444.535. Rules and regulations, commission shall make--variances, procedures, conditions--section not to apply, when.
Rules and regulations, commission shall make--variances, procedures,conditions--section not to apply, when.
444.535. 1. In addition to the other powers and duties prescribed bylaw, the commission shall adopt and promulgate rules and regulations adequateto require the operator, with respect to strip mining of coal, to:
(1) Restore, within a reasonable time, any area which has been minedupon prime farmland to equivalent or higher levels of yield as nonmined primefarmland in the surrounding area under equivalent levels of management, and inconnection therewith:
(a) Segregate the A horizon of the natural soil, except where it can beshown that other available soil materials will create a final soil having agreater productive capacity; and if not utilized immediately, stockpile thismaterial separately from other spoil, and provide needed protection from windand water erosion or contamination by other acid or toxic materials;
(b) Segregate the B horizon of the natural soil, or underlying Chorizons or other strata, or a combination of such horizons or other stratathat are shown to be both texturally and chemically suitable for plant growthand that can be shown to be equally or more favorable for plant growth thanthe B horizon, in sufficient quantities to create in the regraded final soil aroot zone of comparable depth and quality to that which existed in the naturalsoil; and if not utilized immediately, stockpile this material separately fromother spoil, and provide needed protection from wind and water erosion orcontamination by other acid or toxic materials;
(c) Replace and regrade the root zone material described in paragraph(b) of this subdivision with proper compaction and uniform depth over theregraded spoil material; and
(d) Redistribute and grade in a uniform manner the surface soil horizondescribed in paragraph (a) of this subdivision;
(e) Nothing in this subdivision shall apply to any permit issued priorto August 3, 1977, or to any revisions or renewals thereof, or to any existingstrip mining operations for which a permit was issued prior to August 3, 1977;
(f) For the purposes of this subdivision, "prime farmland" shall meanthat land which historically has been used for intensive agriculturalpurposes, and which meets the technical criteria established by the UnitedStates Secretary of Agriculture on the basis of such factors as moistureavailability, temperature regime, chemical balance, permeability, surfacelayer composition, susceptibility to flooding, and erosion characteristics, asfirst published at 42 Federal Register 42359, August 23, 1977;
(2) Restore the affected land to a condition capable of supporting theuses which it was capable of supporting prior to any mining, or higher orbetter uses of which there is reasonable likelihood, so long as such use oruses do not present any actual or probable hazard to public health or pose anyactual or probable threat of water diminution or pollution, and the permitapplicant's declared proposed land use following reclamation is not deemed tobe impractical or unreasonable, inconsistent with applicable land use policiesand plans, involves unreasonable delay in implementation, or is violative offederal, state or local law;
(3) Backfill, compact, where advisable to ensure stability or to preventleaching of toxic materials, and grade in order to restore the approximateoriginal contour of the land with all highwalls, spoil piles and depressionseliminated, unless small depressions are needed in order to retain moisture toassist revegetation; provided, however, that in strip mining which is carriedout at the same location over a substantial period of time where the operationtransects the coal deposit, and the thickness of the coal deposit relative tothe volume of the overburden is large and where the operator demonstrates thatthe overburden and other spoil and waste materials at a particular point inthe permit area or otherwise available from the entire permit area areinsufficient, giving due consideration to volumetric expansion, to restore theapproximate original contour, the operator, at a minimum, shall backfill,grade and compact, where advisable, using all available overburden and otherspoil and waste materials to attain the lowest practicable grade but not morethan the angle of repose, to provide adequate drainage and to cover allacid-forming and other toxic materials, in order to achieve an ecologicallysound land use compatible with the surrounding region; and provided, further,that in strip mining where the volume of overburden is large relative to thethickness of the coal deposit and where the operator demonstrates that due tovolumetric expansion the amount of overburden and other spoil and wastematerials removed in the course of the mining operation is more thansufficient to restore the approximate original contour, the operator shallafter restoring the approximate contour, backfill, grade and compact, whereadvisable, the excess overburden and other spoil and waste materials to attainthe lowest grade but not more than the angle of repose, and to cover allacid-forming and other toxic materials, in order to achieve an ecologicallysound land use compatible with the surrounding region, and that suchoverburden and spoil shall be shaped and graded in such a way as to preventslides, erosion, and water pollution and is revegetated in accordance with therequirements of sections 444.500 to 444.755;
(4) Remove the topsoil from the land in a separate layer, replace it onthe backfill area, or if not utilized immediately, segregate it in a separatepile from other spoil and when the topsoil is not replaced on a backfill areawithin a time short enough to avoid deterioration of the topsoil, maintain asuccessful cover by quick growing plants or other means thereafter so that thetopsoil is preserved from wind and water erosion, remains free of anycontamination by any other acid or toxic material, and is in a usablecondition for sustaining vegetation when restored during reclamation, exceptif topsoil is of insufficient quantity or of poor quality for sustainingvegetation, or if other strata can be shown to be more suitable for vegetationrequirements, then the operator shall remove, segregate and preserve in a likemanner such other strata which are best able to support vegetation;
(5) Minimize the disturbances to the prevailing hydrologic balance atthe mine site and in associated off-site areas and to the quality and quantityof water in surface and ground water systems both during and after stripmining operations and during reclamation by:
(a) Avoiding acid or other toxic mine drainage by such measures as, butnot limited to:
a. Preventing or removing water from contact with toxin producingdeposits;
b. Treating drainage to reduce toxic content which adversely affectsdownstream water upon being released to watercourses; casing, sealing orotherwise managing boreholes, shafts, and wells and keep acid or other toxicdrainage from entering ground and surface waters;
(b) Conducting strip mining operations so as to prevent, to the extentpossible using the best technology available, additional contributions ofsuspended solids to stream flow, or runoff outside the permit area, but in noevent shall contributions be in excess of requirements set by applicable stateor federal laws;
(c) Constructing any siltation structures pursuant to paragraph (b) ofthis subdivision prior to commencement of strip mining operations, suchstructures to be certified by a registered professional engineer to beconstructed as designed and approved in the reclamation plan;
(d) Cleaning out and removing temporary or large settling ponds or othersiltation structures from drainways after disturbed areas are revegetated andstabilized, and depositing the silt and debris at a site and in a mannerapproved by the commission;
(e) Restoring recharge capacity of the mined area to approximatepremining conditions;
(f) Avoiding channel deepening or enlargement in operations requiringthe discharge of water from mines;
(g) Such other actions as the commission may prescribe;
(6) Design, locate, construct, operate, maintain, enlarge, modify andremove or abandon, in accordance with the standards and criteria developed bythe United States Secretary of the Interior pursuant to section 515(f) ofPublic Law 95-87, all existing and new coal mine waste piles consisting ofmined wastes, tailings, coal processing wastes, or other liquid and solidwastes, and used either temporarily or permanently as dams or embankments;
(7) Ensure that explosives are used only in accordance with existingstate and federal law and the regulations promulgated by the commission, whichshall include provisions to:
(a) Require adequate advance written notice by the operator to localgovernments and residents who might be affected by the use of such explosivesby publication of the planned blasting schedule in a newspaper of generalcirculation in the locality and by mailing a copy of the proposed blastingschedule to every resident living within one-half mile of the proposedblasting site and by providing daily notice to residents or occupiers in sucharea prior to any blasting;
(b) Require the operator to maintain for a period of at least threeyears and make available for public inspection upon request a log detailingthe location of the blast, the pattern and depth of the drill holes, theamount of explosives used per hole, and the order and length of delay in theblast;
(c) Limit the kind of explosives and detonating equipment, the size, thetiming and frequency of blasts based upon the physical conditions at the siteso as to prevent injury to persons, damage to public and private propertyoutside the permit area, adverse impacts on any underground mine, and changein the course, channel or availability of ground or surface water outside thepermit area;
(d) Require that all blasting operations be conducted by trained andcompetent persons as certified by the commission;
(e) Provide that upon the request of a resident or owner of a man-madedwelling or structure within one-half mile of any portion of the permittedarea the operator shall conduct a preblasting survey of such structures andsubmit the survey to the commission and a copy to the resident or owner makingthe request. The area of the survey shall be decided by the commission andshall include such provisions as the United States Secretary of Interior shallpromulgate;
(8) Establish on the regraded areas and all other lands affected, adiverse, effective and permanent vegetative cover of the same seasonal varietynative to the area of land to be affected and capable of self-regeneration andplant succession at least equal in extent of cover to the natural vegetationof the area; except that introduced species may be used in the revegetationprocess where desirable and necessary to achieve the approved postmining landuse plan; provided, however, that when the commission issues a written findingapproving a long-term, intensive, agricultural postmining land use as part ofthe mining and reclamation plan, the commission may grant an exception to therequirement of permanent vegetative cover.
2. With respect to steep-slope strip mining, commission regulationsshall provide, in addition to those general reclamation standards required bysubsection 1 of this section, the following:
(1) Ensure that no debris, abandoned or disabled equipment, spoilmaterial, or waste mineral matter be placed on the downslope below the benchor mining cut; provided, that spoil material in excess of that required forthe reconstruction of the approximate original contour under the provisions ofsubdivision (3) of subsection 1 of this section or subdivision (2) of thissubsection below shall be permanently stored in accordance with the followingstandards:
(a) Spoil is transported and placed in a controlled manner in positionfor concurrent compaction and in such a way to assure mass stability and toprevent mass movement;
(b) The areas of disposal are within the bonded permit area and allorganic matter shall be removed immediately prior to spoil placement;
(c) Appropriate surface and internal drainage systems and diversionditches are used so as to prevent spoil erosion and movement;
(d) The disposal area does not contain springs, natural watercourses orwet weather seeps unless lateral drains are constructed from the wet areas tothe main underdrains in such a manner that filtration of the water into thespoil pile will be prevented;
(e) If placed on a slope, the spoil is placed upon the most moderateslope among those upon which, in the judgment of the commission, the spoilcould be placed in compliance with all the requirements of sections 444.500 to444.755, and shall be placed, where possible, upon or above a natural terrace,bench, or berm, if such placement provides additional stability and preventsmass movement;
(f) Where the toe of the spoil rests on a downslope, a rock toebuttress, of sufficient size to prevent mass movement, is constructed;
(g) The final configuration is compatible with the natural drainagepatterns and surroundings and suitable for intended uses;
(h) Design of the spoil disposal area is certified by a registeredprofessional engineer in conformance with professional standards; and
(i) All other provisions of sections 444.500 to 444.755 are met;
(2) Complete backfilling with spoil materials shall be required to covercompletely the highwall and return the site to the approximate originalcontour, which material will maintain stability following mining andreclamation;
(3) The operator may not disturb land above the top of the highwallunless the commission finds that such disturbance will facilitate compliancewith the reclamation standards of this section; provided, however, that theland disturbed above the highwall shall be limited to the amount necessary tofacilitate the compliance;
(4) For the purposes of this subsection, the term "steep slope" is anyslope greater than twenty degrees or such lesser slope as may be defined bythe commission after consideration of soil, climate, and other characteristicsof the state or a region of the state;
(5) The provisions of this subsection shall not apply to thosesituations in which an operator is mining on flat or gently rolling terrain,on which an occasional steep slope is encountered through which the miningoperation is to proceed, leaving a plain or predominantly flat area.
3. The commission may grant a variance from the requirement to restoreto approximate original contour set forth in subdivision (2) of subsection 2of this section where the owner of the surface knowingly requests in writing,as part of the permit application, that such a variance be granted so as torender the land, after reclamation, suitable for an industrial, commercial,residential, or public use, including recreational facilities, upon thefollowing conditions:
(1) After consultation with the appropriate land use planning agencies,if any, the potential use of the affected land is deemed to constitute anequal or better economic or public use;
(2) The reclamation plan, included with the variance application, isdesigned and certified by a registered professional engineer in conformancewith professional standards that the plan will assure the stability, drainage,and configuration necessary for the intended use of the site;
(3) After approval by the director of staff of the clean watercommission of the department of natural resources, the watershed of theaffected land is deemed to be improved;
(4) Only such amount of spoil is placed off the mine bench as isnecessary to achieve the planned postmining land use, ensure stability of thespoil retained on the bench, meet all other requirements of sections 444.500to 444.755, and all spoil placement off the mine bench must comply withparagraphs (a) through (i) of subdivision (1) of subsection 2 of this section;
(5) Watershed control of the area is improved, and complete backfillingwith spoil materials shall be required to cover completely the highwall, whichmaterial will maintain stability following mining and reclamation.
4. The person seeking a variance under the provisions of subsection 3 ofthis section shall do so by filing a petition for variance with the director.The director shall investigate the petition and make a recommendation to thecommission as to the disposition thereof. Upon receiving the recommendationof the director, if the recommendation is against the granting of a variance,a hearing shall be held, if requested by the petitioner within thirty days ofthe director's recommendation, as provided in section 444.690. If therecommendation of the director is for the granting of a variance, thecommission may do so without hearing, except that upon the petition of anyperson who is or would be aggrieved by the granting of a variance, before orwithin thirty days after the commission's action, a hearing shall be held asprovided in section 444.690. In any hearing under this section the burden ofproof shall be on the person petitioning for a variance.
5. Any variance granted pursuant to subsection 3 of this section shallrun concurrently with the permit year. A variance may be extended from yearto year by affirmative action of the commission; provided, however, that novariance may be extended unless the operator affirmatively demonstrates thatthe proposed development is proceeding in accordance with the terms of thereclamation plan.
6. The variance shall be granted upon such terms and conditions as thecommission deems appropriate to ensure compliance with the provisions ofsections 444.500 to 444.755. Upon failure to comply with the terms andconditions of any variance as specified by the commission, the variance may berevoked or modified by the commission after a hearing held upon not less thanthirty days' written notice to the operator, the owner of the surface, and anyother person who has filed with the director a written request for suchnotification. The hearing shall be held in accordance with section 444.690.
7. Nothing contained in this section shall apply to:
(1) The extraction of coal by a landowner for his own noncommercial usefrom land owned or leased by him;
(2) The extraction of coal as an incidental and noncommercial part offederal, state, or local government-financed highway or other construction;
(3) The extraction of coal incidental to the extraction of otherminerals where coal does not exceed sixteen and two-thirds percent of themineral tonnage removed for commercial use or sale; and
(4) Any strip mining operation where the operator removes no more thantwo hundred fifty tons of coal from any one location within twelve consecutivemonths.
(L. 1978 H.B. 934, A.L. 1988 H.B. 1836)