§ 780.23 - Reclamation plan: Land use information.

§ 780.23 What information must I include in plans for the monitoring of groundwater, surface water, and the biological condition of streams during and after mining?Reclamation plan: Land use information.

(a) Groundwater monitoring plan -

(1) General requirements. Your permit application must include a groundwater monitoring plan adequate to evaluate the impacts of the mining operation on groundwater in the proposed permit and adjacent areas and to determine in a timely manner whether corrective action is needed to prevent the operation from causing material damage to the hydrologic balance outside the permit area. The plan must -

(i) Identify the locations to be monitored, the measurements to be taken at each location, and the parameters to be analyzed in samples collected at each location.

(ii) Specify the sampling frequency.

(iii) Establish a sufficient number of appropriate monitoring locations to evaluate the accuracy of the findings in the PHC determination, to identify adverse trends, and to determine, in a timely fashion, whether corrective action is needed to prevent material damage to the hydrologic balance outside the permit area. At a minimum, the plan must include -

(A) For each aquifer above or immediately below the lowest coal seam to be mined, monitoring wells or equivalent monitoring points located upgradient and downgradient of the proposed operation.

(B) Monitoring wells placed in backfilled portions of the permit area after backfilling and grading of all or a portion of the permit area is completed, unless you demonstrate, and the regulatory authority finds in writing, that wells in the backfilled area are not necessary to determine or predict the future impact of the mining operation on groundwater quality.

(C) Monitoring wells in any existing underground mine workings that would have a direct hydrologic connection to the proposed operation. -

(D) Monitoring wells or equivalent monitoring points at the locations specified in the CHIA under § 780.21(b)(6)(iv) of this part.

(iv) Describe how the monitoring data will be used to -

(A) Determine the impacts of the operation upon the hydrologic balance.

(B) Determine the impacts of the operation upon the biology of surface waters within the permit and adjacent areas.

(C) Prevent material damage to the hydrologic balance outside the permit area.

(v) Describe how the water samples will be collected, preserved, stored, transmitted for analysis, and analyzed in accordance with the sampling, analysis, and reporting requirements of paragraphs (a) and (b) of § 777.13 of this chapter.

(2) Parameters -

(i) General criteria for selection of parameters. The plan must provide for the monitoring of parameters for which an evaluation threshold under § 780.21(b)(7) of this part exists. It also must provide for the monitoring of other parameters that could be affected by the proposed operation to the extent needed to assess the -

(A) Accuracy of the findings and predictions in the PHC determination prepared under § 780.20 of this part.

(B) Suitability of the quality and quantity of groundwater for premining uses of the groundwater within the permit and adjacent areas, subject to § 816.40 of this chapter.

(C) Suitability of the quality and quantity of groundwater to support the premining land uses within the permit and adjacent areas.

(ii) Minimum sampling and analysis requirements. At a minimum, the plan must require collection and analysis of a sample from each monitoring point every 3 months, with data submitted to the regulatory authority at the same frequency. The data must include -

(A) Analysis of each sample for the groundwater parameters listed in § 780.19(a)(2) of this part.

(B) Water levels in each well used for monitoring purposes and discharge rates from each spring or underground opening used for monitoring purposes.

(C) Analysis of each sample for parameters detected by the baseline sampling and analysis conducted under § 780.19(d) of this part.

(D) Analysis of each sample for all parameters for which there is an evaluation threshold under § 780.21(b)(7) of this part.

(E) Analysis of each sample for other parameters of concern, as determined by the regulatory authority, based upon the information and analyses required under §§ 780.19 through 780.21 of this part.

(3) Regulatory authority review and action.

(i) Upon completing the technical review of the application, the regulatory authority may require that you revise the plan to increase the frequency of monitoring, to require monitoring of additional parameters, or to require monitoring at additional locations, if the additional requirements would contribute to protection of the hydrologic balance.

(ii) After completing preparation of the cumulative hydrologic impact assessment required under § 780.21 of this part, the regulatory authority must reconsider the adequacy of the monitoring plan and require that you make any necessary changes.

(4) Exception. If you can demonstrate, on the basis of the PHC determination prepared under § 780.20 of this part or other available information that a particular aquifer in the proposed permit and adjacent areas has no existing or foreseeable use for agricultural or other human purposes or for fish and wildlife purposes and does not serve as an aquifer that significantly ensures the hydrologic balance within the cumulative impact area, the regulatory authority may waive monitoring of that aquifer.

(b) Surface-water monitoring plan -

(1) General requirements. Your permit application must include a surface-water monitoring plan adequate to evaluate the impacts of the mining operation on surface water in the proposed permit and adjacent areas and to determine in a timely manner whether corrective action is needed to prevent the operation from causing material damage to the hydrologic balance outside the permit area. The plan must -

(i) Identify the locations to be monitored, the measurements to be taken at each location, and the parameters to be analyzed in samples collected at each location.

(ii)

(A) Require on-site measurement of precipitation amounts at specified locations within the permit area, using self-recording devices.

(B) Measurement of precipitation amounts must continue through Phase II bond release under § 800.42(c) of this chapter or for any longer period specified by the regulatory authority.

(C) At the discretion of the regulatory authority, you may use precipitation data from a single self-recording device to provide monitoring data for multiple permits that are contiguous or nearly contiguous if a single station would provide adequate and accurate coverage of precipitation events occurring in that area.

(iii) Specify the sampling frequency.

(iv) Establish a sufficient number of appropriate monitoring locations to evaluate the accuracy of the findings in the PHC determination, to identify adverse trends, and to determine, in a timely fashion, whether corrective action is needed to prevent material damage to the hydrologic balance outside the permit area. At a minimum, the plan must include -

(A) Monitoring of point-source discharges from the proposed operation.

(B) Monitoring locations upgradient and downgradient of the proposed permit area in each perennial and intermittent stream within the proposed permit and adjacent areas, with the exception that no upgradient monitoring location is needed for a stream when the operation will mine through the headwaters of that stream.

(C) Monitoring locations specified in the CHIA under § 780.21(b)(6)(vi) of this part.

(v) Describe how the monitoring data will be used to -

(A) Determine the impacts of the operation upon the hydrologic balance.

(B) Determine the impacts of the operation upon the biology of surface waters within the permit and adjacent areas.

(C) Prevent material damage to the hydrologic balance outside the permit area.

(vi) Describe how the water samples will be collected, preserved, stored, transmitted for analysis, and analyzed in accordance with the sampling, analysis, and reporting requirements of paragraphs (a) and (b) of § 777.13 of this chapter.

(2) Parameters -

(i) General criteria for selection of parameters. The plan must provide for the monitoring of parameters -

(A) For which there are applicable effluent limitation guidelines under 40 CFR part 434.

(B) Needed to assess the accuracy of the findings and predictions in the PHC determination prepared under § 780.20 of this part.

(C) Needed to assess the adequacy of the surface-water runoff control plan prepared under § 780.29 of this part.

(D) Needed to assess the suitability of the quality and quantity of surface water in the permit and adjacent areas for all designated uses under section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c), or, if there are no designated uses, all premining uses of surface water in the permit and adjacent areas, subject to § 816.40 of this chapter; and -

(E) Needed to assess the suitability of the quality and quantity of surface water in the permit and adjacent areas to support the premining land uses.

(F) For which there is an evaluation threshold under § 780.21(b)(7) of this part.

(ii) Minimum sampling and analysis requirements for monitoring locations other than point-source discharges. For all monitoring locations other than point-source discharges, the plan must require collection and analysis of a sample from each monitoring point at least every 3 months, with data submitted to the regulatory authority at the same frequency. The data must include -

(A) Analysis of each sample for the surface-water parameters listed in § 780.19(a)(2) of this part.

(B) Flow rates at each sampling location. The plan must require use of generally-accepted professional flow measurement techniques. Visual observations are not acceptable.

(C) Analysis of each sample for parameters detected by the baseline sampling and analysis conducted under § 780.19(d) of this part.

(D) Analysis of each sample for all parameters for which there is an evaluation threshold under § 780.21(b)(7) of this part.

(E) Analysis of each sample for other parameters of concern, as determined by the regulatory authority, based upon the information and analyses required under §§ 780.19 through 780.21 of this part.

(iii) Minimum requirements for point-source discharges. For point-source discharges, the plan must -

(A) Provide for monitoring in accordance with 40 CFR parts 122, 123, and 434 and as required by the National Pollutant Discharge Elimination System permitting authority.

(B) Require measurement of flow rates, using generally-accepted professional flow measurement techniques. Visual observations are not acceptable.

(iv) Requirements related to the Clean Water Act. You must revise the plan to incorporate any site-specific monitoring requirements imposed by the National Pollutant Discharge Elimination System permitting authority or the agency responsible for administration of section 404 of the Clean Water Act, 33 U.S.C. 1344, subsequent to submission of the SMCRA permit application.

(3) Regulatory authority review and action.

(i) Upon completing the technical review of your application, the regulatory authority may require that you revise the plan to increase the frequency of monitoring, to require monitoring of additional parameters, or to require monitoring at additional locations, if the additional requirements would contribute to protection of the hydrologic balance.

(ii) After completing preparation of the cumulative hydrologic impact assessment required under § 780.21 of this part, the regulatory authority must reconsider the adequacy of the monitoring plan and require that you make any necessary changes.

(c) Biological condition monitoring plan -

(1) General requirements. Except as provided in paragraph (d) of this section, your permit application must include a plan for monitoring the biological condition of each perennial and intermittent stream within the proposed permit and adjacent areas for which baseline biological condition data was collected under § 780.19(c)(6)(vi) of this part. The plan must be adequate to evaluate the impacts of the mining operation on the biological condition of those streams and to determine in a timely manner whether corrective action is needed to prevent the operation from causing material damage to the hydrologic balance outside the permit area.

(2) Monitoring techniques. The plan must -

(i) Require use of a bioassessment protocol that meets the requirements of § 780.19(c)(6)(vii) of this part.

(ii) Identify monitoring locations in each perennial and intermittent stream within the proposed permit and adjacent areas for which baseline biological condition data was collected under § 780.19(c)(6)(vi) of this part.

(iii) Establish a sampling frequency that must be no less than annual, but not so frequent as to unnecessarily deplete the populations of the species being monitored.

(iv) Require submission of monitoring data to the regulatory authority on an annual basis.

(3) Regulatory authority review and action.

(i) Upon completing review of your application, the regulatory authority may require that you revise the plan to adjust monitoring locations, the frequency of monitoring, and the species to be monitored.

(ii) After completing preparation of the cumulative hydrologic impact assessment required under § 780.21 of this part, the regulatory authority must reconsider the adequacy of the monitoring plan and require that you make any necessary changes.

(d) Exceptions -

(1) Lands eligible for remining.

(i) If the proposed permit area includes only lands eligible for remining, you may request that the regulatory authority modify the groundwater and surface water monitoring plan requirements of paragraphs (a) and (b) of this section and modify or waive the biological condition monitoring plan requirements of paragraph (c) of this section.

(ii) The regulatory authority may approve your request if it determines that a less extensive monitoring plan will be adequate to monitor the impacts of the proposed operation on groundwater and surface water, based upon an evaluation of the quality of groundwater and surface water and the biological condition of the receiving stream at the time of application.

(2) Operations that avoid streams.

(i) Upon your request, the regulatory authority may waive the biological condition monitoring plan requirements of paragraph (c) of this section if you demonstrate, and if the regulatory authority finds in writing, that your operation will not -

(A) Mine through or bury any perennial or intermittent stream;

(B) Create a point-source discharge to any perennial, intermittent, or ephemeral stream; or

(C) Modify the base flow of any perennial or intermittent stream.

(ii) If you meet all the criteria of paragraph (d)(2)(i) of this section with the exception of paragraph (d)(2)(i)(B) of this section, you may request, and the regulatory authority may approve, limiting the biological condition monitoring plan requirements of paragraph (c) of this section to only the stream that will receive the point-source discharge.

(e) Coordination with Clean Water Act agencies. The regulatory authority will make best efforts to -

(1) Consult in a timely manner with the agencies responsible for issuing permits, authorizations, and certifications under the Clean Water Act;

(2) Minimize differences in monitoring locations and reporting requirements; and

(3) Share data to the extent practicable and consistent with each agency's mission, statutory requirements, and implementing regulations.

The plan shall contain a statement of the condition, capability, and productivity of the land within the proposed permit area, including:

(1) A map and supporting narrative of the uses of the land existing at the time of the filing of the application. If the premining use of the land was changed within 5 years before the anticipated date of beginning the proposed operations, the historic use of the land shall also be described. In the case of previously mined land, the use of the land prior to any mining shall also be described to the extent such information is available.

(2) A narrative of land capability and productivity, which analyzes the land-use description under paragraph (a) of this section in conjunction with other environmental resources information. The narrative shall provide analyses of:

(i) The capability of the land before any mining to support a variety of uses, giving consideration to soil and foundation characteristics, topography, vegetative cover, and the hydrology of the proposed permit area; and

(ii) The productivity of the proposed permit area before mining, expressed as average yield of food, fiber, forage, or wood products from such lands obtained under high levels of management. The productivity shall be determined by yield data or estimates for similar sites based on current data from the U.S. Department of Agriculture, State agricultural universities, or appropriate State natural resource or agricultural agencies.

(b) Each plan shall contain a detailed description of the proposed use, following reclamation, of the land within the proposed permit area, including a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses, and the relationship of the proposed use of existing land use policies and plans. This description shall explain:

(1) How the proposed post mining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use; and

(2) Where a land use different from the premining land use is proposed, all materials needed for approval of the alternative use under 30 CFR 816.133.

(3) The consideration which has been given to making all of the proposed surface mining activities consistent with surface owner plans and applicable State and local land use plans and programs.

(c) The description shall be accompanied by a copy of the comments concerning the proposed use by the legal or equitable owner of record of the surface of the proposed permit area and the State and local government agencies which would have to initiate, implement, approve, or authorize the proposed use of the land following reclamation.

[59 FR 27937, May 27, 1994, as amended at 81 FR 93330, Dec. 20, 2016; 82 FR 54949, Nov. 17, 2017]