Section 53-9-45 - Promulgation of regulations and performance standards relating to surface mining; variances(1) Any permit issued under this chapter to conduct surface coal mining and reclamation operations or coal exploration operations shall require that those surface coal mining and reclamation operations or coal exploration operations meet all applicable performance standards of this chapter and any other requirements the commission shall promulgate.(2) The commission shall promulgate regulations establishing general environmental protection performance standards which shall be applicable to all surface coal mining and reclamation operations in the state. Those regulations shall: (a) Assure that the surface coal mining operations are conducted so as to maximize the utilization and conservation of the coal being recovered so that reaffecting the land in the future through surface coal mining can be minimized;(b) Assure that the uses the affected land is capable of supporting after restoration are equivalent to or higher and better than the uses that existed before mining;(c) Assure restoration of the approximate original contour of the land with all highwalls, spoil piles and depressions eliminated, unless an exception is provided under this section;(d) Assure surface area stabilization;(e) Assure preservation and restoration of topsoil or other strata which is better able to support vegetation;(f) Provide for removal, storage, replacement and reconstruction of soils on prime farmlands;(g) Assure water drainage and silt control for all the affected areas to strictly control soil erosion, damage to adjacent lands and pollution of streams and other waters, both during and following the mining operations. Before, during and for a reasonable period after mining, all drainways for the affected area shall be protected with silt traps, dams, or other structures or devices of approved design as directed by the regulations. The operator may elect to impound water to provide lakes or ponds of approved design for wildlife, recreational or water supply purposes, if it is a part of the approved mining and reclamation plan, and if those impoundments are constructed in accordance with applicable federal and state laws and regulations;(h) Govern the proper conduct of augering operations or prohibit those operations under certain circumstances;(i) Provide for the minimization of disturbances to the prevailing hydrologic balance and to the quality and quantity of water in ground water and surface water systems using the best technology currently available;(j) Govern the management and surface disposal of mine wastes;(k) Govern the circumstances under which surface coal mining and reclamation operations may be conducted near active or abandoned underground mines;(l) Govern the use of mine waste piles as dams or embankments;(m) Govern the management and disposal of debris and hazardous or toxic materials;(n) Govern the use of explosives;(o) Assure contemporaneous reclamation in an environmentally sound manner;(r) Govern the duration of responsibility for revegetation with a minimum period of responsibility of not less than five (5) years;(s) Assure protection of offsite areas;(t) Govern the management and disposal of excess spoil material;(u) Assure the minimization of disturbances and adverse impacts on fish, wildlife and related environmental values using the best technology currently available;(v) Provide for barriers to slides and erosion; and(w) Provide for any other criteria deemed necessary by the commission to achieve reclamation in accordance with the purposes of this chapter and the federal act.(3) 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 the regulations promulgated under this section. This subsection shall not apply to surface coal mining and reclamation operations on flat or gently rolling terrain or on which an occasional steep slope is encountered through which the mining operation is to proceed, leaving a plain or predominantly flat area. The performance standards promulgated under this subsection shall: (a) Insure that when performing surface coal mining on steep slopes, no debris, abandoned or disabled equipment, spoil material or waste mineral matter is placed on the downslope below the bench or mining cut, unless that spoil material in excess of that required for the reconstruction of the approximate original contour under the regulations promulgated under subsection (2) of this section or under paragraph (b) of this subsection is permanently stored in accordance with the regulations promulgated under subsection (2) of this section;(b) Require complete backfilling with spoil material to cover completely the highwall and return the site to the approximate original contour. The material shall maintain stability following mining and reclamation;(c) Provide that the operator may not disturb land above the top of the highwall unless the permit board finds that the disturbance will facilitate compliance with the general environmental protection standards promulgated under this section, but the land disturbed above the highwall shall be limited to that amount necessary to facilitate compliance. For the purposes of this subsection, the term "steep slope" means any slope above twenty (20) degrees or any lesser slope defined by the commission after consideration of soil, climate and other characteristics of the region of the state.
(4)(a) The commission may grant variances for the purposes set forth in paragraphs (b)(i), (ii) and (iii) of this subsection, if the watershed control of the area is improved, and complete backfilling with spoil material is required to cover completely the highwall, which material will maintain stability following mining and reclamation.(b) If an applicant meets the requirements of subparagraphs (i), (ii) and (iii) of this paragraph and paragraph (c) of this subsection, a variance from the requirement to restore to approximate original contour set forth in subsection (3) of this section may be granted for the surface mining of coal if the owner of the surface rights knowingly requests in writing, as a part of the permit application, that the variance be granted to render the land, after reclamation, suitable for an industrial, commercial, residential or public use, including recreational facilities, in accordance with paragraph (c) of this subsection and if:(i) After notification of appropriate federal, state and local governmental agencies providing an opportunity to comment on the proposed use and consultation with appropriate land use planning agencies, if any, the proposed postmining use of the affected land is deemed by the permit board to constitute an equal or better economic or public use of the land as compared with the premining use;(ii) The proposed postmining land use is compatible with adjacent land uses and state and local land use planning, economically practical for the proposed use and designed and certified by a qualified registered professional engineer in conformance with professional standards established to assure the stability, drainage and configuration necessary for the intended use of the site; and(iii) After approval of the appropriate state environmental agencies, the watershed of the affected land is deemed to be improved.(c) In granting a variance under this subsection, the commission shall require that only the necessary amount of spoil will be placed off the mine bench to achieve the planned postmining land use, insure stability of the spoil retained on the bench, and meet all other requirements of this chapter. All spoil placement off the mine bench must comply with the regulations promulgated under subsection (2) of this section.(d) The commission shall promulgate specific regulations to govern the granting of variances in accord with this subsection, and may impose any additional requirements it deems necessary.(e) All variances granted under this subsection shall be reviewed not more than three (3) years from the date of issuance of the permit, unless the permittee affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the approved schedule and the mining and reclamation plan.Laws, 1979, ch. 477, § 20(2)-(4); Laws, 1997, ch. 306, § 22; Laws, 1998, ch. 373, § 2, eff. 3/16/1998.