGULATORY PROGRAM KENTUCKY ADMINISTRATIVE REGULATIONS (KAR) TITLE 405 NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET DEPARTMENT FOR SURFACE MINING RECLAMATION AND ENFORCEMENT [Current as of 7/22/03] 405 KAR CHAPTER 7 GENERAL PROVISIONS 405 KAR 7:001 Definitions for 405 KAR Chapter 7 405 KAR 7:015 Documents incorporated by reference 405 KAR 7:030 Applicability 405 KAR 7:035 Exemption for coal extraction incidental to the extraction of other minerals 405 KAR 7:040 General obligations of operators and permittees 405 KAR 7:050 Coal processing waste disposal sites 405 KAR 7:060 Experimental practices mining 405 KAR 7:070 Certification of blasters 405 KAR 7:080 Small operator assistance 405 KAR 7:091 General practice provisions 405 KAR 7:092 Administrative hearings and assessment conferences 405 KAR 7:095 Assessment of civil penalties 405 KAR 7:097 Reclamation in lieu of cash payment of civil penalties 405 KAR 7:100 Notice of citizen suits 405 KAR 7:110 Petitions for rulemaking NOTE: Cross references to OSM's federal regulations, the U.S. Code ("USC") and Kentucky Revised Statutes ("KRS") are part of the Kentucky Regulatory Program's regulations. These references appear at the beginning of each subchapter under "RELATES TO" and " STATUTORY AUTHORITY". The SMCRA section number equivalents to the USC section numbers have been added to the end of these notations. In addition, specific cross references to federal regulation and statute sections were added to Kentucky regulation sections; they appear in double braces to the right of the section name and number, e.g., "SECTION 1. NOTICE OF CITIZEN SUITS. {{ 30 CFR 700.13 }}". These annotations were compiled using the preambles to OSM's approval of amendments to the Kentucky Regulatory Program published in the Federal Register and from the file of Kentucky regulatory material in the COALEX Library in LexisNexis. 405 KAR 7:001. DEFINITIONS FOR 405 KAR CHAPTER 7. RELATES TO: KRS Chapter 350, 7 CFR Part 657, 30 CFR Parts 700.5, 701.5, 707.5, 730-733, 735, 761.5, 762.5, 773.5, 800.5, 843.5, 917, 30 USC 1253, 1255, 1291 { SMCRA Secs. 503, 505, 701} STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465, 7 CFR Part 657, 30 CFR Parts 700.5, 701.5, 707.5, 730-733, 735, 761.5, 762.5, 773.5, 800.5, 843.5, 917, 30 USC 1253, 1255, 1291 {SMCRA Secs. 503, 505, 701} NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations under the permanent regulatory program. This administrative regulation provides for the defining of certain essential terms used in 405 KAR Chapter 7. SECTION 1. DEFINITIONS. {{ 30 CFR 700.5, 701.5 }} (1) "ADJACENT AREA" means land located outside the affected area or permit area, depending on the context in which "adjacent area" is used, where air, surface or groundwater, fish, wildlife, vegetation or other resources protected by KRS Chapter 350 may be adversely impacted by surface coal mining and reclamation operations. (2) "ADMINISTRATIVE HEARING" means a formal adjudicatory hearing conducted pursuant to 405 KAR 7:091 and 405 KAR 7:092 before the cabinet. (3) "ADMINISTRATIVELY COMPLETE APPLICATION" means an application for permit approval, or approval for coal exploration if required, which the cabinet determines to contain information addressing each application requirement of the regulatory program and to contain all information necessary to initiate technical processing and public review. (4) "AFFECTED AREA" means any land or water area which is used to facilitate, or is physically altered by, surface coal mining and reclamation operations. The affected area includes the disturbed area; any area upon which surface coal mining and reclamation operations are conducted; any adjacent lands the use of which is incidental to surface coal mining and reclamation operations; all areas covered by new or existing roads used to gain access to, or for hauling coal to or from, surface coal mining and reclamation operations, except as provided in this definition; any area covered by surface excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, shipping areas; any areas upon which are sited structures, facilities, or other property or material on the surface resulting from, or incident to, surface coal mining and reclamation operations; and the area located above underground workings associated with underground mining activities, auger mining, or in situ mining. The affected area shall include every road used for the purposes of access to, or for hauling coal to or from, surface coal mining and reclamation operations, unless the road: (a) Was designated as a public road pursuant to the laws of the jurisdiction in which it is located; (b) Is maintained with public funds, and constructed in a manner similar to other public roads of the same classification within the jurisdiction; and (c) There is substantial (more than incidental) public use. (5) "APPLICANT" means any person seeking a permit, permit revision, permit amendment, permit renewal, or transfer, assignment, or sale of permit rights from the cabinet to conduct surface coal mining and reclamation operations or approval to conduct coal exploration operations pursuant to KRS Chapter 350 and all applicable administrative regulations. (6) "APPLICATION" means the documents and other information filed with the cabinet seeking issuance of permits; revisions; amendments; renewals; and transfer, assignment or sale of permit rights for surface coal mining and reclamation operations or, if required, seeking approval for coal exploration. (7) "APPROXIMATE ORIGINAL CONTOUR" is defined in KRS 350.010. (8) "AQUIFER" means a zone, stratum, or group of strata that can store and transmit water in sufficient quantities for domestic, agricultural, industrial, or other beneficial use. (9) "AUGER MINING" means a method of mining coal at a cliff or highwall by drilling holes into an exposed coal seam from the highwall and transporting the coal along an auger bit to the surface and shall also include all other methods of mining in which coal is extracted from beneath the overburden by mechanical devices located at the face of the cliff or highwall and extending laterally into the coal seam, such as extended depth, secondary recovery systems. (10) "BLASTER" means a person who is directly responsible for surface blasting operations in surface coal mining and reclamation operations or coal exploration operations. (11) "CABINET" is defined in KRS 350.010. (12) "CESSATION ORDER" means an order for cessation and immediate compliance and any similar order issued by OSM under SMCRA or issued by any state pursuant to its laws or regulations under SMCRA. (13) "CFR" means Code of Federal Regulations. (14) "COAL" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77. (15) "COAL EXPLORATION" means the field gathering of: (a) Surface or subsurface geologic, physical, or chemical data by mapping, trenching, drilling, geophysical, or other techniques necessary to determine the quality and quantity of overburden and coal of an area; or (b) Environmental data to establish the conditions of an area before beginning surface coal mining and reclamation operations under the requirements of 405 KAR Chapters 7 through 24 if the activity may cause any disturbance of the land surface or may cause any appreciable effect upon land, air, water, or other environmental resources. (16) "COAL MINE WASTE" means coal processing waste and underground development waste. (17) "COAL PROCESSING WASTE" means materials which are separated from the product coal during the cleaning, concentrating, or other processing or preparation of coal. (18) "COLLATERAL BOND" means an indemnity agreement in a sum certain payable to the cabinet executed by the permittee and which is supported by the deposit with the cabinet of cash, negotiable certificates of deposit, or an irrevocable letter of credit of any bank organized and authorized to transact business in the United States. (19) "CUMULATIVE MEASUREMENT PERIOD" means the period of time over which both cumulative production and cumulative revenue are measured. (20) "CUMULATIVE PRODUCTION" means the total tonnage of coal or other minerals extracted from a mining area during the cumulative measurement period. The inclusion of stockpiled coal and other mineral tonnages in this total shall be governed by Section 7 of 405 KAR 7:035. (21) "CUMULATIVE REVENUE" means the total revenue derived from the sale of coal or other minerals and the fair market value of coal or other minerals transferred or used, but not sold, during the cumulative measurement period. (22) "DAY" means calendar day unless otherwise specified to be a working day. (23) "DEPARTMENT" means the Department for Surface Mining Reclamation and Enforcement. (24) "DISTURBED AREA" means an area where vegetation, topsoil, or overburden is removed or upon which topsoil, spoil, coal processing waste, underground development waste, or noncoal waste is placed by surface coal mining operations. Those areas are classified as "disturbed" until reclamation is complete and the performance bond or other assurance of performance required by 405 KAR Chapter 10 is released. (25) "EMBANKMENT" means a manmade deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water; to support roads or railways; or for other similar purposes. (26) "EXISTING STRUCTURE" means a structure or facility used in connection with or to facilitate surface coal mining and reclamation operations, for which construction began prior to January 18, 1983. (27) "EXTRACTION OF COAL AS AN INCIDENTAL PART" means the extraction of coal which is necessary to enable the construction to be accomplished. Only that coal extracted from within the right-of-way, in the case of a road, railroad, utility line, or similar construction, or within the boundaries of the area directly affected by other types of government-financed construction, may be considered incidental to that construction. Extraction of coal outside the right-of-way or boundary of the area directly affected by the construction shall be subject to the requirements of KRS Chapter 350 and 405 KAR Chapters 7 through 24. (28) "FINAL ORDER" means final order of the secretary, which may include findings of fact, conclusions of law, and an order. (29) "GOVERNMENT-FINANCED CONSTRUCTION" means construction funded fifty (50) percent or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds, but shall not mean government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent, or in-kind payments. (30) "GOVERNMENT FINANCING AGENCY" means a federal, Commonwealth of Kentucky, county, municipal, or local unit of government, or a cabinet, department, agency, or office of the unit which, directly or through another unit of government, finances construction. (31) "GROUNDWATER" means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated. (32) "HEARING OFFICER" means the individual duly qualified and assigned as presiding officer to conduct administrative hearings; the term includes the chief hearing officer. (33) "HIGHWALL" means the face of exposed overburden and coal in an open cut of a surface mining activity or for entry to underground mining activities. (34) "HISTORICALLY USED FOR CROPLAND." (a) "HISTORICALLY USED FOR CROPLAND" means that lands have been used for cropland for any five (5) years or more out of the ten (10) years immediately preceding: 1. The application; or 2. The acquisition of the land for the purpose of conducting surface coal mining and reclamation operations. (b) Lands meeting either paragraph (a)1 or 2 of this subsection shall be considered "historically used for cropland". (c) In addition to the lands covered by paragraph (a) of this subsection, other lands shall be considered "historically used for cropland" as described below: 1. Lands that would likely have been used as cropland for any five (5) out of the last ten (10) years immediately preceding the acquisition or the application but for some fact of ownership or control of the land unrelated to the productivity of the land; and 2. Lands that the cabinet determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, are clearly cropland but fall outside the specific five (5) years in ten (10) criterion. (d) Acquisition includes purchase, lease, or option of the land for the purpose of conducting or allowing through resale, lease or option, the conduct of surface coal mining and reclamation operations. (35) "HYDROLOGIC BALANCE" means the relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or reservoir. It encompasses the dynamic relationship between precipitation, runoff, evaporation, and changes in ground and surface water storage. (36) "HYDROLOGIC REGIME" means the entire state of water movement in a given area. It is a function of the climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns to the atmosphere as vapor by means of evaporation and transpiration. (37) "IMMINENT DANGER TO THE HEALTH AND SAFETY OF THE PUBLIC" means the existence of any condition or practice, or any violation of a permit or other requirements of KRS Chapter 350 in a surface coal mining and reclamation operation, which 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 avoid exposure to the danger during the time necessary for abatement. (38) "IMPOUNDMENT" means a closed basin, naturally formed or artificially built, which is dammed or excavated for the retention of water, sediment, or waste. (39) "INDIVIDUAL", as used in 405 KAR 7:091 and 7:092, means a natural person. (40) "INDUSTRIAL/COMMERCIAL LANDS" means lands used for: (a) Extraction or transformation of materials for fabrication of products, wholesaling of products, or long- term storage of products, and heavy and light manufacturing facilities. (b) Retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments. (41) "INITIATING DOCUMENT" means a petition for administrative hearing, an administrative complaint, a show cause order, or any other document which commences an administrative proceeding. (42) "IN SITU PROCESSES" means activities conducted on the surface or underground in connection with in-place distillation, retorting, leaching, or other chemical or physical processing of coal. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, solution mining, borehole mining, and fluid recovery mining. (43) "INTERIM REPORT" means statements made by a hearing officer in written form which are not intended to be considered by the secretary and which are not subject to judicial review. (44) "KAR" means Kentucky administrative regulations. (45) "KNOWINGLY" means that a person knew or had reason to know in authorizing, ordering, or carrying out an act or omission that the act or omission constituted a violation of SMCRA, KRS Chapter 350, 405 KAR Chapters 7 through 24, or a permit condition, or that the act or omission constituted a failure or refusal to comply with an order issued pursuant to SMCRA, KRS Chapter 350, or 405 KAR Chapters 7 through 24. (46) "KRS" means Kentucky Revised Statutes. (47) "LAND USE" means specific functions, uses, or management-related activities of an area, and may be identified in combination when joint or seasonal uses occur and may include land used for support facilities that are an integral part of the use. In some instances, a specific use can be identified without active management. (48) "MINING AREA", as used in 405 KAR 7:035, means an individual excavation site or pit from which coal, other minerals, and overburden are removed. (49) "MONITORING" means the collection of environmental data by either continuous or periodic sampling methods. (50) "MSHA" means Mine Safety and Health Administration. (51) "NOTICE OF NONCOMPLIANCE AND ORDER FOR REMEDIAL MEASURES" means a written document and order prepared by an authorized representative of the cabinet which sets forth with specificity the violations of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit conditions which the authorized representative of the cabinet determines to have occurred based upon his inspection, and the necessary remedial actions, if any, and the time schedule for completion thereof, which the authorized representative deems necessary and appropriate to correct the violations. (52) "OFFICE", as used in 405 KAR 7:091 and 7:092, means the office of administrative hearings. (53) "OPERATIONS" is defined in KRS 350.010. (54) "OPERATOR" is defined in KRS 350.010. (55) "ORDER FOR CESSATION AND IMMEDIATE COMPLIANCE" means a written document and order issued by an authorized representative of the cabinet when: (a) A person to whom a notice of noncompliance and order for remedial measures was issued has failed, as determined by a cabinet inspection, to comply with the terms of the notice of noncompliance and order for remedial measures within the time limits set therein, or as subsequently extended; or (b) The authorized representative finds, on the basis of a cabinet inspection, any condition or practice or any violation of KRS Chapter 350, 405 KAR Chapters 7 through 24, or any condition of a permit or exploration approval 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. (56) "OSM" means Office of Surface Mining Reclamation and Enforcement, United States Department of the Interior. (57) "OTHER MINERAL" means any commercially valuable substance mined for its mineral value, excluding coal, topsoil, waste, and fill material. (58) "OVERBURDEN" is defined in KRS 350.010. (59) "PERFORMANCE BOND" means a surety bond, a collateral bond, or a combination thereof, or bonds filed pursuant to the provisions of the Kentucky Bond Pool Program (405 KAR 10:200, KRS 350.595, and KRS 350.700 through 350.755), by which a permittee assures faithful performance of all the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the requirements of the permit and reclamation plan. (60) "PERMIT" means written approval issued by the cabinet to conduct surface coal mining and reclamation operations. (61) "PERMIT 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 surface coal mining and reclamation operations under that permit. (62) "PERMITTEE" means an operator or a person holding or required by KRS Chapter 350 or 405 KAR Chapters 7 through 24 to hold a permit to conduct surface coal mining and reclamation operations during the permit term and until all reclamation obligations imposed by KRS Chapter 350 and 405 KAR Chapters 7 through 24 are satisfied. (63) "Person" is defined in KRS 350.010. (64) "PRIME FARMLAND" means those lands which are defined by the Secretary of Agriculture in 7 CFR 657 and which have been "historically used for cropland" as that phrase is defined above. (65) "PROBABLE CUMULATIVE IMPACTS" means the expected total qualitative, and quantitative, direct and indirect effects of surface coal mining and reclamation operations on the hydrologic regime. (66) "PROBABLE HYDROLOGIC CONSEQUENCES" means the projected results of proposed surface coal mining and reclamation operations which may reasonably be expected to change the quantity or quality of the surface and groundwater; the surface or groundwater flow, timing, and pattern; and the stream channel conditions on the permit area and adjacent areas. (67) "RECLAMATION" is defined in KRS 350.010. (68) "RECORD" means the transcript of a proceeding, if any, and rulings; and 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 and orders. (69) "REFUSE PILE" means a surface deposit of coal mine waste that is not retained by an impounding structure and does not impound water, slurry, or other liquid or semiliquid material. (70) "ROAD" means a surface right-of-way for purposes of travel by land vehicles used in coal exploration or surface coal mining and reclamation operations. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side area, approaches, structures, ditches, surface, and contiguous appendages necessary for the total structure. The term includes access and haul roads constructed, used, reconstructed, improved, or maintained for use in coal exploration or surface coal mining and reclamation operations, including use by coal hauling vehicles leading to transfer, processing, or storage areas. The term does not include pioneer or construction roadways used for part of the road construction procedure and promptly replaced by a road pursuant to 405 KAR Chapters 16 and 18 located in the identical right-of-way as the pioneer or construction roadway. The term also excludes any roadway within the immediate mining pit area. (71) "SCS" means Soil Conservation Service. (72) "SECRETARY" is defined in KRS 350.010. (73) "SEDIMENTATION POND" means a primary sediment control structure designed, constructed, and maintained in accordance with 405 KAR 16:090 or 405 KAR 18:090 and including but not limited to a barrier, dam, or excavated depression which slows down water runoff to allow suspended solids to settle out. A sedimentation pond shall not include secondary sedimentation control structures, such as straw dikes, riprap, check dams, mulches, dugouts, and other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment, to the extent that the secondary sedimentation structures drain to a sedimentation pond. (74) "SIGNIFICANT, IMMINENT ENVIRONMENTAL HARM" means an adverse impact on land, air, or water resources which resources include, but are not limited to, plant and animal life as further defined in this subsection. (a) An environmental harm is imminent, if a condition, practice, or violation exists which: 1. Is causing environmental harm; or 2. May reasonably be expected to cause environmental harm at any time before the end of the reasonable abatement time that would be set by the cabinet's authorized agents pursuant to the provisions of KRS Chapter 350. (b) An environmental harm is significant if that harm is appreciable and not immediately reparable. (75) "SMALL OPERATOR", as used in 405 KAR 7:080, means an operator whose combined actual and attributed production of coal does not exceed 300,000 tons during any period of twelve (12) consecutive months. (76) "SMCRA" means Surface Mining Control and Reclamation Act of 1977 (PL 95-87), as amended. (77) "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 most abundant, and leaching of soluble or suspended particles is typically the greatest. (b) "E HORIZON." The layer commonly near the surface below an A horizon and above a B horizon. An E horizon is most commonly differentiated from an overlying A horizon by lighter color and generally has measurably less organic matter than the A horizon. An E horizon is most commonly differentiated from an underlying B horizon in the same sequum by color of higher value or lower chroma, by coarser texture, or by a combination of these properties. (c) "B HORIZON." The layer that typically is immediately beneath 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 biologic activity. (78) "SPOIL" means overburden and other materials, excluding topsoil, coal mine waste, and mined coal, that are excavated during surface coal mining and reclamation operations. (79) "SURETY BOND" means an indemnity agreement in a sum certain, payable to the cabinet and executed by the permittee, which is supported by the performance guarantee of a corporation licensed to do business as a surety in the Commonwealth of Kentucky. (80) "SURFACE BLASTING OPERATIONS" means the on-site storage, transportation, and use of explosives in association with coal exploration operations, surface mining activities, and surface disturbances of underground mining activities. The term shall be interpreted broadly and shall encompass activities including, but not limited to, the design of individual blasts, the implementation of blast designs, the initiation of blasts, the monitoring of airblast and ground vibration, and the use of protective measures such as access control and warning and all-clear signals. (81) "SURFACE COAL MINING AND RECLAMATION OPERATIONS" is defined in KRS 350.010. (82) "SURFACE COAL MINING OPERATIONS" is defined in KRS 350.010. (83) "SURFACE MINING ACTIVITIES" means those surface coal mining and reclamation operations incident to the extraction of coal from the earth by removing the materials over a coal seam before recovering the coal, by auger coal mining, by extraction of coal from coal refuse piles, or by recovery of coal from slurry ponds. (84) "TON" means 2000 pounds avoirdupois (.90718 metric ton). (85) "TOPSOIL" means the A and E soil horizon layers of the four (4) master soil horizons. (86) "TRANSFER, ASSIGNMENT, OR SALE OF PERMIT RIGHTS" means a change in ownership or other effective control over the right to conduct surface coal mining operations under a permit issued by the cabinet. (87) "UNDERGROUND MINING ACTIVITIES" means a combination of: (a) Surface operations incident to underground extraction of coal 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 utilized for the disposal and storage of waste; and areas on which materials incident to underground mining operations are placed; and (b) Underground operations such as underground construction, operation, and reclamation of shafts, adits, underground support facilities; in situ processing; and underground mining, hauling, storage, and blasting. (88) "UNWARRANTED FAILURE TO COMPLY" means the failure of the permittee due to indifference, lack of diligence, or lack of reasonable care: (a) To prevent the occurrence of any violation of any applicable requirement of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit conditions; or (b) To abate any violation of any applicable requirement of KRS Chapter 350, 405 KAR Chapters 7 through 24, or permit conditions. (89) "WILLFULLY" and "WILLFUL VIOLATION" mean that a person acted either intentionally, voluntarily, or consciously, and with intentional disregard or plain indifference to legal requirements, in authorizing, ordering, or carrying out an act or omission that constituted a violation of SMCRA, KRS Chapter 350, 405 KAR Chapters 7 through 24, or a permit condition, or that constituted a failure or refusal to comply with an order issued pursuant to SMCRA, KRS Chapter 350, or 405 KAR Chapters 7 through 24. (18 Ky.R. 2453; Am. 2834; eff. 4-3-92; 19 Ky.R. 460; 925; 1345; eff. 11-23-92.) 405 KAR 7:015. DOCUMENTS INCORPORATED BY REFERENCE. RELATES TO: KRS Chapter 350 STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465 NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to adopt administrative regulations pertaining to surface coal mining and reclamation operations under the permanent regulatory program. This administrative regulation provides for incorporation by reference of documents referred to in these administrative regulations and other documents relied on by the cabinet in implementing the permanent regulatory program. SECTION 1. RECLAMATION ADVISORY MEMORANDA. The following Reclamation Advisory Memoranda (RAM) issued by the cabinet are incorporated herein by reference for the purposes of 405 KAR Chapters 7 through 24. Copies may be obtained from the cabinet. If there is a conflict between these documents on a particular item, the document of later date shall prevail. (1) RAM No. 56, "Overlapping Permits," December 1, 1982. (2) RAM No. 73, "Delayed Filing of Performance Bonds on Technically Acceptable Applications for Transitioning Permanent Program Permits," February 6, 1984. (3) RAM No. 75, "Permanent Program Performance Standards Take Effect March 16, 1984 on Transitioning Operations," March 12, 1984. (4) RAM No. 76, "Revision to RAM No. 73: Maximum Period of Bond Deferral Reduced from 5 Years to 3 Years," April 2, 1984. (5) RAM No. 77, "Reinstatement of Small Operator Assistance," April 2, 1984. (6) RAM No. 78, "Departmental Policies: Withdrawal and Maintenance of Mining Permit Applications," April 23, 1984. SECTION 2. TECHNICAL RECLAMATION MEMORANDUM. The following Technical Reclamation Memorandum (TRM) issued by the cabinet is incorporated herein by reference for the purposes of 405 KAR Chapters 7 through 24. Copies may be obtained from the department: TRM No. 1, "Existing Structures," October 22, 1982. SECTION 3. DOCUMENTS REFERRED TO WITHIN THESE ADMINISTRATIVE REGULATIONS. The following documents which are referred to within 405 KAR Chapters 7 through 24 are incorporated by reference for the purposes of 405 KAR Chapters 7 through 24. (1) "Standard Methods for the Examination of Water and Wastewater," fourteenth edition, 1976. Prepared by American Public Health Association, American Water Works Association, and Water Pollution Control Federation. Copies may be obtained from American Public Health Association, 1015 Eighteenth Street NW, Washington, D.C. 20036. (2) "Methods for Chemical Analysis of Water and Wastes," March 1979, U.S. Environmental Protection Agency. Copies may be obtained from U.S. Environmental Protection Agency, Environmental Monitoring and Support Laboratory, 26 W. St. Clair Street, Cincinnati, Ohio 45268. (3) "Soil Taxonomy," Agriculture Handbook 436, 1975, U.S.D.A. - Soil Conservation Service. Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. (4) "Soil Survey Manual," Agriculture Handbook No. 18, 1951, U.S. Department of Agriculture. Copies may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. (5) "ASTM STANDARD D388-77, Standard Specification for Classification of Coal by Rank," 1977, American Society for Testing and Materials. Copies may be obtained from American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103. (6) ANSI S1.4-1971, "Specification for Sound Level Meters," 1971, American National Standards Institute, Inc. Copies may be obtained from the American National Standards Institute, Inc., 1430 Broadway, New York, NY. (7) AASHTO T99-74, "Standard Methods of Test for the Moisture-Density Relations of Soils Using 5.5 lb. (2.5 Kg) Rammer and a twelve (12) in. (305 mm) Drop," 1974, American Association of State Highway and Transportation Officials. Copies may be obtained from American Association of State Highway and Transportation Officials, 444 N. Capitol Ave., Washington, D.C. 20001. SECTION 4. PERMIT APPLICATION REVIEW PROCEDURES. The following Permit Application Review Procedures (PARP) issued by the cabinet are incorporated herein by reference for the purposes of 405 KAR Chapters 7 through 24. Copies may be obtained from the cabinet. (1) PARP No. 2, "Lands within 100 feet, measured horizontally, of a cemetery," April 18, 1983. (2) PARP No. 6, "Advertising Schedule Variance," July 29, 1983. SECTION 5. POLICY MEMORANDUM. The following policy memorandum issued by the cabinet is incorporated herein by reference for the purposes of 405 KAR Chapters 7 through 24. Copies may be obtained from the cabinet. Departmental Policy Memorandum No. 81- 003, "Conflict of Interest," June 19, 1981. (10 Ky.R. 1216; eff. 8-7-84; Am. 12 Ky.R. 569; eff. 12-10-85; 15 Ky.R. 390; eff. 12-13-88; 18 Ky.R. 341; eff. 12- 17-91; 21 Ky.R. 523; eff. 12-12-94.) 405 KAR 7:030. APPLICABILITY. RELATES TO: KRS 350.010, 350.028, 350.057, 350.060, 350.151, 350.465, 30 CFR Parts 700.11, 707.11-.12, 730-733, 735, 917, 30 USC 1253, 1255, 1278, 1291 {SMCRA Secs. 503, 505, 528, 701} STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.465, 30 CFR Parts 700.11, 707.11-.12, 730-733, 735, 917, 30 USC 1253, 1255, 1278, 1291 {SMCRA Secs. 503, 505, 528, 701} NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations. This administrative regulation designates 405 KAR Chapters 7 through 24 as applicable to all coal exploration and surface coal mining and reclamation operations, and specifies those activities to which 405 KAR Chapters 7 through 24 do not apply. This administrative regulation reflects the jurisdiction of the cabinet over coal exploration and surface coal mining and reclamation operations and sets forth certain nonjurisdictional activities. SECTION 1. APPLICABILITY. {{ 30 CFR 700.11 }} 405 KAR Chapters 7 through 24 apply to all coal exploration and surface coal mining and reclamation operations, except any surface coal mining and reclamation operations which, together with any related operation, affected an area of two (2) acres or less, which were conducted pursuant to a two (2) acre or less permit issued by the cabinet, which were commenced on or before June 5, 1987, and on which mining ceased on or before November 7, 1987, in which case the provisions of 405 KAR Chapter 26 and KRS 350.060(13) shall apply. (1) For purposes of this administrative regulation, if a segment of a road is used for access or coal haulage by more than one (1) surface coal mining operation, the entire segment shall be included in the affected area of each of those operations; except that two (2) or more operations which are deemed related pursuant to subsection (2) of this section shall be considered as one (1) operation for the purposes of this subsection. (2) Except as provided in subsection (3) of this section, surface coal mining operations shall be deemed related if they occur within twelve (12) months of each other, are physically related, and are under common ownership or control. (a) Operations shall be deemed physically related if drainage from both operations flows into the same watershed at or before a point within five (5) aerial miles of both operations. (b) Operations shall be deemed under common ownership or control if they are owned or controlled, directly or indirectly, by or on behalf of: 1. The same person; 2. Two (2) or more persons, one (1) of whom controls, is under common control with, or is controlled by the other; or 3. Members of the same family and their relatives, unless it is established that there is no direct or indirect business relationship between or among them. (c) For purposes of this subsection, control exists if one has ownership of fifty (50) percent or more of the voting shares of, or general partnership in, an entity; any relationship which gives one (1) person the ability in fact or in law to direct what the other does; or any relationship which gives one (1) person express or implied authority to determine the manner in which coal at different sites will be mined, handled, sold or disposed of. (3) Notwithstanding the provisions of subsection (2) of this section, the cabinet may determine, in accordance with the procedures applicable to requests for determination of exemption pursuant to Section 3 of this administrative regulation, that two (2) or more surface coal mining operations shall not be deemed related if, considering the history and circumstances relating to the coal, its location, the operations at the sites in question, all related operations and all persons mentioned in subsection (2)(b) of this section, the cabinet concludes in writing that the operations are not of the type which SMCRA was intended to regulate and that there is no intention on the part of the operations or persons to evade the requirements of KRS Chapter 350 or 405 KAR Chapters 7 through 24. (4) The exemption provided by this section applies only to operations with an affected area of less than two (2) acres where coal is being extracted for commercial purposes and to surface coal mining operations within that affected area incidental to those operations. SECTION 2. COAL EXTRACTION INCIDENTAL TO GOVERNMENT FINANCED CONSTRUCTION. {{ 30 CFR 707.11, 707.12 }} (1)(a) Coal extraction which is an incidental part of government-financed construction is exempt from KRS Chapter 350 and 405 KAR Chapters 7 through 24, except subsection (2) of this section shall apply. (b) Any person who conducts or intends to conduct coal extraction which does not satisfy paragraph (a) of this subsection shall not proceed until a permit has been obtained from the cabinet. (c) Reclamation of abandoned mined lands funded under Title IV of SMCRA shall be deemed government- financed construction. (2) Information to be maintained on site. Any person extracting coal incident to government-financed highway or other construction who extracts more than 250 tons of coal or affects more than two (2) acres shall maintain, on the site of the extraction operation and available for inspection, documents which show: (a) A description of the construction project; (b) The exact location of the construction, right-of-way or the boundaries of the area which will be directly affected by the construction; and (c) The government agency which is providing the financing and the kind and amount of public financing, including the percentage of the entire construction costs represented by the government financing. SECTION 3. EXEMPTIONS. {{ 30 CFR 700.11 }} (1) Exemptions from 405 KAR Chapters 7 through 24 shall be recognized for the following: (a) The extraction of coal by a landowner of fifty (50) tons or less within twelve (12) successive calendar months for his or her own noncommercial use from land owned or leased by him or her. Noncommercial use does not include the extraction of coal by one (1) unit of an integrated company or other business or nonprofit entity which uses the coal in its own manufacturing or power plants; (b) The extraction of or intent to extract twenty-five (25) tons of coal or less by any person by within twelve (12) successive calendar months; (c) The extraction of coal as an incidental part of federal, state or local government-financed highway or other construction; and (d) The extraction of coal incidental to the extraction of other minerals if coal does not exceed sixteen and two-thirds (16 2/3) percent of the tonnage of coal and otherm inerals removed for purposes of commercial use or sale in accordance with 405 KAR 7:035. (2) The cabinet may on its own initiative and shall, within a reasonable time of a request from any person who intends to extract coal pursuant to subsection (1)(a) through (c) of this section, make a written determination whether the operation is exempt from 405 KAR Chapters 7 through 24. The cabinet shall give reasonable notice of the request to interested persons. Prior to the time a determination is made, any person may submit, and the cabinet shall consider, any written information relevant to the determination. A person requesting that an operation be declared exempt shall have the burden of establishing the exemption. (3) If a written determination of exemption pursuant to subsection (1)(a) through (c) of this section is reversed through subsequent administrative or judicial action, any person who, in good faith, has made a complete and accurate request for an exemption and relied upon the determination shall not be cited for violations which occurred prior to the date of the reversal. This subsection shall not apply to two (2) acre permits. (4) Exemptions pursuant to subsection (1)(d) of this section shall be subject to 405 KAR 7:035. SECTION 4. TERMINATION AND REASSERTION OF JURISDICTION. (1) Beginning November 1, 1992, the jurisdiction of the cabinet under 405 KAR Chapters 7-24 over the reclaimed site of a completed surface coal mining and reclamation operation, or increment thereof, or coal exploration operation, shall terminate when: (a) The cabinet has determined in writing that all requirements imposed under 405 KAR Chapters 7-24 and KRS Chapter 350 have been successfully completed; or (b) If a performance bond was required, the cabinet has made a final decision in accordance with 405 KAR 10:040 to release the performance bond fully. For the purposes of this section, the cabinet's decision to release the performance bond shall not be final until the time to file administrative and judicial appeals has expired and all appeals have been resolved. (2) If jurisdiction was terminated under subsection (1) of this section, the cabinet shall reassert jurisdiction under 405 KAR Chapters 7-24 over the site if it is demonstrated that the bond release decision or written determination referred to in subsection (1) of this section was based upon fraud, collusion, or misrepresentation of a material fact. (3) If the cabinet prior to November 1, 1992, terminated jurisdiction under 405 KAR Chapters 7-24 over the reclaimed site of a completed surface coal mining and reclamation operation, or increment thereof, or coal exploration operation, the cabinet shall reassert jurisdiction over the site if it is demonstrated that the bond release decision or other determination that led to the termination of jurisdiction was based upon fraud, collusion, or misrepresentation of a material fact. (8 Ky.R. 1465; eff. 2-2-83; Am. 10 Ky.R. 788; eff. 4-23-84; 11 Ky.R. 576; eff. 10-9-84; 15 Ky.R. 402; eff. 12-13- 88; 18 Ky.R. 353; eff. 11-26-91; 19 Ky.R. 464; eff. 11-9-92.) 405 KAR 7:035. EXEMPTION FOR COAL EXTRACTION INCIDENTAL TO THE EXTRACTION OF OTHER MINERALS. RELATES TO: KRS 350.010, 350.028, 350.060, 350.151, 350.465, 30 CFR Parts 702, 730-733, 735, 917, 30 USC 1253, 1255, 1291 {SMCRA Secs. 503, 505, 701} STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.465, 30 CFR Parts 702, 730-733, 735, 917, 30 USC 1253, 1255, 1291 {SMCRA Secs. 503, 505, 528, 701} NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate administrative regulations pertaining to surface coal mining and reclamation operations. KRS Chapter 350 also recognizes exemptions from regulation for certain types of operations. This administrative regulation recognizes a regulatory exemption for operations in which coal is extracted incidental to the extraction of other minerals. The administrative regulation sets forth application requirements and procedures for obtaining approval of these exemptions, requirements for public notice and disclosure of information concerning the exemption, standards for cabinet approval of the exemption, conditions for maintaining the exemption, rights of entry and inspection to the site for which the exemption was granted, and enforcement procedures and reporting requirements applicable to the exemption. SECTION 1. MEASUREMENT AND REPORTING PERIOD. (1) The beginning of the cumulative measurement period shall be: (a) For mining areas where extraction of coal or other minerals commenced on or after August 3, 1977, the date extraction of coal or other minerals commenced at that mining area; and (b) For mining areas where coal or other minerals were extracted prior to August 3, 1977, the operator shall select and consistently use one (1) of the following, subject to cabinet approval: the date extraction of coal or other minerals commenced at that mining area or August 3, 1977. (2) The end of the cumulative measurement period and the end of the twelve (12) month period (for annual reporting purposes pursuant to Section 9 of this administrative regulation) shall be: (a) For mining areas where extraction of coal or other minerals commenced on or after the effective date of this administrative regulation, the last day of the calendar quarter during which coal extraction commenced, and each anniversary of that day thereafter; and (b) For mining areas where coal or other minerals were extracted prior to the effective date of this administrative regulation, December 31, 1992 and each anniversary of that day thereafter. SECTION 2. APPLICATION REQUIREMENTS AND PROCEDURES. (1)(a) Any person who plans to commence or continue coal extraction after the effective date of this administrative regulation, in reliance on the incidental mining exemption, shall file a complete application for exemption with the cabinet for each mining area. (b) Following the effective date of this administrative regulation, a person shall not commence coal extraction based upon the exemption until the cabinet approves the application for exemption, except as provided in subsection (5)(c) of this section. (2) Existing operations. Any person who has commenced coal extraction at a mining area, prior to the effective date of this administrative regulation, in reliance upon the incidental mining exemption, may continue mining operations for sixty (60) days after the effective date of this administrative regulation. Coal extraction shall not continue after this sixty (60) day period unless that person files an administratively complete application for exemption with the cabinet. If an administratively complete application is filed within sixty (60) days, the person may continue extracting coal in reliance on the exemption beyond the sixty (60) day period until the cabinet makes an administrative decision on the application. (3) Additional information. The cabinet shall notify the applicant if the application for exemption is incomplete and may at any time require submittal of additional information. (4) Public comment period. Following publication of the newspaper notice required by Section 3(9) of this administrative regulation, the cabinet shall provide a period of no less than thirty (30) days during which any person having an interest that is or may be adversely affected by a decision on the application may submit written comments or objections. (5) Exemption determination. (a) No later than ninety (90) days after filing of an administratively complete application, the cabinet shall make a written determination whether, and under what conditions, the persons claiming the exemption are exempt under this administrative regulation, and shall notify the applicant and persons submitting comments on the application of the determination and the basis for the determination. (b) The determination of exemption shall be based upon information contained in the application and any other information available to the cabinet at that time. (c) If the cabinet fails to provide an applicant with the determination specified in paragraph (a) of this subsection, an applicant who has not begun may commence coal extraction pending a determination on the application unless the cabinet issues an interim finding, together with reasons therefore, that the applicant shall not begin coal extraction. (6) Administrative review. (a) In accordance with the procedures established under 405 KAR 7:092, Section 9, within thirty (30) days of the notification of a determination under subsection (5) of this section, any person adversely affected by the determination may request a formal hearing to review the determination. (b) A request for formal hearing filed under 405 KAR 7:092, Section 9 shall not suspend the effect of a determination under subsection (5) of this section. SECTION 3. CONTENTS OF APPLICATION FOR EXEMPTION. An application for exemption shall include at a minimum: (1) The name and address of the applicant; (2) A list of the minerals sought to be extracted; (3) Estimates of annual production of coal and the other minerals within each mining area over the anticipated life of the mining operation; (4) Estimated annual revenues to be derived from bona fide sales of coal and other minerals to be extracted within the mining area; (5) If coal or the other minerals are to be used rather than sold, estimated annual fair market values at the time of projected use of the coal and other minerals to be extracted from the mining area; (6) The basis for all annual production, revenue, and fair market value estimates; (7) A description, including county, city if within municipal boundaries, and boundaries of the land, of sufficient certainty that the mining areas can be located and distinguished from other mining areas; (8) An estimate to the nearest acre of the number of acres that will compose the mining area over the anticipated life of the mining operation; (9) Evidence of publication, in the newspaper of largest bona fide circulation (according to the definition in KRS 424.110 to 424.120) in the county of the mining area, of a public notice that an application for exemption has been filed with the cabinet. The public notice shall identify the persons claiming the exemption and shall contain a description of the proposed operation and its locality sufficient for interested persons to identify the operation; (10) Representative stratigraphic cross-section(s) based on test borings or other information identifying and showing: (a) The relative position, approximate thickness, and density of the coal and each other mineral to be extracted for commercial use or sale; and (b) The relative position and thickness of any material, not classified as other minerals, that will also be extracted during the conduct of mining activities; (11) A map of appropriate scale that clearly identifies the mining area; (12) A general description of mining and mineral processing activities for the mining area; (13) A summary of sale commitments and agreements, if any, that the applicant has received for future delivery of other minerals to be extracted from the mining area, or a description of potential markets for the other minerals; (14) If the other minerals are to be commercially used by the applicant, a description specifying the use (15) For operations having extracted coal or other minerals prior to filing an application for exemption, in addition to the information required above, the following information: (a) Any relevant documents the operator has received from the cabinet documenting the operation's exemption from the requirements of the SMCRA, KRS Chapter 350, and 405 KAR; (b) The cumulative production of the coal and other minerals from the mining area; and (c) Estimated tonnages of stockpiled coal and other minerals; and (16) Any other information pertinent to the qualification of the operation as exempt. SECTION 4. PUBLIC AVAILABILITY OF INFORMATION. (1) Except as provided in subsection (2) of this section, all information submitted to the cabinet under this administrative regulation shall be made immediately available for public inspection and copying at the department's regional office with jurisdiction over coal mining in the locality of the subject exempt operation, until at least three (3) years after expiration of the period during which the subject mining area is active. (2) The cabinet may keep information submitted to the cabinet under this administrative regulation confidential if the person submitting it requests in writing, at the time of submission, that it be kept confidential and if the information concerns trade secrets or is privileged commercial or financial information of the persons intending to conduct operations under this administrative regulation. (3) Information requested to be held as confidential under subsection (2) of this section shall not be made publicly available until after notice and opportunity to be heard is afforded persons both seeking and opposing disclosure of the information. SECTION 5. REQUIREMENTS FOR EXEMPTION. (1) Activities are exempt from the requirements of SMCRA, KRS Chapter 350, and 405 KAR (excluding this administrative regulation) if all of the following are satisfied: (a) The cumulative production of coal extracted from the mining area does not exceed sixteen and two- thirds (16 2/3) percent of the total cumulative production of coal and other minerals removed for purposes of bona fide sale or reasonable commercial use, determined annually. (b) The coal is produced from one (1) or more seams lying above the deepest stratum from which other minerals are extracted for purposes of bona fide sale or reasonable commercial use, or from a seam immediately below this deepest stratum. (c) The cumulative revenue derived from the coal extracted from the mining area does not exceed fifty (50) percent of the total cumulative revenue derived from the coal and other minerals removed for purposes of bona fide sale or reasonable commercial use, determined annually. If the coal extracted or the minerals removed are used by the operator or transferred to a related entity for use instead of being sold in a bona fide sale, then the fair market value of the coal or other minerals shall be calculated at the time of use or transfer and shall be considered rather than revenue. (2) Persons that are seeking or have obtained an exemption under this administrative regulation from the requirements of SMCRA, KRS Chapter 350, and 405 KAR Chapters 7 through 24 (excluding this administrative regulation) shall comply with the following: (a) Each other mineral upon which an exemption under this administrative regulation is based shall be a commercially valuable mineral for which a market exists or which is mined in bona fide anticipation that a market will exist for the mineral in the reasonably foreseeable future, not to exceed twelve (12) months from the end of the current period for which cumulative production is calculated. A legally binding agreement for the future sale of other minerals shall be sufficient to demonstrate this standard. (b) If either coal or other minerals are transferred or sold by the operator to a related entity for its use or sale, the transaction shall be made for legitimate business purposes. SECTION 6. CONDITIONS OF EXEMPTION AND RIGHT OF INSPECTION AND ENTRY. (1) A person conducting activities covered by this administrative regulation shall: (a) Maintain on-site, or at other locations available to authorized representatives of the cabinet and the Secretary of the U.S. Department of the Interior, information necessary to verify the exemption including, but not limited to, commercial use and sales information, extraction tonnages, and a copy of the exemption application and exemption approved by the cabinet; (b) Notify the cabinet upon completion of the mining operations or permanent cessation of all coal extraction activities; and (c) Conduct operations in accordance with the approved application or, if authorized to extract coal under Section 2(2) or (5)(c) of this administrative regulation prior to submittal or approval of an exemption application, in accordance with the standards of this administrative regulation. (2) Authorized representatives of the cabinet and the Secretary of the U.S. Department of the Interior shall have the right to conduct inspections of operations claiming exemption under this administrative regulation. (3) Each authorized representative of the cabinet and the Secretary of the U.S. Department of the Interior conducting an inspection under this administrative regulation shall: (a) Have a right of entry to, upon, and through any mining and reclamation operations without advance notice or a search warrant, upon presentation of appropriate credentials; (b) At reasonable times and without delay, have access to and copy any records relevant to the exemption; and (c) Have a right to gather physical and photographic evidence to document conditions, practices, or violations at a site. (4) No search warrant shall be required with respect to any activity under subsections (2) and (3) of this section, except that a search warrant may be required for entry into a building. SECTION 7. STOCKPILING OF MINERALS. (1) Coal. Coal extracted and stockpiled may be excluded from the calculation of cumulative production until the time of its sale, transfer to a related entity, or use: (a) Up to an amount equaling a twelve (12) month supply of the coal required for future sale, transfer, or use as calculated based upon the average annual sales, transfer, and use from the mining area over the two (2) preceding years; or (b) For a mining area where coal has been extracted for a period of less than two (2) years, up to an amount that would represent a twelve (12) month supply of the coal required for future sales, transfer, or use as calculated based on the average amount of coal sold, transferred, or used each month. (2) Other minerals. (a) The cabinet shall disallow all or part of an operator's tonnages of stockpiled other minerals for purposes of meeting the requirements of this administrative regulation if the operator fails to maintain adequate and verifiable records of the mining area of origin or the disposition of stockpiles, or if the disposition of the stockpiles indicates the lack of commercial use or market for the minerals. (b) The cabinet shall only allow an operator to utilize tonnages of stockpiled other minerals for purposes of meeting the requirements of this administrative regulation if: 1. The stockpiling is necessary to meet market conditions or is consistent with generally accepted industry practices; and 2. Except as provided in paragraph (c) of this subsection, the stockpiled other minerals do not exceed a twelve (12) month supply of the mineral required for future sales as approved by the cabinet on the basis of the exemption application. (c) The cabinet may allow an operator to utilize tonnages of stockpiled other minerals beyond the twelve (12) month limit established in paragraph (b) of this subsection if the operator can demonstrate to the cabinet's satisfaction that the additional tonnage is required to meet future business obligations of the operator, such as may be demonstrated by a legally binding agreement for future delivery of the minerals. (d) The cabinet may periodically revise the other mineral stockpile tonnage limits in accordance with the criteria established by paragraphs (b) and (c) of this subsection based on additional information available to the cabinet. SECTION 8. REVOCATION AND ENFORCEMENT. (1) Cabinet responsibility. The cabinet shall conduct an annual compliance review of the mining area, utilizing: (a) The annual report submitted pursuant to Section 9 of this administrative regulation; (b) An on-site inspection; and (c) Any other information available to the cabinet. (2) If the cabinet has reason to believe that a specific mining area was not exempt under the provisions of this administrative regulation at the end of the previous reporting period, is not exempt, or will be unable to satisfy the exemption criteria at the end of the current reporting period, the cabinet shall notify the operator that the exemption may be revoked and the reason(s) therefor. The exemption shall be revoked unless the operator demonstrates to the cabinet within thirty (30) days that the mining area in question did meet and will continue to meet the criteria for exemption. (3)(a) If the cabinet finds that an operator has not demonstrated that activities conducted in the mining area qualify for the exemption, the cabinet shall revoke the exemption and immediately notify the operator and interveners. If a decision is made not to revoke an exemption, the cabinet shall immediately notify the operator and interveners. (b) In accordance with the procedures established under 405 KAR 7:092, Section 9, within thirty (30) days of the notification of a decision whether to revoke an exemption, any person adversely affected by the decision may request a formal hearing to review the decision. (c) A request for formal hearing filed under 405 KAR 7:092, Section 9 shall not suspend the effect of a decision whether to revoke an exemption. (4) Direct enforcement. (a) An operator mining in accordance with the terms of an approved exemption shall not be cited for violations of KRS Chapter 350 or 405 KAR Chapters 7 through 24 that occurred prior to the revocation of the exemption. (b) An operator who does not conduct activities in accordance with the terms of an approved exemption and knows or ought to know that the activities are not in accordance with the approved exemption shall be subject to direct enforcement action for violations of KRS Chapter 350 and 405 KAR Chapters 7 through 24 that occur during the period of the activities. (c) Upon revocation of an exemption or denial of an exemption application, an operator shall stop conducting surface coal mining operations until a permit is obtained, and shall comply with the reclamation standards of KRS Chapter 350 and 405 KAR Chapters 7 through 24 with regard to conditions, areas, and activities existing at the time of revocation or denial. SECTION 9. REPORTING REQUIREMENTS. (1)(a) Following approval by the cabinet of an exemption for a mining area, the person receiving the exemption shall, for each mining area, file a written report annually with the cabinet containing the information specified in subsection (2) of this section. (b) The report shall be filed no later than thirty (30) days after the end of the twelve (12) month period as determined in accordance with Section 1(2) of this administrative regulation. (c) The information in the report shall cover: 1. Annual production of coal and other minerals and annual revenue derived from coal and other minerals during the preceding twelve (12) month period; and 2. The cumulative production of coal and other minerals and the cumulative revenue derived from coal and other minerals. (2) For each period and mining area covered by the report, the report shall specify: (a) The number of tons of extracted coal sold in bona fide sales and the total revenue derived from these sales; (b) The number of tons of coal extracted and used or transferred by the operator or related entity and the estimated total fair market value of this coal; (c) The number of tons of coal stockpiled; (d) The number of tons of other commercially valuable minerals extracted and sold in bona fide sales and total revenue derived from these sales; (e) The number of tons of other commercially valuable minerals extracted and used or transferred by the operator or related entity and the estimated total fair market value of these minerals; and (f) The number of tons of other commercially valuable minerals removed and stockpiled by the operator. (18 Ky.R. 560; Am. 1069; 1865; eff. 11-26-91.) 405 KAR 7:040. GENERAL OBLIGATIONS OF OPERATORS AND PERMITTEES. RELATES TO: KRS 350.050, 350.057, 350.060, 350.410, 350.450 STATUTORY AUTHORITY: KRS 350.020, 350.028, 350.057, 350.060, 350.090, 350.151, 350.465 NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations. This administrative regulation sets forth the basic requirements and general obligations of operators and permittees. This administrative regulation prescribes certain methods of disposal of materials and other obligations of operators and permittees. SECTION 1. GENERAL REQUIREMENTS FOR PERMITS AND EXPLORATION APPROVALS. (1) Requirement to obtain a permit. No person or operator shall engage in surface coal mining and reclamation operations without first having obtained from the cabinet a valid permit covering the area of land to be affected. (2) Requirement to obtain exploration approval. Subject to the provisions of 405 KAR 8:020, no person or operator shall engage in coal exploration operations without first having filed a written notice of intention to explore or having obtained written approval from the cabinet. (3) Requirement to comply with permit or exploration approval. A permittee or person issued a coal exploration approval shall comply with all terms and conditions placed upon the permit or exploration approval by the cabinet and with all plans submitted as part of the application approved by the cabinet. SECTION 2. DISPOSAL OF MATERIALS. A person or operator engaged in surface coal mining and reclamation operations shall not throw, pile, dump or permit the throwing, piling, dumping or otherwise placing of any overburden, stones, rocks, coal, particles of coal, earth, soil, dirt, debris, trees, wood, logs, or any other materials or substances of any kind or nature beyond or outside of an area of land which is under permit and for which bond has been posted pursuant to KRS Chapter 350, nor place such materials herein described in such a way that normal erosion or slides brought about by natural physical changes will permit such materials to go beyond or outside of an area of land which is under permit and for which bond has been posted pursuant to KRS Chapter 350. SECTION 3. UNSAFE PRACTICES. (1) A person or operator engaged in surface coal mining and reclamation operations shall not engage in any operations which result in a condition or constitute a practice that creates an imminent danger to the health or safety of the public. (2) A person or operator engaged in surface coal mining and reclamation operations shall not engage in any operations which 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. (3) Upon development of any emergency conditions which threaten the life, health, or property of the public, the operator shall immediately notify the persons whose life, health or property are so threatened, shall take any and all reasonable actions to eliminate the conditions creating the emergency, and shall immediately provide notice of the emergency conditions to the cabinet, to local law enforcement officials and to appropriate local government officials. Any emergency action taken by an operator pursuant to this subsection shall not relieve the operator of other obligations pursuant to 405 KAR Chapters 7 through 24 or of obligations under other applicable local, state or federal laws and regulations. SECTION 4. EXISTING STRUCTURES ON AREAS SOUGHT TO BE PERMITTED. {{ 30 CFR 701.11 }} (1) Except as provided in subsection (2) of this section, no application for a permit or a revision which proposes to use an existing structure in connection with or to facilitate the proposed coal exploration or surface coal mining and reclamation operation shall be approved, unless the applicant demonstrates and the cabinet finds, in writing, on the basis of complete information set forth in the complete application that: (a) Irrespective of whether the structure meets the design requirements of 405 KAR Chapters 16 through 20, the existing structure will operate in compliance with the performance standards set forth in 405 KAR Chapters 16 through 20; (b) No significant harm to the environment or public health or safety will result from the use of the structure; and (c) The applicant will monitor the structure as required by the cabinet to determine compliance with the performance standards of 405 KAR Chapters 16 through 20. (2) In the event the applicant fails to demonstrate that the existing structure meets the requirements of subsection (1) of this section, no application for a permit or revision which proposes to use such an existing structure in connection with or to facilitate the proposed coal exploration or surface coal mining and reclamation operation shall be approved unless the applicant demonstrates and the cabinet finds, in writing, on the basis of complete information set forth in the complete application that: (a) Such existing structure complies with the performance standards of 405 KAR Chapter 1 or 3; and (b) 405 KAR Chapters 16 through 20 require performance standards for such existing structure which either are not required by, or are more stringent than the performance standards of 405 KAR Chapter 1 or 3; and (c) The applicant has included as a part of the application a compliance plan for modification or reconstruction of the structure demonstrating: 1. That the modification or reconstruction of the structure will bring the structure into compliance with the performance standards of 405 KAR Chapters 16 through 20 as soon as possible but not later than six (6) months from the date of issuance of the permit unless the applicant demonstrates to the satisfaction of the cabinet that a longer time is necessary due to the scope and nature of the reconstruction; 2. That the risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction; and 3. The applicant will monitor the structure as required by the cabinet to determine compliance with the performance standards of 405 KAR Chapters 16 through 20. (d) Should the cabinet find that the existing structure cannot be reconstructed without causing significant harm to the environment or public health or safety, the applicant will be required to abandon or remove the existing structure in the manner provided in 405 KAR 16:010 or 405 KAR 18:010. The structure shall not be used for or to facilitate surface coal mining operations after the date a permanent program permit is required under 405 KAR 8:010. (3) In the event that 405 KAR Chapter 1 or 3 prescribes a performance standard applicable to any such existing structure which performance standard has not been complied with by the applicant, no permit shall be issued by the cabinet unless the applicant shall have redesigned and reconstructed such existing structure in accordance with the design requirements of 405 KAR Chapters 16 through 20. (4) Existing structures allowed to operate subsequent to permit approval as provided in subsection (1) of this section shall not include coal waste piles used either temporarily or permanently as dams or embankments. Such existing coal waste piles allowed to operate subsequent to permit approval as provided in subsection (2) of this section must be modified or reconstructed in order to comply with the design requirements of 405 KAR Chapters 16 through 20 in addition to the performance standards. (5) Any structures or facilities which must be reconstructed pursuant to subsection (2) of this section shall be reconstructed according to engineering plans prepared and certified by a registered professional engineer. Upon completion of reconstruction, the responsible engineer shall certify to the cabinet, within fourteen (14) days thereafter, that the reconstruction was performed in accordance with the approved design plans. SECTION 5. HAZARD CLASSIFICATIONS FOR IMPOUNDMENTS. (1) For proposed new sedimentation ponds or other new impoundments and those proposed for reconstruction pursuant to Section 4(2) and (3) of this administrative regulation, the responsible design engineer shall determine the structure hazard classification according to the classification descriptions. For structures classified (B) - moderate hazard or (C) - high hazard, the operator shall obtain a permit from the cabinet pursuant to KRS 151.250, and administrative regulations adopted pursuant thereto, prior to beginning reconstruction or construction. (2) Structure hazard classifications are as follows: The following broad classes of structures are established to permit the association of criteria with the damage that might result from a sudden major breach of the structure: (a) Class (A); low hazard: structures located such that failure would cause loss of the structure itself but little or no additional damage to other property. Such structures will generally be located in rural or agricultural areas where failure may damage farm buildings other than residences, agricultural lands, or county roads. (b) Class (B); moderate hazard: structures located such that failure may cause significant damage to property and project operation, but loss of human life is not envisioned. Such structures will generally be located in predominantly rural agricultural areas where failures may damage isolated homes, main highways or major railroads, or cause interruptions of use or service of relatively important public utilities. (c) Class (C); high hazard: structures located such that failure may cause loss of life, or serious damage to homes, industrial or commercial buildings, important public utilities, main highways or major railroads. This classification must be used if failure would cause probable loss of human life. (3) The responsible engineer shall determine the classification of the structure after considering the characteristics of the valley below the site and probable future development. Establishment of minimum criteria does not preclude provisions for greater safety when deemed necessary in the judgment of the engineer. Considerations other than those mentioned in the above classifications may require that the established minimum criteria be exceeded, as determined by the cabinet. A statement of the classification established by the responsible engineer shall be clearly shown on the first sheet of the design drawings. (4) When structures are spaced so that the failure of an upper structure could endanger the safety of a lower structure, the possibility of a multiple failure must be considered in assigning the structure classification of the upstream structure. SECTION 6. REPORTS REQUIRED. The operator shall submit such reports, documentation, certifications, or other information as the cabinet may require, or as may be required by KRS Chapter 350 and administrative regulations adopted pursuant thereto. SECTION 7. COAL EXPLORATION. (1) Any person conducting coal exploration on or after the date specified in Section 11 of this administrative regulation shall either file a Notice of Intention to Explore or obtain approval of the cabinet as required by 405 KAR 8:020. (2) The coal exploration performance standards in 405 KAR 20:010 shall apply to coal exploration which substantially disturbs the natural land surface two (2) months after the date specified in Section 11 of this administrative regulation. SECTION 8. Compliance with 405 KAR Chapters 7 through 24 does not relieve any person or operator from the obligation to comply with other applicable administrative regulations of the cabinet. SECTION 9. {{ 30 CFR 701.11(e) }} The requirement to restore the approximate original contour of the land shall apply regardless of any reconstruction of any existing structure allowed pursuant to Section 4 of this administrative regulation. SECTION 10. CERTIFICATIONS BY REGISTERED PROFESSIONAL ENGINEERS. (1) A document required to be certified shall be rejected by the cabinet as incomplete if its accuracy is not so attested. (2) Certification by a qualified registered professional engineer as required by 405 KAR means a good faith representation to the best of his or her knowledge and belief, based on adequate knowledge of the requirements of KRS Chapter 350 and 405 KAR, related experience, best professional judgment, accepted engineering practices and recognized professional standards, and standard practice as it relates to direct participation by the registered professional engineer or supervision of the registered professional engineer's employees or subordinates. Such certification shall not be construed to constitute a warranty or guarantee. (3) Certification of maps, plans, and drawings. Where 405 KAR requires that maps, plans, and drawings be certified by a qualified registered professional engineer, the registered professional engineer shall certify: (a) That the information or documentation contained in the map, plan, or drawing is correct as determined by accepted engineering practices; and (b) That the map, plan or drawing includes all the information required by KRS Chapter 350 and 405 KAR. (4) Certification of designs. Where 405 KAR requires that a qualified registered professional engineer design and certify a facility, he or she shall certify that: (a) The design is in accordance with accepted engineering practices and recognized professional standards; (b) The design complies with the design requirements of KRS Chapter 350 and 405 KAR; and (c) Provided the facility is properly constructed, operated, and maintained, the design is adequate for the facility to meet the applicable performance standards of KRS Chapter 350 and 405 KAR insofar as such performance can reasonably be predicted by accepted engineering practices. (5) Certification of construction. (a) Where 405 KAR requires that a qualified registered professional engineer certify that a facility was constructed in accordance with the design approved by the cabinet, he or she shall certify: 1. That adequate inspections were conducted by the qualified registered professional engineer or by persons under his or her supervision; 2. That the construction was performed in accordance with accepted construction practices; and 3. Either that the facility was constructed in accordance with the design approved by the cabinet, or that the facility was constructed in accordance with the design approved by the cabinet except for certain minor deviations which will not adversely affect the performance of the facility nor render the facility in violation of KRS Chapter 350 and 405 KAR. (b) Any minor deviations shall be described in the certification document and the effect of the deviations upon the performance of the facility shall be explained. (c) As-built drawings shall be submitted as a part of the certification. (6) Certification of maintenance. Where 405 KAR requires that a qualified registered professional engineer certify the maintenance of a structure, he or she shall certify that: (a) An inspection of the structure was conducted by the registered professional engineer or by a person under his or her supervision; and (b) Based on that inspection, the registered professional engineer has determined that the structure has been maintained as required by 405 KAR. (7) Certifications shall be made in the form prescribed by the cabinet, and the cabinet may reject any certification which is not made in such form. (8 Ky.R. 1469; eff. 1-6-83.) 405 KAR 7:050. COAL PROCESSING WASTE DISPOSAL SITES. RELATES TO: KRS 151.125, 151.297, 224.071, 350.020, 350.090(1), 350.420 STATUTORY AUTHORITY: KRS 151.125, 224.033, 350.020 NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.020 states that unregulated surface coal mining operations create hazards dangerous to life and property and that it is the purpose of KRS Chapter 350 to provide such regulation and control of these operations in order to minimize or prevent injurious effects on the people and resources of the Commonwealth. KRS 350.020 directs the cabinet to adopt whatever administrative regulations are found necessary to accomplish the purpose of KRS Chapter 350. Furthermore, KRS 151.125 and 151.297 provide for the issuance of remedial orders whenever life or property are or may be endangered by the failure of any dam, reservoir, levee, embankment, or other water barrier. In addition, KRS 224.071 provides for the issuance of abate and alleviate orders when there is a danger to the health or welfare of the people of the Commonwealth or to natural resources. This administrative regulation provides for the control of coal processing waste dams, waste impoundments, and waste banks in order to prevent loss of life, damage to property, and injurious effects on the environment of the Commonwealth due to structural failure of these facilities and is necessary because such facilities are not otherwise adequately regulated. This administrative regulation provides, among other things, for submittal of engineering reports, performance standards, and remedial measures to correct dangerous facilities. SECTION 1. APPLICABILITY. This administrative regulation applies to all coal processing waste disposal sites, whether dams, waste impoundments, or waste banks, that were constructed or utilized after August 3, 1977, regardless of whether or not the sites are or have been under permit or bond under KRS Chapter 350. SECTION 2. REPORTS. (1) Within sixty (60) days of September 21, 1982, operators or owners of coal processing waste disposal sites shall submit two (2) copies of the following to the cabinet regional office: (a) All existing information currently available to the operator or owner including complete design of the facility, stability analyses, and a description of the coal processing waste material at the site including moisture content and particle size gradation. This shall also include copies of plans submitted to and/or approved by MSHA. If such plans submitted to MSHA include all of the information required by this paragraph, then submittal of copies of such plans shall suffice. Where information required by this paragraph has already been submitted to the cabinet as a part of a permit application, the operator or owner shall so notify the cabinet regional office in writing and need not resubmit duplicate material. (b) As-built drawings of the current phase of construction or of the completed facility as applicable, including a map showing the location of the facility. (2) Analyses and descriptions submitted under subsection (1)(a) of this section shall be based upon current information available to the operator or owner. However, on a case-by-case basis, at any time, the cabinet may require the operator or owner to submit such additional plans and analyses or to conduct such investigations and testing of materials as necessary to determine the stability of the facility where failure of the facility could cause damage to life or property or injurious effects on the environment of the Commonwealth. This may include, but is not limited to, seepage investigations, settlement studies based on compressibility and mining subsidence, foundation investigations including borings or test pits, laboratory testing of foundation materials, and determination of strength parameters based on laboratory testing of site specific coal processing waste materials. SECTION 3. PERFORMANCE STANDARDS. (1) Any coal processing waste disposal site impounding water, or impounding coal processing waste which is physically unstable due to excessive moisture content or excessive fine-grained material, and any dam containing coal processing waste in the embankment shall comply with either 405 KAR 1:210 or 405 KAR 3:180. (2) All other coal processing waste disposal sites shall comply with 30 CFR 77.214 as amended at 36 Fed. Reg. 13,143 (1971) and 30 CFR 77.215 as amended at 40 Fed. Reg. 41,776 (1975), provided, however, no facility shall be constructed in such manner that it may cause loss of life, damage to property, or injurious effects on the environment of the Commonwealth due to structural failure of the facility. (3) Those portions of structures that have already been constructed and structures that have been completed need not be reconstructed except where reconstruction is determined by the cabinet to be necessary to ensure stability of the facility in order to eliminate potential hazards to life or property or to prevent injurious effects on the environment of the Commonwealth. (4) Nothing in this administrative regulation shall be construed as relieving an operator from the obligation to comply with any other provision of 405 KAR, including, but not limited to, compliance with the permanent program performance standards and the requirements for existing structures in 405 KAR 7:040, Section 4. SECTION 4. REMEDIAL MEASURES. Operators or owners of coal processing waste disposal sites may be required by the cabinet to revise the facility design and/or to implement such remedial measures as necessary to comply with Section 3 of this administrative regulation. SECTION 5. CERTIFICATIONS. (1) All designs, maps, plans, and drawings submitted under this administrative regulation shall be prepared and certified by a qualified registered professional engineer. (2) Construction or reconstruction of coal processing waste disposal sites shall be inspected during and after construction by a qualified registered professional engineer or by qualified persons under the engineer's supervision and the facility shall be certified within two (2) weeks of each inspection by the responsible qualified registered professional engineer as having been constructed in accordance with the design approved by the cabinet. Where the cabinet has not yet reviewed and approved the design, the engineer shall make the certifications based upon the design approved by MSHA. (9 Ky.R. 634; Am. 1148; eff. 5-4-83.) 405 KAR 7:060. EXPERIMENTAL PRACTICES MINING. RELATES TO: KRS 350.020, 350.028, 350.465 STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.465 NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations pertaining to surface coal mining and reclamation operations that are no more stringent than SMCRA. This administrative regulation governs the granting and approval of experimental mining practices that encourage advances in mining, reclamation, and postmining land use practices. SECTION 1. GENERAL. {{ 30 CFR 785.13 }} Experimental practices provide a variance from the environmental protection performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20 for experimental or research purposes to encourage advances in mining and reclamation practices or to allow certain alternative postmining land uses. Experimental practices may be undertaken if they are approved by the cabinet and the Director of OSM and if their terms and conditions are incorporated into a permit, a permit amendment, or a permit revision issued in accordance with 405 KAR 8:010. SECTION 2. APPROVAL PROCEDURES. {{ 30 CFR 785.13 }} (1) Required approval. No person shall engage in or maintain any experimental practice unless that practice is first approved in a permit by the cabinet and the Director of OSM. (2) Application requirements. Each permit application submitted pursuant to this administrative regulation shall contain appropriate descriptions, data, maps, and plans which identify: (a) The nature of the experimental practice, including a description of the performance standards for which variances are requested, the duration of the experimental practice, and any special monitoring which will be conducted. (b) How use of the experimental practice: 1. Encourages advances in mining and reclamation technology; or 2. Allows a postmining land use for industrial, commercial, residential, or public (including recreational facilities) use on an experimental basis, when the results are not otherwise attainable under the administrative regulations of 405 KAR Chapters 7 through 24. (c) That the experimental practice: 1. Is potentially more, or at least as, environmentally protective during and after the proposed mining and reclamation operations as would otherwise be required by standards promulgated under 405 KAR Chapters 16 through 20; and 2. Will not reduce the protection afforded public health and safety below that provided by the requirements of 405 KAR Chapters 16 through 20. (d) That the applicant will conduct monitoring of the effects of the experimental practice. The monitoring program shall ensure the collection, analysis, and reporting of sufficient, reliable data to enable the cabinet and the Director of OSM to: 1. Evaluate the effectiveness of the experimental practice; and 2. Identify, as soon as possible, potential risks to the environment and public health and safety which may be caused by the experimental practice during and after mining. (e) To the extent possible as can be foreseen prior to the actual conductance of the experimental practice, the procedures and measures which will be implemented to comply with the performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20, or, if such compliance is not possible, to provide a level of protection equivalent to or in excess of that provided for by the performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20, if the experimental practice should fail to be as environmentally protective or as protective of the health or safety of the public as provided for by the performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20. (3) Public notice. All experimental practices for which variances are sought shall be specifically identified through the newspaper advertisements by the applicant and the written notifications by the cabinet required under 405 KAR 8:010, Section 8. (4) Criteria for approval. No permit authorizing an experimental practice shall be issued unless the cabinet finds, in writing upon the basis of both a complete application filed in accordance with the requirements of this administrative regulation and 405 KAR Chapter 8, and the concurrence of the Director of OSM, that: (a) The experimental practice encourages advances in mining and reclamation technology or allows a postmining land use for industrial, commercial, residential, or public (including recreational facilities) use on an experimental basis; (b) The experimental practice is potentially more, or at least as, environmentally protective during and after mining operations as would otherwise be required under 405 KAR Chapters 16 through 20; (c) The mining operations approved for a particular land use or other purpose are not larger or more numerous than necessary to determine the effectiveness and feasibility of the experimental practice; and (d) The experimental practice does not reduce the protection afforded public health and safety below that provided by standards promulgated under 405 KAR Chapters 16 through 20. (5) Revisions. Revisions to an experimental practice shall be processed and approved in accordance with 405 KAR 8:010, Section 20. Any revisions which propose significant alterations in the experimental practice shall be deemed major revisions and subject to the approval of the Director of OSM. Revisions that do not propose significant alterations in the experimental practice shall be deemed minor revisions and shall not require the approval of the Director of OSM. (6) Prime farmland. Experimental practices granting variances from the special environmental performance standards applicable to prime farmland shall be approved only after consultation with SCS. (7) Alternative postmining land uses. Experimental practices granting variances from the requirements of KRS Chapter 350 and 405 KAR for alternative postmining land uses shall not be approved by the cabinet, unless the attainment of the alternative postmining land uses would not otherwise be practicable or feasible without the approval of the experimental practice. SECTION 3. MONITORING AND ADDITIONAL REQUIREMENTS. (1) Each permittee undertaking an experimental practice shall conduct the periodic monitoring, recording, and reporting programs set forth and approved in the application. Each permittee shall satisfy such additional requirements as the cabinet or the Director of OSM may impose to ensure protection of the environment and the public health and safety. (2) In accordance with 405 KAR 8:010, Section 18, the terms and conditions applicable to the experimental practice shall be as indicated in the approved permit application. (3) If, subsequent to the issuance of a permit for an experimental practice, the experimental practice should fail to be as environmentally protective or as protective of the health or safety of the public as provided for by the performance standards of KRS Chapter 350 and 405 KAR Chapters 16 through 20, the permittee shall immediately contact the cabinet and the OSM, shall fully and accurately describe the situation to those agencies, and shall implement those procedures and measures identified pursuant to Section 2(2)(e) of this administrative regulation which are necessary to achieve such a condition. If the procedures and measures identified pursuant to Section 2(2)(e) of this administrative regulation are determined by the cabinet or the OSM to be insufficient to achieve this condition, the permittee shall perform remedial measures as required by the cabinet or the OSM to achieve such a condition. If the cabinet or the OSM determines that such a level of protection cannot be achieved, the cabinet or the OSM shall inform the permittee of remedial measures which must be implemented to provide maximum protection to the environment and the health and safety of the public. SECTION 4. PERIODIC REVIEW. {{ 30 CFR 785.13 }} (1) Each experimental practice shall be reviewed by the cabinet at a frequency set forth in the approved permit but no less than two and one-half (2 1/2) years. After review the cabinet shall, after consulting with the Director of OSM, require, by order supported by written findings, any reasonable modification of the experimental practice necessary to ensure that the operations involved are conducted to fully protect the environment and public health and safety. (2) Administrative review of modification order. Any person who is or may be adversely affected by an order pursuant to subsection (1) of this section shall be provided with an opportunity for a hearing as established in 405 KAR 7:092, Section 8. (8 Ky.R. 1471; eff. 1-6-83; Am. 12 Ky.R. 897; eff. 2-4-86.) 405 KAR 7:070. CERTIFICATION OF BLASTERS. RELATES TO: KRS 350.430, 351.380 {{ 30 CFR Part 850 }} STATUTORY AUTHORITY: KRS Chapter 13A, 224.033(20), 350.020, 350.028, 350.050, 350.465 NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 requires the cabinet to promulgate administrative regulations to implement the Surface Mining Control and Reclamation Act of 1977 (PL 95-87). PL 95-87, along with federal regulations promulgated pursuant thereto, requires the establishment of a blaster training, examination, and certification program. This administrative regulation establishes a certification program for blasters who are responsible for surface blasting operations incident to surface coal mining and reclamation operations and coal exploration operations. The administrative regulation contains requirements for the training, examination, and certification of blasters; requirements to which blasters must adhere in order to maintain their certifications; provisions whereby certified blasters may seek renewal of their certifications; and requirements for suspension, revocation, and reinstatement of certifications. SECTION 1. BLASTING OPERATIONS TO BE CONDUCTED UNDER THE DIRECTION OF A CERTIFIED BLASTER. {{ 30 CFR 850.5 }} (1) As used in this administrative regulation, the following terms shall have the indicated meanings: (a) "BLASTER" means a person who is directly responsible for surface blasting operations in surface coal mining and reclamation operations or coal exploration operations. (b) "SURFACE BLASTING OPERATIONS" means the on-site storage, transportation, and use of explosives in association with coal exploration operations, surface mining activities, and surface disturbances of underground mining activities. The term shall be interpreted broadly and shall encompass activities including, but not limited to, the design of individual blasts, the implementation of blast designs, the initiation of blasts, the monitoring of airblast and ground vibration, and the use of protective measures such as access control and warning and all-clear signals. (2) Each permittee and each person conducting coal exploration operations shall have all surface blasting operations incident to surface coal mining and reclamation operations and coal exploration operations conducted under the direction of a blaster certified in accordance with this administrative regulation. Notwithstanding the exemption in 405 KAR 7:030, Section 1, this section shall also apply to permittees of operations with an affected area of two (2) acres or less. SECTION 2. REQUIREMENTS FOR CERTIFICATION. (1) A person desiring to become certified under this administrative regulation shall file an application upon a form furnished by the cabinet. This application shall identify the applicant's name, address, telephone number, and place of employment; shall contain the information required by subsections (2) through (7) of this section; and shall contain such additional information as the cabinet deems necessary for the purposes of this administrative regulation. The application shall be submitted to the central office of the department's Division of Field Services, located in Frankfort, Kentucky, accompanied by a fee of twenty-five (25) dollars. (2) The applicant shall demonstrate that he or she has received training in the technical aspects of blasting operations and Kentucky and federal laws and regulations governing the storage, transportation, and use of explosives by completing a training course approved by the cabinet. This course shall provide training and discuss practical applications of the topics listed in subsection (5) of this section. (3) The applicant shall demonstrate that he or she holds a valid Kentucky Blaster's License issued by the Kentucky Department of Mines and Minerals. (4) The application shall include at least two (2) letters of reference on forms provided by the cabinet. Each of these letters shall be from a person who has employed the applicant in blasting operations, from the applicant's supervisor while employed in blasting operations, or from a licensed blaster who has worked with the applicant in blasting operations. The letters shall indicate that the applicant has exhibited a pattern of conduct consistent with the acceptance of responsibility for blasting operations. (5) The applicant shall pass a written examination on the technical aspects of blasting and Kentucky and federal laws and regulations governing the storage, use, and transportation of explosives. The examination shall cover, at a minimum, the following topics: (a) Explosives, including: 1. Selection of the type of explosive to be used; 2. Determination of the properties of explosives which will produce desired results at an acceptable level of risk; and 3. Handling, transportation, and storage of explosives. (b) Blast designs, including: 1. Geologic and topographic considerations; 2. Design of a blast hole, with critical dimensions; 3. Pattern design, field layout, and timing of blast holes; and 4. Field applications. (c) Loading blast holes, including priming and boostering. (d) Initiation systems and blasting machines. (e) Blasting vibrations, airblast, and flyrock, including: 1. Monitoring techniques; and 2. Methods to control adverse effects. (f) Secondary blasting applications. (g) Current federal and Kentucky rules applicable to the storage, transportation, and use of explosives. (h) Blast records. (i) Schedules. (j) Preblasting surveys, including: 1. Availability; 2. Coverage; and 3. Use of in-blast design. (k) Blast-plan requirements. (l) Certification and training. (m) Signs, warning signals, and site control. (n) Unpredictable hazards, including: 1. Lightning; 2. Stray currents; 3. Radio waves; and 4. Misfires. (6) Any person who fails the examination discussed in subsection (5) of this section may retake it after thirty (30) days; provided however, any person failing the examination twice may not retake it until after completing an approved training course and filing a new application. (7)(a) Upon receipt of an application for certification, the cabinet shall review the application and promptly notify the applicant, in writing, as to the application's completeness. 1. If the application is incomplete, the notification shall specify the application's deficiencies. The applicant may then submit, or cause to be submitted, documentation of test results, verification of training, letters of reference, or any other information necessary to correct the cited deficiencies. The applicant shall have three (3) months, beginning on the date on which the notification of incompleteness is mailed or otherwise delivered to the applicant, during which the deficiencies may be corrected. If the deficiencies are not corrected during this three (3) month period, the application file shall be closed and, at the cabinet's discretion, discarded. Once the application file has been closed, the certification shall not be issued unless and until a new application is submitted pursuant to subsection (1) of this section and compliance is demonstrated with all applicable requirements of this administrative regulation. 2. If the application is complete, the notification shall either be accompanied by the issued certificate or it shall state that the cabinet is verifying information pursuant to paragraph (b) of this subsection. After any such verification is performed and the cabinet is satisfied that all applicable requirements of this administrative regulation have been met, the cabinet shall promptly issue the certification. (b)1. The cabinet may, at its discretion, verify any of the information contained in the application. If, as a result of any such verification effort, the cabinet determines that the applicant has knowingly caused falsified or misrepresented information to be submitted in the application, the cabinet shall deny certification and the applicant shall be ineligible to reapply for certification for at least one (1) year period. 2. After the period of ineligibility defined pursuant to subparagraph 1 of this paragraph, certification may only be granted if a new application is submitted pursuant to subsection (1) of this section. All of the information contained in the application shall be provided anew: this shall include new letters of reference pursuant to subsection (4) of this section; documentation that the applicant has been retrained pursuant to subsection (2) of this section and retested pursuant to subsection (5) of this section; and a demonstration, pursuant to subsection (3) of this section, that the applicant holds a valid blaster's license issued by the Kentucky Department of Mines and Minerals. (8)(a) The cabinet shall issue a blaster certification to any applicant who meets the requirements of subsections (1) through (7) of this section, except the cabinet shall deny certification if the applicant cannot reasonably be expected to conduct himself or herself in a manner consistent with the acceptance of responsibility for blasting operations. The cabinet shall make determinations regarding issuance or denial of the certification based upon the blaster's actions during any prior term of certification, the information contained in the application, and any other pertinent information that is available to the cabinet. (b) The certification shall be issued for a term of three (3) years. (9) Any person aggrieved by a determination under this section may request a formal hearing in accordance with 405 KAR 7:092, Section 9. SECTION 3. RENEWAL OF CERTIFICATION. Subject to the provisions of this section, certified blasters shall have the right to successive renewal of their certifications. (1)(a) Applications for certification renewal shall be submitted on forms provided by the cabinet. Each such application shall identify the applicant's name, address, telephone number, and place of employment; shall contain the information required by subsection (3) of this section; and shall contain such additional information as the cabinet deems necessary for the purposes of this administrative regulation. The application shall be submitted to the central office of the department's Division of Field Services, located in Frankfort, Kentucky, and shall be accompanied by a renewal fee of ten (10) dollars, plus any reexamination fee required pursuant to subsection (3) of this section. The renewal application shall not be submitted more than ninety (90) days prior to certification expiration. (b)1. The cabinet shall neither accept nor process the renewal application of a blaster who does not hold a valid Kentucky blaster's license, whose certification is revoked, whose certification is suspended pursuant to Section 4(2)(b) of this administrative regulation, or whose certification is revoked pursuant to an order rendered under Section 4(4)(b)3 or (5) of this administrative regulation. If a blaster's certification is suspended pursuant to an order rendered under Section 4(4)(b)3 or (5) of this administrative regulation, a renewal application will be accepted and processed only in accordance with Section 9(2)(a)2 and only if the term and conditions of the suspension have been met. 2. If an application for renewal is submitted and, prior to renewal, the certification is suspended, revoked, or otherwise invalidated, the renewal application shall be rendered null and void and shall be returned to the applicant. (2)(a)1. If the blaster seeking renewal desires for his or her certification not to lapse, the renewal application must be submitted sixty (60) or more days prior to the expiration date identified on the blaster's certificate. For applications which are so submitted, the cabinet shall renew the certification, deny the renewal request, or withdraw the renewal request for submission of additional information pursuant to subsection (1)(a) of this section, prior to the date of the certification's expiration. A blaster who submits a renewal application pursuant to this subparagraph shall be eligible for an extension of his or her certification pursuant to subparagraph 2 of this paragraph, should such an extension be necessary and justified as provided for in that subparagraph. 2. If the blaster has submitted a renewal application sixty (60) or more days prior to the expiration date identified on the blaster's certificate, and if the cabinet has not taken final action on the application by the certificate's expiration date, the cabinet may postpone expiration of certification, in order to lessen the likelihood of a lapse in certification during the interim period between the expiration date identified on the certificate and issuance of the renewed certification. Such postponement shall be granted by written letter signed by the director of the department's Division of Field Services and shall delay certification expiration for a period of sixty (60) days. A postponement pursuant to this subparagraph may only be granted once per renewal application and may only be granted if: a. Through no fault of the certified blaster, the cabinet has not taken final action on the renewal request as of the expiration date identified on the blaster's certificate; and b. The blaster is making a good faith effort to obtain renewal. (b) If the blaster desiring renewal fails to submit his or her renewal application sixty (60) or more days prior to the expiration date identified on the certificate, the certification may only be renewed if the renewal application, complete with all information necessary for the cabinet to grant the renewal, is submitted prior to certification expiration or within ninety (90) days following certification expiration. However, if the application is so submitted, the certification shall be considered to have lapsed during any interim period between expiration of the certificate and issuance of the renewed certificate. Blasters who apply for renewal pursuant to this paragraph shall not be eligible for postponement of certification expiration pursuant to paragraph (a)2 of this subsection. (c) If the blaster fails to comply with the requirements of paragraph (a) or (b) of this subsection, he or she may be recertified only by reapplying for certification under Section 2 of this administrative regulation. All of the information contained in an application for recertification shall be provided anew: this shall include new letters of reference pursuant to Section 2(4) of this administrative regulation; documentation that the applicant has been retrained pursuant to Section 2(2) of this administrative regulation and retested pursuant to Section 2(5) of this administrative regulation; and a demonstration, pursuant to Section 2(3) of this administrative regulation, that the applicant holds a valid blaster's license issued by the Kentucky Department of Mines and Minerals. The blaster's certification shall be considered to have lapsed during the interim period between expiration of the certificate and issuance of the following certificate. Blasters who apply for recertification pursuant to this paragraph shall not be eligible for postponement of certification expiration pursuant to paragraph (a)2 of this subsection. (3)(a) The applicant for certification renewal shall: 1. Demonstrate that he or she has worked in blasting operations associated with surface coal mining and reclamation operations and/or coal exploration operations, in a manner that demonstrates the blaster's competency, during at least one and one-half (1 1/2) years of the three (3) years prior to the expiration date identified on the certificate; or 2. Demonstrate that he or she has: a. Worked, in a manner that demonstrates the blaster's competency, during at least one and one-half (1 1/2) years of the three (3) years prior to the expiration date identified on the certificate in blasting operations associated with road construction, noncoal mining, or other activities that involve blasting techniques similar to those associated with surface coal mining and reclamation operations and/or coal exploration operations; b. Retaken and passed a written examination on the cabinet's laws and administrative regulations pertaining to the use of explosives; and c. Submitted a reexamination fee of fifteen (15) dollars; or 3. Retake and pass the written examination specified in Section 2(5) of this administrative regulation and submit a reexamination fee of fifteen (15) dollars; provided, however, consecutive renewals pursuant to this subparagraph shall not be granted without the applicant for renewal being retrained pursuant to Section 2(2) of this administrative regulation. (b) In addition to submitting the documentation required pursuant to paragraph (a) of this subsection, each applicant for renewal shall demonstrate that he or she holds a valid Kentucky Blaster's License issued by the Kentucky Department of Mines and Minerals. (4) The provisions of Section 2(7)(b) of this administrative regulation shall apply to applicants for renewal pursuant to this section. (5)(a) The cabinet shall renew the certification of any blaster who meets the requirements of subsections (1) through (4) of this section, except the cabinet shall deny renewal if the blaster cannot reasonably be expected to conduct himself or herself in a manner consistent with the acceptance of responsibility for blasting operations. The cabinet shall make determinations regarding issuance or denial of the renewal based upon the applicant's actions during the most recent term of certification, the information contained in the renewal application, and any other pertinent information. (b) The term of a renewed certification shall be three (3) years. (6) A blaster's certification shall expire on the expiration date identified on his or her most recent certificate, unless expiration of certification has been postponed pursuant to subsection (2)(a)2 of this section. (7) Any person aggrieved by a determination under this section may request a formal hearing in accordance with 405 KAR 7:092, Section 9. SECTION 4. SUSPENSION AND REVOCATION. (1) For the purposes of this section, a blaster shall be considered to be in violation if he or she: (a) Fails to comply with any order of the cabinet; (b) Handles or uses explosives while under the influence of alcohol, narcotics, or other dangerous drugs, or uses same in the workplace; (c) Violates any provision of federal explosives laws or regulations or Kentucky's explosives laws or administrative regulations; (d) Provides false information or a misrepresentation to obtain certification; or (e) Fails to comply with the conditions of certification specified in Section 6 of this administrative regulation. (2)(a)1. Unless the cabinet immediately suspends certification pursuant to paragraph (b) of this subsection, the cabinet shall evaluate the following when the cabinet determines that a blaster is or has been in violation: a. Whether well-founded blasting procedures and reasonable precautions were used in endeavoring to prevent the violation; b. The seriousness of the violation; c. The history of the blaster's performance; d. The existence of any information suggesting that the blaster willfully committed or caused the violation; and e. Any other pertinent information. 2. Subsequent to conducting the evaluation required by subparagraph 1 of this paragraph, and based upon and commensurate with the results of that evaluation, the cabinet shall issue a written notice to the blaster if the cabinet has reason to believe that he or she willfully committed or caused the violation, or if the cabinet otherwise determines that suspension or revocation of certification is warranted. The written notice shall advise the blaster of the provision(s) of which he or she was in violation and shall advise him or her that the cabinet intends to seek suspension or revocation of the certification. (b) When the cabinet determines that a blaster is or has been in violation, the cabinet shall issue an order immediately suspending the blaster's certification if further blasting operations conducted by or under the direction of the blaster may reasonably be expected to constitute an imminent danger to the health and safety of the public or cause significant, imminent environmental harm. (c)1. Regardless of whether the cabinet pursues recourse against the blaster pursuant to paragraph (a) or (b) of this subsection, if the cabinet determines that a blaster is or has been in violation, the cabinet shall retain a description of the violation, a description of the procedures used in evaluating the violation, the conclusion which was reached as a result of the evaluation, and any supporting information which was used in reaching the conclusion. This documentation shall be used in compiling a history of the blaster's performance for use pursuant to paragraph (a) of this subsection and Sections 2(8) and 3(5) of this administrative regulation. 2. When a violation is placed on a blaster's record pursuant to subparagraph 1 of this paragraph, the cabinet shall issue a written statement to the blaster advising him or her of the documented violation. The blaster shall be allowed to challenge the fact of the violation, or his or her responsibility for same, in accordance with the provisions of 405 KAR 7:092, Section 6 or 7. (3)(a) Notices issued pursuant to subsection (2)(a)2 of this section, blaster suspension orders issued pursuant to subsection (2)(b) of this section, statements issued pursuant to subsection (2)(c)2 of this section, and orders of the secretary rendered pursuant to subsections (4)(b)3 and (5) of this section shall be served promptly after issuance. Service to the blaster shall be made by hand; by certified mail, return receipt requested; or by registered mail. A copy of each order and each notice shall also be mailed or otherwise delivered to the Kentucky Department of Mines and Minerals. In addition, if the order suspends or revokes certification, a copy of the order shall be mailed or otherwise delivered to the blaster's employer as documented in the cabinet's files and to any other person who, to the best knowledge of the cabinet, employs the blaster as a certified blaster. (b) Service, whether by hand or by mail, shall be complete upon tender of the order, notice, or statement and shall not be deemed incomplete because of refusal to accept. Moreover, service by mail shall not be deemed incomplete because of failure to claim the document prior to its return to the cabinet by the U.S. Postal Service, nor shall it be deemed incomplete because of the U.S. Postal Service's inability to deliver a document which has been properly addressed with the intended recipient's most recent address known to the cabinet. Service by mail to the blaster shall be addressed to the permanent address shown on the certification or renewal application, or if the blaster has submitted notice of an address change pursuant to Section 7 of this administrative regulation, to such other address as is known to the cabinet. (4) The following provisions shall apply to suspension orders issued pursuant to subsection (2)(b) of this section: (a) Upon issuance of the suspension order, all rights and privileges granted by certification shall be suspended until the order is vacated or the certification is restored in accordance with an order of the secretary; however, the blaster shall not be required to surrender his or her certificate unless and until the secretary renders an order requiring revocation or further suspension. (b) Unless vacated, the suspension order shall be adjudicated in accordance with the following: 1. A hearing shall be scheduled upon issuance of the suspension order. This hearing shall be scheduled to be held within ten (10) working days of issuance of the order. The blaster shall be promptly notified, in accordance with 405 KAR 7:092, Section 5, of the time, date, and location of the scheduled hearing. 2. The chief hearing officer or any other designated hearing officer shall preside over the hearing, and except as otherwise specified or provided for in this paragraph, the hearing shall be conducted pursuant to the provisions of 405 KAR 7:092, Section 5. Within five (5) working days following the hearing, the hearing officer shall issue a report on the findings of fact and conclusions of law concerning the violation. 3. The provisions of 405 KAR 7:092, Section 3 shall apply to the filing of exceptions to the hearing officer's report, and the final order of the secretary concerning the violation shall be issued forthwith. 4. The time schedule for adjudication as specified in subparagraphs 1 and 2 of this paragraph may be extended by the cabinet upon written request by the blaster to whom the suspension order was issued. (c) Prior to the hearing held pursuant to paragraph (b) of this subsection, a suspension order determined to have been issued in error may be vacated by the director of the Division of Field Services. (d) The forms on which blaster suspension orders are issued shall be at the discretion of the cabinet and may include the forms used pursuant to 405 KAR 12:020. (5) Upon issuance of a notice pursuant to subsection (2)(a)2 of this section, the cabinet shall schedule a formal hearing for review of the violation. This hearing shall be held pursuant to 405 KAR 7:092, Section 5. (6)(a) Orders of the secretary rendered pursuant to subsections (4)(b)3 and (5) of this section may suspend or revoke the blaster's certification and may carry requirements for additional training or testing or other appropriate corrective measures; provided however, if the violation was caused or committed willfully, suspension or revocation of certification shall be obligatory. (b) The termination date of a suspension shall be specified in the order or the suspension shall be for an indefinite period contingent upon completion of required remedial action. An order for revocation shall specify the ending date of the period during which the blaster will be ineligible for reinstatement, with said period exceeding the minimum required by Section 9(1) of this administrative regulation if appropriate. (c) The term and conditions of each order rendered by the secretary pursuant to subsection (4)(b)3 or (5) of this section shall be commensurate with the pertinent factors surrounding the blaster and the violation(s). These factors may include, but not necessarily be limited to, the seriousness of the violation(s), the blaster's culpability for the violation(s), the history of the blaster's performance, and whether the blaster took reasonable care in determining that the operation would be in compliance with applicable laws and administrative regulations. (d)1. Upon service of a suspension or revocation order rendered pursuant to subsection (4)(b)3 or (5) of this section, the blaster shall surrender the suspended or revoked certificate to the cabinet in accordance with subparagraph 2 of this paragraph. All rights and privileges granted by certification shall be suspended or revoked in accordance with the term and conditions of the order. 2. If the suspension or revocation order is hand delivered by a cabinet representative, the suspended or revoked certificate shall be immediately surrendered to the representative delivering the order. If the order is served by certified or registered mail, the certificate shall be immediately delivered and surrendered to the department's appropriate regional office. (7)(a) If the blaster's Kentucky Blaster's License expires, is revoked, or otherwise lapses or becomes invalid during the term of certification, in accordance with Section 6(5) of this administrative regulation the blaster's certification shall automatically be rendered invalid. Once the certification has been rendered invalid, the certificate shall immediately be delivered and surrendered to the department's appropriate regional office. The certificate shall only be returned and certification reinstated after the blaster has demonstrated, and the cabinet has found, that the blaster once again holds a valid Kentucky Blaster's License. (b) The provisions of paragraph (a) of this subsection shall apply automatically, and issuance of a notice or a suspension order pursuant to subsection (2) of this section shall not be required in order to invalidate a blaster's certification pursuant to Section 6(5) of this administrative regulation. SECTION 5. PROTECTION OF CERTIFICATION. Certified blasters shall take every reasonable precaution to protect their certificates from loss, theft, or unauthorized duplication. Any such occurrence shall be immediately reported to the cabinet. SECTION 6. CONDITIONS. The following are conditions for maintaining certification: (1)(a) His or her Kentucky Blaster's License, his or her Kentucky Blaster Certificate, and at least one (1) other form of identification shall be carried by the certified blaster during blasting operations. If the blaster is operating under a postponement of certification expiration rendered pursuant to Section 3(2)(a)2 of this administrative regulation, the blaster shall also carry the letter granting the postponement. (b) A certified blaster shall immediately exhibit his or her certificate, Kentucky Blaster's License, letter postponing expiration of certification (if applicable), and one (1) other form of identification to any authorized representative of the cabinet or OSM upon request. (2) Blasters' certifications shall not be assigned or transferred. (3) Certified blasters shall not delegate their responsibilities to any persons who are not certified blasters. (4) The certified blaster who is responsible for conducting blasting operations shall provide direction and on-the-job training to noncertified persons who are assigned to his or her blasting crew or who assist in the storage, use, or transportation of explosives incident to the blasting operations. (5) Each certified blaster shall hold a valid Kentucky Blaster's License throughout the term of the certification. SECTION 7. CHANGE OF INFORMATION. A certified blaster shall submit written notification to the cabinet whenever there is a change in his or her name, address, telephone number, or place of employment. Such notifications shall be submitted to the central office of the department's Division of Field Services, located in Frankfort, Kentucky, within thirty (30) days of the change. SECTION 8. RECIPROCITY. For any person who is a certified blaster under OSM's blaster certification program or under any OSM approved state blaster certification program, the submission of satisfactory documentation demonstrating that he or she is so certified shall be considered an adequate demonstration of compliance with Section 2(2), (4), and (5) of this administrative regulation. However, compliance with Section 2(1) and (3) of this administrative regulation shall occur prior to obtaining certification pursuant to this administrative regulation. SECTION 9. REINSTATEMENT. (1) Reinstatement following revocation. Unless a longer term is specified in the Secretary's revocation order, during the one (1) year period following issuance of the order the blaster shall not be eligible for reinstatement of certification. After this period of ineligibility, certification shall only be reinstated after reapplying for certification pursu