Duration and Release of Reclamation Liability

PURPOSE: This rule sets forth requirements for the duration and release of reclamation liability pursuant to sections 444.810, 444.830, 444.855, 444.875 and 444.950, RSMo. (1) Period of Liability. (A) Liability applicable to a permit shall continue until all reclamation, restoration and abatement work required of the permittee under the regulatory program and the provisions of the permit and reclamation plan have been completed and the permit terminated by release of the permittee from any further liability in accordance with this rule. (B) Duration of Phase III Liability. 1. The period of Phase III liability shall begin when Phase II liability is released. 2. The permittee, on areas under Phase III liability or the five (5)-year responsibility period, may use normal husbandry practices including mowing; application of pesticides; application of soil amendments equal to or less than that recommended by the high management yield goals of the United States Soil Conservation Service, United States Department of Agriculture (USDA); subsoiling which occurs less than two feet (2') below the surface and which does not remove the vegetation from the surface; burning; overseeding to maintain the approved composition of the stand; tree planting and tree pruning. These practices shall not cause the Phase III liability period or the five (5)-year responsibility period to be extended if the permittee can demonstrate that—1) discontinuance of these measures after the liability period expires will not reduce the probability of permanent revegetation success, 2) the practices are normal husbandry practices within the region on unmined lands having land uses similar to the approved postmining land use of the area and 3) the practices are necessary to prevent exploitation, destruction or neglect of the resource and to maintain the prescribed level of use or productivity. Repair of rills and gullies shall not cause the Phase III liability period to be extended when rills and gullies develop after the initiation of the Phase III liability period and when that repair is restricted to the filling, grading and reseeding of the eroded portion of the area. 3. A portion of the permit area that requires augmentation may be separated from the original area upon approval by the commission or director. The period of Phase III liability shall commence anew on the area requiring augmentation when the augmentation is completed. The period of liability for the area which did not require augmentation shall continue in effect without extension. (C) A regulatory authority may terminate its jurisdiction under the regulatory program over the reclaimed site of a completed surface coal mining and reclamation operation or increment, when the regulatory authority determines in writing that under the— 1. Initial program all requirements imposed under 10 CSR 40-2, 10 CSR 40-3, 10 CSR 40-4 and 10 CSR 40-8 have been successfully completed; or 2. Permanent program all requirements imposed under the applicable regulatory program have been successfully completed or, where a performance bond was required, the regulatory authority has made a final decision in accordance with this chapter to release the performance bond fully. (D) Following a termination under subsection (1)(C) of this rule, the regulatory authority shall reassert jurisdiction under the regulatory program over a site if it is demonstrated that the bond release or written determination referred to in subsection (1)(C) of this rule was based upon fraud, collusion or misrepresentation of a material fact. (2) Criteria and Schedule for Release of Reclamation Liability. Reclamation liability shall be released in three (3) phases. (A) An area shall qualify for release of Phase I liability upon completion of backfilling and grading, topsoiling, drainage control and initial seeding of the disturbed area. Phase I bond shall be retained on unreclaimed temporary structures, such as roads, siltation structures, diversions and stockpiles. (B) An area shall qualify for release of Phase II liability when— 1. A permanent vegetative cover that meets the approved reclamation plan and is sufficient to control erosion is in place and no further augmentation of the vegetation is necessary; 2. With respect to woodlands and wildlife areas, the stocking of trees and shrubs has been established in accordance with 10 CSR 40-3.120(7) or 10 CSR 403.270(7); 3. The lands are not contributing suspended solids to stream flow or runoff outside the permit area in excess of the requirements of section 444.855.2(10), RSMo, 10 CSR 40-3 and 10 CSR 40-4, the regulatory program or the permit; 4. A plan for achieving Phase III release has been approved for the area requested for release and the plan has been incorporated into the permit; 5. For the prime farmland soils, the soil productivity for prime farmlands shall have been returned to the equivalent levels of yield as non-mined land of the same soil type in the surrounding areas under equivalent management practices as determined from the soil survey performed pursuant to 10 CSR 404.030; and 6. Where a silt dam is to be retained as a permanent impoundment pursuant to 10 CSR 40-3.040(10), the Phase II portion of the bond may be released under this subsection as long as provisions for sound future maintenance by the operator or the landowner have been made with the director. (C) An area shall qualify for release of Phase III liability when— 1. Vegetation has been established in accordance with the approved reclamation plan and the standards for the success of revegetation are met; 2. As required by 10 CSR 40-6.060(4) and 10 CSR 40-4.030, soil productivity, with respect to prime farmlands, has been returned to the equivalent levels of yield as non-mined prime farmland of the same soil type in the surrounding area under equivalent management practices, as determined from the soil survey performed under section 444.820.2(16), RSMo and the plan approved under 10 CSR 40-6.060(4); 3. The permittee has successfully completed all surface coal mining and reclamation operations in accordance with the approved reclamation plan so that the land is capable of supporting any postmining land use approved pursuant to 10 CSR 40-3.130 or 10 CSR 40-3.300; 4. The permittee has achieved compliance with the requirements of the law, the regulatory program and the permit; and 5. The applicable liability period under section 444.855.2(20), RSMo and this rule has expired. (D) Bond Release. 1. Phase I—After the operator completes the backfilling, grading, topsoiling, drainage control, and initial seeding of the disturbed area in accordance with the approved reclamation plan, the director may release sixty percent (60%) of the bond for the applicable area. 2. Phase II—After vegetation has been established on the regraded mined lands in accordance with the approved reclamation plan, the director may release an additional amount of bond. When determining the amount of bond to be released after successful vegetation has been established, the director shall retain that amount of bond for the vegetated area which would be sufficient to cover the cost of reestablishing vegetation if completed by a third party and for the period specified in 10 CSR 40-7.021(1)(B) for reestablishing vegetation. 3. Phase III—After the operator has completed successfully all surface coal mining and reclamation activities, the director may release the remaining portion of the bond, but not before the expiration period specified for the period of liability in 10 CSR 40-7.021(1)(B). (E) The permit shall terminate on all areas where all bonds have been released. (3) Procedures for Obtaining Release of Reclamation Liability. (A) Reclamation Liability Release Application. The permittee may file an application with the commission for release of all or part of the reclamation liability applicable to a particular permit when all or part of the permit area meets the requirements of subsection (2)(A), (B), (C) or (E). and Reclamation Operations 1. The application shall include copies of letters sent to the owner of the surface rights of the proposed release area, lessee of surface rights of the proposed release area, owners of adjoining property, the clerk of the county (and city, if any) in which any portion of the permit area lies and any planning or zoning authority, sewer district or company or water district or company whose jurisdiction or service area encompasses any portion of the permit area, notifying them of the permittee’s intention to seek release of reclamation liability. These letters shall be sent before the permittee files the application for release. The letters sent to the owner of surface rights and any county or city clerk shall be certified. 2. Within forty-five (45) days after filing the application for release, the permittee shall submit proof of— A. The advertisement required by subsection (3)(B) of this rule; and B. Receipt of the letters sent to the surface owner and county or city clerks under paragraph (3)(A)1. or proof of good faith effort to deliver the letters. (B) Newspaper Advertisement of Application. At or before the time of filing an application under this section, the permittee shall advertise the filing of the application in a newspaper of general circulation in the locality of the permit area. The advertisement shall— 1. Be placed in the newspaper at least once a week for four (4) consecutive weeks, with the last publication occurring within thirty (30) days after the application for release is filed; 2. Show the name of the permittee, including the number and date of issuance or renewal of the permit; 3. Show the location and the number of acres of lands subject to the application; 4. Show the total amount of bond in effect for the permit area and the amount for which release is sought, if applicable; 5. State the phase of liability for which release is being sought and summarize the reclamation work that must have been completed to qualify for the release; 6. State, if a Phase III release is requested, that this represents total release of the permittee’s liability; and 7. State that written comments, objections and requests for a public hearing may be submitted to the commission, provide the address of the commission’s office and the closing date by which comments, objections and requests must be received, which date shall be sixty (60) days after the filing of the application. (C) At the time of final or Phase III bond release submittal, the operator shall include evidence that an affidavit has been recorded with the recorder of deeds in the county where the mined land is located generally describing the parcel or parcels of land where operations such as underground mining, auger mining, covering of slurry ponds, or other underground activities occurred which could impact or limit future use of that land. This requirement shall be applicable to mined land where Phase I reclamation was completed on or after September 1, 1992. (D) Notarized Statement of Accomplished Reclamation. The permittee shall include in the application for reclamation liability release a notarized statement which certifies that all applicable reclamation activities have been accomplished in accordance with the requirements of the Surface Coal Mining Law, the regulatory program, and the approved reclamation plan. Such certification shall be submitted for each application and each phase of bond release. (4) Objections, Inspections, Review, Decision and Public Hearings for Release of Reclamation Liability. (A) Objections. 1. Written objections to the proposed liability release may be filed with the commission by any affected person within sixty (60) days after the filing of the application. For the purpose of this rule, an affected person is— A. Any person with a valid legal interest which might be adversely affected by the liability release; or B. The responsible officer or head of any federal, state or local governmental agency which— (I) Has jurisdiction by law or special expertise with respect to any environmental, social or economic impact involved in the operation; or (II) Is authorized to develop and enforce environmental standards with respect to surface coal mining and reclamation operations. 2. At the time of filing written objections, the objector may request that a public hearing be held. If a public hearing is requested— A. The hearing shall be held in the locality of the surface coal mining operation proposed for bond release or in Cole County, at the option of the objector, within ninety (90) days after the application was filed; B. The director shall inform the permittee and all persons who have filed objections or comments of the time, date and place of the hearing and shall publish notice of the hearing in a newspaper of general circulation in the locality of the permit area once a week for two (2) consecutive weeks before the hearing; C. The hearing shall be adjudicatory in nature. The commission may subpoena witnesses and printed materials, and compel the attendance of witnesses and production of the materials at the hearing. A verbatim record of the hearing shall be made and the transcript made available at the request of any party or by order of the commission; and D. At the hearing, the permittee shall have the burden of presenting a preponderance of evidence to show that the area meets all criteria for release of liability. (B) Inspection. The commission shall cause an inspection and evaluation of the reclamation work involved to be made within thirty (30) days after receiving a completed application for liability release or as soon after that as weather conditions permit. The surface owner and lessee of the surface rights or their representatives shall be given notice of the inspection and may accompany the inspector on the inspection. The director may arrange with the permittee to allow access to the permit area, upon request by any person with an interest in bond release, for the purpose of gathering information relevant to the proceeding. (C) Review and Decision. 1. The commission shall decide to release or not to release the reclamation liability as follows: A. Not before the sixtieth day but not after the ninetieth day from the receipt of the application if no hearing is held pursuant to subsection (4)(A)2. and if the inspection was held within thirty (30) days of receipt of the application; B. If a hearing is held pursuant to paragraph (4)(A)2. or subsection (4)(D), within thirty (30) days after the public hearing; or C. If the inspection is delayed due to unfavorable weather, within sixty (60) days of the inspection, but not before the sixtieth day from the receipt of the application. 2. The commission shall notify, in writing, the permittee and all persons who have filed objections or comments of its decision to release or not to release reclamation liability within ten (10) days of making the decision. 3. The notice of the decision shall state the reasons for the decision and recommend corrective actions necessary to secure the release. (D) Right to a Public Hearing. At the time the permittee is notified of the decision of the commission under paragraph (4)(C)2. of this rule, s/he shall also be notified of his/her right to a public hearing, if the application for release of liability has been denied and if a public hearing has not been held. The permittee may request a hearing within thirty (30) days after being notified on the decision of the commission. 1. The hearing shall be held in the locality of the surface coal mining operation that was proposed for bond release or in Cole County, at the option of the permittee, within ninety (90) days after the permittee is notified of the decision of the commission. 2. The director shall inform the permittee and all persons who have filed comments of the time, date and place of the hearing and shall publish notice of the hearing in a newspaper of general circulation in the locality of the permit area once a week for two (2) consecutive weeks before the hearing. 3. The hearing shall be adjudicatory in nature. The commission may subpoena witnesses and printed materials and compel the attendance of witnesses and production of the materials at the hearing. A verbatim record of the hearing shall be made and the transcript made available at the request of any party or by order of the commission. 4. At the hearing, the permittee shall have the burden of presenting a preponderance of evidence to show that the area meets all criteria for release of liability. (5) At the time of final or Phase III bond release submittal, the operator shall include evidence that an affidavit has been recorded with the recorder of deeds in the county where the mined land is located, generally describing the parcel(s) of land where operations such as underground mining, auger mining, covering of slurry ponds, or other underground activities occurred which could impact or limit future use of that land. This requirement shall be applicable to mined land where Phase I reclamation was completed on or after September 1, 1992. AUTHORITY: section 444.810, RSMo 2000.* Original rule filed Dec. 9, 1982, effective April 11, 1983. Amended: Filed June 27, 1986, effective Oct. 27, 1986. Amended: Filed Aug. 4, 1987, effective Nov. 23, 1987. Rescinded and readopted: Filed Sept. 15, 1988, effective Jan. 15, 1989. Amended: Filed July 3, 1990, effective Nov. 30, 1990. Amended: Filed May 15, 1992, effective Jan. 15, 1993. Amended: Filed Sept. 15, 1994, effective April 30, 1995. Amended: Filed March 21, 2000, effective Oct. 30, 2000. Emergency amendment filed Dec. 21, 2005, effective Jan. 1, 2006, expired June 29, 2006. Amended: Filed Dec. 1, 2005, effective July 30, 2006. *Original authority: 444.810, RSMo 1979, amended 1983, 1993, 1995.