§ 785.16 - Permits incorporating variances from approximate original contour restoration requirements for steep slope mining.

§ 785.16 What special provisions apply to proposed Permits incorporating 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 and reclamation operations that which includes a variance from the requirements to restore the disturbed areas to their approximate original contour restoration requirements that are contained in §§ 816.102 and , 816.105 of this chapter, as referenced in § 104, 816.105, and 816.107 of this chapter, or § §§ 817.102 of this chapter, as referenced in § and 817.107 of this chapter, for all or a portion of the permit area. The permit may contain this such a variance only if the regulatory authority finds, in writing, that you, the applicant , have demonstrated compliance with the following requirements has demonstrated, on the basis of a complete application, that the following requirements are met:

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

(2) The alternative postmining land use requirements of § 780.24(b)816.133 or § 784.24(b) 817.133 of this chapter have been will be 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 will be improved by the operations when compared

either

with the condition of the watershed before

the proposed operation

mining or with

the

its condition

that would exist

if the

site were mined and restored to the

approximate original contour were to be restored. 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

pollutants discharged to ground or surface water from the

proposed

permit area will be reduced

. (ii) Flood

, so as to improve the public or private uses or the ecology of such water, or flood hazards within the watershed containing the

proposed

permit area will be

diminished

reduced by reduction of the

size or frequency of

peak

-

flow

discharges

discharge from precipitation events or thaws

.

;

(

iii

ii) 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)

affects the ecology of any surface water or any existing or planned use of surface or ground water; and

(iii) The appropriate State environmental agency approves the plan.

(4) 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

shall be made separately from any surface owner consent given for the operations under § 778.15 of this chapter and

it must

shall 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

b) If a variance is granted under this section -

(1) The requirements of § 816.133(d) or § 817.133(d) of this chapter shall be included as a specific condition of the permit; and

(2) The permit shall be specifically marked as containing a variance from approximate original contour.

(c) A permit incorporating a variance under this section shall be reviewed by the regulatory authority at least every 30 months following the issuance of the permit to evaluate the progress and development of the surface coal mining and reclamation operations to establish that the operator is proceeding in accordance with the terms of the variance.

(d) If the permittee demonstrates to the regulatory authority that the operations have been, and continue to be, conducted in compliance with the terms and conditions of the permit, the requirements of the Act, this chapter, and the regulatory program, the review specified in paragraph (c) of this section need not be held.

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

(

d

f)

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.

[48 FR 39904, Sept. 1, 1983, as amended at 48 FR 44780, Sept. 30, 1983; 56 FR 65635, Dec. 17, 1991; 81 FR 93380, Dec. 20, 2016; 82 FR 54965, Nov. 17, 2017]