Requirements for Permits for Special Categories of Surface Coal Mining and Reclamation Operations

PURPOSE: This rule sets forth requirements for permits for special categories of surface coal mining and reclamation operations pursuant to sections 444.810, 444.815, 444.820, 444.825, 444.835, 444.840, and 444.850, RSMo. PUBLISHER’S NOTE: The secretary of state has determined that the publication of the entire text of the material which is incorporated by reference as a portion of this rule would be unduly cumbersome or expensive. This material as incorporated by reference in this rule shall be maintained by the agency at its headquarters and shall be made available to the public for inspection and copying at no more than the actual cost of reproduction. This note applies only to the reference material. The entire text of the rule is printed here. (1) Experimental Practices Mining. (A) Subsections (1)(B)–(I) of this rule apply to any person who conducts or intends to conduct surface coal mining and reclamation operations under a permit authorizing the use of alternative mining practices on an and Reclamation Operations and Coal Exploration experimental basis if the practices require a variance from the environmental protection performance standards of 10 CSR 40-3 and 10 CSR 40-4 and the regulatory program. (B) The purpose of this section is to provide requirements for the permitting of surface coal mining and reclamation operations that encourage advances in mining and reclamation practices or allow postmining land use for industrial, commercial, residential, or public use (including recreational facilities) on an experimental basis. (C) Experimental practice as used in this section means the use of alternative surface coal mining and reclamation operations practices for experimental or research purposes. Experimental practices need not comply with specific environmental protection performance standards of 10 CSR 40-3 and 10 CSR 40-4 or the regulatory program, if approved pursuant to this section. (D) No person shall engage in or maintain any experimental practice, unless that practice is first approved in a permit. (E) Each person who desires to conduct an experimental practice shall include this practice in the permit application. The experimental practice application shall also be sent to the director of the office. The permit application shall contain appropriate descriptions, maps, data, and plans which show— 1. The nature of the experimental practice; 2. How use of the experimental practice— A. Encourages advances in mining and reclamation technology; or B. Allows a postmining land use for industrial, commercial, residential, or public use (including recreational facilities) on an experimental basis, when the results are not otherwise attainable under the approved regulatory program; 3. That the mining and reclamation operations proposed for using an experimental practice are not larger or more numerous than necessary to determine the effectiveness and economic feasibility of the experimental practice; 4. That the experimental practice— A. Is potentially more or at least as environmentally protective, during and after the proposed mining and reclamation operations, as those required under 10 CSR 40-3 and 10 CSR 40-4 and the regulatory program; and B. Will not reduce the protection afforded public health and safety below that provided by the requirements of 10 CSR 403 and 10 CSR 40-4 and the regulatory program; and 5. That the applicant will conduct special monitoring with respect to the experimental practice during and after the operations involved. The monitoring program shall— A. Ensure the collection and analysis of sufficient and reliable data to enable adequate comparisons to be made with other surface coal mining and reclamation operations employing similar experimental practices; and B. Include requirements designed to identify, as soon as possible, potential risks to the environment and public health and safety from the use of the experimental practice. (F) Each application shall set forth the environmental protection performance standards of 10 CSR 40-3 and 10 CSR 40-4 which will be implemented in the event the objective of the experimental practice is a failure. (G) All experimental practices shall be specifically identified through newspaper advertisements by the applicant and the written notifications required under 10 CSR 406.070(2). (H) No permit authorizing an experimental practice shall be issued, unless it is found, in writing, upon the basis of both a complete application filed in accordance with the requirements of this section and the comments of the office that— 1. The experimental practice meets all of the requirements of paragraphs (1)(E)2.— 5. of this rule; 2. The experimental practice is based on a clearly defined set of objectives which can reasonably be expected to be achieved; 3. The experimental practice has been specifically approved, in writing, by the director of the office based on the findings of the director of the office that all of the requirements of paragraphs (1)(E)1.–5. of this rule will be met; and 4. The permit contains conditions which specifically— A. Limit the experimental practice authorized to that granted by the commission or director and the director of the office; B. Impose enforceable alternative environmental protection requirements; and C. Require the person to conduct the periodic monitoring, recording, and reporting program set forth in the application, with additional requirements as the commission or director or the director of the office may require. (I) Each permit which authorizes the use of an experimental practice will be reviewed in its entirety at least every three (3) years by the director, or at least once prior to the middle of the permit term, with a report filed with the commission. After review, the director, with the consent of the director of the office, shall require by order, supported by written findings, any reasonable revision or modification of the permit provisions necessary to ensure that the operations involved are conducted to protect fully the environment and public health and safety. Any person who is or may be adversely affected by the order shall be provided with an opportunity for a hearing in accordance with 10 CSR 406.080. (J) Variances from the special environmental protection performance standards applicable to prime farmlands shall be approved only after consultation with the United States Department of Agriculture Natural Resources Conservation Service. (K) Revisions or modifications to an experimental practice shall be processed in accordance with the requirements of this chapter and approved by the commission. Any revisions which propose significant alterations in the experimental practice, at a minimum, shall be subject to notice, hearing, and public participation requirements of this chapter and concurrence by the commission. Revisions that do not propose significant alterations in the experimental practice shall not require concurrence by the commission. (2) Steep Slope Mining. (A) This section applies to any person who conducts or intends to conduct steep slope surface coal mining and reclamation operations except— 1. Where an operator proposes to conduct surface coal mining and reclamation operations on flat or gently rolling terrain, leaving a plain or predominantly flat area, but on which an occasional steep slope is encountered as the mining operation proceeds; and 2. To the extent that a person obtains a permit incorporating a variance under section (3) of this rule. (B) Any application for a permit for surface coal mining and reclamation operations covered by this section shall contain sufficient information to establish that the operations will be conducted in accordance with the requirements of 10 CSR 40-4.040. (C) No permit shall be issued for any operations covered by this section unless it is found in writing that in addition to meeting all other requirements of this chapter the operation will be conducted in accordance with the requirements of 10 CSR 40-4.040. (3) Permits Incorporating Variances From Approximate Original Contour Restoration Requirements for Steep Slope Mining. (A) This section applies to nonmountaintop removal, steep slope surface coal mining, and reclamation operations where the operation is not to be reclaimed to achieve the approximate original contour required by 10 CSR 40-3.110(1)–(6) or 10 CSR 40-6.260. (B) The objective of this section is to allow for a variance from approximate original contour restoration requirements on steep slopes for surface coal mining and reclamation operations to— 1. Improve watershed control of lands within the permit area and on adjacent lands; and 2. Make land within the permit area, after reclamation, suitable for an industrial, commercial, residential, or public use, including recreational facilities. (C) A permit for surface mining activities incorporating a variance from the requirement for restoration of the affected lands to their approximate original contour may be issued only if it is first found, in writing, on the basis of a complete application, that all of the following requirements are met: 1. The applicant has demonstrated that the purpose of the variance is to make the lands to be affected within the permit area suitable for an industrial, commercial, residential, or public use postmining land use; 2. The proposed use, after consultation with the appropriate land-use planning agencies, if any, constitutes an equal or better economic or public use; 3. The applicant has demonstrated compliance with the requirements for acceptable alternative postmining land uses of 10 CSR 40-3.130 or 10 CSR 40-3.300; 4. The applicant has demonstrated that the watershed of lands within the proposed permit area and adjacent areas will be improved by the operations. The watershed will only be deemed improved if— A. There will be a reduction in the amount of total suspended solids or other pollutants discharged to ground or surface waters from the permit area as compared to discharges prior to mining, so as to improve public or private uses or the ecology of these waters; or there will be reduced flood hazards within the watershed containing the permit area by reduction of the peak flow discharges from precipitation events or thaws; B. The total volume of flows from the proposed permit area, during every season of the year, will not vary in a way that adversely affects the ecology of any surface water or any existing or planned use of surface or ground water; and C. The Clean Water Commission approves the plan; 5. The applicant has demonstrated that the owner of the surface of the lands within the permit area has knowingly requested, in writing, as part of the application, that a variance be granted. The request shall be made separately from any surface owner consent given for the operations under 10 CSR 406.030(3) and shall show an understanding that the variance could not be granted without the surface owner’s request; 6. The applicant has demonstrated that the proposed operations will be conducted in compliance with the requirements of 10 CSR 40-4.040(3); and 7. All other requirements of the regulatory program will be met by the proposed operations. (D) If a variance is granted under this section— 1. The requirements of 10 CSR 404.040(3) shall be made a specific condition of the permit; and 2. The permit shall be specifically marked as containing a variance from approximate original contour. (E) Any permits incorporating a variance issued under this section shall be reviewed by the director to evaluate the progress and development of the mining activities, to establish that the operator is proceeding in accordance with the terms of the variance— 1. Within the sixth month preceding the third year from the date of its issuance; 2. Before each permit renewal; and 3. Not later than the middle of each permit term. (F) If the permittee demonstrates to the director at any of the times specified in subsection (3)(E) of this rule that the operations involved have been and continue to be conducted in compliance with the terms and conditions of the permit and the regulatory program, the review required at that time need not be held. (G) The terms and conditions of a permit incorporating a variance under this section may be modified at any time if it is determined that more stringent measures are necessary to ensure that the operations involved are conducted in compliance with the regulatory program. (4) Prime Farmlands. (A) For purposes of this section— 1. Renewal of a permit shall mean a decision by the regulatory authority to extend the time by which the permittee may complete mining within the boundaries of the original permit and revision of the permit shall mean a decision by the regulatory authority to allow changes in the method of mining operations within the original permit area or the decision of the regulatory authority to allow incidental boundary changes to the original permit; 2. A pit shall be deemed to be a single continuous mining pit even if portions of the pit are crossed by a road, pipeline, railroad, or powerline or similar crossing; and 3. A single continuous surface coal mining operation is presumed to consist only of a single continuous mining pit under a permit issued prior to August 3, 1977, but may include noncontiguous parcels if the operator can prove by clear and convincing evidence that, prior to August 3, 1977, the noncontiguous parcels were part of a single permitted operation. For the purposes of paragraph (4)(A)3., clear and convincing evidence includes, but is not limited to, contracts, leases, deeds, or other properly executed legal documents (not including options) that specifically treat physically separate parcels as one (1) surface coal mining operation. (B) Scope. This section applies to any person who conducts or intends to conduct surface coal mining and reclamation operations on prime farmlands historically used for cropland. Nothing in this section shall apply to any permit issued prior to August 3, 1977, any revisions or renewals of the permit, or any continuous and existing strip mining operation for which a permit was issued prior to August 3, 1977. To meet the criteria of a continuous and existing operation, the applicant must submit the following to the director for review: 1. Proof that a definite contract for the coal field, which they intend to mine, existed on August 3, 1977; 2. Proof that the permittee had a legal right to mine the lands prior to August 3, 1977, through ownership, contract, or lease, but not including an option to buy, lease, or contract; 3. Proof that the lands contain part of a continuous recoverable coal seam that was being mined in a single continuous mining pit (or multiple pits if the lands are proven to be part of a single continuous surface coal mining operation) begun under a permit issued prior to August 3, 1977; 4. A plan including any supportive data required by the director outlining the proposed procedures to meet the productive capacity of the intended land use as declared in the permit, as per 10 CSR 40-3.120; and 5. A detailed map delineating the exempted acreage. (C) Application Contents—Prime Farmland. All permit applications for areas in which prime farmland has been identified within the proposed permit area shall include the following: and Reclamation Operations and Coal Exploration 1. A soil survey of the permit area according to the standards of the National Cooperative Soil Survey and in accordance with the procedures set forth in the United States Department of Agriculture Handbooks 436 Soil Taxonomy (United States Soil Conservation Service, 1975), as amended on March 22, 1982, and October 5, 1982, and 18 Soil Survey Manual (United States Soil Conservation Service, 1951), as amended on December 18, 1979, May 7, 1980, May 9, 1980, September 11, 1980, June 9, 1981, June 29, 1981, and November 16, 1982. The United States Natural Resources Conservation Service (NRCS) establishes the standards of the National Cooperative Soil Survey and maintains a National Soils Handbook which gives current acceptable procedures for conducting soil surveys. This National Soils Handbook is available for review at area and state NRCS offices. A. United States Department of Agriculture Handbooks 436 and 18 are incorporated by reference as they exist on November 23, 1987. Notices of changes made to these publications will be periodically published in the Federal Register. The handbooks are on file and available for inspection at the Land Reclamation Program, 1101 Riverside Drive, Jefferson City, MO 65101. Copies of these documents are also available from the superintendent of documents, United States Government Printing Office, Washington, DC 20402, Stock Nos. 001-000-02597-0 and 001-000-00688-6, respectively. In addition, these documents are available for inspection at the national, state, and area offices of the NRCS, United States Department of Agriculture and through the Federal Register Library, 1100 L Street, NW, Washington, DC. Incorporation by reference provisions were approved by the director of the Federal Register on June 29, 1981. B. The soil survey shall include a description of soil mapping units and a representative soil profile as determined by the United States NRCS, including, but not limited to, soil horizon depths, pH, and the range of soil densities for each prime farmland soil unit within the permit area. Other representative soil profile descriptions from the locality, prepared according to the standards of the National Cooperative Soil Survey, may be used if their use is approved by the state conservationist, United States NRCS. The director may request the operator to provide information on other physical and chemical soil properties as needed to make a determination that the operator has the technological capability to restore the prime farmland within the permit area to the soil reconstruction standards of 10 CSR 40-4.030; 2. A plan for soil reconstruction, replacement, and stabilization for the purpose of establishing the technological capability of the mine operator to comply with the requirements of 10 CSR 40-4.030; 3. Scientific data, such as agricultural school studies, for areas with comparable soils, climate, and management that demonstrate that the proposed method of reclamation, including the use of soil mixtures or substitutes, if any, will achieve, within a reasonable time, levels of yield equivalent to, or higher than, those of nonmined prime farmland in the surrounding area; 4. The productivity prior to mining, including the average yield of food, fiber, forage, or wood products obtained under a high level of management; and 5. United States NRCS forms MO-LTP1 and MO-LTP-2 shall be submitted as part of the application. (D) Consultation With the Secretary of Agriculture. 1. The secretary of agriculture has responsibilities with respect to prime farmland soils and has assigned the prime farmland responsibilities arising under the Act to the chief of the United States NRCS. The United States NRCS shall carry out consultation and review through the state conservationist located in each state. 2. The state conservationist shall provide to the director a list of prime farmland soils, their location, physical and chemical characteristics, crop yields, and associated data necessary to support adequate prime farmland soil descriptions. 3. The state conservationist shall assist the director in describing the nature and extent of the reconnaissance inspection required in 10 CSR 40-6.040(16)(C). 4. Before any permit is used for areas that include prime farmland, the director shall consult with the state conservationist. The state conservationist shall provide for the review of, and comment on, the proposed method of soil reconstruction in the plan submitted under paragraph (4)(C)2., of this rule. If the state conservationist considers those methods to be inadequate, s/he shall suggest revisions to the director which result in more complete and adequate reconstruction. (E) Issuance of Permit. A permit for the mining and reclamation of prime farmland may be granted by the director if s/he first finds, in writing, upon the basis of a complete application, that— 1. The approved proposed postmining land use of these prime farmlands will be cropland; 2. The permit incorporates as specific conditions the contents of the plan submitted under paragraph (4)(C)2. of this rule, after consideration of any revisions to that plan suggested by the state conservationist under paragraph (4)(D)4. of this rule; 3. The applicant has the technological capability to restore the prime farmland, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management; 4. The proposed operations will be conducted in compliance with the requirements of 10 CSR 40-4.030 and other environmental protection performance and reclamation standards for mining and reclamation of prime farmland of the Land Reclamation Program; and 5. The aggregate total prime farmland acreage has not decreased from that which existed prior to mining. Water bodies, if any, to be constructed during mining and reclamation operations must be located within the post-reclamation nonprime farmland portions of the permit area. The creation of any such water bodies must be approved by the regulatory authority and the consent of all affected property owners within the permit area must be obtained. (5) Augering. (A) This section applies to any person who conducts or intends to conduct surface coal mining and reclamation operations utilizing augering operations. (B) Any application for a permit for operations covered by this section shall contain in the mining and reclamation plan a description of the augering methods to be used and the measures to be used to comply with 10 CSR 40-4.020. (C) No permit shall be issued for any operations covered by this section unless it is found in writing that, in addition to meeting all other applicable requirements of this chapter, the operation will be conducted in compliance with 10 CSR 40-4.020. (6) Coal Processing Plants or Support Facilities Not Located Within the Permit Area of a Specified Mine. (A) This section applies to any person who conducts or intends to conduct surface coal mining and reclamation operations utilizing coal processing plants or support facilities not within a permit area of a specific mine. Any person who operates this processing plant or support facility shall have obtained a permit in accordance with the requirements of this section. (B) Any application for a permit for operations covered by this section shall contain in the mining and reclamation plan, specific plans, including descriptions, maps, and cross-sections of the construction, operation, maintenance, and removal of the processing plants and associated support facilities. The plan shall demonstrate that those operations will be conducted in compliance with 10 CSR 40-4.050. (C) No permit shall be issued for any operation covered by this section unless it is found, in writing, that, in addition to meeting all other applicable requirements of this chapter, the operations will be conducted in compliance with the requirements of 10 CSR 404.050. (7) Variances for Delay in Contemporaneous Reclamation Requirement in Combined Surface and Underground Mining Operations. (A) Scope. This section applies to any person who conducts or intends to conduct combined surface mining activities and underground mining activities where contemporaneous reclamation as required by 10 CSR 403.150(2) is not practicable and a delay is requested to allow underground mining activities to be conducted before the reclamation operation for the surface mining activities can be completed. (B) Application Contents for Variances. Any person who desires to obtain a variance under this rule shall file with the director complete applications for both the surface mining activities and underground mining activities which are to be combined. The mining and reclamation operation plans for these permits shall contain appropriate narratives, maps and plans, which— 1. Show why the proposed underground mining activities are necessary or desirable to assure maximum practical recovery of coal; 2. Show how multiple future disturbances of surface lands or waters will be avoided; 3. Identify the specific surface areas for which a variance is sought and the particular sections of the law, these regulations, and the regulatory program from which a variance is being sought; 4. Show how the activities will comply with 10 CSR 40-4.060 and other applicable requirements of the regulatory program; 5. Show why the variance sought is necessary for the implementation of the proposed underground mining activities; 6. Provide an assessment of the adverse environmental consequences and damages, if any, that will result if the reclamation of the surface mining activities is delayed; and 7. Show how off-site storage of spoil will be conducted to comply with the requirements of the law, 10 CSR 40-3.060, and the regulatory program. (C) Issuance of Permit. A permit incorporating a variance under this rule may be issued by the director, if s/he first finds, in writing, upon the basis of a complete application filed in accordance with this rule, that— 1. The applicant has presented, as part of the permit application, specific feasible plans for the proposed underground mining activities; 2. The proposed underground mining activities are necessary or desirable to assure maximum practical recovery of the mineral resource and will avoid multiple future disturbances of surface land or waters; 3. The applicant has satisfactorily demonstrated that the applications for the surface mining activities and underground mining activities conform to the requirements of the regulatory program and that all other permits necessary for the underground mining activities have been issued by the appropriate authority; 4. The surface area of surface mining activities proposed for the variance has been shown by the applicant to be necessary for implementing the proposed underground mining activities; 5. No substantial adverse environmental damage, either on- or off-site, will result from the delay in completion of reclamation otherwise required by section 444.860.2(16), RSMo, 10 CSR 40-3, and the regulatory program; 6. The operations, as far as a variance is authorized, will be conducted in compliance with the requirements of 10 CSR 40-4.060 and the regulatory program; 7. Provisions for off-site storage of spoil will comply with the requirements of section 444.855.2(22), RSMo, 10 CSR 40-3.060, and the regulatory program; 8. Liability under the performance bond required to be filed by the applicant with the director pursuant to 10 CSR 40-7 shall be for the duration of the underground mining activities and until all requirements of 10 CSR 407 and the regulatory program have been complied with; and 9. The permit for the surface mining activities contains specific conditions— A. Delineating the particular surface areas for which a variance is authorized; B. Identifying the particular requirements of 10 CSR 40-4.060 and the regulatory program which are to be complied with, in lieu of the otherwise applicable provisions of section 444.855.2., RSMo, 10 CSR 40-3, and the regulatory program; and C. Providing a detailed schedule for compliance with the particular requirements of 10 CSR 40-4.060 and the regulatory program identified under subparagraph (7)(C)9.B. of this rule. (D) Review of Permits Containing Variances. Variances granted under permits issued under this rule shall be reviewed by the director no later than three (3) years from the dates of issuance of the permit and any permit renewals. (8) In Situ Processing Activities. (A) This section applies to any person who conducts or intends to conduct surface coal mining and reclamation operations utilizing in situ processing activities. (B) Any application for a permit for operations covered by this section shall be made according to all requirements of this chapter applicable to underground mining activities. In addition, the mining and reclamation operations plan for operations involving in situ processing activities shall contain information establishing how those operations will be conducted in compliance with the requirements of 10 CSR 40-4.070, including: 1. Delineation of proposed holes and wells and production zone for approval of the director; 2. Specifications of drill holes and casings proposed to be used; 3. A plan for treatment, confinement, or disposal of all acid-forming, toxic-forming or radioactive gases, solids, or liquids constituting a fire, health, safety, or environmental hazard caused by the mining and recovery process; and 4. Plans for monitoring surface and ground water, and air quality, as required by the director. (C) No permit shall be issued for operations covered by this section unless the director first finds, in writing, upon the basis of a complete application made in accordance with subsection (8)(B) of this rule, that the operation will be conducted in compliance with all requirements of this chapter relating to underground mining activities and 10 CSR 40-3.170–10 CSR 40-3.310 and 10 CSR 404.070. AUTHORITY: section 444.810, RSMo 2000.* Original rule filed Oct. 12, 1979, effective Feb. 11, 1980. Amended: Filed May 12, 1980, effective Sept. 11, 1980. Amended: Filed Aug. 1, 1980, effective Dec. 11, 1980. Amended: Filed Nov. 10, 1980, effective Feb. 12, 1981. Amended: Filed Dec. 10, 1980, effective April 11, 1981. Amended: Filed Aug. 4, 1987, effective Nov. 23, 1987. Amended: Filed March 28, 1988, effective July 1, 1988. and Reclamation Operations and Coal Exploration Amended: Filed Sept. 15, 1988, effective Jan. 15, 1989. Amended: Filed March 2, 1989, effective May 15, 1989. Amended: Filed May 2, 1989, effective Aug. 1, 1989. Amended: Filed July 3, 1990, effective Nov. 30, 1990. Amended: Filed Sept. 15, 1994, effective April 30, 1995. Amended: Filed March 21, 2000, effective Oct. 30, 2000. Amended: Filed Dec. 17, 2012, effective July 30, 2013. *Original authority: 444.810, RSMo 1979, amended 1983, 1993, 1995.