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S.B. 142
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5 AN ACT RELATING TO MINING; AMENDING THE DEFINITION OF ADJUDICATIVE
6 PROCEEDING; AMENDING PROVISIONS REGARDING PROTESTS OF APPLICATIONS
7 TO MINE COAL; CLARIFYING AN OPERATOR'S RIGHTS TO CONTEST A NOTICE OF
8 VIOLATION AND PENALTY; AND MAKING TECHNICAL AMENDMENTS.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 40-10-3, as last amended by Chapter 219, Laws of Utah 1994
12 40-10-11 (Subsection (5) is Repealed 09/30/04), as last amended by Chapter 219, Laws of
13 Utah 1994
14 40-10-13, as last amended by Chapter 219, Laws of Utah 1994
15 40-10-17 (Subsect (2)(t)(ii) Repeal 09/30/04), as last amended by Chapter 219, Laws of Utah
16 1994
17 40-10-20, as last amended by Chapter 219, Laws of Utah 1994
18 40-10-25, as last amended by Chapter 219, Laws of Utah 1994
19 Be it enacted by the Legislature of the state of Utah:
20 Section 1. Section 40-10-3 is amended to read:
21 40-10-3. Definitions.
22 For the purposes of this chapter:
23 (1) "Adjudicative proceeding" means:
24 (a) a division or board action or proceeding [
25 duties, privileges, immunities, or other legal interests of one or more identifiable persons,
26 including [
27 authority, right, permit, or license[
1 (b) judicial review of a division or board action or proceeding specified in Subsection (a).
2 (2) "Alluvial valley floors" mean the unconsolidated stream laid deposits holding streams
3 where water availability is sufficient for subirrigation or flood irrigation agricultural activities but
4 does not include upland areas which are generally overlain by a thin veneer of colluvial deposits
5 composed chiefly of debris from sheet erosion, deposits by unconcentrated runoff or slope wash,
6 together with talus, other mass movement accumulation and windblown deposits.
7 (3) "Approximate original contour" means that surface configuration achieved by
8 backfilling and grading of the mined area so that the reclaimed area, including any terracing or
9 access roads, closely resembles the general surface configuration of the land prior to mining and
10 blends into and complements the drainage pattern of the surrounding terrain, with all highwalls
11 and spoil piles eliminated; but water impoundments may be permitted where the division
12 determines that they are in compliance with Subsection 40-10-17(2)(h).
13 (4) "Board" means the Board of Oil, Gas, and Mining and the board shall not be defined
14 as an employee of the division.
15 (5) "Division" means the Division of Oil, Gas, and Mining.
16 (6) "Imminent danger to the health and safety of the public" means the existence of any
17 condition or practice, or any violation of a permit or other requirement of this chapter in a surface
18 coal mining and reclamation operation, which condition, practice, or violation could reasonably
19 be expected to cause substantial physical harm to persons outside the permit area before the
20 condition, practice, or violation can be abated. A reasonable expectation of death or serious injury
21 before abatement exists if a rational person, subjected to the same conditions or practices giving
22 rise to the peril, would not expose himself or herself to the danger during the time necessary for
23 abatement.
24 (7) "Employee" means those individuals in the employ of the division and excludes the
25 board.
26 (8) "Lands eligible for remining" means those lands that would otherwise be eligible for
27 expenditures under Section 40-10-25 or 40-10-25.1.
28 (9) "Operator" means any person, partnership, or corporation engaged in coal mining who
29 removes or intends to remove more than 250 tons of coal from the earth by coal mining within 12
30 consecutive calendar months in any one location.
31 (10) "Other minerals" mean clay, stone, sand, gravel, metalliferous and nonmetalliferous
1 ores, and any other solid material or substances of commercial value excavated in solid or solution
2 form from natural deposits on or in the earth, exclusive of coal and those minerals which occur
3 naturally in liquid or gaseous form.
4 (11) "Permit" means a permit to conduct surface coal mining and reclamation operations
5 issued by the division.
6 (12) "Permit applicant" or "applicant" means a person applying for a permit.
7 (13) "Permitting agency" means the division.
8 (14) "Permit area" means the area of land indicated on the approved map submitted by the
9 operator with his application, which area of land shall be covered by the operator's bond as
10 required by Section 40-10-15 and shall be readily identifiable by appropriate markers on the site.
11 (15) "Permittee" means a person holding a permit.
12 (16) "Person" means an individual, partnership, association, society, joint stock company,
13 firm, company, corporation, or other governmental or business organization.
14 (17) "Prime farmland" means the same as prescribed by the United States Department of
15 Agriculture on the basis of such factors as moisture availability, temperature regime, chemical
16 balance, permeability, surface layer composition, susceptibility to flooding, and erosion
17 characteristics.
18 (18) "Reclamation plan" means a plan submitted by an applicant for a permit which sets
19 forth a plan for reclamation of the proposed surface coal mining operations pursuant to Section
20 40-10-10.
21 (19) "Surface coal mining and reclamation operations" mean surface mining operations
22 and all activities necessary and incident to the reclamation of these operations after the effective
23 date of this chapter.
24 (20) "Surface coal mining operations" mean:
25 (a) Activities conducted on the surface of lands in connection with a surface coal mine or
26 subject to the requirements of Section 40-10-18, surface operations and surface impacts incident
27 to an underground coal mine, the products of which enter commerce or the operations of which
28 directly or indirectly affect interstate commerce. These activities include excavation for the
29 purpose of obtaining coal, including such common methods as contour, strip, auger, mountaintop
30 removal box cut, open pit, and area mining, the uses of explosives and blasting, and in situ
31 distillation or retorting, leaching or other chemical or physical processing, and the cleaning,
1 concentrating, or other processing or preparation, loading of coal for interstate commerce at or near
2 the mine site; but these activities do not include the extraction of coal incidental to the extraction
3 of other minerals where coal does not exceed 16-2/3% of the tonnage of minerals removed for
4 purposes of commercial use or sale or coal explorations subject to Section 40-10-8.
5 (b) The areas upon which the activities occur or where the activities disturb the natural
6 land surface. These areas shall also include any adjacent land the use of which is incidental to the
7 activities, all lands affected by the construction of new roads or the improvement or use of existing
8 roads to gain access to the site of the activities and for haulage and excavations, workings,
9 impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden
10 piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing
11 areas, shipping areas, and other areas upon which are sited structures, facilities, or other property
12 or materials on the surface resulting from or incident to the activities.
13 (21) "Unanticipated event or condition" means an event or condition encountered in a
14 remining operation that was not contemplated by the applicable surface coal mining and
15 reclamation permit.
16 (22) "Unwarranted failure to comply" means the failure of a permittee to prevent the
17 occurrence of any violation of his permit or any requirement of this chapter due to indifference,
18 lack of diligence, or lack of reasonable care, or the failure to abate any violation of the permit or
19 this chapter due to indifference, lack of diligence, or lack of reasonable care.
20 Section 2. Section 40-10-11 (Subsection (5) is Repealed 09/30/04) is amended to read:
21 40-10-11 (Subsection (5) is Repealed 09/30/04). Division action on permit application
22 -- Requirements for approval -- Schedule of applicant's mining law violation -- Restoration
23 of prime farmland.
24 (1) Upon the basis of a complete mining application and reclamation plan or a revision or
25 renewal of same, as required by this chapter, including public notification and an opportunity for
26 a public hearing as required by Section 40-10-13, the division shall grant, require modification of,
27 or deny the application for a permit in a reasonable time set by the division and notify the applicant
28 in writing. The applicant for a permit, or revision of a permit, shall have the burden of establishing
29 that his application is in compliance with all the requirements of this chapter. Within ten days
30 after the granting of a permit, the division shall notify the local governmental officials in the local
31 political subdivision in which the area of land to be affected is located that a permit has been
1 issued and shall describe the location of the land.
2 (2) No permit or revision application shall be approved unless the application affirmatively
3 demonstrates and the division finds in writing on the basis of the information set forth in the
4 application or from information otherwise available which will be documented in the approval and
5 made available to the applicant, that:
6 (a) the permit application is accurate and complete and that all the requirements of this
7 chapter have been complied with;
8 (b) the applicant has demonstrated that reclamation as required by this chapter can be
9 accomplished under the reclamation plan contained in the permit application;
10 (c) the assessment of the probable cumulative impact of all anticipated mining in the area
11 on the hydrologic balance specified in Subsection 40-10-10(2)(c) has been made by the division
12 and the proposed operation of same has been designed to prevent material damage to hydrologic
13 balance outside the permit area;
14 (d) the area proposed to be mined is not included within an area designated unsuitable for
15 surface coal mining pursuant to Section 40-10-24 or is not within an area under study for such
16 designation in an administrative proceeding commenced pursuant to Subsection 40-10-24(2)
17 (unless in the area as to which an administrative proceeding has commenced pursuant to Section
18 40-10-24, the operator demonstrates that prior to January 1, 1977, he has made substantial legal
19 and financial commitments in relation to the operation for which he is applying for a permit);
20 (e) the proposed surface coal mining operation would:
21 (i) not interrupt, discontinue, or preclude farming on alluvial valley floors that are irrigated
22 or naturally subirrigated, but excluding undeveloped range lands which are not significant to
23 farming on the alluvial valley floors and those lands as to which the division finds that if the
24 farming that will be interrupted, discontinued, or precluded is of such small acreage as to be of
25 negligible impact on the farm's agricultural production; or
26 (ii) not materially damage the quantity or quality of water in surface or underground water
27 systems that supply these alluvial valley floors in Subsection (2)(e)(i), but this Subsection (2)(e)
28 shall not affect those surface coal mining operations which in the year preceding August 3, 1977,
29 produced coal in commercial quantities and were located within or adjacent to alluvial valley
30 floors or had obtained specific permit approval by the division to conduct surface coal mining
31 operations within these alluvial valley floors;
1 (f) in cases where the private mineral estate has been severed from the private surface
2 estate, the applicant has submitted to the division:
3 (i) the written consent of the surface owner to the extraction of coal by surface mining
4 methods; provided, however, that nothing in this section shall be construed as increasing or
5 diminishing any property rights by the State of Utah or by any other landowner;
6 (ii) a conveyance that expressly grants or reserves the right to extract the coal by surface
7 mining methods; or
8 (iii) if the conveyance does not expressly grant the right to extract coal by surface mining
9 methods, the surface-subsurface legal relationship shall be determined in accordance with state
10 law.
11 (3) The applicant shall file with his permit application a schedule listing any and all
12 notices of violations of the Surface Mining Control and Reclamation Act of 1977 or its
13 implementing regulations, this chapter, any state or federal program or law approved under the
14 Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. Sec. 1201 et seq., and any law,
15 rule, or regulation of the United States, State of Utah, or any department or agency in the United
16 States pertaining to air or water environmental protection incurred by the applicant in connection
17 with any surface coal mining operation during the three-year period prior to the date of application.
18 The schedule shall also indicate the final resolution of any notice of violation. Where the schedule
19 or other information available to the division indicates that any surface coal mining operation
20 owned or controlled by the applicant is currently in violation of this chapter or other laws and
21 regulations referred to in this Subsection (3), the permit shall not be issued until the applicant
22 submits proof that the violation has been corrected or is in the process of being corrected to the
23 satisfaction of the division, department, or agency which has jurisdiction over the violation; and
24 no permit shall be issued to an applicant after a finding by the board after opportunity for hearing
25 that the applicant, or the operator specified in the application, controls or has controlled mining
26 operations with a demonstrated pattern of willful violations of this chapter of such nature and
27 duration with such resulting irreparable damage to the environment as to indicate an intent not to
28 comply with the provisions of this chapter.
29 (4) (a) In addition to finding the application in compliance with Subsection (2), if the area
30 proposed to be mined contains prime farmland pursuant to division rules, the division shall grant
31 a permit to mine on prime farmland if the division finds in writing that the operator has the
1 technological capability to restore the mined area within a reasonable time to equivalent or higher
2 levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of
3 management and can meet the soil reconstruction standards specified in division rules. Except for
4 compliance with Subsection (2), the requirements of this subsection shall apply to all permits
5 issued after August 3, 1977.
6 (b) Nothing in Subsection (4) shall apply to any permit issued prior to August 3, 1977, or
7 to any revisions or renewals of it, or to any existing surface mining operations for which a permit
8 was issued prior to August 3, 1977.
9 (5) (a) After October [
10 permit application, if the violation resulted from an unanticipated event or condition that occurred
11 at a surface coal mining operation on lands eligible for remining under a permit held by the person
12 making the application.
13 (b) As used in this subsection, the term "violation" has the same meaning as the term has
14 under Subsection (3).
15 (c) Subsection (5) is repealed September 30, 2004.
16 Section 3. Section 40-10-13 is amended to read:
17 40-10-13. Advertisement of ownership, location, and boundaries -- Notice to
18 interested agencies or bodies -- Objections -- Conference.
19 (1) At the time of submission of an application for a surface coal mining and reclamation
20 permit, or revision of an existing permit pursuant to the provisions of this chapter, the applicant
21 shall submit to the division a copy of his advertisement of the ownership, precise location, and
22 boundaries of the land to be affected. At the time of submission the advertisement shall be placed
23 by the applicant in a local newspaper of general circulation in the locality of the proposed surface
24 mine at least once a week for four consecutive weeks. The division shall notify various local
25 governmental bodies, planning agencies, and sewage and water treatment authorities of water
26 companies in the locality in which the proposed surface mining will take place, notifying them of
27 the operator's intention to surface mine a particularly described tract of land and indicating the
28 application's permit number and where a copy of the proposed mining and reclamation plan may
29 be inspected. These local bodies, agencies, authorities, or companies may submit written
30 comments within a reasonable period established by the division on the mining applications with
31 respect to the effects of the proposed operation on the environment which are within their area of
1 responsibility. These comments shall immediately be transmitted to the applicant by the division
2 and shall be made available to the public at the same locations as are the mining applications.
3 (2) (a) Any person having an interest which is or may be adversely affected or the officer
4 or head of any federal, state, or local governmental agency or authority shall have the right to file
5 written objections to the proposed initial or revised application for a permit for surface coal mining
6 and reclamation operations with the division within 30 days after the last publication of the notice.
7 These objections shall immediately be transmitted to the applicant by the division and shall be
8 made available to the public.
9 (b) If written objections are filed and a conference requested, the division shall then hold
10 a conference within a reasonable time of the receipt of the objections or request. The conference
11 shall be informal and shall be conducted in accordance with the procedures described in this
12 Subsection (b), irrespective of the requirements of Section 63-46b-5, Administrative Procedures
13 Act. The conference [
14 operation if requested within a reasonable time after written objections or the request for an
15 informal conference are received by the division. The date, time, and location of the conference
16 shall be advertised by the division in a newspaper of general circulation in the locality at least two
17 weeks prior to the scheduled conference date. The division may arrange with the applicant upon
18 request by any party to the administrative proceeding access to the proposed mining area for the
19 purpose of gathering information relevant to the proceeding. An electronic or stenographic record
20 shall be made of the conference proceeding unless waived by all parties. This record shall be
21 maintained and shall be accessible to the parties until final release of the applicant's performance
22 bond. In the event all parties requesting the conference stipulate agreement prior to the requested
23 conference and withdraw their request, the conference need not be held.
24 Section 4. Section 40-10-17 (Subsect (2)(t)(ii) Repeal 09/30/04) is amended to read:
25 40-10-17 (Subsect (2)(t)(ii) Repeal 09/30/04). Performance standards for all coal
26 mining and reclamation operations -- Additional standards for steep-slope surface coal
27 mining -- Variances.
28 (1) Any permit issued pursuant to this chapter to conduct surface coal mining shall require
29 that the surface coal mining operations will meet all applicable performance standards of this
30 chapter, and such other requirements as the division shall promulgate.
31 (2) General performance standards shall be applicable to all surface coal mining and
1 reclamation operations and shall require the operations as a minimum to:
2 (a) Conduct surface coal mining operations so as to maximize the utilization and
3 conservation of the solid fuel resource being recovered so that reaffecting the land in the future
4 through surface coal mining can be minimized.
5 (b) Restore the land affected to a condition capable of supporting the uses which it was
6 capable of supporting prior to any mining, or higher or better uses of which there is reasonable
7 likelihood, so long as the use or uses does not present any actual or probable hazard to public
8 health or safety or pose any actual or probable threat of water diminution or pollution, and the
9 permit applicant's declared proposed land use following reclamation is not deemed to be
10 impractical or unreasonable, inconsistent with applicable land use policies and plans, involves
11 unreasonable delay in implementation, or is violative of federal, state, or local law.
12 (c) Except as provided in Subsection (3) with respect to all surface coal mining operations
13 backfill, compact (where advisable to insure stability or to prevent leaching of toxic materials) and
14 grade in order to restore the approximate original contour of the land with highwalls, spoil piles,
15 and depressions eliminated (unless small depressions are needed in order to retain moisture to
16 assist revegetation or as otherwise authorized pursuant to this chapter); but in surface coal mining
17 which is carried out at the same location over a substantial period of time where the operation
18 transects the coal deposit and the thickness of the coal deposits relative to the volume of the
19 overburden is large and where the operator demonstrates that the overburden and other spoil and
20 waste materials at a particular point in the permit area or otherwise available from the entire permit
21 area is insufficient, giving due consideration to volumetric expansion, to restore the approximate
22 original contour, the operator, at a minimum, shall backfill, grade, and compact (where advisable)
23 using all available overburden and other spoil and waste materials to attain the lowest practicable
24 grade but not more than the angle of repose, to provide adequate drainage and to cover all
25 acid-forming and other toxic materials, in order to achieve an ecologically sound land use
26 compatible with the surrounding region. In surface coal mining where the volume of overburden
27 is large relative to the thickness of the coal deposit and where the operator demonstrates that due
28 to volumetric expansion the amount of overburden and other spoil and waste materials removed
29 in the course of the mining operation is more than sufficient to restore the approximate original
30 contour, the operator shall, after restoring the approximate contour, backfill, grade, and compact
31 (where advisable) the excess overburden and other spoil and waste materials to attain the lowest
1 grade but more than the angle of repose, and to cover all acid-forming and other toxic materials,
2 in order to achieve an ecologically sound land use compatible with the surrounding region and that
3 the overburden or spoil shall be shaped and graded in such a way as to prevent slides, erosion, and
4 water pollution and is revegetated in accordance with the requirements of this chapter.
5 (d) Stabilize and protect all surface areas, including spoil piles affected by the surface coal
6 mining and reclamation operation to effectively control erosion and attendant air and water
7 pollution.
8 (e) Remove the topsoil from the land in a separate layer, replace it on the backfill area, or
9 if not utilized immediately, segregate it in a separate pile from other spoil, and when the topsoil
10 is not replaced on a backfill area within a time short enough to avoid deterioration of the topsoil,
11 maintain a successful cover by quick growing plant or other means thereafter so that the topsoil
12 is preserved from wind and water erosion, remains free of any contamination by other acid or toxic
13 material, and is in a usable condition for sustaining vegetation when restored during reclamation;
14 except if topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other
15 strata can be shown to be more suitable for vegetation requirements, then the operator shall
16 remove, segregate, and preserve in a like manner the other strata which is best able to support
17 vegetation.
18 (f) Restore the topsoil or the best available subsoil which is best able to support vegetation.
19 (g) For all prime farmlands, as identified in the rules, to be mined and reclaimed,
20 specifications for soil removal, storage, replacement, and reconstruction, the operator shall, as a
21 minimum, be required to:
22 (i) segregate the A horizon of the natural soil, except where it can be shown that other
23 available soil materials will create a final soil having a greater productive capacity, and if not
24 utilized immediately, stockpile this material separately from other spoil, and provide needed
25 protection from wind and water erosion or contamination by other acid or toxic material;
26 (ii) segregate the B horizon of the natural soil, or underlying C horizons or other strata,
27 or a combination of these horizons or other strata that are shown to be both texturally and
28 chemically suitable for plant growth and that can be shown to be equally or more favorable for
29 plant growth than the B horizon, in sufficient quantities to create in the regraded final soil a root
30 zone of comparable depth and quality to that which existed in the natural soil, and if not utilized
31 immediately, stockpile this material separately from other spoil, and provide needed protection
1 from wind and water erosion or contamination by other acid or toxic material;
2 (iii) replace and regrade the root zone material described in Subsection (2)(g)(ii) above
3 with proper compaction and uniform depth over the regraded spoil material; and
4 (iv) redistribute and grade in a uniform manner the surface soil horizon described in
5 Subsection (2)(g)(i).
6 (h) Create, if authorized in the approved mining and reclamation plan and permit,
7 permanent impoundments of water on mining sites as part of reclamation activities only when it
8 is adequately demonstrated that:
9 (i) the size of the impoundment is adequate for its intended purposes;
10 (ii) the impoundment dam construction will be so designed as to achieve necessary
11 stability with an adequate margin of safety compatible with that of structures constructed under
12 Public Law 83-566 (16 U.S.C. 1006);
13 (iii) the quality of impounded water will be suitable on a permanent basis for its intended
14 use and that discharges from the impoundment will not degrade the water quality below water
15 quality standards established pursuant to applicable federal and state law in the receiving stream;
16 (iv) the level of water will be reasonably stable;
17 (v) final grading will provide adequate safety and access for proposed water users; and
18 (vi) these water impoundments will not result in the diminution of the quality or quantity
19 of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational,
20 or domestic uses.
21 (i) Conducting any augering operation associated with surface mining in a manner to
22 maximize recoverability of mineral reserves remaining after the operation and reclamation are
23 complete and seal all auger holes with an impervious and noncombustible material in order to
24 prevent drainage except where the division determines that the resulting impoundment of water
25 in the auger holes may create a hazard to the environment or the public health or safety; but the
26 permitting authority may prohibit augering if necessary to maximize the utilization, recoverability,
27 or conservation of the solid fuel resources or to protect against adverse water quality impacts.
28 (j) Minimize the disturbances to the prevailing hydrologic balance at the mine site and in
29 associated offsite areas and to the quality and quantity of water in surface and groundwater
30 systems both during and after surface coal mining operations and during reclamation by:
31 (i) avoiding acid or other toxic mine drainage by such measures as, but not limited to:
1 (A) preventing or removing water from contact with toxic-producing deposits;
2 (B) treating drainage to reduce toxic content which adversely affects downstream water
3 upon being released to water courses; and
4 (C) casing, sealing, or otherwise managing boreholes, shafts, and wells and keep acid or
5 other toxic drainage from entering ground and surface waters;
6 (ii) (A) conducting surface coal mining operations so as to prevent, to the extent possible
7 using the best technology currently available, additional contributions of suspended solids to
8 streamflow or runoff outside the permit area, but in no event shall contributions be in excess of
9 requirements set by applicable state or federal law; and
10 (B) constructing any siltation structures pursuant to this Subsection (2)(j)(ii) prior to
11 commencement of surface coal mining operations, such structures to be certified by a qualified
12 registered engineer to be constructed as designed and as approved in the reclamation plan;
13 (iii) cleaning out and removing temporary or large settling ponds or other siltation
14 structures from drainways after disturbed areas are revegetated and stabilized and depositing the
15 silt and debris at a site and in a manner approved by the division;
16 (iv) restoring recharge capacity of the mined area to approximate premining conditions;
17 (v) avoiding channel deepening or enlargement in operations requiring the discharge of
18 water from mines;
19 (vi) preserving throughout the mining and reclamation process the essential hydrologic
20 functions of alluvial valley floors in the arid and semiarid areas of the state; and
21 (vii) such other actions as the division may prescribe.
22 (k) With respect to surface disposal of mine wastes, tailings, coal processing wastes, and
23 other waste in areas other than the mine working or excavations, stabilize all waste piles in
24 designated areas through construction in compacted layers, including the use of incombustible and
25 impervious materials, if necessary, and assure the final contour of the waste pile will be compatible
26 with natural surroundings and that the site can and will be stabilized and revegetated according to
27 the provisions of this chapter.
28 (l) Refrain from surface coal mining within 500 feet from active and abandoned
29 underground mines in order to prevent breakthroughs and to protect health or safety of miners; but
30 the division shall permit an operator to mine near, through, or partially through an abandoned
31 underground mine or closer to an active underground mine if:
1 (i) the nature, timing, and sequencing of the approximate coincidence of specific surface
2 mine activities with specific underground mine activities are jointly approved by the departments,
3 divisions, and agencies concerned with surface mine reclamation and the health and safety of
4 underground miners; and
5 (ii) the operations will result in improved resource recovery, abatement of water pollution,
6 or elimination of hazards to the health and safety of the public.
7 (m) Design, locate, construct, operate, maintain, enlarge, modify, and remove or abandon,
8 in accordance with the standards and criteria developed pursuant to the division's rules, all existing
9 and new coal mine waste piles consisting of mine wastes, tailings, coal processing wastes, or other
10 liquid and solid wastes, and used either temporarily or permanently as dams or embankments.
11 (n) Insure that all debris, acid-forming materials, toxic materials, or materials constituting
12 a fire hazard are treated or buried and compacted or otherwise disposed of in a manner designed
13 to prevent contamination of ground or surface waters and that contingency plans are developed to
14 prevent sustained combustion.
15 (o) Insure that explosives are used only in accordance with existing state and federal law
16 and the rules adopted by the board, which shall include provisions to:
17 (i) provide adequate advance written notice to local governments and residents who might
18 be affected by the use of the explosives by publication of the planned blasting schedule in a
19 newspaper of general circulation in the locality and by mailing a copy of the proposed blasting
20 schedule to every resident living within 1/2 mile of the proposed blasting site and by providing
21 daily notice to resident/occupiers in these areas prior to any blasting;
22 (ii) maintain for a period of at least three years and make available for public inspection
23 upon request a log detailing the location of the blasts, the pattern and depth of the drill holes, the
24 amount of explosives used per hole, and the order and length of delay in the blasts;
25 (iii) limit the type of explosives and detonating equipment, the size, the timing and
26 frequency of blasts based upon the physical conditions of the site so as to prevent injury to
27 persons, damage to public and private property outside the permit area, adverse impacts on any
28 underground mine, and change in the course, channel, or availability of ground or surface water
29 outside the permit area;
30 (iv) require that all blasting operations be conducted by trained and competent persons,
31 and to implement this requirement, the division shall promulgate rules requiring the training,
1 examination, and certification of persons engaging in or directly responsible for blasting or the use
2 of explosives in surface and coal mining operations; and
3 (v) provide that upon the request of a resident or owner of a man-made dwelling or
4 structure within 1/2 mile of any portion of the permitted area, the applicant or permittee shall
5 conduct a preblasting survey of the structures and submit the survey to the division and a copy to
6 the resident or owner making the request, the area of which survey shall be decided by the division
7 and shall include such provisions as promulgated.
8 (p) Insure that all reclamation efforts proceed in an environmentally sound manner and as
9 contemporaneously as practicable with the surface coal mining operations; but where the applicant
10 proposes to combine surface mining operations with underground mining operations to assure
11 maximum practical recovery of the mineral resources, the division may grant a variance for
12 specific areas within the reclamation plan from the requirement that reclamation efforts proceed
13 as contemporaneously as practicable to permit underground operations prior to reclamation:
14 (i) if the division finds in writing that:
15 (A) the applicant has presented, as part of the permit application, specific, feasible plans
16 for the proposed underground mining operations;
17 (B) the proposed underground mining operations are necessary or desirable to assure
18 maximum practical recovery of the mineral resource and will avoid multiple disturbance of the
19 surface;
20 (C) the applicant has satisfactorily demonstrated that the plan for the underground mining
21 operations conforms to requirements for underground mining in the jurisdiction and that permits
22 necessary for the underground mining operations have been issued by the appropriate authority;
23 (D) the areas proposed for the variance have been shown by the applicant to be necessary
24 for the implementing of the proposed underground mining operations;
25 (E) no substantial adverse environmental damage, either onsite or offsite, will result from
26 the delay in completion of reclamation as required by this chapter; and
27 (F) provisions for the offsite storage of spoil will comply with Subsection (2)(v);
28 (ii) if the board has adopted specific rules to govern the granting of the variances in
29 accordance with the provisions of this Subsection (2)(p) and has imposed such additional
30 requirements as deemed necessary;
31 (iii) if variances granted under this Subsection (2)(p) are to be reviewed by the division
1 not more than three years from the date of issuance of the permit; and
2 (iv) if liability under the bond filed by the applicant with the division pursuant to Section
3 40-10-15 shall be for the duration of the underground mining operations and until the requirements
4 of Subsection 40-10-17(2) and Section 40-10-16 have been fully complied with.
5 (q) Insure that the construction, maintenance, and postmining conditions of access roads
6 into and across the site of operations will control or prevent erosion and siltation, pollution of
7 water, damage to fish or wildlife or their habitat, or public or private property.
8 (r) Refrain from the construction of roads or other access ways up a stream bed or drainage
9 channel or in such proximity to the channel so as to seriously alter the normal flow of water.
10 (s) Establish on the regraded areas and all other lands affected, a diverse, effective, and
11 permanent vegetative cover of the same seasonal variety native to the area of land to be affected
12 and capable of self-regeneration and plant succession at least equal in extent of cover to the natural
13 vegetation of the area; except that introduced species may be used in the revegetation process
14 where desirable and necessary to achieve the approved postmining land use plan.
15 (t) (i) Assume the responsibility for successful revegetation, as required by Subsection
16 (2)(s), for a period of five full years after the last year of augmented seeding, fertilizing, irrigation,
17 or other work in order to assure compliance with Subsection (2)(s), except in those areas or regions
18 of the state where the annual average precipitation is 26 inches or less, then the operator's
19 assumption of responsibility and liability will extend for a period of ten full years after the last year
20 of augmented seeding, fertilizing, irrigation, or other work; but when the division approves a
21 long-term intensive agricultural postmining land use, the applicable five or ten-year period of
22 responsibility for revegetation shall commence at the date of initial planting for this long-term
23 intensive, agricultural postmining land use, except when the division issues a written finding
24 approving a long-term, intensive, agricultural postmining land use, as part of the mining and
25 reclamation plan, the division may grant exception to the provisions of Subsection (2)(s); and
26 (ii) on lands eligible for remining, assume the responsibility for successful revegetation
27 for a period of two full years after the last year of augmented seeding, fertilizing, irrigation, or
28 other work in order to assure compliance with the applicable standards, except in areas of the state
29 where the average annual precipitation is 26 inches or less, assume the responsibility for successful
30 revegetation for a period of five full years after the last year of augmented seeding, fertilizing,
31 irrigation, or other work in order to assure compliance with the applicable standards.
1 (u) Protect offsite areas from slides or damage occurring during the surface coal mining
2 and reclamation operations and not deposit spoil material or locate any part of the operations or
3 waste accumulations outside the permit area.
4 (v) Place all excess spoil material resulting from coal surface mining and reclamation
5 activities in a manner that:
6 (i) spoil is transported and placed in a controlled manner in position for concurrent
7 compaction and in a way to assure mass stability and to prevent mass movement;
8 (ii) the areas of disposal are within the bonded permit areas and all organic matter shall
9 be removed immediately prior to spoil placement;
10 (iii) appropriate surface and internal drainage systems and diversion ditches are used so
11 as to prevent spoil erosion and movement;
12 (iv) the disposal area does not contain springs, natural water courses, or wet weather seeps
13 unless lateral drains are constructed from the wet areas to the main underdrains in a manner that
14 filtration of the water into the spoil pile will be prevented;
15 (v) if placed on a slope, the spoil is placed upon the most moderate slope among those
16 upon which, in the judgment of the division, the spoil could be placed in compliance with all the
17 requirements of this chapter and shall be placed, where possible, upon or above a natural terrace,
18 bench, or berm, if this placement provides additional stability and prevents mass movement;
19 (vi) where the toe of the spoil rests on a downslope, a rock toe buttress of sufficient size
20 to prevent mass movement, is constructed;
21 (vii) the final configuration is compatible with the natural drainage pattern and
22 surroundings and suitable for intended uses;
23 (viii) design of the spoil disposal area is certified by a qualified professional engineer, and
24 to implement this requirement, the division shall promulgate rules regarding the certification of
25 engineers in the area of spoil disposal design; and
26 (ix) all other provisions of this chapter are met.
27 (w) Meet such other criteria as are necessary to achieve reclamation in accordance with
28 the purposes of this chapter, taking into consideration the physical, climatological, and other
29 characteristics of the site.
30 (x) To the extent possible, using the best technology currently available, minimize
31 disturbances and adverse impacts of the operation on fish, wildlife, and related environmental
1 values, and achieve enhancement of these resources where practicable.
2 (y) Provide for an undisturbed natural barrier beginning at the elevation of the lowest coal
3 seam to be mined and extending from the outslope for the distance as the division shall determine
4 shall be retained in place as a barrier to slides and erosion.
5 (3) (a) Where an applicant meets the requirements of Subsections (3)(b) and (c), a permit
6 without regard to the requirement to restore to approximate original contour provided in
7 Subsections (2)(c), (4)(b), and (4)(c) may be granted for the surface mining of coal where the
8 mining operation will remove an entire coal seam or seams running through the upper fraction of
9 a mountain, ridge, or hill (except as provided in this Subsection (3)) by removing all of the
10 overburden and creating a level plateau or a gently rolling contour with no highwalls remaining,
11 and capable of supporting postmining uses in accord with the requirements of this subsection.
12 (b) In cases where an industrial, commercial, agricultural, residential, or public facility
13 (including recreational facilities) use is proposed for the postmining use of the affected land, the
14 division may grant a permit for a surface mining operation of the nature described in Subsection
15 (3)(a) pursuant to procedures and criteria set forth in the rules, including:
16 (i) the applicant's presentation of specific plans for the proposed postmining land use
17 which meet criteria concerning the type of use proposed;
18 (ii) the applicant's demonstration that the proposed use would be consistent with adjacent
19 land uses and existing state and local land use plans and programs and with other requirements of
20 this chapter; and
21 (iii) procedures whereby the division provides the governing body of the unit of
22 general-purpose government in which the land is located and any state or federal agency which the
23 division, in its discretion, determines to have an interest in the proposed use, an opportunity of not
24 more than 60 days to review and comment on the proposed use.
25 (c) All permits granted under the provisions of this Subsection (3) shall be reviewed not
26 more than three years from the date of issuance of the permit, unless the applicant affirmatively
27 demonstrates that the proposed development is proceeding in accordance with the terms of the
28 approved schedule and reclamation plan.
29 (4) The following performance standards shall be applicable to steep-slope surface coal
30 mining and shall be in addition to those general performance standards required by this section;
31 but the provisions of this Subsection (4) shall not apply to those situations in which an operator
1 is mining on flat or gently rolling terrain, on which an occasional steep slope is encountered
2 through which the mining operation is to proceed, leaving a plain or predominantly flat area or
3 where an operator is in compliance with provisions of Subsection (3):
4 (a) Insure that when performing surface coal mining on steep slopes, no debris, abandoned
5 or disabled equipment, spoil material, or waste mineral matter be placed on the downslope below
6 the bench or mining cut; but spoil material in excess of that required for the reconstruction of the
7 approximate original contour under the provisions of Subsection (2)(c) or this Subsection (4) shall
8 be permanently stored pursuant to Subsection 40-10-17(2)(v).
9 (b) Complete backfilling with spoil material shall be required to cover completely the
10 highwall and return the site to the appropriate original contour, which material will maintain
11 stability following mining and reclamation.
12 (c) The operator may not disturb land above the top of the highwall unless the division
13 finds that the disturbance will facilitate compliance with the environmental protection standards
14 of this section; but the land disturbed above the highwall shall be limited to that amount necessary
15 to facilitate this compliance.
16 (d) For the purposes of this Subsection (4), "steep slope" means any slope above 20
17 degrees or such lesser slope as may be defined by the division after consideration of soil, climate,
18 and other characteristics of an area.
19 (5) The board shall promulgate specific rules to govern the granting of variances from the
20 requirement to restore to approximate original contour provided in Subsection (4)(b) pursuant to
21 procedures and criteria set forth in those rules including:
22 (a) written request by the surface owner concerning the proposed use;
23 (b) approval of the proposed use as an equal or better economic or public use; and
24 (c) approval of the proposed use as improving the watershed control in the area and as
25 using only such amount of spoil as is necessary to achieve the planned postmining land use.
26 (6) Subsection (2)(t)(ii) is repealed September 30, 2004.
27 Section 5. Section 40-10-20 is amended to read:
28 40-10-20. Civil penalty for violation of chapter -- Informal conference -- Public
29 hearing -- Contest of violation or amount of penalty -- Collection -- Criminal penalties --
30 Civil penalty for failure to correct violation.
31 (1) (a) Any permittee who violates any permit condition or other provision of this chapter
1 may be assessed a civil penalty by the division. If the violation leads to the issuance of a cessation
2 order under Section 40-10-22, the civil penalty shall be assessed.
3 (b) (i) The penalty may not exceed $5,000 for each violation.
4 (ii) Each day of a continuing violation may be deemed a separate violation for purposes
5 of the penalty assessments.
6 (c) In determining the amount of the penalty, consideration shall be given to:
7 (i) the permittee's history of previous violations at the particular surface coal mining
8 operation;
9 (ii) the seriousness of the violation, including any irreparable harm to the environment and
10 any hazard to the health or safety of the public;
11 (iii) whether the permittee was negligent; and
12 (iv) the demonstrated good faith of the permittee in attempting to achieve rapid
13 compliance after notification of the violation.
14 (2) (a) Within 30 days after the issuance of a notice or order charging that a violation of
15 this chapter has occurred, the division shall inform the permittee of the proposed assessment.
16 (b) The person charged with the penalty shall then have 30 days to pay the proposed
17 assessment in full, or request an informal conference before the division.
18 (c) The informal conference held by the division may address either the amount of the
19 proposed assessment or the fact of the violation, or both.
20 (d) If the permittee who requested the informal conference and participated in the
21 proceedings is not in agreement with the results of the informal conference, the permittee may,
22 within 30 days of receipt of the decision made by the division in the informal conference, request
23 a hearing before the board.
24 (e) (i) Prior to any review of the proposed assessment or the fact of a violation by the
25 board, and within 30 days of receipt of the decision made by the division in the informal
26 conference, the permittee shall forward to the division the amount of the proposed assessment for
27 placement in an escrow account.
28 (ii) If the operator fails to forward the amount of the penalty to the division within 30 days
29 of receipt of the results of the informal conference, the operator waives any opportunity for further
30 review of the fact of the violation or to contest the amount of the civil penalty assessed for the
31 violation.
1 (iii) If, through administrative or judicial review, it is determined that no violation
2 occurred or that the amount of the penalty should be reduced, the division shall within 30 days
3 remit the appropriate amount to the operator with interest accumulated.
4 (3) (a) A civil penalty assessed by the division shall be final only after the person charged
5 with a violation described under Subsection (1) has been given an opportunity for a public hearing.
6 (b) If a public hearing is held, the board shall make findings of fact and shall issue a
7 written decision as to the occurrence of the violation and the amount of the penalty which is
8 warranted, incorporating, when appropriate, an order requiring that the penalty be paid.
9 (c) When appropriate, the board shall consolidate the hearings with other proceedings
10 under Section 40-10-22.
11 (d) Any hearing under this section shall be of record and shall be conducted pursuant to
12 board rules governing the proceedings.
13 (e) If the person charged with a violation fails to avail himself of the opportunity for a
14 public hearing, a civil penalty shall be assessed by the division after the division:
15 (i) has determined:
16 (A) that a violation did occur; and
17 (B) the amount of the penalty which is warranted; and
18 (ii) has issued an order requiring that the penalty be paid.
19 (4) Civil penalties owed under this chapter may be recovered in a civil action brought by
20 the attorney general of Utah at the request of the board in any appropriate district court of the state.
21 (5) Any person who willfully and knowingly violates a condition of a permit issued
22 pursuant to this chapter or fails or refuses to comply with any order issued under Section 40-10-22
23 or any order incorporated in a final decision issued by the board under this chapter, except an order
24 incorporated in a decision under Subsection (3), shall, upon conviction, be punished by a fine of
25 not more than $10,000, or by imprisonment for not more than one year, or both.
26 (6) Whenever a corporate permittee violates a condition of a permit issued pursuant to this
27 chapter or fails or refuses to comply with any order incorporated in a final decision issued by the
28 board under this chapter, except an order incorporated in a decision issued under Subsection (3),
29 any director, officer, or agent of the corporation who willfully and knowingly authorized, ordered,
30 or carried out the violation, failure, or refusal shall be subject to the same civil penalties, fines, and
31 imprisonment that may be imposed upon a person under Subsections (1) and (5).
1 (7) Whoever knowingly makes any false statement, representation, or certification, or
2 knowingly fails to make any statement, representation, or certification in any application, record,
3 report, plan, or other document filed or required to be maintained pursuant to this chapter or any
4 order or decision issued by the board under this chapter shall, upon conviction, be punished by a
5 fine of not more than $10,000, or by imprisonment for not more than one year, or both.
6 (8) (a) Any operator who fails to correct a violation for which a notice or cessation order
7 has been issued under Subsection 40-10-22(1) within the period permitted for its correction shall
8 be assessed a civil penalty of not less than $750 for each day during which the failure or violation
9 continues.
10 (b) The period permitted for correction of a violation for which a notice of cessation order
11 has been issued under Subsection 40-10-22(1) may not end until:
12 (i) the entry of a final order by the board, in the case of any review proceedings initiated
13 by the operator in which the board orders, after an expedited hearing, the suspension of the
14 abatement requirements of the citation after determining that the operator will suffer irreparable
15 loss or damage from the application of those requirements; or
16 (ii) the entry of an order of the court, in the case of any review proceedings initiated by
17 the operator wherein the court orders the suspension of the abatement requirements of the citation.
18 Section 6. Section 40-10-25 is amended to read:
19 40-10-25. Abandoned mine reclamation program -- Expenditure priorities -- Eligible
20 lands and water -- Requirements for use of funds for reclamation or drainage abatement --
21 Priority sites -- Effect of release of bond or deposit.
22 (1) Grants made to the state by the secretary of the United States Department of Interior
23 for the administration of an abandoned mine reclamation program and monies of the Abandoned
24 Mine Reclamation Fund created in Section 40-10-25.1 shall be used by the division in accordance
25 with Sections 40-10-25 through 40-10-28.1.
26 (2) The expenditure of monies shall reflect the following priorities:
27 (a) the protection of public health, safety, general welfare, and property from extreme
28 danger of adverse effects of coal mining practices;
29 (b) the protection of public health, safety, and general welfare from adverse effects of coal
30 mining practices;
31 (c) the restoration of land and water resources and the environment previously degraded
1 by adverse effects of coal mining practices, including measures for the conservation and
2 development of soil, water (excluding channelization), woodland, fish and wildlife, recreation
3 resources, and agricultural productivity;
4 (d) the protection, repair, replacement, construction, or enhancement of public facilities
5 such as utilities, roads, and recreation and conservation facilities adversely affected by coal mining
6 practices; and
7 (e) the development of publicly owned land adversely affected by coal mining practices,
8 including land acquired as provided in this section for recreation and historic purposes,
9 conservation, reclamation purposes, and open space benefits.
10 (3) Except as provided in Section 40-10-28.1, lands and water eligible for reclamation or
11 drainage abatement expenditures under this section are those which were mined for coal or
12 affected by coal mining, wastebanks, coal processing, or other coal mining processes and:
13 (a) abandoned or left in an inadequate reclamation status prior to August 3, 1977, and for
14 which there is no continuing reclamation responsibility under state or federal laws; or
15 (b) left in an inadequate reclamation status and meet the criteria of Subsection (4)(a) or
16 (b).
17 (4) Funds made available under this section may be used for reclamation or drainage
18 abatement at a site referred to in Subsection (3) if:
19 (a) (i) operations occurred on the site during the period beginning August 4, 1977, and
20 ending before January 21, 1981; and
21 (ii) any funds for reclamation or abatement which are available pursuant to a loan or other
22 form of financial guarantee or from any other source are not sufficient to provide for adequate
23 reclamation or abatement at the site; or
24 (b) (i) operations occurred on the site during the period beginning on August 4, 1977, and
25 ending on or before November 5, 1990; and
26 (ii) the surety of the mining operator became insolvent during that period, and as of
27 November 5, 1990, funds immediately available from proceedings relating to the insolvency, or
28 from any financial guarantee or other source, are not sufficient to provide for adequate reclamation
29 or abatement at the site.
30 (5) In determining which sites to reclaim, priority shall be given to those sites which are
31 in the immediate vicinity of a residential area or which have an adverse economic impact upon a
1 local community.
2 (6) (a) Surface coal mining operations on lands eligible for remining will not affect their
3 eligibility for reclamation and restoration under this chapter after the release of the bond or deposit
4 for the operation as provided under Section 40-10-16.
5 (b) When a bond or deposit for a [
6 remining is forfeited, funds available under Section 40-10-25 may be used, if the amount of the
7 bond or deposit is not sufficient to provide for adequate reclamation or abatement.
8 (c) Regardless of the requirements of Subsections (6)(a) and (b), the director of the
9 division may expend monies under Section 40-10-25.1 for any emergency requiring immediate
10 reclamation.
Legislative Review Note
as of 1-21-97 2:38 PM
A limited legal review of this bill raises no obvious constitutional or statutory concerns.
Office of Legislative Research and General Counsel
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