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 16 PERFORMANCE STANDARDS FOR SURFACE MINING ACTIVITIES 405 KAR 16:001 Definitions for 405 KAR Chapter 16 405 KAR 16:010 General provisions 405 KAR 16:020 Contemporaneous reclamation 405 KAR 16:030 Signs and markers 405 KAR 16:040 Casing and sealing of drilled holes 405 KAR 16:050 Topsoil 405 KAR 16:060 General hydrologic requirements 405 KAR 16:070 Water quality standards and effluent limitations 405 KAR 16:080 Diversions 405 KAR 16:090 Sedimentation ponds 405 KAR 16:100 Permanent and temporary impoundments 405 KAR 16:110 Surface and groundwater monitoring 405 KAR 16:120 Use of explosives 405 KAR 16:130 Disposal of excess spoil 405 KAR 16:140 Disposal of coal processing waste 405 KAR 16:150 Disposal of noncoal mine waste 405 KAR 16:160 Coal mine waste dams and impoundments 405 KAR 16:170 Stabilization of surface areas 405 KAR 16:180 Protection of fish, wildlife, and related environmental values 405 KAR 16:190 Backfilling and grading 405 KAR 16:200 Revegetation 405 KAR 16:210 Postmining land use capability 405 KAR 16:220 Roads 405 KAR 16:250 Other facilities 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 16:001. DEFINITIONS FOR 405 KAR CHAPTER 16. 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, 917c 30 USC 1253, 1255, 1291 {SMCRA Secs. 503, 505, 701} STATUTORY AUTHORITY: KRS 350.028(1), (5), 350.465c 30 CFR Parts 730-733, 735, 917, 30 USC 1253, 1255 {SMCRA Secs. 503, 505, 701} NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5) and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation defines terms used in 405 KAR Chapter 16. SECTION 1. DEFINITIONS. (1) "ACID DRAINAGE" means water with a pH of less than six (6.0) and in which total acidity exceeds total alkalinity, discharged from an active, inactive, or abandoned surface coal mine and reclamation operation or from an area affected by surface coal mining and reclamation operations. (2) "ACID-FORMING MATERIALS" means earth materials that contain sulfide minerals or other materials which, if exposed to air, water, or weathering processes, form acids that may create acid drainage. (3) "ACQUISITION" means 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. (4) "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. (5) "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. (6) "APPLICANT" means any person(s) 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. (7) "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. (8) "APPROXIMATE ORIGINAL CONTOUR" is defined in KRS 350.010. (9) "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. (10) "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. (11) "BEST TECHNOLOGY CURRENTLY AVAILABLE" means equipment, devices, systems, methods, or techniques which will prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area and minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife, and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, methods, or techniques which are currently available anywhere as determined by the cabinet, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with 405 KAR Chapters 16 and 18. The cabinet shall have the discretion to determine the best technology currently available on a case-by-case basis, as authorized by KRS Chapter 350 and 405 KAR Chapters 7 through 24. (12) "BLASTER" means a person who is directly responsible for surface blasting operations in surface coal mining and reclamation operations or coal exploration operations. (13) "BOND POOL" or "KENTUCKY BOND POOL" means the voluntary alternative bonding program established at KRS 350.700 through 350.755. (14) "CABINET" is defined in KRS 350.010. (15) "CFR" means Code of Federal Regulations. (16) "COAL" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77. (17) "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. (18) "COAL MINE WASTE" means coal processing waste and underground development waste. (19) "COAL PROCESSING WASTE" means materials which are separated from the product coal during the cleaning, concentrating, or other processing or preparation of coal. (20) "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. (21) "COMBUSTIBLE MATERIAL" means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise. (22) "COMPACTION" means increasing the density of a material by reducing the voids between the particles by mechanical effort. (23) "CROPLAND" means land used for the production of adapted crops for harvest, alone or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar specialty crops. (24) "CUMULATIVE IMPACT AREA" means the area, including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of all anticipated mining on surface and groundwater systems. Anticipated mining shall include, at a minimum, the entire projected lives through bond release of: (a) The proposed operation; (b) All existing operations; (c) Any operation for which a permit application has been submitted to the cabinet; and (d) All operations required to meet diligent development requirements for leased federal coal for which there is actual mine development information available. (25) "DAY" means calendar day unless otherwise specified to be a working day. (26) "dB" means decibels. (27) "DEPARTMENT" means the Department for Surface Mining Reclamation and Enforcement. (28) "DEVELOPED WATER RESOURCES LAND" means land used for storing water for beneficial uses such as stockponds, irrigation, fire protection, flood control, and water supply. (29) "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. (30) "DIVERSION" means a channel, embankment, or other manmade structure constructed to divert water from one (1) area to another. (31) "DOWNSLOPE" means the land surface below the projected outcrop of the lowest coalbed being mined along each highwall. (32) "DURABLE ROCK" means rock that: (a) Does not slake in water; (b) Is not reasonably expected to degrade to a size or condition that will block, cause failure of, impair, or restrict the effectiveness of the internal drainage system; and (c) Has been demonstrated to have a slake durability index value of ninety (90) or greater as determined by: 1. The "Method of Determination of Slake Durability Index (Kentucky Method 64-513-79)"; or 2. A test method that yields an equivalent measure of durability based upon correlation of results with Kentucky Method 64-513-79. (33) "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. (34) "EPHEMERAL STREAM" means a stream which flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice, and which has a channel bottom that is always above the local water table. (35) "EXCESS SPOIL" means spoil disposed of in a location other than the coal extraction area, except that spoil material used to achieve the approximate original contour shall not be considered excess spoil. (36) "FISH AND WILDLIFE LAND USE", as used in 405 KAR 16:210 and in similar situations when referring to a premining or postmining land use, means land dedicated wholly or partially to the production, protection, or management of fish or wildlife. Areas considered as having the fish and wildlife land use are typically characterized by a diversity of habitats in which use by wildlife is the dominant characteristic, whether actively managed or not. (37) "FOREST LAND" means land used or managed for the long term production of wood, wood fiber, or wood derived products. (38) "FUGITIVE DUST" means that particulate matter which becomes airborne due to wind erosion from exposed surfaces. (39) "GROUND COVER" means the area of ground covered by the combined aerial parts of vegetation and litter produced and distributed naturally and seasonally on site, expressed as a percentage of the total area of measurement. (40) "GROUNDWATER" means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated. (41) "GROWING SEASON" means the period during a one (1) year cycle, from the last killing frost in the spring to the first killing frost in the fall, in which climatic conditions are favorable for plant growth. In Kentucky, this period normally extends from mid-April to mid-October. (42) "HEAD-OF-HOLLOW FILL" means a fill structure consisting of any material, other than coal processing waste and organic material, placed in the uppermost reaches of a hollow near the approximate elevation of the ridgeline, where there is no significant natural drainage area above the fill, and where the side slopes of the existing hollow measured at the steepest point are greater than twenty (20) degrees or the average slope of the profile of the hollow from the toe of the fill to the top of the fill is greater than ten (10) degrees. (43) "HIGHER OR BETTER USES" means postmining land uses that have a higher economic value or nonmonetary benefit to the landowner or the community than the premining land uses. (44) "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. (45) "HIGHWALL REMNANT" means that portion of highwall that remains after backfilling and grading of a remining permit area. (46) "HISTORICALLY USED FOR CROPLAND" means land that: (a) Has been used for cropland for any of five (5) years or more of the ten (10) years immediately preceding the: 1. Application; or 2. Acquisition of the land for the purpose of conducting a surface coal mining and reclamation operation; (b) Would likely have been used for cropland for any five (5) of the ten (10) years immediately preceding the acquisition or application, but for some fact of ownership or control of the land unrelated to the productivity of the land; (c) Falls outside the five (5) of ten (10) years criteria, but the cabinet determines is clearly cropland on the basis of additional cropland history of: 1. Surrounding land; and 2. The land under consideration. (47) "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. (48) "Hz" means hertz. (49) "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. (50) "IMPOUNDING STRUCTURE" means a dam, embankment or other structure used to impound water, slurry, or other liquid or semiliquid material. (51) "IMPOUNDMENT" means a water, sediment, slurry or other liquid or semiliquid holding structure or depression, either naturally formed or artificially built. (52) "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. (53) "IN SITU PROCESS" means: (a) In situ gasification; (b) In situ leaching; (c) Slurry mining; (d) Solution mining; (e) Borehole mining; (f) Fluid recovery mining; or (g) Another activity conducted on the surface or underground in connection with: 1. In-place distillation; 2. Retorting; 3. Leaching; or 4. Chemical or physical processing of coal. (54) "INTERMITTENT STREAM" means: (a) A stream or reach of stream that drains a watershed of one (1) square mile or more but does not flow continuously during the calendar year; or (b) A stream or reach of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and groundwater discharge. (55) "KAR" means Kentucky administrative regulations. (56) "KPDES" means Kentucky Pollutant Discharge Elimination System. (57) "KRS" means Kentucky Revised Statutes. (58) "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. (59) "MODIFIED HIGHWALL" means either: (a) The highwall resulting from remining where the preexisting highwall face is removed; or (b) The highwall resulting from remining where the preexisting highwall is vertically enlarged. (60) "MONITORING" means the collection of environmental data by either continuous or periodic sampling methods. (61) "MRP" means mining and reclamation plan. (62) "MSHA" means Mine Safety and Health Administration. (63) "MULCH" means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, thus providing microclimatic conditions suitable for germination and growth. (64) "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. (65) "OPERATIONS" is defined in KRS 350.010. (66) "OPERATOR" is defined in KRS 350.010. (67) "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. (68) "OSM" means Office of Surface Mining Reclamation and Enforcement, United States Department of the Interior. (69) "OTHER TREATMENT FACILITIES" means any chemical treatments, such as flocculation or neutralization, or mechanical structures, such as clarifiers or precipitators, that have a point source discharge and are utilized: (a) To prevent additional contributions of dissolved or suspended solids to streamflow or runoff outside the permit area; or (b) To comply with 405 KAR 16:070. (70) "OUTSLOPE" means the face of the spoil or embankment sloping downward from the highest elevation to the toe. (71) "OVERBURDEN" is defined in KRS 350.010. (72) "PASTURELAND" means land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock or occasionally cut and cured for livestock feed. (73) "PERENNIAL STREAM" means a stream or that part of a stream that flows continuously during all of the calendar year as a result of groundwater discharge or surface runoff. The term does not include "intermittent stream" or "ephemeral stream." (74) "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. (75) "PERMANENT DIVERSION" means a diversion remaining after surface coal mining and reclamation operations are completed which has been approved for retention by the cabinet and other appropriate Kentucky and federal agencies. (76) "PERMIT" means written approval issued by the cabinet to conduct surface coal mining and reclamation operations. (77) "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. (78) "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. (79) "PERSON" is defined in KRS 350.010. (80) "PRECIPITATION EVENT" means a quantity of water resulting from drizzle, rain, snowmelt, sleet, or hail in a specified period of time. (81) "PREVIOUSLY MINED AREA" means land that was affected by coal mining operations conducted prior to August 3, 1977, that has not been reclaimed to the standards of this title. (82) "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. (83) "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. (84) "PUBLIC BUILDING" means any structure that is owned or leased, and principally used by a governmental agency for public business or meetings. (85) "PUBLIC ROAD" means any publicly owned thoroughfare for the passage of vehicles. (86) "RAM" means Reclamation Advisory Memorandum. (87) "REASONABLE AVAILABLE SPOIL" means spoil and suitable coal mine waste material generated by the remining operation and other spoil or suitable coal mine waste material located in the permit area that is accessible and available for use and that when rehandled will not cause a hazard to public safety or significant damage to the environment. For this purpose, the permit area shall include all spoil of this nature located in the immediate vicinity of the mining operation. (88) "RECHARGE CAPACITY" means the ability of the soils and underlying materials to allow precipitation and runoff to infiltrate and reach the zone of saturation. (89) "RECLAMATION" is defined in KRS 350.010. (90) "RECREATION LAND" means land used for public or private leisure-time use, including developed recreation facilities such as parks, camps, and amusement areas, as well as areas for less intensive uses such as hiking, canoeing, and other undeveloped recreational uses. (91) "REFERENCE AREA" means a land unit maintained under appropriate management for the purpose of measuring vegetative ground cover, productivity, and plant species diversity that are produced naturally or by crop production methods approved by the cabinet. (92) "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. (93) "REMINING" means conducting surface coal mining and reclamation operations which affect previously mined areas. (94) "RESIDENTIAL LAND" means tracts employed for single and multiple-family housing, mobile home parks, and other residential lodgings. (95) "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. (96) "SAFETY FACTOR" means the ratio of the available shear strength to the developed shear stress, or the ratio of the sum of the resisting forces to the sum of the loading or driving forces, as determined by accepted engineering practices. (97) "SCS" means Soil Conservation Service. (98) "SEDIMENTATION POND" means a primary sediment control structure: (a) Designed, constructed, or maintained pursuant to 405 KAR 16:090 or 405 KAR 18:090; (b) That may include a barrier, dam, or excavated depression to: 1. Slow water runoff; and 2. Allow suspended solids to settle out; and (c) That shall not include secondary sedimentation control structures, including a straw dike, riprap, check dam, mulch, dugout, or other measure that reduces overland flow velocity, reduces runoff volume, or trap sediment, to the extent that the secondary sedimentation structure drains into a sedimentation pond. (99) "SIGNIFICANT, IMMINENT ENVIRONMENTAL HARM" means an adverse impact on land, air, or water resources which resources include 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. (100) "SLOPE" means average inclination of a surface, measured from the horizontal, generally expressed as the ratio of a unit of vertical distance to a given number of units of horizontal distance (e.g., 1v:5h). It may also be expressed as a percent or in degrees. (101) "SLURRY MINING" means the hydraulic breakdown of subsurface coal with drill-hole equipment, and the eduction of the resulting slurry to the surface for processing. (102) "SMCRA" means Surface Mining Control and Reclamation Act of 1977 (PL 95-87), as amended. (103) "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. (104) "SPOIL" means overburden and other materials, excluding topsoil, coal mine waste, and mined coal, that are excavated during surface coal mining and reclamation operations. (105) "STABILIZE" means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties, such as by providing a protective surface coating. (106) "STEEP SLOPE" means any slope of more than twenty (20) degrees. (107) "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. (108) "SURFACE BLASTING OPERATIONS": (a) Means the on-site storage, transportation, and use of explosives in association with: 1. A coal exploration operation; 2. Surface mining activities; or 3. A surface disturbance of underground mining activities; and (b) Includes the following activities: 1. Design of an individual blast; 2. Implementation of a blast design; 3. Initiation of a blast; 4. Monitoring of an airblast and ground vibration; and 5. Use of access control, warning and all-clear signals, and similar protective measures. (109) "SURFACE COAL MINING AND RECLAMATION OPERATIONS" is defined in KRS 350.010. (110) "SURFACE COAL MINING OPERATIONS" is defined in KRS 350.010. (111) "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. (112) "SUSPENDED SOLIDS" or nonfilterable residue, expressed as milligrams per liter, means organic or inorganic materials carried or held in suspension in water which are retained by a standard glass fiber filter in the procedure outlined by the U.S. EPA's regulations for waste water and analyses (40 CFR 136). (113) "TEMPORARY DIVERSION" means a diversion of a stream or overland flow which is used during coal exploration or surface coal mining and reclamation operations and not approved by the cabinet to remain after reclamation as part of the approved postmining land use. (114) "TON" means 2000 pounds avoirdupois (.90718 metric ton). (115) "TOPSOIL" the A and E soil horizon layers of the four (4) master soil horizons. (116) "TOXIC-FORMING MATERIALS" means earth materials or wastes which, if acted upon by air, water, weathering, or microbiological processes, are likely to produce chemical conditions in soils or water that are detrimental to biota or uses of water. (117) "TOXIC MINE DRAINAGE" means water that is discharged from active or abandoned mines or other areas affected by coal exploration or surface coal mining and reclamation operations, which contains a substance that through chemical action is likely to kill, injure, or impair biota commonly present in the area that might be exposed to it. (118) "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. (119) "TRM" means Technical Reclamation Memorandum. (120) "UNDERGROUND DEVELOPMENT WASTE" means waste coal, shale, claystone, siltstone, sandstone, limestone, or similar materials that are extracted from underground workings in connection with underground mining activities. (121) "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, aboveground 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. (122) "UNDEVELOPED LAND OR NO CURRENT USE OR LAND MANAGEMENT" means land that is undeveloped or, if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession. (123) "U.S. EPA" means United States Environmental Protection Agency. (124) "VALLEY FILL" means a fill structure consisting of any material other than coal waste and organic material that is placed in a valley where side slopes of the existing valley measured at the steepest point are greater than twenty (20) degrees or the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than ten (10) degrees. (125) "VALUABLE ENVIRONMENTAL RESOURCES" means: (a) Listed or proposed endangered or threatened species of plants or animals or their critical habitats listed by the Secretary of the Interior under the Endangered Species Act of 1973, as amended (16 USC Sec. 1531 et seq.), or those species or habitats protected by similar state statutes; and (b) Habitats of unusually high value for fish and wildlife, as determined by the cabinet in consultation with state and federal agencies with responsibilities for fish and wildlife. (126) "WATER TABLE" means the upper surface of a zone of saturation, where the body of groundwater is not confined by an overlying impermeable zone. (127) "WATER TRANSMITTING ZONE" means a body of consolidated or unconsolidated rocks which, due to their greater primary or secondary permeability relative to the surrounding rocks, can reasonably be considered to function as a single hydraulic medium for the flow of groundwater. (128) "WETLAND" means land that has a predominance of hydric soils and that is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions. (a) "Hydric soil" means soil that, in its undrained condition, is saturated, flooded, or ponded long enough during a growing season to develop an anaerobic condition that supports the growth and regeneration of hydrophytic vegetation. (b) "Hydrophytic vegetation" means a plant growing in: 1. Water; or 2. A substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content. SECTION 2. INCORPORATION BY REFERENCE. (1) The following material is incorporated by reference: (a) "ASTM Standard D 388-77, Standard Specification for Classification of Coals by Rank", (1977), American Society for Testing and Materials, is incorporated by reference; (b) "Method for Determination of Slake Durability Index, Kentucky Method 64-513-79", (1979), Kentucky Department of Transportation. (2) It may be inspected, copied, or obtained at the Department for Surface Mining Reclamation and Enforcement, 2 Hudson Hollow, Frankfort, Kentucky 40601-4321, Monday through Friday, 8 a.m. to 4:30 p.m. (18 Ky.R. 2475; Am. 2844; eff. 4-3-92; 24 Ky.R. 704; 2652; eff. 6-10-98.) 405 KAR 16:010. GENERAL PROVISIONS. RELATES TO: KRS 350.020, 350.090, 350.093, 350.151, 350.405, 350.410, 350.440, 350.445, 350.450, 350.465, 30 CFR Parts 730-733, 735, 816.59, 816.79, 816.99, 816.131-.132, 917, 30 USC 1253, 1255 {SMCRA Secs. 503, 505} STATUTORY AUTHORITY: KRS Chapter 13A, 350.020, 350.028, 350.465, 30 CFR Parts 730-733, 735, 816.59, 816.79, 816.99, 816.131-.132, 917, 30 USC 1253, 1255 {SMCRA Secs. 503, 505} NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation contains general performance standards for maximizing coal recovery, protection of underground mining, prevention and correction of landslides, temporary cessation of operations, permanent abandonment of operations, and protection of unmined barriers of coal left by underground mining. SECTION 1. APPLICABILITY. {{ 30 CFR 810.11 }} The provisions of this chapter are applicable to all surface mining activities conducted under 405 KAR Chapters 7 through 24. The provisions of this chapter also apply to those special categories of surface mining activities for which performance standards are set forth under 405 KAR 20:030 through 405 KAR 20:080 except to the extent that a provision of those administrative regulations specifically exempts a particular category from a particular requirement of this chapter. SECTION 2. COAL RECOVERY. {{ 30 CFR 816.59 }} Surface mining activities shall be conducted so as to maximize the utilization and conservation of the coal, while utilizing the best appropriate technology currently available to maintain environmental integrity, so that reaffecting the land in the future through surface coal mining operations is minimized. SECTION 3. PROTECTION OF UNDERGROUND MINING. {{ 30 CFR 816.79 }} No surface mining activity shall be conducted within 500 feet of any point of either an active or abandoned underground mine, unless: (1) If any of the workings of the underground mine are active, the nature, timing, and sequence of the surface mining activity are jointly approved by the cabinet, the MSHA, and the Kentucky Department of Mines and Minerals; and (2) For both active and abandoned underground mines, the surface mining activity results in improved resource recovery, abatement of water pollution, or elimination of hazards to the health and safety of the public. SECTION 4. SLIDE AND EROSION BARRIERS. {{ 30 CFR 816.99 }} An undisturbed natural barrier shall be provided beginning at the elevation of the lowest coal seam to be mined and extending from the outslope for a minimum distance of fifteen (15) feet or greater distance as the cabinet may determine is necessary to assure stability. The barrier shall be retained in place to prevent slides and erosion. SECTION 5. SLIDES. {{ 30 CFR 816.99 }} At any time a slide occurs which may have a potential adverse effect on property, health, safety, or the environment, the person who conducts the surface mining activities shall notify the cabinet by the fastest available means and comply with any remedial measures required by the cabinet. SECTION 6. PERMANENT ABANDONMENT OF OPERATIONS. {{ 30 CFR 816.132 }} (1) Notice required. On or before the date of permanent abandonment of operations, the permittee shall provide written notice to the cabinet that permanent abandonment is intended. (2) Prior to permanent abandonment, and prior to removal of necessary equipment from the site, all affected areas shall be closed, backfilled, and otherwise permanently reclaimed in accordance with the requirements of KRS Chapter 350, the administrative regulations of 405 KAR, and the permit. (3) All equipment, underground openings, structures, or other facilities not required for monitoring shall be removed and the affected areas reclaimed unless the cabinet approves the retention of the equipment, openings, structures, or other facilities as compatible with the postmining land use or as beneficial to environmental monitoring. SECTION 7. TEMPORARY CESSATION OF OPERATIONS. {{ 30 CFR 816.131 }} (1) Notice required. Prior to a temporary cessation of operations which the permittee intends to last for thirty (30) days or more, or as soon as it is known to the permittee that an existing temporary cessation will last beyond thirty (30) days, the permittee shall provide written notice to the cabinet that temporary cessation is anticipated. The notice shall state to what extent equipment will be removed from the site during the temporary cessation, and shall state the approximate date on which the permittee intends that operations will be resumed. (2) Temporary cessation shall not relieve a permittee of the obligation to comply with 405 KAR 16:070, Section 1(1)(g) and the surface and groundwater monitoring requirements of 405 KAR 16:110, and the obligation to comply with all applicable conditions of the permit during the cessation. (3) During temporary cessations, equipment and facilities necessary to environmental monitoring or to compliance with performance standards shall be made secure to the extent practicable. SECTION 8. PROTECTION OF UNMINED BARRIERS OF COAL LEFT BY UNDERGROUND MINING. (1) Coal shall not be removed from an unmined barrier of coal left by an underground mine where the underground workings dip toward and approach the land surface, unless the cabinet has approved the proposed coal removal under this section. (2) The cabinet shall approve the proposed coal removal if it determines that the removal meets all other applicable requirements of 405 KAR Chapters 7-24 and KRS Chapter 350 and also meets at least one (1) of paragraphs (a)-(e) of this subsection: (a) The removal will not adversely affect the stability of the unmined barrier of coal; (b) The removal will completely eliminate or significantly reduce existing underground workings; (c) The removal will eliminate or significantly reduce an existing or potential threat to the health or safety of the public resulting from the existing underground workings; (d) The removal will eliminate or significantly reduce existing or potential adverse impacts to the quantity or quality of groundwater or surface water resulting from the existing underground workings; or (e) The unmined barrier of coal is not necessary to protect the health or safety of the public or to protect the quantity or quality of groundwater or surface water. (8 Ky.R. 1527; eff. 1-6-83; Am. 12 Ky.R. 931; eff. 2-4-86; 15 Ky.R. 453; eff. 12-13-88; 21 Ky.R. 528; 1346; 1496; eff. 12-12-94.) 405 KAR 16:020. CONTEMPORANEOUS RECLAMATION. RELATES TO: KRS 350.062, 350.093, 350.100, 350.110, 350.405, 350.410, 350.435, 350.450, 350.465, 30 CFR Parts 730-733, 735, 816.100, 917, 30 USC 1253, 1255 {SMCRA Secs. 503, 505} STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.093, 350.100, 350.465, 30 CFR Parts 730-733, 735, 816.100, 917, 30 USC 1253, 1255 {SMCRA Secs. 503, 505} NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for keeping reclamation operations, including backfilling, grading, soil preparation and revegetation, contemporaneous with mining operations. SECTION 1. GENERAL. Reclamation operations, including but not limited to, backfilling, grading, topsoil redistribution, liming, fertilizing, other soil preparation, seeding, planting, mulching and revegetation of all land that is disturbed by surface mining activities, shall occur as contemporaneously as practicable with mining operations and in accordance with this administrative regulation. SECTION 2. BACKFILLING AND GRADING. {{ 30 CFR 816.100, 816.102}} Backfilling and grading operations shall proceed as concurrently with mining operations as possible and in accordance with the requirements of this section, except that specific time and distance criteria set forth in the approved plan for backfilling and grading shall take precedence over corresponding criteria in this administrative regulation. The approved backfilling and grading plan may specify time and distance criteria less restrictive than those set forth in this administrative regulation, and may allow more than one (1) pit per permit area, if the permittee has demonstrated through detailed written analysis in the permit application that other criteria or additional pits are essential to the proposed mining and reclamation operations, and the cabinet has determined that use of the requested criteria or additional pits will not likely cause adverse environmental impacts. If alternative distance limits are approved or additional pits allowed, then the applicant shall provide supplemental assurance in accordance with Section 6 of this administrative regulation. (1) Area mining. Backfilling and grading to approximate original contour on a disturbed area shall be completed within 180 calendar days following the removal of coal from that area, and shall not be more than four (4) spoil ridges behind the pit being mined, with the spoil from the pit being mined being considered the first spoil ridge. There shall be only one (1) pit allowed per permit area. (2) Auger mining. Coal removal in a given location shall be completed within sixty (60) calendar days after the initial excavation for the purpose of removal of topsoil or overburden at that location. Auger holes shall be sealed as required by 405 KAR 20:030. Backfilling and grading to approximate original contour shall follow coal removal by not more than sixty (60) days and by not more than 1500 linear feet. There shall be only one (1) auger mining operation allowed per permit area. (3) Contour mining. Coal removal in a given location shall be completed within sixty (60) calendar days after the initial excavation for the purpose of removal of topsoil or overburden at that location. Backfilling and grading to approximate original contour shall follow coal removal by not more than sixty (60) calendar days and by not more than 1500 linear feet. There shall be only one (1) pit allowed per permit area. (4) Multiple-seam contour mining. If overlapping multiple cuts producing a benched highwall are made to remove more than one (1) coal seam at a given location, backfilling and grading at that location shall be completed within sixty (60) calendar days after removal of the last coal seam at that location and shall follow the advancing cut of the last coal seam by not more than 1500 feet. Removal of all coal seams shall proceed as concurrently as possible and in a timely manner, in order to minimize the time period in which disturbed areas are exposed prior to reclamation. There shall be only one (1) multiple seam operation allowed per permit area. (5) Combined contour mining and auger mining. Coal removal by contour mining at a given location shall be completed within the time frame specified in subsection (3) or (4) of this section as appropriate. Auger mining at a given location shall be completed within thirty (30) calendar days after coal removal by contour mining at that location. Sealing of auger holes and backfilling and grading shall then be completed as required in subsection (2) of this section. There shall be only one (1) contour mining pit and one (1) auger mining operation allowed per permit area. (6) Mountaintop removal. Backfilling and grading on a disturbed area shall be completed within 180 calendar days following the removal of coal from that area. If the mountaintop removal operation begins by mining a contour cut around all or a part of the mountaintop, the time and distance limits for contour mining shall apply to that cut unless alternative limits are approved under Sections 2 and 6 of this administrative regulation. (7) All final backfilling and grading shall be completed before equipment necessary for backfilling and grading is removed from the site. SECTION 3. SOIL PREPARATION AND REVEGETATION. (1) When backfilling and grading have been completed on an area, the required topsoil redistribution, liming, fertilizing, other soil preparation, seeding, planting, and mulching of that area shall be completed as soon as possible in a manner consistent with the approved plans for topsoil handling and revegetation and in accordance with 405 KAR 16:200, Section 3. (2) The time allowed for soil preparation and revegetation pursuant to subsection (1) may exceed thirty (30) calendar days only when specifically authorized in the approved plans for topsoil handling and revegetation or when authorized pursuant to Sections 4 or 5 of this administrative regulation. SECTION 4. DEFERMENTS. {{ 30 CFR 816.100 }} (1) The cabinet may allow a permittee to defer the time criteria for coal removal and contemporaneous reclamation requirements on specified areas if the permittee can demonstrate that the deferment is necessary to address at least one (1) of the following: (a) Adverse condition including weather, labor, and other conditions clearly beyond the permittee's control. (b) Combined surface and underground mining activities subject to the provisions of 405 KAR 8:050, Section 7 and 405 KAR 20:020. (c) Coal marketing problems. (2) Application for a deferment pursuant to this section shall be in the form prescribed by the cabinet. Approval of the deferment request shall be made in writing. The approval shall state that the deferment is justified and that no environmental damage will occur during the period of deferment. (a) Application for a deferment pursuant to subsection (1)(a) of this section for adverse conditions shall be made in writing and shall include documentation of the adverse conditions beyond the operator's control and demonstration of impossibility of conducting coal removal and contemporaneous reclamation in a timely manner due to those conditions. The application shall be filed at the appropriate regional office of the department. Upon a successful demonstration that the adverse conditions exist, the regional administrator may grant a reclamation deferment for a maximum of thirty (30) days, on a form provided by the department. At least seven (7) days prior to the expiration of the deferment, the permittee may request, in writing, an additional extension, again stating the reason for the request and providing any appropriate additional documentation. The regional administrator may renew the original extension once upon request, however the renewal shall not exceed thirty (30) days. Any need for additional time shall be demonstrated to the Division of Field Services in Frankfort by written request. The request shall initially be submitted to the regional office at least two (2) weeks prior to the expiration of the renewed deferment. Upon recommendation of the regional administrator, the director of the Division of Field Services shall issue his decision on or before expiration of the deferment. (b) Application for a deferment pursuant to subsection (1)(b) of this section for combined surface and underground mining shall be made according to 405 KAR 8:050, Section 7. (c) Application for a deferment pursuant to subsection (1)(a) of this section for coal marketing problems shall be made according to Section 5 of this administrative regulation. (3) The applicant has the burden of establishing the need for a deferment. The applicant shall demonstrate that reclamation on the site is contemporaneous as of the date of the request for deferment and that distance requirements for contemporaneous reclamation will be met during the period of deferment. The permittee shall continue to comply with the time limits of the coal removal and contemporaneous reclamation requirements until the deferment is issued. (4) Reclamation deferments may be approved for a period reasonably related to the specified conditions justifying the deferment. The deferral shall not extend beyond the expiration date of the permit and in no event shall the aggregate deferral period exceed thirty (30) months, except where approved combined mining is being carried out under subsection (1)(b) of this section. (5) The cabinet shall periodically reexamine and update the amount of the bond on the permit area so that the amount of the bond is sufficient to assure completion of reclamation if the work had to be performed by the cabinet in the event of forfeiture. SECTION 5. ADDITIONAL REQUIREMENTS FOR DEFERMENTS FOR COAL MARKETING PROBLEMS. Upon written application conforming to the requirements of the statutes and administrative regulations, the cabinet may grant a deferment of coal removal and contemporaneous reclamation for a period not to exceed thirty (30) months pursuant to KRS 350.093. (1) Application requirements. (a) An applicant for a deferment of coal removal and contemporaneous reclamation shall submit an application on a form specified by the cabinet. An application shall contain at least the following: 1. A demonstration of the need for the deferment, including documentation of the coal marketing problem. 2. A plan consisting of a detailed narrative description of the method by which the applicant shall conform to each of the performance standards specified in subsection (2) of this section. 3. A detailed schedule for implementation of each of the performance standards of subsection (2) of this section, which may not extend beyond thirty (30) days from the issuance by the cabinet of a deferment from coal removal and contemporaneous reclamation. 4. An itemized estimate of the total cost of reclamation of the area proposed for deferment. The estimate shall, at a minimum, include calculations and supporting data demonstrating the volume of spoil necessary for backfilling and grading all open pits and highwalls, the cost of backfilling those pits and highwalls, the cost of final grading and revegetation of the entire disturbed area, and the cost of moving necessary reclamation equipment to the job site. 5. Written consent of the surety for the deferment if the permit area or increment is covered by a surety bond. (b) The applicant shall place an advertisement in the newspaper of largest bona fide circulation in each county in which the permit is located. The advertisement shall be published within ten (10) days after the date the application is submitted to the cabinet and shall contain, at a minimum, the location of the area for which coal removal and contemporaneous reclamation are proposed to be deferred, the reason for which the deferment is sought, and the duration of the requested deferment. The advertisement shall also indicate that the deferment shall not exceed six (6) months initially, but may be renewed for additional six (6) months periods up to a maximum of thirty (30) months. The applicant shall submit proof of the advertisement to the cabinet within fifteen (15) days after application for the deferment. The application shall not be deemed complete until the proof is submitted. (c) The applicant shall also notify, in writing, the owners of the surface of the permit area and adjacent areas as listed on the permit application. The applicant shall provide proof of this notice to the cabinet. The application shall not be deemed complete until the proof is submitted. Within five (5) days after receipt of a complete application, the cabinet shall notify those other persons, if any, who it determines to have an interest which is or may be adversely affected by the proposed deferment. (d) Any person with an interest which is or may be adversely affected may file written comments and objections to the application for a deferment within ten (10) days after receipt of the written notice or publication of the newspaper notice, whichever is later. (e) Upon receipt of the application, the cabinet shall examine the data and calculations submitted pursuant to subsection (1)(a)4 of this section and shall cause an inspection of the area subject to the proposed deferment to be made by an authorized agent of the cabinet. Based upon the data supplied and the inspection, the Division of Permits of the cabinet shall determine whether the existing bond for the entire permit or increment is sufficient for the cabinet to completely reclaim the entire disturbed area of the permit or increment at the expiration of the deferment. If the existing bond is insufficient, then the cabinet shall require, prior to approving the deferment, that the applicant file such additional bond as is determined by the cabinet to be sufficient for the cabinet to completely reclaim the disturbed area. (f) The cabinet shall consider the application, any other submittals from the applicant and any comments received from the public, and shall render a final decision on the application within thirty (30) days of receipt of the complete application. If the cabinet determines that the applicant has satisfied the requirements for a deferment from coal removal and contemporaneous reclamation contained in KRS 350.093(2) and in this administrative regulation, then the cabinet shall grant a deferment to the applicant for a period not to exceed six (6) months. Upon approval by the cabinet, the plan and schedule proposed by the applicant and any conditions imposed on the approval by the cabinet shall become conditions of the permit. (2) Performance standards. Each permittee subject to a deferment shall, at a minimum: (a) Complete final reclamation including backfilling, grading, topsoiling and revegetation on all disturbed areas; except that those areas of the pit, work area, excess spoil disposal areas, topsoil storage areas, and access road necessary to allow resumption of coal extraction without redisturbance of finally reclaimed areas may be exempted from this requirement for the duration of the deferment. In order to meet this requirement, the permittee may be required to reclaim closer to the pit than the distance limits specified in the contemporaneous reclamation administrative regulation. (b) Mulch or establish quick growing temporary vegetation, or both, on all areas exempted under paragraph (a) of this subsection (except for haul road surfaces) such as excess spoil disposal areas, work areas, topsoil storage areas, and all other areas which have been cleared of vegetation, to the extent technically practicable to achieve erosion control or stability as determined by the cabinet. The permittee shall maintain the cover on all these areas to minimize erosion throughout the deferment period. (c) Acid- or toxic-producing spoil shall not be left exposed but shall be covered or treated in accordance with Section 3 of 405 KAR 16:190 and 405 KAR 18:190. (d) Supplemental sediment control measures such as straw dikes and fabric filter fences may be required by the cabinet on a case-by-case basis to minimize additional contributions of sediment to the stream flow or run-off. (e) Where accumulation of water in the pit may adversely impact the hydrologic balance, public health and safety or the environment, the cabinet shall require such measures as are necessary to minimize adverse impacts. These may include but are not limited to such measures as: 1. Providing drainage from the pit to prevent breaching of the undisturbed berm. 2. Pumping the water to a treatment facility when accumulation of acid or toxic water in the pit may result in contamination of the ground water. (3) Deferment implementation. (a) The permittee shall implement the terms of the approved plan within the time schedule approved by the cabinet and consistent with this administrative regulation. (b) Except as expressly modified by the approved plan, schedule, and conditions in the deferment approval, the permittee shall comply with all of the requirements of the administrative regulations and the permit conditions which would apply to the operation had the deferment not been granted. These requirements include but are not limited to the following: 1. All discharges of water from the permitted area shall be continually treated to meet the applicable effluent limitations. 2. All water quality monitoring and reporting otherwise required shall continue. 3. All diversion ditches, sedimentation ponds, haul road drainage ditches and culverts, etc., shall be rehabilitated as necessary and continually maintained to comply with the applicable performance standards and with the designs approved in the permit. Sediment shall be removed from the sedimentation ponds when the design sediment storage volume has filled with sediment. 4. Haul road maintenance, such as grading, replacement of durable surface material, and cleaning out of ditches and culverts, shall be continually performed as necessary to comply with the performance standards and the approved permit and to minimize erosion. (4) Expiration and renewal. (a) A deferment from coal removal and contemporaneous reclamation shall expire six (6) months after the date of issuance of the deferment by the cabinet. A deferment from coal removal and contemporaneous reclamation may be renewed upon written application for a period of no more than six (6) months upon a showing of need for additional time, and upon a showing that the area subject to deferment is in compliance with the requirements of the administrative regulations, the permit, and the terms of the deferment. The cabinet shall inspect the area subject to deferment prior to approval of any renewal. (b) Regardless of the reasons for the deferment, no deferments or subsequent renewals shall be granted beyond the maximum aggregate period of thirty (30) months for any permit area, including any deferment periods issued for adverse conditions. At the expiration of the thirty (30) month aggregate period, a permittee shall not be granted any additional deferments or renewals unless the permittee can demonstrate that it has conducted twelve (12) months of continuous active coal removal from the permit area after the expiration of the thirty (30) month aggregate period, it has completed reclamation of all previously deferred areas in the permit area, and it otherwise meets all requirements for a deferment. For the purpose of this paragraph, "completed reclamation" means completion of reclamation phase I as defined by 405 KAR 10:040, Section 2(4)(a). (c) The deferment shall terminate upon resumption of coal extraction activities on the permit area subject to deferment. (5) Enforcement and revocation. (a) The cabinet shall inspect the area subject to deferment at least once each month on the average, during the routine partial and complete inspections made of the permit area. Upon each inspection, the inspector shall note under the "comments" section of the Mine Inspection Report form whether the area subject to deferment meets the conditions of the deferment approval, including the plan and schedule. (b) If the inspection shows that a violation of the conditions of the deferment or of the administrative regulations or of the conditions of the permit is occurring on the area subject to deferment, or is causally related to the area subject to deferment, then the cabinet shall issue a notice of noncompliance and order for remedial measures or order for cessation and immediate compliance in accordance with 405 KAR Chapter 12. If the permittee fails to abate the violation within the time for abatement, or any extension thereof, established by the cabinet, then the cabinet shall revoke the deferment in addition to other enforcement actions required by 405 KAR Chapters 7 through 24. SECTION 6. SUPPLEMENTAL ASSURANCE. {{ 30 CFR 800.15 }} (1) If alternative distance limits or additional pits are approved under Section 2 of this administrative regulation, the applicant shall submit to the cabinet supplemental assurance in the amount set forth in this section. This supplemental assurance shall be for the purpose of assuring the reclamation of the additional unreclaimed disturbed area and shall be in addition to the performance bond required under 405 KAR Chapter 10. (a) The supplemental assurance shall not be subject to the bond release requirements of 405 KAR 10:040, but shall be returned in accordance with the requirements of this section. (b) However, the requirements of 405 KAR 10:030, 405 KAR 10:035, and 405 KAR 10:050 shall apply to supplemental assurance. (2) Contour mining (single seam). The amount required shall be $50,000 per 1500 feet, or any portion thereof, of additional distance approved for the first pit under Section 2 of this administrative regulation. If an additional pit or pits are approved, the amount shall be $50,000 per 1500 feet, or any portion thereof, including the first 1500 feet of each additional pit. (3) Contour mining (multiple seam). For multiple seam contour mining operations subject to Section 2(4) of this administrative regulation, the amount required shall be $50,000 per 1500 feet, or any portion thereof, of additional distance approved for the first multiple seam operation under Section 2 of this administrative regulation. If any additional multiple seam operations are approved, the amount shall be $50,000 per 1500 feet, or any portion thereof, including the first 1500 feet of each additional multiple seam operation. (4) Mountaintop removal. If a mountaintop removal operation begins by mining a contour cut around all or a portion of the mountaintop, that contour portion shall require the same supplemental assurance set forth in subsection (2) of this section. (5) Area mining. The amount required shall be $50,000 for any four (4) spoil ridges, or any portion thereof, of additional distance approved for the first pit under Section 2 of this administrative regulation. If an additional pit or pits are approved, the amount shall be $50,000 for any four (4) spoil ridges, or any portion thereof, including the first four (4) spoil ridges of each additional pit. (6) Return of supplemental assurance. Supplemental assurance shall be returned to the person that submitted it upon: (a) Application to the cabinet for the return; and (b) Inspection and written documentation (including photographs) by the cabinet verifying that the area for which the supplemental assurance was submitted has been backfilled and graded (or in the case of mountaintop removal, the associated highwall has been eliminated by mining operations). (7) The provisions of this section and the requirements of Section 2 of this administrative regulation requiring approval for more than one (1) pit per permit area shall apply: (a) Upon the effective date of this administrative regulation for all permit applications submitted on or after that date; and (b) 180 days after the effective date of this administrative regulation for all other surface coal mining and reclamation operations. Section 7. Documents Incorporated by Reference. (1) The following forms are hereby incorporated by reference: (a) Supplemental Assurance, SME-42 (SA), July, 1994. (b) Escrow Agreement (for use with Supplemental Assurance form only), SME-64 (SA), July, 1994. (c) These forms may be reviewed or obtained at the Department for Surface Mining Reclamation and Enforcement, #2 Hudson Hollow, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. (8 Ky.R. 1528; eff. 1-6-83; Am. 11 Ky.R. 237; 578; eff. 10-9-84; 21 Ky.R. 530; eff. 12-12-94.)\ 405 KAR 16:030. SIGNS AND MARKERS. RELATES TO: KRS 350.200, 350.430, 350.465 {{ 30 CFR 816.11 }} STATUTORY AUTHORITY: KRS 350.028, 350.200, 350.465 NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth location and informational requirements for signs and markers at mine access points, perimeters, stream buffer zones, blasting areas, and topsoil storage areas. SECTION 1. SPECIFICATIONS. Signs and markers required under this chapter shall: (1) Be posted and maintained by the permittee; (2) Be of a uniform design throughout the operation that can be easily seen and read; (3) Be made of durable material; and (4) Conform to local ordinances and codes. SECTION 2. DURATION OF MAINTENANCE. Signs and markers shall be maintained during the conduct of all activities to which they pertain. SECTION 3. MINE AND PERMIT IDENTIFICATION SIGNS. (1) Identification signs shall be displayed at each point of access to the permit area from public roads. (2) Signs shall show the name, business address, and telephone number of the permittee and the person, if any, who conducts the surface mining activities on behalf of the permittee and the identification number of the current permit authorizing surface mining activities under KRS Chapter 350. (3) Signs shall be retained and maintained until after the release of all bonds for the permit area. SECTION 4. PERIMETER MARKERS. The perimeter of a permit area shall be clearly marked before the beginning of surface mining activities. SECTION 5. BUFFER ZONE MARKERS. Buffer zones as required under 405 KAR 16:060, Section 11, shall be marked along their boundaries. SECTION 6. BLASTING SIGNS. If blasting is conducted incident to surface mining activities, the permittee shall: (1) Conspicuously display signs reading "Blasting Area" along the edge of any blasting area that comes within fifty (50) feet of any road within the permit area, or within 100 feet of any public road right-of-way. (2) Prevent unauthorized entry to the immediate vicinity of charged holes by guarding or by conspicuous posting or flagging of the immediate vicinity. (3) Place at all entrances to the permit area from public roads or highways conspicuous signs which state "Warning! Explosives in Use," which clearly explain the blast warning and all clear signals that are in use and which explain the marking of blast areas and charged holes within the permit area. SECTION 7. TOPSOIL MARKERS. Where topsoil or other vegetation-supporting material is segregated and stockpiled as required under 405 KAR 16:050, Section 3, the stockpiled material shall be clearly marked. (8 Ky.R. 1529; eff. 1-6-83.) 405 KAR 16:040. CASING AND SEALING OF DRILLED HOLES. RELATES TO: KRS 350.420, 350.465 STATUTORY AUTHORITY: KRS 350.028, 350.465 NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for temporary and permanent casing, sealing or other management of drill holes, boreholes, wells, or other exposed underground openings. SECTION 1. GENERAL REQUIREMENTS. {{ 30 CFR 816.13 }} Each exploration hole, other drill or borehole, well, or other exposed underground opening shall be cased, sealed, or otherwise managed as approved by the cabinet, as necessary to prevent acid or other toxic drainage from entering ground or surface waters, to minimize disturbance to the prevailing hydrologic balance, and to ensure the safety of people, livestock, fish and wildlife, and machinery in the permit area and adjacent area. If these openings are uncovered or exposed by surface mining activities within the permit area they shall be permanently closed, unless approved for water monitoring, or otherwise managed in a manner approved by the cabinet. Use of a drilled hole or borehole or monitoring well as a water well must meet the provisions of 405 KAR 16:060, Section 7. This section does not apply to holes solely drilled and used for blasting. SECTION 2. TEMPORARY. {{ 30 CFR 816.14 }} Each exploration hole, other drill or boreholes, wells and other exposed underground openings which have been identified in the approved permit application for use to return coal processing waste or water to underground workings, or to be used to monitor ground water conditions, shall be temporarily sealed before use and protected during use by barricades, or fences, or other protective devices approved by the cabinet. These devices shall be periodically inspected and maintained in good operating condition by the person who conducts the surface mining activities. SECTION 3. PERMANENT. {{ 30 CFR 816.15 }} When no longer needed for monitoring or other use approved by the cabinet upon a finding of no adverse effect, or unless approved for transfer as a water well under 405 KAR 16:060, Section 7, each exploration hole, other drilled hole or borehole, well, and other exposed underground opening shall be capped, sealed, backfilled, or otherwise properly managed, as required by the cabinet, under Section 1 of this administrative regulation and consistent with 30 CFR 75.1711. Permanent closure measures shall be designed to prevent access to the mine workings by people, livestock, fish and wildlife, and machinery, and to keep acid or other toxic drainage from entering ground or surface waters. (8 Ky.R. 1529; eff. 1-6-83.) 405 KAR 16:050. TOPSOIL. RELATES TO: KRS 350.062, 350.405, 350.415, 350.465 {{ 30 CFR 816.22 }} 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 establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for the removal, storage and redistribution of topsoil and requirements for substitution of other materials for topsoil. SECTION 1. GENERAL REQUIREMENTS. (1) All topsoil, topsoil substitutes and supplements, and subsoils to be saved under Section 2 of this administrative regulation shall be removed as separate layers from the area to be disturbed and shall be segregated from other materials. (2) After removal, such materials shall either be immediately redistributed in accordance with Section 4 of this administrative regulation or stockpiled pending redistribution in accordance with Section 3 of this administrative regulation. (3) For surface areas which are without suitable topsoil as a result of previous surface coal mining operations, the cabinet shall approve and/or specify, on a site-specific basis, alternative practices designed to utilize those available materials which are most suitable for sustaining sufficient vegetation. Such materials shall be tested for their chemical and physical properties as set forth in Section 2(5) of this administrative regulation. The cabinet may require the application of nutrients and soil amendments as necessary for sustaining sufficient vegetation. SECTION 2. REMOVAL. (1)(a) For areas where topsoil is to be saved in accordance with this section, vegetative cover that would interfere with the salvage or use of the topsoil shall be cleared from those areas prior to topsoil removal; however, topsoil shall be removed from those areas as a separate layer and shall be segregated from other materials prior to any drilling, blasting, mining, or other surface disturbance of those areas. (b) For situations in which the topsoil is of insufficient quantity or poor quality for sustaining sufficient vegetation, the materials approved by the cabinet in accordance with subsection (5) of this section shall be removed as a separate layer and segregated from other materials. (2) Prior to placement of excess spoil or coal mine waste, construction of an embankment, or construction of any other structure for which stability is a concern, all topsoil and vegetative material shall be removed, either progressively or in a single set of operations, from all areas where failure to remove such materials would adversely affect the stability of the structure. For other areas disturbed by the structure and for all other areas disturbed by surface coal mining and reclamation operations, all topsoil shall be removed in accordance with subsection (1) of this section, unless the use of topsoil substitute materials is approved by the cabinet in accordance with subsection (5) of this section or unless topsoil removal requirements are waived pursuant to subsection (6) of this section. (3) If the topsoil is less than six (6) inches in depth, a six (6) inch layer that includes the topsoil and the unconsolidated materials immediately below the topsoil or the topsoil and all unconsolidated materials, if the total available is less than six (6) inches, shall be removed and the mixture segregated and redistributed as the surface soil layer, unless topsoil substitutes are approved by the cabinet pursuant to subsection (5) of this section. (4) The B horizon and portions of the C horizon and/or other underlying layers demonstrated to have qualities for comparable root development shall be removed, segregated, and replaced as subsoil if the cabinet determines that either of these is necessary to comply with the revegetation requirements of 405 KAR 16:200 or to ensure soil productivity consistent with the approved postmining land use. (5) Selected materials may be substituted for or used as a supplement to topsoil, if the applicant demonstrates to the satisfaction of the cabinet that the resulting soil medium is equal to or more suitable for sustaining sufficient vegetation than is the available topsoil and that the resulting soil medium is the best available to support sufficient vegetation. This demonstration shall be based on: (a) The results of chemical and physical analyses of the substitute or supplement materials and the topsoil, which must be submitted in the permit application. These investigations shall include: 1. Analyses performed by a qualified soil scientist, qualified agronomist, or other qualified specialist consisting of evaluations of the thicknesses of the soil horizons, the thicknesses of the substitute or supplement materials, the total depths of the soils, the areal extents of the different kind of soils, and the areal extents of the substitute or supplement materials; 2. Analyses performed by a qualified laboratory consisting of evaluations of pH, net acidity or alkalinity, phosphorus, potassium, texture, and percent coarse fragments; and 3. Other analyses performed by qualified individuals, if required by the cabinet, including but not limited to additional chemical and physical evaluations, field-site trials, greenhouse tests, and other investigations to establish the feasibility of using the substitute or supplement materials. (b) A discussion from a qualified soil scientist or agronomist stating that: The proposed substitute or supplement materials are equal to or more suitable for sustaining sufficient vegetation than is the available topsoil; the resulting soil medium is the best available material to support sufficient vegetation; and the trials and tests were conducted using approved standard testing procedures. (6) The cabinet may choose not to require the removal of topsoil for minor disturbances which: (a) Occur at the site of small structures such as power poles, signs, and fence lines; or (b) Will not destroy the existing vegetation and will not cause erosion. SECTION 3. STORAGE. (1) Topsoil and/or other materials removed pursuant to Section 2 of this administrative regulation shall be stockpiled only when it is impractical to promptly redistribute such materials on regraded areas. (2) Stockpiled materials shall be selectively placed on stable areas within the permit area; shall not be disturbed; and shall be protected from wind and water erosion, unnecessary compaction, and contaminants which lessen the capability of the materials to support vegetation when redistributed. (a) Protection measures shall be accomplished either by: 1. An effective cover of nonnoxious, quick-growing annual and perennial plants seeded or planted during the first normal seeding or planting period after removal and resown as necessary thereafter; or 2. Other methods demonstrated to and approved by the cabinet to provide equal protection. (b) Unless approved by the cabinet, stockpiled topsoil and/or other materials shall not be moved until required for redistribution on a regraded area. (3) If such measures are demonstrated by the applicant to have no adverse effect on the topsoil and if approved by the cabinet, vegetative material may be used as mulch or may be included in the topsoil to control erosion, promote growth of vegetation, or increase the moisture retention of the soil. (4) Where long-term surface disturbances will result from facilities such as support facilities and preparation plants and where stockpiling of materials removed in accordance with Section 2 of this administrative regulation would be detrimental to the quality or quantity of those materials, the cabinet may approve the temporary distribution of the materials so removed to an approved site within the permit area to enhance the current use of that site until needed for later reclamation provided that: (a) Such action will not permanently diminish the capability of the topsoil and/or other materials of the host site; and (b) The materials will be retained in a condition more suitable for redistribution than if stockpiled. SECTION 4. REDISTRIBUTION. (1) After final grading and before final placement of topsoil and other materials segregated in accordance with Section 2 of this administrative regulation, the land shall be scarified or otherwise treated as required by the cabinet to eliminate slippage surfaces and to promote root penetration. If the permittee demonstrates through appropriate tests that no harm will be caused to the materials and vegetation and if approved by the cabinet, scarification may be conducted after redistribution of topsoil and/or other materials. (2) Topsoil and/or other materials shall be redistributed in a manner that: (a) Achieves an approximate uniform, stable thickness consistent with the approved postmining land uses, contours, and surface water drainage systems; (b) Prevents excessive compaction of the topsoil and/or other materials; and (c) Protects the topsoil and/or other materials from wind and water erosion before and after it is seeded and planted. (3) The materials removed pursuant to Section 2 of this administrative regulation shall be redistributed at a time when the physical and chemical properties of the materials can be protected and erosion can be minimized. (4) The cabinet may choose not to require the redistribution of topsoil and/or other materials on approved postmining embankments of permanent impoundments and of roads if it determines that: (a) Placement of topsoil and/or other materials on such embankments is inconsistent with the requirement to use the best technology currently available to minimize sedimentation; and (b) Such embankments will be otherwise stabilized. SECTION 5. NUTRIENTS AND SOIL AMENDMENTS. Nutrients and soil amendments, in the amounts determined by soil tests, shall be applied to the redistributed materials so that they are sufficient to sustain the approved postmining land use and to sustain vegetation which is sufficient to meet the revegetation requirements of 405 KAR 16:200. All soil tests shall be performed by a qualified laboratory using standard methods approved by the cabinet. (8 Ky.R. 1530; eff. 1-6-83; Am. 11 Ky.R. 1837; eff. 8-13-85.) 405 KAR 16:060. GENERAL HYDROLOGIC REQUIREMENTS. RELATES TO: KRS 350.100, 350.410, 350.420, 350.421, 350.440, 350.465, 30 CFR Parts 701.5, 730-733, 735, 816.41, 816.45, 816.47, 816.56, 816.57, 917, 30 USC 1253, 1255, 1265, 1307 {SMCRA Secs. 503, 505, 515, 717} STATUTORY AUTHORITY: KRS 350.028, 350.100, 350.420, 350.465, 30 CFR Parts 701.5, 730-733, 735, 816.41, 816.45, 816.47, 816.56, 816.57, 917, 30 USC 1253, 1255, 1265, 1307 {SMCRA Secs. 503, 505, 515, 717} NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1) and (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes the requirements for the protection of the hydrologic balance, protection of surface and groundwater quantity and quality, control of erosion and sediment, control of acid-forming and toxic-forming materials, protection of streams, and the replacement of water supplies. This administrative regulation differs from federal regulations as follows: Section 8(1) requires that replacement of water supplies be done "promptly". This requirement appears in 30 CFR 817.41(j) relating to underground mines, but does not appear in 30 CFR 816.41(h) relating to surface mines. It is included in this administrative regulation because KRS 350.421(2), which requires replacement of the water supply, makes no distinction between underground and surface mines. Section 8(2)(a) of this administrative regulation, regarding replacement of domestic water supplies, includes requirements for emergency, temporary, and permanent replacement that are not included in the federal counterpart at 30 CFR 816.41(h) but are included in the definition of "replacement of water supply" at 30 CFR 701.5. It includes specific time frames for replacement that are not included in the federal regulations but are suggested in the preamble (60 FR 16727, March 31, 1995) to the federal regulations and are needed for fair and consistent enforcement of the requirement to promptly replace domestic water supplies. Section 8(2)(e) of this administrative regulation, regarding payment of excess delivery costs, includes a base time period of twenty (20) years that is not included in the federal regulations, and also includes more flexible payment options than the federal regulations. This time period is discussed as an example in the preamble at 60 FR 16726, March 31, 1995 and is needed for fair and consistent enforcement of the requirement to pay excess delivery costs. Section 8(4)(b) of this administrative regulation, regarding coverage of water replacement by liability insurance rather than additional performance bond, is not included in the federal counterpart at 30 CFR 816.41(h). The federal bonding regulation at 30 CFR 800.14(c) provides that the permittee's financial responsibility for repairing material damage resulting from subsidence under 30 CFR 817.121(c), which includes damage to water supplies, may be satisfied by the liability insurance policy required under 30 CFR 800.60. This provision is included in this administrative regulation in order to provide the same option to surface mining permittees that 405 KAR 18:060, Section 12 provides to underground mining permittees. Section 8(4)(c) of this administrative regulation, regarding prompt release or return of additional bond posted for water replacement, is not included in the federal regulations. This administrative regulation is consistent with the purpose of the federal regulations because the bond cannot be released or returned until after the permittee has completed the water supply replacement that the bond is intended to guarantee. SECTION 1. GENERAL REQUIREMENTS. {{ 30 CFR 816.41 }} (1) All surface mining activities shall be planned and conducted to minimize disturbance of the hydrologic balance in both the permit area and adjacent areas, in order to: (a) Prevent material damage to the hydrologic balance outside the permit area; (b) Assure the protection or replacement of water rights; and (c) Support the approved postmining land uses in accordance with the terms and conditions of the approved permit and the performance standards of this administrative regulation. (2) Changes in water quality and quantity, in the depth to groundwater, and in the location of surface water drainage channels shall be minimized so that the approved postmining land use of the permit area is not adversely affected. (3) In no case shall federal and state water quality statutes, regulations, standards, or effluent limitations be violated. (4) Operations shall be conducted to minimize water pollution and, where necessary, treatment methods shall be used to control water pollution. (a) Each permittee shall emphasize mining and reclamation practices that prevent or minimize water pollution. Changes in flow of drainage shall be used in preference to the use of water treatment facilities. (b) Acceptable practices to control and minimize water pollution include: 1. Stabilizing disturbed areas through land shaping; 2. Diverting run-off; 3. Achieving quickly germinating and growing stands of temporary vegetation; 4. Regulating channel velocity of water; 5. Lining drainage channels with rock or vegetation; 6. Mulching; 7. Selectively placing and sealing acid-forming and toxic-forming materials; 8. Selectively placing waste materials in backfill areas; and 9. Implementing sediment control measures in Section 2 of this administrative regulation. SECTION 2. SEDIMENT CONTROL MEASURES. {{ 30 CFR 816.45 }} (1) Appropriate sediment control measures shall be designed, constructed, and maintained using the best technology currently available to: (a) Prevent, to the extent possible, additional contributions of sediment to stream flow or to run off outside the permit area; (b) Meet the requirements of 405 KAR 16:070, Section 1(1)(g); and (c) Minimize erosion to the extent possible. (2) Sediment control measures include practices carried out within and adjacent to the disturbed area. The sediment storage capacity of measures in and downstream from the disturbed areas shall reflect the degree to which successful mining and reclamation techniques are applied to reduce erosion and control sediment. Sediment control measures consist of the utilization of proper mining and reclamation methods and sediment control practices, singly or in combination. Sediment control methods include: (a) Disturbing the smallest practicable area at any one (1) time during the mining operation through progressive backfilling, grading and prompt revegetation as required in 405 KAR 16:200, Section 1(2); (b) Stabilizing the backfilled material to promote a reduction in the rate and volume of run-off, in accordance with the requirements of 405 KAR 16:190; (c) Retaining sediment within disturbed areas; (d) Diverting run-off away from disturbed areas; (e) Diverting run-off using protected channels or pipes through disturbed areas so as not to cause additional erosion; (f) Using straw dikes, riprap, check dams, mulches, vegetative sediment filters, dugout ponds, and other measures that reduce overland flow velocity, reduce run-off volume, or trap sediment; and (g) Treating with chemicals; and (h) Using sedimentation ponds as required in 405 KAR 16:070. SECTION 3. DISCHARGE STRUCTURES. {{ 30 CFR 816.47 }} Discharge from sedimentation ponds, permanent and temporary impoundments, coal processing waste dams and embankments, and diversions shall be controlled, by energy dissipators, riprap channels, and other devices, where necessary, to reduce erosion, to prevent deepening or enlargement of stream channels, and to minimize disturbance of the hydrologic balance. Discharge structures shall be designed according to standard engineering design procedures. SECTION 4. ACID-FORMING AND TOXIC-FORMING MATERIALS. {{ 30 CFR 816.41 }} Acid drainage and toxic drainage shall be avoided by: (1) Identifying, burying, and treating, in accordance with 405 KAR 16:190, Section 3, materials which may adversely affect water quality, or be detrimental to vegetation or to public health and safety if not buried and treated; (2) Storage, burial or treatment practices consistent with other material handling and disposal provisions of this chapter; and (3) Burying or otherwise treating all acid-forming or toxic-forming spoil within thirty (30) days after it is first exposed on the mine site, or within a lesser period required by the cabinet. Temporary storage of the spoil may be approved by the cabinet upon a finding that burial or treatment within thirty (30) days is not feasible and will not result in any material risk of water pollution or other environmental damage. Storage shall be limited to the period until burial or treatment first becomes feasible. Acid-forming or toxic-forming spoil to be stored shall be placed on impermeable material and protected from erosion and contact with surface water. SECTION 5. GROUNDWATER PROTECTION AND RECHARGE CAPACITY. {{ 30 CFR 816.41 }} In order to protect the hydrologic balance, surface mining activities shall be conducted according to 405 KAR 8:030, Section 32(1) and (2) and the following: (1) Groundwater quality shall be protected by handling earth materials and run-off in a manner that minimizes acidic, toxic, or other harmful infiltration to groundwater systems and by managing excavations and other disturbances to prevent or control the discharge of pollutants into the groundwater; and (2) Groundwater quantity shall be protected by handling earth materials and run-off in a manner that will restore the approximate premining recharge capacity of the reclaimed area as a whole, excluding coal mine waste disposal areas and excess spoil fills, so as to allow the movement of water to the groundwater system. SECTION 6. SURFACE WATER PROTECTION. {{ 30 CFR 816.41 }} In order to protect the hydrologic balance, surface mining activities shall be conducted according to 405 KAR 8:030, Section 32(1) and (2) and the following: (1) Surface water quality shall be protected by handling earth materials, groundwater discharges, and run-off in a manner that: (a) Minimizes the formation of acidic or toxic drainage; (b) Prevents, to the extent possible using the best technology currently available, additional contribution of suspended solids to stream flow outside the permit area; and (c) Will not cause or contribute to a violation of any federal or state effluent limitations or water quality standards. (2) If drainage control, restabilization and revegetation of disturbed areas, diversion of run-off, mulching, or other reclamation and remedial practices are not adequate to meet the requirements of this section and 405 KAR 16:070, the operator shall use and maintain the necessary water-treatment facilities or water quality controls for as long as treatment is required under this chapter; and (3) Surface water quantity and flow rates shall be protected by handling earth materials and run-off in accordance with the steps outlined in the plan approved under 405 KAR 8:030, Section 32(1) and (2). SECTION 7. TRANSFER OF WELLS. {{ 30 CFR 816.41 }} Before final release of bond, exploratory or monitoring wells shall be sealed in a safe and environmentally sound manner in accordance with 405 KAR 16:040. With the prior approval of the regulatory authority, wells may be transferred to another party for further use. At a minimum, the conditions of such transfer shall comply with state and local law and the permittee shall remain responsible for the proper management of the well until bond release in accordance with 405 KAR 16:040. SECTION 8. REPLACEMENT OF WATER SUPPLY {{ 30 CFR 816.41 }} (1)(a) If the cabinet receives a citizen's complaint under 405 KAR 12:030 that the person's water supply has been adversely impacted by the activities of a permittee named in the complaint, the cabinet shall promptly notify the permittee of the complaint. (b) The permittee or operator shall promptly replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source, if the water supply has been adversely impacted by contamination, diminution, or interruption proximately resulting from the surface mining activities. Baseline geologic and hydrologic information required in 405 KAR 8:030, Sections 12 through 16, and other relevant information available to the cabinet, shall be used to determine the impact of mining activities upon the water supply. (2) If replacement of a water supply is required under subsection (1) of this section the permittee shall: (a) If the water supply to be replaced is a domestic supply, provide water supply on both a temporary and permanent basis in accordance with this paragraph; 1. Within forty-eight (48) hours after receiving notice from the cabinet that the water supply was adversely impacted by mining, provide drinking water on an emergency basis; 2. Within two (2) weeks after receiving notice from the cabinet that the water supply was adversely impacted by mining, provide a temporary water supply connected to the existing plumbing, if any, that provides water for all ordinary household purposes including drinking, cooking, bathing, sanitation, and laundry, and drinking water for poultry, livestock, and domestic animals, and water for noncommercial domestic agricultural and horticultural activities; 3. Within two (2) years after receiving notice from the cabinet that the water supply was adversely impacted by mining, provide a satisfactory permanent water supply; (b) If the water supply to be replaced is other than a domestic supply, provide water supply on both a temporary and permanent basis on a schedule established by the cabinet on a case-by-case basis; (c) Provide water supply equivalent to premining quantity and quality; (d) Provide an equivalent water delivery system; and (e) Pay operation and maintenance costs in excess of customary and reasonable delivery costs for the premining water supply for a period of twenty (20) years, or other period agreed to by the permittee and the owner of interest. Upon agreement by the permittee and the owner of interest, the obligation to pay the excess operation and maintenance costs may be satisfied by: 1. A one (1) time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period of twenty (20) years, or other period agreed to by the permittee and the owner of interest; 2. A uniform series of payments whose present worth equals or exceeds the present worth of the increased annual operation and maintenance costs for a period of twenty (20) years, or other period agreed to by the permittee and the owner of interest; or 3. Other reasonable compensation arrangements which fairly compensate the owner for the future operation and maintenance costs for a period of twenty (20) years, or other period agreed to by the permittee and the owner of interest. (3) If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If this approach is selected, written concurrence shall be obtained from the owner of interest. (4)(a) If contamination, diminution, or interruption to a water supply protected under subsection (1) of this section occurs, the cabinet shall require the permittee to obtain additional performance bond in the amount of the estimated cost to replace the protected water supply, until the replacement is completed. If replacement is completed within ninety (90) days of the occurrence, additional bond shall not be required. The cabinet may extend the ninety (90) day time frame, but not to exceed one (1) year, if the permittee demonstrates and the cabinet finds in writing that not all reasonably anticipated changes affecting the protected water supply have occurred, and that therefore it would be unreasonable to complete the replacement within ninety (90) days. (b) If the permittee demonstrates that his liability insurance policy under 405 KAR 10:030, Section 4 covers the replacement, the additional bond amount required under paragraph (a) of this subsection may be reduced by the amount of the insurance coverage applicable to the replacement. The existence of applicable insurance coverage shall not prevent forfeiture of a performance bond under 405 KAR 10:050. (c) The cabinet may promptly release or return the additional bond amount provided under paragraph (a) of this subsection if the cabinet determines, based upon an application and information submitted by the permittee, the cabinet's own investigation as appropriate, and other information available to the cabinet, that the permittee has satisfactorily completed the required replacement. SECTION 9. DISCHARGES INTO AN UNDERGROUND MINE. {{ 30 CFR 816.41 }} (1) Discharges into an underground mine are prohibited, unless specifically approved by the cabinet after a demonstration that the discharge will: (a) Minimize disturbance to the hydrologic balance on the permit area, prevent material damage outside the permit area and otherwise eliminate public hazards resulting from surface mining activities; (b) Not result in a violation of applicable water quality standards or effluent limitations; (c) Be at a known rate and quality which shall meet the effluent limitations of 405 KAR 16:070 for pH and total suspended solids, except that the pH and total suspended-solids limitations may be exceeded, if approved by the cabinet; and (d) Meet with the approval of the Mine Safety and Health Administration. (2) Discharges shall be limited to the following: (a) Coal processing waste; (b) Fly ash from a coal-fired facility; (c) Sludge from an acid mine drainage treatment facility; (d) Flue gas desulfurization sludge; (e) Inert materials used for stabilizing underground mines; (f) Underground mine development wastes; and (g) Water. SECTION 10. POSTMINING REHABILITATION OF SEDIMENTATION PONDS, DIVERSIONS, IMPOUNDMENTS, AND TREATMENT FACILITIES. {{ 30 CFR 816.41, 816.56, 817.41 }} Before abandoning the permit area, the permittee shall renovate all permanent sedimentation ponds, diversions, impoundments, and treatment facilities as necessary to meet criteria specified in the detailed design plan for the permanent structures and impoundments. SECTION 11. STREAM BUFFER ZONES. {{ 30 CFR 816.57 }} (1) No land within 100 feet of an intermittent or perennial stream shall be disturbed by surface mining activities unless the cabinet specifically authorizes surface mining activities closer to, or through, such a stream. The cabinet may authorize such activities only upon finding, as a result of evaluating a permit application, that: (a) Surface mining activities will not cause or contribute to the violation of applicable state or federal water quality standards; (b) Surface mining activities will not cause significant detrimental effects on the water quantity or quality of the intermittent or perennial stream; provided however, this paragraph shall not apply to any reach of that stream that is upstream of an impounding structure located within the permit area and within the stream channel; (c) Surface mining activities will not cause significant detrimental effects on other valuable environmental resources, as determined by the cabinet, of the stream; and (d) If there will be a temporary or permanent stream-channel diversion, it will comply with 405 KAR 16:080. (2) The area that is not to be disturbed shall be designated a buffer zone, shall be adequately shown in the permit application, and shall be marked by the permittee as specified in 405 KAR 16:030. (3) Descriptions, drawings, data, and all other information required by the cabinet to make the findings of subsection (1) of this section shall be submitted in a permit application in a manner prescribed by the cabinet. (4)(a) The provisions of the amendments to this section shall apply to all surface mining activities, except as provided in paragraph (b) of this subsection. (b)1. Surface mining activities included in a permit issued on or before August 17, 1987 shall be subject to the provisions that preceded the amendments to this section in lieu of the provisions of subsections (1) through (3) of this section. 2. Surface mining activities included in a permit application determined to be complete pursuant to 405 KAR 8:010, Section 13(1) on or before August 17, 1987 shall be subject to the provisions that preceded the amendments to this section in lieu of the provisions of subsections (1) through (3) of this section. SECTION 12. DISCHARGES OF ACCUMULATED WATER. {{ 30 CFR 816.41, 817.41 }} (1) Any accumulated water to be removed from a pit, bench, or other disturbed area shall be pumped, siphoned, or otherwise conveyed in a controlled manner to a natural or constructed drainway as approved by the cabinet. (2) Such accumulated water may be discharged from the permit area without treatment only if the untreated discharge meets the requirements of 405 KAR 16:070, Section 1(1)(g). (3) The moving of spoil or overburden or the disturbance of the natural barrier required by 405 KAR 16:010, Section 4, in order to release such accumulated water is prohibited, except when specifically authorized by the cabinet. (8 Ky.R. 1531; Am. 9 Ky.R. 698; eff. 1-6-83; 10 Ky.R. 813; eff. 4-23-84; 12 Ky.R. 933; 1316; eff. 2-4-86; 13 Ky.R. 1883; eff. 7-2-87; 24 Ky.R. 710; 1341; 25 Ky.R. 63; eff. 7-7-98.) 405 KAR 16:070. WATER QUALITY STANDARDS AND EFFLUENT LIMITATIONS. RELATES TO: KRS 350.020, 350.090, 350.100, 350.405, 350.420, 350.465 STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100, 350.420, 350.465 NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation identifies water quality standards and effluent limitations which must be met, identifies the waters to which they apply and the periods of time in which they apply, requires water treatment for sediment control, and provides certain exemptions. SECTION 1. WATER QUALITY STANDARDS AND EFFLUENT LIMITATIONS. {{ 30 CFR 816.42, 816.46 }} (1)(a) All surface drainage from disturbed areas shall be passed through a sedimentation pond or a series of sedimentation ponds before leaving the permit area. (b) Sedimentation ponds and other treatment facilities shall be properly maintained and shall not be removed until all disturbed areas in the drainage area above the facility have been backfilled, graded and revegetated in accordance with this chapter and: 1. The vegetation has successfully survived two (2) years after the last augmented seeding; 2. The vegetation meets the ground cover standards of 405 KAR 16:200; and 3. The permittee has demonstrated to the satisfaction of the cabinet that retention of the pond or other treatment facility is not necessary in order to meet the requirements of paragraph (g) of this subsection. (c) The cabinet may grant exemptions from these requirements only when: 1. The disturbed drainage area is small; and 2. The permittee demonstrates that sedimentation ponds and treatment facilities are not necessary for drainage from the disturbed drainage areas to meet the requirements of paragraph (g) of this subsection. (d) For the purposes of this administrative regulation, disturbed area shall not include those areas in which only diversion ditches, sedimentation ponds, or roads are installed in accordance with 405 KAR and the upstream area is not otherwise disturbed by the person who conducts the surface mining activities. (e) Sedimentation ponds required by this section shall be constructed in accordance with 405 KAR 16:090 and 405 KAR 16:100, in appropriate locations before beginning any surface mining activities in the drainage area to be affected. (f) Where sedimentation ponds are located so as to receive drainage both from disturbed areas and from other areas not disturbed by current surface coal mining and reclamation operations, the mixed drainage shall meet the requirements of paragraph (g) of this subsection, when the mixed drainage leaves the permit area. (g) Discharges of water from areas disturbed by surface mining activities shall at all times be in compliance with all applicable federal and state water quality standards and either: 1. If the operation does not have a KPDES permit, the effluent limitations guidelines for coal mining promulgated by the U.S. EPA in 40 CFR 434; or 2. The effluent limitations established by the KPDES permit for the operation. (2) Adequate facilities, in addition to sedimentation ponds, shall be installed, operated, and maintained to treat any water discharged from disturbed areas when necessary to ensure that the discharge complies with all federal and state laws and regulations and the limitations of this administrative regulation. Except where a lower pH is authorized by the KPDES permit for the operation, if the pH of water to be discharged from the disturbed area is less than six (6.0), a neutralization process approved by the cabinet shall be installed, operated, and maintained. (8 Ky.R. 1533; eff. 1-6-83; Am. 15 Ky.R. 455; eff. 12-13-88.) 405 KAR 16:080. DIVERSIONS. RELATES TO: KRS 350.085, 350.100, 350.405, 350.420, 350.465 {{ 30 CFR 816.43 }} STATUTORY AUTHORITY: KRS Chapter 13A, 350.028, 350.100, 350.420, 350.465 NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the cabinet to promulgate rules and administrative regulations establishing performance standards for protection of people and property, land, water and other natural resources, and aesthetic values, during surface mining activities and for restoration and reclamation of surface areas affected by mining activities. This administrative regulation sets forth requirements for design and construction of temporary and permanent diversions of overland flow, shallow groundwater flow, ephemeral streams, and intermittent and perennial streams. SECTION 1. GENERAL REQUIREMENTS. (1) Surface flow from mined areas abandoned before May 3, 1978 and any flow from undisturbed or reclaimed areas, after meeting the criteria of 405 KAR 16:070 and 405 KAR 16:090 for siltation structure removal, may be diverted around the disturbed area and water treatment facilities by means of temporary or permanent diversions. (2) Diversions shall not be constructed or operated to divert water into underground mines without the approval of the cabinet under 405 KAR 16:060, Section 9. (3) The design, construction, and maintenance of diversion ditches shall insure public health and safety, protect property, be stable, minimize adverse impacts to the hydrologic balance, and prevent additional contributions of suspended solids to stream flow and to run off outside the permit area to the extent possible using the best technology currently available. The following criteria are to be incorporated in the design and construction of a diversion ditch: (a) Freeboard shall be no less than three-tenths (0.3) foot. Protection shall be provided for transition of flows and for critical areas such as swales and curves. Where the area protected is a critical area as determined by the cabinet, the cabinet may require that the design freeboard be increased. (b) Excess excavated material not necessary for diversion channel geometry or regrading of the channel shall be disposed of in accordance with 405 KAR 16:130 and 405 KAR 16:190. (c) Topsoil shall be handled in compliance with 405 KAR 16:050. (d) Channel protection shall be used to prevent erosion of the ditch. The following criteria shall be used unless the cabinet specifies otherwise: 1. Except when located in solid rock or when riprap or other nonerodible, nondegradable materials are used, diversion ditches are to be fertilized, seeded, and mulched to comply with the requirements of 405 KAR 16:200 after the ditch is constructed. 2. Riprap or other nonerodible, nondegradable materials shall be used when a diversion ditch is not located in solid rock and the design velocity is five (5) feet per second or greater for the peak discharge used in the design of the ditch. Material used shall be free of acid-forming material and toxic-forming material and riprap shall comply with the durability requirements of 405 KAR 16:130, Section 1(6)(c)2, except that sand and gravel shall not be used. (e) Side slopes shall be no steeper than 1h:4v for solid rock, 1h:1v for riprap lined, and 2h:1v for grass protected ditches. (f) Diversion ditch design capacity shall comply with the provisions of this paragraph, except where a larger capacity is required by other administrative regulations of 405 KAR Chapters 7 through 24 for specific types of diversions or where a larger capacity is required by the cabinet. 1. The channel of any diversion ditch which diverts run-off around a sediment control structure, water treatment facility, or impoundment, excluding dugout structures, shall be adequate to pass the peak discharge from the design storm for the hydraulic capacity of the sediment control structure, water treatment facility, or impoundment (i.e. if the impoundment is designed to pass the 100 year, twenty-four (24) hour storm event so shall the ditch). This size requirement shall not apply if the hydraulic capacity of the sediment control structure, water treatment facility, or impoundment takes into account the entire area contributing drainage, as though the bypass diversion ditch did not exist. 2. The channel of any diversion ditch which diverts run-off to a sediment control structure or water treatment facility shall be adequate, at a minimum, to pass the peak discharge of a ten (10) year, twenty-four (24) hour storm event. 3. The channel, bank, and flood plain configuration of any diversion ditch, which diverts a perennial or intermittent stream, shall be adequate to pass the peak discharge of a ten (10) year, twenty-four (24) hour storm event for temporary ditches and the 100 year, twenty-four (24) hour event for permanent ditches. However, the capacity of the channel itself shall be equal to or greater than the capacity of the unmodified stream channel immediately upstream and downstream of the diversion. 4. The channel of any other diversion ditch which diverts ephemeral streams or overland flow shall be adequate to pass the peak discharge of the two (2) year, twenty-four (24) hour storm for temporary ditches and the ten (10) year, twenty-four (24) hour storm for permanent ditches. (4) No diversion shall be located so as to increase the potential for land slides. No diversion shall be constructed on existing land slides, unless approved by the cabinet. (5) Diversions of perennial streams and intermittent streams shall be designed and certified by a registered professional engineer and after construction shall be inspected and certified by the responsible registered professional engineer as having been constructed in accordance with the approved design plans. The certifications required by this subsection shall be made pursuant to 405 KAR 7:040, Section 10. (6) Diversion ditches shall be maintained to pass their respective design storms. (7)(a) When no longer needed to achieve the purpose for which they were authorized, all temporary diversions shall be removed and the affected land regraded and revegetated, in accordance with 405 KAR 16:050, Sections 4 and 5; 405 KAR 16:190; and 405 KAR 16:200. At the time diversions are removed, downstream water treatment facilities previously protected by the diversion shall be modified or removed to prevent overtopping or failure of the facilities. This requirement shall not relieve the permittee from maintenance of a water treatment facility otherwise required under 405 KAR or the permit. (b) Each ephemeral stream channel affected by surface coal mining and reclamation operations shall be reclaimed or permanently diverted in a channel designed and constructed so as to restore or approximate the premining characteristics of the original stream channel (including natural riparian vegetation) to promote the recovery and enhancement of the aquatic habitats, except for situations in which a reach of a stream channel cannot be restored to such characteristics: 1. Because of the existence of an excess spoil fill, permanent stream-crossing, permanent impoundment, or coal mine waste disposal area constructed in accordance with 405 KAR 16:100, 405 KAR 16:130, 405 KAR 16:140, 405 KAR 16:160, and 405 KAR 16:220 as applicable; or 2. For areas affected by mountaintop removal, because such restoration is inconsistent with the requirements of 405 KAR 20:050. SECTION 2. DIVERSIONS OF PERENNIAL AND INTERMITTENT STREAMS. (1) Flow from perennial and intermittent streams within the permit area may be diverted, if the diversions: (a) Are approved by the cabinet after making the findings called for in 405 KAR 16:060, Section 11(1); (b) Comply with other requirements of 405 KAR Chapters 7 through 24; and (c) Comply with applicable local, state, and federal statutes and regulations. (2) When permanent diversions are constructed or stream channels restored, after temporary divisions, the permittee shall: (a) Restore, enhance where practicable, or maintain natural riparian vegetation on the banks of the stream; (b) Establish or restore the stream to an environmentally acceptable alignment, as determined by the cabinet; (c) Establish or restore the stream to a longitudinal profile and cross-section, including aquatic habitats (usually a pattern of riffles, pools, and drops rather than uniform depth) that approximate premining stream channel characteristics; and (d) Comply with 405 KAR 16:180. (3) Where the cabinet approves the placement of a coal refuse pile, coal waste impoundment, or an excess spoil fill in an intermittent or perennial stream under 405 KAR 16:060, Section 11, and it is not practicable to comply with subsection (2) of this section, then the diversion of the stream channel shall comply with the requirements for diversions set forth in the performance standards for those structures. SECTION 3. APPLICABILITY OF AMENDMENTS TO THIS ADMINISTRATIVE REGULATION. (1) Except as provided in subsection (2) of this section, the amendments to this administrative regulation that became effective on February 4, 1986 shall apply to permits issued on or after July 1, 1986. Permittees conducting surface coal mining and reclamation operations under permits issued before that date shall comply with the requirements which preceded the 1986 amendments, the approved permit application and the conditions of permit issuance. (2) The provisions of Section 1(3)(f)1 of this administrative regulation shall apply on and after May 5, 1986 to each surface coal mining and reclamation operation which includes an impoundment classified, pursuant to 405 KAR 7:040, Section 5, as a (B) or (C) structure. Permits issued before that date shall be revised as necessary. (8 Ky.R. 1534; eff. 1-6-83; Am. 12 Ky.R. 936; 1319; eff. 2-4-86; 15 Ky.R. 457; 1074; eff. 12-13-88.) 405 KAR 16:090. SEDIMENTATION PONDS. RELATES TO: KRS 151.100, 151.250(3), 350.020, 350.100, 350.420, 350.465, 30 CFR Parts 730-733, 735, 816.46, 917, 30 USC 1253, 1255, 1265 {SMCRA Secs. 503, 505, 515} STATUTORY AUTHORITY: KRS 350.028, 350.151(1), 350.465(2), 30 CFR Parts 730-733, 735, 816.46, 917, 30 USC 1253, 1255, 1265 {SMCRA Secs. 503, 505, 515} NECESSITY, FUNCTION, AND CONFORMITY: KRS 350.028(1), (5), 350.151(1), and 350.465(2) authorize the cabinet to promulgate administrative regulations relating to surface and underground coal mining operations. This administrative regulation establishes the requirements for the location, design, construction, certification, maintenance, removal, and retention of sedimentation ponds for surface mines. SECTION 1. GENERAL REQUIREMENTS. {{ 30 CFR 816.42, 816.46 }} Sedimentation ponds shall be used individually or in series and shall: (1) Comply with Sections 1 through 6 of this administrative regulation and 405 KAR 16:100; (2)(a) In accordance with 405 KAR 16:100, Section 1(2), be designed and certified by a qualified registered professional engineer as meeting the requirements of Sections 1 through 6 of this administrative regulation and 405 KAR 16:100; (b) In accordance with 405 KAR 16:100, Section 1(9), be inspected during construction by or under the direct supervision of the responsible registered professional engineer, and after construction be certified by the responsible registered professional engineer as having been constructed in accordance with the approved design plans; (3) Be constructed and certified under subsection (2) of this section before any disturbance in the watershed that drains into the sedimentation pond; and (4) Be located as near as possible to the disturbed area and out of perennial streams, unless approved by the cabinet, pursuant to the cabinet's authority in KRS 350.050. SECTION 2. SEDIMENT STORAGE VOLUME. Sedimentation ponds shall provide adequate sediment storage volume as approved on a case-by-case basis by the cabinet based upon the anticipated volume of sediment to be collected and a feasible plan for clean-out operations. The plan shall include a time schedule or clean-out elevations, or an appropriate combination, that shall provide periodic sediment removal sufficient to maintain adequate volume for the sediment to be collected during the design precipitation event under Section 3 of this administrative regulation. The proposed clean-out plan shall be included in the design and shall be approved if the cabinet determines that the proposed plan is feasible. SECTION 3. DETENTION TIME. Sedimentation ponds shall be designed, constructed, and maintained to: (1) Provide detention time so that discharges from the sedimentation pond shall meet the requirements of 405 KAR 16:070, Section 1(1)(g); and (2)(a) Contain the runoff from the ten (10) year, twenty-four (24) hour precipitation event by providing a runoff storage volume, between the top elevation of the design sediment storage volume and the principal spillway elevation, equal to or greater than the runoff from that precipitation event. The cabinet may approve a smaller runoff storage volume based on terrain, the amount of disturbance, other site specific conditions, and a demonstration by the permittee that the effluent limitations of 405 KAR 16:070, Section 1(1)(g) will be met; or (b) Treat the runoff from the ten (10) year, twenty-four (24) hour precipitation event by using other treatment facilities in conjunction with adequate runoff storage volume, so that the effluent limitations of 405 KAR 16:070, Section 1(1)(g) will be met. SECTION 4. DEWATERING. The water storage resulting from inflow shall be removed by a nonclogging dewatering device or spillway approved by the cabinet, pursuant to the cabinet's authority in KRS 350.050. The dewatering device or spillway shall not be located at a lower elevation than the top elevation of the design sediment storage volume. SECTION 5. OTHER REQUIREMENTS. (1) Each permittee shall design, construct,