444.855. Performance standards to be met in surface mining operations--explosives--reclamation efforts.
Performance standards to be met in surface miningoperations--explosives--reclamation efforts.
444.855. 1. Any permit issued to conduct surface coalmining operations shall require that such surface coal miningoperations will meet all applicable performance standards of thislaw, and such other requirements as the commission shallpromulgate.
2. General performance standards shall be applicable to allsurface coal mining and reclamation operations and shall requirethe operation as a minimum to:
(1) Conduct surface coal mining operations so as to maximizethe utilization and conservation of the solid fuel resource beingrecovered so that reaffecting the land in the future throughsurface coal mining can be minimized;
(2) Restore the land affected to a condition capable ofsupporting the uses which it was capable of supporting prior toany mining, or higher or better uses of which there is reasonablelikelihood, so long as such use or uses do not present any actualor probable hazard to public health or safety or pose any actualor probable threat of water diminution or pollution, and thepermit applicants' declared proposed land use followingreclamation is not deemed to be impractical or unreasonable,inconsistent with applicable land use policies and plans, doesnot involve unreasonable delay in implementation, and is notviolative of federal, state, or local law;
(3) Except as provided in subsection 3, with respect to allsurface coal mining operations backfill, compact (where advisableto insure stability or to prevent leaching of toxic materials),and grade in order to restore the approximate original contour ofthe land with all highwalls, spoil piles, and depressionseliminated (unless small depressions are needed in order toretain moisture to assist revegetation or as otherwise authorizedpursuant to this law); provided, however, that in surface coalmining which is carried out at the same location over asubstantial period of time where the operation transects the coaldeposit, and the thickness of the coal deposits relative to thevolume of the overburden is large and where the operatordemonstrates that the overburden and other spoil and wastematerials at a particular point in the permit area or otherwiseavailable from the entire permit area is insufficient, giving dueconsideration to volumetric expansion, to restore the approximateoriginal contour, the operator, at a minimum, shall backfill,grade, and compact (where advisable) using all availableoverburden and other spoil and waste materials to attain thelowest practicable grade but not more than the angle of repose,to provide adequate drainage and to cover all acid-forming andother toxic materials, in order to achieve an ecologically soundland use compatible with the surrounding region; and providedfurther, that in surface coal mining where the volume ofoverburden is large relative to the thickness of the coal depositand where the operator demonstrates that due to volumetricexpansion the amount of overburden and other spoil and wastematerials removed in the course of the mining operation is morethan sufficient to restore the approximate original contour, theoperator shall after restoring the approximate contour, backfill,grade, and compact (where advisable) the excess overburden andother spoil and waste materials to attain the lowest grade butnot more than the angle of repose, and to cover all acid-formingand other toxic materials, in order to achieve an ecologicallysound land use compatible with the surrounding region and thatsuch overburden or spoil shall be shaped and graded in such a wayas to prevent slides, erosion, and water pollution and isrevegetated in accordance with the requirements of this law;
(4) Stabilize and protect all surface areas including spoilpiles affected by the surface coal mining and reclamationoperation to effectively control erosion and attendant air andwater pollution;
(5) Remove the topsoil from the land in a separate layer,replace it on the backfill area, or if not utilized immediately,segregate it in a separate pile from other spoil and when thetopsoil is not replaced on a backfill area within a time shortenough to avoid deterioration of the topsoil, maintain asuccessful cover by quick growing plant or other means thereafterso that the topsoil is preserved from wind and water erosion,remains free of any contamination by other acid or toxicmaterial, and is in a usable condition for sustaining vegetationwhen restored during reclamation, except if topsoil is ofinsufficient quantity or of poor quality for sustainingvegetation, or if other strata can be shown to be more suitablefor vegetation requirements, then the operator shall remove,segregate, and preserve in a like manner such other strata whichis best able to support vegetation;
(6) Restore the topsoil or the best available subsoil whichis best able to support vegetation;
(7) For all prime farmlands as identified in subdivision(16) of subsection 2 of section 444.820 to be mined andreclaimed, specifications for soil removal, storage, replacement,and reconstruction shall be established by the commission and theoperator shall, as a minimum, be required to:
(a) Segregate the A horizon of the natural soil, exceptwhere it can be shown that other available soil materials willcreate a final soil having a greater productive capacity; and ifnot utilized immediately, stockpile this material separately fromother spoil, and provide needed protection from wind and watererosion or contamination by other acid or toxic material;
(b) Segregate the B horizon of the natural soil, orunderlying C horizons or other strata, or a combination of suchhorizons or other strata that are shown to be both texturally andchemically suitable for plant growth and that can be shown to beequally or more favorable for plant growth than the B horizon, insufficient quantities to create in the regraded final soil a rootzone of comparable depth and quality to that which existed in thenatural soil; and if not utilized immediately, stockpile thismaterial separately from other spoil, and provide neededprotection from wind and water erosion or contamination by otheracid or toxic material;
(c) Replace and regrade the root zone material described in(b) above with proper compaction and uniform depth over theregraded spoil material; and
(d) Redistribute and grade in a uniform manner the surfacesoil horizon described in (a);
(8) Create, if authorized in the approved mining andreclamation plan and permit, permanent impoundments of water onmining sites as part of reclamation activities only when it isadequately demonstrated that:
(a) The size of the impoundment is adequate for its intendedpurposes;
(b) The impoundment dam construction will be so designed asto achieve necessary stability with an adequate margin of safetycompatible with that of structures constructed under Public Law83-566 (16 U.S.C. 1006);
(c) The quality of impounded water will be suitable on apermanent basis for its intended use and that discharges from theimpoundment will not degrade the water quality below waterquality standards established pursuant to applicable federal andstate law in the receiving stream;
(d) The level of water will be reasonably stable;
(e) Final grading will provide adequate safety and accessfor proposed water uses; and
(f) Such water impoundments will not result in thediminution of the quality or quantity of water utilized byadjacent or surrounding landowners for agricultural, industrial,recreational or domestic uses;
(9) Conducting any augering operation associated withsurface mining in a manner to maximize recoverability of mineralreserves remaining after the operation and reclamation arecomplete; and seal all auger holes with an impervious andnoncombustible material in order to prevent drainage except wherethe commission determines that the resulting impoundment of waterin such auger holes may create a hazard to the environment or thepublic health or safety; provided, that the commission mayprohibit augering if necessary to maximize the utilization,recoverability or conservation of the solid fuel resources or toprotect against adverse water quality impacts;
(10) Minimize the disturbances to the prevailing hydrologicbalance at the mine-site and in associated offsite areas and tothe quality and quantity of water in surface and ground watersystems both during and after surface coal mining operations andduring reclamation by:
(a) Avoiding acid or other toxic mine drainage by suchmeasures as, but not limited to:
(i) Preventing or removing water from contact with toxicproducing deposits;
(ii) Treating drainage to reduce toxic content whichadversely affects downstream water upon being released towatercourses;
(iii) Casing, sealing, or otherwise managing boreholes,shafts, and wells and keep acid or other toxic drainage fromentering ground and surface waters;
(b) (i) Conducting surface coal mining operations so as toprevent, to the extent possible using the best technologycurrently available, additional contributions of suspended solidsto streamflow, or runoff outside the permit area, but in no eventshall contributions be in excess of requirements set byapplicable state or federal law;
(ii) Constructing any siltation structures pursuant to (b)(i) above prior to commencement of surface coal miningoperations, such structures to be certified by a qualifiedregistered professional engineer to be constructed as designedand as approved in the reclamation plan;
(c) Cleaning out and removing temporary or large settlingponds or other siltation structures from drainways afterdisturbed areas are revegetated and stabilized; and depositingthe silt and debris at a site and in a manner approved by thecommission;
(d) Restoring recharge capacity of the mined area toapproximate premining conditions;
(e) Avoiding channel deepening or enlargement in operationsrequiring the discharge of water from mines;
(f) Such other actions as the commission may prescribe;
(11) With respect to surface disposal of mine wastes,tailings, coal processing wastes, and other wastes in areas otherthan the mine working or excavations, stabilize all waste pilesin designated areas through construction in compacted layersincluding the use of incombustible and impervious materials ifnecessary and assure the final contour of the waste pile will becompatible with natural surroundings and that the site can andwill be stabilized and revegetated according to the provisions ofthis law;
(12) Refrain from surface coal mining within five hundredfeet from active and abandoned underground mines in order toprevent breakthroughs and to protect health or safety of miners;provided, that the commission shall permit an operator to minenear, through or partially through an abandoned underground mineor closer to an active underground mine if the nature, timing,and sequencing of the approximate coincidence of specific surfacemine activities with specific underground mine activities arejointly approved by the regulatory authorities concerned withsurface mine regulation and the health and safety of undergroundminers, and such operations will result in improved resourcerecovery, abatement of water pollution, or elimination of hazardsto the health and safety of the public;
(13) Design, locate, construct, operate, maintain, enlarge,modify, and remove or abandon all existing and new coal minewaste piles consisting of mine wastes, tailings, coal processingwastes, or other liquid and solid wastes, and used eithertemporarily or permanently as dams or embankments. Thecommission shall promulgate standards and criteria regulating thedesign, location, construction, operation, maintenance,enlargement, modification, removal, and abandonment of new andexisting coal mine waste piles referred to herein and insubdivision (5) of subsection 2 of section 444.860. Suchstandards and criteria shall conform to the standards andcriteria used by the United States Chief of Engineers to insurethat flood control structures are safe and effectively performtheir intended function. In addition to engineering and othertechnical specifications, the standards and criteria must includeprovisions for: review and approval of plans and specificationsprior to construction, enlargement, modification, removal, orabandonment; performance of periodic inspections duringconstruction; performance of periodic safety inspections; andissuance of notices for required remedial or maintenance work;
(14) Insure that all debris, acid-forming materials, toxicmaterials, or materials constituting a fire hazard are treated orburied and compacted or otherwise disposed of in a mannerdesigned to prevent contamination of ground or surface waters andthat contingency plans are developed to prevent sustainedcombustion;
(15) Insure that explosives are used only in accordance withexisting state and federal law and the regulations promulgated bythe commission which shall include provisions to:
(a) Provide adequate advance written notice to localgovernments and residents who might be affected by the use ofsuch explosives by publication of the planned blasting schedulein a newspaper of general circulation in the locality and bymailing a copy of the proposed blasting schedule to everyresident living within one-half mile of the proposed blastingsite and by providing daily notice to resident/occupiers in suchareas prior to any blasting;
(b) Maintain for a period of at least three years and makeavailable for public inspection upon request a log detailing thelocation of the blasts, the pattern and depth of the drill holes,the amount of explosives used per hole, and the order and lengthof delay in the blasts;
(c) Limit the type of explosives and detonating equipment,the size, the timing and frequency of blasts based upon thephysical conditions of the site so as to prevent
(i) Injury to persons,
(ii) Damage to public and private property outside thepermit area,
(iii) Adverse impacts on any underground mine, and
(iv) Change in the course, channel, or availability ofground or surface water outside the permit area;
(d) Require that all blasting operations be conducted bytrained and competent persons as certified by the commission;
(e) Provide that upon the request of a resident or owner ofa man-made dwelling or structure within one-half mile of anyportion of the permitted area the applicant or permittee shallconduct a preblasting survey of such structures and submit thesurvey to the commission and a copy to the resident or ownermaking the request. The area of the survey shall be decided bythe commission and shall include such provisions as thecommission shall promulgate;
(16) Insure that all reclamation efforts proceed in anenvironmentally sound manner and as contemporaneously aspracticable with the surface coal mining operations; provided,however, that where the applicant proposes to combine surfacemining operations with underground mining operations to assuremaximum practical recovery of the mineral resources, thecommission may grant additional time for specific areas withinthe reclamation plan from the requirement that reclamationefforts proceed as contemporaneously as practicable to permitunderground mining operations prior to reclamation:
(a) If the commission finds in writing that:
(i) The applicant has presented, as part of the permitapplication, specific, feasible plans for the proposedunderground mining operations;
(ii) The proposed underground mining operations arenecessary or desirable to assure maximum practical recovery ofthe mineral resource and will avoid multiple disturbance of thesurface;
(iii) The applicant has satisfactorily demonstrated that theplan for the underground mining operations conforms torequirements for underground mining in the jurisdiction and thatpermits necessary for the underground mining operations have beenissued by the appropriate authority;
(iv) The areas proposed have been shown by the applicant tobe necessary for the implementing of the proposed undergroundmining operations;
(v) No substantial adverse environmental damage, eitheron-site or offsite, will result from the delay in completion ofreclamation as required by this law;
(vi) Provisions for the offsite storage of spoil will complywith subdivision (22) of subsection 2 of section 444.855;
(b) If the United States Secretary of the Interior haspromulgated specific regulations to govern the granting of suchadditional time and the commission has imposed such additionalrequirements as it deems necessary;
(c) If additional time granted under the provisions of thissubsection are to be reviewed by the commission not more thanthree years from the date of issuance of the permit; and
(d) If liability under the bond filed by the applicant withthe commission pursuant to section 444.830 shall be for theduration of the underground mining operations and until therequirements of subsection 2 of section 444.855 and section444.875 have been fully complied with;
(17) Insure that the construction, maintenance, andpostmining conditions of access roads into and across the site ofoperations will control or prevent erosion and siltation,pollution of water, damage to fish or wildlife or their habitat,or public or private property;
(18) Refrain from the construction of roads or other accessways up a stream bed or drainage channel or in such proximity tosuch channel so as to seriously alter the normal flow of water;
(19) Establish on the regraded areas, and all other landsaffected, a diverse, effective, and permanent vegetative cover ofthe same seasonal variety native to the area of land to beaffected and capable of self-regeneration and plant succession atleast equal in extent of cover to the natural vegetation of thearea; except, that introduced species may be used in therevegetation process where desirable and necessary to achieve theapproved postmining land use plan;
(20) Assume the responsibility for successful revegetation,as required by subdivision (19) above, for a period of five fullyears after the last year of augmented seeding, fertilizing,irrigation, or other work in order to assure compliance withsubdivision (19) above, except in those areas where the annualaverage precipitation is twenty-six inches or less, then theoperator's assumption of responsibility and liability will extendfor a period of ten full years after the last year of augmentedseeding, fertilizing, irrigation, or other work; provided, thatwhen the commission approves a long-term intensive agriculturalpostmining land use, the applicable five-or ten-year period ofresponsibility for revegetation shall commence at the date ofinitial planting for such long-term intensive agriculturalpostmining land use; provided further, that when the commissionissues a written finding approving a long-term, intensive,agricultural postmining land use as part of the mining andreclamation plan, the commission may grant exception to theprovisions of subdivision (19) above;
(21) Protect offsite areas from slides or damage occurringduring the surface coal mining and reclamation operations, andnot deposit spoil material or locate any part of the operationsor waste accumulations outside the permit area;
(22) Place all excess spoil material resulting from coalsurface mining and reclamation activities in such a manner that:
(a) Spoil is transported and placed in a controlled mannerin position for concurrent compaction and in such a way to assuremass stability and to prevent mass movement;
(b) The areas of disposal are within the bonded permitareas, and all organic matter shall be removed immediately priorto spoil placement;
(c) Appropriate surface and internal drainage systems anddiversion ditches are used so as to prevent spoil erosion andmovement;
(d) The disposal area does not contain springs, naturalwatercourses or wet weather seeps unless lateral drains areconstructed from the wet areas to the main underdrains in such amanner that filtration of the water into the spoil pile will beprevented;
(e) If placed on a slope, the spoil is placed upon the mostmoderate slope among those upon which, in the judgment of thecommission, the spoil could be placed in compliance with all therequirements of this law and shall be placed, where possible,upon, or above, a natural terrace, bench, or berm, if suchplacement provides additional stability and prevents massmovement;
(f) Where the toe of the spoil rests on a downslope, a rocktoe buttress, of sufficient size to prevent mass movement, isconstructed;
(g) The final configuration is compatible with the naturaldrainage pattern and surroundings and suitable for intended uses;
(h) Design of the spoil disposal area is certified by aqualified registered professional engineer in conformance withprofessional standards; and
(i) All other provisions of this law are met;
(23) Meet such other criteria as are necessary to achievereclamation in accordance with the purposes of this law, takinginto consideration the physical, climatological, and othercharacteristics of the site;
(24) To the extent possible using the best technologycurrently available, minimize disturbances and adverse impacts ofthe operation on fish, wildlife, and related environmentalvalues, and achieve enhancement of such resources wherepracticable; and
(25) Provide for an undisturbed natural barrier beginning atthe elevation of the lowest coal seam to be mined and extendingfrom the outslope for such distance as the commission shalldetermine shall be retained in place as a barrier to slides anderosion.
3. (1) Where an applicant meets the requirements ofsubdivisions (2) and (3) of this subsection a permit withoutregard to the requirement to restore to approximate originalcontour set forth in subdivision (3) of subsection 2 orsubdivision (2) of subsection 4 and subdivision (3) of thissection may be granted for the surface mining of coal where themining operation will remove an entire coal seam or seams runningthrough the upper fraction of a mountain, ridge, or hill (exceptas provided in paragraph (a) of subdivision (3) hereof) byremoving all of the overburden and creating a level plateau or agently rolling contour with no highwalls remaining, and capableof supporting postmining uses in accord with the requirements ofthis subsection.
(2) In cases where an industrial, commercial, agricultural,residential or public facility (including recreationalfacilities) use is proposed for the postmining use of theaffected land, a permit may be granted for a surface miningoperation of the nature described in subdivision (1) where:
(a) After consultation with the appropriate land useplanning agencies, if any, the proposed postmining land use isdeemed to constitute an equal or better economic or public use ofthe affected land, as compared with premining use;
(b) The applicant presents specific plans for the proposedpostmining land use and appropriate assurances that such use willbe:
(i) Compatible with adjacent land uses;
(ii) Obtainable according to data regarding expected needand market;
(iii) Assured of investment in necessary public facilities;
(iv) Supported by commitments from public agencies whereappropriate;
(v) Practicable with respect to private financial capabilityfor completion of the proposed use;
(vi) Planned pursuant to a schedule attached to thereclamation plan so as to integrate the mining operation andreclamation with the postmining land use; and
(vii) Designed by a registered professional engineer inconformance with professional standards established to assure thestability, drainage, and configuration necessary for the intendeduse of the site;
(c) The proposed use will be consistent with adjacent landuses, and existing state and local land use plans and programs;
(d) The commission provides the governing body of the countyin which the land is located and any state or federal agencywhich the commission, in its discretion, determines to have aninterest in the proposed use, an opportunity of not more thansixty days to review and comment on the proposed use;
(e) All other requirements of this law will be met.
(3) In granting any permit pursuant to this subsection thecommission shall require that:
(a) The toe of the lowest coal seam and the overburdenassociated with it are retained in place as a barrier to slidesand erosion;
(b) The reclaimed area is stable;
(c) The resulting plateau or rolling contour drains inwardfrom the outslopes except at specified points;
(d) No damage will be done to natural watercourses;
(e) Spoil will be placed on the mountaintop bench as isnecessary to achieve the planned postmining land use; provided,that all excess spoil material not retained on the mountaintopshall be placed in accordance with the provisions of subdivision(22) of subsection 2 of this section;
(f) Insure stability of the spoil retained on themountaintop and meet the other requirements of this law.
(4) The commission shall promulgate specific regulations togovern the granting of permits in accord with the provisions ofthis subsection.
(5) All permits granted under the provisions of thissubsection shall be reviewed not more than three years from thedate of issuance of the permit, unless the applicantaffirmatively demonstrates that the proposed development isproceeding in accordance with the terms of the approved scheduleand reclamation plan.
4. The following performance standards shall be applicableto steep-slope surface coal mining and shall be in addition tothose general performance standards required by this section;provided, however, that the provisions of this subsection 4 shallnot apply to those situations in which an operator is mining onflat or gently rolling terrain, on which an occasional steepslope is encountered through which the mining operation is toproceed, leaving a plain or predominantly flat area or where anoperator is in compliance with provisions of subsection 3 hereof:
(1) Insure that when performing surface coal mining on steepslopes, no debris, abandoned or disabled equipment, spoilmaterial, or waste mineral matter is placed on the downslopebelow the bench or mining cut; provided, that spoil material inexcess of that required for the reconstruction of the approximateoriginal contour under the provisions of subdivision (3) ofsubsection 2 of section 444.855 or subdivision (2) of subsection4 of section 444.855 shall be permanently stored pursuant tosubdivision (22) of subsection 2 of section 444.855;
(2) Complete backfilling with spoil material shall berequired to cover completely the highwall and return the site tothe approximate original contour, which material will maintainstability following mining and reclamation;
(3) The operator may not disturb land above the top of thehighwall unless the commission finds that such disturbance willfacilitate compliance with the environmental protection standardsof this section; provided, however, that the land disturbed abovethe highwall shall be limited to that amount necessary tofacilitate said compliance;
(4) For the purposes of this subsection 4, the term "steepslope" is any slope above twenty degrees or such lesser slope asmay be defined by the commission after consideration of soil,climate, and other characteristics of the area.
5. (1) Where an applicant meets the requirements andpurposes of this subsection a permit without regard to therequirement to restore to approximate original contour may begranted for the surface mining of coal where the owner of thesurface knowingly requests in writing, as a part of the permitapplication, that such a permit be granted so as to render theland, after reclamation, suitable for an industrial, commercial,residential, or public use (including recreational facilities) inaccord with this subsection; provided, that the watershed controlof the area is improved; and further provided, completebackfilling with spoil material shall be required to covercompletely the highwall which material will maintain stabilityfollowing mining and reclamation.
(2) Such permit may be granted only if:
(a) After consultation with the appropriate land useplanning agencies, if any, the potential use of the affected landis deemed to constitute an equal or better economic or publicuse;
(b) Is designed and certified by a qualified registeredprofessional engineer in conformance with professional standardsestablished to assure the stability, drainage and configurationnecessary for the intended use of the site; and
(c) After approval of the director of the department ofnatural resources, the watershed of the affected land is deemedto be improved.
(3) In granting a permit pursuant to this subsection thecommission shall require that only such amount of spoil will beplaced off the mine bench as is necessary to achieve the plannedpostmining land use, insure stability of the spoil retained onthe bench, meet all other requirements of this law, and all spoilplacement off the mine bench must comply with subdivision (22) ofsubsection 2 of section 444.855.
(4) The commission shall promulgate specific regulations togovern the granting of permits in accord with the provisions ofthis subsection.
(5) All permits granted under the provisions of thissubsection shall be reviewed not more than three years from thedate of issuance of the permit, unless the permitteeaffirmatively demonstrates that the proposed development isproceeding in accordance with the terms of the reclamation plan.
(L. 1979 H.B. 459)