Chapter 38-14.1 Surface Mining and Reclamation Operations

Copy with citation

Copy as parenthetical citation

SURFACE MINING AND RECLAMATION OPERATIONS CHAPTER 38-14.1 2

38-14.1-01. Declaration of findings and intent

The legislative assembly finds and declares that: 1. Many surface coal mining operations may result in disturbances of surface areas that adversely affect the public welfare by diminishing the utility of land for commercial, industrial, residential, cultural, educational, scientific, recreational, agricultural, and forestry purposes, by causing erosion, by polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property, by degrading the quality of life in local communities, and by counteracting governmental programs and efforts to conserve soil, water, other natural resources, and cultural resources

The expansion of coal mining to meet the nation's energy needs makes even more urgent the establishment of appropriate standards to minimize damage to the environment and to productivity of the soil and to protect the health and safety of the public

Surface mining and reclamation technology as now developed requires effective and reasonable regulation of surface coal mining operations in accordance with the requirements of this chapter to minimize so far as practicable the adverse social, economic, and environmental effects of such mining operations

Surface coal mining operations contribute to the economic well-being, security, and general welfare of the state and should be conducted in an environmentally sound manner

Surface coal mining and reclamation operations should be so conducted as to aid in maintaining and improving the tax base, to provide for the conservation, development, management, and appropriate use of all the natural resources of affected areas for compatible multiple purposes, and to ensure the restoration of affected lands designated for agricultural purposes to the level of productivity equal to or greater than that which existed in the permit area prior to mining

6. Warrantless inspections are necessary in this state to ensure effective enforcement of 3

surface coal mining and reclamation operation requirements

38-14.1-02. Definitions

Wherever used or referred to in this chapter, unless a different meaning clearly appears 1

"Alluvial valley floors" means the unconsolidated stream-laid deposits holding streams where water availability is sufficient for subirrigation or flood irrigation agricultural activities but does not include upland areas which are generally overlain by a thin veneer of colluvial deposits composed chiefly of sediment from sheet erosion, deposits by unconcentrated runoff or slope wash, together with talus, other mass movement accumulation, and windblown deposits

"Approximate original contour" means that surface configuration achieved by backfilling and grading an area affected by surface coal mining operations so that the reclaimed area closely resembles the general surface configuration of the land prior to being affected by surface coal mining operations and blends into and complements the surrounding undisturbed land

"Coal" means a dark-colored compact and earthy organic rock with less than forty percent inorganic components, based on dry material, formed by the accumulation and decomposition of plant material. The term includes consolidated lignitic coal, in both oxidized and nonoxidized forms, having less than eight thousand three hundred British thermal units per pound [453.59 grams], moist and mineral matter free, whether or not the material is enriched in radioactive materials. The term does not include commercial leonardite

from the context: Page No. 1 4

"Commercial leonardite" means a dark-colored, soft, earthy organic rock formed from the oxidation of lignite coal, and is produced from a mine that has as its only function for supply for purposes other than gasification or combustion to generate electricity

"Commission" means the public service commission, or such other department, bureau, or commission as may lawfully succeed to the powers and duties of that commission. The commission is the state regulatory authority for all purposes relating to the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.]

"Extended mining plan" means a written statement setting forth the matters specified in section 38-14.1-15 and covering the estimated life of the surface coal mining operation

"Final cut" means the last pit created in a surface mining pit sequence

"Highwall" and "endwall" mean those sides of the pit adjacent to unmined land

"Imminent danger to the health and safety of the public" means the existence of any condition or practice, or any violation of a permit or other requirement of this chapter in a surface coal mining and reclamation operation, which condition, practice, or violation could reasonably be expected to cause substantial physical harm to persons outside the permit area before such condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not expose the person's self to the danger during the time necessary for abatement

"Operator" means any individual, person, partnership, firm, association, society, joint stock company, company, cooperative, corporation, limited liability company, or other business organization, or any department, agency, or instrumentality of the state, local, or federal government, or any governmental subdivision thereof including any publicly owned utility or publicly owned corporation of the state, local, or federal government, engaged in or controlling a surface coal mining operation. Operator does not include those who remove or intend to remove two hundred fifty tons [226.80 metric tons] or less of coal or commercial leonardite from the earth by coal or commercial leonardite mining within twelve consecutive calendar months in any one location or who remove any coal or commercial leonardite pursuant to reclamation operations under chapter 38-14.2

"Other minerals" means clay, stone, sand, gravel, metalliferous and nonmetalliferous ores, and any other solid material or substances of commercial value occurring within five hundred feet [152.4 meters] or less of the land surface and which are excavated in solid form from natural deposits on or in the earth, exclusive of coal or commercial leonardite and those minerals which occur naturally in liquid or gaseous form

"Other suitable strata" means those portions of the overburden determined by the commission to be suitable for meeting the requirements of subsections 2 and 17 of section 38-14.1-24 and based on data submitted by the permit applicant

"Overburden" means all of the earth and other materials, with the exception of suitable plant growth material, which lie above natural deposits of coal or commercial leonardite and also means such earth and other materials, with the exception of suitable plant growth material, disturbed from their natural state by surface coal or commercial leonardite mining operations

"Performance bond" means a surety bond, collateral bond, self-bond, deposit, a bond issued under the state surface mining and reclamation bond fund, any alternative form of security approved by the commission, or combination thereof, by which a permittee assures faithful performance of all requirements of this chapter

"Permit" means a permit to conduct surface coal mining and reclamation operations issued by the commission

"Permit applicant" means a person or operator applying for a permit

"Permit area" means the area of land approved by the commission for surface coal mining operations which shall be readily identifiable by appropriate markers on the site

Page No. 2 18

"Permit renewal" means the extension of the permit term for areas within the boundaries of the initial or existing permit, upon the expiration of the initial or existing permit term

"Permit revision" means the modification of permit provisions during the term of the permit and includes changes in the mining and reclamation plans, incidental boundary extensions, and the transfer, assignment, or sale of rights granted under the permit

"Permit term" means a period of time beginning with the date upon which a permit is given for surface coal mining and reclamation operations under the provisions of this chapter, and ending with the expiration of the next succeeding five years plus any renewal of the permit granted under this chapter

"Permittee" means a person or operator holding a permit

"Person" means an individual, partnership, firm, association, society, joint stock company, company, cooperative, corporation, limited liability company, or other business organization

"Pit" means a tract of land, from which overburden, coal, or commercial leonardite, or any combination of overburden, coal, or commercial leonardite has been or is being removed for the purpose of surface coal mining operations

"Prime farmland" means lands as prescribed by commission regulation that have the soil characteristics and moisture supply needed to produce sustained high yields of adapted crops economically when treated and managed, including management of water, according to modern farming methods. Furthermore, such lands historically have been used for intensive agricultural purposes and are large enough in size to constitute a viable economic unit

"Prime soils" means those soils that have the required soil characteristics (including slope and moisture supply) needed to produce sustained high yields of adapted crops, as determined by the state conservationist of the United States department of agriculture soil conservation service

"Reclaimed" or "reclaim" means conditioning areas affected by surface coal mining operations to make them capable of supporting the uses which they were capable of supporting prior to any mining, or higher or better uses, pursuant to subsection 2 of section 38-14.1-24

"Reclamation plan" means a plan submitted by an applicant for a permit which sets forth a plan for reclamation of the proposed surface coal mining operations pursuant to subsection 2 of section 38-14.1-14

"Refuse" means all waste material directly connected with the production of coal or commercial leonardite mined by surface coal mining operations

"Soil amendments" means those materials added by the operator to the replaced overburden or suitable plant growth material, or both, to improve the physical or chemical condition of the soil in its relation to plant growth capability

"Soil classifier" means a professional soil classifier as defined in subsection 4 of section 43-36-01

"Soil survey" means the identification and location of all suitable plant growth material within the proposed permit area and an accompanying report that describes, classifies, and interprets for use such materials

"State program" means the program established by the state of North Dakota in accordance with the requirements of section 503 of the federal Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 470; 30 U.S.C. 1253] to regulate surface coal mining and reclamation operations on lands within the state of North Dakota

"Suitable plant growth material" means that soil material (normally the A, B, and portions of the C horizons) located within the proposed permit area which, based upon a soil survey, is found by the commission to be the most acceptable as a medium for plant growth when respread on the surface of regraded areas

"Surface coal mining and reclamation operations" means surface coal mining operations and all activities necessary and incidental to the reclamation of such operations after July 1, 1979

Page No. 3 35

"Surface coal mining operations" means: a

Activities affecting the surface of lands in connection with a surface coal or commercial leonardite mine. Such activities include extraction of coal or commercial leonardite from coal or commercial leonardite refuse piles, excavation for the purpose of obtaining coal or commercial leonardite, including such common methods as contour, strip, auger, box cut, open pit, and area mining, the uses of explosives and blasting, and in situ distillation or retorting, leaching or other chemical or physical processing, and the cleaning, concentrating, or other processing or preparation, and loading of coal or commercial leonardite at or near the minesite, except that such activities do not include coal or commercial leonardite exploration subject to chapter 38-12.1, or the extraction of coal or commercial leonardite incidental to reclamation operations under chapter 38-14.2; and The areas upon which such activities occur or where such activities disturb the natural land surface. Such areas shall also include any adjacent land the use of which is incidental to any such activities, all adjacent lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of such activities and for haulage, and excavations, workings, impoundments, dams, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or materials on the surface, resulting from or incident to such activities

"Unwarranted failure to comply" means the failure of a permittee to prevent the occurrence of any violation of the permittee's permit or any requirement of this chapter due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate any violation of such permit or this chapter due to indifference, lack of diligence, or lack of reasonable care

38-14.1-03. Powers and duties of the commission

The commission shall have and may exercise the following powers and duties: 1

To establish a program to protect society and the environment from the adverse effects of surface coal mining operations

To assure that surface coal mining operations are so conducted as to protect the environment

To assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface coal mining operations

To assure that surface coal mining operations are not conducted where reclamation as required by this chapter is not feasible

To assure that appropriate procedures are provided for public participation in the development, revision, and enforcement of regulations, standards, reclamation plans, or programs established by the commission under this chapter

To encourage the voluntary cooperation of persons or affected groups to achieve the purposes of this chapter

To encourage and support training, research, experiments, and demonstrations, to utilize the expertise of other state agencies, and to collect and disseminate information relating to surface mining and reclamation of lands and waters affected by surface mining

To examine and act upon all plans and specifications submitted by the permit applicant for the method of operation, backfilling, grading, and for the reclamation of the area of land affected by the permit applicant's operation

To attach conditions to all permits and permit revisions as necessary to carry out the provisions of this chapter

To issue permits for surface coal mining operations in accordance with the requirements of this chapter and the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.]

Page No. 4 11

To promulgate such regulations as may be necessary to carry out the purposes and provisions of this chapter and the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.]

To adopt rules consistent with state law, in consultation with the state geologist, department of environmental quality, and the state engineer for the protection of the quality and quantity of waters affected by surface coal mining operations

To promulgate regulations requiring the training, examination, and certification of persons engaged in or directly responsible for blasting or use of explosives in surface coal mining and reclamation operations

To exercise general supervision and administration and enforcement of this chapter and all regulations and orders promulgated thereunder and all incidental powers necessary to carry out the purposes of this chapter, including the utilization of the powers of other state agencies by delegation to those other state agencies, by cooperative agreement or regulation, certain responsibilities to avoid duplication of effort, to promote the efficient use of personnel, and to assure effective reclamation of surface mined lands in the state of North Dakota

To make investigations and inspections which may be deemed necessary to ensure compliance with any provision of this chapter. The commission or its authorized representatives, upon presentation of appropriate credentials, shall have the right of entry without a warrant for the purposes of such investigations or inspections

To issue such orders as may be necessary to effectuate the purposes of this chapter and enforce the same by all appropriate administrative and judicial procedures

To hold any hearings and informal conferences necessary for the proper administration of this chapter

To reclaim, in keeping with this chapter, any land with respect to which a performance bond has been forfeited

To exercise those additional powers and duties relative to the designation of lands unsuitable for surface coal mining operations granted in section 38-14.1-04

To take all action necessary and appropriate including the promulgation of regulations for all provisions of this chapter to secure for this state the benefits of and to implement the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.] and similar federal acts

To advise, consult, and cooperate with other agencies of the state, other states and interstate agencies, and with affected groups, political subdivisions, and industries in furtherance of the purposes of this chapter

To accept and administer loans and grants from the federal government and from other sources, public or private, for carrying out any functions pursuant to this chapter, which loans and grants may not be expended for other than the purposes for which provided

To provide by regulation standards and procedures for specific variances to any permittee so long as the permittee affirmatively demonstrates that the requested variance provides equal or greater protection to the environment and to public health and safety and will achieve reclamation consistent with the purposes of this chapter

To provide by regulation for the conservation and utilization of other minerals found within the permit area during surface coal mining and reclamation operations in consultation with the state geologist and to approve plans for the use of such other minerals outside the permit area so long as the permittee affirmatively demonstrates that such removal is lawful and will provide equal or greater protection to the environment and to public health and safety and will achieve reclamation consistent with the purposes of this chapter

To exercise the full reach of the state constitutional powers wherever necessary to ensure the protection of the public interest through effective control of surface coal mining operations

To establish a performance bonding system and an alternative to the performance bonding system which achieve the objectives and purposes of this chapter

Page No. 5 38-14.1-04. Powers and duties of the commission relative to designation of lands unsuitable for surface coal mining operations

The commission has the following powers and duties: 1

To be responsible for surface coal mining lands review

To develop a database and an inventory system which will permit proper evaluation of the capacity of different land areas of the state to support and permit reclamation of surface coal mining operations

To develop a method or methods for implementing land use planning decisions concerning surface coal mining operations

To develop procedures ensuring proper notice, opportunities for public participation, including a public hearing prior to making a designation or redesignation, pursuant to this chapter

To develop procedures whereby determinations of the unsuitability of land for surface coal mining, as provided for in this chapter, are integrated as closely as possible with land use planning and regulation processes at the state and local levels

To develop a planning process in order to designate which, if any, land areas are unsuitable for all or certain types of surface coal mining operations, providing said decisions are based upon competent and scientifically sound data and information and accomplished pursuant to the procedures of sections 38-14.1-05 and 38-14.1-06

38-14.1-04.1. Reclamation research advisory committee

Repealed by S.L. 1997, ch. 321, ยง 1

38-14.1-04.2. Advisory committee responsibilities

Repealed by S.L. 1997, ch. 321, ยง 1

38-14.1-04.3. Reclamation research objectives

Repealed by S.L. 1997, ch. 321, ยง 1

38-14.1-05. Areas unsuitable for all or certain surface coal mining operations

1. Upon petition pursuant to section 38-14.1-06, the commission shall designate an area as unsuitable for all or certain types of surface coal mining operations if the commission determines, after hearings conducted in accordance with this chapter, that reclamation pursuant to the requirements of this chapter is not technologically and economically feasible

2. Upon petition pursuant to section 38-14.1-06, and after hearings conducted in accordance with this chapter, the commission may designate an area as unsuitable for certain types of surface coal mining operations if such operations will: a

Be incompatible with existing state or local land use plans or programs; Affect fragile or historic lands in which such operations could result in significant damage to important historic, cultural, scientific, and aesthetic values and natural systems; Affect renewable resource lands in which such operations could result in a substantial loss or reduction of productivity of long-range water supply or food or fiber products, and such lands include aquifers and aquifer recharge areas; or Affect natural hazard lands in which such operations could substantially endanger life and property, and such lands include areas subject to frequent flooding and areas of unstable geology

Prior to designating any land area as unsuitable for surface coal mining operations, the commission shall prepare a detailed statement on: a

The potential coal or commercial leonardite resources of the area; The demand for coal or commercial leonardite resources; and The impact of such designation on the environment, the economy, and the supply of coal or commercial leonardite

Page No. 6 2

38-14.1-06. Right to petition - Notice and hearing - Right to intervene

Any person having an interest which is or may be adversely affected, including state agencies other than the commission, has the right to petition the commission to hold a hearing for the purpose of having an area designated as unsuitable for surface coal mining operations, or to have such designation terminated. Such petition must contain allegations of facts with supporting evidence which would tend to establish the allegations

Prior to designating an area as unsuitable for surface coal mining operations and within ten months after receipt of a complete petition pursuant to subsection 1, the commission shall hold a public hearing in the locality of the affected area

3. Notice of the hearing must be published in the official newspaper of each county wherein the affected area lies and in other daily newspapers of general circulation in the locality of the affected area at least once a week for four successive weeks prior to the hearing. The names and post-office addresses of surface and subsurface mineral rights owners must be determined as specified by the commission from the records of the county recorder in each affected county. Notice of the hearing must be sent by certified mail to the owners of surface rights and subsurface mineral rights in the affected area and to the county auditor of each county wherein such area lies no later than two weeks prior to the date of the hearing

After a person having an interest which is or may be adversely affected has filed a petition and before the hearing, as required by this section, any person may intervene by filing allegations of facts with supporting evidence which would tend to establish the allegations

5. Within sixty days after the hearing, the commission shall issue and furnish to all petitioners and any other party to the hearing a written decision regarding the petition and reasons therefor

In the event that all petitioners stipulate agreement prior to the requested hearing, and withdraw their request, such hearing need not be held

If petitions are filed on lands adjacent to or in close proximity to each other, hearings required by each petition may be consolidated by the commission

38-14.1-07. Mining is prohibited

After August 3, 1977, and subject to valid existing rights, no surface coal mining operations except those which existed on August 3, 1977, may be permitted: 1. On any lands within the boundaries of units of the North Dakota state park system, the national park system, the national wildlife refuge systems, the national system of trails, the national wilderness preservation system, the national wild and scenic rivers system, including study rivers designated under section 5(a) of the Wild and Scenic Rivers Act [Pub. L. 90-542; 82 Stat. 906; 16 U.S.C. 1271 et seq.] and national recreation areas designated by Act of the Congress of the United States

2. On any federal lands within the boundaries of any national forest unless the requirements of 30 U.S.C. 1272(e)(2) are met

3. Within three hundred feet [91.44 meters] of any publicly owned park or places included in the state historic sites registry or the national register of historic places unless approved jointly by the commission and the federal, state, or local agency with jurisdiction over the park or the historic site

4. Within one hundred feet [30.48 meters] of the outside right-of-way line of any public road, except where mine access roads or haulage roads join such right-of-way line and except that the commission with the approval of the proper authority may permit such roads to be relocated or the area affected to lie within one hundred feet [30.48 meters] of such road, if after public notice and the opportunity for public hearing in the locality a written finding is made by the proper authority that the interests of the public and the landowners affected thereby will be protected

5. Within five hundred feet [152.4 meters] of any occupied dwelling unless approved by the owner thereof, nor within three hundred feet [91.44 meters] of any public building, Page No. 7 school, church, community, or institutional building, or within one hundred feet [30.48 meters] of a cemetery

38-14.1-08. Mineral exploration not prohibited

The designation of an area as unsuitable for all or certain types of surface coal mining operations does not prevent the mineral exploration of such an area

38-14.1-09. Unsuitable lands - Savings provision

The requirements and provisions of this chapter dealing with designation of lands unsuitable for all or certain types of surface coal mining operations (sections 38-14.1-04 through 38-14.1-08) do not apply: 1

To lands on which surface coal mining operations are being conducted on July 1, 1979, or under a permit issued pursuant to this chapter

To lands where substantial legal and financial commitments in surface coal mining operations were in existence prior to January 4, 1977

To lands where a permit application has been filed pursuant to the provisions of this chapter and the petition to have an area designated as unsuitable for surface coal mining operations has not been filed within thirty days of the last publication of the notice required by subsection 1 of section 38-14.1-18

38-14.1-10. Necessity of permit - Exception

It is unlawful for any operator to engage in surface coal mining operations without first obtaining from the commission a permit to do so. All existing surface coal mining operations must on July 1, 1979, comply with this chapter and all rules adopted under the chapter, except that lands from which the coal has been removed before July 1, 1979, are governed by the reclamation standards that were in effect at the time of coal removal from the lands. A person or operator shall engage in the inventorying and evaluation of cultural resources upon compliance with section 55-03-01 and may implement a cultural resource mitigation plan approved by the director of the state historical society before applying for or receiving an approved surface coal mining and reclamation permit

38-14.1-11. Reapplication for permit under approved state program

No later than two months following approval of the state program in accordance with the requirements of section 503 of the federal Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 470; 30 U.S.C. 1253], regardless of litigation contesting that approval, all permittees who expect to continue to conduct surface coal mining operations after the expiration of eight months from the approval of such state program shall file an application with the commission for a new permit in accordance with the requirements of section 38-14.1-13. Such application must cover those lands to be surface mined after the expiration of eight months from the approval of the state program. The commission shall process such applications and grant or deny a permit within eight months after the date of approval of the state program

38-14.1-12. Permits - Term - Termination

All permits for surface coal mining and reclamation operations must comply with the standards of this chapter, any regulations promulgated thereunder, and such other requirements as the commission shall establish

All permits issued pursuant to the requirements of this chapter must be issued for a term not to exceed five years; provided, that if the applicant demonstrates that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and the opening of the operation and if the application is full and complete for such specified longer term, the commission may grant a permit for such longer term

A permit terminates if the permittee has not commenced the surface coal mining operations covered by such permit within three years of the issuance of the permit, provided that: 2

Page No. 8 a

The commission may grant reasonable extensions of time upon a showing that such extensions are necessary by reason of litigation precluding such commencement or threatening substantial economic loss to the permittee, or by reason of conditions beyond the control and without the fault or negligence of the permittee

b. With respect to coal to be mined for use in a synthetic fuel facility or specific major electric generating facility, the permittee must be deemed to have commenced surface coal mining operations at such time as the construction of the synthetic fuel or generating facility is initiated

38-14.1-13. Permit applications - General requirements

Any person or operator desiring to engage in surface coal mining operations shall make written application to the commission for a permit. Application for such permit must be made upon a form furnished by the commission. Included in the application must be: a

A bond or security to attach to the lands for which a permit is sought from and after the time a permit is granted pursuant to the requirements of section 38-14.1-16

A nonrefundable filing fee of five hundred dollars, plus ten dollars for each acre [.40 hectare] included in the permit application

c. Mining and reclamation plans and other information required to be submitted pursuant to section 38-14.1-14

An extended mining plan as required by section 38-14.1-15

Each applicant for a surface coal mining and reclamation permit shall file a copy of the applicant's application for public inspection with the office of the county auditor for each county where the mining is proposed to occur

3. Upon request by the permit applicant, the commission, in its discretion, may designate specific information included in the plans required by subdivisions c and d of subsection 1 as exempt from disclosure under section 44-04-18, provided such specific information pertains only to the analysis of the chemical and physical properties of the coal or commercial leonardite (excepting information regarding such mineral or elemental contents which is potentially toxic in the environment). Each request must be accompanied by a statement specifying the need for nondisclosure, which statement must be considered part of the permit application to be filed for public inspection as specified in subsection 2. The confidential information is exempt for a period not to exceed ten years subsequent to the date on which the request for nondisclosure was filed, unless it is demonstrated by the permit applicant that such period should be further extended in order to prevent possible resulting harm to the permit applicant, or the applicant's successors and assigns

38-14.1-14. Permit applications - Mining and reclamation plans

The permit application must be submitted in a manner satisfactory to the commission and must contain among other things: a

A legal description of the land for which a permit is sought, so that it may be identified and distinguished from other lands

An identification of all lands, interests in lands, or options on such interests (both surface and subsurface) held by the applicant or pending bids on interests in lands by the applicant, which lands are contiguous to the area to be covered by the permit

The names and addresses of all of the following: (1) The permit applicant

(2) Every legal or equitable owner of record (surface and subsurface) of the b

property for which a permit is sought

(3) The holders of record (surface and subsurface) of any leasehold interest in the property

Page No. 9 d

(4) Any purchaser of record (surface and subsurface) of the property under a real estate contract

(5) The operator, if the operator is a person different from the permit applicant

(6) If any of these are business entities other than a single proprietor, the names and addresses of the principals, officers, and resident agent

The names and addresses of the owners of record of all surface and subsurface areas adjacent to any part of the permit area as prescribed by the commission by regulation

If the applicant is a partnership, corporation, limited liability company, association, or other business entity, the following where applicable: (1) The names and addresses of every officer, manager, partner, director, governor, or person performing a function similar to a director, of the permit applicant

(2) The name and address of any person owning of record ten percent or more of any class of voting stock or membership interests of the applicant

(3) A list of all names under which the applicant, partner, principal shareholder, or principal member previously operated a surface coal mining operation within any state within the five-year period preceding the date of the application

A statement of any current or previous surface coal mining permits in any state held by the applicant and the permit identification for said permits and for each pending application

A schedule listing any and all notices of violation of this chapter, the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.], and any law, rule, or regulation of the United States or of the state of North Dakota, or of any department or agency in the United States or of the state of North Dakota pertaining to air or water environmental protection incurred by the applicant in connection with any surface coal mining operation during the three-year period prior to the date of application. The schedule must also indicate the final resolution of any such notice of violation

A statement of whether the permit applicant, any subsidiary, affiliate, or persons controlled by or under common control with the permit applicant, has ever held any federal or state mining permit which in the five-year period prior to the date of submission of the application has been suspended or revoked, or has had a mining bond or similar security deposited in lieu of bond forfeited and, if so, a brief explanation of the facts involved

A copy of the permit applicant's advertisement as required in section 38-14.1-18

A map or plan, to an appropriate scale, clearly showing the land to be affected within the permit area upon which the applicant has the legal right to enter and commence surface coal mining operations

A copy of those documents upon which the permit applicant bases the applicant's legal right to enter and commence surface coal mining operations and whether that right is the subject of pending court litigation

A description of the type and method of surface coal mining operation that exists or is proposed, the engineering techniques proposed or used, and the equipment used or proposed to be used

The anticipated or actual starting and termination dates of each phase of the mining operations

The name of the watershed and location of the surface stream or tributary into which surface and pit drainage will be discharged, including the drainage permit application to the state engineer, if required, pursuant to other applicable state law

A determination by the permit applicant of the probable hydrologic consequences of the mining and reclamation operations, both on and off the minesite, with respect to the hydrologic regime, quantity and quality of water in surface and ground water systems, including the dissolved and suspended solids under Page No. 10 p

seasonal flow conditions and the collection of sufficient data for the minesite and surrounding areas so that an assessment can be made by the commission of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area and particularly upon water availability

The climatological factors that are peculiar to the locality of the land to be affected, including the average seasonal precipitation, the average direction and velocity of prevailing winds, and the seasonal temperature ranges

Topographic maps to an appropriate scale, as prescribed by the commission by regulation, clearly showing the land to be affected as of the date of the application. Such a map, among other things specified by the commission, must show all of the following information: (1) All manmade features

(2) All boundaries of the land to be affected

(3) The boundary lines and names of present owners of record of all surface areas abutting the permit area

(4) The location of all buildings within one-half mile [804.67 meters] of the permit area

r. Cross sections, maps or plans of the land to be affected, including the actual area to be mined, prepared by or under the direction of and certified by a registered professional engineer, a registered land surveyor, or a qualified professional geologist with assistance from experts in related fields, showing pertinent elevation and location of test borings or core samplings and depicting all of the following information: (1) The nature and depth of the various strata of overburden

(2) The location of subsurface water, if encountered, and its quality

(3) The nature and thickness of any coal, commercial leonardite, or rider seam above the coal or commercial leonardite seam to be mined

(4) The nature of the stratum immediately beneath the coal or commercial leonardite seam to be mined

(5) All mineral crop lines and the strike and dip of the coal or commercial leonardite to be mined, within the area of land to be affected

(6) Existing or previous surface mining limits

(7) The location and extent of known workings of any underground mines, including mine openings to the surface

(8) The location of aquifers

(9) The estimated elevation of the water table

(10) The location of spoil, waste, or refuse areas, suitable plant growth material stockpiling areas and, if necessary, stockpiling areas for other suitable strata

(11) The location of all impoundments for waste or erosion control

(12) Any settling or water treatment facility

(13) Constructed or natural drainways and the location of any discharges to any surface body of water on the area of land to be affected or adjacent thereto

(14) Profiles at appropriate cross sections of the anticipated final surface configuration that will be achieved pursuant to the applicant's proposed reclamation plan

A statement by the applicant of the result of test borings or core samplings from the permit area, including logs of the drill holes, the thickness of the coal or commercial leonardite seam found, an analysis of the chemical properties of such coal or commercial leonardite, the sulfur content of any coal or commercial leonardite seam, chemical analysis of potentially toxic forming sections of the overburden, and chemical analysis of the stratum lying immediately underneath the coal or commercial leonardite to be mined. The provisions of this subdivision may be waived by the commission with respect to the specific application by a written determination that such requirements are unnecessary

Page No. 11 t

A soil survey of all the suitable plant growth material within the permit area. Such survey must also locate and identify prime soils in the permit area. The survey must be made by a professional soil classifier as described in subsection 4 of section 43-36-01

u. Cultural resource information, including all of the following: (1) A statement evidencing compliance with the requirements of chapter 55-03

(2) A cultural resource inventory, including all buildings, structures, and objects referred to in section 55-03-01, covering the proposed permit and adjacent area conducted in accordance with guidelines developed by the state historic preservation office and the director of the state historical society

(3) An evaluation of each cultural resource site which will be affected by any surface coal mining and reclamation operation. The evaluation must include sufficient information to allow the director to determine if the cultural resource site is significant in accordance with the national register criteria [36 CFR 60.4] and guidelines established by the director

(4) An appropriately scaled map identifying the location of each cultural resource site determined significant by the director within the proposed permit area and the adjacent area

(5) A description of adverse effects on significant cultural resources that may result from the proposed surface coal mining operations

(6) A statement that the permit applicant will inform the director and the commission of any discovery within the permitted area of previously unrecorded archaeological, cultural, or historic materials and allow reasonable time for the director to determine the significance of the discovery and, if determined significant, to approve a mitigation plan

(7) A plan approved by the director that has been or will be used to mitigate adverse effects on significant sites that are known, or a statement that such a plan will be approved and implemented before any adverse effects. Any mitigation plan that has not begun implementation within five years of plan approval is subject to review by the director

Each applicant for a permit shall submit as part of the permit application a reclamation plan that must include, in the degree of detail necessary to demonstrate that reclamation as required by this chapter can be accomplished, a statement of: a

The condition of the land to be covered by the permit prior to any mining, including all of the following: (1) The uses existing at the time of the application, and if the land has a history of previous mining, the uses which preceded any mining

(2) The capability of the land prior to any mining to support a variety of uses giving consideration to soil and foundation characteristics, topography, vegetative cover, and the soil survey prepared pursuant to subdivision t of subsection 1

(3) The productivity of the land prior to mining, including appropriate identification of prime farmlands, as well as the average yield of food, fiber, and forage products from such lands obtained under high levels of management

The use which is proposed to be made of the land following reclamation, including a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses and the relationship of such use to existing land use policies and plans, the surface owner's preferred use, and the comments of state and local governments or agencies thereof, which would have to initiate, implement, approve, or authorize the proposed use of the land following reclamation

The consideration which has been given to maximize the utilization and conservation of the coal or commercial leonardite being recovered so that re- affecting the land in the future can be minimized

Page No. 12 d

The consideration which has been given to making the surface mining and reclamation operations consistent with surface owner plans and applicable state and local land use plans and programs

The consideration which has been given to developing the reclamation plan in a manner consistent with local physical, environmental, and climatological conditions, including the use made of hydrologic and geochemical information in addressing problems of subsurface drainage and stability

A detailed description of how the proposed postmining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use

The engineering techniques proposed to be used in mining and reclamation and a description of the major equipment

Plans for: (1) The control of surface water drainage and of water accumulation

(2) Backfilling, soil stabilization, compacting, grading, and appropriate revegetation

(3) Soil reconstruction, replacement, and stabilization, pursuant to the performance standards in subsections 5 and 6 of section 38-14.1-24

A detailed description of the measures to be taken during the mining and reclamation process to assure the protection of: (1) The quality of surface and ground water systems, both onsite and offsite, from adverse effects of the mining and reclamation process

(2) The rights of present users to such water

(3) The quantity of surface and ground water systems, both onsite and offsite, from adverse effects of the mining and reclamation process or to provide alternative sources of water where such protection of quantity cannot be assured

The steps to be taken to comply with applicable air quality and water quality and quantity laws and regulations and any applicable health and safety standards

A detailed estimated timetable for the accomplishment of each major step in the reclamation plan

An estimate of the cost per acre [.40 hectare] of the reclamation, including a statement as to how the applicant plans to comply with each of the requirements set out in section 38-14.1-24

The results of test borings which the applicant has made of the area to be covered by the permit, or other equivalent information and data, in a form satisfactory to the commission, including the location of subsurface water and an analysis of the chemical properties, including toxic forming properties of the mineral and overburden

Each applicant for a permit shall submit to the commission as part of the permit application a certificate issued by an insurance company authorized to do business in this state certifying that the applicant has a public liability insurance policy in force for the surface coal mining and reclamation operations for which such permit is sought. Such policy must provide for personal injury and property damage protection in an amount adequate to compensate any persons, except employees covered by workforce safety and insurance pursuant to chapter 65-01, damaged as a result of surface coal mining and reclamation operations, including use of explosives, and entitled to compensation under the applicable provisions of state law. Such policy must be maintained in full force and effect during the terms of the permit or any renewal, including the length of all reclamation operations. The policy must include a rider requiring that the insurer notify the commission whenever substantive changes are made in the policy, including any termination or failure to renew. All operations must cease if the policy is terminated or is not renewed

Each applicant for a surface coal mining and reclamation permit shall submit to the commission as part of the permit application a blasting plan which must outline the Page No. 13 procedures and standards by which the permittee will meet the provisions of subsection 13 of section 38-14.1-24

38-14.1-15. Permit applications - Extended mining plan

An applicant shall submit as part of a permit application a plan identifying the lands subject to surface coal mining operations over the estimated life of those operations and the size, sequence, and timing of the subareas for which it is anticipated that individual permits will be sought

The permittee shall annually advise the commission of the status of the plan and shall amend such plan if changes are made in anticipated mining operations or if updated information is available

38-14.1-16. Performance bond - Amount - Sufficiency of surety - Amount of forfeiture

As part of a surface coal mining and reclamation permit application, the permit 1

applicant shall file with the commission, on a form prescribed and furnished by the commission, a bond for performance payable to the state of North Dakota and conditional upon faithful performance of all the requirements of this chapter and the requirements of all regulations promulgated pursuant to this chapter and all permit terms and conditions

The commission shall set the bond amount sufficient to complete the reclamation plan in event of forfeiture. The bond for the permit area must be at least ten thousand dollars

The bond must cover that area of land within the permit area upon which the permittee will initiate and conduct surface coal mining and reclamation operations for the ensuing year. Prior to initiating and conducting succeeding increments of surface coal mining and reclamation operations within the permit area, the permittee shall file with the commission an additional bond or bonds to cover such increments in accordance with this section

Liability under the bond, subject to allowable releases under subsection 7 of section 38-14.1-17, is for the duration of the surface coal mining and reclamation operation and for a period coincident with the permittee's responsibility for revegetation requirements in subsection 18 of section 38-14.1-24 and until such time as the lands included in the surface coal mining operation have been approved and released by the commission. The bond must be executed by the permit applicant and a corporate surety licensed to do business in North Dakota, except that the permit applicant may elect to deposit cash, negotiable bonds of the United States or of North Dakota, or negotiable certificates of deposit of any bank organized or transacting business in the state. The cash deposit or market value of such securities must be equal to or greater than the amount of the bond required for the bonded area

5. Cash or securities so deposited must be deposited upon the same terms as the terms upon which surety bonds may be deposited. Such securities are security for the repayment of such negotiable certificate of deposit

A bond filed as prescribed in subsection 2 for areas not yet affected by surface coal mining and reclamation operations may not be canceled by the surety unless it shall give not less than ninety days' notice to the commission. For lands on which surface coal mining and reclamation operations are being conducted, the bond may not be canceled by the surety unless a substitute surety assuming liability from the initiation of such operations is obtained and is approved by the commission

If the corporate surety's license is suspended or revoked, the permittee, after notice from the commission, shall provide a substitute performance bond. If the permittee fails to make substitution within thirty days, the commission may suspend the permit. If substitution is not made within ninety days, the commission shall suspend the permit

The commission may accept the bond of the permit applicant itself without separate surety when the permit applicant demonstrates to the satisfaction of the commission the existence of a suitable agent to receive service of process and a history of financial 8

Page No. 14 9

solvency and continuous operation sufficient for authorization to self-insure or bond such amount

The amount of the bond or deposit required and the terms of each acceptance of the permit applicant's bond must be adjusted by the commission from time to time as acreages [hectarages] affected by surface coal mining operations are increased or decreased or where the cost of future reclamation changes

The amount of any forfeiture of the bond or security must be the amount prescribed in the permit for each acre [.40 hectare] or portion thereof on which surface coal mining and reclamation operations are being conducted

38-14.1-17. Release of performance bond - Schedule - Notification - Public hearing

The permittee may file a request with the commission for the release of all or part of a performance bond or deposit furnished subsequent to July 1, 1975. As part of any bond release application, the permittee shall submit: a. Within thirty days after filing of the request, a copy of an advertisement placed at least once a week for four successive weeks in the official newspaper of each county in which the surface coal mining operation is located. The advertisement must contain notification of all of the following: (1) The precise location and the number of acres [hectares] of the land affected

(2) The permit and the date approved

(3) The amount of the bond filed and the portion sought to be released

(4) The type and approximate dates of reclamation work performed and a description of the results achieved as they relate to the permittee's approved reclamation plan

(5) The right to file written objections and to request a public hearing or an informal conference as specified in subsection 2

b. Copies of letters which the permittee has sent to all owners of surface rights within the permit area proposed for bond release, adjoining property owners, state agencies specified in subsection 2 of section 38-14.1-21, heads of local governmental bodies, including the county commissioners and mayors of municipalities, planning agencies, sewage and water treatment authorities, and water companies in the locality in which the surface coal mining and reclamation operations took place, notifying them of the permittee's intention to seek release from the bond. The letters must also contain notice of the right to file written objections and request an informal conference or a public hearing as specified in subsection 2

Any person having a valid legal interest which is or may be adversely affected by release of the bond or the responsible officer or head of any state or local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the surface coal mining operation or is authorized to develop and enforce environmental standards with respect to such operations has the right to file written objections to the proposed release from bond with the commission and to request an informal conference pursuant to the procedures established in section 38-14.1-19 or a public hearing pursuant to procedures established in subsection 3 of section 38-14.1-30 within thirty days after the last publication of the notice required in subsection 1

3. Upon receipt of the application for bond release, the commission shall, within thirty days, conduct an inspection and evaluation of the reclamation work involved. Such evaluation must consider, among other things, all of the following: a

The degree of difficulty to complete any remaining reclamation

b. Whether pollution of surface and subsurface water is occurring

The probability of continuance or future occurrence of such pollution

The estimated cost of abating such pollution

The effectiveness of soil erosion control measures employed

The level of bonding

Page No. 15 The commission shall make written findings with its ruling to release or not to release all or part of the performance bond or deposit within sixty days from the filing of the request for bond release, if no informal conference or public hearing is held, and if there has been an informal conference or a public hearing, within thirty days thereafter

Time periods established by subsection 3 do not apply if effective inspections cannot be carried out because of inclement weather

If the commission disapproves the application for release of the bond or portion thereof, the commission shall state the reasons for disapproval, recommend corrective actions necessary to secure said release, and provide the permittee with an opportunity for a formal public hearing pursuant to the procedures of section 38-14.1-30

If the commission decides to release the bond either totally or in part, the commission shall notify the county commissioners and the mayors of the municipalities in the county in which the applicable surface coal mining operation is located by certified mail, at least thirty days prior to the actual release of all or a portion of the bond

The commission may release bond as follows: a. When the permittee completes the backfilling, regrading, and drainage control in 4

a bonded area, forty percent of the bond for the area may be released

After spreading suitable plant growth material or other suitable strata on the regraded land, twenty percent of the bond for the area may be released

After vegetation is established on the regraded land, additional bond may be released. The commission shall retain sufficient bond to cover third-party revegetation and associated costs for the period set by subsection 18 of section 38-14.1-24, provided: (1) There may be no release under this subdivision until the requirements of subdivision b of subsection 8 of section 38-14.1-24 are met and prime farmlands are returned to productivity equal to or greater than nonmined prime farmland in the surrounding area under equivalent management practices

If there is a permanent silt dam impoundment under subsection 7 of section 38-14.1-24, bond may be released if the commission approves the commitments for future maintenance

(2) d. When the permittee has successfully completed all surface coal mining and reclamation operations, and after the period set by subsection 18 of section 38-14.1-24, the remaining bond may be released. No bond may be fully released until all reclamation requirements are met

8. Until reclamation has been accomplished to the satisfaction of the commission and until the bond has been fully released pursuant to subsection 7, control of the affected lands shall remain in the commission, and the commission may not allow use of the land which is inconsistent with reclamation

38-14.1-18. Permit application procedures - Notice requirements

At the time of filing an application for a permit, or for revision of an existing permit, the applicant shall submit to the commission a copy of the applicant's advertisement of the ownership, precise location, and boundaries of the land proposed to be affected by the permit or permit revision and the location where the application is available for public inspection. Such advertisement must include notification to any person with an interest which is or may be adversely affected that a petition to designate an area as unsuitable for surface coal mining operations that is within the proposed permit area must be filed within thirty days of the last publication of the notice. The permit applicant shall place such advertisement in the official newspaper of each county wherein land to be included within the permit area lies and in other daily newspapers of general circulation in the locality of the proposed surface coal mining operation at least once a week for four consecutive weeks from the date of filing the application for a permit. Affidavits of publication for all advertisements published pursuant to this subsection must be furnished to the commission by the permit applicant

Page No. 16 2

The permit applicant shall also conduct a search of the records of the county recorder for each county for land within the proposed permit area and shall supply the commission with a list of names and addresses of all owners of surface rights of land within the proposed permit area and a list of all subsurface mineral owners within the proposed permit area. The lists must be submitted to the commission along with the application for a permit or permit revision

3. Upon receipt of an application for a permit, or a revision thereof, the commission shall serve notice upon state agencies specified in subsection 2 of section 38-14.1-21, city and county governmental authorities, planning agencies, sewage and water treatment authorities, and water companies in the locality of the proposed surface coal mining operation of the permit applicant's intent to surface mine the particularly described tract of land, indicating the application's permit number and where a copy of the proposed mining and reclamation plan may be inspected, and informing them of their right to submit written comments or objections pursuant to this section with respect to the effect of the proposed surface coal mining operations on the environment within their area of responsibility

In addition, the commission shall send by certified mail to all owners of surface rights of the land to be included within the permit area a notice of the opportunity to submit comments or objections pursuant to this section on the proposed permit application and its effect on the environment and the surface owner. This notice must also inform each surface owner of the surface owner's right to request an informal conference within the time prescribed in subsection 5 and of the surface owner's right to request a formal hearing within thirty days of the ruling of the commission pursuant to subsection 3 of section 38-14.1-30

Any person having an interest which is or may be adversely affected, including state agencies other than the commission, has the right to file written comments or objections to the application for a proposed initial or revised permit and to submit a request for an informal conference pursuant to section 38-14.1-19, provided that the written comments or objections and any request for an informal hearing are made within thirty days after the last publication of the advertisement referred to in subsection 1

Any comments, objections, and requests for an informal conference must immediately upon receipt be transmitted to the permit applicant by the commission and must be made available to the public at the same location as is the permit application

38-14.1-19. Informal conference procedures

If written objections or comments are filed and an informal conference is requested as provided in section 38-14.1-17, 38-14.1-18, or 38-14.1-28, the commission shall schedule such informal conference within thirty days of the receipt of such request but in no event prior to the expiration of the thirty-day period allowed for submission of comments, objections, and requests in subsection 2 of section 38-14.1-17 or subsections 3, 4, and 5 of section 38-14.1-18

The informal conference must be held in the locality of the proposed mining if the request for such conference so specifies. Date, time, and location of such informal conference must be advertised by the commission in the official newspaper of each county wherein land included in the proposed permit area lies and in other daily newspapers of general circulation in the locality of the proposed surface coal mining operation at least two weeks prior to the scheduled conference date

3. Upon request of any party to the informal conference, the commission may arrange with the applicant access by the requesting party to the proposed mining area for the purpose of gathering information relative to such conference

An electronic or stenographic record must be made of the informal conference proceedings, unless waived by all parties. Such record must be maintained and must be accessible to the parties until final release of the permittee's performance bond pursuant to this chapter

Page No. 17 5

In the event all parties requesting the informal conference stipulate agreement prior to the requested informal conference and withdraw their request, such informal conference need not be held

The commission shall issue its written findings and ruling within thirty days of the informal conference. Along with these findings and ruling, notice must be served upon all persons who were parties to the informal conference, informing them of their right, within thirty days of such service, to request that a formal administrative hearing be held by the commission pursuant to section 38-14.1-30 in order to review the findings and ruling

38-14.1-20. Ruling on permit application - Timing and content

If an informal conference in reference to a permit application has been held pursuant to section 38-14.1-19, the commission shall issue its written findings approving or disapproving the application in whole or in part and stating the reasons for such findings within thirty days of the informal conference. At the time of issuance, copies of the findings, reasons, and the commission's ruling must be furnished to the permit applicant and all persons who were parties to the informal conference along with the notice of the right to request a formal hearing provided for in section 38-14.1-30

If no informal conference has been held, the commission shall notify the permit applicant within a reasonable time as set forth in regulations, whether the application has been approved or disapproved in whole or in part along with notice of the right to request a formal hearing pursuant to section 38-14.1-30. In setting such reasonable time, the commission shall take into account the time needed for proper investigation of the site, the complexity of the permit application, and whether objections to the application have been filed

3. Under either subsection 1 or 2, if the application is approved, a permit must be issued subject to the right of any person with an interest which is or may be adversely affected to request formal hearing pursuant to section 38-14.1-30; if the application is disapproved, specific reasons therefor must be set forth in the notification of disapproval together with the requirements for approval

38-14.1-21. Permit approval or denial standards

1. Upon the basis of a complete mining application and reclamation plan or a revision thereof as required by this chapter and pursuant to regulations established under this chapter, the commission shall grant, require modification of, or deny the application for a permit and notify the applicant in writing within a reasonable time as established by regulation if no informal conference is held and if an informal conference is held, within thirty days of such conference. The applicant for a permit, or a revision of a permit, has the burden of establishing that the application is in compliance with all the requirements of this chapter. Within ten days after the granting of a permit, the commission shall notify the appropriate local governmental officials in the county in which the area of land to be affected is located that a permit has been issued and shall describe the location of the land

The commission's approval or modification of the permit or permit revision application must include consideration of the advice and technical assistance of the state historical society, the department of environmental quality, the soil conservation committee, the game and fish department, the state forester, the state geologist, and the state engineer, and may also include those state agencies versed in soils, agronomy, ecology, geology, and hydrology, and other agencies and individuals experienced in reclaiming surface mined lands

3. No permit or revision application may be approved unless the applicant affirmatively demonstrates and the commission finds in writing on the basis of the information set forth in the application or from information otherwise available which will be documented in the approval and made available to the applicant, that all the following requirements are met: 2

Page No. 18 a

The permit application is accurate and complete and all the requirements of this chapter and of regulations promulgated by the commission have been complied with

The permit applicant has demonstrated that reclamation as required by this chapter and by regulations promulgated by the commission can be accomplished under the reclamation plan contained in the permit application

The assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance specified in subdivision o of subsection 1 of section 38-14.1-14 has been made by the commission and the proposed operation thereof has been designed to prevent material damage to the hydrologic balance outside the permit area

The area proposed to be mined is not included within an area designated unsuitable for all or certain types of surface coal mining operations pursuant to section 38-14.1-05 or is not within an area under study for such designation in an administrative proceeding, provided the petition to have an area so designated has been filed prior to or within the time period specified in subsection 1 of section 38-14.1-18, or unless in such an area as to which an administrative proceeding has commenced, the permit applicant demonstrates that prior to January 4, 1977, the permit applicant has made substantial legal and financial commitments in relation to the operation for which the applicant is applying for a permit

The proposed surface coal mining operation, if located west of the one hundredth meridian west longitude, would: (1) Not interrupt, discontinue, or preclude farming on alluvial valley floors that are irrigated or naturally subirrigated, but, excluding undeveloped rangelands which are not significant to farming on said alluvial valley floors and those lands as to which the commission finds that if the farming that will be interrupted, discontinued, or precluded is of such small acreage [hectarage] as to be of negligible impact on the farm's agricultural production; or (2) Not materially damage the quantity or quality of water in surface or underground water systems that supply these alluvial valley floors. This subdivision does not affect those surface coal mining operations which on July 1, 1979, produce coal or commercial leonardite in commercial quantities and are located within or adjacent to alluvial valley floors or have obtained specific permit approval by the commission to conduct surface coal mining operations within said alluvial valley floors

f. When the mineral estate has been severed from the surface estate, the applicant has complied with the requirements of chapter 38-18

The commission may delete certain areas from a permit or revision application, reject the application, require the permit applicant to amend the application or any part of such application, including any mining plan, or require any combination of the foregoing, if: a

The commission finds that the overburden on any part of the area of land described in the application for a permit is such that experience in the state of North Dakota with a similar type of operation upon land with similar overburden shows that substantial deposition of sediment in streambeds, landslides, water pollution, or permanent destruction of land for agricultural purposes without approved rehabilitation for other uses cannot feasibly be prevented

The commission finds that the proposed surface coal mining operation will constitute a hazard to a dwelling house, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, or other public or private property other than property subject to a coal or commercial leonardite lease

Page No. 19 Whenever the commission finds that ongoing surface mining operations are causing or are likely to cause any of the conditions set forth in this subsection, it may make such changes in the permit as it may deem necessary to avoid such described conditions

5. When information available to the commission indicates that any surface coal mining operation owned or controlled by the permit applicant is currently in violation of this chapter, the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.], or any law or rule of the United States or the state of North Dakota, or of any department or agency of the United States or the state of North Dakota, pertaining to air or water environmental protection, the permit may not be issued until the permit applicant submits proof that such violation has been corrected or is in the process of being corrected to the satisfaction of the regulatory authority with jurisdiction over the violation

In addition to finding the application in compliance with other requirements of this section, if the area proposed to be mined contains prime farmland pursuant to paragraph 3 of subdivision a of subsection 2 of section 38-14.1-14, the commission shall, pursuant to regulations issued by the commission, grant a permit to mine on prime farmland if the commission finds in writing that the permit applicant has the technological capability to restore such mined area, within a reasonable time, to a level of productivity equal to or greater than nonmined prime farmland in the surrounding area under equivalent levels of management and can meet the soil reconstruction standards in subsection 6 of section 38-14.1-24. Nothing in this chapter pertaining to prime farmland applies to any permit issued prior to July 1, 1979, or to any revisions or renewals thereof, or to any existing surface coal mining operations for which a permit was issued prior to July 1, 1979

38-14.1-22. Permit renewal

Any valid permit issued pursuant to this chapter shall carry with it the right of successive renewal upon expiration with respect to areas within the boundaries of the existing permit. The holders of the permit may apply for renewal and such renewal must be issued within a reasonable time as set forth in regulations promulgated by the commission subsequent to fulfillment of the public notice requirements of subsection 1 of section 38-14.1-18 unless it is established that and written findings are made by the commission that: a

The terms and conditions of the existing permit are not being satisfactorily met; and The present surface coal mining and reclamation operation is not in compliance with the provisions of this chapter; or The renewal requested substantially jeopardizes the operator's continuing responsibility on existing permit areas; and The permittee has not provided evidence that the performance bond in effect for said operation will continue in full force and effect for any renewal requested in such application as well as any additional bond the commission might require pursuant to section 38-14.1-16; or Any additional revised or updated information required by the commission has not been provided

2. On application for renewal, the burden is on the opponents of renewal

Any permit renewal must be for a term not to exceed the period of the original permit established by this chapter. Application for permit renewal must be made at least one hundred twenty days prior to the expiration of the valid permit

38-14.1-23. Permit revision

1. During the term of the permit the permittee may submit an application for a revision of the permit, together with a revised reclamation plan, to the commission

An application for a revision of a permit may not be approved unless the commission finds that reclamation as required by this chapter can be accomplished under the revised reclamation plan. The revision must be approved or disapproved within a 2

Page No. 20 3

reasonable time as established by commission regulation. The commission shall establish guidelines for a determination of the scale or extent of a revision request for which all permit application information requirements and procedures, including notice and hearing, shall apply. Any revisions which propose significant alterations in the reclamation plan are, at a minimum, subject to the notice and hearing requirements of sections 38-14.1-18, 38-14.1-19, and 38-14.1-20

Any extensions to the area covered by the permit except incidental boundary revisions must be made by application for another permit

4. No transfer, assignment, or sale of the rights granted under any permit issued pursuant to this chapter may be made without the written approval of the commission. The commission shall deny approval to the successor in interest of the permittee if the successor in interest is unable to obtain the bond coverage of the original permittee or its equivalent. If the successor in interest is able to obtain the bond coverage of the original permittee, or its equivalent, the successor in interest may arrange for the continuation of surface mining and reclamation operations according to the approved surface mining and reclamation plan of the original permittee pending commission approval of the transfer, assignment, or sale of the rights granted under said permit and any necessary revision or modification of said permit, provided the successor in interest furnishes the necessary information to the commission within thirty days of succeeding to such interest so that the permit in issue can be properly revised or modified

The commission shall, within a time limit prescribed by commission regulation, review outstanding permits and may require reasonable revision or modification of the permit provisions during the term of such permit. Any such revision or modification must be based upon a written finding and subject to notice and hearing requirements in accordance with sections 38-14.1-18, 38-14.1-19, and 38-14.1-20

A permittee may withdraw any land described in either the permit application required in section 38-14.1-14 or the extended mining plan required in section 38-14.1-15, except land on which surface coal mining operations have commenced, by notifying the commission thereof. If land covered by the permit term is so withdrawn, the amount of the bond or security filed by the permittee pursuant to the provisions of this chapter must be reduced proportionately

38-14.1-24. Environmental protection performance standards

General performance standards are applicable to all surface coal mining and reclamation operations and must require the permittee at a minimum to: 1. Conduct surface coal mining operations so as to maximize the utilization and conservation of the coal or commercial leonardite being recovered so that re-affecting the land in the future through surface coal mining can be minimized

1.1. Conduct any auger mining associated with surface coal mining operations in a manner that will maximize recoverability of coal or commercial leonardite and other mineral reserves remaining after mining activities and reclamation operations are completed, and seal or fill all auger holes as necessary to ensure long-term stability of the area and minimize any adverse impact to the environment or hazard to public health or safety. The commission may prohibit auger mining if necessary to maximize the utilization, recoverability, or conservation of coal or commercial leonardite resources, to ensure long-term stability, or to protect against any adverse impact to the environment or hazard to public health or safety

2. Restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses approved by the commission, which may include industrial, commercial, agricultural, residential, recreational, or public facilities. In approving the postmining land use, or changes thereto, the commission shall establish by regulation postmining land use criteria that must be demonstrated by the permittee and considered by the commission in making its decision

Page No. 21 3

Backfill, compact (where advisable to ensure stability or to prevent leaching of toxic materials), and grade to reshape all areas affected by surface coal mining operations to the gentlest topography consistent with adjacent unmined landscape elements in order to develop a postmining landscape that will provide for maximum moisture retention, drainage that will complement the surrounding terrain, maximum stability, minimum soil losses from runoff and erosion, with all highwalls, spoil piles, and depressions eliminated (unless small depressions are needed in order to retain moisture to assist revegetation or as otherwise authorized pursuant to this chapter), and with maximum postmining graded slopes that do not exceed the approximate original contour; provided, however, that: a

A different contour or topography may be required by the commission to better achieve the approved postmining land use

The permittee, 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 (not to exceed the angle of repose), to provide adequate drainage, and to contain all toxic materials in order to achieve an ecologically sound land use compatible with the surrounding region, in those instances where: (1) Surface coal mining operations are carried out over a substantial period of time at the same location where the operation transects the coal or commercial leonardite deposit; (2) The thickness of the coal or commercial leonardite deposits relative to the b

volume of overburden is large; and (3) The permittee 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

Stabilize and protect all surface areas, including spoil piles affected by the surface coal mining and reclamation operation, to effectively control erosion and attendant air and water pollution

5. Remove, segregate, and respread suitable plant growth material as required by the commission within the permit area. The commission may require the permittee to segregate suitable plant growth material in two or more soil layers. The commission shall determine the soil layer or layers to be removed based upon the quality and quantity of suitable plant growth material inventoried by the soil survey required in subdivision t of subsection 1 of section 38-14.1-14. Based on the soil survey, the commission shall also determine whether other suitable strata are necessary to meet revegetation requirements. If other strata can be shown to be suitable and necessary to meet revegetation requirements, the commission may require the permittee to determine the areal extent of other suitable strata within the proposed permit area, and to remove, segregate, protect, and respread such material. If the suitable plant growth material or other suitable strata cannot be replaced on an approved graded area within a time short enough to avoid deterioration of such material, the permittee shall stockpile and stabilize such materials by establishing a successful cover of quick-growing plants or by other means thereafter so that the suitable plant growth material or other suitable strata will be protected from wind and water erosion and will remain free from any contamination by toxic material. In the interest of achieving the maximum reclamation provided for in this chapter, the permittee may, or at the discretion of the commission shall, utilize such soil amendments as described in section 38-14.1-02

For all prime farmlands as identified in paragraph 3 of subdivision a of subsection 2 of section 38-14.1-14 to be mined and reclaimed, the permittee shall, at a minimum, be required to: a

Segregate the A horizon of the natural soil or a combination of the A horizon materials and other available suitable plant growth materials that will create a final soil having a productive capacity equal to or greater than that which existed 6

Page No. 22 b

prior to mining; and if not utilized immediately, stockpile this material and provide needed protection from wind and water erosion or contamination; 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 physically 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. If not utilized immediately, such material must be stockpiled and provided needed protection from wind and water erosion or contamination; c. Replace the material described in subdivision b with proper compaction and uniform depth as determined by the commission over the regraded spoil material; and d. Redistribute in a uniform manner as determined by the commission the surface soil described in subdivision a

7. Create, if authorized in the approved mining and reclamation plan and permit, as part of reclamation activities, permanent water impoundments in accordance with the requirements of the state engineer pursuant to other applicable state law and all of the following standards: a

The size of the impoundment will be adequate for its intended purposes

The impoundment dam construction will be designed to achieve necessary stability with an adequate margin of safety compatible with the requirements of applicable state law

The quality of impounded water will be suitable on a permanent basis for its intended use and discharges from the impoundment will not exceed the quality limitations imposed by the North Dakota pollutant discharge elimination system or degrade the water quality below water quality standards established pursuant to this chapter, whichever is more stringent

The level of water will be reasonably stable

Final grading will provide adequate safety and access for maintenance and proposed water users

Such water impoundments will not result in the diminution of the quality or quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses

8. Minimize the disturbances to the prevailing hydrologic balance at the minesite and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation by: a

Avoiding toxic mine drainage by such measures as, but not limited to: (1) Preventing water from coming in contact with, or removing water from, toxic producing deposits

(2) Treating drainage to reduce toxic content which adversely affects downstream water upon being released to watercourses

(3) Casing, sealing, or otherwise managing boreholes and wells to keep toxic drainage from entering ground and surface waters

b. Conducting surface coal mining operations so as to prevent, to the extent possible using the best technology currently available, additional contribution of suspended solids to streamflow, or runoff outside the permit area, but in no event may contributions be in excess of requirements set by applicable state law

c. Constructing any siltation structures pursuant to subdivision b prior to commencement of surface coal mining operations, such structures to be certified by a registered professional engineer to be constructed as designed and as approved in the reclamation plan

d. Cleaning out and removing temporary settling ponds or other siltation structures from drainways after disturbed areas are revegetated and stabilized and Page No. 23 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 to the extent possible using the best technology currently available

Avoiding natural channel deepening or enlargement in operations requiring the discharge of water from mines

Preserving throughout the surface coal mining and reclamation process the essential hydrologic functions of alluvial valley floors

Such other actions as the commission may prescribe

9. Make such repairs, alterations, or construction as necessary to ensure the delivery of that quality and quantity of water available prior to mining to a surface owner whose supply of water for domestic, agricultural, industrial, or other legitimate use has been disrupted or diminished in quality or quantity by the surface coal mining operation. Such repairs, alterations, or construction must be considered to be part of reclamation and must be made at no cost to the surface owner. Nothing in this chapter may be construed as affecting in any way the right of any person to enforce or protect, under applicable law, the person's interest in water resources affected by a surface coal mining operation

10. Remove or bury all debris and other similar material resulting from the operation and bury all mine wastes, coal, and commercial leonardite processing wastes unless the commission approves the surface disposal of such wastes. If the commission approves the surface disposal of such wastes, the permittee shall stabilize all waste piles in designated areas through construction in compacted layers, including the use of incombustible and impervious materials if necessary, to assure that the final contour of the waste pile will be compatible with natural surroundings and that the site can and will be stabilized and revegetated according to the provisions of this chapter

11. Refrain from surface coal mining within five hundred feet [152.4 meters] of underground mines in order to prevent breakthroughs; provided, that the commission shall allow a permittee to mine near, through, or partially through an underground mine if such operations will result in improved resource recovery, abatement of water pollution, or elimination of hazards to the health and safety of the public

Ensure that all debris, toxic materials, or materials constituting a fire hazard are treated or buried and compacted or otherwise disposed of in a manner designed to prevent contamination of ground or surface waters and that contingency plans are developed to prevent sustained combustion. If a fire hazard exists, the commission has the authority to require the permittee to take such actions as are necessary to abate the hazard, both inside and outside the permit area

Ensure that explosives are used only in accordance with existing state law and the regulations promulgated by the commission, which must include provisions to: a

Provide adequate advance written notice to local governments and residents who might be affected by the use of such explosives by the publication of the planned blasting schedule in a newspaper of general circulation in the locality, by mailing a copy of the proposed blasting schedule to every resident living within one-half mile [804.67 meters] of the proposed blasting site, and by providing daily notice to residents in such areas prior to any blasting

b. Maintain for a period of at least three years and make available for public inspection upon request a log detailing the location of the blasts, the pattern and depth of the drill holes, the amount of explosives used per hole, and the order and length of delay in the blasts

Limit the type of explosives and detonating equipment, the size, the timing, and the frequency of blasts based upon the physical conditions of the site so as to prevent: (1) (2) Damage to public and private property outside the permit area

(3) Change in the course, channel, or availability of ground or surface water Injury to persons

outside the permit area

Page No. 24 e

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

Provide that upon the request of a resident or owner of a manmade dwelling or structure within one mile [1.61 kilometers] of any portion of the permitted area the permittee 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 must be decided by the commission and must include such provisions as the commission may promulgate

Ensure that all reclamation efforts proceed in an environmentally sound manner and as contemporaneously as practicable with the surface coal mining operations, provided that all reclamation through the initial planting on any land within the permit area must be completed by the operator no later than three years from completion of surface coal mining operations on such lands, unless otherwise prescribed by the commission

Ensure that the construction, maintenance, and postmining conditions of haul roads and access roads into and across the site of operations will control or prevent erosion and siltation, pollution of water, damage to fish or wildlife or their habitat, or public or private property

16. Refrain from the construction of haul roads and access roads up a streambed or drainage channel or in such proximity to such channel so as to seriously alter the normal flow of water

17. Restore lands affected by the surface coal mining operation which have been designated for postmining agricultural purposes to the level of productivity equal to or greater, under equivalent management practices, than nonmined agricultural lands of similar soil types in the surrounding area. For those lands which are to be rehabilitated to native grasslands, a diverse, effective, and permanent vegetative cover must be established of the same seasonal variety native to the area to be affected and capable of self-regeneration, plant succession, and at least equal in extent of cover and productivity to the natural vegetation of the area. The level of productivity and cover attained on disturbed lands within the permit area must be demonstrated by the permittee using comparisons with similar lands in the surrounding area having equivalent historical management practices and that are undisturbed by mining, or comparable disruptive activities

Assume the responsibility for successful revegetation, as required by subsection 17, for a period of ten full years after the last year of augmented seeding, fertilizing, irrigation, or other work, provided that, when the commission approves a long-term intensive agricultural postmining land use, the ten-year period of responsibility for revegetation commences at the date of initial planting. However, for previously mined areas that are affected by remining, the operator's responsibility for successful revegetation will extend for a period of five full years after the last year of augmented seeding, fertilizing, irrigation, and other work in order to assure compliance with the applicable standards. For the purposes of this subsection, "previously mined areas" are lands that were affected by coal or commercial leonardite mining activities prior to January 1, 1970, and "augmented seeding, fertilizing, irrigation, or other work" does not include normal conservation practices recognized locally as good management for the postmining land use

Place all spoil material from the initial pit or other excess spoil material resulting from surface coal mining and reclamation activities in such a manner that all of the following requirements are met: a

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

The areas of disposal are within the bonded permit areas

Appropriate surface and internal drainage systems and diversion ditches are used so as to minimize spoil erosion and movement

Page No. 25 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

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 this chapter

The final configuration is compatible with the natural drainage pattern and surroundings and suitable for intended uses

g. Design of the spoil disposal area is certified by a registered professional engineer in conformance with professional standards

All other provisions of this chapter are met

20. Meet such other criteria as are necessary to achieve reclamation in accordance with the purposes of this chapter, taking into consideration the physical, climatological, and other characteristics of the site

To the extent possible using the best technology currently available, minimize disturbances and adverse impacts of the surface coal mining operation on fish, wildlife, and related environmental values, and achieve enhancement of such resources where practicable

38-14.1-25. Prohibited mining practices

A permittee may not use any coal or commercial leonardite mine waste piles consisting of mine wastes, tailings, coal processing wastes, or other liquid or solid wastes either temporarily or permanently as dams or embankments unless approved by the commission, after consultation with the state engineer

A permittee may not locate any part of the surface coal mining and reclamation operations or deposit overburden, debris, or waste materials outside the permit area for which bond has been posted, except as provided in subsection 24 of section 38-14.1-03

A permittee may not deposit overburden, debris, or waste materials in such a way that normal erosion or slides brought about by natural causes will permit the same to go beyond or outside the permit area for which bond has been posted

38-14.1-26. Interference with commission employees

No operator or permittee may, except as provided by law, willfully resist, prevent, impede, or interfere with the commission or any of its agents in the performance of duties under this chapter. Whoever knowingly violates this section is, upon conviction, subject to the penalty provided in subsection 4 of section 38-14.1-32

38-14.1-27. Inspections and monitoring

For the purpose of developing or assisting in the development, administration, and enforcement of this chapter and of regulations promulgated by the commission in accordance with this chapter or in the administration and enforcement of any permit under this chapter, or of determining whether any operator or permittee is in violation of any requirement of this chapter or the regulations promulgated by the commission in accordance with this chapter: a

The commission shall require any permittee to: (1) Establish and maintain appropriate records

(2) Submit monthly, semiannual, annual, and other reports, including information as the commission may require

Install, use, and maintain any necessary monitoring equipment or methods

(3) (4) Evaluate results in accordance with such methods, at such locations, intervals, or in such manner as the commission shall prescribe

Page No. 26 b

(5) Provide such other information relative to surface coal mining and reclamation operations as the commission deems reasonable and necessary

For those surface coal mining and reclamation operations which remove or disturb strata that serve as aquifers which significantly ensure the hydrologic balance of water use either on or off the mining site, the commission, in consultation with other appropriate state agencies, shall specify those: (1) Monitoring sites to record the quantity and quality of surface drainage above and below the minesite as well as in the potential zone of influence

(2) Monitoring sites to record level, amount, and samples of ground water and aquifers potentially affected by the mining and also directly below the lowermost (deepest) coal or commercial leonardite seam to be mined

(3) Records of well logs and borehole data to be maintained

(4) Monitoring sites to record precipitation

The monitoring data collection and analysis required by this section must be conducted according to standards and procedures set forth by the commission in consultation with other appropriate state agencies in order to assure their reliability and validity

An annual map must be submitted by the operator to the commission for each year of the permit term and until the total bond amount has been released. The map must be in a form prescribed by the commission showing the status of surface coal mining and reclamation operations that have occurred during the year being reported, with a legend showing the number of acres [hectares] affected by such operations

The authorized representatives of the commission, without advance notice, without a warrant, and upon presentation of appropriate credentials: (1) Shall have the right of entry to, upon, or through any surface coal mining and reclamation operations or any premises in which any records required to be maintained under this subsection are located; and (2) May at reasonable times, and without delay, have access to and copy any records, inspect any monitoring equipment or method of operation required under this chapter

The commission shall cause to be made such inspections of any surface coal mining and reclamation operation as are necessary to ensure compliance with this chapter and any regulations promulgated pursuant thereto. However, the inspections by the commission shall: a. Occur on an irregular basis averaging not less than one partial inspection per month and one complete inspection per calendar quarter for the surface coal mining and reclamation operation covered by each permit

b. Occur without prior notice to the permittee or the permittee's agents or employees except for necessary onsite meetings with the permittee

Include the filing of inspection reports adequate to enforce the requirements of and to carry out the terms and purposes of this chapter

d. Occur without a warrant

Each permittee shall conspicuously maintain at the entrances to surface coal mining and reclamation operations a clearly visible sign which sets forth the name, business address, and telephone number of the permittee and the permit number of the surface coal mining and reclamation operation

Each inspector, upon detection of each violation of any requirement of this chapter or the regulations promulgated by the commission, shall inform the operator or permittee in writing, and shall report in writing any such violations to the commission

5. Copies of any material records, reports, inspection materials, or information required under this section by the commission must be filed in the office of the county auditor of the county in which the surface coal mining operations occur

Page No. 27 38-14.1-28. Enforcement procedures

1. Whenever, on the basis of any information available to it, including information from any person, the commission has reason to believe that any requirement of this chapter or of any regulation adopted by the commission under this chapter or any permit condition has not been complied with, the commission shall immediately conduct an inspection, without a warrant, of the surface coal mining operation at which the alleged violation is occurring unless the information available is a result of a previous inspection of such operation. If, based on such inspection, the commission determines enforcement measures are appropriate, it shall initiate one of the following procedures: If the commission or its authorized representative determines that any condition, a

practice, or violation exists which also creates an imminent danger to the health or safety of the public, or is causing, or can reasonably be expected to cause, significant, imminent environmental harm to land, air, or water resources, the commission or its authorized representative shall immediately order a cessation of surface coal mining and reclamation operations or the portion thereof relevant to the condition, practice, or violation. Such cessation order remains in effect until the commission or its authorized representative determines that the condition, practice, or violation has been abated, or until modified, vacated, or terminated by the commission or its authorized representative pursuant to paragraph 2

(1) When the commission finds that the ordered cessation will not completely abate the imminent danger or the significant imminent environmental harm, the commission shall, in addition to the cessation order, impose any remedial measures on the operator deemed necessary to abate the imminent danger or the significant environmental harm

(2) Any cessation order issued pursuant to this paragraph expires within thirty days of actual notice to the operator or permittee unless a public hearing is held within that period within such reasonable proximity of the site to allow viewings of the site during the course of the hearing

If the commission or its authorized representative determines that any operator or permittee is in violation of any requirement of this chapter or regulations thereunder or any permit condition but it is unable to make the additional finding that a condition, practice or violation exists which also creates an imminent danger to the health or safety of the public, or is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, the commission or its authorized representative shall serve on the operator or permittee a notice of violation. The notice must fix a reasonable time, not more than ninety days, for the abatement of the violation and shall provide opportunity for an informal conference pursuant to section 38-14.1-19 and for public hearing, if requested, pursuant to the procedures of section 38-14.1-30

(1) If the operator or permittee does not comply with the remedial measures set forth in the notice within the abatement period as originally fixed or subsequently extended for good cause shown and upon the written findings of the commission or its authorized representative, the commission or its authorized representative shall immediately order a cessation of surface coal mining and reclamation operations or that portion thereof relevant to the violation. Such cessation order remains in effect until the commission determines that the violation has been abated, or until modified, vacated, or terminated by the commission or pursuant to paragraph 2

If the commission or its authorized representative determines that a pattern of violations of any requirements of this chapter or of regulations thereunder or of any permit conditions exists or has existed and also finds that such violations are caused by the unwarranted failure of the permittee to comply with any b

Page No. 28 requirements of this chapter or any permit conditions, or that such violations are willfully caused by the permittee, an order to show cause why the permit should not be suspended or revoked shall promptly issue from the commission or its authorized representative and opportunity for a hearing on such order pursuant to procedures in subsection 2 of section 38-14.1-30 must be provided. Upon the permittee's failure to show cause why the permit should not be suspended or revoked, the commission or its authorized representative shall promptly suspend or revoke the permit

Any notices and orders issued pursuant to subsection 1 must set forth with reasonable specificity the nature of the violation and any remedial action required, any period of time established for abatement, and a reasonable description of the portion of the surface coal mining and reclamation operation to which the notice or order applies. All such notices and orders must be in writing, must be signed by the commission or its authorized representative, and must be served promptly upon the operator and permittee personally or by certified mail addressed to the permanent address of the operator and permittee

38-14.1-29. Procedures for imposing civil penalties

A civil penalty may be assessed by the commission as authorized by section 38-14.1-32 only after the operator or permittee has been given an opportunity for public hearing pursuant to the procedures specified in section 38-14.1-30

If such public hearing has been held, the commission shall make findings of fact and issue a written decision pursuant to subdivision g of subsection 3 of section 38-14.1-30 as to the occurrence of the violation and the amount of the penalty which is warranted, incorporating, when appropriate, an order requiring that the penalty be paid

If the operator or permittee charged with such violation fails to use the opportunity for a public hearing, a civil penalty must be assessed by the commission if it determines that a violation did occur and issues a final order requiring that the penalty be paid

2. Hearings under this section must be consolidated with any enforcement hearings under section 38-14.1-30

Any civil penalties assessed under this chapter may be recovered by the commission in a civil action in the North Dakota district court for the county in which the violation occurred or in which the party assessed has the party's residence or principal office in the state

38-14.1-30. Administrative review of commission rulings - Formal hearings

1. Within thirty days after a permit applicant is notified of a ruling by the commission pursuant to section 38-14.1-20, or after an operator or permittee is issued a notice or order pursuant to subdivision a or b of subsection 1 of section 38-14.1-28, or after the commission disapproves an application for release of all or a portion of a performance bond under section 38-14.1-17, or after the director of the state historical society renders a decision on an application for approval of a cultural resources mitigation plan under section 38-14.1-10 and subdivision u of subsection 1 of section 38-14.1-14, the applicant, operator, or permittee, or any person with an interest that is or may be adversely affected by the ruling, notice, or order or by an order modifying, vacating, or terminating a notice or order, may request and initiate formal hearing procedures before the commission. The right to the administrative review is forfeited if not requested within thirty days of the notification of any ruling or issuance of a notice of violation or order as provided in this subsection. The filing of an application for review under this subsection does not operate as a stay of any order or notice

Following the issuance pursuant to subdivision c of subsection 1 of section 38-14.1-28 of an order to show cause as to why a permit should not be suspended or revoked, the commission shall hold a public hearing pursuant to procedures specified in subsection 3 on such order to show cause. After such public hearing, the commission 2

Page No. 29 3

shall issue a written decision concerning suspension or revocation of the permit pursuant to subdivision g of subsection 3

If the commission issues an order of permit suspension, it shall subsequently reinstate the permit in accordance with procedures established by commission regulations, upon a showing of compliance with the condition for reinstatement as specified in the suspension order

If the permittee fails to comply with the conditions for reinstatement as specified in an order of suspension, the commission shall, pursuant to procedures established by commission regulations, issue an order revoking the permit and forfeiting the performance bond to the state of North Dakota

If the commission revokes a permit, all surface coal mining operations must cease immediately in the permit area

Administrative hearings pursuant to this section must be conducted in accordance with the provisions of chapter 28-32 and the following procedures: a

A hearing must be held within thirty days of a request for a formal hearing under subsection 1 or the issuance of an order to show cause under subsection 2

The commission shall cause an investigation to be made as it deems appropriate in connection with any hearing under this section. Evidence taken at a hearing under this section held in connection with a permit application ruling under section 38-14.1-20 may include, but is not limited to, site inspections of the land to be affected and other surface coal mining operations carried on by the applicant for a permit in the general vicinity of the proposed operation

c. Hearings held pursuant to this section are subject to judicial review in accordance with the provisions of chapter 28-32. Any requirements, procedural or otherwise, specifically imposed under this section which are in conflict with the provisions of chapter 28-32 shall supersede the provisions of chapter 28-32

All parties to any informal conference held in reference to a permit application or application for release of performance bond under section 38-14.1-19, and all persons who submitted comments or written objections to the application for release of performance bond or the permit application under sections 38-14.1-17 and 38-14.1-18 respectively, and the permittee and other interested parties in hearings to review enforcement actions taken pursuant to section 38-14.1-28 must be given written notice of the date, place, and time of the hearing at least twenty days prior to the hearing under this section. In case of an emergency, the notification period may be shortened, but in no event may notice be given less than five days prior to the hearing

In addition to any notice required by chapter 28-32, notice of hearings under this section must be published in the official newspaper of each county in which the subject matter of the hearing is located and in other daily newspapers of general circulation in the general vicinity of such counties, at least once a week for two successive weeks prior to the hearing. In case of an emergency, the publication period may be shortened, but in no event may notice be published less than five days prior to the hearing in daily newspapers of general circulation in the general locality of the subject matter involved

f. No person who presides at an informal conference under section 38-14.1-19 in reference to a permit application may preside at a formal administrative hearing under this section or participate in making the final administrative decision pursuant to chapter 28-32

All final orders of the commission under this section, except those issued under subsection 4, must be issued pursuant to the following procedures: (1) Whenever a formal hearing has been held, the commission shall issue a written order pursuant to chapter 28-32, provided that the decision must be issued within thirty days after the hearing. The commission shall have no discretion to increase such time period

In the event that no one with standing to request an administrative hearing under subsection 1 requests such a hearing, the commission shall establish (2) e

Page No. 30 4

whether or not a permit should be granted or suspended or revoked; or, in enforcement proceedings, whether the violation has in fact occurred; or, in connection with an application for release of a bond, whether the application should be approved or denied, in whole or in part; and shall issue a final order as appropriate pursuant to rules adopted by the commission

Pending completion of any investigation and hearing procedures being conducted under this section in connection with a request for review of a ruling on a permit application pursuant to section 38-14.1-20 or in connection with any notice or order issued pursuant to subdivision a or b of subsection 1 of section 38-14.1-28 and at any time prior to a decision by the commission on the request for review of a ruling on a permit application or a request for review of a notice or order, the permittee or any person with an interest which is or may be adversely affected by such notice, order, or the issuance of a permit may file with the commission a written request for temporary relief from such notice or order or permit decision together with a detailed statement giving reasons why such temporary relief should be granted. The commission shall issue an order granting or denying such relief expeditiously as provided by commission regulations. Provided, if the permittee or person with an interest which is or may be adversely affected requests relief from a cessation order, the commission's order under this subsection must be issued within five days of receipt of such request. The commission may grant such relief, under such conditions as it may prescribe, if: a

A hearing on the request for temporary relief has been held in the locality of the permit area, providing all parties with an opportunity to be heard and the requirements of subdivisions b and c have been met; The permittee or person shows that there is substantial likelihood that the findings of the commission in the formal administrative proceedings being conducted pursuant to this section will be favorable to the permittee or person; and Such relief will not adversely affect the health or safety of the public or cause significant, imminent environmental harm to land, air, or water resources

An order granting or denying temporary relief pursuant to this subsection is final and not subject to review in any subsequent administrative or judicial proceeding since any temporary relief granted is in effect only until the investigation and hearing procedures of this section are completed

5. Nothing in this section may be construed to eliminate any additional enforcement rights or procedures which may be available under state law but are not specifically enumerated herein

38-14.1-31. Civil action for injunctive relief

In addition to other relief available, the commission may without bond or other undertaking institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the North Dakota district court for the district in which the surface mining and reclamation operation is located or in which the permittee thereof has the permittee's principal office in the state, whenever such permittee or the permittee's agent: a

Fails to comply with any order or decision issued by the commission under this chapter; Interferes with or delays the commission or its authorized representative in carrying out the provisions of this chapter; c. Refuses to admit such authorized representative to the mine; d. Refuses to permit inspection of the mine by such authorized representative; e. Refuses to furnish any information or report requested by the commission in b

furtherance of this chapter; f. Refuses to permit access to, and copying of, such records as the commission determines necessary in carrying out the provisions of this chapter; or g. Refuses to permit inspection of monitoring equipment

The court has jurisdiction to provide such relief as may be appropriate, including a permanent or temporary injunction or restraining order

Page No. 31 3

Any relief granted by the court to enforce an order or decision under subdivision a of subsection 1 continues in effect until the completion or termination of all proceedings for administrative and judicial review of such order or decision unless the district court granting relief under this section sets it aside or modifies it prior to such final determination

4. No liability may accrue to the commission or its authorized representatives in proceeding against any operator or permittee pursuant to this section

38-14.1-32. Penalties - Unclassified

Any operator or permittee who violates this chapter, or any permit condition or regulation implementing this chapter may be assessed a civil penalty not to exceed ten thousand dollars per day of such violation except that if such violation leads to the issuance of a cessation order, a civil penalty must be assessed. Each day of continuing violation may be deemed a separate violation for purposes of penalty assessments. In determining the amount of the penalty, consideration must be given to: a

The operator's or permittee's history of previous violations at the particular surface coal mining operation; The seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public; c. Whether the operator or permittee was negligent; and d

The demonstrated good faith of the operator or permittee charged in attempting to achieve rapid compliance after notification of the violation

Any operator or permittee who fails to correct a violation for which a notice or order has been issued under section 38-14.1-28 within the period permitted for the accomplishment of remedial measures must be assessed a civil penalty of not less than seven hundred fifty dollars for each day during which such failure or violation continues

Any person, operator, or permittee must, upon conviction, be punished by a fine of not more than fifteen thousand dollars or by imprisonment for not more than one year, or both, who: a

Knowingly engages in surface coal mining operations without previously securing a permit as required by this chapter; Knowingly violates any permit condition or limitation implementing this chapter; b

c. Willfully makes any false statement, representation, or certification, or willfully fails to make any statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter; d. Willfully falsifies, tampers with, or knowingly and willfully renders inaccurate, any monitoring device or method required to be maintained under this chapter; or Fails or refuses to comply with a final order by a court pursuant to section 38-14.1-35, an order issued by the commission pursuant to section 38-14.1-28, or any order incorporated in a final decision by the commission, except an order incorporated in a decision requiring the payment of a penalty

Any operator or permittee who knowingly violates section 38-14.1-26 must, upon conviction, be punished by a fine of not more than five thousand dollars or by imprisonment for not more than one year, or both

Any employee of the commission who willfully violates section 38-14.1-38 must, upon conviction, be punished by a fine of not more than two thousand five hundred dollars, or by imprisonment of not more than one year, or both

6. Whenever a corporate permittee or limited liability company permittee violates a condition of a permit or fails or refuses to comply with an order issued by the commission pursuant to section 38-14.1-28, or any order incorporated in a final decision issued by the commission, except an order incorporated in a decision requiring the payment of a penalty, any director, officer, or agent of such corporation and any governor, manager, or agent of such limited liability company who willfully and Page No. 32 7

knowingly authorized, or carried out such violation, failure, or refusal is subject to the same criminal and civil penalties, fines, and imprisonment that may be imposed under subsections 1 and 3

Any action for the collection of civil penalties under this section must be tried in the district court for the county in which the alleged violation occurred or in which the person or operator alleged to have committed the violation has the person's or operator's residence or principal office in the state

38-14.1-33. Permit revocation - Bond forfeiture

The commission may institute proceedings for the revocation of the permit and forfeiture of the performance bond of a permittee for violation by the permittee of any of the provisions of this chapter or of regulations implementing this chapter. The commission shall issue an order forfeiting the bond and revoking the permit of a permittee who fails to comply with an order of the commission suspending the permit pursuant to subsection 2 of section 38-14.1-30

A permittee whose bond has been forfeited and permit revoked shall immediately cease all surface coal mining operations in this state. The permittee is not eligible to receive another permit unless the land for which the bond was forfeited has been reclaimed without cost to the state or the permittee has paid into the reclamation account a sum which, added to the value of the bond, the commission finds adequate to reclaim the land

A permittee who refuses or willfully fails to comply with this chapter is ineligible for any further mining permits. After an opportunity for hearing and after a finding by the commission that the permit applicant, or operator specified in the application, controls or has controlled mining operations with a demonstrated pattern of willful violations of this chapter, or the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201, et seq.], of such nature and duration and with such resulting irreparable damage to the environment as to indicate an intent not to comply with the provisions of this chapter, or the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201, et seq.], no permit may be issued to said permit applicant or permittee

38-14.1-34. Administrative review of regulations

Any person aggrieved or adversely affected by any regulation promulgated by the commission under this chapter may petition the commission for a hearing to reconsider or amend such regulation. The commission shall grant a public hearing pursuant to procedures established in chapter 28-32

38-14.1-35. Judicial review

There is a right to judicial review pursuant to sections 28-32-42 through 28-32-49: a

To any applicant or any person with an interest which is or may be adversely affected who has participated in administrative proceedings under section 38-14.1-30 as an objector, and who is aggrieved by the decision of the commission

To any person with an interest which is or may be adversely affected who has participated in the administrative proceedings if the commission fails to act within the time limits specified in this chapter or in accordance with the provisions of chapter 28-32

To any permittee who is subject to an order by the commission implementing a final decision to suspend or revoke the permittee's permit under section 38-14.1-28 or to any operator or permittee who is subject to an order by the commission implementing a final decision imposing a penalty under section 38-14.1-29 or any person having an interest which is or may be adversely affected by such order or by any modification, vacation, or termination of such order

Page No. 33 d

To any person claiming to be aggrieved or adversely affected by any regulation promulgated by the commission to carry out the provisions of this chapter or by any order of the commission or by its failure to enter an order

Availability of judicial review under this section may not be construed to limit the operation of the rights established in section 38-14.1-40 except as provided therein

38-14.1-36. Assessment of costs - Attorney's fees

1. Whenever an order is issued as a result of any administrative proceeding under this chapter, at the request of any party, a sum equal to the aggregate amount of all costs and expenses, including attorney's fees as determined by the commission to have been reasonably incurred by such party for or in connection with the party's participation in such proceedings, may be assessed against any party as the commission deems proper

The court, in issuing any final order pursuant to chapter 28-32 in review of commission proceedings under this chapter may assess costs, including attorney's fees against any party whenever the court determines such award is appropriate

The court, in issuing any final order in a civil action brought under section 38-14.1-40 by any person having an interest which is or may be adversely affected to compel compliance with this chapter, may award costs of litigation, including attorney's and expert witness fees, to any party whenever the court determines such award is appropriate

In civil proceedings pertaining to this chapter, the provisions of this section govern as herein provided, rather than those provided for in section 28-26-01

38-14.1-37. Small operators

The provisions of this chapter do not apply to any of the following activities: a

Extraction of coal or commercial leonardite by a landowner for the landowner's own noncommercial use from land owned or leased by the landowner

Extraction of coal or commercial leonardite as an incidental part of federal, state, or local government-financed highway or other construction under regulations established by the commission

If the commission finds that the probable total annual production at all locations to be mined by any permit applicant will not exceed three hundred thousand tons [272155.41 metric tons], the cost of the following activities, which must be performed by a qualified public or private entity designated by the commission, may be assumed by the commission upon the written request of the operator in connection with a permit application: a

The determination of probable hydrologic consequences required by subdivision o of subsection 1 of section 38-14.1-14, including the engineering analyses and designs necessary for the determination

The development of cross sections, maps, and plans required by subdivision r of subsection 1 of section 38-14.1-14

The geologic drilling and the statement of the result of test borings and core samplings required by subdivision s of subsection 1 of section 38-14.1-14

The collection of cultural resource information required by subdivision u of subsection 1 of section 38-14.1-14, any other archaeological and historical information required by the director of the state historical society, and the preparation of mitigation plans necessitated thereby

Preblast surveys required by subdivision e of subsection 13 of section 38-14.1-24

The collection of site-specific resource information and the development of protection and enhancement plans for fish and wildlife habitats and other environmental values required by the commission in accordance with this chapter

Page No. 34 3

The commission may provide or assume the cost of training coal or commercial leonardite operators who meet the qualifications in subsection 2 concerning the preparation of permit applications and compliance with the regulatory program

An operator who has received assistance under subsection 2 or 3 shall reimburse the commission for the cost of the services rendered if the commission finds that the operator's actual and attributed annual production of coal or commercial leonardite for all locations exceeds three hundred thousand tons [272155.41 metric tons] during the twelve months immediately following the date the operator is issued a surface coal mining and reclamation permit

Proposed surface coal mining operations that will not be subject to payment of reclamation fees required by the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.] are not eligible for the assistance to small operators provided by subsections 2 and 3

38-14.1-38. Conflict of interest

No employee of the commission performing any function or duty under this chapter may have a direct or indirect financial interest in any underground or surface coal mining operation. Whoever willfully violates this section is, upon conviction, subject to the penalty provided in subsection 5 of section 38-14.1-32. The commission shall promulgate regulations to establish methods by which the provisions of this section will be monitored and enforced by the commission, including appropriate provisions for the filing by such employees and the review of statements and supplements thereto concerning any financial interests which may be affected by this section

38-14.1-39. Forfeitures - Surface mining and reclamation fund - Continuing appropriation

Performance bond forfeitures collected under this chapter must be deposited in the state treasury and credited to a special account designated as the surface mining and reclamation fund. All moneys deposited to the surface mining and reclamation fund are hereby appropriated to the commission for the purpose of reclaiming land affected by surface coal mining operations. The fund is not subject to section 54-44.1-11

38-14.1-40. Citizen suits

Any person having an interest which is or may be adversely affected may commence a civil action on the person's own behalf to compel compliance with this chapter, or any regulation, order, or permit issued pursuant to this chapter: a

Against any person or any governmental instrumentality or agency who is alleged to be in violation of any regulation, order, or permit issued pursuant to this chapter; or Against the commission when there is alleged a failure of the commission to perform any act or duty under this chapter which is not discretionary with the commission

2. Notice of the violation must be given to the commission and to any alleged violator sixty days before commencement of an action under subdivision a of subsection 1. Notice of the commencement of an action under subdivision b of subsection 1 must be given to the commission in such manner as the commission shall prescribe by regulation sixty days before commencement of such action, except that such action may be brought immediately after notification if the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff

3. No action may be commenced if the commission has commenced and is diligently prosecuting a civil action to require compliance with the provisions of this chapter, or any regulation, order, or permit issued pursuant to this chapter. In any such action, any person with an interest which is or may be adversely affected may intervene as a matter of right

Page No. 35 4

Any person who is injured in person or property through the violation by any operator or permittee of any rule, order, or permit issued pursuant to this chapter may bring an action for damages, including reasonable attorney's and expert witness fees, or for temporary or permanent equitable relief. This subsection does not affect the rights established by or limits imposed under the state workforce safety and insurance laws

Any action brought under this section may be brought only in the district court in which the surface coal mining operation complained of is located. The commission, if not a party, may intervene in any such action as a matter of right

6. Nothing in this section restricts any right which any person or class of persons may have under any statute or common law to seek enforcement of any of the provisions of this chapter and the regulations thereunder, or to seek any other relief, including relief against the commission

38-14.1-41. Chapter 28-32 to apply to this chapter - Regulations

Chapter 28-32 applies to this chapter, except as otherwise provided in specific provisions of this chapter. The commission may promulgate regulations with respect to the administration of this chapter under chapter 28-32 except that if the commission determines that an emergency exists due to changes in federal performance standards promulgated under the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.], and any amendments thereto, the commission may adopt emergency regulations in accordance with the purposes of this chapter, which are effective immediately upon approval by the attorney general. Such emergency regulations remain in effect for a period not to exceed ninety days unless a public hearing is held pursuant to sections 28-32-10 and 28-32-11

38-14.1-42. Cooperation with federal and state agencies

The commission shall have the authority to cooperate with and receive technical and financial assistance from the United States, any state, or any department, agency, or officer thereof, and to file such reports and promulgate regulations as required by federal law for any purposes relating to reclamation. In the administration, inspection, and enforcement of North Dakota's reclamation program, the commission is also authorized and encouraged to cooperate with other federal and state agencies in order to eliminate duplication of effort and unnecessary review, establish a common database for similar reviews and timely decisions, and to promulgate rules and regulations relevant to such authorization

Page No. 36

Previous Section

Chapter 38-14 Reclamation of Surface-Mined Lands [Repealed]

Next Section

Chapter 38-14.2 Abandoned Surface Mine Reclamation