Mo. Code Regs. tit. 10 § 40-8.070

Current through Register Vol. 49, No.12, June 17, 2024

Section 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.

10 CSR 40-8.070

AUTHORITY: section 444.810, RSMo 2000.* Original rule filed Oct. 12, 1979, effective Feb. 11 , 1980. Amended: Filed April 14, 1980, effective Aug. 11 , 1980. Amended: Filed Aug. 1, 1980, effective Dec. 11 , 1980. Amended: Filed Aug. 4, 1987, effective 11/23/1987. Amended: Filed July 3, 1990, effective 11/30/1990. Amended: Filed March 21, 2000, effective 10/30/2000. Amended: Filed Dec. 17, 2012, effective 7/30/2013.

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.