Performance Requirements

PURPOSE: This rule sets forth the requirements that a surface mine operator must meet to protect the environment and restore the surface-mined land by setting standards for post-mining land use, backfilling and grading, sediment and water management control, protection of adjacent properties and time extension criteria pursuant to section 444.760–444.790, RSMo. (1) Copies of all current Land Reclamation Program permits must be available for inspection at the mine office that is listed on the permit application. (2) Lateral Support Requirements. (A) The distance from a public road, street or highway rightof-way to the beginning of excavation shall be— 1. Twenty-five feet (25') plus one and one-half (1 1/2) times the depth of unconsolidated material; and 2. The minimum allowable distance is fifty feet (50'), unless a variance is granted by the commission. The variance shall be according to 10 CSR 40-10.040(2) and shall be approved by the authority having jurisdiction over the road. (B) For unconsolidated materials left in place, a slope of no more than forty degrees (40°) may start near the right-of-way line and proceed to the excavation which is the point where the slope exceeds forty degrees (40°). In either case, the excavation shall be no closer to the right-of-way than twenty-five feet (25'), plus one and one-half (1 1/2) times the depth of unconsolidated material or fifty feet (50'), whichever is greater, unless a variance is granted according to paragraph (2)(A)2. (3) Safety Barrier Requirements. (A) An adequate safety barrier must be placed at the perimeter of the excavation if the excavation is— 1. At or within fifty feet (50') of the right-of-way of any public road and no other adequate barriers exist; or 2. Fifty feet (50') or closer to any property line and is necessary to mitigate serious and obvious threats to public safety. (B) The barrier shall be a minimum of three feet (3') high. (4) Erosion and Siltation Control Requirements. (A) The commission may require erosion or sedimentation control if damaging erosion or siltation occurs or is likely to occur from land affected by surface mining onto adjacent lands. (B) Erosion and siltation are considered damaging if it causes the approved post-mining land use not to be met or excess silt is deposited on or outside the affected area. 1. Erosion control includes, but is not limited to, diverting runoff away from the permitted area, straw dikes, riprap, check dams, mulch, vegetative cover, chemical treatment and limiting livestock grazing. 2. Sedimentation control includes, but is not limited to, vegetative sediment filters, sediment ponds, silt fences and keeping the disturbed, but reclaimed, area to a minimum by timely reclamation. 3. Erosion control structures shall be constructed to United States Department of Agriculture Natural Resources Conservation Service (NRCS) standards. 4. Sedimentation ponds shall be built to the requirements of the publication Natural Resources Conservation Service Conservation Practice Standard, POND (No.) CODE 378 (NRCS MOFOTG, December 1998), unless subsection (9)(C) or (D) regarding Missouri Dam Safety or Mine Safety and Health Administration (MSHA) apply. 5. Sedimentation ponds shall be designed and built to control damaging runoff. (5) Grading Requirements. (A) The affected areas must be graded to a free draining topography traversable by farm machinery and suitable for the intended land use. (B) Exceptions to the Grading Requirements of Subsection (5)(A). 1. Slopes need not be reduced to less than the original slope of the areas prior to mining by the permittee. 2. Areas that will be under water permanently. 3. Areas that will be reclaimed for wildlife purposes where up to twenty-five percent (25%) of the acreage of overburden generated by surface mining during each permit year need not be graded to a rolling topography, but shall be graded to a minimum width of thirty feet (30') or one-half (1/2) the diameter of the base of the pile, whichever is less. 4. Boxcut spoil that cannot be reclaimed to wildlife purposes shall be graded to a slope no steeper than twenty-five degrees (25°) from horizontal. 5. Slopes of dams, berms, dikes, ditches or terraces. 6. Areas in the floodplain of a river or stream subject to flooding and to the extent that grading would be unsafe or ineffective as outlined in section 444.774.1(11), RSMo. 7. For barite pits, section 444.774.1(2), RSMo, requires the sidewalls of the excavation to be graded to a point where it blends with the surrounding topography. In no case shall the contour be such that erosion and siltation are increased. 8. Highwalls consisting of consolidated materials may remain after reclamation if overburden material removed during mining is not available for use as backfill or if the backfilling of a highwall is impracticable. 9. Sites that are temporarily inactive as a result of a finding by the director as per section (10) of this rule are exempt provided that appropriate site stabilization measures are substituted for the grading requirement. Appropriate site stabilization measures shall be specified, if applicable, in the permit application and may include, but not be limited to: A. Seeding with approved temporary and permanent species of grasses and legumes; B. Mulching, installing and maintaining silt fences; and C. Otherwise preventing erosion on areas affected by surface mining activities. (C) Covering Acid-Forming Materials. 1. Acid-forming materials or other materials requiring special handling uncovered during mining shall be covered with two feet (2') of nontoxic-, nonacid-forming material. 2. Acid-forming materials shall include the following: A. Materials having an acid-base deficiency of more than five (5) tons calcium carbonate equivalent per one thousand (1,000) tons of material; B. Materials having a pyritic sulfur content of more than two percent (2%) per one thousand (1,000) tons of material; C. Materials having an electrical conductivity of more than four millimhos/centimeter (4.0) (mmhos/cm); D. Materials having a pH of less than four and one-half (4.5); E. Oil, scum or other hydrocarbon materials in sufficient amounts collected on or in impoundments which will affect wildlife adversely; and F. Waste materials from the processing of tar sands. (D) When surface mining tar sands, all spent sands and refuse shall be collected and disposed of as the commission prescribes as conditions of the permit. (6) Topsoil Handling Requirements. (A) Soil Removal. 1. A twelve-inch (12") layer that includes the A horizon (the topsoil) and the unconsolidated material immediately below the topsoil, or all of unconsolidated material if the total available is less than twelve inches (12"), shall be removed and replaced as the surface soil layer. 2. If twelve inches (12") of the A horizon and the unconsolidated material immediately below the topsoil does not exist, the SCS county soil survey shall be used to verify available material. If the operator disagrees with the SCS survey or if the SCS soil survey is not available, it shall become his/her burden to demonstrate that less than twelve inches (12") of material existed prior to mining. 3. All of the required soil material shall be removed before drilling, blasting, mining or other surface disturbance can take place. 4. All topsoil shall be removed ten feet (10') ahead of the mineral or overburden excavations unless use of substitute materials is approved in the reclamation plan. (B) Whenever topsoil is not respread immediately, the stockpiled topsoil or substitute material shall be placed in a stable area within the permit area where it will not be disturbed or be exposed to excessive water, wind erosion or contaminants. Topsoil shall be protected from erosion, whether in stockpiles or after replacement on graded spoil, by establishment of a temporary or permanent vegetative cover or by mulching. (C) Soil Redistribution. 1. Topsoil redistribution. Topsoil shall be redistributed in a manner that— A. Achieves an approximate uniform thickness; B. Prevents excess compaction of the topsoil; and C. Protects the slope from erosion, on all slopes fiveto-one (5:1) ratio or greater or where erosion occurs, by the operator applying mulch or using other measures approved by the director. 2. Nutrients and soil amendments shall be applied to the surface soil layer in a manner sufficient to achieve a vegetative cover as required by section 444.774.2, RSMo and these rules. 3. No topsoil or other approved material is required to be placed on areas reclaimed for wildlife purposes or industrial areas as specified in the reclamation plan. (D) Overburden or other approved materials may be used as a topsoil substitute material provided the resulting soil medium is equal to or more suitable for vegetation and if all the following requirements are met: 1. The operator demonstrates in the reclamation plan that the selected overburden materials or an overburden-topsoil mixture is equal to or more suitable for restoring land capability and productivity by results of chemical and physical analysis. These analyses shall include determinations of pH, percent organic material, phosphorus, potassium, texture class and water-holding capacity; 2. The chemical and physical analyses are performed by a qualified laboratory; and 3. The alternative material is removed and replaced in accordance with this section. (E) Sale or Destruction of Topsoil. 1. The approved reclamation plan also may include a provision for the sale or disposal of excess topsoil, provided sufficient topsoil is stockpiled as necessary to carry out the reclamation plan. 2. If topsoil is removed and either sold or made unavailable for reclamation, a four thousand five hundred-dollar ($4,500)-per-acre bond for each acre to be revegetated shall be posted with the Land Reclamation Commission for each acre on which this occurs, unless a substitute material is stockpiled. This bonding requirement shall not apply to areas where topsoil does not exist prior to mining. (7) Revegetation and Post-Mining Land Uses. (A) Reclaimed areas shall be able to support or be utilized, or both, for one (1) or more of the following uses: 1. Wildlife habitat—Areas that will be utilized as forest, wildlife shelter, wildlife food sources and that can be protected from livestock; 2. Agricultural—Areas that will be utilized as pasture, cropland, horticultural crops and support facilities; 3. Development—Areas that will be utilized as home sites, industrial development and recreational sites; and 4. Water impoundments—Areas that provide water impoundments for wildlife habitat, agricultural uses or development uses. (B) Revegetation. 1. Where required, the operator shall establish a vegetative cover appropriate for the approved land use and in conjunction with 10 CSR 40-10.020(2)(D)3. by methods based on sound agronomic and forestry practices. 2. The vegetation on all affected areas, as appropriate, shall be sufficient to control erosion. 3. All soil amendments made for the purpose of establishing or improving vegetative cover on an affected area shall be based upon soil test results from a qualified soils lab. (8) Cleanup Requirements. All debris and materials generated by the mining operations not allowed or shown on the reclamation plan must be removed before reclamation is considered complete. (9) Permanent Final Pit Impoundments. (A) Section 444.774.1(7), RSMo allows for permanent impoundments in the final cut in a permit area. The impoundment shall— 1. Not interfere with other mining operations. 2. Not damage adjoining property. 3. Comply with section 444.774.1(8), RSMo, which requires— A. If the impoundment will cover the exposed face of a mineral seam where toxic materials are present, then it must be constructed to prevent a constant inflow from a stream and the discharge must not cause fish or wildlife kills; and B. If the impoundment will cover tar sands, the tar sands must be capped with two feet (2') of earth; and no layer of hydrocarbon will be allowed to collect on the surface that will affect fish or wildlife adversely. (B) The impoundment shall be designed and constructed to SCS Ponds 378 standards for Missouri. (C) If the height of the dam is thirty-five feet (35') or more, as measured from the natural bed of the stream or lowest point on the toe of the dam (whichever is lower) up to the crest elevation, then the operator must have the designs approved by the Dam and Reservoir Safety Program per 10 CSR 22-3.020 prior to construction of the impoundment. (D) If the structure can impound water or sediment to a height of five feet (5') or more above the upstream toe of the structure and can have a storage volume of twenty (20) acrefeet or more, or can impound water or sediment to an elevation of twenty feet (20') or more above the upstream toe, then the operator is advised that the federal requirements of 30 CFR 77.216 may apply. (E) The effluent shall meet National Pollutant Discharge Elimination System (NPDES) standards where NPDES permits have been issued before the bond is released. (10) Timing of Reclamation. Reclamation shall commence as soon as practicable after the completion of surface mining of viable mineral reserves in any portion of the permit area in accordance with the plan of reclamation required by subsection 9 of 444.772, RSMo, these rules and the conditions of the permit. (A) Grading and topsoil replacement shall be completed within twelve (12) months after mining of viable mineral reserves is complete in that portion of the permit area based on the operator’s prior mining practices at that site. Mining shall not be deemed complete if the operator can provide credible evidence, in writing, to the director that viable mineral reserves are present. (B) Seeding and planting shall be completed within twenty-four (24) months after mining of viable mineral reserves is complete in that portion of the permit area based on the operator’s prior mining practices at that site. Mining shall not be deemed complete if the operator can provide credible evidence, in writing, to the director that viable mineral reserves are present, with survival of vegetation by the second growing season. (C) All areas within the permit shall be subject to this timetable unless it can be shown by the operator that the area is needed as a part of the active operations. (D) The director or commission shall keep information confidential if the person submitting it requests, in writing at the time of submission, that it be kept confidential and the information concerns trade secrets or is privileged commercial or financial information relating to the competitive rights of the persons intending to provide information. (E) The director’s determination shall be documented in writing to the file. (11) Signs. A sign(s) identifying the mine area shall be displayed at the primary point of access to the permit area. It shall show the name of the permittee. The operator shall exhibit due diligence in maintaining the sign(s) until after the release of all performance bonds. (12) Substitution of Previously Mined Land for Reclamation. (A) The operator may reclaim an area of previously mined land as a substitute for the areas actually disturbed by the permitted mining. Substitute areas need not be contiguous to the original permit area. (B) The substitute area must be shown to have an equivalent or greater reclamation benefit than the original mine site. (C) The landowners of both the substitute areas and the original mine site must have given approval for the substitution. (D) The operator shall submit two (2) copies of an application and reclamation plan on a form provided by the commission and maps equivalent to 10 CSR 40-10.020(2)(E). (E) The operator must receive approval of the request from the commission or director before the reclamation is initiated on the substitute site. (F) The operator shall be released of all responsibility for reclamation on the area previously permitted. (13) Flood Plain. (A) Mining conducted in flood plains of streams and rivers subject to periodic flooding may be exempt from grading requirements if it can be demonstrated to the commission that grading would be unsafe to pursue or ineffective in achieving proper reclamation. (B) Areas that are in a flood plain, as defined in 10 CSR 4010.100(8), and where reclamation operations are unsafe to pursue or ineffective in achieving reclamation as defined in subsection (13)(C), will be exempted automatically without demonstration to the commission if it can be demonstrated to the director. (C) Reclamation operations shall be considered unsafe to pursue or ineffective in achieving reclamation if the land surface is affected severely in that inundation causes surface changes that makes reclamation ineffective and nonpermanent. (14) In-Stream Gravel Removal Requirements. (A) Commercial operations that conduct sand and/or gravel removal within the stream banks must comply with the following requirements. (B) The following requirements are designed to protect water quality while allowing for the excavation of sand and gravel from riparian environments. Upon request of the applicant, the program may establish site-specific variances to address conditions that may occur at individual locations. 1. Excavation of sand or gravel deposits shall be limited to deposits in unconsolidated areas containing primarily smaller material (at least eighty-five percent (85%) of the material is less than three inches (3") in diameter) that is loosely packed and contains no woody perennial vegetation greater than one and one-half inches (1 1/2") in diameter, measured at breast height four and one-half feet (4.5'). 2. An undisturbed buffer of ten foot (10') width shall be left between the excavation area and the water’s edge of the flowing stream at the time of excavation. A buffer zone of adequate width to protect bank integrity should be left between the excavation area and the base of the high bank. 3. An undisturbed buffer of twenty-five feet (25') wide shall be maintained in an undisturbed condition landward of the high bank for the length of the gravel removal site. Disturbed areas in this riparian zone shall be limited to maintained access road(s) for ingress and egress only. No clearing within this riparian area is authorized in association with work authorized by this permit. 4. Sand or gravel shall not be excavated below water elevation at the time of removal, except: A. If the stream is dry at the time of excavation, excavation shall not occur deeper than the lowest undisturbed elevation of the stream bottom adjacent to the site. Upon request of the applicant, excavation depth restriction may be modified if the staff director determines that a variance would not significantly impact the stream resource. B. For wet stream reaches, excavation depth restriction may be modified if it is determined by the staff director that a variance would not significantly impact the stream resource based on the presence of bedrock to prevent head cutting, excessive bedload, gravel rich areas or any other appropriate reason. 5. Stream channels shall not be relocated, straightened, cut off, shortened, widened, or otherwise modified. A stream channel is defined as that area between the high banks of the creek where water is flowing, or in the case of a dry stream, where water would flow after a rain event. 6. Within thirty (30) days of the removal of excavation equipment from the site, streambank areas disturbed by the removal operation shall be revegetated or otherwise protected from erosion. For long-term operations (longer than thirty (30) days) or for sites that will be periodically revisited as gravel is deposited, access points shall be appropriately constructed and maintained such that stream banks and access roads are designed and constructed to minimize erosion. 7. Any aggregate, fines, or oversized material removed from the site shall be placed beyond the high bank, on a non-wetland site that has been approved by the landowner. No material, including oversized material, that results from excavation activity may be stockpiled or otherwise placed into flowing water or placed against streambanks as bank stabilization unless specifically authorized by a state or federal permit. 8. All sand or gravel washing, gravel crushing, and gravel sorting shall be conducted beyond the high bank, in a non-wetland area and away from areas that frequently flood, such that gravel, silt, and wash water that is warm, stagnant, or contains silty material cannot enter the stream or any wetland. 9. Vehicles and other equipment shall be limited to removal sites and existing crossings. Water shall be crossed as perpendicular to the direction of the stream flow as possible. 10. Fuel, oil and other wastes and equipment containing such wastes shall not be stored or released at any location between the high banks or in a manner that would enter the stream channel. Such materials shall be disposed of at authorized locations. (15) Outstanding Resource Waters (10 CSR 20-7.031). (A) In-stream sand and gravel operations are prohibited from those waters listed as “Outstanding National Resource Waters.” (B) In-stream sand and gravel operations are prohibited from those segments of “Outstanding State Resource Waters” that are owned or managed by a state or federal agency. (C) All other applications for in-stream sand and gravel operations on “Outstanding State Resource Waters” shall be reviewed individually to determine if specific conditions are necessary to preserve these stream reaches during mining activity. These individual reviews would assist the applicant in focusing on issues of specific concern. The individual review shall include a site visit by Department of Natural Resources (DNR) staff prior to permit issuance, and annual site inspections by DNR staff during the life of the permit. (16) The Land Reclamation Program shall consult with the appropriate agencies as to the presence of state and federal threatened and endangered species in the stream reach in order to avoid jeopardizing the species’ continued existence or destroying or adversely modifying the habitat of such species. AUTHORITY: sections 444.530, RSMo 2000 and 444.767, 444.772, 444.774 and 444.784, RSMo Supp. 2004.* Original rule filed Aug. 2, 1991, effective Feb. 6, 1992. Amended: Filed June 1, 1994, effective Nov. 30, 1994. Amended: Filed Dec. 16, 2003, effective Sept. 30, 2004. Amended: Filed April 1, 2004, effective May 30, 2005. *Original authority: 444.530, RSMo 1971, amended 1983, 1990, 1993, 1995; 444.767, RSMo 1971 amended 1990, 1993, 2001; 444.772, RSMo 1971, amended 1984, 1990, 1992, 2001; 444.774, RSMo 1971, 1990, 2001; and 444.784, RSMo 1971, amended 1990, 2001.