30 CFR 785.16 - What special provisions apply to proposed variances from approximate original contour restoration requirements for steep-slope mining?

§ 785.16 What special provisions apply to proposed variances from approximate original contour restoration requirements for steep-slope mining?

(a)Application and approval requirements. The regulatory authority may issue a permit for non-mountaintop removal steep-slope surface coal mining operations that includes a variance from the approximate original contour restoration requirements in §§ 816.102 and 816.105 of this chapter, as referenced in § 816.107 of this chapter, or § 817.102 of this chapter, as referenced in § 817.107 of this chapter, for all or a portion of the permit area. The permit may contain this variance only if the regulatory authority finds, in writing, that you, the applicant, have demonstrated compliance with the following requirements on the basis of a complete application:

(1) After reclamation, the lands within the proposed permit area to which the variance would apply will be suitable for an industrial, commercial, residential, or public (including recreational facilities) postmining land use.

(2) The alternative postmining land use requirements of § 780.24(b) or § 784.24(b) of this chapter have been met.

(3) After consultation with the appropriate land use planning agencies, if any, the proposed use is shown to constitute an equal or better economic or public use.

(4) Federal, state, and local government agencies with an interest in the proposed land use have an adequate period in which to review and comment on the proposed use.

(5) A qualified registered professional engineer has certified that the operation has been designed in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site.

(6) The highwall will be completely backfilled with spoil material in a manner that results in a static factor of safety of at least 1.3, using standard geotechnical analysis methods.

(7) Only the amount of spoil that is necessary to achieve the postmining land use, ensure the stability of spoil retained on the bench, and meet all other requirements of this chapter will be placed off the mine bench. All spoil not retained on the bench will be placed in accordance with §§ 816.71 and 816.74 or §§ 817.71 and 817.74 of this chapter.

(8) The variance will not result in the construction of a fill in a perennial or intermittent stream.

(9) The proposed operation will improve the condition of the watershed of lands within the proposed permit and adjacent areas when compared either with the condition of the watershed before the proposed operation or with the condition that would exist if the site were mined and restored to the approximate original contour. The condition of the watershed will be deemed improved only if you demonstrate that the following criteria will be met, relative to one of the situations described in the preceding sentence:

(i) The amount or concentration of total suspended solids or other parameters of concern in discharges to groundwater or surface water from the proposed permit area will be reduced.

(ii) Flood hazards within the watershed containing the proposed permit area will be diminished by reduction of the size or frequency of peak-flow discharges from precipitation events or thaws.

(iii) The total volume of flow from the proposed permit area, during every season of the year, will not vary in a way that would adversely affect any -

(A) Designated use of a surface water located outside the proposed permit area under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), or, if there are no designated uses, any premining use of a surface water located outside the proposed permit area;

(B) Premining use of groundwater located outside the proposed permit area.

(iv) The proposed operation will result in a lesser adverse impact on the aquatic ecology of the cumulative impact area than would occur if the area to be mined was restored to its approximate original contour.

(v) The impact on perennial and intermittent streams within the proposed permit and adjacent areas will be less than the impact that would occur if the area to be mined was restored to its approximate original contour. The fish and wildlife enhancement measures proposed and approved under § 780.16 or § 784.16 of this chapter may be considered in making this determination.

(vi) The appropriate state environmental agency has approved the plan.

(10)

(i) The owner of the surface of the lands within the proposed permit area has knowingly requested, in writing, as part of the application, that a variance be granted.

(ii) The request to which paragraph (a)(10)(i) of this section refers must be made separately from any surface owner consent given for the operations under § 778.15 of this chapter and it must show an understanding that the variance could not be granted without the surface owner's request.

(iii) The permit application must include a copy of the request to which paragraph (a)(10)(i) of this section refers.

(11) The proposed deviations from the premining surface configuration are necessary and appropriate to achieve the approved postmining land use.

(12) The revegetation plan proposed under § 780.12(g) or § 784.12(g) of this chapter requires the use of native tree and understory species to revegetate all portions of the permit area that are forested at the time of application or that would revert to forest under conditions of natural succession. This requirement does not apply to -

(i) Permanent impoundments, roads, and other impervious surfaces to be retained following the completion of mining and reclamation.

(ii) Those portions of the permit area covered by the variance, but only to the extent that compliance with this requirement would be inconsistent with attainment of the postmining land use.

(b)Additional requirements for permit issuance.

(1) The regulatory authority must specifically mark any permit issued under this section as containing an approved variance from approximate original contour restoration requirements.

(2) The permit must include a condition prohibiting the release of any part of the bond posted for the permit under part 800 of this chapter until substantial implementation of the approved postmining land use is underway. The condition must provide that the prohibition does not apply to any portion of the bond that is in excess of an amount equal to the cost of regrading the site to its approximate original contour and revegetating the regraded land in the event that the approved postmining land use is not implemented.

(c)Subsequent permit reviews.

(1) The regulatory authority must review each permit incorporating a variance under this section in accordance with § 774.10(a)(2) of this chapter.

(2) The regulatory authority may modify the terms and conditions of a permit incorporating a variance under this section at any time if it determines that more stringent measures are necessary to ensure that the operations are conducted in compliance with the requirements of the regulatory program.

(d)Miscellaneous provision. The regulatory authority may grant variances in accordance with this section only if it has promulgated specific rules to govern the granting of variances in accordance with the provisions of this section and any necessary more stringent requirements.

[ 81 FR 93380, Dec. 20, 2016]

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