Title 405 | Chapter 010 | Regulation 015
405 KAR 10:015REG
A proposed version of this document exists.
405 KAR 10:015.General bonding provisions.
Section 1.
Bonding Requirements.(1)
An applicant shall not disturb surface acreage or extend an underground shaft, tunnel, or operation prior to receipt of approval from the cabinet of a performance bond covering an area to be affected by surface operations and facilities.(2)
After an application for a new, amended, revised, or renewed permit to conduct surface coal mining and reclamation operations has been approved pursuant to 405 KAR Chapter 8, but before the permit is issued, the applicant shall file with the cabinet, on Performance Bond, Form SME-42, a performance bond payable to the cabinet.(a)
The applicant shall file the Performance Bond, Form SME-42, for an operation on land other than federal lands, or the Performance Bond for Surface Coal Mining and Reclamation on Federal Lands, Form SME-42-F, for an operation on federal land.(b)
The performance bond shall be conditioned upon compliance with all of the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the provisions of the reclamation plan and permit, and shall cover all surface coal mining and reclamation operations to be conducted within the permit area or increment thereof until all reclamation requirements of 405 KAR Chapters 7 through 24 have been met.(c)
The amount, duration, type, conditions, and terms of the performance bond shall conform to the requirements of this administrative regulation.(3)
A permit shall not be revised or amended to include additional area unless the liability of the current bond is extended to cover the entire permit area or increment as revised or amended, and the liability of the supplemental bond covers the entire permit area as revised or amended. Unless these conditions are met with respect to the bond, the additional area shall be permitted as a separate increment of the current permit area or pursuant to a new permit.(4)
A rider to the applicable performance bond, confirming coverage of the revision, shall be submitted by the applicant if a revision to a permit does not change the acreage of the permit area or increment but:(a)
Adds a coal washer, a crush and load facility, a refuse pile, or a coal mine waste impoundment to the existing permit; or(b)
Alters the boundary of a permit area or increment.Section 2.
Terms and Conditions of Performance Bond.(1)
The performance bond shall be in an amount determined by the cabinet as established in Sections 6, 7, and 8 of this administrative regulation.(2)
The performance bond shall be payable to the cabinet.(3)
The performance bond shall be conditioned upon faithful performance of all of the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the conditions of the permit and shall cover the entire permit area or the incremental area as the cabinet has approved pursuant to Section 4(2) of this administrative regulation.(4)
The duration of the bond shall be for a time period established in Section 9 of this administrative regulation.(5)
Surety bonds shall be subject to the conditions established in paragraphs (a) through (d) of this subsection.(a)
The cabinet shall not accept the bond of a surety company unless the bond shall not be cancelable by the surety at any time for any reason.1.
Surety bond coverage for permitted lands not disturbed shall be cancelled only with the written approval of the cabinet, provided the surety gives written notice to both the permittee and the cabinet of the intent to cancel prior to the proposed cancellation.a.
A cancellation notice shall be by certified mail.b.
Cancellation shall not be effective for lands subject to bond coverage that are affected after receipt of notice, but prior to approval by the cabinet.c.
The cabinet shall approve a cancellation only if a replacement bond has been filed by the permittee, or if the permit area has been reduced by revision to the extent that the remaining bond amount, after cancellation, is sufficient to cover all the costs attributable to the completion of reclamation operations on the reduced permit area in accordance with Section 10 of this administrative regulation.2.
The cabinet shall advise the surety, within thirty (30) days after receipt of a notice to cancel bond, if the bond may be cancelled on an undisturbed area.(b)
The bond shall provide that the surety and the permittee shall be jointly and severally liable.(c)
1.
The surety shall give prompt notice to the permittee and the cabinet of a notice received or action filed alleging the insolvency or bankruptcy of the surety, or alleging violations of regulatory requirements that could result in suspension or revocation of the surety's license to do business.2.
In the event the surety becomes unable to fulfill its obligations pursuant to the bond, the surety shall promptly provide written notice to the permittee and the cabinet.3.
Upon the incapacity of a surety by reason of bankruptcy, insolvency, or suspension or revocation of its license or certificate of authority, the permittee shall be deemed to be without proper bond coverage and shall promptly notify the cabinet.a.
Nothing in this paragraph shall relieve the permittee of responsibility pursuant to the permit or the surety of liability on the permittee's bond.b.
The cabinet shall issue a notice to the permittee specifying a reasonable period to replace bond coverage, not to exceed ninety (90) days.c.
If an adequate bond is not posted by the end of the period allowed, the permittee shall cease coal extraction and coal processing operations and shall comply with the provisions of 405 KAR 16:010, Section 6, or 405 KAR 18:010, Section 4, and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan.d.
Coal extraction and coal processing operations shall not resume until the cabinet has determined that, in accordance with 405 KAR Chapters 7 through 24, an acceptable bond has been posted.e.
If an acceptable bond has not been posted by the end of the period allowed, the cabinet shall suspend the permit until acceptable bond, in accordance with 405 KAR Chapters 7 through 24, is posted.(d)
A surety bond shall be executed by the operator and a corporate surety licensed to do business in the Commonwealth of Kentucky.(6)
Collateral bonds may include cash deposits with the cabinet, certificates of deposit, or letters of credit. Collateral bonds, except for letters of credit, shall be subject to the conditions established in paragraphs (a) through (f) of this subsection.(a)
The cabinet or its authorized agent shall obtain possession of and keep in custody all collateral deposited by the applicant, until authorized for release or replacement as established in 405 KAR Chapter 10.(b)
The cabinet shall require that certificates of deposit be assigned to the cabinet or its authorized agent in writing, through the submittal of Escrow Agreement Form SME-64, and the assignment evidenced on the books of the bank issuing the certificates.(c)
The cabinet shall not accept an individual certificate of deposit unless it is issued by an FDIC or FSLIC insured financial institution, and the cabinet shall not in any circumstance accept a denomination in excess of the maximum insurable amount as determined by FDIC and FSLIC.(d)
The cabinet shall require the issuer of certificates of deposit to waive all rights of setoff or liens that it has or might have against those certificates.(e)
Persons with an interest in collateral posted as a bond, and who desire notification of actions pursuant to the bond, shall request the notification in writing to the cabinet upon an offering of collateral.(f)
The cabinet shall require the applicant to deposit sufficient amounts of certificates of deposit, so as to assure that the cabinet will be able to liquidate those certificates prior to maturity, upon forfeiture, for the amount of the bond required by this chapter.(7)
A letter of credit shall be subject to the conditions established in paragraphs (a) through (d) of this subsection.(a)
1.
The letter shall only be issued by a bank organized or authorized to do business in the United States.2.
A letter of credit issued by a non-Kentucky lending institution shall be confirmed by an approved Kentucky lending institution.(b)
A letter of credit shall be irrevocable.(c)
The letter shall be payable to the cabinet upon demand and receipt from the cabinet of a notice of forfeiture issued in accordance with 405 KAR 10:050, or in the event the bank wishes to terminate the letter on its expiration date, the cabinet may draw upon demand. The Irrevocable Standby Letter of Credit, Form SME-72, and the Confirmation of Irrevocable Standby Letter of Credit, form SME-72-A, shall be submitted to the cabinet, as necessary.(d)
1.
The issuer shall give prompt notice to the permittee and the cabinet of notice received or action filed alleging the insolvency or bankruptcy of the issuer, or alleging violations of regulatory requirements that could result in suspension or revocation of the issuer's charter or license to do business.2.
In the event the issuer becomes unable to fulfill its obligations pursuant to the letter of credit, notice shall be given immediately to the permittee and the cabinet.3.
Upon the incapacity of an issuer by reason of bankruptcy, insolvency, or suspension or revocation of its charter or license, the permittee shall be deemed to be without proper performance bond coverage and shall promptly notify the cabinet.a.
Nothing in this paragraph shall relieve the permittee of responsibility pursuant to the permit or the issuer of liability on the letter of credit.b.
The cabinet shall issue a notice to the permittee specifying a reasonable period to replace bond coverage, not to exceed ninety (90) days.c.
If an adequate bond is not posted by the end of the period allowed, the permittee shall cease coal extraction and coal processing operations and shall comply with the provisions of 405 KAR 16:010, Section 6, or 405 KAR 18:010, Section 4, and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan.d.
Coal extraction and coal processing operations shall not resume until the cabinet has determined that an acceptable bond has been posted.e.
If an acceptable bond has not been posted by the end of the period allowed, the cabinet shall suspend the permit until acceptable bond is posted.(8)
If a permittee chooses to combine two (2) or more bonds for one (1) permit area or increment, the bonds may be accompanied by a schedule, acceptable to the cabinet and agreed to by all parties, which sets forth the agreed distribution of bond amounts to be released or reduced pursuant to 405 KAR 10:040 and Section 10 of this administrative regulation, respectively. If no schedule is submitted, the cabinet may release equal percentages of each bond.(9)
Permit specific bonds posted by members of the Voluntary Bond Pool on existing permits prior to the establishment of the Kentucky Reclamation Guaranty Fund shall be released in their entirety upon successfully achieving reclamation Phase I bond release in accordance with 405 KAR 10:040, Section 2(4)(a). Permit specific bonds posted by members of the Voluntary Bond Pool on new permits after the establishment of the Kentucky Reclamation Guaranty Fund shall be released in equal percentages at each reclamation phase with the Kentucky Reclamation Guaranty Bond.Section 3.
Types of Performance Bond.(1)
The cabinet shall approve performance bonds of only those types established in this section.(2)
The performance bond shall be a:(a)
Surety bond;(b)
Collateral bond;(c)
Bond filed pursuant to the provisions of the Kentucky Reclamation Guaranty Fund, KRS 350.518;(d)
Bond filed by the Voluntary Bond Pool; or(e)
Combination of the bond types listed in paragraphs (a) through (d) of this subsection.(3)
Bonds filed by the Voluntary Bond Pool prior to its repeal in 2013 Ky. Acts ch. 78, Section 12, shall be deemed valid and convey the same legal right as bonds issued by the KRGF. The amount, duration, conditions, and terms of bonds issued by the Voluntary Bond Pool shall be deemed in compliance with the requirements of this administrative regulation.Section 4.
Bonding Methods. The method of performance bonding for a permit area shall be selected by the applicant and approved by the cabinet prior to the issuance of a permit, and shall consist of one (1) of the methods established in subsections (1) or (2) of this section.(1)
Method "S" - single area bonding. A single area bond shall be a bond that covers the entire permit area as a single undivided area, for which the applicant shall file the entire bond amount required by the cabinet prior to issuance of the permit.(a)
Liability pursuant to the bond shall extend to every part of the permit area at all times.(b)
Except as established in Section 9(2) of this administrative regulation regarding extended bond liability, there shall not be a release of all or part of the bond amount for completion of a particular phase of reclamation on a part of the permit area pursuant to 405 KAR 10:040 until that phase of reclamation has been successfully completed on the entire permit area.(2)
Method "I" - incremental bonding. Incremental bonding shall be a method of bonding in which the permit area shall be divided into individual increments, each of which is bonded separately and independently, and for which a bond shall be filed as operations proceed through the permit area.(a)
The permit area shall be divided into distinct increments subject to approval by the cabinet based on this subsection.1.
Each increment shall be of sufficient size and configuration to provide for efficient reclamation operations should reclamation operations by the cabinet become necessary.2.
If the approved postmining land use is of such nature that successful implementation of the postmining land use capability depends upon an area being integrally reclaimed, then that area shall be contained within a single increment.3.
These increments shall be clearly identified on maps submitted in the permit application pursuant to 405 KAR Chapter 8, and the applicant shall describe the approximate time schedule for beginning operations in each increment.(b)
Prior to issuance of a permit, the applicant shall file with the cabinet the full bond amount required by the cabinet for the first increment or increments of the permit area to be disturbed, which shall be not less than the minimum bond required for the permit area required pursuant to Section 7 of this administrative regulation.(c)
The permittee shall not engage in surface coal mining and reclamation operations on an increment of the permit area unless the full bond amount required by the cabinet has been filed with the appropriate regional office of the department for that increment, the cabinet has verified the validity of the bond, and written authorization to conduct surface coal mining and reclamation operations on that increment is issued by the administrator of the regional office. Credit shall not be given for reclamation on other increments.(d)
The boundaries of each increment shall be physically marked at the site in a manner approved by the cabinet pursuant to 405 KAR 16:030.(e)
The bond amount for an increment shall be released or forfeited independently of another increment of the permit area, and liability pursuant to the performance bond shall extend only to the increment expressly covered by the bond. A single bond amount may be filed to cover more than one (1) increment, in which case the increments covered shall be treated as a single increment.(f)
Except as established in Section 9(2) of this administrative regulation regarding extended bond liability, there shall not be a release of bond for completion of a phase of reclamation on part of an increment until that phase of reclamation has been successfully completed on the entire increment.(g)
If the bond for an increment is completely released pursuant to 405 KAR 10:040, the increment shall be deleted from the permit area.Section 5.
Substitution of Bonds.(1)
The cabinet may allow permittees to substitute existing surety or collateral bonds for equivalent surety or collateral bonds, in which case the liability that has accrued against the permittee on the permit area or increment shall be transferred to the substitute bonds.(2)
The cabinet shall not release existing performance bonds until the permittee has submitted and the cabinet has, in accordance with 405 KAR Chapters 7 through 24, approved acceptable substitute performance bonds. A substitution of performance bonds pursuant to this section shall not constitute a release of bond pursuant to 405 KAR 10:040.(3)
The cabinet may refuse to allow substitution of bonds if an action for revocation or suspension of the permit covered by the bond is pending or if there is a pending action for forfeiture of the bond.Section 6.
Determination of Bond Amounts.(1)
In determining the bond amount, the cabinet shall estimate the cost to the cabinet if the cabinet had to perform the reclamation, restoration, and abatement work required of a person who conducts surface coal mining and reclamation operations pursuant to KRS Chapter 350, 405 KAR Chapters 7 through 24, and the permit, except as established in subsection (4) of this section. This amount shall be based on:(a)
The estimated costs submitted by the permittee in accordance with 405 KAR 8:030, Section 24(4), or 405 KAR 8:040, Section 24(4), or both if applicable;(b)
The additional estimated costs to the cabinet that may arise from applicable public contracting requirements or the need to bring personnel and equipment to the permit area after its abandonment by the permittee to perform reclamation, restoration, and abatement work;(c)
All additional estimated costs necessary, expedient, and incident to the satisfactory completion of the requirements established in this section;(d)
An additional amount based on factors of cost changes during the previous five (5) years for the types of activities associated with the reclamation to be performed; and(e)
Other cost information required or available to the cabinet.(2)
If the reclamation cost calculated submitted in a permit application is higher than the minimum bond or bond calculated by the cabinet, the higher calculation shall be used in any issued permit.(3)
The cabinet shall review the bonding amounts established in Sections 7 and 8 of this administrative regulation at a minimum of every two (2) years to determine if the amounts are adequate due to inflation and increases in reclamation costs.(4)
Full cost bonding participants shall provide the cabinet a cost estimate that reflects the costs of reclamation to the cabinet in accordance with the requirements of 405 KAR 10:080, Section 3.Section 7.
Minimum Bond Amount. The minimum amount of the bond for surface coal mining and reclamation operations at the time the permit is issued or amended shall be:(1)
$75,000 for the entire surface area under one (1) permit;(2)
$75,000 per increment for incrementally bonded permits, subject to Section 4(2) of this administrative regulation;(3)
$50,000 for a permit or increment operating on a previously mined area, as defined by of 405 KAR 8:001, Section 1(86), to be evaluated by the cabinet; or(4)
$10,000 for underground mines that have only underground operations.Section 8.
Bonding Rate of Additional Areas. Areas of a surface coal mine and reclamation operation shall be bonded at the rates established in subsections (1) through (7) of this section for a permit issued by the Division of Mine Permits.(1)
Coal haul roads, other mine access roads, and mine management areas shall be bonded at $2,500 per acre and each fraction thereof.(2)
Refuse disposal areas shall be bonded at a minimum rate of $7,500 per acre and each fraction thereof.(3)
(a)
An embankment sediment control pond shall be bonded at a rate of $10,000 per acre and each fraction thereof, with each pond being measured separately, if the pond is located off-bench and located downstream and outside the proposed mining or spoil storage area.(b)
This rate may be applied to partial embankment structures as necessary to meet the requirements of Section 6(1) of this administrative regulation.(4)
Coal preparation plants shall be bonded at the base acreage rate, in accordance with subsection (6) of this section, in addition to the costs associated with demolition and disposal costs relating to concrete, masonry, steel, timber, and other materials associated with surface coal mining and reclamation operations.(5)
Operations on a previously mined area, as defined by 405 KAR 8:001, Section 1(86), shall be bonded at rate of $2,000 per acre and each fraction thereof.(6)
All areas of surface coal mining and reclamation operations not otherwise addressed in subsections (1) through (5) of this section shall be bonded at the rate of $3,500 per acre and each fraction thereof.(7)
(a)
For permits that have been identified as requiring long-term treatment, the cabinet shall calculate an additional bond or other financial assurance instrument amount based on the estimated annual treatment cost, provided by the permittee and verified by the cabinet, multiplied by a factor of twenty-five (25) plus any capital costs of the treatment system.(b)
The long-term treatment cost estimate shall be subject to verification and acceptance by the cabinet. The department shall use its own estimate for annual treatment costs if the department cannot verify the accuracy of the permittee's estimate.Section 9.
Period of Liability.(1)
Liability pursuant to a performance bond applicable to an entire permit area or increment thereof shall continue until all reclamation, restoration, and abatement work required of persons who conduct surface coal mining and reclamation operations pursuant to requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the provisions of the permit have been completed, and the permit or increment terminated by release of the permittee from further liability in accordance with 405 KAR 10:040.(2)
In addition to the period necessary to achieve compliance with all of the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the permit, including the standards for the success of revegetation as required by 405 KAR 16:200 and 405 KAR 18:200, the period of liability pursuant to a performance bond shall continue for a period of five (5) years beginning with the last year of augmented seeding, fertilizing, irrigation, or other work.(a)
The period of liability shall begin again upon augmented seeding, fertilizing, irrigation, or other work required or conducted on the site prior to bond release.(b)
Isolated and clearly defined portions of a bonded area requiring extended liability because of augmentation may be separated from the original area and bonded separately upon approval by the cabinet.(c)
These areas shall be limited in extent, and not constitute a scattered, intermittent, or checkerboard pattern of failure.(d)
Access to the separated areas for remedial work may be included in the area pursuant to extended liability if necessary.(3)
If the cabinet approves a long-term intensive agricultural postmining land use in accordance with 405 KAR 16:210, augmented seeding, fertilization, irrigation, or other husbandry practices normally associated with the approved postmining land use shall not require restarting the five (5) year period of liability.(4)
The bond liability of the permittee shall include only those actions that the permittee is required to take pursuant to the permit, including completion of the reclamation plan in a manner that the land shall be capable of supporting a postmining land use approved pursuant to 405 KAR 16:210. Actions of third parties beyond the control and influence of the permittee and for which the permittee is not responsible pursuant to the permit shall not be covered by the bond.Section 10.
Adjustment of Amount.(1)
The amount of the performance bond liability applicable to a permit or increment shall be adjusted by the cabinet if the:(a)
Acreage in the permit area or increment is either increased or decreased; or(b)
Cabinet determines that the cost of future reclamation, restoration, or abatement work has changed. If it is determined that an adjustment pursuant to this paragraph is necessary, the cabinet shall:1.
Notify the permittee, the surety, and any person with a property interest in collateral who has previously requested a notification in writing; and2.
Provide the permittee an opportunity for an informal conference on the adjustment. The requirements of 400 KAR 1:090 and 400 KAR 1:110 shall not apply to the conduct of the conference.(2)
The amount of the performance bond liability applicable to a permit or increment may be adjusted by the cabinet upon application by the permittee pursuant to 405 KAR 8:010, Section 20, to delete acreage from the permit area or increment thereof if the acreage has not been affected by the surface coal mining and reclamation operation. The provisions of 405 KAR 10:040, Section 2(3), shall apply. A reduction due to a deletion of acreage shall not constitute a bond release and shall not be subject to the procedures of 405 KAR 10:040, Section 1.(3)
The cabinet may grant reduction of the required performance bond amount if the permittee's method of operation or other circumstances will reduce the maximum estimated cost to the cabinet to complete the reclamation responsibilities and therefore warrant a reduction of the bond amount. The request shall not be considered as a request for partial bond release subject to the procedures of 405 KAR 10:040, Section 1.(4)
The cabinet shall refuse to approve a reduction of the performance bond liability amount if an action for revocation or suspension of the permit covered by the bond is pending, if there is a pending action for forfeiture of the bond, or if the permittee is currently in violation of 405 KAR Chapters 7 through 24 on that permit or increment.Section 11.
Supplemental Assurance.(1)
If alternative distance limits or additional pits are approved pursuant to 405 KAR 16:020, Section 3., the applicant shall submit to the cabinet supplemental assurance in the amount established in this section. This supplemental assurance shall be for the purpose of assuring the reclamation of the additional unreclaimed disturbed area and shall be in addition to the performance bond required pursuant to 405 KAR Chapter 10. The applicant shall submit supplemental assurance on the cabinet form, Supplemental Assurance, SME-42 (SA). This form shall be accompanied by the Escrow Agreement form (for use with Supplemental Assurance form only), SME-64 (SA).(a)
The supplemental assurance shall not be subject to the bond release requirements of 405 KAR 10:040, but shall be returned in accordance with the requirements of this section.(b)
The requirements of Sections 2, 3, and 5 of this administrative regulation and 405 KAR 10:035 and 10:050 shall apply to supplemental assurance.(2)
Single seam contour mining. For single seam contour operations subject to 405 KAR 16:020, Section 3., the amount required shall be $150,000 per 1,500 feet, or any portion thereof, of additional distance approved for the first pit pursuant to 405 KAR 16:020, Section 3.. If an additional pit or pits are approved, the amount shall be $150,000 per 1,500 feet, or any portion thereof, including the first 1,500 feet of each additional pit.(3)
Multiple seam contour mining. For multiple seam contour mining operations subject to of 405 KAR 16:020, Section 3(6), the amount required shall be $150,000 per 1,500 feet, or any portion thereof, of additional distance approved for the first multiple seam operation pursuant to of 405 KAR 16:020, Section 3.. If additional multiple seam operations are approved, the amount shall be $150,000 per 1,500 feet, or any portion thereof, including the first 1,500 feet of each additional multiple seam operation.(4)
Mountaintop removal. If a mountaintop removal operation begins by mining a contour cut around all or a portion of the mountaintop, that contour portion shall require the same supplemental assurance established in subsection (2) of this section.(5)
Area mining. The amount required shall be $150,000 for any four (4) spoil ridges, or any portion thereof, of additional distance approved for the first pit pursuant to 405 KAR 16:020, Section 3.. If an additional pit or pits are approved, the amount shall be $150,000 for any four (4) spoil ridges, or any portion thereof, including the first four (4) spoil ridges of each additional pit.(6)
Return of supplemental assurance. Supplemental assurance shall be returned to the person that submitted it upon:(a)
Application to the cabinet for the return; and(b)
Inspection and written documentation (including photographs) by the cabinet verifying that the area for which the supplemental assurance was submitted has been backfilled and graded (or in the case of mountaintop removal, the associated highwall has been eliminated by mining operations).Section 12.
Incorporation by Reference.(1)
The following material is incorporated by reference:(a)
"Performance Bond, Form SME-42", June 2013;(b)
"Irrevocable Standby Letter of Credit, Form SME-72", July 1994;(c)
"Confirmation of Irrevocable Standby Letter of Credit, Form SME-72-A", July 1994;(d)
"Supplemental Assurance, SME-42 (SA)", July 1994;(e)
"Escrow Agreement (for use with Supplemental Assurance form only), SME-64 (SA)", July 1994;(f)
"Escrow Agreement, Form SME-64", October 2008; and(g)
"Performance Bond for Surface Coal Mining and Reclamation on Federal Lands, Form SME-42-F", June 2013.(2)
This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Department for Natural Resources, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.HISTORY: (38 Ky.R. 2004; 39 Ky.R. 467; eff. 9-6-2012; 40 Ky.R. 431; 1061; eff. 11-7-2013; TAm eff. 7-6-2016; TAm eff. 3-28-2018; TAm eff. 5-4-2018; Crt eff. 7-3-2018; 45 Ky.R. 2982; 46 Ky.R. 908; eff. 9-10-2019.)
405 KAR 10:015.General bonding provisions.
Section 1.
Bonding Requirements.(1)
An applicant shall not disturb surface acreage or extend an underground shaft, tunnel, or operation prior to receipt of approval from the cabinet of a performance bond covering an area to be affected by surface operations and facilities.(2)
After an application for a new, amended, revised, or renewed permit to conduct surface coal mining and reclamation operations has been approved pursuant to 405 KAR Chapter 8, but before the permit is issued, the applicant shall file with the cabinet, on Performance Bond, Form SME-42, a performance bond payable to the cabinet.(a)
The applicant shall file the Performance Bond, Form SME-42, for an operation on land other than federal lands, or the Performance Bond for Surface Coal Mining and Reclamation on Federal Lands, Form SME-42-F, for an operation on federal land.(b)
The performance bond shall be conditioned upon compliance with all of the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the provisions of the reclamation plan and permit, and shall cover all surface coal mining and reclamation operations to be conducted within the permit area or increment thereof until all reclamation requirements of 405 KAR Chapters 7 through 24 have been met.(c)
The amount, duration, type, conditions, and terms of the performance bond shall conform to the requirements of this administrative regulation.(3)
A permit shall not be revised or amended to include additional area unless the liability of the current bond is extended to cover the entire permit area or increment as revised or amended, and the liability of the supplemental bond covers the entire permit area as revised or amended. Unless these conditions are met with respect to the bond, the additional area shall be permitted as a separate increment of the current permit area or pursuant to a new permit.(4)
A rider to the applicable performance bond, confirming coverage of the revision, shall be submitted by the applicant if a revision to a permit does not change the acreage of the permit area or increment but:(a)
Adds a coal washer, a crush and load facility, a refuse pile, or a coal mine waste impoundment to the existing permit; or(b)
Alters the boundary of a permit area or increment.Section 2.
Terms and Conditions of Performance Bond.(1)
The performance bond shall be in an amount determined by the cabinet as established in Sections 6, 7, and 8 of this administrative regulation.(2)
The performance bond shall be payable to the cabinet.(3)
The performance bond shall be conditioned upon faithful performance of all of the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the conditions of the permit and shall cover the entire permit area or the incremental area as the cabinet has approved pursuant to Section 4(2) of this administrative regulation.(4)
The duration of the bond shall be for a time period established in Section 9 of this administrative regulation.(5)
Surety bonds shall be subject to the conditions established in paragraphs (a) through (d) of this subsection.(a)
The cabinet shall not accept the bond of a surety company unless the bond shall not be cancelable by the surety at any time for any reason.1.
Surety bond coverage for permitted lands not disturbed shall be cancelled only with the written approval of the cabinet, provided the surety gives written notice to both the permittee and the cabinet of the intent to cancel prior to the proposed cancellation.a.
A cancellation notice shall be by certified mail.b.
Cancellation shall not be effective for lands subject to bond coverage that are affected after receipt of notice, but prior to approval by the cabinet.c.
The cabinet shall approve a cancellation only if a replacement bond has been filed by the permittee, or if the permit area has been reduced by revision to the extent that the remaining bond amount, after cancellation, is sufficient to cover all the costs attributable to the completion of reclamation operations on the reduced permit area in accordance with Section 10 of this administrative regulation.2.
The cabinet shall advise the surety, within thirty (30) days after receipt of a notice to cancel bond, if the bond may be cancelled on an undisturbed area.(b)
The bond shall provide that the surety and the permittee shall be jointly and severally liable.(c)
1.
The surety shall give prompt notice to the permittee and the cabinet of a notice received or action filed alleging the insolvency or bankruptcy of the surety, or alleging violations of regulatory requirements that could result in suspension or revocation of the surety's license to do business.2.
In the event the surety becomes unable to fulfill its obligations pursuant to the bond, the surety shall promptly provide written notice to the permittee and the cabinet.3.
Upon the incapacity of a surety by reason of bankruptcy, insolvency, or suspension or revocation of its license or certificate of authority, the permittee shall be deemed to be without proper bond coverage and shall promptly notify the cabinet.a.
Nothing in this paragraph shall relieve the permittee of responsibility pursuant to the permit or the surety of liability on the permittee's bond.b.
The cabinet shall issue a notice to the permittee specifying a reasonable period to replace bond coverage, not to exceed ninety (90) days.c.
If an adequate bond is not posted by the end of the period allowed, the permittee shall cease coal extraction and coal processing operations and shall comply with the provisions of 405 KAR 16:010, Section 6, or 405 KAR 18:010, Section 4, and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan.d.
Coal extraction and coal processing operations shall not resume until the cabinet has determined that, in accordance with 405 KAR Chapters 7 through 24, an acceptable bond has been posted.e.
If an acceptable bond has not been posted by the end of the period allowed, the cabinet shall suspend the permit until acceptable bond, in accordance with 405 KAR Chapters 7 through 24, is posted.(d)
A surety bond shall be executed by the operator and a corporate surety licensed to do business in the Commonwealth of Kentucky.(6)
Collateral bonds may include cash deposits with the cabinet, certificates of deposit, or letters of credit. Collateral bonds, except for letters of credit, shall be subject to the conditions established in paragraphs (a) through (f) of this subsection.(a)
The cabinet or its authorized agent shall obtain possession of and keep in custody all collateral deposited by the applicant, until authorized for release or replacement as established in 405 KAR Chapter 10.(b)
The cabinet shall require that certificates of deposit be assigned to the cabinet or its authorized agent in writing, through the submittal of Escrow Agreement Form SME-64, and the assignment evidenced on the books of the bank issuing the certificates.(c)
The cabinet shall not accept an individual certificate of deposit unless it is issued by an FDIC or FSLIC insured financial institution, and the cabinet shall not in any circumstance accept a denomination in excess of the maximum insurable amount as determined by FDIC and FSLIC.(d)
The cabinet shall require the issuer of certificates of deposit to waive all rights of setoff or liens that it has or might have against those certificates.(e)
Persons with an interest in collateral posted as a bond, and who desire notification of actions pursuant to the bond, shall request the notification in writing to the cabinet upon an offering of collateral.(f)
The cabinet shall require the applicant to deposit sufficient amounts of certificates of deposit, so as to assure that the cabinet will be able to liquidate those certificates prior to maturity, upon forfeiture, for the amount of the bond required by this chapter.(7)
A letter of credit shall be subject to the conditions established in paragraphs (a) through (d) of this subsection.(a)
1.
The letter shall only be issued by a bank organized or authorized to do business in the United States.2.
A letter of credit issued by a non-Kentucky lending institution shall be confirmed by an approved Kentucky lending institution.(b)
A letter of credit shall be irrevocable.(c)
The letter shall be payable to the cabinet upon demand and receipt from the cabinet of a notice of forfeiture issued in accordance with 405 KAR 10:050, or in the event the bank wishes to terminate the letter on its expiration date, the cabinet may draw upon demand. The Irrevocable Standby Letter of Credit, Form SME-72, and the Confirmation of Irrevocable Standby Letter of Credit, form SME-72-A, shall be submitted to the cabinet, as necessary.(d)
1.
The issuer shall give prompt notice to the permittee and the cabinet of notice received or action filed alleging the insolvency or bankruptcy of the issuer, or alleging violations of regulatory requirements that could result in suspension or revocation of the issuer's charter or license to do business.2.
In the event the issuer becomes unable to fulfill its obligations pursuant to the letter of credit, notice shall be given immediately to the permittee and the cabinet.3.
Upon the incapacity of an issuer by reason of bankruptcy, insolvency, or suspension or revocation of its charter or license, the permittee shall be deemed to be without proper performance bond coverage and shall promptly notify the cabinet.a.
Nothing in this paragraph shall relieve the permittee of responsibility pursuant to the permit or the issuer of liability on the letter of credit.b.
The cabinet shall issue a notice to the permittee specifying a reasonable period to replace bond coverage, not to exceed ninety (90) days.c.
If an adequate bond is not posted by the end of the period allowed, the permittee shall cease coal extraction and coal processing operations and shall comply with the provisions of 405 KAR 16:010, Section 6, or 405 KAR 18:010, Section 4, and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan.d.
Coal extraction and coal processing operations shall not resume until the cabinet has determined that an acceptable bond has been posted.e.
If an acceptable bond has not been posted by the end of the period allowed, the cabinet shall suspend the permit until acceptable bond is posted.(8)
If a permittee chooses to combine two (2) or more bonds for one (1) permit area or increment, the bonds may be accompanied by a schedule, acceptable to the cabinet and agreed to by all parties, which sets forth the agreed distribution of bond amounts to be released or reduced pursuant to 405 KAR 10:040 and Section 10 of this administrative regulation, respectively. If no schedule is submitted, the cabinet may release equal percentages of each bond.(9)
Permit specific bonds posted by members of the Voluntary Bond Pool on existing permits prior to the establishment of the Kentucky Reclamation Guaranty Fund shall be released in their entirety upon successfully achieving reclamation Phase I bond release in accordance with 405 KAR 10:040, Section 2(4)(a). Permit specific bonds posted by members of the Voluntary Bond Pool on new permits after the establishment of the Kentucky Reclamation Guaranty Fund shall be released in equal percentages at each reclamation phase with the Kentucky Reclamation Guaranty Bond.Section 3.
Types of Performance Bond.(1)
The cabinet shall approve performance bonds of only those types established in this section.(2)
The performance bond shall be a:(a)
Surety bond;(b)
Collateral bond;(c)
Bond filed pursuant to the provisions of the Kentucky Reclamation Guaranty Fund, KRS 350.518;(d)
Bond filed by the Voluntary Bond Pool; or(e)
Combination of the bond types listed in paragraphs (a) through (d) of this subsection.(3)
Bonds filed by the Voluntary Bond Pool prior to its repeal in 2013 Ky. Acts ch. 78, Section 12, shall be deemed valid and convey the same legal right as bonds issued by the KRGF. The amount, duration, conditions, and terms of bonds issued by the Voluntary Bond Pool shall be deemed in compliance with the requirements of this administrative regulation.Section 4.
Bonding Methods. The method of performance bonding for a permit area shall be selected by the applicant and approved by the cabinet prior to the issuance of a permit, and shall consist of one (1) of the methods established in subsections (1) or (2) of this section.(1)
Method "S" - single area bonding. A single area bond shall be a bond that covers the entire permit area as a single undivided area, for which the applicant shall file the entire bond amount required by the cabinet prior to issuance of the permit.(a)
Liability pursuant to the bond shall extend to every part of the permit area at all times.(b)
Except as established in Section 9(2) of this administrative regulation regarding extended bond liability, there shall not be a release of all or part of the bond amount for completion of a particular phase of reclamation on a part of the permit area pursuant to 405 KAR 10:040 until that phase of reclamation has been successfully completed on the entire permit area.(2)
Method "I" - incremental bonding. Incremental bonding shall be a method of bonding in which the permit area shall be divided into individual increments, each of which is bonded separately and independently, and for which a bond shall be filed as operations proceed through the permit area.(a)
The permit area shall be divided into distinct increments subject to approval by the cabinet based on this subsection.1.
Each increment shall be of sufficient size and configuration to provide for efficient reclamation operations should reclamation operations by the cabinet become necessary.2.
If the approved postmining land use is of such nature that successful implementation of the postmining land use capability depends upon an area being integrally reclaimed, then that area shall be contained within a single increment.3.
These increments shall be clearly identified on maps submitted in the permit application pursuant to 405 KAR Chapter 8, and the applicant shall describe the approximate time schedule for beginning operations in each increment.(b)
Prior to issuance of a permit, the applicant shall file with the cabinet the full bond amount required by the cabinet for the first increment or increments of the permit area to be disturbed, which shall be not less than the minimum bond required for the permit area required pursuant to Section 7 of this administrative regulation.(c)
The permittee shall not engage in surface coal mining and reclamation operations on an increment of the permit area unless the full bond amount required by the cabinet has been filed with the appropriate regional office of the department for that increment, the cabinet has verified the validity of the bond, and written authorization to conduct surface coal mining and reclamation operations on that increment is issued by the administrator of the regional office. Credit shall not be given for reclamation on other increments.(d)
The boundaries of each increment shall be physically marked at the site in a manner approved by the cabinet pursuant to 405 KAR 16:030.(e)
The bond amount for an increment shall be released or forfeited independently of another increment of the permit area, and liability pursuant to the performance bond shall extend only to the increment expressly covered by the bond. A single bond amount may be filed to cover more than one (1) increment, in which case the increments covered shall be treated as a single increment.(f)
Except as established in Section 9(2) of this administrative regulation regarding extended bond liability, there shall not be a release of bond for completion of a phase of reclamation on part of an increment until that phase of reclamation has been successfully completed on the entire increment.(g)
If the bond for an increment is completely released pursuant to 405 KAR 10:040, the increment shall be deleted from the permit area.Section 5.
Substitution of Bonds.(1)
The cabinet may allow permittees to substitute existing surety or collateral bonds for equivalent surety or collateral bonds, in which case the liability that has accrued against the permittee on the permit area or increment shall be transferred to the substitute bonds.(2)
The cabinet shall not release existing performance bonds until the permittee has submitted and the cabinet has, in accordance with 405 KAR Chapters 7 through 24, approved acceptable substitute performance bonds. A substitution of performance bonds pursuant to this section shall not constitute a release of bond pursuant to 405 KAR 10:040.(3)
The cabinet may refuse to allow substitution of bonds if an action for revocation or suspension of the permit covered by the bond is pending or if there is a pending action for forfeiture of the bond.Section 6.
Determination of Bond Amounts.(1)
In determining the bond amount, the cabinet shall estimate the cost to the cabinet if the cabinet had to perform the reclamation, restoration, and abatement work required of a person who conducts surface coal mining and reclamation operations pursuant to KRS Chapter 350, 405 KAR Chapters 7 through 24, and the permit, except as established in subsection (4) of this section. This amount shall be based on:(a)
The estimated costs submitted by the permittee in accordance with 405 KAR 8:030, Section 24(4), or 405 KAR 8:040, Section 24(4), or both if applicable;(b)
The additional estimated costs to the cabinet that may arise from applicable public contracting requirements or the need to bring personnel and equipment to the permit area after its abandonment by the permittee to perform reclamation, restoration, and abatement work;(c)
All additional estimated costs necessary, expedient, and incident to the satisfactory completion of the requirements established in this section;(d)
An additional amount based on factors of cost changes during the previous five (5) years for the types of activities associated with the reclamation to be performed; and(e)
Other cost information required or available to the cabinet.(2)
If the reclamation cost calculated submitted in a permit application is higher than the minimum bond or bond calculated by the cabinet, the higher calculation shall be used in any issued permit.(3)
The cabinet shall review the bonding amounts established in Sections 7 and 8 of this administrative regulation at a minimum of every two (2) years to determine if the amounts are adequate due to inflation and increases in reclamation costs.(4)
Full cost bonding participants shall provide the cabinet a cost estimate that reflects the costs of reclamation to the cabinet in accordance with the requirements of 405 KAR 10:080, Section 3.Section 7.
Minimum Bond Amount. The minimum amount of the bond for surface coal mining and reclamation operations at the time the permit is issued or amended shall be:(1)
$75,000 for the entire surface area under one (1) permit;(2)
$75,000 per increment for incrementally bonded permits, subject to Section 4(2) of this administrative regulation;(3)
$50,000 for a permit or increment operating on a previously mined area, as defined by of 405 KAR 8:001, Section 1(86), to be evaluated by the cabinet; or(4)
$10,000 for underground mines that have only underground operations.Section 8.
Bonding Rate of Additional Areas. Areas of a surface coal mine and reclamation operation shall be bonded at the rates established in subsections (1) through (7) of this section for a permit issued by the Division of Mine Permits.(1)
Coal haul roads, other mine access roads, and mine management areas shall be bonded at $2,500 per acre and each fraction thereof.(2)
Refuse disposal areas shall be bonded at a minimum rate of $7,500 per acre and each fraction thereof.(3)
(a)
An embankment sediment control pond shall be bonded at a rate of $10,000 per acre and each fraction thereof, with each pond being measured separately, if the pond is located off-bench and located downstream and outside the proposed mining or spoil storage area.(b)
This rate may be applied to partial embankment structures as necessary to meet the requirements of Section 6(1) of this administrative regulation.(4)
Coal preparation plants shall be bonded at the base acreage rate, in accordance with subsection (6) of this section, in addition to the costs associated with demolition and disposal costs relating to concrete, masonry, steel, timber, and other materials associated with surface coal mining and reclamation operations.(5)
Operations on a previously mined area, as defined by 405 KAR 8:001, Section 1(86), shall be bonded at rate of $2,000 per acre and each fraction thereof.(6)
All areas of surface coal mining and reclamation operations not otherwise addressed in subsections (1) through (5) of this section shall be bonded at the rate of $3,500 per acre and each fraction thereof.(7)
(a)
For permits that have been identified as requiring long-term treatment, the cabinet shall calculate an additional bond or other financial assurance instrument amount based on the estimated annual treatment cost, provided by the permittee and verified by the cabinet, multiplied by a factor of twenty-five (25) plus any capital costs of the treatment system.(b)
The long-term treatment cost estimate shall be subject to verification and acceptance by the cabinet. The department shall use its own estimate for annual treatment costs if the department cannot verify the accuracy of the permittee's estimate.Section 9.
Period of Liability.(1)
Liability pursuant to a performance bond applicable to an entire permit area or increment thereof shall continue until all reclamation, restoration, and abatement work required of persons who conduct surface coal mining and reclamation operations pursuant to requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the provisions of the permit have been completed, and the permit or increment terminated by release of the permittee from further liability in accordance with 405 KAR 10:040.(2)
In addition to the period necessary to achieve compliance with all of the requirements of KRS Chapter 350, 405 KAR Chapters 7 through 24, and the permit, including the standards for the success of revegetation as required by 405 KAR 16:200 and 405 KAR 18:200, the period of liability pursuant to a performance bond shall continue for a period of five (5) years beginning with the last year of augmented seeding, fertilizing, irrigation, or other work.(a)
The period of liability shall begin again upon augmented seeding, fertilizing, irrigation, or other work required or conducted on the site prior to bond release.(b)
Isolated and clearly defined portions of a bonded area requiring extended liability because of augmentation may be separated from the original area and bonded separately upon approval by the cabinet.(c)
These areas shall be limited in extent, and not constitute a scattered, intermittent, or checkerboard pattern of failure.(d)
Access to the separated areas for remedial work may be included in the area pursuant to extended liability if necessary.(3)
If the cabinet approves a long-term intensive agricultural postmining land use in accordance with 405 KAR 16:210, augmented seeding, fertilization, irrigation, or other husbandry practices normally associated with the approved postmining land use shall not require restarting the five (5) year period of liability.(4)
The bond liability of the permittee shall include only those actions that the permittee is required to take pursuant to the permit, including completion of the reclamation plan in a manner that the land shall be capable of supporting a postmining land use approved pursuant to 405 KAR 16:210. Actions of third parties beyond the control and influence of the permittee and for which the permittee is not responsible pursuant to the permit shall not be covered by the bond.Section 10.
Adjustment of Amount.(1)
The amount of the performance bond liability applicable to a permit or increment shall be adjusted by the cabinet if the:(a)
Acreage in the permit area or increment is either increased or decreased; or(b)
Cabinet determines that the cost of future reclamation, restoration, or abatement work has changed. If it is determined that an adjustment pursuant to this paragraph is necessary, the cabinet shall:1.
Notify the permittee, the surety, and any person with a property interest in collateral who has previously requested a notification in writing; and2.
Provide the permittee an opportunity for an informal conference on the adjustment. The requirements of 400 KAR 1:090 and 400 KAR 1:110 shall not apply to the conduct of the conference.(2)
The amount of the performance bond liability applicable to a permit or increment may be adjusted by the cabinet upon application by the permittee pursuant to 405 KAR 8:010, Section 20, to delete acreage from the permit area or increment thereof if the acreage has not been affected by the surface coal mining and reclamation operation. The provisions of 405 KAR 10:040, Section 2(3), shall apply. A reduction due to a deletion of acreage shall not constitute a bond release and shall not be subject to the procedures of 405 KAR 10:040, Section 1.(3)
The cabinet may grant reduction of the required performance bond amount if the permittee's method of operation or other circumstances will reduce the maximum estimated cost to the cabinet to complete the reclamation responsibilities and therefore warrant a reduction of the bond amount. The request shall not be considered as a request for partial bond release subject to the procedures of 405 KAR 10:040, Section 1.(4)
The cabinet shall refuse to approve a reduction of the performance bond liability amount if an action for revocation or suspension of the permit covered by the bond is pending, if there is a pending action for forfeiture of the bond, or if the permittee is currently in violation of 405 KAR Chapters 7 through 24 on that permit or increment.Section 11.
Supplemental Assurance.(1)
If alternative distance limits or additional pits are approved pursuant to 405 KAR 16:020, Section 3., the applicant shall submit to the cabinet supplemental assurance in the amount established in this section. This supplemental assurance shall be for the purpose of assuring the reclamation of the additional unreclaimed disturbed area and shall be in addition to the performance bond required pursuant to 405 KAR Chapter 10. The applicant shall submit supplemental assurance on the cabinet form, Supplemental Assurance, SME-42 (SA). This form shall be accompanied by the Escrow Agreement form (for use with Supplemental Assurance form only), SME-64 (SA).(a)
The supplemental assurance shall not be subject to the bond release requirements of 405 KAR 10:040, but shall be returned in accordance with the requirements of this section.(b)
The requirements of Sections 2, 3, and 5 of this administrative regulation and 405 KAR 10:035 and 10:050 shall apply to supplemental assurance.(2)
Single seam contour mining. For single seam contour operations subject to 405 KAR 16:020, Section 3., the amount required shall be $150,000 per 1,500 feet, or any portion thereof, of additional distance approved for the first pit pursuant to 405 KAR 16:020, Section 3.. If an additional pit or pits are approved, the amount shall be $150,000 per 1,500 feet, or any portion thereof, including the first 1,500 feet of each additional pit.(3)
Multiple seam contour mining. For multiple seam contour mining operations subject to of 405 KAR 16:020, Section 3(6), the amount required shall be $150,000 per 1,500 feet, or any portion thereof, of additional distance approved for the first multiple seam operation pursuant to of 405 KAR 16:020, Section 3.. If additional multiple seam operations are approved, the amount shall be $150,000 per 1,500 feet, or any portion thereof, including the first 1,500 feet of each additional multiple seam operation.(4)
Mountaintop removal. If a mountaintop removal operation begins by mining a contour cut around all or a portion of the mountaintop, that contour portion shall require the same supplemental assurance established in subsection (2) of this section.(5)
Area mining. The amount required shall be $150,000 for any four (4) spoil ridges, or any portion thereof, of additional distance approved for the first pit pursuant to 405 KAR 16:020, Section 3.. If an additional pit or pits are approved, the amount shall be $150,000 for any four (4) spoil ridges, or any portion thereof, including the first four (4) spoil ridges of each additional pit.(6)
Return of supplemental assurance. Supplemental assurance shall be returned to the person that submitted it upon:(a)
Application to the cabinet for the return; and(b)
Inspection and written documentation (including photographs) by the cabinet verifying that the area for which the supplemental assurance was submitted has been backfilled and graded (or in the case of mountaintop removal, the associated highwall has been eliminated by mining operations).Section 12.
Incorporation by Reference.(1)
The following material is incorporated by reference:(a)
"Performance Bond, Form SME-42", June 2013;(b)
"Irrevocable Standby Letter of Credit, Form SME-72", July 1994;(c)
"Confirmation of Irrevocable Standby Letter of Credit, Form SME-72-A", July 1994;(d)
"Supplemental Assurance, SME-42 (SA)", July 1994;(e)
"Escrow Agreement (for use with Supplemental Assurance form only), SME-64 (SA)", July 1994;(f)
"Escrow Agreement, Form SME-64", October 2008; and(g)
"Performance Bond for Surface Coal Mining and Reclamation on Federal Lands, Form SME-42-F", June 2013.(2)
This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Department for Natural Resources, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.HISTORY: (38 Ky.R. 2004; 39 Ky.R. 467; eff. 9-6-2012; 40 Ky.R. 431; 1061; eff. 11-7-2013; TAm eff. 7-6-2016; TAm eff. 3-28-2018; TAm eff. 5-4-2018; Crt eff. 7-3-2018; 45 Ky.R. 2982; 46 Ky.R. 908; eff. 9-10-2019.)