10 CSR 40-8.070 - Applicability and General Requirements
PURPOSE: This rule sets forth general requirements and statements of applicability for 10 CSR 40-3-10 CSR 40-9, pursuant to section 444.810, RSMo.
(1) Incorporation by
Reference. Any incorporation by reference of any federal document, including
the Federal Register, shall be as that document exists on the
date that the rule which incorporates that document is adopted by the
commission.
(2) Applicability. 10
CSR 40-3-10 CSR 40-9 apply to all coal exploration and surface coal mining and
reclamation operations, except the following:
(A) The extraction of coal by a landowner for
his/her own noncommercial use from land owned or leased by him/her.
Noncommercial use does not include the extraction of coal by one unit of an
integrated company or other business or nonprofit entity which uses the coal in
its own manufacturing or power plants;
(B) The extraction of coal as an incidental
part of federal, state or local government-financed highway or other
construction;
(C) This subsection
implements the exemption contained in section 444.815.6(3) of the Surface Coal
Mining Law concerning the extraction of coal incidental to the extraction of
other minerals where coal does not exceed sixteen and two-thirds percent (16
2/3%) of the total tonnage of coal and other minerals removed for purposes of
commercial use or sale.
1. As used in
subsection (2)(C), the following terms have the meanings specified, except
where otherwise indicated:
A. Cumulative
measurement period means the period of time over which both cumulative
production and cumulative revenue are measured-
(I) For purposes of determining the beginning
of the cumulative measurement period, subject to regulatory authority approval,
the operator must select and consistently use one (1) of the following:
(a) For mining areas where coal or other
minerals were extracted prior to August 3, 1977, the date extraction of coal or
other minerals commenced at that mining area or August 3, 1977; or
(b) For mining areas where extraction of coal
or other minerals commenced on or after August 3, 1977, the date extraction of
coal or other minerals commenced at that mining area, whichever is earlier;
and
(II) For annual
reporting purposes pursuant to paragraph (2)(C)11. of this rule, the end of the
period for which cumulative production and revenue is calculated is either for
mining areas where-
(a) Coal or other minerals
were extracted prior to October 1, 1992, September 30, 1992 and every September
30 after that; or
(b) Extraction of
coal or other minerals commenced on or after October 1, 1992, the last day of
the calendar quarter during which coal extraction commenced and each
anniversary of that day after commencement;
B. Cumulative production means the total
tonnage of coal or other minerals extracted from a mining area during the
cumulative measurement period. The inclusion of stockpiled coal and other
mineral tonnages in this total is governed by paragraph (2)(C)8. of this
rule;
C. Cumulative revenue means
the total revenue derived from the sale of coal or other minerals and the fair
market value of coal or other minerals transferred or used, but not sold,
during the cumulative measurement period;
D. Mining area means an individual excavation
site or pit from which coal, other minerals and overburden are removed;
and
E. Other minerals means any
commercially valuable substance mined for its mineral value, excluding coal,
topsoil, waste and fill material.
2. Collection of information procedures are
described in the following:
A. The
collections of information contained in paragraphs (2)(C)3., 4., 5., 7. and 10.
of this rule have been approved by the Land Reclamation Commission. The
information will be used to determine the initial and continuing applicability
of the incidental mining exemption to a particular mining operation. Response
is required to obtain and maintain the incidental mining exemption in
accordance with section 444.815.6(3) of the Surface Coal Mining Law;
and
B. Public reporting burden for
this collection of information is estimated to average one (1) hour per
response, including the time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed and completing and
reviewing the collection of information. Send comments regarding this burden
estimate or any other aspect of this collection of information, including
suggestions for reducing the burden, to Director, Land Reclamation Program, PO
Box 176, Jefferson City, MO 65102.
3. Application requirements and procedures
shall be completed as described in the following:
A. New operations.
(I) Any person who plans to commence or
continue coal extraction after November 30, 1990, in reliance on the incidental
mining exemption, shall file a complete application for exemption with the
regulatory authority for each mining area.
(II) Following incorporation of an exemption
application approval process into a regulatory program, a person may not
commence coal extraction based upon the exemption until the regulatory
authority approves the application, except as provided in part (2)(C)3.E.(III)
of this rule;
B.
Existing operations. Any person who has commenced coal extraction at a mining
area in reliance upon the incidental mining exemption prior to November 30,
1990 may continue mining operations for sixty (60) days after (January 29,
1991) the effective date (November 30, 1990). Coal extraction may not continue
after the sixty- (60-) day period unless that person files an administratively
complete application for exemption with the regulatory authority. If an
administratively complete application is filed within sixty (60) days, the
person may continue extracting coal in reliance on the exemption beyond the
sixty- (60-) day period until the regulatory authority makes an administrative
decision on the application;
C.
Additional information. The regulatory authority shall notify the applicant if
the application for exemption is incomplete and may at any time require
submittal of additional information;
D. Public comment period. Following
publication of the newspaper notice required by subparagraph (2)(C)4.I. of this
rule, the regulatory authority shall provide a period of no less than thirty
(30) days during which time any person having an interest which is or may be
adversely affected by a decision on the application may submit written comments
or objections;
E. Exemption
determination.
(I) No later than ninety (90)
days after filing of an administratively complete application, the regulatory
authority shall make a written determination whether, and under what
conditions, the persons claiming the exemption are exempt under this part and
shall notify the applicant and persons submitting comments on the application
of the determination and the basis for the determination.
(II) The determination of exemption shall be
based upon information contained in the application and any other information
available to the regulatory authority at that time.
(III) If the regulatory authority fails to
provide an applicant with the determination as specified in part (2)(C)3.E.(I)
of this rule, an applicant who has not begun may commence coal extraction
pending a determination on the application unless the regulatory authority
issues an interim finding, together with reasons for this finding, that the
applicant may not begin coal extraction; and
F. Administrative review.
(I) Any adversely affected person may request
administrative review of a determination under subparagraph (2)(C)3.E. of this
rule within thirty (30) days of the notification of the determination in
accordance with procedures established under Chapter 536, RSMo.
(II) A petition for administrative review
filed under Chapter 536, RSMo shall not suspend the effect of a determination
under subparagraph (2)(C)3.E. of this rule.
4. An application for exemption, at a
minimum, shall include:
A. The name and
address of the applicant;
B. A list
of the minerals sought to be extracted;
C. Estimates of annual production of coal and
the other minerals within each mining area over the anticipated life of the
mining operation;
D. Estimated
annual revenues to be derived from bona fide sales of coal and other minerals
to be extracted within the mining area;
E. Where coal or the other minerals are to be
used rather than sold, estimated annual fair market values at the time of
projected use of the coal and other minerals to be extracted from the mining
area;
F. The basis for all annual
production, revenue and fair market value estimates;
G. A description, including county, township,
if any, and boundaries of the land, of sufficient certainty that the mining
areas may be located and distinguished from other mining areas;
H. An estimate to the nearest acre of the
number of acres that will compose the mining area over the anticipated life of
the mining operation;
I. Evidence
of publication, in a newspaper of general circulation in the county of the
mining area, of a public notice that an application for exemption has been
filed with the regulatory authority (the public notice must identify the
persons claiming the exemption and must contain a description of the proposed
operation and its locality that is sufficient for interested persons to
identify the operation);
J. The
representative stratigraphic cross-section(s) based on test borings or other
information identifying and showing the relative position, approximate
thickness and density of the coal and each other mineral to be extracted for
commercial use or sale and the relative position and thickness of any material,
not classified as other minerals, that also will be extracted during the
conduct of mining activities;
K. A
map of appropriate scale which clearly identifies the mining area;
L. A general description of mining and
mineral processing activities for the mining area;
M. A summary of sales commitments and
agreements for future delivery, if any, which the applicant has received for
other minerals to be extracted from the mining area, or a description of
potential markets for the minerals;
N. If the other minerals are to be
commercially used by the applicant, a description specifying the use;
O. For operations having extracted coal or
other minerals prior to filing an application for exemption, in addition to the
information required, the following information also must be submitted:
(I) Any relevant documents the operator has
received from the regulatory authority documenting its exemption from the
requirements of the surface coal mining law;
(II) The cumulative production of the coal
and other minerals from the mining area; and
(III) Estimated tonnages of stockpiled coal
and other minerals; and
P. Any other information pertinent to the
qualification of the operation as exempt.
5. Public availability of information is
defined and shall be handled as described in the following:
A. Except as provided in subparagraph
(2)(C)5.B. of this rule, all information submitted to the regulatory authority
under subsection (2)(C) shall be made available immediately for public
inspection and copying at the local offices of the regulatory authority having
jurisdiction over the mining operations claiming exemption until at least three
(3) years after expiration of the period during which the subject mining area
is active;
B. The regulatory
authority may keep information submitted to the regulatory authority under this
part confidential if the person submitting it requests in writing, at the time
of submission, that it be kept confidential and the information concerns trade
secrets or is privileged commercial or financial information of the persons
intending to conduct operations under this rule; and
C. Information requested to be held as
confidential under subparagraph (2)(C)5.B. of this rule shall not be made
publicly available until after notice and opportunity to be heard is afforded
persons both seeking and opposing disclosure of the information.
6. Requirements for exemption.
A. Activities are exempt from the
requirements of the surface coal mining law if all of the following are
satisfied:
(I) The cumulative production of
coal extracted from the mining area determined annually as described in this
rule does not exceed sixteen and two-thirds percent (16 2/3%) of the total
cumulative production of coal and other minerals removed during that period for
purposes of a bona fide sale or reasonable commercial use;
(II) Coal is produced from a geological
stratum lying above or immediately below the deepest stratum from which other
minerals are extracted for purposes of a bona fide sale or reasonable
commercial use; and
(III) The
cumulative revenue derived from the coal extracted from the mining area
determined annually shall not exceed fifty percent (50%) of the total
cumulative revenue derived from the coal and other minerals removed for
purposes of a bona fide sale or reasonable commercial use. If the coal
extracted or the minerals removed are used by the operator or transferred to a
related entity for use instead of being sold in a bona fide sale, then the fair
market value of the coal or other minerals shall be calculated at the time of
use or transfer and shall be considered rather than revenue.
B. Persons seeking or that have
obtained an exemption from the requirements of the surface coal mining law
shall comply with the following:
(I) Each
other mineral upon which an exemption under this rule is based must be a
commercially valuable mineral for which a market exists or which is mined in
bona fide anticipation that a market will exist for the mineral in the
reasonably foreseeable future, not to exceed twelve (12) months from the end of
the current period for which cumulative production is calculated. A legally
binding agreement for the future sale of other minerals is sufficient to
demonstrate this standard; and
(II)
If either coal or other minerals are transferred or sold by the operator to a
related entity for its use or sale, the transaction must be made for legitimate
business purposes.
7. A person conducting activities covered by
this rule shall-
A. Maintain on-site or at
other locations available to the commission and its representatives and the
secretary information necessary to verify the exemption including, but not
limited to, commercial use and sales information, extraction tonnages and a
copy of the exemption application and exemption approved by the regulatory
authority;
B. Notify the regulatory
authority upon the completion of the mining operation or permanent cessation of
all coal extraction activities; and
C. Conduct operations in accordance with the
approved application or when authorized to extract coal under subparagraph
(2)(C)3.B. or part (2)(C)3.E.(III) of this rule prior to submittal or approval
of an exemption application in accordance with the standards of this
rule.
8. Authorized
representatives of the commission and the secretary shall have the right to
conduct inspections of operations claiming exemption under this subsection.
A. Each authorized representative of the
commission and the secretary conducting an inspection under subsection (2)(C)-
(I) Shall have a right of entry to, upon and
through any mining and reclamation operations without advance notice or a
search warrant, upon presentation of appropriate credentials;
(II) At reasonable times and without delay,
may have access to and copy any records relevant to the exemption;
and
(III) Shall have a right to
gather physical and photographic evidence to document conditions, practices or
violations at a site.
9. Stockpiling of minerals shall be conducted
as described in the following:
A. Coal. Coal
extracted and stockpiled may be excluded from the calculation of cumulative
production until the time of its sale, transfer to a related entity or use-
(I) Up to an amount equaling a twelve- (12-)
month supply of the coal required for future sale, transfer or use as
calculated, based upon the average annual sales, transfer and use from the
mining area over the two (2) preceding years; or
(II) For a mining area where coal has been
extracted for a period of fewer than two (2) years, up to an amount that would
represent a twelve- (12-) month supply of the coal required for future sales,
transfer or use as calculated based on the average amount of coal sold,
transferred or used each month; and
B. Other minerals.
(I) The commission shall disallow all or part
of an operator's tonnages of stockpiled other minerals for purposes of meeting
the requirements of this rule if the operator fails to maintain adequate and
verifiable records of the mining area of origin, the disposition of stockpiles
or if the disposition of the stockpiles indicates the lack of commercial use or
market for the minerals.
(II) The
commission may only allow an operator to utilize tonnages of stockpiled other
minerals for purposes of meeting the requirements of this rule if-
(a) The stockpiling is necessary to meet
market conditions or is consistent with generally accepted industry practices;
and
(b) Except as provided in part
(2)(C)9.B.(III) of this rule, the stockpiled other minerals do not exceed a
twelve- (12-) month supply of the mineral required for future sales as approved
by the regulatory authority on the basis of the exemption
application.
(III) The
commission may allow an operator to utilize tonnages of stockpiled other
minerals beyond the twelve- (12-) month limit established in part
(2)(C)9.B.(II) of this rule if the operator can demonstrate to the regulatory
authority's satisfaction that the additional tonnage is required to meet future
business obligations of the operator, as may be demonstrated by a legally
binding agreement for future delivery of the minerals.
(IV) The commission may periodically revise
the other mineral stockpile tonnage limits in accordance with the criteria
established by parts (2)(C)9.B.(II) and (III) of this rule, based on additional
information available to the commission.
10. Revocation and enforcement shall be
conducted as described in the following:
A.
Commission responsibility. The commission shall conduct an annual compliance
review of the mining area, utilizing the annual report submitted pursuant to
paragraph (2)(C)11. of this rule, an on-site inspection and any other
information available to the commission;
B. If the commission has reason to believe
that a specific mining area was not exempt under the provisions of this rule or
counterpart provisions of the state regulatory program at the end of the
previous reporting period, is not exempt, or will be unable to satisfy the
exemption criteria at the end of the current reporting period, the regulatory
authority shall notify the operator that the exemption may be revoked and the
reason(s) for relocation. The exemption will be revoked unless the operator
demonstrates to the regulatory authority within thirty (30) days that the
mining area in question should continue to be exempt;
C. If the commission finds that an operator
has not demonstrated that activities conducted in the mining area qualify for
the exemption, the commission shall revoke the exemption and immediately notify
the operator and intervenors. If a decision is made not to revoke an exemption,
the commission shall immediately notify the operator and intervenors;
D. Any adversely affected person may request
administrative review of a decision whether to revoke an exemption within
thirty (30) days of the notification of that decision in accordance with
procedures established under Chapter 536, RSMo;
E. A petition for administrative review filed
under Chapter 536, RSMo shall not suspend the affect of a decision whether to
revoke an exemption; and
F. Direct
enforcement.
(I) An operator mining in
accordance with the terms of an approved exemption shall not be cited for
violations of the regulatory program which occurred prior to the revocation of
the exemption.
(II) An operator who
does not conduct activities in accordance with the terms of an approved
exemption, and knows or should know the activities are not in accordance with
the approved exemption shall be subject to direct enforcement action for
violations of the regulatory program which occur during the period of these
activities.
(III) Upon revocation
of an exemption or denial of an exemption application, an operator shall stop
conducting surface coal mining operations until a permit is obtained and shall
comply with the reclamation standards of the regulatory program with regard to
conditions, areas and activities existing at the time of revocation or
denial.
11.
Reporting requirements.
A. Following approval
by the commission of an exemption for a mining area, the person receiving the
exemption, for each mining area, shall file a written report annually with the
commission containing the information specified in subparagraph (2)(C)11.B. of
this rule.
(I) The report shall be filed no
later than thirty (30) days after the end of the twelve- (12-) month period as
determined in accordance with the definition of cumulative measurement period
in paragraph (2)(C)1. of this rule.
(II) The information in the report shall
cover-
(a) Annual production of coal and other
minerals and annual revenue derived from coal and other minerals during the
preceding twelve- (12-) month period; and
(b) The cumulative production of coal and
other minerals and the cumulative revenue derived from coal and other
minerals.
B.
For each period and mining area covered by the report, the report shall
specify-
(I) The number of tons of extracted
coal sold in bona fide sales and total revenue derived from the
sales;
(II) The number of tons of
coal extracted and used or transferred by the operator or related entity and
the estimated total fair market value of the coal;
(III) The number of tons of coal
stockpiled;
(IV) The number of tons
of other commercially valuable minerals extracted and sold in bona fide sale
and total revenue derived from the sales;
(V) The number of tons of other commercially
valuable minerals extracted and used or transferred by the operator or related
entity and the estimated total fair market value of the minerals; and
(VI) The number of tons of other commercially
valuable minerals removed and stockpiled by the operator;
(D) Coal-Related
Structures.
1. Each structure used in
connection with or to facilitate a coal exploration or surface coal mining and
reclamation operation shall comply with the performance standards and the
design requirements of 10 CSR 40-3 or 10 CSR 40-4, except that-
A. An existing structure which meets the
performance standards of 10 CSR 40-3 or 10 CSR 40-4 but does not meet the
design requirements of 10 CSR 40-3 or 10 CSR 40-4 may be exempt from meeting
those design requirements but only as approved in the permit and plan after
obtaining the information required by
10
CSR 40-6.050(3),
10
CSR 40-6.120(3) and after making the
findings required in
10
CSR 40-6.070(9);
B. If the performance standards of 10 CSR
40-2 are at least as stringent as the comparable performance standards of 10
CSR 40-3 or 10 CSR 40-4, an existing structure which meets the performance
standards of
10 CSR 40-2 may be exempt from meeting the design requirements of 10 CSR 40-3 or 10 CSR 40-4 but only as approved in the permit and plan process after obtaining the information required by 10 CSR 40-6.050(3), 10 CSR 40-6.120(3) and after making the findings required in 10 CSR 40-6.070(9);
C. An existing structure which meets a
performance standard of 10 CSR 40-2 which is less stringent than the comparable
performance standards of 10 CSR 40-3 or 10 CSR 40-4 or which does not meet a
performance standard of 10 CSR 40-3 or 10 CSR 40-4 for which there was no
equivalent performance standard in 10 CSR 40-2 shall be modified or
reconstructed to meet the design standards of 10 CSR 40-3 or 10 CSR 40-4
pursuant to a compliance plan approved in the permit and plan as required in
10
CSR 40-6.050(3),
10
CSR 40-6.120(3) and according to the
findings required by
10
CSR 40-6.070(9); and
D. An existing structure which does not meet
the performance standards of 10 CSR 40-2, and which the applicant proposes to
use in connection with or to facilitate the coal exploration or surface coal
mining and reclamation operation shall be modified or reconstructed to meet the
design standards of 10 CSR 40-3 or 10 CSR 40-4 prior to issuance of the
permit.
2. The
exemptions provided in
10 CSR
40-8.070(2)(D) shall not apply to the
requirements-
A. For existing and new waste
piles used either temporarily or permanently as dams or embankments;
and
B. To restore the approximate
original contour of the land;
(E) The commission or director shall make a
written determination whether the operation is exempt under this section within
sixty (60) days of the receipt of the exemption request. The commission or
director shall provide public notice in a newspaper of general circulation in
the general vicinity of the proposed operations. Prior to the time a
determination is made, a person may submit, and the commission or director
shall consider, any written information relevant to the determination. A person
requesting that an operation be declared exempt shall have the burden of
establishing the exemption. If a written determination of exemption is reversed
through subsequent administrative or judicial action, any person who, in good
faith, has made a complete and accurate request for an exemption and relied
upon the determination, shall not be cited for violations which occurred prior
to the date of the reversal;
(F)
The commission may terminate its jurisdiction under the regulatory program over
the reclaimed site of a completed surface coal mining and reclamation
operation, or portion thereof, when:
1. The
commission or director determines in writing that under the initial program,
all requirements imposed under 10 CSR 40-2, 10 CSR 40-3, 10 CSR 40-4 and 10 CSR
40-8 have been successfully completed; or
2. The commission or director determines in
writing that all requirements imposed under 10 CSR 40 chapters 3 through 8 have
been successfully completed; and
3.
The operator has properly applied for, and obtained release of Phase III
reclamation liability in accordance with
10 CSR 40-7.021(3) through
(5); and
(G) Following a termination of jurisdiction
under subsection (2)(F) of this rule, the commission shall reassert
jurisdiction under the regulatory program over a site if it is demonstrated
that the determination made under subsection (2)(F) of this rule, or the
release of Phase III reclamation liability referred to under paragraph (2)(F)2.
of this rule was based upon fraud, collusion, or misrepresentation of a
material fact.
(3)
Availability of Records. Records required to be made available locally to the
public shall be retained at the commission office in Jefferson City, Missouri,
and if appropriate at the regional office of the Department of Natural
Resources nearest to the area involved.
(4) Computation of Time.
(A) Except as otherwise provided, computation
of time under 10 CSR 40-3-10 CSR 40-9 is based on calendar days.
(B) In computing any period of prescribed
time, the day on which the designated period of time begins is not included.
The last day of the period is included unless it is a Saturday, Sunday or legal
holiday on which the commission's office in Jefferson City, Missouri, is not
open for business, in which event the period runs until the end of the next day
which is not a Saturday, Sunday or legal holiday.
(C) Intermediate Saturdays, Sundays and legal
holidays are excluded from the computation when the period or prescribed time
is seven (7) days or less.
(5) Procedures for Petitioning for Rule
Changes.
(A) Any person may petition the
director to initiate a proceeding for the issuance, amendment or repeal of any
regulation under this law. The petition shall be submitted to the director of
staff of the Missouri Land Reclamation Commission, P.O. Box 1368, Jefferson
City, MO 65102.
(B) The petition
shall be a concise statement of the facts, technical justification and law
which require issuance, amendment or repeal of the regulation under this law
and shall indicate whether the petitioner desires a public hearing.
(C) Upon receipt of the petition, the
director shall determine if the petition sets forth facts, technical
justification and law which may provide a reasonable basis for issuance,
amendment or repeal of a regulation. Facts, technical justification or law
previously considered in a petition or rulemaking on the same issue shall not
provide a reasonable basis. If the director determines that the petition has a
reasonable basis, s/he shall give notice to the public of the petition by means
of a public notice in any two (2) newspapers of general statewide circulation
and any newspapers of general circulation in the counties with surface coal
mining operations. In addition, notice shall be sent by mail to any person who
has registered with the director at least forty-five (45) days prior to the
date of the notice. The notice shall include the name and address of the
persons initiating the petition and a summary of the petition. The director may
hold a public hearing or take other action to determine whether the petition
should be granted.
(D) Within
ninety (90) days of receipt of the petition, the director shall furnish a copy
of the petition and a written decision either granting or denying the petition
to the committee on administrative rules and the commissioner of
administration. The director's decision shall constitute the final decision of
the commission.
1. If the petition is
granted, the director shall initiate a rulemaking proceeding.
2. If the petition is denied, the director
shall notify the petitioner and any person who has expressed interest in the
petition, in writing, setting forth the reasons for denial, within ninety (90)
days of receipt of the petition.
Notes
The secretary of state has determined that the publication of this rule in its entirety would be unduly cumbersome or expensive. The entire text of the material referenced has been filed with the secretary of state. This material may be found at the Office of the Secretary of State or at the headquarters of the agency and is available to any interested person at a cost established by state law.
*Original authority: 444.810, RSMo 1979, amended 1983, 1993, 1995.
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