The purpose of this article is to establish rules and regulations
for the surface mining of coal on lands in Henderson County. The rules
and regulations set forth herein are established in order to minimize
or prevent the injurious effects of surface mining on the people and
resources of the County, including, but not limited to, the preservation
of the value of land for agricultural purposes, aesthetic values;
the conservation of soil, water and other natural resources; the preservation
of the property rights of citizens; and the prevention of hazards
dangerous to life and property which constitute an imminent and inordinate
peril to the welfare of the County.
Unless otherwise specifically defined in this article or otherwise
clearly indicated by their context, terms in this article shall be
defined as follows:
Water with a pH of less than 6.0 discharged from active or
abandoned mines and from areas affected by surface mining operations.
Earth materials that contain sulfide mineral or other materials
which, if exposed to air, water, or weathering processes, will cause
acids that may create acid drainage.
That surface configuration achieved by backfilling and grading
of the mined area so that the reclaimed area, including any terracing
or access roads (when not necessary to support its approved post-mining
use), closely resembles the general surface configuration of the land
prior to mining and blends into and complements the drainage pattern
of the surrounding terrain, with all high walls and spoil piles eliminated;
water impoundments may be permitted where the County determines that
they are in compliance with § 27.14.
A zone, stratum, or group of strata that can store and transmit
water in sufficient quantities for a specific use.
The area of land from which overburden is to be or has been
removed and upon which overburden is to be or has been deposited and
shall include all lands affected by the construction of new roads
or the improvement or use of existing roads other than public roads
to gain access and to haul coal.
A method of mining coal at a cliff or high wall by drilling
holes laterally into an exposed coal seam from the high wall and transporting
the coal along an auger bit to the surface.
The ledge, shelf or terrace formed in the contour method
of surface mining.
The Bureau of Surface Mining Reclamation and Enforcement,
Department for Natural Resources and Environmental Protection.
Combustible, carbonaceous rock, classified as anthracite,
bituminous, subbituminous, or lignite by American Society for Testing
Materials designation O-388-66.
Organic material that is capable of burning either by fire
or through a chemical process (oxidation), accompanied by the evolution
of heat and a significant temperature rise.
The Commissioner of the Bureau of Surface Mining Reclamation
and Enforcement of the Department for Natural Resources and Environmental
Protection.
The reduction of pore space among the particles of soil or
rock generally done by running heavy equipment over the earth materials.
The Fiscal Court of Henderson County, Kentucky, or an authorized
representative thereof.
The angular measurement of land slope from the horizontal,
and in each case shall be subject to a tolerance of 5% of error.
The Department for Natural Resources and Environmental Protection.
Those lands that have been affected by surface mining and
reclamation operations.
A channel, embankment or other man-made structure constructed
for the purpose of diverting water from one area to another.
The land surface between a valley floor and the projected
outcrop of the lowest coal bed being mined along each high wall.
An artificial deposit of material that is raised above the
natural surface of the land and used to contain, divert, or store
water, support roads or railways, or other similar purpose.
The detachment and movement of soil and rock fragments by
water, wind, ice, or gravity.
That portion of the bench which is formed by depositing overburden
beyond the cut section.
The finished elevation of any surface disturbance prior to
replacement of topsoil.
Subsurface water that fills available openings in rock and
soil material such that they may be considered water-saturated.
The erosion process whereby water accumulates in narrow channels
over short periods and removes the soil from this narrow area to depths
greater than one foot.
The face of exposed overburden and coal in an open cut of
a surface or for entry to an underground coal mine.
The relationship between the quality and quantity of inflow
to, outflow from, and storage in a hydrologic unit such as a drainage
basin, aquifer, soil zone, lake or reservoir. It encompasses the quantity
and quality relationships between precipitation, runoff, evaporation,
and the change in ground- and surface water storage.
The entire state of water movement in a given area. It is
a function of the climate and includes the phenomena by which water
first occurs as atmospheric water vapor, passes into a liquid or solid
form and falls as precipitation, moves thence along or into the ground
surface, and returns to the atmosphere as vapor by means of evaporation
and transpiration.
The existence of any condition or practice, or any violation
of a permit or other requirement of applicable local, state and federal
laws and regulations in a surface mining operation, which condition,
practice, or violation could reasonably be expected to cause substantial
physical harm to persons outside the permit area before such condition,
practice, or violation can be abated. A reasonable expectation of
death or serious injury before abatement exists if a rational person,
subjected to the same condition or practice giving rise to the peril,
would not expose himself or herself to the danger during the time
necessary for abatement.
A closed basin formed naturally or artificially built, which
is dammed or excavated for the retention of water, sediment or waste.
A watercourse or part of a watercourse that flows continuously
during all (perennial) or for at least one month (intermittent) of
the calendar year as a result of groundwater discharge or surface
runoff. The term does not include an ephemeral stream, which is one
that flows for less than one month of a calendar year and only in
direct response to precipitation in the immediate watershed and whose
channel bottom is always above the local water table.
A liquid that has percolated through soil, rock, or waste
and has extracted dissolved or suspended materials.
The method or manner by which the cut or open pit is made,
the overburden is placed or handled, water is controlled and other
acts are performed by the operator in the process of uncovering and
removing the coal.
Species that have been included on the official state lists
of noxious plants for the Commonwealth of Kentucky.
All of the premises, facilities, roads and equipment used
in the process of producing coal from a designated surface mine area
or removing overburden for the purpose of determining the location,
quality or quantity of a natural coal deposit or the activity to facilitate
or accomplish the extraction or the removal of coal.
Any person engaged in surface mining who removes or intends
to remove more than 250 tons of coal from the earth by surface mining
within 12 successive calendar months or who removes overburden for
the purpose of determining the location, quality or quantity of a
natural coal deposit.
The exposed area sloping away from a bench or terrace being
constructed as a part of a surface mining and reclamation operation.
All of the earth and other materials, excluding topsoil,
which lie above a natural deposit of coal and also means such earth
and other material after removal from their natural state in the process
of surface mining.
The written document issued by the County to the permittee
pursuant to this article.
Any person holding a valid permit to conduct surface mining
and reclamation operations issued by the County pursuant to this article.
Any individual, partnership, corporation, association, society,
joint stock company, firm, company, or other business organization.
The vegetative yield produced by a unit area for a unit of
time.
The ability of the soils and underlying materials to allow
precipitation and runoff to infiltrate and reach the zone of saturation.
The reconditioning of the area affected by surface mining
under a plan approved by the County.
The precipitation event expected to occur, on the average,
once in a specified interval. For example, the ten-year, twenty-four-hour
precipitation event would be that twenty-four-hour precipitation event
expected to be exceeded on the average once in 10 years. Magnitudes
of such events are as defined by the National Weather Service Technical
Paper No. 40, Rainfall Frequency Atlas of the U.S., May 1961, and
subsequent amendments or equivalent regional or rainfall probability
information developed therefrom.
An erosion process in which numerous small channels only
several inches deep are formed.
Access and haul roads constructed, used, reconstructed, improved
or maintained for use in surface mining and reclamation operations,
including use by coal hauling vehicles leading to transfer, processing,
or storage areas. The term includes any such road used and not graded
to approximate original contour within 45 days of construction other
than temporary roads used for topsoil removal and coal haulage roads
within the pit area. Roads maintained with public funds as all federal,
state, County, or local roads are excluded from this definition.
Precipitation that flows overland before a defined stream
channel and becoming stream flow.
The ratio of the available shear strength to developed shear
stress on a potential surface of sliding determined by accepted engineering
practice.
The Secretary of the Department for Natural Resources and
Environmental Protection.
Undissolved organic and inorganic material transported or
deposited by water.
Any natural or artificial structure or depression used to
remove sediment from water and store sediment or other debris.
An erosion process whereby a uniform layer of soil is removed
from the land surface by runoff water.
Average inclination of a surface, measured from the horizontal,
normally expressed as a unit of vertical distance to a given number
of units of horizontal distance (e.g., 1v to 5h = 20% = 11.3°).
Contrasting layers of soil lying one below the other, parallel
or nearly parallel to the land surface. Soil horizons are differentiated
on the basis of field characteristics and laboratory data. The three
major soil horizons are:
A HORIZONThe uppermost layer in the soil profile, often called the "surface soil." It is the part of the soil in which organic matter is most abundant, and where leaching of soluble or suspended particles is the greatest.
B HORIZONThe layer immediately beneath the A horizon and often called the "subsoil." This middle layer commonly contains more clay, iron, or aluminum than the A or C horizon.
C HORIZONThe deepest layer of the soil profile. It consists of loose material or weathered rock that is relatively unaffected by the biologic activity.
Overburden that has been removed during surface mining.
Any method used to control movement of soil, spoil piles,
or areas of disturbed earth and includes increasing bearing capacity,
increasing shear strength, draining, compacting or revegetating.
Irrigation of plants with water delivered to the roots from
underneath.
The breaking of the surface soil in order to facilitate or
accomplish the extraction or removal of minerals, ores, or other solid
matter; any activity or process constituting all or part of a process
for the extraction or removal of minerals, ores, and other solid matter
from its original location; and the preparation, washing, cleaning
or other treatment of minerals, ores, or other solid matter so as
to make them suitable for commercial, industrial, or construction
use; but shall not include the extraction of coal by a landowner for
his own noncommercial use from land owned or leased by him; the extraction
of coal as an incidental part of federal, state or local government
financed highway or other construction under regulations established
by the County; nor shall it include the surface effects or surface
impacts of underground coal mining.
Water, either flowing or standing on the surface of the earth.
Organic or inorganic materials carried or held in suspension
in water that will remain on a 0.45 micron filter.
Earth materials or wastes which, if acted upon by air, water,
weathering, or microbiological processes, are likely to produce chemical
or physical conditions in soils or water that are detrimental to the
flora, fauna or uses of water.
Water that is discharged from active or abandoned mines and
other areas affected by surface mining operations and which contains
a substance which through chemical action or physical effects is likely
to kill, injure or impair flora or fauna commonly present in the area
that might be exposed to it.
A structure consisting of any materials other than waste
placed so as to encroach upon or obstruct to any extent any watercourse
other than those minor watercourses located on highland areas where
overland flow in natural rills and gullies is the predominant form
of runoff. For example, such fills are normally constructed in the
uppermost portion of a V-shaped valley in order to reduce the upstream
drainage area (head-of-hollow fills). Fills located further downstream
(valley fills) must have larger diversion structures to minimize infiltration.
Both fills are characterized by rock underdrains and are constructed
in compacted lifts from the toe to the upper surface in a manner to
promote stability.
Earth materials which are combustible, physically unstable
or acid-forming or toxic-forming, washed or otherwise separated from
product coal and are slurried or otherwise transported from coal processing
facilities or preparation plants after physical or chemical processing,
cleaning, or concentrating of coal.
Upper surface of a zone of saturation where the body of groundwater
is not confined by an overlying impermeable zone.
A.
The regulations in this article shall apply to all operations for
the surface mining of coal conducted on or after the date of adoption
of the zoning regulations of the County of Henderson, Kentucky, on
lands from which coal has not yet been removed by surface mining operations,
and to any other lands used, disturbed, or redisturbed in connection
with or to facilitate the surface mining of coal except:
(1)
The extraction of coal by a landowner for his own noncommercial
use from land owned or leased by him;
(2)
The extraction of coal as an incidental part of federal, state
or local government financed highway or other constructions;
(3)
The extraction of coal in any operation or activity in which
are extracted 250 tons or less of coal within a period of 12 consecutive
calendar months; and
(4)
The extraction of coal incidental to the extraction of other
minerals where coal does not exceed 16 2/3% of the total mineral
tonnage extracted for commercial use or sales.
B.
Compatibility with Public Law 95-87 and KRS Chapter 350. The provisions
of this article are to be construed as compatible with federal regulations
adopted pursuant to Public Law 95-87,[1] the Surface Mining Control and Reclamation Act 10 1977,
and KRS Chapter 350, surface coal mining regulations. Wherein this
article there exist rules and regulations which differ in scope and
text from those federal and state regulations on the same subject,
said provisions shall not be construed as being contradictory; however,
the more stringent of the applicable provisions shall apply.
[1]
Editor's Note: See 30 U.S.C. § 1292.
C.
Conflicting provisions. The provisions of this article are to be
construed as being compatible with and complimentary to each other.
In the event that provisions within this article are found to be contradictory,
the more stringent provisions shall apply.
D.
Severability. In the event that any provision or regulation of this
article is found to be invalid, the remaining provisions of this article
shall not be affected nor diminished thereby.
E.
Obligations of operators.
(1)
No person or operator shall engage in surface mining for coal
without having obtained from the County a valid permit covering the
area of land to be affected.
(2)
A person or operator engaged in the surface mining of coal shall
not throw, pile, dump or permit the throwing, piling, dumping or otherwise
placing of any overburden, stones, rocks, coal, particles of coal,
earth, soil, dirt, debris, trees, wood, logs, or any other materials
or substances of any kind or nature beyond or outside of the area
of land which is under permit by the County, and for which bond has
been posted pursuant to § 27.04, nor place such materials
herein described in such a way that normal erosion or slides brought
about by natural physical changes will permit such materials to go
beyond or outside of the area of land which is under permit and for
which bond has been posted pursuant to § 27.04.
(3)
A person or operator engaged in surface mining for coal shall
not engage in any operations which result in a condition or constitute
a practice that creates an imminent danger to the health or safety
of the public.
(4)
A person or operator engaged in surface mining for coal shall
not engage in any operations which result in a condition or constitute
a practice that causes or can reasonably be expected to cause significant,
imminent environmental harm to land, air, or water resources.
(5)
Upon development of any emergency conditions which threaten
the life, health, or property of the public, the operator shall immediately
notify the persons whose life, health or property are so threatened,
shall take any and all reasonable actions to eliminate the conditions
creating the emergency, and shall immediately provide notice of the
emergency conditions to the County, to local law enforcement officials
and to other appropriate local government officials. Any emergency
action taken by an operator pursuant to this subsection shall not
relieve the operator of other obligations under this chapter or of
obligations under other applicable local, state or federal laws and
regulations.
A.
Permit required.
(1)
No person shall engage in surface mining of coal without having
first obtained a permit from the County of Henderson.
(2)
The permit shall authorize the permittee to engage in surface
mining of coal upon the area described in his application for a period
of two years from the date of issuance.
(3)
The permit shall confer upon the operator a qualified right
to surface mine coal, but shall not relieve the operator of responsibility
to comply with all applicable federal, state, and local laws and regulations.
B.
Preliminary requirements. A person desiring a permit shall submit
to the County a preliminary application of the form and content prescribed
by the County. The preliminary application shall contain pertinent
information including, but not limited to, a U.S. geological survey
7 1/2 minute topographic map marked to show the approximate boundaries
of the area of land to be affected, and the approximate locations
of the coal seam(s) to be mined, access roads, haul roads, soil disposal
areas, and sedimentation ponds. Areas so delineated on the map shall
be physically marked at the site in a manner prescribed by the County.
Personnel of the County shall conduct, within 30 days after filing,
an on-site investigation of the area with the person or his representatives
and representatives of the appropriate local, state or federal agencies,
after which the person may submit a permit application.
C.
Permit application.
(1)
A person desiring a permit shall submit an application of form
and content as prescribed by the County. The application shall be
on forms provided by the County and originals and copies of the applications
shall be prepared, assembled and submitted in the number, form and
manner prescribed by the County with such attachments, plans, maps,
certifications, drawings, calculations or other such documentation
or relevant information as the County may require pursuant to this
section.
(2)
The application shall include the information described in this subsection through Subsection C(13) of this section:
(a)
The location and area of land to be affected by the operation,
with a general description of access to the site from the nearest
public highway.
(b)
The owner or owners of the surface of the area of land to be
affected by the permit and the owner or owners of all surface area
within 500 feet of any part of the affected area.
(c)
The owner or owners of the coal to be mined.
(d)
The source of the applicant's legal right to mine coal on the
land affected by the permit.
(e)
The permanent and temporary post office address of applicant.
(f)
Whether or not the applicant or any person associated with the
applicant holds or has held any other permits issued by the County
or under KRS Chapter 350, and an identification of such permits.
(3)
Maps. The application shall include or be accompanied by such
number of copies as the County may determine of a U.S. Geological
Survey 7 1/2 minute topographic map or other such map acceptable
to the County on which the operator has indicated the location of
the operations, the course which would be taken by drainage from the
operation to the stream or streams to which such drainage would normally
flow, the name of the applicant and date, and the name of the person
who located the operation on the map.
(4)
Enlarged maps. The application shall include or be accompanied by such number of copies as the County may determine of an enlarged U.S. Geological Survey 7 1/2 minute topographic map or other such map acceptable to the County, meeting the requirements of Subsection C(4)(a) through (h). The map shall:
(a)
Be prepared and certified by a professional engineer, registered
under the provisions of KRS Chapter 322. The certification shall read
as follows: "I, the undersigned, hereby certify that this map is correct,
and shows to the best of my knowledge and belief all the information
required by the surface mining laws of this County and State." The
certification shall be signed and notarized. The County may reject
any map as incomplete if its accuracy is not so attested.
(b)
Identify the area of land to be affected to correspond with
the application.
(c)
Show adjacent underground mining and the boundaries of surface
properties and names of owners on the affected area and within 500
feet of any part of the affected area.
(d)
Be of a scale between 400 feet to the inch and 600 feet to the
inch.
(e)
Show the names and locations of all streams, lakes, creeks,
or other bodies of public water, roads, buildings, cemeteries, oil
and gas well, public parks, public property, and utility lines on
the area of land affected and within 500 feet of such area.
(f)
Show by appropriate markings the boundaries of the area of land
to be affected, the crop line of the seam or deposit of coal to be
mined, and the total number of acres involved in the area of land
to be affected.
(g)
Show the date on which the map was prepared, the North point
and the quadrangle name.
(h)
Show the drainage plan on and away from the area of land to
be affected. Such plan shall indicate the directional flow of water,
constructed drain ways, natural waterways used for drainage, and the
streams or tributaries receiving the discharge.
(5)
Transportation plan. The application shall include or be accompanied
by a transportation plan and map (at least the scale and detail of
the separate County maps published by the Kentucky Department of Transportation)
of Henderson County which shall set forth the portions of the public
road system within the County, if any, over which the applicant proposes
to transport coal extracted in the surface mining operation.
(6)
Prime farmland. The application will include or be accompanied
by a plan for the mining and restoration of prime farmland consistent
with the requirements of § 27.15 of this article.
(7)
Post-mining land use plan. The application shall include or
be accompanied by a plan for post-mining land use which shall demonstrate
to the satisfaction of the County that the proposed operations will
comply with the requirements of § 27.06 regarding post-mining
land use.
(8)
Topsoil handling plan. The application shall include or be accompanied
by a plan for the handling of topsoil which shall demonstrate to the
satisfaction of the County that the proposed operation will comply
with the requirements of § 27.08 with regard to topsoil
handling.
(9)
Backfilling and grading plan. The application shall include
or be accompanied by a plan for backfilling and grading which shall
demonstrate to the satisfaction of the County that the proposed operation
will comply with the requirements of § 27.11 with regard
to backfilling and grading.
(10)
Spoil disposal plan. The application shall include or be accompanied
by a plan for the disposal of spoil in excess of that required to
meet the backfilling and grading requirements of § 27.11
which shall demonstrate to the satisfaction of the County that the
proposed operation will comply with the requirements of 405 KAR 1:140
with regard to disposal of spoil.
(11)
Surface water control and monitoring plan. The application shall
contain or be accompanied by a plan for the control of surface water,
which shall demonstrate to the satisfaction of the County that the
proposed operation will comply with the requirements of:
(12)
Revegetation plan. The application shall include or be accompanied
by a revegetation plan which shall demonstrate to the satisfaction
of the County that the proposed operation will comply with the requirements
of § 27.09 with regard to revegetation.
(13)
In the required operational plans specified in Subsection C(5) through (12) of this section and in the other requirements of this section, the County may require all such supporting documentations as the County may deem necessary to ensure that the provisions of this section will be met. Such documentation may include but not be limited to detailed engineering drawings, engineering calculations, and documentation prepared by qualified persons in other appropriate technical fields or sciences.
(14)
Fees. The applications shall be accompanied by a cashier's check
or money order payable to the County of Henderson in the amount of
$250 plus $50 for each acre or fraction thereof of the area of land
to be affected by the operation. No permit application shall be processed
unless such fees have been paid.
(15)
Bonds. The applicant shall file with the County a performance
bond payable to the County of Henderson, with surety satisfactory
to the County in an amount to be determined by the County conditional
upon the faithful performance of the requirements set forth herein.
The performance bond shall be established in an amount equal to the
estimated total cost of reclamation of the area of land to be affected
as determined by the County. The County shall accept in lieu of the
surety provided here, the deposit by the applicant of United States
government securities, cash, or its equivalent in a sum equal to the
principal amount of the required bond.
D.
Procedures for processing of application.
(1)
Complete, but separate and distinct, copies of the application,
in such number as the County may determine, shall be submitted to
the County at the location and address prescribed by the County. The
County will provide written acknowledgment of receipt of the application.
(2)
Within 30 working days the County shall either:
(a)
Issue a permit to the applicant, or deny the application; or
(b)
Notify the applicant in writing, by certified mail, return receipt
requested, or registered mail, of any deficiencies in the application,
and allow it to be temporarily withdrawn for the purpose of correcting
the deficiencies.
(c)
Temporary withdrawal periods shall not be considered in computation
of the 30 working days.
(3)
If the County denies an application, it shall set forth in writing
the reasons for the denial.
E.
Deletion of areas and denial of permit.
(1)
The County shall delete from a permit areas proposed to be affected
by surface mining operations, or shall deny a permit when necessary
to ensure compliance with the provisions of this regulation.
(2)
No application for a permit and no operation shall be approved
or allowed by the County if there is found on the basis of the information
set forth in the application, or based on other relevant information
available to the County, that the requirements of this article will
not be observed, or that there is not probable cause to believe that
the proposed method of operation, backfilling, grading or reclamation
of the affected area can be carried out consistent with the purpose
of this article.
(3)
If the County finds, based upon experience with similar operations
upon lands with similar overburden, that substantial deposition of
sediment in stream beds, landslides or acid water pollution cannot
feasibly be prevented, the County may delete such part of the land
described in the application upon which such overburden exists.
(4)
Subject to valid existing rights, no surface mining operation
shall be permitted to be within 300 feet from any occupied dwelling
unless waived by the owner thereof, nor within 300 feet of any public
building, school or church, community or institutional building or
public park, or within 100 feet of a cemetery.
(5)
The County shall not issue a permit if it finds that the operation
will constitute a hazard to, or do physical damage to, a dwelling
house, public building, school, church, cemetery, commercial or institutional
building, public road, stream, lake or other public property. The
County shall delete such areas from the permit application or operation.
(6)
The County shall not give approval to surface mine any area
which is within 100 feet of the outside right-of-way line of any public
road, except where mine access roads or haulage roads join such right-of-way
line; provided, however, that the County may permit such public roads
to be relocated, or may permit the area affected to lie within 100
feet of such public road, if after public notice and opportunity for
public hearing in the locality a written finding is made by the County
that the interest of the public and the landowner affected thereby
will be protected.
(7)
The County shall not issue a permit to surface mine an area
unless it finds that adequate measures have been or will be undertaken
to eliminate damage to members of the public, their real and personal
property, public roads, streams, and all other public property, from
soil erosion, rolling stones and overburden, water pollution, blasting,
and hazards dangerous to life and property.
(8)
No land within 100 feet of an intermittent or perennial stream
shall be disturbed by surface mining and reclamation operations unless
the County specifically authorizes operations through such a stream.
The area not to be disturbed shall be designated a buffer zone and
be marked as specified in 405 KAR 1:080 regarding signs and markers.
(9)
Denial of permit for past violations:
(a)
An operator or person whose mining permit or operation has been
revoked, suspended, or terminated shall not be eligible to have another
permit or begin another operation, or be eligible to have suspended
permits or operations reinstated, until he shall have complied with
all the requirements of this article in respect to all permits issued
him.
(b)
No operator or person who has forfeited any bond shall be eligible
to receive another permit or begin another operation unless the land
for which the bond was forfeited has been reclaimed without cost to
the County or the operator or person has paid such sum as the County
finds is adequate to reclaim such lands.
(c)
The County shall not issue any additional permits to, or allow
future operations by, any operator or person who has been in noncompliance
with or in violation of this article, or who has had permits revoked
or operations terminated by state authorities. Issuance of surface
mining permits to operators who have had permits revoked shall be
at the discretion of the Henderson County Fiscal Court.
F.
Increase or decrease of area under permit. Upon application by the
operator, the County may amend a valid existing permit so as to increase
or decrease the permitted area of land to be affected by operations
under that permit. Such applications for amendment may be filed at
any time during the term of the permit.
(1)
Increase of area under permit:
(a)
Application. The operator shall file an application in the same
form and with the same content as required for an original application.
(b)
Fees. The operator shall pay, in the manner prescribed herein
for an original application, a basic fee of $250 plus a fee of $50
for each acre or fraction of an acre of increased area requested.
(c)
The operator shall file with the County a supplemental bond
in the amount to be determined as provided in this regulation for
each acre or fraction of an acre of the increased area approved.
(d)
The date of expiration of the amended permit shall be the same
as the date of expiration of the permit prior to amendment.
(2)
Decrease of area under permit.
(a)
Application. The operator shall file an application upon forms
provided by the County with such documentation as the County may require,
showing the undisturbed area which is requested to be subtracted from
the area of land covered by the existing valid permit.
(b)
Release of bond. If the County approves the decrease in permitted
area, it shall release the bond for each acre of the decrease.
G.
Renewal of valid existing permit.
(1)
Any valid permit issued pursuant to this regulation shall carry
with it the right of successive renewal upon expiration, with respect
to areas within the boundaries of the existing permit. Any permit
renewal shall be for a term not to exceed the period of the original
permit.
(2)
If an application for renewal of a valid existing permit includes
a proposal to extend the mining operation beyond the boundaries authorized
in the existing permit, the portion of the application which addresses
any new land areas shall be subject to the full standards applicable
to new applications, and a new and original application shall be required
for such areas.
(3)
Application for permit renewal shall be made not later than 30 working days prior to the expiration of the existing valid permit. The holders of the permit may apply for renewal and such renewal shall be issued, provided that the requirements of Subsection G(3)(a) through (g) are met.
(a)
The application for renewal shall be submitted in the form,
manner and content as prescribed by the County and shall be subject
to current surface mining regulations in effect at the time of renewal.
(b)
The application for renewal shall be accompanied by a cashier's
check or money order payable to the County of Henderson in the amount
of $250 plus $50 for each acre or fraction thereof of the area of
land to be affected by the operation. No application for renewal of
a permit shall be processed unless such fees have been paid.
(c)
The operator shall submit, in the manner prescribed by the County,
all revised or updated information required by the County. Such information
shall include, but not be limited to, an updated operational plan
current to the date of request for renewal, showing the status and
extent of all strip mining and reclamation operations on the existing
permit.
(d)
The terms and conditions of the existing permit are being satisfactorily
met.
(e)
The present surface mining and reclamation operation is in compliance
with this regulation.
(f)
The renewal requested does not substantially jeopardize the
operator's continuing responsibility on existing permit areas.
(g)
The operator shall provide evidence that the performance bond
is in effect for the renewal requested, as well as any additional
bond which the County might require.
H.
Succession of one operator by another.
(1)
When one operator succeeds another at any uncompleted operation, either by sale, assignment, lease or otherwise, the County may release the first operator from all liability under this article for that particular operation, provided the requirements of Subsection H(1)(a) and (b) are met.
(a)
The successor operator shall have been issued a permit and shall
have otherwise complied with the requirements of this chapter.
(b)
The successor operator shall assume, as part of this obligation
under this article, all liability for the reclamation of land areas
affected by the former operator.
(2)
A successor in interest to a permittee who applies for a new
permit within 30 days of succeeding to such interest, and who is able
to obtain the bond coverage of the original permittee, may continue
surface mining and reclamation operations according to the approved
mining and reclamation plan of the original permittee until such successor's
application is granted or denied.
I.
Release of bond.
(1)
When the backfilling and grading have been completed for an
area in a manner consistent with the requirements of this article,
and the soil pH level as required by the County has been established,
the permittee may submit to the County a report and request for partial
release of bond for the area. The report shall state the number of
acres and type of area affected for which the partial bond release
is requested and shall contain appropriate maps, cross sections, and
other engineering and technical documentation as the County may require
to demonstrate to the satisfaction of the County that the requirements
of this article have been met with regard to backfilling and grading
and that the required soil pH level has been established.
(2)
Upon verification of the report and request, the County shall
partially release to the permittee the bond which was posted for that
area in an amount not to exceed 50% of the total bond posted for that
area.
(3)
After the preparation, planting and mulching of a given area
and after not less than two growing seasons, the permittee may submit
a report and request for release of the remaining bond. The report
shall demonstrate to the satisfaction of the County that the requirements
of this article have been met with regard to revegetation.
(4)
After verification of the request and report of vegetation,
the County shall release to the permittee the remaining bond.
(5)
Transfer of liability. A person or organization, having qualifications
acceptable to the County, may post bond or a cash deposit in a sum
determined by the County and assume the liability for carrying out
the reclamation plan approved by the County in areas where the mining
operation and any necessary backfilling and grading have been completed.
The County shall then release the bond posted by the permittee for
such area.
A.
Inspection procedures. The County shall make such inspections or
investigations as it deems necessary to ensure compliance with any
provisions of this article.
B.
Enforcement procedures.
(1)
Determination of violations. The County shall determine whether
violations of the provisions of this article have occurred.
(2)
Notice of violations. If the County determines that such violations
have occurred, the County shall, by certified mail (return receipt
requested), provide written notice to the operator that such violation
has occurred and shall therein stipulate a reasonable time period
for the feasible correction of such violations.
(3)
Notice of noncompliance; order of suspension.
(a)
If any of the requirements of this article have not been complied
with within the time limits set by the County, the County shall cause
a notice of noncompliance to be served upon the operator or, where
found necessary, the County shall, after a hearing, order the suspension
of a permit or operation.
(b)
Such notice or order shall be handed to the person in charge
of the operation. Such notice or order shall also be handed to the
operator in person, or shall be served upon the operator by certified
mail (return receipt requested), or by registered mail, addressed
to the permanent address shown on the permit application.
(c)
The notice of noncompliance or order of suspension shall specify
in what respects the operator has failed to comply with the regulations.
(4)
Revocation of permit; termination of operation; forfeiture of
bond. If the operator has not reached an agreement with the County
or has not complied with the requirements set forth in the notice
of noncompliance or order of suspension within the time limits set
therein, the permit may be revoked or the operation terminated, after
a hearing, by order of the County, and the performance bond shall
then be forfeited to the County.
C.
Penalties. Any person or operator who violates any of the provisions
of this article or who fails to perform the duties imposed by these
provisions, or fails or refuses to obtain a permit as provided herein,
or who violates any determination or order promulgated pursuant to
the provisions of this article, shall be liable to a civil penalty
of not less than $100 nor more than five $5,000 for said violation,
and an additional civil penalty of not less than $100 nor more than
$1,000 for each day during which such violation continues, and, in
addition, may be enjoined from continuing such violations as hereinafter
provided in this section. Such penalties shall be recoverable in an
action brought in the name of the County of Henderson by the Office
of the County Attorney in the Henderson Circuit Court, and all sums
recovered shall be placed in the County treasury. It shall be the
duty of the County Attorney to bring an action for the recovery of
the penalties herein provided for and to bring against any operator
or other person violating or threatening to violate any of the provisions
of this article or violating or threatening to violate any order of
determination promulgated pursuant to the provisions of this article.
Any person who shall willfully violate any of the provisions of this
article or any determination or order promulgated pursuant to the
sections of this article which have become final shall be guilty of
a misdemeanor and, upon conviction thereof, shall be punished by a
fine of not less than $500 and not more than $5,000. Each day on which
such violation occurs shall constitute a separate offense.
A.
General. All disturbed areas shall be restored in a timely manner
to conditions that are capable of supporting the uses which they were
capable of supporting before any mining, or to higher or better uses
achievable under criteria and procedures of this regulation.
B.
Determining pre-mining land use.
(1)
The pre-mining land uses to which the post-mining land use is
compared shall be those uses which the land previously supported if
the land had not been previously mined and had been properly managed.
(2)
The post-mining land use for land that has been previously mined
and not reclaimed shall be judged on the basis of the highest and
best economic or public use that can be achieved and is compatible
with surrounding areas.
(3)
The post-mining land use for land that has received improper
management shall be judged on the basis of the pre-mining use of surrounding
lands that have received proper management.
C.
Land use is categorized as follows:
(1)
Heavy industry: manufacturing facilities, power plants, airports
or similar facilities.
(2)
Light industry and commercial services: office buildings, stores,
parking facilities, apartment houses, motels, hotels, or similar facilities.
(3)
Public services: schools, hospitals, churches, libraries, water-treatment
facilities, solid-waste disposal facilities, public parks and recreation
facilities, major transmission lines, major pipelines, highways, underground
and surface utilities, and other servicing structures and appurtenances.
(4)
Residential: single- and multiple-family housing (other than
apartment houses) with necessary support facilities. Support facilities
may include commercial services incorporated in and comprising less
than 5% of the total land area of housing capacity, associated open
space, and minor vehicle parking and recreation facilities supporting
the housing.
(5)
Agricultural or silvicultural:
(a)
Cropland: land used primarily for the production of cultivated
and close-growing crops for harvest alone or in association with sod
crops. Land used for facilities in support of farming operations are
included.
(b)
Rangeland: includes rangelands and forest lands which support
a cover of herbaceous or scrubby vegetation suitable for grazing or
browsing use.
(c)
Hayland or pasture: land used primarily for the long-term production
of adapted, domesticated forage plants to be grazed by livestock or
cut and cured for livestock feed.
(d)
Forest land: land with at least a 25% tree canopy or land at
least 10% stocked by forest trees of any size, including land formerly
having had such tree cover and that will be naturally or artificially
forested.
(6)
Impoundments of water: land used for storing water for beneficial
uses such as stock ponds, irrigation, fire protection, recreation
or water supply.
(7)
Fish and wildlife habitat and recreation lands: wetland, fish
and wildlife habitat, and areas managed primarily for fish and wildlife
or recreation.
(8)
Combined uses: any appropriate combination of land uses where
one land use is designated as the primary land use and one or more
other land uses are designated as secondary land uses.
D.
Criteria for approving alternative post-mining land uses. Change
from one to another land use category or subcategory in pre-mining
to post-mining constitutes an alternate land use and the applicant
shall meet the requirements of this regulation and all other applicable
provisions of this article. An alternative post-mining land use shall
be approved by the Henderson City-County Planning Commission after
consultation with the landowner if the criteria of this regulation
are met.
(1)
The proposed land use is compatible with adjacent land use and
with the Comprehensive Land Use Plan of Henderson County. An alternative
post-mining land use plan shall be approved by the Henderson City-County
Planning Commission.
(2)
Specific plans have been prepared which show the feasibility
of the proposed land use as related to needs, projected land use trends,
and markets and that include a schedule showing how the proposed use
will be developed and achieved within a reasonable time after mining
and be sustained. The County may require appropriate demonstrations
to show that the planned procedures are feasible, reasonable, and
integrated with mining and reclamation, and that the plans will result
in successful reclamation.
(3)
Provision of any necessary public facilities is assured as evidenced
by letters of commitment from parties other than the applicant, as
appropriate, to provide them in a manner compatible with the applicant's
plans.
(4)
Specific and feasible plans for financing attainment and maintenance
of the post-mining land use, including letters of commitment from
parties other than the applicant, as appropriate, if the post-mining
use is to be developed by such parties.
(5)
The plans are designed under the general supervision of a registered
professional engineer or other appropriate professional, who will
ensure that the plans conform to applicable accepted standards for
adequate land stability, drainage, and vegetation cover, and aesthetic
design appropriate for the post-mining use of the site.
(6)
The proposed use or uses will neither present actual probable
hazard to public health or safety nor will they pose any actual or
probable threat to water flow diminution or pollution.
(7)
The use or uses will not involve unreasonable delays in reclamation.
(8)
Necessary approval of measures to prevent or mitigate adverse
effects on fish and wildlife has been obtained from the appropriate
state and federal fish and wildlife management agencies.
(9)
Proposals to change pre-mining land uses of range, fish, wildlife
habitat, forest land, hayland, or pasture to a post-mining cropland
use, where the cropland would require continuous maintenance such
as seeding, plowing, cultivation, fertilization, or other similar
practices to be practicable or to comply with applicable federal,
state, and local laws, shall be reviewed by the County to assure that:
(a)
There is a firm, written commitment of the applicant or by the
landowner or land manager to provide sufficient crop management after
release of applicable performance bond to assure that the proposed
post-mining cropland use remains practical and reasonable;
(b)
There is sufficient water available and committed to maintain
crop production; and
(c)
Topsoil quality and depth are shown to be sufficient to support
the proposed use.
Signs and markers shall be posted, where applicable, as required
by state and federal strip mine regulations.
A.
To prevent topsoil from being contaminated by spoil or waste materials,
the topsoil shall be removed from the area to be disturbed as a separate
operation. The topsoil shall be immediately redistributed on the areas
graded to the approved post-mining configuration unless storage of
the topsoil by stockpiling or other means is approved by the County.
If sufficient grading areas are not immediately available for topsoil
redistribution and the stockpiling of topsoil is approved by the County,
the topsoil shall be segregated, stockpiled, and protected from wind
and water erosion and from contaminants which would lessen its capability
to support vegetation.
B.
Topsoil removal. All topsoil to be salvaged shall be removed before
any drilling for blasting, mining, or other surface disturbance.
(1)
All topsoil shall be removed unless the use of alternative materials is approved by the County in accordance with Subsection F of this section. The size of the area from which topsoil may be removed at any one time shall be limited if the removal of the topsoil would result in erosion that may cause air or water pollution. The County may specify methods of treatment to control erosion of exposed overburdens.
(2)
All of the A horizon as identified by soil surveys shall be
removed as provided in this section and then replaced on disturbed
areas as the surface soil layers. Where the A horizon is less than
six inches, a six-inch layer that includes the A horizon and the unconsolidated
material immediately below the A horizon (or all unconsolidated material
if the total available is less than six inches) shall be removed and
the mixture segregated and replaced as the surface soil layer.
(3)
The County may require that the B horizon or portions of the
C horizon or other underlying layers demonstrated to have comparable
quality for root development be segregated and replaced as subsoil
where necessary to obtain productivity consistent with the approved
post-mining land use.
C.
Topsoil redistribution.
D.
Topsoil storage. Stockpiled topsoil shall be placed on stable areas
within the permit area. The locations should be such that the stockpiled
topsoil will not be disturbed or be exposed to excessive water, wind
erosion, or contaminants which would lessen its capability to support
vegetation before it can be redistributed on terrain graded to final
contour. Stockpiled topsoil shall be protected either by a vegetative
cover or by other methods demonstrated to provide equal protection,
including but not limited to chemical binders and mulching. Unless
approved by the County, stockpiled topsoil shall not be moved until
it is moved for redistribution on a disturbed area.
E.
Nutrients and soil amendments, in appropriate amounts and analyses
as determined by soil tests, shall be applied to the surface soil
layer so that it will support the post-mining land use requirements
and revegetation requirements of this article.
F.
Alternative materials. When the existing topsoil is of insufficient
quantity or poor quality for sustaining vegetation, the County may
approve the use of selected overburden materials, alternative soil
materials or soil amendments as alternatives or supplements to topsoil,
where the resulting soil medium is equally or more suitable for vegetation,
provided the requirements of this subsection are met:
(1)
The applicant shall demonstrate by the results of chemical and
physical analyses that the selected alternative material or alternative
topsoil for restoring land capability and productivity. These analyses
shall include determination of pH, percent organic material, nitrogen,
phosphorus, potassium, texture class, water holding capacity, and
such other analyses as the County may require. The County may also
require the use of field-site trials or greenhouse tests to demonstrate
the feasibility of using such alternative materials.
(2)
Chemical and physical analyses and results of field-site trials
and greenhouse tests shall be accompanied by a certification from
a qualified soil scientist or agronomist.
(3)
The alternative material shall be removed, segregated, and replaced
in conformance with this subsection as necessary.
A.
General.
(1)
The permittee shall establish on all land that has been disturbed
a diverse, effective, and permanent vegetative cover of species native
to the area of disturbed land or species that will support the approved
post-mining land uses. For areas designated by the County as prime
farmland, the reclamation procedures of § 27.15 shall apply.
(2)
Revegetation shall be carried out in a manner that encourages
a prompt vegetative cover and recovery of productivity levels compatible
with approved land uses. The vegetation cover shall be capable of
stabilizing the soil surface with respect to erosion. All disturbed
lands, except water areas and surface areas of roads that are approved
as a part of the post-mining land use, shall be seeded or planted
to achieve a vegetative cover of the same seasonal variety native
to the area of disturbed land. If both the pre- and post-mining land
use is intensive agricultural, planting of the crops normally grown
will meet the requirement. Vegetative cover will be considered of
the same seasonal variety when it consists of mixture of species of
equal or superior utility for the intended land use when compared
with the utility of naturally occurring vegetation during each season
of the year.
B.
Use of introduced species. Introduced species may be substituted
for native species only if approved by the Kentucky Department for
Natural Resources and Environmental Protection.
C.
Timing of revegetation.
(1)
Seeding and planting of disturbed areas shall be conducted during
the first normal period for favorable planting conditions after final
preparation. The normal period for favorable planting shall be that
planting time generally accepted locally for the type of plant materials
selected to meet specific site conditions and climate.
(2)
Any disturbed areas, except water areas and surface areas of
roads that are approved as part of the post-mining land use, which
have been graded shall be seasonably seeded with a temporary cover
of small grains, grasses, or legumes to control erosion until an adequate
permanent cover is established.
(3)
When rills or gullies, that would preclude the successful establishment
of vegetation or the achievement of the post-mining land use, form
in regraded areas as specified in § 26.11, additional regrading
or other stabilization practices will be required before seeding and
planting.
D.
Mulching.
(1)
Mulch shall be used on all regraded and topsoiled areas to control
erosion, to promote germination of seeds, and to increase the moisture
retention of the soil. "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, and do not interfere with the post-mining
use of the land.
(2)
Mulch shall be anchored to the soil surface where appropriate,
to ensure effective protection of the soil and vegetation.
(3)
Application rates of mulch shall be consistent with those rates
submitted on the revegetation plan, except as otherwise approved by
the County.
(4)
Annual grains such as oats, rye and wheat may be used instead
of mulch when it is shown to the satisfaction of the County that the
substituted grains will provide adequate stability and that they will
later be replaced by species approved for the post-mining use.
E.
Methods of revegetation.
(1)
The permittee shall use technical publications or the results
of laboratory and field tests approved by the Kentucky Department
for Natural Resources and Environmental Protection to determine the
varieties, species, seeding rates and soil amendment practices essential
for establishment and self-regeneration of vegetation. The Department
for Natural Resources and Environmental Protection shall approve species
selection and planting plans.
(2)
Where hayland or pasture is to be the post-mining land use,
the species of grasses, legumes, browse, or trees for seeding or planting
and their pattern of distribution shall be selected by the permittee
to provide a diverse, effective, and permanent vegetation cover with
the seasonal variety, succession, distribution and regenerative capabilities
native to the area. Livestock grazing will not be allowed on reclaimed
land until the seedlings are established and can sustain managed grazing.
The County, in consultation with the permittee and the landowner,
shall determine when the revegetated area is ready for livestock grazing.
(3)
Where forest is to be the post-mining land use, the permittee
shall plant trees adapted to local site conditions and climate. Trees
shall be planted in combination with an herbaceous cover of grains,
grasses, legumes, or woody plants to provide a diverse, effective
and permanent vegetative cover with the seasonal variety, succession,
and regeneration capabilities native to the area.
(4)
Where wildlife habitat is to be included in the post-mining
land use, the permittee shall consult with appropriate state and federal
wildlife and land management agencies and shall select those species
that will fulfill the needs of wildlife, including food, water, cover,
and space. Plant groupings and water resources shall be spaced and
distributed to fulfill the requirements of wildlife.
F.
Standards for measuring success of revegetation. Standards for measuring
the success of revegetation measures shall be in accordance with 405
KAR 1:110, Section 6.
The requirements for the design, construction, maintenance and
reclamation of access roads, haul roads, and other transport facilities
shall be in accordance with 405 KAR 1:120.
A.
In order to achieve the approximate original contour, the permittee
shall, except as provided in this regulation, transport, backfill,
compact (where advisable to ensure stability or to prevent leaching
of toxic materials) and grade all spoil material to eliminate all
high walls, spoil piles, and depressions. The post-mining graded slopes
must approximate the pre-mining natural slopes in the area as defined
in this regulation.
B.
Slope management.
(1)
To determine the natural slopes of the area before mining, sufficient
slopes to adequately represent the land surface configuration must
be accurately measured and recorded. Each measurement shall consist
of an angle of inclination along the prevailing slope extending 100
linear feet above and below or beyond the coal outcrop or the area
to be disturbed; or where this is impractical, at locations specified
by the County. Where area has been previously mined, the measurements
shall extend at least 100 feet beyond the limits of mining disturbances
as determined by the County to be representative of the pre-mining
configuration of the land. Slope measurements shall take into account
natural variations in slope so as to provide accurate representation
of the range of the natural slopes and shall reflect geomorphic differences
of the area to be disturbed. Slope measurements may be made from topographic
maps showing contour lines having sufficient detail and accuracy consistent
with the submitted mining and reclamation plan.
(2)
After the disturbed area has been graded, the final graded slopes
shall be measured at the beginning and end of lines established on
the prevailing slope at locations representative of pre-mining slope
conditions and approved by the County. These measurements must not
be made so as to allow unacceptably steep slopes to be constructed.
C.
Final graded slopes.
(1)
The final graded slopes shall not exceed either the approximate pre-mining slopes as determined according to Subsection B(1) or any lesser slope specified by the County based on consideration of soil, climate or other characteristics of the surrounding area. Post-mining final graded slopes need not be uniform.
(2)
On approval by the County and in order to conserve soil moisture,
ensure stability, and control erosion of final graded slopes, cut
and fill terraces may be allowed if the terraces are compatible with
the approved post-mining land use and are appropriate substitutes
for construction of lower grades on the reclaimed lands. The terraces
shall meet the following requirements:
(a)
The width of the individual terrace bench shall not exceed 20
feet unless specifically approved by the County as necessary for stability,
erosion control or roads included in the approved post-mining land
use plan.
(b)
The vertical distance between terraces shall be as specified
by the County to prevent excessive erosion and to provide long-term
stability.
(c)
The slope of the terrace outslope shall not exceed 1v:2h (50%).
Outslopes which exceed 1v:2h (50%) may be approved if they have a
minimum static safety factor of 1.5 or more and provide adequate control
over erosion and closely resemble the surface configuration of the
land prior to mining. In no case may high walls be left as part of
terraces.
(d)
Culverts and underground rock drains shall be used on terraces
only when approved by the County.
D.
Small depressions. If approved by the County, small depressions may
be constructed to minimize erosion, conserve soil moisture, or promote
revegetation. These depressions shall be compatible with the approved
post-mining land use and shall not be inappropriate substitutes for
construction of lower grades on the reclaimed lands. Depressions approved
under this section shall have a holding capacity of less than one
cubic yard of water or, if it is necessary that they be larger, shall
not constrict normal access throughout the area or constitute a hazard.
E.
Permanent impoundments. If approved by the County, permanent impoundments
may be retained on mined and reclaimed areas, provided all high walls
are eliminated by grading to appropriate contour and the provisions
of this regulation for post-mining land use, 405 KAR 1:160, for protection
of the hydrologic system and § 27.14 with regard to permanent
impoundments are met.
F.
Regrading or stabilizing rills and gullies. When rills or gullies
deeper than nine inches form in areas that have been regraded and
the topsoil replaced but vegetation has not yet been established,
the permittee shall fill, grade, or otherwise stabilize the rills
and gullies and reseed or replant the areas in accordance with this
regulation with regard to revegetation. The County shall specify that
rills and gullies of lesser size be stabilized if the rills or gullies
will be disruptive to the approved post-mining land use or may result
in additional erosion and sedimentation.
G.
Thin and thick overburden areas.
(2)
Definitions.
(a)
"Initial thickness" is the sum of the overburden thickness and
coal thickness.
(b)
"Final thickness" is the product of the overburden thickness
times the bulking factor to be determined for each mine area.
(c)
"Thin overburden" exists when the final thickness is less than
0.8 of the initial thickness.
(d)
"Thick overburden" exists when the final thickness is greater
than 1.2 of the initial thickness.
(3)
Thin overburden areas. In surface mining operations carried out continuously in the same limited pit area for more than one year from the day coal removal operations begin and where the volume of all available spoil and suitable waste materials, as defined in Subsection H, is demonstrated to be insufficient to achieve approximate original contour, operations shall be conducted to meet, at a minimum, the standards of this subsection.
(a)
Transport, backfill, and grade, using all available spoil and suitable waste materials, as defined in Subsection H of this regulation, from the entire mine area to attain the lowest practicable stable grade.
(b)
Eliminate high walls by grading or backfilling to stable slopes
not exceeding 1v:2h (50%) or such lesser slopes as specified by the
County to reduce erosion, maintain the hydrologic balance, or allow
the approved post-mining land use.
(c)
Transport, backfill, grade and revegetate to achieve an ecologically
sound land use compatible with the prevailing land use in unmined
areas surrounding the permit area.
(d)
Transport, backfill, and grade to ensure the impoundments are
constructed only where it has been demonstrated to the satisfaction
of the County that all requirements of 405 KAR 1:160 have been met
and that the impoundments have been approved by the County as meeting
the requirements of this article and all other applicable federal,
state, and local regulations.
(4)
Thick overburden areas. In surface mining operations where the
volume of spoil is demonstrated to be more than sufficient to achieve
the approximate original contour, operations shall be conducted to
meet, at a minimum, the standards of this subsection.
(a)
Transport, backfill, and grade all spoil and unsuitable wastes
not required to achieve approximate original contour in the surface
mining area to the lowest practicable grade.
(b)
Deposit, backfill and grade excess spoil and suitable wastes
only within the permit area and dispose of such materials in conformance
with this article.
(c)
Transport, backfill and grade excess spoil and suitable wastes
to maintain the hydrologic balance and to provide long-term stability.
(d)
Transport, backfill, grade and revegetate suitable wastes and
excess spoil to achieve an ecologically sound land use compatible
with the prevailing land use in unmined areas surrounding the permit
area.
H.
Use of waste materials as fill. Waste material from a coal preparation
or conversion facility or other activities conducted outside the permit
area may be used for fill material if approved by the Kentucky Department
for Natural Resources and Environmental Protection.
I.
Covering and stabilization. All exposed coal seams remaining after
mining and any acid-forming, toxic-forming, combustible materials,
or any other hazardous waste materials that are exposed, used, or
produced during mining shall be covered in accordance with applicable
state and federal regulations.
J.
Grading along the contour. All final grading, preparation of overburden
before replacement of topsoil, and placement of topsoil shall be done
along the contour unless such grading would be hazardous to equipment
operators. In all cases, grading, preparation, or placement shall
be conducted in a manner which minimizes erosion and provides a surface
for replacement of topsoil which will minimize slippage.
A.
Diversions of overland flows. In order to minimize erosion and to
prevent or remove water from contacting toxic-producing deposits,
overland flow from undisturbed areas may, if required or approved
by the County, be diverted away from disturbed areas by means of temporary
or permanent diversion structures. The following requirements shall
be met:
(1)
Diversions shall be designed, constructed, maintained in a manner
to prevent additional contributions of suspended solids to stream
flow or to runoff outside the permit area to the extent possible using
the best technology currently available. In no event shall contributions
be in excess of requirements set by applicable local, state or federal
law. Appropriate sediment control measures for these diversions shall
include, but not be limited to, maintenance of appropriate gradients,
channel lining, revegetation, roughness structures and detention basins.
(2)
Temporary diversion structure are those used during mining and
reclamation, and when no longer needed these structures shall be removed
and the areas reclaimed. Temporary diversion structures shall be constructed
to safely pass the peak runoff from a precipitation event with a one-year
recurrence interval or a larger event as specified by the County.
The design criteria must assure adequate protection of the environment
and public during existence of the temporary diversion structure.
(3)
Permanent diversion structures are those remaining after mining
and reclamation and approved for retention by the County and other
appropriate state and federal agencies. To protect fills and property
and to avoid danger to public health and safety, permanent diversion
structures shall be constructed to safely pass the peak runoff from
a precipitation event with a one-hundred-year occurrence interval,
or a larger event as specified by the County. Permanent diversion
structures shall be constructed with apparently sloping banks that
are stabilized by vegetation. Asphalt, concrete, or other similar
linings shall not be used unless specifically required to prevent
seepage or to provide stability and are approved by the County.
B.
Stream channel diversions.
(1)
Flow from perennial and intermittent streams within the permit
area may be diverted only when the diversions are approved by the
County and they are in compliance with local, state and federal statutes
and regulations. When stream flow is allowed to be diverted, a new
stream channel shall be designed and constructed to meet the requirements
of this subsection.
(a)
The average stream gradient shall be maintained and the channel
designed, constructed and maintained to remain stable and to prevent
additional contributions of suspended solids to stream flow or to
runoff outside the permit area to the extent possible using the best
technology currently available. In no event shall contributions be
in excess of requirements set by applicable local, state or federal
law. Erosion control structures such as channel lining structures,
retention basins, and artificial channel roughness structures shall
be used only when approved by the County for temporary diversions
where necessary or for permanent diversions where they are stable
and will require only infrequent maintenance.
(b)
Channel, bank and floodplain configurations shall be adequate
to safely pass the peak runoff of a precipitation event with a ten-year
recurrence interval for temporary diversions and a one-hundred-year
recurrence interval for permanent diversions, or larger events as
specified by the County.
(c)
Fish and wildlife habitat and water and vegetation of significant
value for wildlife shall be protected in consultation with appropriate
state and federal fish and wildlife management agencies.
(2)
All temporary diversion structures shall be removed, and the
affected land regraded and revegetated consistent with the requirements
of this article regarding backfilling, grading and revegetation. At
the time such diversions are removed, the permittee shall ensure that
downstream water treatment facilities previously protected by the
diversion are either modified or removed to prevent overtopping or
failure of the facilities.
C.
Stream buffer zone. No land within 100 feet of an intermittent or
perennial stream shall be disturbed by surface mining and reclamation
operations unless the County specifically authorizes operations through
such a stream. The area not to be disturbed shall be designated a
buffer zone and marked as specified herein.
D.
Discharge structures. Discharges from sedimentation ponds and diversions
shall be controlled, where necessary, using energy dissipaters, surge
ponds, and other devices to reduce erosion and prevent deepening or
enlargement of stream channels and to minimize disturbances to the
hydrologic balance.
E.
Discharge of waters into underground mines. Surface and ground waters
shall not be discharged or diverted into underground mine workings.
A.
Sediment control required. Appropriate sediment control measures
shall be designed, constructed, and maintained to prevent additional
contributions of sediment to stream flow or to runoff outside the
permit area to the extent possible using the best technology currently
available, but in no event shall contributions be in excess of requirements
set by applicable local, state or federal law.
(1)
Sediment control measures include practices carried out within
and adjacent to the disturbed area. For the purpose of this regulation,
"disturbed area" shall not include those areas in which only diversion
ditches, sedimentation ponds or roads are installed and the upstream
area is not otherwise disturbed by the mining operation. The scale
of downstream practices shall reflect the degree to which successful
techniques are applied at the sources of the sediment. Sediment control
measures consist of the utilization of proper mining, reclamation
methods, and sediment control practices (singly or in combination),
including, but not limited to:
(a)
Disturbing the smallest practicable area at any one time during
the mining operation through progressive backfilling, grading, and
timely revegetation.
(b)
Consistent with the requirements of this article, shaping and
the backfill material to promote a reduction of the rate and volume
of runoff;
(c)
Retention of sediment within the pit and disturbed area;
(d)
Diversion of overland and channelized flow from undisturbed
areas around or in protected crossings through the disturbed area;
(e)
Utilization of straw dikes, riprap, check dams, mulches, vegetative
sediment filters, dugout ponds, and other measures that reduce overland
flow velocity, reduce runoff volume or entrap sediment; and
(f)
Sedimentation ponds.
(2)
All surface drainage from the disturbed area, including disturbed
areas which have been graded, seeded, or planted, shall be passed
through a sedimentation pond or a series of sedimentation ponds before
leaving the permit area. Sedimentation ponds shall be retained until
drainage from the disturbed area has met applicable water quality
requirements and the revegetation requirements of these regulations
have been met. All sedimentation ponds required shall be constructed
in accordance with this article and in appropriate locations prior
to any mining in the affected drainage area in order to control sedimentation
or otherwise treat water. Sedimentation ponds shall be certified by
a qualified registered engineer as having been constructed as designed
and as approved by the County. Sedimentation ponds may be used individually
or in series, and should be located as near as possible to the disturbed
area and, where possible, out of major stream courses.
(3)
Sediment shall be removed from sedimentation ponds so as to
assure maximum sediment removal efficiency and attainment and maintenance
of effluent limitations. Sediment removal may be done in a manner
that minimizes adverse effects on surface waters due to its chemical
and physical characteristics, on infiltration, on vegetation, and
on surface and ground water quality. Sediment that has been removed
from sedimentation ponds and that meets the requirements for topsoil
may be redistributed over graded areas; otherwise, the sediment shall
be disposed of as waste material.
(4)
All ponds shall be designed by a registered professional engineer.
(5)
All ponds shall be removed and the affected land regraded and
revegetated consistent with the requirements of this article, unless
the County approves retention of the ponds as permanent impoundments.
(6)
In the design of sedimentation ponds pursuant to the regulations,
the responsible design engineer shall determine the structure hazard
classification as set forth in 405 KAR 1:020 and the structure hazard
classification shall be clearly shown on the first sheet of the design
drawings.
(7)
Sedimentation ponds classified (B) moderate hazard, or (C) high
hazard shall be designed, constructed and maintained according to
the provisions of KRS 151.250 and regulations adopted pursuant thereto.
B.
The County may require other actions necessary to ensure that the
provisions of this regulation are met.
A.
General requirements. The permittee may construct, if authorized
by the County, permanent water impoundments on mining sites only when
they are adequately demonstrated to be in compliance with the requirements
of this article in addition to the following requirements:
(1)
The size of the impoundment is adequate for its intended purposes;
(2)
The impoundment dam construction is designed to achieve necessary
stability with an adequate margin of safety compatible with that of
structures constructed under Public Law 83-566 (16 U.S.C. §§ 1001
through 1006).
(3)
The quality of the impounded water will be suitable on a permanent
basis for its intended use, and discharges from the impoundment will
not degrade the quality of receiving waters below the water quality
standards established pursuant to applicable federal and state law.
(4)
The level of water will be reasonably stable.
(5)
Final grading will comply with the provisions of the backfilling
and grading requirements and will provide adequate safety and access
for proposed water users.
(6)
Water impoundments will not result in the diminution of the
quality or quantity of water used by adjacent or surrounding landowners
for agricultural, industrial, recreational or domestic uses.
B.
Permanent impoundments [except those classified as Class (A) pursuant
to 405 KAR 1:020, Section 5(2)(d)] shall be designed, constructed
and maintained in accordance with the provisions of KRS 151.250 and
regulations adopted pursuant thereto.
A.
Objective. The objective of this section is to set forth those soil
removal, stockpiling, and replacement operational requirements and
revegetation and other reclamation standards for prime farmland to
ensure both that the land will have agricultural productive capacity
which is equal after mining to pre-mining levels (or potential pre-mining
levels), and the land is not lost as an important natural resource
of Henderson County.
B.
Applicability. Permittees of surface mining operations conducted
on prime farmland shall comply with all applicable requirements of
this article in addition to the special requirements of this regulation.
C.
Definition. "Prime farmland" is land that has the best combination
of physical and chemical characteristics for producing food, feed,
forage, fiber and oilseed crops, and land that is also available for
these uses (the land could be cropland, pasture land, forest land,
or other land, but not urban built-up land or water); it has the soil
quality, growing season, and moisture supply needed to economically
produce sustained high yields of crops when treated and managed, including
water management, according to acceptable farming methods. "Prime
farmland" means those lands that meet the specific technical criteria
prescribed by the Secretary of the United States Department of Agriculture
which are specified herein. Terms used in this section are defined
in U.S. Department of Agriculture publications: Soil Taxonomy, Agriculture
Handbook 436; Soil Survey Manual, Agricultural Handbook 18; Rainfall
Erosion Losses from Cropland, Agricultural Handbook 282; and Saline
and Alkali Soils, Agricultural Handbook 60. To be considered prime
farmlands, soils must meet all of the criteria of this section.
(1)
The soils have:
(a)
Aquic, udic, ustic, or xeric moisture regimes and sufficient
available water supply capacity within a depth of 40 inches or in
the root zone, if the root zone is less than 40 inches deep, to produce
the commonly grown crops in seven or more years out of 10; or
(b)
Xeric or ustic moisture regimes in which the available water
capacity is limited but the area has a developed irrigation water
supply that is dependable and of adequate quality (A dependable water
supply is one in which enough water is available for irrigation in
eight out of 10 years for the crops commonly grown.); or
(c)
Aridic or torric moisture regimes and the area has a developed
irrigation water supply that is dependable and of adequate quality.
(2)
The soils have a temperature regime that is frigid, mesic, thermic,
or hyperthermic (pergelic and cryic regimes are excluded). These are
soils that at a depth of 20 inches have a mean annual temperature
higher than 32° F. In addition, the mean summer temperature at
this depth in soils with an O horizon is higher than 47° F.; in
soils that have no O horizon, the mean summer temperature is higher
than 59° F.
(3)
The soils either have no water table or have a water table that
is maintained at a sufficient depth during the cropping season to
allow food, feed, fiber, forage, and oilseed crops common to the area
to be grown.
(4)
The soils can be managed so that, in all horizons within a depth
of 40 inches or in the root zone if the root zone is less than 40
inches deep, during part of each year the conductivity of saturation
extracts less than four mmhos/cm and the exchangeable sodium percentage
(ESP) is less than 15.
(5)
The soils have a product of K (eredibility factor) X percent
slope of less than 2.0 and a product of 1 (soil erodibility) XC (climate
factor) not exceeding 60.
(6)
The soils have a permeability rate of at least 0.06 inch per
hour in the upper 20 inches and the mean annual soil temperature at
a depth of 20 inches is less than 59° F.; the permeability rate
is not a limiting factor if the mean annual soil temperature is 59°
F. or higher.
(7)
Less than 10% of the surface layer (upper six inches) of these
soils consists of rock fragments coarser than three inches.
D.
Identification of prime farmland. Prime farmland shall be identified
on the basis of soil surveys submitted by the applicant. The County
also may require data on irrigation, drainage, flood control, and
subsurface water management. Soil surveys shall be conducted according
to standards of the National Cooperative Soil Survey, which include
the procedures set forth in U.S. Department of Agriculture Handbooks
436 (Soil Taxonomy) and 18 (Soil Survey Manual) and shall include:
(1)
Data on moisture availability, temperature regime, flooding, water table, erosion characteristics, permeability, or other information that is needed to determine prime farmland in accordance with Subsection C of this section.
(2)
A map designating the exact location and extent of the prime
farmland.
(3)
A description of each soil mapping unit.
E.
Plan for restoration of prime farmland. The applicant shall submit
to the County a plan for the mining and restoration of any prime farmland
within the proposed permit boundaries. This plan shall be used by
the County in judging the technological capability of the applicant
to restore prime farmlands. The plan shall include:
(1)
A description of the original undisturbed soil profile, as determined
from a soil survey, showing the depth and thickness of each of the
soil horizons that collectively constitute the root zone of the locally
adapted crops and are to be removed, stored and replaced.
(2)
The proposed method and type of equipment to be used for removal,
storage and replacement of the soil in accordance with this regulation.
(3)
The location of areas to be used for the separate stockpiling
of the soil and plans for soil stabilization before redistribution.
(4)
If applicable, documentation such as agricultural school studies
or other scientific data from comparable areas that support the use
of other suitable material, instead of the A, B or C soil horizon,
to obtain on the restored area equivalent or higher levels of yield
as non-mined prime farmlands in the surrounding area under equivalent
levels of management;
(5)
Plans for seeding or cropping the final graded mine land and
the conservation practices to control erosion and sedimentation until
such time that revegetation is completely established as determined
by the County; and
(6)
Available agricultural school studies, company data, or other
scientific data for comparable areas that demonstrate that the applicant
using his proposed method of reclamation will achieve, within a reasonable
length of time, equivalent or higher levels of yield after mining
as existed before mining.
F.
Consultation with Secretary of Agriculture and issuance of permits.
(1)
The County may grant a permit which shall incorporate the plan submitted under Subsection E of this regulation if the County finds in writing that the applicant:
(a)
Has the technological capability to restore prime farmland within
the proposed permit area, within a reasonable time, to equivalent
or higher levels of yield as non-mined prime farmland in the surrounding
area under equivalent levels of management; and
(b)
Will achieve compliance with the standards established by this
regulation.
(2)
Before any permit is issued for areas that include prime farmlands,
the County shall consult with the Secretary of Agriculture. The Secretary
of Agriculture will provide a review of the proposed method of soil
reconstruction and comment on possible revisions that will result
in a more complete and adequate restoration. The Secretary of Agriculture
has assigned his responsibilities under this subsection to the Administrator
of the U.S. Soil Conservation Service, and the U.S. Soil Conservation
Service will carry out the consultation and review through the State
Conservationist.
G.
Prime farmland: special requirements. Surface coal mining and reclamation
operations conducted on prime farmland shall meet the following requirements:
(1)
Soil materials to be used in the reconstruction of the prime farmland soil shall be removed before drilling, blasting, or mining, in accordance with Subsection H and in a manner that prevents mixing or contaminating these materials with undesirable materials. Where removal of soil materials results in erosion that may cause air and water pollution, the regulatory authority shall specify methods to control erosion of exposed overburden.
(2)
Revegetation success on prime farmlands shall be measured upon
the basis of a comparison of actual crop production from the disturbed
area, compared to the predetermined target level of crop production
approved by the County in the permit.
H.
Prime farmland: soil removal.
(1)
Surface coal mining and reclamation operations on prime farmland
shall be conducted to:
(a)
Separately remove the entire A horizon or other suitable soil
materials which will create a final soil having an equal or greater
productive capacity than that which existed prior to mining.
(b)
Separately remove the B horizon of the soil, a combination of
B horizon and underlying C horizon, or other suitable soil material
that will create a reconstructed soil of equal or greater productive
capacity than that which existed before mining.
(c)
Separately remove the underlying C horizons, other strata, or
a combination of horizons or other strata, to be used instead of the
B horizon. When replaced, these combinations shall be equal to, or
more favorable for plant growth than, the B horizon.
I.
Prime farmland: soil stockpiling. If not utilized immediately, the A horizon or other suitable soil materials specified in Subsection H(1)(a) and the B horizon or other suitable soil materials specified in Subsection H(1)(b) and H(1)(c) shall be stored separately from each other and from spoil. These stockpiles shall be placed within the permit area where they are not disturbed or exposed to excessive water or wind erosion before the stockpiled horizons can be redistributed. Stockpiles in place for more than 30 days shall meet the requirements of 30 CFR 816.23 or 817.23.
J.
Prime farmland: soil replacement. Surface coal mining and reclamation
operations on prime farmland shall be conducted according to the following:
(1)
The minimum depth of soil and soil material to be reconstructed
for prime farmland shall be 48 inches, or a depth equal to the depth
of a subsurface horizon in the natural soil that inhibits root penetration,
whichever is shallower. The County shall specify a depth greater than
48 inches wherever necessary to restore productive capacity due to
uniquely favorable soil horizons at greater depths. Soil horizons
shall be considered as inhibiting root penetration if their densities,
chemical properties, or water-supplying capacities restrict or prevent
penetration by roots or plants common to the vicinity of the permit
area and have little or no beneficial effect on soil productive capacity.
(2)
Replace soil material only on land which has been first returned
to final grade and scarified, unless site-specific evidence is provided
and approved by the County showing that scarification will not enhance
the capability of the reconstructed soil to achieve equivalent or
higher levels of yield.
(3)
Replace the soil horizons or other suitable soil material in
a manner that avoids excessive compaction. Compaction shall be considered
excessive if, on more than 10% of the replacement area, any layer
of reconstructed soil has a moist bulk density of 0.1 gram per cubic
centimeter more than the values stated in the approved permit application
for the equivalent layer of the undisturbed soil.
(5)
Replace the A horizon or other suitable soil materials specified in Subsection H(1)(a) as the final surface soil layer. This surface soil layer shall equal or exceed the thickness of the original soil and be replaced in a manner that protects the surface layer from wind and water erosion before it is seeded or planted.
(6)
Apply nutrients and soil amendments as needed to quickly establish
vegetation growth.
K.
Prime farmland: revegetation.
(1)
Following soil replacement, the applicant shall establish a
vegetative cover capable of stabilizing the soil surface with respect
to erosion. All vegetation shall be in compliance with the plan approved
by the County and carried out in a manner that encourages prompt vegetative
cover and recovery of productive capacity. The timing and mulching
provisions of 30 CFR 816.113 through 816.114 or 817.113 through 817.114
shall be met.
(2)
Within a time period specified in the permit, but not to exceed
10 years after completion of backfilling and rough grading, any portion
of the permit area which is prime farmland must be used for crops
commonly grown, such as corn, soybeans, grain, hay, sorghum, wheat,
oats, barley, or other crops on surrounding prime farmland. The crops
may be grown in rotation with hay or pasture crops as defined for
cropland. The County may approve a crop use of perennial plants for
hay, where this is a common long-term use of prime farmland soils
in the surrounding area. The level of management shall be equivalent
to that on which the target yields are based.
(3)
Measurement of success in prime farmland revegetation will be
determined based upon the techniques approved in the permit by the
County. As a minimum, the following standards shall be met:
(a)
Average annual crop production shall be determined based upon
a minimum of three years' data. Crop production shall be measured
by the three years immediately prior to release of bond.
(b)
Adjustment for weather-induced variability in the annual mean
crop production may be permitted by the County.
(c)
Revegetation on prime farmland shall be considered a success
when the adjusted three-year average annual crop production is equivalent
to, or higher than, the predetermined target level of crop production
specified in the permit.
L.
Prime farmland: release of bond.
(1)
Upon completion of backfilling and grading operations, as specified
in § 27.04I(1), the permittee may submit to the County a
report and request for partial release of the bond for the area.
(2)
Upon verification of the report and request, the County shall
partially release to the permittee the bond which was posted for that
area in an amount not to exceed 50% of the total bond posted for that
area, except that the amount of bond retained shall not be less than
$5,000 per acre or fraction thereof.
(3)
Upon completion of revegetation requirement in accordance with Subsection K above, the permittee may submit a report and request for release of the remaining bond. The report shall demonstrate to the satisfaction of the County that the requirements of this article have been met with regard to revegetation of prime farmland.
