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40-10-11 (Subsection (5) is Repealed 09/30/04), as last amended by Chapter 219, Laws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