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S.B. 17 Enrolled





Chief Sponsor: Dennis E. Stowell

House Sponsor: Michael E. Noel

             7      LONG TITLE
             8      General Description:
             9          This bill amends sections relating to surface coal mining.
             10      Highlighted Provisions:
             11          This bill:
             12          .    removes two repeal dates; and
             13          .    makes technical changes.
             14      Monies Appropriated in this Bill:
             15          None
             16      Other Special Clauses:
             17          None
             18      Utah Code Sections Affected:
             19      AMENDS:
             20          40-10-11 (Subsection (5) is Repealed 09/30/09), as last amended by Laws of Utah
             21      2004, Chapter 230
             22          40-10-17 (Subsect (2)(t)(ii) Repeal 09/30/09), as last amended by Laws of Utah 2004,
             23      Chapter 230
             25      Be it enacted by the Legislature of the state of Utah:
             26          Section 1. Section 40-10-11 (Subsection (5) is Repealed 09/30/09) is amended to
             27      read:
             28           40-10-11 (Subsection (5) is Repealed 09/30/09). Division action on permit
             29      application -- Requirements for approval -- Schedule of applicant's mining law violation

             30      -- Restoration of prime farmland.
             31          (1) (a) (i) After a complete mining application and reclamation plan or a revision or
             32      renewal of an application and plan is submitted to the division as required by this chapter and
             33      the public is notified and given an opportunity for a hearing as required by Section 40-10-13 ,
             34      the division shall grant, require modification of, or deny the permit application.
             35          (ii) The division shall make its decision within a reasonable time set by the division
             36      and notify the applicant in writing.
             37          (b) The applicant for a permit, or a revision of a permit shall have the burden of
             38      establishing that the application is in compliance with all requirements of this chapter.
             39          (c) Within ten days after the granting of a permit, the division shall provide to the
             40      local governmental officials in the local political subdivision in which the area of affected land
             41      is located:
             42          (i) notification that a permit has been issued; and
             43          (ii) a description of the location of the land.
             44          (2) No permit or revision application shall be approved unless the application
             45      affirmatively demonstrates and the division finds in writing on the basis of the information set
             46      forth in the application, or from information otherwise available which will be documented in
             47      the approval and made available to the applicant, that:
             48          (a) the permit application is accurate and complete and that all requirements of this
             49      chapter have been complied with;
             50          (b) the applicant has demonstrated that the reclamation requirements under this
             51      chapter can be accomplished under the reclamation plan contained in the permit application;
             52          (c) the assessment of the probable cumulative impact of all anticipated mining in the
             53      area on the hydrologic balance specified in Subsection 40-10-10 (2)(c) has been made by the
             54      division and the proposed operation has been designed to prevent material damage to the
             55      hydrologic balance outside the permit area;
             56          (d) the area proposed to be mined is not included within an area:
             57          (i) designated as unsuitable for surface coal mining pursuant to Section 40-10-24 ; or

             58          (ii) under study for this designation in an administrative proceeding commenced under
             59      Subsection 40-10-24 (2), unless the operator demonstrates that prior to January 1, 1977,
             60      substantial legal and financial commitments were made to the operation;
             61          (e) the proposed surface coal mining operation would not:
             62          (i) interrupt, discontinue, or preclude farming on alluvial valley floors that are
             63      irrigated or naturally subirrigated other than on:
             64          (A) undeveloped range lands that are not significant to farming on alluvial valley
             65      floors; or
             66          (B) lands which the division finds are of such small acreage that if farming is
             67      interrupted, discontinued, or precluded, the impact on the farm's agricultural production will
             68      be negligible; or
             69          (ii) materially damage the quantity or quality of water in surface or underground water
             70      systems that supply alluvial valley floors specified in Subsection (2)(e)(i), but this Subsection
             71      (2)(e) shall not affect those surface coal mining operations which in the year preceding August
             72      3, 1977, produced coal in commercial quantities and were located within or adjacent to
             73      alluvial valley floors or had obtained specific permit approval by the division to conduct
             74      surface coal mining operations within these alluvial valley floors; and
             75          (f) if the private mineral estate has been severed from the private surface estate, the
             76      applicant has submitted to the division:
             77          (i) the written consent of the surface owner to the extraction of coal by surface mining
             78      methods provided that nothing in this Subsection (2) shall be construed to:
             79          (A) increase or diminish any property right established under the laws of the state; or
             80          (B) authorize the board or division to adjudicate property right disputes;
             81          (ii) a conveyance that expressly grants or reserves the right to extract the coal by
             82      surface mining methods; or
             83          (iii) documentation consistent with state law that establishes the status of the
             84      surface-subsurface legal relationship.
             85          (3) (a) (i) The applicant shall file with the permit application a list of any notices of

             86      violations of the Surface Mining Control and Reclamation Act of 1977 or its implementing
             87      regulations, this chapter, any state or federal program or law approved under the Surface
             88      Mining Control and Reclamation Act of 1977, 30 U.S.C. Sec. 1201 et seq., and any law, rule,
             89      or regulation of the United States, State of Utah, or any department or agency in the United
             90      States pertaining to air or water environmental protection incurred by the applicant in
             91      connection with any surface coal mining operation during the three-year period prior to the
             92      date of application.
             93          (ii) The list required in Subsection (3)(a)(i) shall also indicate the final resolution of
             94      any notice of violation.
             95          (b) If the list or other information available to the division indicates that any surface
             96      coal mining operation owned or controlled by the applicant is currently in violation of this
             97      chapter or other laws and regulations referred to in this Subsection (3), the permit shall not be
             98      issued until the applicant submits proof that the violation has been corrected or is in the
             99      process of being corrected to the satisfaction of the division, department, or agency which has
             100      jurisdiction over the violation.
             101          (c) No permit shall be issued to an applicant after a finding by the board, after
             102      opportunity for hearing, that the applicant, or the operator specified in the application, controls
             103      or has controlled mining operations with a demonstrated pattern of willful violations of this
             104      chapter, the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. Sec. 1201 et
             105      seq., the implementing federal regulations, any state or federal programs enacted under the
             106      Surface Mining Control and Reclamation Act, or other provisions of the approved Utah
             107      program of such nature and duration with such resulting irreparable damage to the
             108      environment as to indicate an intent not to comply with the provisions of this chapter.
             109          (4) (a) (i) In addition to finding the application in compliance with Subsection (2), if
             110      the area proposed to be mined contains prime farmland pursuant to division rules, the division
             111      shall grant a permit to mine on prime farmland if the division finds in writing that the operator
             112      has the technological capability to restore the mined area within a reasonable time to an
             113      equivalent or higher level of yield as nonmined prime farmland in the surrounding area under

             114      equivalent levels of management and can meet the soil reconstruction standards specified in
             115      division rules.
             116          (ii) Except for compliance with Subsection (2), the requirements of this subsection
             117      shall apply to all permits issued after August 3, 1977.
             118          (b) This Subsection (4) shall not apply to any permit issued prior to August 3, 1977, or
             119      to any revisions or renewals of the permit, or to any existing surface mining operations for
             120      which a permit was issued prior to August 3, 1977.
             121          (5) (a) After October 24, 1992, the prohibition of Subsection (3) shall not apply to a
             122      permit application if the violation resulted from an unanticipated event or condition that
             123      occurred at a surface coal mining operation on lands eligible for remining under a permit held
             124      by the person making the application.
             125          (b) As used in this Subsection (5), the term "violation" has the same meaning as the
             126      term has under Subsection (3).
             127          [(c) This Subsection (5) is repealed September 30, 2009.]
             128          Section 2. Section 40-10-17 (Subsect (2)(t)(ii) Repeal 09/30/09) is amended to read:
             129           40-10-17 (Subsect (2)(t)(ii) Repeal 09/30/09). Performance standards for all coal
             130      mining and reclamation operations -- Additional standards for steep-slope surface coal
             131      mining -- Variances.
             132          (1) Any permit issued pursuant to this chapter to conduct surface coal mining shall
             133      require that the surface coal mining operations will meet all applicable performance standards
             134      of this chapter, and such other requirements as the division shall promulgate.
             135          (2) General performance standards shall be applicable to all surface coal mining and
             136      reclamation operations and shall require the operations as a minimum to:
             137          (a) Conduct surface coal mining operations so as to maximize the utilization and
             138      conservation of the solid fuel resource being recovered so that reaffecting the land in the future
             139      through surface coal mining can be minimized.
             140          (b) Restore the land affected to a condition capable of supporting the uses which it
             141      was capable of supporting prior to any mining, or higher or better uses of which there is

             142      reasonable likelihood, so long as the use or uses does not present any actual or probable hazard
             143      to public health or safety or pose any actual or probable threat of water diminution or
             144      pollution, and the permit applicant's declared proposed land use following reclamation is not
             145      [deemed] considered to be impractical or unreasonable, inconsistent with applicable land use
             146      policies and plans, involves unreasonable delay in implementation, or is violative of federal,
             147      state, or local law.
             148          (c) Except as provided in Subsection (3) with respect to all surface coal mining
             149      operations backfill, compact (where advisable to insure stability or to prevent leaching of toxic
             150      materials) and grade in order to restore the approximate original contour of the land with
             151      highwalls, spoil piles, and depressions eliminated (unless small depressions are needed in
             152      order to retain moisture to assist revegetation or as otherwise authorized pursuant to this
             153      chapter); but in surface coal mining which is carried out at the same location over a substantial
             154      period of time where the operation transects the coal deposit and the thickness of the coal
             155      deposits relative to the volume of the overburden is large and where the operator demonstrates
             156      that the overburden and other spoil and waste materials at a particular point in the permit area
             157      or otherwise available from the entire permit area is insufficient, giving due consideration to
             158      volumetric expansion, to restore the approximate original contour, the operator, at a minimum,
             159      shall backfill, grade, and compact (where advisable) using all available overburden and other
             160      spoil and waste materials to attain the lowest practicable grade but not more than the angle of
             161      repose, to provide adequate drainage and to cover all acid-forming and other toxic materials,
             162      in order to achieve an ecologically sound land use compatible with the surrounding region. In
             163      surface coal mining where the volume of overburden is large relative to the thickness of the
             164      coal deposit and where the operator demonstrates that due to volumetric expansion the amount
             165      of overburden and other spoil and waste materials removed in the course of the mining
             166      operation is more than sufficient to restore the approximate original contour, the operator
             167      shall, after restoring the approximate contour, backfill, grade, and compact (where advisable)
             168      the excess overburden and other spoil and waste materials to attain the lowest grade but more
             169      than the angle of repose, and to cover all acid-forming and other toxic materials, in order to

             170      achieve an ecologically sound land use compatible with the surrounding region and that the
             171      overburden or spoil shall be shaped and graded in such a way as to prevent slides, erosion, and
             172      water pollution and is revegetated in accordance with the requirements of this chapter.
             173          (d) Stabilize and protect all surface areas, including spoil piles affected by the surface
             174      coal mining and reclamation operation to effectively control erosion and attendant air and
             175      water pollution.
             176          (e) Remove the topsoil from the land in a separate layer, replace it on the backfill area,
             177      or if not utilized immediately, segregate it in a separate pile from other spoil, and when the
             178      topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of
             179      the topsoil, maintain a successful cover by quick growing plant or other means thereafter so
             180      that the topsoil is preserved from wind and water erosion, remains free of any contamination
             181      by other acid or toxic material, and is in a usable condition for sustaining vegetation when
             182      restored during reclamation; except if topsoil is of insufficient quantity or of poor quality for
             183      sustaining vegetation, or if other strata can be shown to be more suitable for vegetation
             184      requirements, then the operator shall remove, segregate, and preserve in a like manner the
             185      other strata which is best able to support vegetation.
             186          (f) Restore the topsoil or the best available subsoil which is best able to support
             187      vegetation.
             188          (g) For all prime farmlands, as identified in the rules, to be mined and reclaimed,
             189      specifications for soil removal, storage, replacement, and reconstruction, the operator shall, as
             190      a minimum, be required to:
             191          (i) segregate the A horizon of the natural soil, except where it can be shown that other
             192      available soil materials will create a final soil having a greater productive capacity, and if not
             193      utilized immediately, stockpile this material separately from other spoil, and provide needed
             194      protection from wind and water erosion or contamination by other acid or toxic material;
             195          (ii) segregate the B horizon of the natural soil, or underlying C horizons or other strata,
             196      or a combination of these horizons or other strata that are shown to be both texturally and
             197      chemically suitable for plant growth and that can be shown to be equally or more favorable for

             198      plant growth than the B horizon, in sufficient quantities to create in the regraded final soil a
             199      root zone of comparable depth and quality to that which existed in the natural soil, and if not
             200      utilized immediately, stockpile this material separately from other spoil, and provide needed
             201      protection from wind and water erosion or contamination by other acid or toxic material;
             202          (iii) replace and regrade the root zone material described in Subsection (2)(g)(ii) above
             203      with proper compaction and uniform depth over the regraded spoil material; and
             204          (iv) redistribute and grade in a uniform manner the surface soil horizon described in
             205      Subsection (2)(g)(i).
             206          (h) Create, if authorized in the approved mining and reclamation plan and permit,
             207      permanent impoundments of water on mining sites as part of reclamation activities only when
             208      it is adequately demonstrated that:
             209          (i) the size of the impoundment is adequate for its intended purposes;
             210          (ii) the impoundment dam construction will be so designed as to achieve necessary
             211      stability with an adequate margin of safety compatible with that of structures constructed
             212      under Public Law 83-566 (16 U.S.C. 1006);
             213          (iii) the quality of impounded water will be suitable on a permanent basis for its
             214      intended use and that discharges from the impoundment will not degrade the water quality
             215      below water quality standards established pursuant to applicable federal and state law in the
             216      receiving stream;
             217          (iv) the level of water will be reasonably stable;
             218          (v) final grading will provide adequate safety and access for proposed water users; and
             219          (vi) these water impoundments will not result in the diminution of the quality or
             220      quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial,
             221      recreational, or domestic uses.
             222          (i) Conducting any augering operation associated with surface mining in a manner to
             223      maximize recoverability of mineral reserves remaining after the operation and reclamation are
             224      complete and seal all auger holes with an impervious and noncombustible material in order to
             225      prevent drainage except where the division determines that the resulting impoundment of

             226      water in the auger holes may create a hazard to the environment or the public health or safety;
             227      but the permitting authority may prohibit augering if necessary to maximize the utilization,
             228      recoverability, or conservation of the solid fuel resources or to protect against adverse water
             229      quality impacts.
             230          (j) Minimize the disturbances to the prevailing hydrologic balance at the mine site and
             231      in associated offsite areas and to the quality and quantity of water in surface and groundwater
             232      systems both during and after surface coal mining operations and during reclamation by:
             233          (i) avoiding acid or other toxic mine drainage by such measures as, but not limited to:
             234          (A) preventing or removing water from contact with toxic-producing deposits;
             235          (B) treating drainage to reduce toxic content which adversely affects downstream
             236      water upon being released to water courses; and
             237          (C) casing, sealing, or otherwise managing boreholes, shafts, and wells and keep acid
             238      or other toxic drainage from entering ground and surface waters;
             239          (ii) (A) conducting surface coal mining operations so as to prevent, to the extent
             240      possible using the best technology currently available, additional contributions of suspended
             241      solids to streamflow or runoff outside the permit area, but in no event shall contributions be in
             242      excess of requirements set by applicable state or federal law; and
             243          (B) constructing any siltation structures pursuant to this Subsection (2)(j)(ii) prior to
             244      commencement of surface coal mining operations, such structures to be certified by a qualified
             245      registered engineer to be constructed as designed and as approved in the reclamation plan;
             246          (iii) cleaning out and removing temporary or large settling ponds or other siltation
             247      structures from drainways after disturbed areas are revegetated and stabilized and depositing
             248      the silt and debris at a site and in a manner approved by the division;
             249          (iv) restoring recharge capacity of the mined area to approximate premining
             250      conditions;
             251          (v) avoiding channel deepening or enlargement in operations requiring the discharge
             252      of water from mines;
             253          (vi) preserving throughout the mining and reclamation process the essential hydrologic

             254      functions of alluvial valley floors in the arid and semiarid areas of the state; and
             255          (vii) such other actions as the division may prescribe.
             256          (k) With respect to surface disposal of mine wastes, tailings, coal processing wastes,
             257      and other waste in areas other than the mine working or excavations, stabilize all waste piles in
             258      designated areas through construction in compacted layers, including the use of incombustible
             259      and impervious materials, if necessary, and assure the final contour of the waste pile will be
             260      compatible with natural surroundings and that the site can and will be stabilized and
             261      revegetated according to the provisions of this chapter.
             262          (l) Refrain from surface coal mining within 500 feet from active and abandoned
             263      underground mines in order to prevent breakthroughs and to protect health or safety of miners;
             264      but the division shall permit an operator to mine near, through, or partially through an
             265      abandoned underground mine or closer to an active underground mine if:
             266          (i) the nature, timing, and sequencing of the approximate coincidence of specific
             267      surface mine activities with specific underground mine activities are jointly approved by the
             268      departments, divisions, and agencies concerned with surface mine reclamation and the health
             269      and safety of underground miners; and
             270          (ii) the operations will result in improved resource recovery, abatement of water
             271      pollution, or elimination of hazards to the health and safety of the public.
             272          (m) Design, locate, construct, operate, maintain, enlarge, modify, and remove or
             273      abandon, in accordance with the standards and criteria developed pursuant to the division's
             274      rules, all existing and new coal mine waste piles consisting of mine wastes, tailings, coal
             275      processing wastes, or other liquid and solid wastes, and used either temporarily or permanently
             276      as dams or embankments.
             277          (n) Insure that all debris, acid-forming materials, toxic materials, or materials
             278      constituting a fire hazard are treated or buried and compacted or otherwise disposed of in a
             279      manner designed to prevent contamination of ground or surface waters and that contingency
             280      plans are developed to prevent sustained combustion.
             281          (o) Insure that explosives are used only in accordance with existing state and federal

             282      law and the rules adopted by the board, which shall include provisions to:
             283          (i) provide adequate advance written notice to local governments and residents who
             284      might be affected by the use of the explosives by publication of the planned blasting schedule
             285      in a newspaper of general circulation in the locality and by mailing a copy of the proposed
             286      blasting schedule to every resident living within 1/2 mile of the proposed blasting site and by
             287      providing daily notice to resident/occupiers in these areas prior to any blasting;
             288          (ii) maintain for a period of at least three years and make available for public
             289      inspection upon request a log detailing the location of the blasts, the pattern and depth of the
             290      drill holes, the amount of explosives used per hole, and the order and length of delay in the
             291      blasts;
             292          (iii) limit the type of explosives and detonating equipment, the size, the timing and
             293      frequency of blasts based upon the physical conditions of the site so as to prevent injury to
             294      persons, damage to public and private property outside the permit area, adverse impacts on
             295      any underground mine, and change in the course, channel, or availability of ground or surface
             296      water outside the permit area;
             297          (iv) require that all blasting operations be conducted by trained and competent
             298      persons, and to implement this requirement, the division shall promulgate rules requiring the
             299      training, examination, and certification of persons engaging in or directly responsible for
             300      blasting or the use of explosives in surface and coal mining operations; and
             301          (v) provide that upon the request of a resident or owner of a man-made dwelling or
             302      structure within 1/2 mile of any portion of the permitted area, the applicant or permittee shall
             303      conduct a preblasting survey of the structures and submit the survey to the division and a copy
             304      to the resident or owner making the request, the area of which survey shall be decided by the
             305      division and shall include such provisions as promulgated.
             306          (p) Insure that all reclamation efforts proceed in an environmentally sound manner and
             307      as contemporaneously as practicable with the surface coal mining operations; but where the
             308      applicant proposes to combine surface mining operations with underground mining operations
             309      to assure maximum practical recovery of the mineral resources, the division may grant a

             310      variance for specific areas within the reclamation plan from the requirement that reclamation
             311      efforts proceed as contemporaneously as practicable to permit underground operations prior to
             312      reclamation:
             313          (i) if the division finds in writing that:
             314          (A) the applicant has presented, as part of the permit application, specific, feasible
             315      plans for the proposed underground mining operations;
             316          (B) the proposed underground mining operations are necessary or desirable to assure
             317      maximum practical recovery of the mineral resource and will avoid multiple disturbance of the
             318      surface;
             319          (C) the applicant has satisfactorily demonstrated that the plan for the underground
             320      mining operations conforms to requirements for underground mining in the jurisdiction and
             321      that permits necessary for the underground mining operations have been issued by the
             322      appropriate authority;
             323          (D) the areas proposed for the variance have been shown by the applicant to be
             324      necessary for the implementing of the proposed underground mining operations;
             325          (E) no substantial adverse environmental damage, either onsite or offsite, will result
             326      from the delay in completion of reclamation as required by this chapter; and
             327          (F) provisions for the offsite storage of spoil will comply with Subsection (2)(v);
             328          (ii) if the board has adopted specific rules to govern the granting of the variances in
             329      accordance with the provisions of this Subsection (2)(p) and has imposed such additional
             330      requirements as considered necessary;
             331          (iii) if variances granted under this Subsection (2)(p) are to be reviewed by the
             332      division not more than three years from the date of issuance of the permit; and
             333          (iv) if liability under the bond filed by the applicant with the division pursuant to
             334      Section 40-10-15 shall be for the duration of the underground mining operations and until the
             335      requirements of this Subsection (2) and Section 40-10-16 have been fully complied with.
             336          (q) Insure that the construction, maintenance, and postmining conditions of access
             337      roads into and across the site of operations will control or prevent erosion and siltation,

             338      pollution of water, damage to fish or wildlife or their habitat, or public or private property.
             339          (r) Refrain from the construction of roads or other access ways up a stream bed or
             340      drainage channel or in such proximity to the channel so as to seriously alter the normal flow of
             341      water.
             342          (s) Establish on the regraded areas and all other lands affected, a diverse, effective,
             343      and permanent vegetative cover of the same seasonal variety native to the area of land to be
             344      affected and capable of self-regeneration and plant succession at least equal in extent of cover
             345      to the natural vegetation of the area; except that introduced species may be used in the
             346      revegetation process where desirable and necessary to achieve the approved postmining land
             347      use plan.
             348          (t) (i) Assume the responsibility for successful revegetation, as required by Subsection
             349      (2)(s), for a period of five full years after the last year of augmented seeding, fertilizing,
             350      irrigation, or other work in order to assure compliance with Subsection (2)(s), except in those
             351      areas or regions of the state where the annual average precipitation is 26 inches or less, then
             352      the operator's assumption of responsibility and liability will extend for a period of ten full
             353      years after the last year of augmented seeding, fertilizing, irrigation, or other work; but when
             354      the division approves a long-term intensive agricultural postmining land use, the applicable
             355      five or ten-year period of responsibility for revegetation shall commence at the date of initial
             356      planting for this long-term intensive, agricultural postmining land use, except when the
             357      division issues a written finding approving a long-term, intensive, agricultural postmining land
             358      use, as part of the mining and reclamation plan, the division may grant exception to the
             359      provisions of Subsection (2)(s); and
             360          (ii) on lands eligible for remining, assume the responsibility for successful
             361      revegetation for a period of two full years after the last year of augmented seeding, fertilizing,
             362      irrigation, or other work in order to assure compliance with the applicable standards, except in
             363      areas of the state where the average annual precipitation is 26 inches or less, assume the
             364      responsibility for successful revegetation for a period of five full years after the last year of
             365      augmented seeding, fertilizing, irrigation, or other work in order to assure compliance with the

             366      applicable standards.
             367          (u) Protect offsite areas from slides or damage occurring during the surface coal
             368      mining and reclamation operations and not deposit spoil material or locate any part of the
             369      operations or waste accumulations outside the permit area.
             370          (v) Place all excess spoil material resulting from coal surface mining and reclamation
             371      activities in a manner that:
             372          (i) spoil is transported and placed in a controlled manner in position for concurrent
             373      compaction and in a way to assure mass stability and to prevent mass movement;
             374          (ii) the areas of disposal are within the bonded permit areas and all organic matter
             375      shall be removed immediately prior to spoil placement;
             376          (iii) appropriate surface and internal drainage systems and diversion ditches are used
             377      so as to prevent spoil erosion and movement;
             378          (iv) the disposal area does not contain springs, natural water courses, or wet weather
             379      seeps unless lateral drains are constructed from the wet areas to the main underdrains in a
             380      manner that filtration of the water into the spoil pile will be prevented;
             381          (v) if placed on a slope, the spoil is placed upon the most moderate slope among those
             382      upon which, in the judgment of the division, the spoil could be placed in compliance with all
             383      the requirements of this chapter and shall be placed, where possible, upon or above a natural
             384      terrace, bench, or berm, if this placement provides additional stability and prevents mass
             385      movement;
             386          (vi) where the toe of the spoil rests on a downslope, a rock toe buttress of sufficient
             387      size to prevent mass movement, is constructed;
             388          (vii) the final configuration is compatible with the natural drainage pattern and
             389      surroundings and suitable for intended uses;
             390          (viii) design of the spoil disposal area is certified by a qualified professional engineer,
             391      and to implement this requirement, the division shall promulgate rules regarding the
             392      certification of engineers in the area of spoil disposal design; and
             393          (ix) all other provisions of this chapter are met.

             394          (w) Meet such other criteria as are necessary to achieve reclamation in accordance
             395      with the purposes of this chapter, taking into consideration the physical, climatological, and
             396      other characteristics of the site.
             397          (x) To the extent possible, using the best technology currently available, minimize
             398      disturbances and adverse impacts of the operation on fish, wildlife, and related environmental
             399      values, and achieve enhancement of these resources where practicable.
             400          (y) Provide for an undisturbed natural barrier beginning at the elevation of the lowest
             401      coal seam to be mined and extending from the outslope for the distance as the division shall
             402      determine shall be retained in place as a barrier to slides and erosion.
             403          (3) (a) Where an applicant meets the requirements of Subsections (3)(b) and (c), a
             404      permit without regard to the requirement to restore to approximate original contour provided
             405      in Subsections (2)(c), (4)(b), and (4)(c) may be granted for the surface mining of coal where
             406      the mining operation will remove an entire coal seam or seams running through the upper
             407      fraction of a mountain, ridge, or hill (except as provided in this Subsection (3)) by removing
             408      all of the overburden and creating a level plateau or a gently rolling contour with no highwalls
             409      remaining, and capable of supporting postmining uses in accord with the requirements of this
             410      Subsection (3).
             411          (b) In cases where an industrial, commercial, agricultural, residential, or public facility
             412      (including recreational facilities) use is proposed for the postmining use of the affected land,
             413      the division may grant a permit for a surface mining operation of the nature described in
             414      Subsection (3)(a) pursuant to procedures and criteria set forth in the rules, including:
             415          (i) the applicant's presentation of specific plans for the proposed postmining land use
             416      which meet criteria concerning the type of use proposed;
             417          (ii) the applicant's demonstration that the proposed use would be consistent with
             418      adjacent land uses and existing state and local land use plans and programs and with other
             419      requirements of this chapter; and
             420          (iii) procedures whereby the division provides the governing body of the unit of
             421      general-purpose government in which the land is located and any state or federal agency which

             422      the division, in its discretion, determines to have an interest in the proposed use, an
             423      opportunity of not more than 60 days to review and comment on the proposed use.
             424          (c) All permits granted under the provisions of this Subsection (3) shall be reviewed
             425      not more than three years from the date of issuance of the permit, unless the applicant
             426      affirmatively demonstrates that the proposed development is proceeding in accordance with
             427      the terms of the approved schedule and reclamation plan.
             428          (4) The following performance standards shall be applicable to steep-slope surface
             429      coal mining and shall be in addition to those general performance standards required by this
             430      section; but the provisions of this Subsection (4) shall not apply to those situations in which an
             431      operator is mining on flat or gently rolling terrain, on which an occasional steep slope is
             432      encountered through which the mining operation is to proceed, leaving a plain or
             433      predominantly flat area or where an operator is in compliance with provisions of Subsection
             434      (3):
             435          (a) Insure that when performing surface coal mining on steep slopes, no debris,
             436      abandoned or disabled equipment, spoil material, or waste mineral matter be placed on the
             437      downslope below the bench or mining cut; but spoil material in excess of that required for the
             438      reconstruction of the approximate original contour under the provisions of Subsection (2)(c) or
             439      this Subsection (4) shall be permanently stored pursuant to Subsection 40-10-17 (2)(v).
             440          (b) Complete backfilling with spoil material shall be required to cover completely the
             441      highwall and return the site to the appropriate original contour, which material will maintain
             442      stability following mining and reclamation.
             443          (c) The operator may not disturb land above the top of the highwall unless the division
             444      finds that the disturbance will facilitate compliance with the environmental protection
             445      standards of this section; but the land disturbed above the highwall shall be limited to that
             446      amount necessary to facilitate this compliance.
             447          (d) For the purposes of this Subsection (4), "steep slope" means any slope above 20
             448      degrees or such lesser slope as may be defined by the division after consideration of soil,
             449      climate, and other characteristics of an area.

             450          (5) The board shall promulgate specific rules to govern the granting of variances from
             451      the requirement to restore to approximate original contour provided in Subsection (4)(b)
             452      pursuant to procedures and criteria set forth in those rules including:
             453          (a) written request by the surface owner concerning the proposed use;
             454          (b) approval of the proposed use as an equal or better economic or public use; and
             455          (c) approval of the proposed use as improving the watershed control in the area and as
             456      using only such amount of spoil as is necessary to achieve the planned postmining land use.
             457          [(6) Subsection (2)(t)(ii) is repealed September 30, 2009.]

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