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S.B. 17





Chief Sponsor: Dennis E. Stowell

House Sponsor: Michael E. Noel

             7      LONG TITLE
             8      Committee Note:
             9          The Natural Resources, Agriculture, and Environment Interim Committee
             10      recommended this bill.
             11      General Description:
             12          This bill amends sections relating to surface coal mining.
             13      Highlighted Provisions:
             14          This bill:
             15          .    removes two repeal dates; and
             16          .    makes technical changes.
             17      Monies Appropriated in this Bill:
             18          None
             19      Other Special Clauses:
             20          None
             21      Utah Code Sections Affected:
             22      AMENDS:
             23          40-10-11 (Subsection (5) is Repealed 09/30/09), as last amended by Laws of Utah
             24      2004, Chapter 230
             25          40-10-17 (Subsect (2)(t)(ii) Repeal 09/30/09), as last amended by Laws of Utah 2004,
             26      Chapter 230

             28      Be it enacted by the Legislature of the state of Utah:
             29          Section 1. Section 40-10-11 (Subsection (5) is Repealed 09/30/09) is amended to
             30      read:
             31           40-10-11 (Subsection (5) is Repealed 09/30/09). Division action on permit
             32      application -- Requirements for approval -- Schedule of applicant's mining law violation
             33      -- Restoration of prime farmland.
             34          (1) (a) (i) After a complete mining application and reclamation plan or a revision or
             35      renewal of an application and plan is submitted to the division as required by this chapter and
             36      the public is notified and given an opportunity for a hearing as required by Section 40-10-13 ,
             37      the division shall grant, require modification of, or deny the permit application.
             38          (ii) The division shall make its decision within a reasonable time set by the division
             39      and notify the applicant in writing.
             40          (b) The applicant for a permit, or a revision of a permit shall have the burden of
             41      establishing that the application is in compliance with all requirements of this chapter.
             42          (c) Within ten days after the granting of a permit, the division shall provide to the local
             43      governmental officials in the local political subdivision in which the area of affected land is
             44      located:
             45          (i) notification that a permit has been issued; and
             46          (ii) a description of the location of the land.
             47          (2) No permit or revision application shall be approved unless the application
             48      affirmatively demonstrates and the division finds in writing on the basis of the information set
             49      forth in the application, or from information otherwise available which will be documented in
             50      the approval and made available to the applicant, that:
             51          (a) the permit application is accurate and complete and that all requirements of this
             52      chapter have been complied with;
             53          (b) the applicant has demonstrated that the reclamation requirements under this chapter
             54      can be accomplished under the reclamation plan contained in the permit application;
             55          (c) the assessment of the probable cumulative impact of all anticipated mining in the
             56      area on the hydrologic balance specified in Subsection 40-10-10 (2)(c) has been made by the
             57      division and the proposed operation has been designed to prevent material damage to the
             58      hydrologic balance outside the permit area;

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

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

             121          (b) This Subsection (4) shall not apply to any permit issued prior to August 3, 1977, or
             122      to any revisions or renewals of the permit, or to any existing surface mining operations for
             123      which a permit was issued prior to August 3, 1977.
             124          (5) (a) After October 24, 1992, the prohibition of Subsection (3) shall not apply to a
             125      permit application if the violation resulted from an unanticipated event or condition that
             126      occurred at a surface coal mining operation on lands eligible for remining under a permit held
             127      by the person making the application.
             128          (b) As used in this Subsection (5), the term "violation" has the same meaning as the
             129      term has under Subsection (3).
             130          [(c) This Subsection (5) is repealed September 30, 2009.]
             131          Section 2. Section 40-10-17 (Subsect (2)(t)(ii) Repeal 09/30/09) is amended to read:
             132           40-10-17 (Subsect (2)(t)(ii) Repeal 09/30/09). Performance standards for all coal
             133      mining and reclamation operations -- Additional standards for steep-slope surface coal
             134      mining -- Variances.
             135          (1) Any permit issued pursuant to this chapter to conduct surface coal mining shall
             136      require that the surface coal mining operations will meet all applicable performance standards
             137      of this chapter, and such other requirements as the division shall promulgate.
             138          (2) General performance standards shall be applicable to all surface coal mining and
             139      reclamation operations and shall require the operations as a minimum to:
             140          (a) Conduct surface coal mining operations so as to maximize the utilization and
             141      conservation of the solid fuel resource being recovered so that reaffecting the land in the future
             142      through surface coal mining can be minimized.
             143          (b) Restore the land affected to a condition capable of supporting the uses which it was
             144      capable of supporting prior to any mining, or higher or better uses of which there is reasonable
             145      likelihood, so long as the use or uses does not present any actual or probable hazard to public
             146      health or safety or pose any actual or probable threat of water diminution or pollution, and the
             147      permit applicant's declared proposed land use following reclamation is not [deemed]
             148      considered to be impractical or unreasonable, inconsistent with applicable land use policies and
             149      plans, involves unreasonable delay in implementation, or is violative of federal, state, or local
             150      law.
             151          (c) Except as provided in Subsection (3) with respect to all surface coal mining

             152      operations backfill, compact (where advisable to insure stability or to prevent leaching of toxic
             153      materials) and grade in order to restore the approximate original contour of the land with
             154      highwalls, spoil piles, and depressions eliminated (unless small depressions are needed in order
             155      to retain moisture to assist revegetation or as otherwise authorized pursuant to this chapter); but
             156      in surface coal mining which is carried out at the same location over a substantial period of
             157      time where the operation transects the coal deposit and the thickness of the coal deposits
             158      relative to the volume of the overburden is large and where the operator demonstrates that the
             159      overburden and other spoil and waste materials at a particular point in the permit area or
             160      otherwise available from the entire permit area is insufficient, giving due consideration to
             161      volumetric expansion, to restore the approximate original contour, the operator, at a minimum,
             162      shall backfill, grade, and compact (where advisable) using all available overburden and other
             163      spoil and waste materials to attain the lowest practicable grade but not more than the angle of
             164      repose, to provide adequate drainage and to cover all acid-forming and other toxic materials, in
             165      order to achieve an ecologically sound land use compatible with the surrounding region. In
             166      surface coal mining where the volume of overburden is large relative to the thickness of the
             167      coal deposit and where the operator demonstrates that due to volumetric expansion the amount
             168      of overburden and other spoil and waste materials removed in the course of the mining
             169      operation is more than sufficient to restore the approximate original contour, the operator shall,
             170      after restoring the approximate contour, backfill, grade, and compact (where advisable) the
             171      excess overburden and other spoil and waste materials to attain the lowest grade but more than
             172      the angle of repose, and to cover all acid-forming and other toxic materials, in order to achieve
             173      an ecologically sound land use compatible with the surrounding region and that the overburden
             174      or spoil shall be shaped and graded in such a way as to prevent slides, erosion, and water
             175      pollution and is revegetated in accordance with the requirements of this chapter.
             176          (d) Stabilize and protect all surface areas, including spoil piles affected by the surface
             177      coal mining and reclamation operation to effectively control erosion and attendant air and
             178      water pollution.
             179          (e) Remove the topsoil from the land in a separate layer, replace it on the backfill area,
             180      or if not utilized immediately, segregate it in a separate pile from other spoil, and when the
             181      topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of
             182      the topsoil, maintain a successful cover by quick growing plant or other means thereafter so

             183      that the topsoil is preserved from wind and water erosion, remains free of any contamination by
             184      other acid or toxic material, and is in a usable condition for sustaining vegetation when restored
             185      during reclamation; except if topsoil is of insufficient quantity or of poor quality for sustaining
             186      vegetation, or if other strata can be shown to be more suitable for vegetation requirements, then
             187      the operator shall remove, segregate, and preserve in a like manner the other strata which is
             188      best able to support vegetation.
             189          (f) Restore the topsoil or the best available subsoil which is best able to support
             190      vegetation.
             191          (g) For all prime farmlands, as identified in the rules, to be mined and reclaimed,
             192      specifications for soil removal, storage, replacement, and reconstruction, the operator shall, as a
             193      minimum, be required to:
             194          (i) segregate the A horizon of the natural soil, except where it can be shown that other
             195      available soil materials will create a final soil having a greater productive capacity, and if not
             196      utilized immediately, stockpile this material separately from other spoil, and provide needed
             197      protection from wind and water erosion or contamination by other acid or toxic material;
             198          (ii) segregate the B horizon of the natural soil, or underlying C horizons or other strata,
             199      or a combination of these horizons or other strata that are shown to be both texturally and
             200      chemically suitable for plant growth and that can be shown to be equally or more favorable for
             201      plant growth than the B horizon, in sufficient quantities to create in the regraded final soil a
             202      root zone of comparable depth and quality to that which existed in the natural soil, and if not
             203      utilized immediately, stockpile this material separately from other spoil, and provide needed
             204      protection from wind and water erosion or contamination by other acid or toxic material;
             205          (iii) replace and regrade the root zone material described in Subsection (2)(g)(ii) above
             206      with proper compaction and uniform depth over the regraded spoil material; and
             207          (iv) redistribute and grade in a uniform manner the surface soil horizon described in
             208      Subsection (2)(g)(i).
             209          (h) Create, if authorized in the approved mining and reclamation plan and permit,
             210      permanent impoundments of water on mining sites as part of reclamation activities only when
             211      it is adequately demonstrated that:
             212          (i) the size of the impoundment is adequate for its intended purposes;
             213          (ii) the impoundment dam construction will be so designed as to achieve necessary

             214      stability with an adequate margin of safety compatible with that of structures constructed under
             215      Public Law 83-566 (16 U.S.C. 1006);
             216          (iii) the quality of impounded water will be suitable on a permanent basis for its
             217      intended use and that discharges from the impoundment will not degrade the water quality
             218      below water quality standards established pursuant to applicable federal and state law in the
             219      receiving stream;
             220          (iv) the level of water will be reasonably stable;
             221          (v) final grading will provide adequate safety and access for proposed water users; and
             222          (vi) these water impoundments will not result in the diminution of the quality or
             223      quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial,
             224      recreational, or domestic uses.
             225          (i) Conducting any augering operation associated with surface mining in a manner to
             226      maximize recoverability of mineral reserves remaining after the operation and reclamation are
             227      complete and seal all auger holes with an impervious and noncombustible material in order to
             228      prevent drainage except where the division determines that the resulting impoundment of water
             229      in the auger holes may create a hazard to the environment or the public health or safety; but the
             230      permitting authority may prohibit augering if necessary to maximize the utilization,
             231      recoverability, or conservation of the solid fuel resources or to protect against adverse water
             232      quality impacts.
             233          (j) Minimize the disturbances to the prevailing hydrologic balance at the mine site and
             234      in associated offsite areas and to the quality and quantity of water in surface and groundwater
             235      systems both during and after surface coal mining operations and during reclamation by:
             236          (i) avoiding acid or other toxic mine drainage by such measures as, but not limited to:
             237          (A) preventing or removing water from contact with toxic-producing deposits;
             238          (B) treating drainage to reduce toxic content which adversely affects downstream water
             239      upon being released to water courses; and
             240          (C) casing, sealing, or otherwise managing boreholes, shafts, and wells and keep acid
             241      or other toxic drainage from entering ground and surface waters;
             242          (ii) (A) conducting surface coal mining operations so as to prevent, to the extent
             243      possible using the best technology currently available, additional contributions of suspended
             244      solids to streamflow or runoff outside the permit area, but in no event shall contributions be in

             245      excess of requirements set by applicable state or federal law; and
             246          (B) constructing any siltation structures pursuant to this Subsection (2)(j)(ii) prior to
             247      commencement of surface coal mining operations, such structures to be certified by a qualified
             248      registered engineer to be constructed as designed and as approved in the reclamation plan;
             249          (iii) cleaning out and removing temporary or large settling ponds or other siltation
             250      structures from drainways after disturbed areas are revegetated and stabilized and depositing
             251      the silt and debris at a site and in a manner approved by the division;
             252          (iv) restoring recharge capacity of the mined area to approximate premining conditions;
             253          (v) avoiding channel deepening or enlargement in operations requiring the discharge of
             254      water from mines;
             255          (vi) preserving throughout the mining and reclamation process the essential hydrologic
             256      functions of alluvial valley floors in the arid and semiarid areas of the state; and
             257          (vii) such other actions as the division may prescribe.
             258          (k) With respect to surface disposal of mine wastes, tailings, coal processing wastes,
             259      and other waste in areas other than the mine working or excavations, stabilize all waste piles in
             260      designated areas through construction in compacted layers, including the use of incombustible
             261      and impervious materials, if necessary, and assure the final contour of the waste pile will be
             262      compatible with natural surroundings and that the site can and will be stabilized and
             263      revegetated according to the provisions of this chapter.
             264          (l) Refrain from surface coal mining within 500 feet from active and abandoned
             265      underground mines in order to prevent breakthroughs and to protect health or safety of miners;
             266      but the division shall permit an operator to mine near, through, or partially through an
             267      abandoned underground mine or closer to an active underground mine if:
             268          (i) the nature, timing, and sequencing of the approximate coincidence of specific
             269      surface mine activities with specific underground mine activities are jointly approved by the
             270      departments, divisions, and agencies concerned with surface mine reclamation and the health
             271      and safety of underground miners; and
             272          (ii) the operations will result in improved resource recovery, abatement of water
             273      pollution, or elimination of hazards to the health and safety of the public.
             274          (m) Design, locate, construct, operate, maintain, enlarge, modify, and remove or
             275      abandon, in accordance with the standards and criteria developed pursuant to the division's

             276      rules, all existing and new coal mine waste piles consisting of mine wastes, tailings, coal
             277      processing wastes, or other liquid and solid wastes, and used either temporarily or permanently
             278      as dams or embankments.
             279          (n) Insure that all debris, acid-forming materials, toxic materials, or materials
             280      constituting a fire hazard are treated or buried and compacted or otherwise disposed of in a
             281      manner designed to prevent contamination of ground or surface waters and that contingency
             282      plans are developed to prevent sustained combustion.
             283          (o) Insure that explosives are used only in accordance with existing state and federal
             284      law and the rules adopted by the board, which shall include provisions to:
             285          (i) provide adequate advance written notice to local governments and residents who
             286      might be affected by the use of the explosives by publication of the planned blasting schedule
             287      in a newspaper of general circulation in the locality and by mailing a copy of the proposed
             288      blasting schedule to every resident living within 1/2 mile of the proposed blasting site and by
             289      providing daily notice to resident/occupiers in these areas prior to any blasting;
             290          (ii) maintain for a period of at least three years and make available for public
             291      inspection upon request a log detailing the location of the blasts, the pattern and depth of the
             292      drill holes, the amount of explosives used per hole, and the order and length of delay in the
             293      blasts;
             294          (iii) limit the type of explosives and detonating equipment, the size, the timing and
             295      frequency of blasts based upon the physical conditions of the site so as to prevent injury to
             296      persons, damage to public and private property outside the permit area, adverse impacts on any
             297      underground mine, and change in the course, channel, or availability of ground or surface water
             298      outside the permit area;
             299          (iv) require that all blasting operations be conducted by trained and competent persons,
             300      and to implement this requirement, the division shall promulgate rules requiring the training,
             301      examination, and certification of persons engaging in or directly responsible for blasting or the
             302      use of explosives in surface and coal mining operations; and
             303          (v) provide that upon the request of a resident or owner of a man-made dwelling or
             304      structure within 1/2 mile of any portion of the permitted area, the applicant or permittee shall
             305      conduct a preblasting survey of the structures and submit the survey to the division and a copy
             306      to the resident or owner making the request, the area of which survey shall be decided by the

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

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

             369      and reclamation operations and not deposit spoil material or locate any part of the operations or
             370      waste accumulations outside the permit area.
             371          (v) Place all excess spoil material resulting from coal surface mining and reclamation
             372      activities in a manner that:
             373          (i) spoil is transported and placed in a controlled manner in position for concurrent
             374      compaction and in a way to assure mass stability and to prevent mass movement;
             375          (ii) the areas of disposal are within the bonded permit areas and all organic matter shall
             376      be removed immediately prior to spoil placement;
             377          (iii) appropriate surface and internal drainage systems and diversion ditches are used so
             378      as to prevent spoil erosion and movement;
             379          (iv) the disposal area does not contain springs, natural water courses, or wet weather
             380      seeps unless lateral drains are constructed from the wet areas to the main underdrains in a
             381      manner that filtration of the water into the spoil pile will be prevented;
             382          (v) if placed on a slope, the spoil is placed upon the most moderate slope among those
             383      upon which, in the judgment of the division, the spoil could be placed in compliance with all
             384      the requirements of this chapter and shall be placed, where possible, upon or above a natural
             385      terrace, bench, or berm, if this placement provides additional stability and prevents mass
             386      movement;
             387          (vi) where the toe of the spoil rests on a downslope, a rock toe buttress of sufficient
             388      size to prevent mass movement, is constructed;
             389          (vii) the final configuration is compatible with the natural drainage pattern and
             390      surroundings and suitable for intended uses;
             391          (viii) design of the spoil disposal area is certified by a qualified professional engineer,
             392      and to implement this requirement, the division shall promulgate rules regarding the
             393      certification of engineers in the area of spoil disposal design; and
             394          (ix) all other provisions of this chapter are met.
             395          (w) Meet such other criteria as are necessary to achieve reclamation in accordance with
             396      the purposes of this chapter, taking into consideration the physical, climatological, and other
             397      characteristics of the site.
             398          (x) To the extent possible, using the best technology currently available, minimize
             399      disturbances and adverse impacts of the operation on fish, wildlife, and related environmental

             400      values, and achieve enhancement of these resources where practicable.
             401          (y) Provide for an undisturbed natural barrier beginning at the elevation of the lowest
             402      coal seam to be mined and extending from the outslope for the distance as the division shall
             403      determine shall be retained in place as a barrier to slides and erosion.
             404          (3) (a) Where an applicant meets the requirements of Subsections (3)(b) and (c), a
             405      permit without regard to the requirement to restore to approximate original contour provided in
             406      Subsections (2)(c), (4)(b), and (4)(c) may be granted for the surface mining of coal where the
             407      mining operation will remove an entire coal seam or seams running through the upper fraction
             408      of a mountain, ridge, or hill (except as provided in this Subsection (3)) by removing all of the
             409      overburden and creating a level plateau or a gently rolling contour with no highwalls
             410      remaining, and capable of supporting postmining uses in accord with the requirements of this
             411      Subsection (3).
             412          (b) In cases where an industrial, commercial, agricultural, residential, or public facility
             413      (including recreational facilities) use is proposed for the postmining use of the affected land,
             414      the division may grant a permit for a surface mining operation of the nature described in
             415      Subsection (3)(a) pursuant to procedures and criteria set forth in the rules, including:
             416          (i) the applicant's presentation of specific plans for the proposed postmining land use
             417      which meet criteria concerning the type of use proposed;
             418          (ii) the applicant's demonstration that the proposed use would be consistent with
             419      adjacent land uses and existing state and local land use plans and programs and with other
             420      requirements of this chapter; and
             421          (iii) procedures whereby the division provides the governing body of the unit of
             422      general-purpose government in which the land is located and any state or federal agency which
             423      the division, in its discretion, determines to have an interest in the proposed use, an opportunity
             424      of not more than 60 days to review and comment on the proposed use.
             425          (c) All permits granted under the provisions of this Subsection (3) shall be reviewed
             426      not more than three years from the date of issuance of the permit, unless the applicant
             427      affirmatively demonstrates that the proposed development is proceeding in accordance with the
             428      terms of the approved schedule and reclamation plan.
             429          (4) The following performance standards shall be applicable to steep-slope surface coal
             430      mining and shall be in addition to those general performance standards required by this section;

             431      but the provisions of this Subsection (4) shall not apply to those situations in which an operator
             432      is mining on flat or gently rolling terrain, on which an occasional steep slope is encountered
             433      through which the mining operation is to proceed, leaving a plain or predominantly flat area or
             434      where an operator is in compliance with provisions of Subsection (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.]

Legislative Review Note
    as of 10-16-08 6:49 AM

Office of Legislative Research and General Counsel

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