Effective 28 Aug 1988

444.535. Rules and regulations, commission shall make — variances, procedures, conditions — section not to apply, when. — 1. In addition to the other powers and duties prescribed by law, the commission shall adopt and promulgate rules and regulations adequate to require the operator, with respect to strip mining of coal, to:

(1) Restore, within a reasonable time, any area which has been mined upon prime farmland to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management, and in connection therewith:

(a) Segregate the A horizon of the natural soil, except where it can be shown that other available soil materials will create a final soil having a greater productive capacity; and if not utilized immediately, stockpile this material separately from other spoil, and provide needed protection from wind and water erosion or contamination by other acid or toxic materials;

(b) Segregate the B horizon of the natural soil, or underlying C horizons or other strata, or a combination of such horizons or other strata that are shown to be both texturally and chemically suitable for plant growth and that can be shown to be equally or more favorable for plant growth than the B horizon, in sufficient quantities to create in the regraded final soil a root zone of comparable depth and quality to that which existed in the natural soil; and if not utilized immediately, stockpile this material separately from other spoil, and provide needed protection from wind and water erosion or contamination 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 the regraded spoil material; and

(d) Redistribute and grade in a uniform manner the surface soil horizon described in paragraph (a) of this subdivision;

(e) Nothing in this subdivision shall apply to any permit issued prior to August 3, 1977, or to any revisions or renewals thereof, or to any existing strip mining operations for which a permit was issued prior to August 3, 1977;

(f) For the purposes of this subdivision, "prime farmland" shall mean that land which historically has been used for intensive agricultural purposes, and which meets the technical criteria established by the United States Secretary of Agriculture on the basis of such factors as moisture availability, temperature regime, chemical balance, permeability, surface layer composition, susceptibility to flooding, and erosion characteristics, as first published at 42 Federal Register 42359, August 23, 1977;

(2) Restore the affected land to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses of which there is reasonable likelihood, so long as such use or uses do not present any actual or probable hazard to public health or pose any actual or probable threat of water diminution or pollution, and the permit applicant's declared proposed land use following reclamation is not deemed to be impractical or unreasonable, inconsistent with applicable land use policies and plans, involves unreasonable delay in implementation, or is violative of federal, state or local law;

(3) Backfill, compact, where advisable to ensure stability or to prevent leaching of toxic materials, and grade in order to restore the approximate original contour of the land with all highwalls, spoil piles and depressions eliminated, unless small depressions are needed in order to retain moisture to assist revegetation; provided, however, that in strip mining which is carried out at the same location over a substantial period of time where the operation transects the coal deposit, and the thickness of the coal deposit relative to the volume of the overburden is large and where the operator demonstrates that the overburden and other spoil and waste materials at a particular point in the permit area or otherwise available from the entire permit area are insufficient, giving due consideration to volumetric expansion, to restore the approximate original contour, the operator, at a minimum, shall backfill, grade and compact, where advisable, using all available overburden and other spoil and waste materials to attain the lowest practicable grade but not more than the angle of repose, to provide adequate drainage and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with the surrounding region; and provided, further, that in strip mining where the volume of overburden is large relative to the thickness of the coal deposit and where the operator demonstrates that due to volumetric expansion the amount of overburden and other spoil and waste materials removed in the course of the mining operation is more than sufficient to restore the approximate original contour, the operator shall after restoring the approximate contour, backfill, grade and compact, where advisable, the excess overburden and other spoil and waste materials to attain the lowest grade but not more than the angle of repose, and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with the surrounding region, and that such overburden and spoil shall be shaped and graded in such a way as to prevent slides, erosion, and water pollution and is revegetated in accordance with the requirements of sections 444.500 to 444.755;

(4) 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 the topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of the topsoil, maintain a successful cover by quick growing plants or other means thereafter so that the topsoil is preserved from wind and water erosion, remains free of any contamination by any other acid or toxic material, and is in a usable condition for sustaining vegetation when restored during reclamation, except if topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other strata can be shown to be more suitable for vegetation requirements, then the operator shall remove, segregate and preserve in a like manner such other strata which are best able to support vegetation;

(5) Minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated off-site areas and to the quality and quantity of water in surface and ground water systems both during and after strip mining operations and during reclamation by:

(a) Avoiding acid or other toxic mine drainage by such measures as, but not limited to:

a. Preventing or removing water from contact with toxin producing deposits;

b. Treating drainage to reduce toxic content which adversely affects downstream water upon being released to watercourses; casing, sealing or otherwise managing boreholes, shafts, and wells and keep acid or other toxic drainage from entering ground and surface waters;

(b) Conducting strip mining operations so as to prevent, to the extent possible using the best technology available, additional contributions of suspended solids to stream flow, or runoff outside the permit area, but in no event shall contributions be in excess of requirements set by applicable state or federal laws;

(c) Constructing any siltation structures pursuant to paragraph (b) of this subdivision prior to commencement of strip mining operations, such structures to be certified by a registered professional engineer to be constructed as designed and approved in the reclamation plan;

(d) Cleaning out and removing temporary or large settling ponds or other siltation structures from drainways after disturbed areas are revegetated and stabilized, and depositing the silt and debris at a site and in a manner approved by the commission;

(e) Restoring recharge capacity of the mined area to approximate premining conditions;

(f) Avoiding channel deepening or enlargement in operations requiring the discharge of water from mines;

(g) Such other actions as the commission may prescribe;

(6) Design, locate, construct, operate, maintain, enlarge, modify and remove or abandon, in accordance with the standards and criteria developed by the United States Secretary of the Interior pursuant to section 515(f) of Public Law 95-87, all existing and new coal mine waste piles consisting of mined wastes, tailings, coal processing wastes, or other liquid and solid wastes, and used either temporarily or permanently as dams or embankments;

(7) Ensure that explosives are used only in accordance with existing state and federal law and the regulations promulgated by the commission, which shall include provisions to:

(a) Require adequate advance written notice by the operator to local governments and residents who might be affected by the use of such explosives by publication of the planned blasting schedule in a newspaper of general circulation in the locality and by mailing a copy of the proposed blasting schedule to every resident living within one-half mile of the proposed blasting site and by providing daily notice to residents or occupiers in such area prior to any blasting;

(b) Require the operator to maintain for a period of at least three years and make available for public inspection upon request a log detailing the location of the blast, the pattern and depth of the drill holes, the amount of explosives used per hole, and the order and length of delay in the blast;

(c) Limit the kind of explosives and detonating equipment, the size, the timing and frequency of blasts based upon the physical conditions at the site so as to prevent injury to persons, damage to public and private property outside the permit area, adverse impacts on any underground mine, and change in the course, channel or availability of ground or surface water outside the permit area;

(d) Require that all blasting operations be conducted by trained and competent persons as certified by the commission;

(e) Provide that upon the request of a resident or owner of a man-made dwelling or structure within one-half mile of any portion of the permitted area the operator shall conduct a preblasting survey of such structures and submit the survey to the commission and a copy to the resident or owner making the request. The area of the survey shall be decided by the commission and shall include such provisions as the United States Secretary of Interior shall promulgate;

(8) Establish on the regraded areas and all other lands affected, a diverse, effective and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area; except that introduced species may be used in the revegetation process where desirable and necessary to achieve the approved postmining land use plan; provided, however, that when the commission issues a written finding approving a long-term, intensive, agricultural postmining land use as part of the mining and reclamation plan, the commission may grant an exception to the requirement of permanent vegetative cover.

2. With respect to steep-slope strip mining, commission regulations shall provide, in addition to those general reclamation standards required by subsection 1 of this section, the following:

(1) Ensure that no debris, abandoned or disabled equipment, spoil material, or waste mineral matter be placed on the downslope below the bench or mining cut; provided, that spoil material in excess of that required for the reconstruction of the approximate original contour under the provisions of subdivision (3) of subsection 1 of this section or subdivision (2) of this subsection below shall be permanently stored in accordance with the following standards:

(a) Spoil is transported and placed in a controlled manner in position for concurrent compaction and in such a way to assure mass stability and to prevent mass movement;

(b) The areas of disposal are within the bonded permit area and all organic matter shall be removed immediately prior to spoil placement;

(c) Appropriate surface and internal drainage systems and diversion ditches are used so as to prevent spoil erosion and movement;

(d) The disposal area does not contain springs, natural watercourses or wet weather seeps unless lateral drains are constructed from the wet areas to the main underdrains in such a manner that filtration of the water into the spoil pile will be prevented;

(e) If placed on a slope, the spoil is placed upon the most moderate slope among those upon which, in the judgment of the commission, the spoil could be placed in compliance with all the requirements of sections 444.500 to 444.755, and shall be placed, where possible, upon or above a natural terrace, bench, or berm, if such placement provides additional stability and prevents mass movement;

(f) Where the toe of the spoil rests on a downslope, a rock toe buttress, of sufficient size to prevent mass movement, is constructed;

(g) The final configuration is compatible with the natural drainage patterns and surroundings and suitable for intended uses;

(h) Design of the spoil disposal area is certified by a registered professional 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 cover completely the highwall and return the site to the approximate original contour, which material will maintain stability following mining and reclamation;

(3) The operator may not disturb land above the top of the highwall unless the commission finds that such disturbance will facilitate compliance with the reclamation standards of this section; provided, however, that the land disturbed above the highwall shall be limited to the amount necessary to facilitate the compliance;

(4) For the purposes of this subsection, the term "steep slope" is any slope greater than twenty degrees or such lesser slope as may be defined by the commission after consideration of soil, climate, and other characteristics of the state or a region of the state;

(5) The provisions of this subsection shall not apply to those situations in which an operator is mining on flat or gently rolling terrain, on which an occasional steep slope is encountered through which the mining operation is to proceed, leaving a plain or predominantly flat area.

3. The commission may grant a variance from the requirement to restore to approximate original contour set forth in subdivision (2) of subsection 2 of 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 to render the land, after reclamation, suitable for an industrial, commercial, residential, or public use, including recreational facilities, upon the following conditions:

(1) After consultation with the appropriate land use planning agencies, if any, the potential use of the affected land is deemed to constitute an equal or better economic or public use;

(2) The reclamation plan, included with the variance application, is designed and certified by a registered professional engineer in conformance with 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 water commission of the department of natural resources, the watershed of the affected land is deemed to be improved;

(4) Only such amount of spoil is placed off the mine bench as is necessary to achieve the planned postmining land use, ensure stability of the spoil retained on the bench, meet all other requirements of sections 444.500 to 444.755, and all spoil placement off the mine bench must comply with paragraphs (a) through (i) of subdivision (1) of subsection 2 of this section;

(5) Watershed control of the area is improved, and complete backfilling with spoil materials shall be required to cover completely the highwall, which material will maintain stability following mining and reclamation.

4. The person seeking a variance under the provisions of subsection 3 of this section shall do so by filing a petition for variance with the director. The director shall investigate the petition and make a recommendation to the commission as to the disposition thereof. Upon receiving the recommendation of 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 of the director's recommendation, as provided in section 444.690. If the recommendation of the director is for the granting of a variance, the commission may do so without hearing, except that upon the petition of any person who is or would be aggrieved by the granting of a variance, before or within thirty days after the commission's action, a hearing shall be held as provided in section 444.690. In any hearing under this section the burden of proof shall be on the person petitioning for a variance.

5. Any variance granted pursuant to subsection 3 of this section shall run concurrently with the permit year. A variance may be extended from year to year by affirmative action of the commission; provided, however, that no variance may be extended unless the operator affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the reclamation plan.

6. The variance shall be granted upon such terms and conditions as the commission deems appropriate to ensure compliance with the provisions of sections 444.500 to 444.755. Upon failure to comply with the terms and conditions of any variance as specified by the commission, the variance may be revoked or modified by the commission after a hearing held upon not less than thirty days' written notice to the operator, the owner of the surface, and any other person who has filed with the director a written request for such notification. 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 use from land owned or leased by him;

(2) The extraction of coal as an incidental and noncommercial part of federal, state, or local government-financed highway or other construction;

(3) The extraction of coal incidental to the extraction of other minerals where coal does not exceed sixteen and two-thirds percent of the mineral tonnage removed for commercial use or sale; and

(4) Any strip mining operation where the operator removes no more than two hundred fifty tons of coal from any one location within twelve consecutive months.

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(L. 1978 H.B. 934, A.L. 1988 H.B. 1836)