Section 34-33-120 - Environmental protection performance standards - regulations(1) Any permit issued under this article shall require that the surface coal mining and reclamation operations meet all applicable performance standards of this article.(2) General performance standards shall be applicable to all surface coal mining and reclamation operations and shall require such operations to: (a) Conduct surface coal mining operations so as to maximize the utilization and conservation of the solid fuel resource being recovered so that reaffecting the land in the future through surface coal mining can be minimized;(b) Restore 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 of which there is reasonable likelihood, so long as such use or uses do not present any actual or probable hazard to public health or safety or pose any actual or probable threat of water diminution or pollution which would be contrary to state or federal laws, rules, or regulations, and so long as the permit applicant's declared proposed land use following reclamation is not deemed to be impractical or unreasonable, is not inconsistent with applicable land use policies and plans, does not involve unreasonable delay in implementation, and is not violative of federal, state, or local law;(c) Except as provided in subsection (3) of this section with respect to all surface coal mining and reclamation operations, backfill, compact where needed to provide stability or to prevent leaching of toxic materials, and grade in order to restore the approximate original contour of the land, eliminating all highwalls, spoil piles, and depressions unless small depressions are needed in order to retain moisture to assist revegetation or as otherwise authorized pursuant to this article; except that, in surface coal mining which is carried out at the same location over a substantial period of time where the operations transect the coal deposit, and where the thickness of the coal deposits relative to the volume of the overburden is large, and where the operator demonstrates that the overburden and other spoil and waste materials at a particular point in the permit area or otherwise available from the entire permit area is insufficient, giving due consideration to volumetric expansion, to restore the approximate original contour, the operator, at a minimum, shall backfill, grade, and compact, where needed, using all available overburden and other spoil and waste materials to attain the lowest practicable grade, but not more than the angle of repose, to provide adequate drainage and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with the surrounding region; except that in surface coal mining where the volume of overburden is large relative to the thickness of the coal deposit and where the operator demonstrates that due to volumetric expansion the amount of overburden and other spoil and waste materials removed in the course of the mining operation is more than sufficient to restore the approximate original contour, the operator shall, after restoring the approximate original contour, backfill, grade, and compact, where needed, the excess overburden and other spoil and waste materials to attain the lowest grade, but not more than the angle of repose, and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with the surrounding region; and except that such overburden or spoil shall be shaped and graded in such a way as to prevent slides, erosion, and water pollution and shall be revegetated in accordance with the requirements of this article;(d) Stabilize and protect all surface areas, including spoil piles, affected by the surface coal mining and reclamation operations to effectively control erosion and attendant air and water pollution;(e) Remove the topsoil from the land in a separate layer, replace it on the backfill area or, if not utilized immediately, segregate it in a separate pile from other spoil, and, when the topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of the topsoil, maintain a successful cover by quick-growing plant or other means thereafter so that the topsoil is preserved from wind and water erosion, remains free of any contamination by other acid or toxic material, and is in a usable condition for sustaining vegetation when restored during reclamation; except that, if topsoil is of insufficient quantity or of poor quality for sustaining vegetation or if other strata can be shown to be more suitable for vegetation requirements, the operator shall remove, segregate, and preserve in a like manner such other strata which is best able to support vegetation;(f) Restore the topsoil or the best available subsoil which is best able to support vegetation;(g) Unless exempted by section 34-33-114 (4)(b), for all prime farmlands as identified in section 34-33-110 (2)(q) to be mined and reclaimed, comply with specifications for soil removal, storage, replacement, and reconstruction to be established by the secretary of the United States department of agriculture, and the operator shall be required, as a minimum, to:(I) Segregate the A horizon of the natural soil, except where it can be shown that other available soil materials will create a final soil having a greater productive capacity, and, if not utilized immediately, stockpile this material separately from other spoil and provide needed protection from wind and water erosion or contamination by other acid or toxic material;(II) Segregate the B horizon of the natural soil, or underlying C horizons or other strata, or a combination of such horizons or other strata that are shown to be both texturally and chemically suitable for plant growth and that can be shown to be equally or more favorable for plant growth than the B horizon, in sufficient quantities to create in the regraded final soil a root zone of comparable depth and quality to that which existed in the natural soil, and, if not utilized immediately, stockpile this material separately from other spoil and provide needed protection from wind and water erosion or contamination by other acid or toxic material;(III) Replace and regrade the root zone material described in subparagraph (II) of this paragraph (g) with proper compaction and uniform depth over the regraded spoil material; and(IV) Redistribute and grade in a uniform manner the surface soil horizon described in subparagraph (I) of this paragraph (g);(h) Create, if authorized in the approved reclamation plan and permit, permanent impoundments of water on mining sites as part of reclamation activities only when it is adequately demonstrated that:(I) The size of the impoundment is adequate for its intended purposes;(II) The impoundment dam construction will be so designed as to achieve necessary stability with an adequate margin of safety compatible with that of structures constructed under Public Law 83-566, 16 U.S.C. sec. 1006;(III) The quality of impounded water will be suitable on a permanent basis for its intended use and that discharges from the impoundment will not degrade the water quality below water quality standards established pursuant to applicable federal and state law in the receiving stream;(IV) The level of water will be sufficiently stable for its intended use;(V) Final grading will provide adequate safety and access for proposed water users; and(VI) Such water impoundments will not result in the diminution of the quality of water or the quantity of water available to water right holders for agricultural, industrial, recreational, or domestic uses;(i) Conduct any augering operation associated with surface coal mining in a manner to maximize recoverability of coal reserves remaining after the mining and reclamation operations are complete and seal all auger holes with an impervious and noncombustible material in order to prevent drainage except where the office determines that the resulting impoundment of water in such auger holes may create a hazard to the environment or the public health or safety; except that the office may prohibit augering if necessary to maximize the utilization, recoverability, or conservation of the solid fuel resources or to protect against adverse water quality impacts;(j) Minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated off-site areas and to the quality and quantity of water in surface and groundwater systems both during and after surface coal mining operations and during reclamation by: (I) Avoiding acid or other toxic mine drainage by such measures as, but not limited to: (A) Preventing or removing water from contact with toxic producing deposits;(B) Treating drainage to reduce toxic content which adversely affects downstream water upon being released to watercourses;(C) Casing, sealing, or otherwise managing boreholes, shafts, and wells to keep acid or other toxic drainage from entering groundwaters and surface waters;(II)(A) Conducting surface coal mining operations so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow or runoff outside the permit area, but in no event shall contributions be in excess of requirements set by applicable state or federal law;(B) Constructing any siltation structures pursuant to sub-subparagraph (A) of this subparagraph (II) prior to commencement of surface coal mining operations, such structures to be certified by a qualified registered engineer to be constructed as designed and as approved in the reclamation plan;(III) Cleaning out and removing temporary or large settling ponds or other siltation structures from drainways after disturbed areas are revegetated and stabilized and depositing the silt and debris at a site and in a manner approved by the office. The office may approve the retention of sediment ponds as permanent impoundments if all requirements of paragraph (h) of this subsection (2) are met.(IV) Restoring recharge capacity of the mined area to approximate premining conditions;(V) Avoiding channel deepening or enlargement resulting from the discharge of water from mines;(VI) Preserving throughout the mining and reclamation process the essential hydrologic functions of alluvial valley floors;(VII) Taking such other actions reasonably related to the purposes of this paragraph (j) as the office may prescribe for good cause shown;(k) With respect to surface disposal of mine wastes, tailings, coal processing wastes, and other wastes in areas other than the mine working or excavations, stabilize all waste piles in designated areas through construction in compacted layers and through the use of incombustible and impervious materials if necessary and 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 article;(l) Refrain from surface coal mining within five hundred feet, measured horizontally, from active and abandoned underground mines in order to prevent breakthroughs and to protect the health and safety of miners; except that the office shall permit an operator to mine near, through, or partially through an abandoned underground mine or closer to an active underground mine if the nature, timing, and sequencing of the approximate coincidence of specific surface mine activities with specific underground mine activities are jointly approved by the office and by the United States mine safety and health administration, or its successor, and 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;(m) Design, locate, construct, operate, maintain, enlarge, modify, and remove or abandon, in accordance with the standards and criteria developed pursuant to subsection 515 (f) of the federal "Surface Mining Control and Reclamation Act of 1977", as amended, all existing and new coal mine waste piles consisting of mine wastes, tailings, coal processing wastes, or other liquid and solid wastes and used either temporarily or permanently as dams or embankments;(n) Ensure that all debris, acid-forming materials, 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 groundwaters or surface waters and that contingency plans are developed to prevent sustained combustion;(o) Ensure that explosives used in connection with the extraction of coal by surface methods are used only in accordance with existing state and federal law and blasting regulations promulgated by the board, in consultation with appropriate state agencies, which shall include provisions to:(I) Provide adequate advance written notice to local governments and residents who might be affected by the use of such explosives by publication of the planned blasting schedule in a newspaper of general circulation in the locality and by mailing a copy of the proposed blasting schedule to every business or residence located within one-half mile of the proposed blasting site and by providing daily notice to resident occupants in such areas prior to any blasting or notice of less frequency as each resident occupant in such areas shall approve in writing;(II) 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;(III) Limit the type of explosives and detonating equipment and the size, timing, and frequency of blasts based upon the physical conditions of the site so as to prevent injury to persons, damage to public and private property outside the permit area, adverse impacts on any underground mine, and change in the course, channel, or availability of groundwaters or surface waters outside the permit area;(IV) Require that all blasting operations be conducted by trained and competent persons certified under a program which meets the minimum criteria established by applicable law;(V) Provide that, upon the request of a resident or owner of a man-made dwelling or structure within one-half mile of any portion of the permitted area, the applicant or permittee shall conduct a preblasting survey of such structures and submit the survey to the office and a copy to the resident or owner making the request. The area of the survey shall be decided by the office and shall include such provisions as the board shall promulgate.(p) Ensure that all reclamation efforts proceed in an environmentally sound manner and as contemporaneously as practicable with the surface coal mining operations; except that, where the applicant proposes to combine surface coal mining operations with underground mining to assure maximum practical recovery of the mineral resources, the board or office may grant a variance for specific areas within the reclamation plan from the requirement that reclamation efforts proceed as contemporaneously as practicable to permit underground mining prior to reclamation: (I) If the board or office finds in writing that:(A) The applicant has presented, as part of the permit application, specific, feasible plans for the proposed underground mining operations;(B) The proposed underground mining is necessary or desirable to assure maximum practical recovery of the mineral resource and will avoid multiple disturbance of the surface;(C) The applicant has satisfactorily demonstrated that the plan or revision for the underground mining activities conforms to applicable local and state requirements for underground mining and that the permits necessary for the underground mining activities have been issued by the appropriate authorities;(D) The areas proposed for the variance have been shown by the applicant to be necessary for the proposed underground mining;(E) No substantial adverse environmental damage, either on-site or off-site, will result from the delay in completion of reclamation as required by this article;(F) Provisions for the off-site storage of spoil will comply with paragraph (v) of this subsection (2);(II) If the board has promulgated specific regulations to govern the granting of such variances in accordance with the provisions of this article;(III) If variances granted under the provisions of this paragraph (p) are to be reviewed by the office not more than three years from the date of issuance of the variance; and(IV) If liability under the bond filed by the applicant with the office pursuant to section 34-33-113 (2) will continue for the duration of the underground mining activities and until the requirements of this subsection (2) and section 34-33-125 have been fully complied with;(q) Ensure that the construction, maintenance, and postmining conditions of access roads into and across the site of operations will control or prevent erosion and siltation, pollution of water, or damage to fish or wildlife or their habitat or to public or private property;(r) Refrain from the construction of roads or other access ways up a stream bed or drainage channel or in such proximity to such channel so as to seriously alter the normal flow of water;(s) Establish on the regraded areas, and all other lands affected, a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area; except that introduced species may be used in the revegetation process where desirable and necessary to achieve the postmining land use specified in the approved reclamation plan;(t) Assume responsibility for successful revegetation, as required by paragraph (s) of this subsection (2), for a period of five years after the last year of augmented seeding, fertilizing, irrigation, or other work in order to assure compliance with paragraph (s) of this subsection (2); except that, in those areas or regions of the state where the annual average precipitation is twenty-six inches or less, the operator's assumption of responsibility and liability will extend for a period of ten years after the last year of augmented seeding, fertilizing, irrigation, or other work; except that, when the board approves a long-term, intensive, agricultural postmining land use, the applicable five-year or ten-year period of responsibility for revegetation shall commence at the date of initial planting for such long-term, intensive, agricultural postmining land use; and except that, when the board issues a written finding approving a long-term, intensive, agricultural postmining land use as part of the mining and reclamation plan, the office may grant exception to the provisions of paragraph (s) of this subsection (2);(u) Protect off-site areas from slides or damage occurring during the surface coal mining and reclamation operations and require that such operations not deposit spoil material or locate any part of the operations or waste accumulations outside the permit area;(v) Place all excess spoil material resulting from surface coal mining and reclamation operations in such a manner that: (I) The spoil is transported and placed in a controlled manner in position for concurrent compaction and in such a way to assure mass stability and to prevent mass movement;(II) The areas of disposal are within the bonded permit areas and all vegetative matter shall be removed immediately prior to spoil placement;(III) The appropriate surface and internal drainage systems and diversion ditches are used to prevent spoil erosion and movement;(IV) 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;(V) If placed on a slope, the spoil is placed upon the most moderate slope of those upon which, in the judgment of the division, the spoil could be placed in compliance with all of the requirements of this article and shall be placed, where possible, upon or above a natural terrace, bench, or berm, if such placement provides additional stability and prevents mass movement;(VI) Where the toe of the spoil rests on a downslope, a rock toe buttress of sufficient size is constructed to prevent mass movement;(VII) The final configuration will be compatible with the natural drainage pattern and surroundings and suitable for the proposed postmining land use;(VIII) The design of the spoil disposal area is certified by a qualified licensed professional engineer in conformance with professional standards; and(IX) All other provisions of this article are met;(w) Meet such other criteria as are necessary to achieve reclamation in accordance with the purposes of this article, taking into consideration the physical, climatological, and other characteristics of the site;(x) To the extent possible using the best technology currently available, minimize disturbances from and adverse impacts of the surface coal mining operations on fish, wildlife, and related environmental values and achieve enhancement of such resources where practicable; and(y) Provide for an undisturbed natural barrier beginning at the elevation of the lowest coal seam to be mined and extending from the outslope for such a distance as the office shall determine shall be retained in place as a barrier to slides and erosion.(3)(a) When an applicant meets the requirements of paragraphs (b) and (c) of this subsection (3), a permit may be granted for surface coal mining operations without regard to the requirement to restore to approximate original contour set forth in paragraph (c) of subsection (2) of this section or subparagraph (II) or (III) of paragraph (a) of subsection (4) of this section if surface coal mining operations will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill (except as provided in subparagraph (I) of paragraph (c) of this subsection (3)), by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining and capable of supporting postmining uses in accordance with the requirements of this subsection (3).(b) In cases where an industrial, a commercial, an agricultural, a residential, or a public use including a recreational facility is proposed for the postmining use of the affected land, the office shall grant a permit for a surface coal mining operation of the nature described in paragraph (a) of this subsection (3) if: (I) After consultation with the appropriate land use planning agencies, if any, the proposed postmining land use is deemed to constitute an equal or better economic or public use of the affected land, as compared with premining use;(II) The applicant presents specific plans for the proposed postmining land use and appropriate assurances that such use will be:(A) Compatible with adjacent land uses;(B) Obtainable according to data regarding expected need and market;(C) Assured of investment in necessary public facilities;(D) Supported by commitments from public agencies where appropriate;(E) Practicable with respect to private financial capability for completion of the proposed use;(F) Planned pursuant to a schedule attached to the reclamation plan so as to integrate the surface coal mining and reclamation operations with the postmining land use; and(G) Designed by a registered engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site;(III) The proposed use would be consistent with adjacent land uses and existing state and local land use plans and programs;(IV) The office provides the board of county commissioners, of the county in which the land is located, and any state or federal agency which the office determines to have an interest in the proposed use an opportunity of not more than sixty days to review and comment on the proposed use; and(V) All other requirements of this article will be met.(c) In granting any permit pursuant to this subsection (3), the office shall require that:(I) The toe of the lowest coal seam and the overburden associated with it are retained in place as a barrier to slides and erosion;(II) The reclaimed area be stable;(III) The resulting plateau or rolling contour drain inward from the outslopes except at specified points;(IV) No damage be done to natural watercourses;(V) Spoil will be placed on the mountaintop bench as is necessary to achieve the proposed postmining land use; except that all excess spoil material not retained on the mountaintop shall be placed in accordance with the provisions of paragraph (v) of subsection (2) of this section;(VI) Stability of the spoil retained on the mountaintop be ensured; and(VII) All other requirements of this article will be met.(d) The board shall promulgate specific regulations to govern the granting of permits in accord with the provisions of this subsection (3).(e) All permits granted under the provisions of this subsection (3) shall be reviewed not more than three years from the date of issuance of the permit, unless the applicant affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the approved schedule and reclamation plan.(4)(a) The following performance standards shall be applicable to steep-slope surface coal mining and shall be in addition to those general performance standards required by this section; except that the provisions of this subsection (4) shall not apply to surface coal mining on flat or gently rolling terrain on which an occasional steep slope is encountered through which the mining operation is to proceed, leaving a plain or predominantly flat area or in which an operator is in compliance with the provisions of subsection (3) of this section: (I) Ensure that, when performing surface coal mining on steep slopes, no debris, abandoned or disabled equipment, spoil material, or waste mineral matter be placed on the downslope below the bench or mining cut; except that spoil material in excess of that required for the reconstruction of the approximate original contour under the provisions of paragraph (c) of subsection (2) of this section or subparagraph (II) of this paragraph (a) shall be permanently stored pursuant to paragraph (v) of subsection (2) of this section.(II) Complete backfilling with spoil material shall be required to cover completely the highwall and return the site to the approximate original contour, which material shall maintain stability following the surface coal mining and reclamation operations.(III) The operator shall not disturb land above the top of the highwall unless the board or office finds that such disturbance will facilitate compliance with the environmental protection standards of this section; except that the land disturbed above the highwall shall be limited to that amount necessary to facilitate said compliance.(b) For the purposes of this subsection (4), the term "steep slope" means any slope above twenty degrees or such lesser slope as may be determined by the board or office after consideration of soil, climate, and other characteristics of a region.(5)(a) The board shall establish procedures pursuant to which it may permit variances for the purposes set forth in paragraph (c) of this subsection (5): If the watershed control of the area is improved; and if complete backfilling with spoil material is required to completely cover the highwall, which material will maintain stability following the surface coal mining and reclamation operations.(b) When an applicant meets the requirements of paragraphs (c) and (d) of this subsection (5), a variance from the requirement to restore to approximate original contour set forth in subparagraph (II) of paragraph (a) of subsection (4) of this section shall be granted for surface coal mining if the owner of the surface knowingly requests in writing, as a part of the permit application, or application for permit revision, that such a variance be granted so as to render the land, after reclamation, suitable for an industrial, an agricultural, a commercial, a residential, or a public use, including a recreational facility, in accordance with the provisions of paragraphs (c) and (d) of this subsection (5).(c) Before granting a variance pursuant to this subsection (5), the board or office shall determine that: (I) The proposed postmining land use of the affected land will be an equal or better economic or public use, after consultation with appropriate land use planning agencies in such matter, and that such use is designed and certified by a qualified licensed professional engineer in conformance with professional standards established to ensure the stability, drainage, and configuration necessary for the proposed postmining land use; and(II) After approval of the appropriate state environmental agencies, the watershed of the affected land will be improved.(d) In granting a variance pursuant to this subsection (5), the board or office shall require that only such amount of spoil be placed off the mine bench as is necessary to achieve the proposed postmining land use, ensure stability of the spoil retained on the bench, and meet all other requirements of this article and shall ensure that all spoil placements off the mine bench comply with paragraph (v) of subsection (2) of this section.(e) The board shall promulgate specific regulations to govern the granting of variances in accord with the provisions of this subsection (5).(f) All variances granted under the provisions of this subsection (5) shall be reviewed not more than three years from the date of issuance of the variance, unless the permittee affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the reclamation plan.(6) Any additional criteria, mining or reclamation measures, or other conditions which the office requires the operator to meet, satisfy, or undertake in connection with the issuance, revision, or transfer of permits or in connection with the conduct of a surface coal mining operation shall be based upon good cause shown by the office, taking into consideration the specific conditions at the site, and shall bear a reasonable relationship to the purposes and provisions of this article. Any applicant or operator shall have the right, at any regular meeting of the board, upon proper notice, to seek the informal opinion of the board concerning any request or requirement of the office for such additional criteria, mining or reclamation measures, or other conditions, and such informal opinion of the board shall not be binding upon any of the parties.L. 79: Entire article added, p. 1275, § 1, effective July 1. L. 92: (2)(i), (2)(j)(III), (2)(j)(VII), (2)(l), (2)(o)(V), IP(2)(p), (2)(p)(I), (2)(p)(III), (2)(p)(IV), (2)(t), (2)(y), IP(3)(b), (3)(b)(IV), (3)(c), (4)(a)(III), (4)(b), (5)(c), (5)(d), and (6) amended, p. 1956, § 63, effective July 1. L. 2004: (2)(v)(VIII) and (5)(c)(I) amended, p. 1315, § 68, effective May 28. For the "Surface Mining Control and Reclamation Act of 1977", see 30 U.S.C. § 1201 et seq.