§9-16-90. Environmental protection performance standards.

(a) Any permit issued pursuant to this article to conduct surface mining operations shall require that such surface coal mining operations will meet all applicable performance standards of this article, and such other requirements as the regulatory authority shall promulgate.

(b) General performance standards shall be applicable to all surface coal mining and reclamation operations and shall require the operation as a minimum to:

(1) 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;

(2) Restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses 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, and the permit applicants' declared proposed land use following reclamation is not deemed to be impractical or unreasonable, inconsistent with applicable land use policies and plans, involves unreasonable delay in implementation, or is violative of federal, state, or local law;

(3) Except as provided in subsection (c) of this section, with respect to all surface coal mining operations backfill, compact (where advisable to insure stability or to prevent leaching of toxic materials), and grade in order to restore the approximate original contour of the land with all highwalls, spoil piles, and depressions eliminated (unless small depressions are needed in order to retain moisture to assist revegetation or as otherwise authorized pursuant to this article); provided, however, that in surface coal mining which is carried out at the same location over a substantial period of time where the operation transacts the coal deposit, and 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 advisable) 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 and provided further, 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 advisable) 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 that such overburden or spoil shall be shaped and graded in such a way as to prevent slides, erosion, and water pollution and is revegetated in accordance with the requirements of this article;

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

(5) Remove 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 contamination by other acid or toxic material, and is in a usable condition for sustaining vegetation when restored during reclamation, except 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, then the operator shall remove, segregate, and preserve in a like manner such other strata which is best able to support vegetation;

(6) Restore the topsoil or the best available subsoil which is best able to support vegetation;

(7) For all prime farm lands as identified in Section 9-16-83 (b)(15) to be mined and reclaimed, specifications for soil removal, storage, replacement, and reconstruction shall be established by the Secretary of Agriculture, and the operator shall, as a minimum, be required to:

a. 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;

b. 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;

c. Replace and regrade the root zone material described in paragraph b. above with proper compaction and uniform depth over the regarded spoil material; and

d. Redistribute and grade in a uniform manner the surface soil horizon described in paragraph a.;

(8) Create, if authorized in the approved mining and reclamation plan and permit, permanent impoundments of water on mining sites as part of reclamation activities only when it is adequately demonstrated that:

a. The size of the impoundment is adequate for its intended purpose;

b. 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. 1006);

c. 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;

d. The level of water will be reasonably stable;

e. Final grading will provide adequate safety and access for proposed water users; and

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

(9) Conduct any augering operation associated with surface mining in a manner to maximize recoverability of mineral reserves remaining after the operation and reclamation are complete; and seal all auger holes with an impervious and noncombustible material in order to prevent drainage except where the regulatory authority determines that the resulting impoundment of water in such auger holes may create a hazard to the environment or the public health or safety; provided, that the permitting authority 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;

(10) Minimize the disturbances to the prevailing hydrologic balance at the mine-site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation by:

a. Avoiding acid or other toxic mine drainage by such measures as, but not limited to:

1. Preventing or removing water from contact with toxic producing deposits;

2. Treating drainage to reduce toxic content which adversely affects downstream water upon being released to water courses;

3. Casing, sealing, or otherwise managing boreholes, shafts, and wells and keep acid or other toxic drainage from entering ground and surface waters;

b.1. Conducting surface coal mining operations so as to prevent to the extent possible using the best technology currently available, additional contributions of suspended or settleable 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.

2. Constructing any siltation structures pursuant to subparagraph b.1. of this subdivision 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;

c. Cleaning out and removing temporary or large settling ponds or other siltation structures from drainways except those approved pursuant to subdivision (b)(8) of this section after disturbed areas are revegetated and stabilized and depositing the silt and debris at a site and in a manner approved by the regulatory authority;

d. Restoring recharge capacity of the mined area to approximate premining condition;

e. Avoiding channel deepening or enlargement in operations requiring the discharge of water from mines;

f. Such other actions as the regulatory authority may prescribe;

(11) 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 including the use of incombustible and impervious materials if necessary and assure 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;

(12) Refrain from surface coal mining within 500 feet from active and abandoned underground mines in order to prevent breakthroughs and to protect health or safety of miners; provided, that the regulatory authority shall permit an operator to mine near, through or partially through an abandoned underground mine or closer to an active underground mine if a. the nature, timing, and sequencing of the approximate coincidence of specific surface mine activities with specific underground mine activities are jointly approved by the regulatory authorities concerned with surface mine regulation and the health and safety of underground miners, and b. such operations will result in improved resource recovery, abatement of water pollution, or elimination of hazards to the health and safety of the public;

(13) Design, locate, construct, operate, maintain, enlarge, modify, and remove or abandon 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, in accordance with regulations developed by the regulatory authority consistent with the requirements of Section 515(f) of P.L. 95-87;

(14) Insure 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 ground or surface waters and that contingency plans are developed to prevent sustained combustion;

(15) Insure that explosives are used only in accordance with existing state and federal law and the regulations promulgated by the regulatory authority; which shall include provisions to:

a. Provide adequate advance written notice to local governments and residents who might be affected by the use of such explosives by 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 resident living within one-half mile of the proposed blasting site and by providing daily notice or audible warnings to resident/occupiers in such areas prior to any blasting;

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

c. Limit the type of explosives and detonating equipment, the size, the timing and frequency of blasts based upon the physical conditions of the site so as to prevent (i) injury to persons, (ii) damage to public and private property outside the permit area, (iii) adverse impacts on any underground mine, and (iv) change in the course, channel, or availability of ground or surface water outside the permit area;

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

e. 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 pre-blasting survey of such structures and submit the survey to the regulatory authority and a copy to the resident or owner making the request. The area of the survey shall be decided by the regulatory authority.

(16) Insure that all reclamation efforts proceed in an environmentally sound manner and as contemporaneously as practicable with the surface coal mining operations; provided, however, that where the applicant proposes to combine surface mining operations with such other mining operations to assure maximum practical recovery of the mineral resources, the regulatory authority may grant a variance for specific areas within the reclamation plan from the requirement that reclamation efforts proceed as contemporaneously as practicable to permit such other mining operations prior to reclamation:

a. If the regulatory authority finds in writing that:

1. The applicant has presented, as part of the permit application, specific, feasible plans for the proposed such other operations;

2. The proposed such other mining operations are necessary or desirable to assure maximum practical recovery of the mineral resource and will avoid multiple disturbance of the surface;

3. The applicant has satisfactorily demonstrated that the plan for such other mining operations conforms to requirements for such other mining in the jurisdiction and that permits necessary for such other mining operations have been issued by the appropriate authority;

4. The areas proposed for the variance have been shown by the applicant to be necessary for the implementing of the proposed such other mining operations;

5. 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;

6. Provisions for the off-site storage of spoil will comply with subdivision (b)(22);

b. All specific regulations governing the granting of such variance have been complied with;

c. The variance granted under the provisions of this subsection are to be reviewed by the regulatory authority not more than three years from the date of issuance of the permit; and

d. If liability under the bond filed by the applicant with the regulatory authority shall be for the duration of such other mining operations and until the requirements of Section 9-16-89 and subsection (b) of this section have been fully complied with.

(17) Insure that the construction, maintenance, and post-mining conditions of access roads into and across the site of operations will control or prevent erosion and siltation, pollution of water, damage to fish or wildlife or their habitat, or public or private property;

(18) Refrain from the construction of roads or other access ways up a stream bed or drainage channel or in such proximity of such channel so as to seriously alter the normal flow of water;

(19) 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 approved post-mining land use plan;

(20) Assume the responsibility for successful revegetation, as required by subdivision (19) above, for a period of five full years after the last year of augmented seeding, fertilizing, irrigation, or other work in order to assume compliance with subdivision (19) above; provided, that when the regulatory authority approves a long-term intensive agricultural post-mining land use, the applicable five-year period of responsibility for revegetation shall commence at the date of initial planting for such long-term intensive agricultural post-mining land use; provided further, that when the regulatory authority issues a written finding approving a long-term, intensive, agricultural post-mining land use as part of the mining and reclamation plan, the authority may grant exception to the provisions of subdivision (19) above;

(21) Protect offsite areas from slides or damage occurring during the surface coal mining and reclamation operations, and not deposit spoil material or locate any part of the operations or waste accumulations outside the permit area;

(22) Place all excess spoil material resulting from surface coal mining and reclamation activities in such a manner that:

a. 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;

b. The areas of disposal are within the bonded permit areas and all organic matter shall be removed immediately prior to spoil placement;

c. Appropriate surface and internal drainage systems and diversion ditches are used so as to prevent spoil erosion and movement;

d. The disposal area does not contain springs, natural water courses 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;

e. If placed on a slope, the spoil is placed upon the most moderate slope among those upon which, in the judgment of the regulatory authority, the spoil could be placed in compliance with all 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;

f. Where the toe of the spoil rests on a downslope, a rock toe buttress, of sufficient size to prevent mass movement, is constructed;

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

h. Design of the spoil disposal area is certified by a qualified registered professional engineer in conformance with professional standards, and

i. All other provisions of this article are met.

(23) 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; and

(24) To the extent possible using the best technology currently available, minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental value, and achieve enhancement of such resources where practicable;

(25) 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 distance as the regulatory authority shall determine shall be retained in place as a barrier to slides and erosion.

(c)(1) The regulatory authority shall promulgate regulations which shall include procedures pursuant to which the regulatory authority may permit surface mining operations for the purposes set forth in subdivision (3) of this subsection.

(2) Where an applicant meets the requirements of subdivisions (3) and (4) of this subsection a permit without regard to the requirement to restore to approximate original contour set forth in subdivisions (b)(3) or (d)(2) and (3) of this section may be granted for the surface mining of coal where the mining operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill (except as provided in subparagraph (c)(4)a. hereof) by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining, and capable of supporting post-mining uses in accord with the requirements of this subsection.

(3) In cases where an industrial, commercial, agricultural, residential or public facility (including recreational facilities) use is proposed or the post-mining use of the affected land, the regulatory authority may grant a permit for a surface mining operation of the nature described in subdivision (c)(2) where:

a. After consultation with the appropriate land use planning agencies, if any, the proposed post-mining land use is deemed to constitute an equal or better economic or public use of the affected land, as compared with premining use;

b. The applicant presents specific plans for the proposed post-mining land use and appropriate assurances that such use will be:

1. Compatible with adjacent land uses;

2. Obtainable according to data regarding expected need and market;

3. Assured of investment in necessary public facilities;

4. Supported by commitments from public agencies where appropriate;

5. Practicable with respect to private financial capability for completion of the proposed use;

6. Planned pursuant to a schedule attached to the reclamation plan so as to integrate the mining operation and reclamation with the post-mining land use; and

7. 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;

c. The proposed use would be consistent with adjacent land uses, and existing state and local land use plans and programs;

d. The regulatory authority provides the governing body of the unit of general-purpose government in which the land is located and any state or federal agency which the regulatory authority in its discretion, determines to have an interest in the proposed use, an opportunity of not more than 60 days to review and comment on the proposed use;

e. All other requirements of this article will be met.

(4) In granting any permit pursuant to this subsection, the regulatory authority shall require that:

a. The toe of the lowest coal seam and the overburden associated with it are retained in place as a barrier to slides and erosion;

b. The reclaimed area is stable;

c. The resulting plateau or rolling contour drains inward from the outslopes except at specified points;

d. No damage will be done to natural water-courses;

e. Spoil will be placed on the mountaintop bench as is necessary to achieve the planned post-mining land use; provided, that all excess spoil material not retained on the mountaintop shall be placed in accordance with the provisions of subdivision (b)(22) of this section;

f. Insure stability of the spoil retained on the mountaintop and meet the other requirements of this article;

(5) The regulatory authority shall promulgate specific regulations to govern the granting of permits in accord with the provisions of this subsection, and may impose such additional requirements through those regulations.

(6) All permits granted under the provisions of this subsection 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.

(d) 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; provided, however, that the provisions of this subsection shall not apply to those situations in which an operator is 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 plan or predominately flat area or where an operator is in compliance with provisions of subsection (c) hereof:

(1) Insure 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; provided, that spoil material in excess of that required for the reconstruction of the approximate original contour under the provisions of subdivision (b)(3) or (d)(2) shall be permanently stored pursuant to subdivision (b)(22).

(2) Complete backfilling with spoil material shall be required to cover completely the highwall and return the site to the appropriate original contour, which material will maintain stability following mining and reclamation.

(3) The operator may not disturb land above the top of the highwall unless the regulatory authority finds that such disturbance will facilitate compliance with the environmental protection standards of this section; provided, however, that the land disturbed above the highwall shall be limited to that amount necessary to facilitate said compliance.

(4) For the purposes of this subsection, the term "steep slope" is any slope above 20 degrees, or any lesser slope which may be defined pursuant to the regulatory authority's regulations based upon considerations of soil, terrain, geology and other characteristics of a region or the state.

(e)(1) The regulatory authority may promulgate regulations which shall include procedures pursuant to which the regulatory authority may permit variances for the purposes set forth in subdivision (3) of this subsection, provided that the watershed control of the area is improved; and further provided complete backfilling with spoil material shall be required to cover completely the highwall which material will maintain stability following mining and reclamation.

(2) Where an applicant meets the requirements of subdivisions (3) and (4) of this subsection a variance from the requirement to restore to approximate original contour set forth in subdivision (d)(2) of this section may be granted for the surface mining of coal where the owner of the surface knowingly requests in writing, as a part of the permit application that such a variance be granted so as to render the land, after reclamation, suitable for an industrial, commercial, residential, or public use (including recreational facilities) in accord with the further provisions of subdivisions (3) and (4) of this subsection.

(3)a. After consultation with the appropriate land use planning agencies, if any, the potential use of the affected land is deemed to constitute an equal or better economic or public use;

b. Is designed and certified by a qualified registered professional engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site;

c. And after approval of the appropriate state environmental agencies, the watershed of the affected land is deemed to be improved.

(4) In granting a variance pursuant to this subsection the regulatory authority shall require that only such amount of spoil will be placed off the mine bench as is necessary to achieve the planned post-mining land use, insure stability of the spoil retained on the bench, meet all other requirements of this article, and all spoil placement off the mine bench must comply with subdivision (b)(22) of this section.

(5) The regulatory authority shall promulgate specific regulations to govern the granting of variances in accord with the provisions of this subsection, and may impose such additional requirements as he deems to be necessary.

(6) All exceptions granted under the provisions of this subsection shall be reviewed not more than three years from the date of issuance of the permit, unless the permittee affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the reclamation plan.

(f) Upon the request of a municipality or 15 citizens of a municipality who are being affected by blasting operations of a surface coal mine, the regulatory authority shall solicit and consider public comments from those being affected in determining the necessity for more stringent standards. The final written determination of the regulatory authority, including any proposed standards, or the failure of the regulatory authority to act within a reasonable time, shall be reviewed by the commission. The commission, if requested by the municipality, 25 citizens of the municipalities or any affected licensee, shall hold a public hearing in the manner specified in Section 9-16-79 of this article. The commission shall affirm or reverse the written determination or refer it to the regulatory authority for further specific inquiries.

(Acts 1981, No. 81-435, p. 682, § 22; Acts 1983, No. 83-774, p. 1415, § 11.)