W. Va. Code R. § 38-2-14

Current through Register Vol. XLI, No. 23, June 7, 2024

Section 38-2-14 - Performance Standards

In addition to the requirements of the Act, the following performance standards shall be applicable to both surface and underground mining operations.

14.1. Signs and Markers. Signs and markers as required in this subsection shall be erected and maintained throughout the life of the permit or term of the specified activities for which they are intended.

14.1.a. Permanent Monument. A permanent monument shall be posted at primary points of ingress and egress on the permit area from public roads and highways. The monument shall consist of a sign constructed of wood, metal or other suitable material measuring two feet by three feet (2' x 3') and mounted on a two-inch (2") diameter pipe driven three feet (3') into the ground with four feet (4') exposed. Any suitable substitute may be approved. The sign shall clearly indicate the company name, permit number, business address and telephone number.

14.1.b. Perimeter Marker. Prior to initial disturbance, suitable markers made of durable material shall be established to permanently mark the perimeter of the area under permit. The assigned permit number shall be affixed to the permanent perimeter marker. Other markers may be used to delineate the boundaries of the proposed permit area.

14.1.c. Buffer Zone Markers. Appropriate markers will be established along a buffer zone. Markers shall consist of metal or wooden stakes or other suitable devices or methods.

14.1.d. Topsoil Markers. When topsoil or topsoil substitute material is segregated and stockpiled, the stockpiled material shall be marked. Markers shall remain in place until the materials are removed.

14.1.e. Blasting Signs. If blasting is necessary to conduct surface mining operations, the following signs and markers shall be required:

14.1.e.1. Warning signs shall be conspicuously displayed at all approaches to the blasting site, along haulageways and access roads to the mining operation and at all entrances to the permit area. The sign shall at a minimum be two feet by three feet (2' x 3') reading "WARNING! Explosives in Use" and explaining the blasting warning and the all clear signals and the marking of blasting areas and charged holes; and

14.1.e.2. Where blasting operations will be conducted within one hundred (100) feet of the outside right-of-way of a public road, signs reading "Blasting Area", shall be conspicuously placed along the perimeter of the blasting area.

14.2. Casing and sealing of holes and exposed underground openings.

14.2.a. General requirements. Each prospecting hole, other drillhole or borehole, shaft, well, or other exposed underground opening shall be cased, lined, sealed or otherwise managed as approved by the Secretary to prevent acid or other toxic drainage from entering ground and surface waters, to minimize disturbance to the prevailing hydrologic balance and to ensure the safety of people, livestock, fish and wildlife, and machinery in the permit and adjacent area. Each prospecting hole, drill hole or borehole well or opening that is uncovered or exposed by mining activities within the permit area shall be permanently closed, unless approved for water monitoring or otherwise managed in a manner approved by the Secretary. However, at the time of final release of bond, exploratory or monitoring wells must either be sealed in a safe and environmentally sound manner or with the prior approval of the Secretary, be transferred to another party for further use. The conditions of the transfer shall comply with State and local laws, regulations, and other requirements.

14.2.b. Temporary seals:

14.2.b.1. Each mine entry which is temporarily inactive, but has a further projected usefril service under the approved permit, shall be protected by barricades or other covering devices, fenced, and posted with signs, to prevent access into the entry and to identify the hazardous nature of the opening. These devices shall be periodically inspected and maintained in good operating condition by the person who conducts the underground mining activities.

14.2.b.2. Each prospecting hole, other drill hole or borehole, shaft, well, and other exposed underground opening which has been identified in the approved permit for use to return underground development waste, coal processing waste or water to underground workings, or to be used to monitor ground water conditions, shall be temporarily sealed until actual use and protected during use by fences, barricades, or other protective devices.

14.2.c. Permanent seals. When no longer needed for monitoring or other use approved by the Secretary upon a finding of no adverse environmental or health and safety effects, each shaft, drift, adit, tunnel, prospecting hole, entryway or other opening to the surface from underground shall be capped, sealed, backfilled, or otherwise properly managed in accordance with subdivision 14.2.a of this subsection and in accordance with MSHA regulations at 30 CFR 75.1711. Permanent closure measures shall be designed to prevent access to the mine workings by people, livestock, fish and wildlife, machinery and to keep acid or other toxic drainage from entering ground or surface waters.

14.3. Tops oil.

14.3.a. Removal. Prior to disturbance of an area, topsoil, as defined by 2.128 of this rule, shall be removed from the area to be disturbed in a separate layer and if not immediately redistributed, it shall be segregated and stockpiled in a separate stable location as specified in the preplan. . Provided, however, if topsoil is less than 6 inches thick, the permittee may remove the topsoil and the unconsolidated materials immediately below the topsoil and treat the mixture as topsoil Stockpiled topsoil shall remain in place until used for redistribution unless otherwise approved by the Secretary. Stockpiled topsoil shall be protected from excessive compaction. Where the removal of vegetative material, topsoil or other materials may result in erosion, the Secretary may limit the size of the area from which these materials are removed at any one time.

14.3.b. Redistribution. Prior to redistribution of topsoil, the regraded land shall be treated, if necessary, to reduce the potential for slippage of the redistributed material and/or to enhance root penetration. Topsoil and other materials shall be redistributed in a manner that prevents excess compaction and that achieves an approximate uniform, stable thickness, consistent with the approved postmining land uses, contours, soil density, and surface water drainage system. Immediately after redistribution all topsoil areas shall be protected from wind and water erosion.

14.3.c. Substitutes material. Where the topsoil is of insufficient quantity or poor quality for supporting and maintaining the approved postmining land use substitute material may be approved by the Secretary Any substitute material used must be capable of supporting and maintaining the approved postmining land use. This determination of capability shall be based on the results of appropriate chemical and physical analysis of overburden and topsoil. These analyses shall include at a minimum depth, thickness, and areal extent of the substitute structure or soil horizon, pH, texture class, percent coarse fragments and nutrient content. A certification of analysis shall be made by a qualified laboratory stating that:

14.3.c.1. The proposed substitute material is equally suitable for sustaining vegetation as the existing topsoil;

14.3.c.2. The resulting substitute material is the best reasonably available in the permit area to support vegetation; and

14.3.c.3. The analyses were conducted using standard testing procedures.

14.3.d. Soil Amendments. Nutrients and soil amendments in the amounts determined by soil tests shall be applied to the redistributed surface soil layer so that it supports the approved postmining land use and meets the revegetation requirements of section 9 of this rule. These tests shall include nutrient analysis and lime requirement tests. Results of these tests shall be submitted to the Secretary with the final planting report as required by this rule.

14.4. Diversions.

14.4.a. Stream Channel Diversions. Stream channel diversions and stream channels reclaimed after the removal of temporary diversions, shall be designed and constructed so as to restore or approximate the premining characteristics of the original stream channel, including the natural riparian vegetation, to promote recovery and enhancement of the aquatic habitat.

14.4.b. Temporary Diversions. Temporary diversions shall be removed when they are no longer needed to achieve the purpose for which they were approved as long as downstream facilities which were being protected are modified or removed.

14.4.c. Reclamation of Diversions. All temporary diversions shall be removed and reclaimed prior to permit abandonment and all permanent diversions shall comply with the approved reclamation plan and be renovated if necessary prior to abandonment.

14.5. Hydrologic Balance. All surface mining and reclamation activities shall be conducted to minimize the disturbance of the hydrologic balance within the permit and adjacent areas, to prevent material damage to the hydrologic balance outside the permit area, to assure the protection or replacement of water supplies, and to support the approved post mining land use.

14.5.a. Water Quality Control. All water accumulation into the pit shall be removed at least once in a twenty-four (24) hour period whenever water quality or spoil stability may be adversely affected.

14.5.b. Effluent Limitations .Discharges of water from areas disturbed by surface mining activities shall be made in compliance with all applicable State and Federal water quality laws and regulations and with the effluent limitations for coal mining promulgated by the U.S. Environmental Protection Agency set forth in 40 CFR part 434.

14.5.c. Treatment Facilities. Adequate facilities shall be installed, operated and maintained using the best technology currently available in accordance with the approved preplan to treat any water discharged from the permit area so that it complies with the requirements of subdivision 14.5.b of this subsection. Nonmechanical treatment systems may be utilized if flow is infrequent or small and timely and consistent treatment is assured.

14.5.d. Breakthrough. Any surface breakthrough of water caused by the operator during the course of his operations shall be sampled immediately and analyzed for total iron, total suspended solids and pH and if requested by the Secretary, any other parameter which is characteristic of the discharge. Such analysis shall be made by a competent water analyst or chemist. The original and at least one copy of such analysis shall be retained by the operator, and two (2) copies shall be submitted to the Secretary. Should said analysis indicate the water quality to be less than the applicable effluent limitations, seals shall be immediately constructed. These seals shall:

14.5.d.1. Prevent any air from entering the underground mine by way of the breakthrough;

14.5.d.2. Prevent any air from entering the breakthrough while allowing the water to flow from the breakthrough;

14.5.d.3. Seal the breakthrough of water so that it cannot flow. Such seals shall be constructed of stone, brick, block, earth or other impervious materials which are acid resistant; or

14.5.d.4. Alternate methods of handling discharges from breakthroughs may be employed where it can be established that applicable effluent limitations can be met.

14.5.e. Discharges Into Underground Workings.

14.5.e.1. On active underground mining operations, all reasonable measures shall be taken to intercept all surface water by the use of diversions, culverts, drainage ditches or other approved methods to prevent water from entering the working area. All surface drainage from the disturbed area must pass through a sediment pond or series of sediment ponds so that discharges from such areas will not cause a violation of water quality standards.

14.5.e.2. Discharges into underground mine workings are prohibited, nor shall water be discharged from one underground working to another, unless the operator demonstrates to the Secretary that such activities will:

14.5.e.2.A. Not cause, result in, or contribute to a violation of water quality standards and effluent limitations both on or outside the permit area;

14.5.e.2.B. Not be discharged without MSHA approval;

14.5.e.2.C. Minimize disturbance to the hydrologic balance on the permit area and prevent material damage outside the permit area; and

14.5.e.2.D. Be discharged at specified rates as a controlled flow meeting applicable effluent limitations for pH and total suspended solids, except that the pH and total suspended limitations may be exceeded if approved by the Secretary, and is limited to:

14.5.e.2.D.1. Coal processing waste;

14.5.6.2.D.2. Fly ash from a coal-fired facility;

14.5.6.2.D.3. Inert materials used for stabilizing underground mines;

14.5.6.2.D.4. Underground mine development wastes;

14.5.e.2.D.5. Sludge from an acid mine drainage treatment facility or flue-gas desulfurization; or

14.5.e.2.D.6. Water.

14.5.f. Co-mingling of Waters. Unless otherwise approved by the Secretary, water from underground works shall not be co-mingled with surface drainage. When separate treatment facilities are used for discharges from underground works, they shall be designed to adequately treat the anticipated quantity and quality of the raw discharge.

14.5.g. Gravity Flows. No person shall locate openings for new drift mines working in acid or iron producing coal seams in such a manner that the mine will have a gravity discharge. If there will be a gravity discharge and the seam to be mined meets the definition of acid-producing coal seam in subsection 2.4 of this rule, site specific data must be submitted demonstrating that this seam is not an acid or iron producing seam at this location.

14.5.h. A waiver of water supply replacement granted by a landowner as provided in subsection (b) of section 24 of the Act shall apply only to underground mining operations, provided that a waiver shall not exempt any operator from the responsibility of maintaining water quality. Provided, however, the requirement for replacement of an affected water supply that is needed for the land use in existence at the time of contamination, diminution or interruption or where the affected water supply is necessary to achieve the post-mining land use shall not be waived. If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water sources is available and could feasibly be developed. If the latter approach is selected, written concurrence must be obtained from the water supply owner.

14.6. Acid Producing and Toxic Materials.

14.6.a. Acid and Toxic Soils. Drainage from acid-forming and toxic-forming materials into ground and surface water shall be avoided by identifying, burying, blending, segregating, and/or treating spoil or other materials that will be toxic to vegetation or that will adversely affect water quality. Such materials shall be handled and treated in accordance with methods set forth in the approved preplan within thirty (30) days after initial exposure or a lesser period if required by the Secretary.

14.6.b. Burying Acid and Toxic Materials. Acid-forming or toxic-forming material shall not be buried or stored in proximity to a drainage course or groundwater system.

14.6.c. Treatment of Toxic Material. All exposed coal seams remaining after mining and any acid-forming, toxic-forming, or combustible materials or any other waste materials shall be covered with a minimum of four feet (4') of nontoxic and noncombustible material. Where necessary to protect against upward migration of salts, exposure by erosion, or to provide adequate depth for plant growth, the Secretary shall specify thicker amounts of cover.

14.7. Monitoring Requirements.

14.7.a. Surface Water. All surface water shall be sampled and analyzed and otherwise monitored in accordance with the approved surface water monitoring plan. Monitoring and analysis shall occur at each monitoring site no less frequently than quarterly. All measurements shall be submitted to the Secretary and all violations of applicable effluent limitations shall be reported to the Secretary within five (5) days of receipt of analytical results. The operator shall immediately implement remedial measures described in the hydrologic reclamation plan. Monitoring shall continue until bond release unless the operator demonstrates that continued monitoring is unnecessary to achieve the purpose of the monitoring plan.

14.7.b. Groundwater. Where adverse impacts to a significant groundwater resource are identified as provided in subdivision 3.22.h of this rule, the groundwater resources shall be monitored in accordance with the groundwater monitoring plan. Monitoring and analysis shall occur no less frequently than quarterly. All measurements shall be submitted to the Secretary and all violations of standards established under section 24 of the Act shall be reported to the Secretary within five (5) days of receipt of analytical results. The operator shall immediately implement remedial measures described in the hydrologic reclamation plan. Monitoring shall continue until bond release unless the operator demonstrates that continued monitoring is unnecessary to achieve the purposes of the monitoring plan.

14.7.c. Ground Water Monitoring Waivers. - If an applicant can demonstrate by the use of the PHC determination and other available base line hydrologic and geologic information that a particular waterbearing stratum in the proposed permit and adjacent area is not one which serves or may potentially serve as a significant aquifer or ensure the hydrologic balance within the cumulative impact area, monitoring of the stratum may be waived by the Secretary. Waivers will be considered and granted separately and exclusively for each individual water-bearing stratum unless it is shown by the use of the PHC determination and base line hydrologic and geologic information that all individual water-bearing stratums of concern are hydraulically interconnected and can be waived as a complete unit.

14.7.d. Water Treatment. Where any discharge from the permit area requires treatment during the mining operation in order to meet the applicable effluent limitations, water monitoring of such discharges shall continue following grading approval. If it is established on the basis of such monitoring that the hydrologic balance is being preserved without treatment, the treatment facilities may be removed. A one (1) year history of meeting the applicable effluent limitations shall be adequate to establish that the hydrologic balance is being preserved.

14.7.e. Monitoring Equipment. Monitoring equipment located both at the pennit area and at off- site areas shall be properly installed, operated, and maintained during the required monitoring period and removed when no longer required.

14.8. Steep Slope Mining.

14.8.a. Backfilling and Spoil Placement. In addition to other applicable performance standards set forth in the Act and this rule, the following standards shall apply where the natural slope of the land within the permit area exceeds an average of twenty (20) degrees as measured from the horizontal. These standards except the variance provisions of subsection 14.12 shall also apply to slopes of lesser steepness where the Secretary has determined, on the basis of soils, climates, method of operation, geology, and other site-specific characteristics, that special measures are required to protect the area below the mining operations from landslides or other hazards. The provisions of this section do not apply when mining is conducted on a flat or gently rolling terrain with an occasional steep slope through which the mining proceeds and leaves a plain or predominantly flat area.

14.8.a.1. Spoil, debris, or abandoned or disabled equipment shall not be placed on the downslope except as provided in subsection (d) of section 13 of the Act. Excess spoil may be placed in specified areas designed in the permit application for such placement, if such placement is done in accordance with the provisions of subsection 14.14 of this rule. Nothing in this section shall prohibit the placement of materials in haulroad or access road fills on slopes steeper than twenty (20) degrees so long as the fills are constructed in accordance with construction specifications set forth in subsection 14.14 of this section. Casting of spoil from a higher seam to a lower seam in multiple seam operations may only occur where: the highwall of the lower seam intersects the outcrop of the upper seam; the lowest seam is mined first or in advance of the upper seams; and minimum bench widths based on slopes are established on the lower bench sufficient to accommodate both spoil placement from the upper seam and bench drainage structures.

14.8.a.2. The highwall shall be eliminated and the disturbed area graded to the approximate original contour. Spoil material in excess of that required for the reconstruction of the approximate original contour shall be permanently stored in areas designated in the permit for such use and designed and constructed in accordance with subsection 14.14 of this section.

14.8.a.3. Land above the highwall shall not be disturbed unless the disturbance is necessary to facilitate compliance with the environmental protection standards of this section and section 12 and 14 of the Act. Standards to be considered which justify such disturbance are the following:

14.8.a.3.A. Achieve the approximate original contour;

14.8.a.3.B. Control erosion, sedimentation, and water runoff;

14.8.a.3.C. Provide access to the area above the highwall for revegetation purposes; or

14.8.a.3.D. Comply with safety standards.

14.8.a.4. The material used to backfill and eliminate the highwall shall be sufficiently compacted or otherwise mechanically stabilized so as to insure stability of the backfill with a static safety factor of 1.3. Placement of woody materials in the fill shall be prohibited unless the Secretary first determines that the method of placement of woody material will not deteriorate the future stability of the backfilled area. The operator shall at a minimum retain all overburden and spoil on the solid portion of the existing or new benches and backfill and grade the area to the most moderate slope possible.

14.8.a.5. When mining through natural watercourses or when water is to be directed across or through the backfill, a drainage channel, flumes, culvert, or french drain shall be constructed across or through the backfill in order to insure stability and to prevent erosion. Such drainage channels, flumes, culvert or french drains shall be constructed of nontoxic durable rock, asphalt, pipe, concrete or other similar material. Channels, flumes, culvert, and drains shall be constructed in accordance with the applicable criteria set forth in the applicable requirements of this rule.

14.8.a.6. Constructed outcrop barriers shall be designed using standard engineering procedures to inhibit slides and erosion to ensure the long-term stability of the backfill. The constructed outcrop barriers shall have a minimum static safety factor of 1.3, and where water quality is paramount, the constructed barriers shall be composed of impervious material with controlled discharge points.

14.9. Auger Operations.

14.9.a. Prohibition and Variance. Angering shall be prohibited by the Secretary if it is determined that such operations pose a potential hazard to the environment, to the public welfare and safety, to water quality, or to structures or buildings as a result of subsidence.

14.9.b. All auger holes, except as provided in subdivision 14.9.c of this subsection, shall be:

14.9.b.1. Sealed within seventy-two (72) hours after coal extraction with an impervious and noncombustible material, if the holes are discharging water containing acid-or toxic-forming material. If sealing is not possible within seventy-two (72) hours, the discharge shall be collectively treated commencing within seventy-two (72) hours after completion to meet applicable effluent limitations and water-quality standards until the holes are sealed; and

14.9.b.2. Sealed with an impervious non-combustible material, as contemporaneously as practicable with the auguring operation, if the holes are not discharging water containing acid-or toxic-forming material.

14.9.c. Auger holes need not be sealed with an impervious material so as to prevent drainage if the Secretary determines that:

14.9.c.1. The resulting impoundment of water may create a hazard to the environment or public health or safety, and

14.9.c.2. The drainage from the auger holes will:

14.9.c.2.A. Not pose a threat of pollution to surface water, and

14.9.c.2.B. Comply with applicable effluent limitations and water quality standards.

14.9.d. Spacing. Auger mining operations shall be conducted in a manner which maximizes recoverability of mineral reserves remaining after auguring. The operator shall, at a minimum, leave areas of undisturbed coal to provide access for future underground mining activities, unless it is established by the operator that the coal reserves have been depleted or are so limited in thickness or extent that it would not be practicable to attempt further recovery.

14.9.e. Subsidence. Auger mining operations shall be conducted in such a manner so as to prevent or minimize subsidence and where material damage occurs the operator shall correct such damage in accordance with the requirements of subdivision 16.2.C of this rule.

14.9.f. Previously Mined Areas. Where auger mining operations affect previously mined areas and the volume of all reasonably available spoil is demonstrated in writing to the Secretary to be insufficient to completely backfill the highwall, the highwall shall be eliminated to the maximum extent technically practical in accordance with the following criteria:

14.9.f.1. The person who conducts the auger mining operation shall demonstrate to the Secretary that the backfill, designed by a qualified registered professional engineer, has a minimum static safety factor for the stability of the backfill of at least 1.3.

14.9.f.2. All spoil generated by the auger mining operation and any associated surface coal mining and reclamation operation, and any other reasonably available spoil, shall be used to backfill the area. Reasonably available spoil shall include spoil generated by the mining operation and other spoil located in the permit area that is accessible and available for use and that when rehandled will not cause a hazard to the public safety or significant damage to the environment. For this purpose, the permit area shall include spoil in the immediate vicinity of the auger mining operation.

14.9.f.3. The coal seam mined shall be covered with a minimum of four (4) feet of nonacid, nontoxic-forming material and the backfill graded to a slope which is compatible with the approved postmining land use and which provides adequate drainage and long-term stability.

14.9.f.4. Any remnant of the highwall shall be stable and not pose a hazard to the public health and safety or to the environment.

14.9.f.5. Spoil placed on the outslope during previous mining operations shall not be disturbed if such disturbances will cause instability of the remaining spoil or otherwise increase the hazard to the public health and safety or to the environment.

14.9.f.6. Auger holes shall not extend closer than five hundred (500) feet to any abandoned or active underground mine workings except as approved in subsection 14.13.

14.10. Mountaintop Removal.

14.10.a. Backfilling and Regrading. In addition to the other performance standards set forth in this rule, the following performance standards will apply where the mountaintop removal method of mining is used:

14.10.a.1. The final graded top plateau slopes on the mined area shall be less than five (5) horizontal to one (1) vertical so as to create a level plateau or gently rolling configuration. The outslopes of the plateau shall be no steeper than two (2) horizontal to one (1) vertical.

14.10.a.2. The resulting level or gently rolling contour shall be graded so that water will drain inward from the outslope except at specific points where it is released over the outslope in constructed channels. Such channels shall be protected from erosion and constructed in accordance with subdivision 5.3.c of this rule.

14.11. Procedures to Obtain Inactive Status.

14.11.a. A permittee may not cease mining and reclamation operations for a period of thirty (30) days or more unless the Secretary finds in writing that all the following requirements have been fully satisfied:

14.11.a.1. The site is in frill compliance with all standards of the program and permit, including but not limited to contemporaneous reclamation, no outstanding violations or penalties exist, and adequate pictorial and narrative description of site conditions to date has been placed in the file;

14.11.a.2. Where the permit involves the extraction of coal, significant coal reserves for the mine remain;

14.11.a.3. All disturbed acreage is bonded in accordance with section 11 and 12 of the Act and section 11 of this rule;

14.11.a.4. All required and necessary backfilling, regrading, revegetation, environmental monitoring, and water treatment activities will continue on the mine site, and adequate provisions for other required and necessary maintenance work for the time period for which the application to cease operations has been made;

14.11.a.5 The site must be adequately secured to guard against hazards to the public;

14.11.a.6. A finding based on a detailed showing by the permittee that the cessation is necessary because of market conditions,

14.11.a.7. A color coded mine/progress map accurately depicting the extent and location of all disturbed area, the remaining undisturbed area, and the remaining coal reserves, if any, on the permit at the time of the request. The mine/progress map shall contain a legend which lists the respective acreages and/or tonnages for each of the above-described categories;

14.11.a.8 Each request for inactive status shall be submitted on forms prescribed by the Secretary and shall contain a sworn statement as follows: "The information contained in this application is true and correct to the best of my knowledge and belief." Such statement shall be signed by an accountable official of the applicant and shall be notarized; and

14.11.a.9. Inactive status shall not relieve the operator of any responsibility for complying with the Act, this rule, or the terms and conditions of the permit.

14.11.b. The Secretary may grant inactive status for a period not to exceed one-half the permit term if it is determined that the application contains sufficient information to meet all requirements of subdivision 14.11.a of this subsection: Provided, That where the applicant documents in the application that the operations will become inactive for more than thirty (30) days, but will be reactivated on an intermittent and/or irregular basis during the approval period, such operations are not required to reapply for inactive status except at the termination date of the initial term of approval: Provided however, That the Secretary may review the approval of inactive status during its term and require updated information pursuant to subdivision 14.11.a of this subsection, and based upon this or other information, may modify or rescind the approval prior to its initial termination date.

14.11.c. Within thirty (30) days preceding the expiration of the initial time period granted for inactive status, the permittee may request an extension of the approved inactive period, and at that time must submit current information meeting the requirements of subdivision 14.11.a of this subsection. The Secretary shall make the same findings before granting a request for extension that further extensions may be granted on the basis of a showing by the permittee that such extension is necessary and that all the provisions of 14.11.a. are satisfied.

14.11.d. The Secretary may grant inactive status for a period not to exceed ten years for preparation plants or load-out facilities, whether or not they are associated with a surface coal extraction permit. Provided, preparation plants or load outs are maintained in such condition the operations could be resumed within one hundred and eighty (180) days.

14.11.e. The Secretary may grant inactive status for a period not to exceed current permit term plus five years for underground mining operations. Provided, the underground mining operation is maintained in such condition that the operations could be resumed within one hundred and eighty (180) days and openings are protected from unauthorized entry.

14.11.f. The Secretary may grant inactive status for a period not to exceed ten years for coal refuse sites. Provided, the completed lifts of the coal refuse site is regraded (which may include, feclaiming and seeding) and installing drainage control (e.g. diversions etc.); where possible, in accordance with the terms and conditions of the permit.

14.11.g. The Secretary may grant inactive status for a permit for a term longer than those set forth in e. f and g. of this subsection. Provided, however, the permittee shall furnish and maintain bond that is equal to the estimated actual reclamation cost, as determined by the Secretary. Bonding in this manner shall remain in effect until the permittee requests termination of inactive status and request a recalculation of the bond in accordance with section 11 and 12 of the Act and section 11 of this rule. The Secretary shall review the estimated actual reclamation cost at least every two and one half (2/4) years.

14.11.h. The provisions set forth in this subsection shall be applicable to all surface mining and reclamation operations which currently have approved inactive status on the effective date of this rule.

14.12. Variance From Approximate Original Contour Requirements.

14.12.a. Procedures to Obtain a Variance. The Secretary may grant a variance from the requirements for restoring the mined land in steep slope areas to approximate original contour under the following terms and conditions:

14.12.a.1. The permit area is located on steep slopes as defined in subdivision 14.8.a of this rule and the land after reclamation is suitable for industrial, commercial, residential, or public use (including recreational facilities);

14.12.a.2. The alternative postmining land use requirements of subsection 7.3 of this rule are met;

14.12.a.3. All other applicable requirements of the Act and this rule, except for those relating to approximate original contour, are met;

14.12.a.4. All highwalls are completely backfilled in a manner which results in a static safety factor of 1.3;

14.12.a.5. Only spoil not necessary to achieve the postmining land use may be removed from the mine bench;

14.12.a.6. The watershed of the permit and adjacent area will be improved by reducing pollutants, environmental impacts, or flood hazards; provided that, the watershed will be deemed improved only if:

14.12.a.6.A. The amount of total suspended solids or other pollutants discharged to ground or surface water from the permit area will be reduced, so as to improve the public or private uses or the ecology of such water, or flood hazards within the watershed containing the permit area will be reduced by reduction of the peak flow discharge from precipitation events or thaws; and

14.12.a.6.B. The total volume of flow from the proposed permit area, during every season of the year, will not vary in a way that adversely affects the ecology of any surface water or any existing or planned use of surface or ground water.

14.12.a.7. Appropriate Federal, State and local government agencies have an opportunity to review and comment on the proposed postmining land use to determine that the potential use is shown to constitute an equal or better economic or public use;

14.12.a.8. The proposed use is designed and certified by a qualified registered professional engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site; and

14.12.a.9. The surface land owner(s) of the permit area has requested in writing that a variance be granted to achieve the approved alternative postmining land use.

14.13. MSHA Approval. No mining shall occur within five hundred (500) feet of an underground mine not totally abandoned without approval by the Federal Mine Safety and Health Administration.

14.14. Disposal of Excess Spoil.

14.14.a. General.

14.14.a.1. Spoil not required to achieve the approximate original contour shall be transported to and placed on designated disposal sites within the permit area; Provided, however, where environmental benefits will occur, spoil not needed to restore the approximate original contour of the land and reclaim the land within the permit area may, in a manner consistent with the Act, be deposited on abandoned mine lands and/or forfeited mine lands under a reclamation contract pursuant to section 28 of the Act and this rule. It will be the permittees responsibility to obtain the consent of the surface owner for right of entry and to obtain any other permits or approvals as necessary from the appropriate environmental agencies or other agencies;

14.14.a.2. All excess spoil shall be placed in a controlled manner so as to minimize the adverse effects of leachate and surface water runoff from the fill on surface and groundwater;

14.14.a.3. Coal processing wastes and underground development waste shall not be placed in such fills unless the waste is placed in accordance with section 22 of this rule, contains no acid producing or toxic forming materials and is of the proper characteristics so as to assure the design stability of the fill;

14.14.a.4. Any excess spoil disposal in an underground mine shall be done in accordance with a plan approved by the Mine Safety and Health Administration in accordance with design standards subdivision 22.3.s of this rule;

14.14.a.5. Excess spoil that is acid- or toxic-forming or combustible shall be adequately covered with nonacid, nontoxic and noncombustible material, or treated, to control the impact on surface and ground water in accordance with subsections 14.6 and 14.7 of this section, to prevent sustained combustion, and to minimize adverse effects on plant growth and the approved postmining land use;

14.14.a.6. Slope protection shall be provided to minimize surface erosion at the site. All disturbed areas, including diversion channels that are not ripraped or otherwise protected, shall be revegetated upon completion of construction; and

14.14.a.7. The final configuration of the fill shall be suitable for the approved post mining land use.

14.14.b. Certification - Inspections and Reporting. Certification of all excess spoil fills shall be required as follows:

14.14.b.1. The fill and appurtenant structures shall be designed in accordance with professional design standards, which meet the requirements of this subsection, and certified by a registered professional engineer experienced in the design of earth and rock fill embankments;

14.14.b.2. During construction, the fill shall be inspected quarterly for stability by a registered professional engineer experienced in the construction of earth or rock fills or other qualified professional specialist working under the direction of a professional engineer experienced in the construction of earth or rock fills. Regular inspections are also required during placement and compaction of fill materials and during critical construction periods such as foundation preparation, underdrain placement, installation of surface drainage systems, and construction of rock toe buttresses. Within two (2) weeks following completion of the inspections, a report certified by the registered professional engineer shall be submitted to the Secretary. The certified report shall contain a statement that the fill is being constructed and maintained as designed in accordance with the approved plan and this rule. The report will also note any instances of apparent instability, structural weaknesses, and other hazards. The report on the drainage system and protective filters shall include color photographs taken during and after construction, but before the underdrains are covered with excess spoil. Color photographs shall be of sufficient size and number to provide a relative scale and to clearly identify the site. If the underdrains are constructed in phases, each phase must be certified separately. If excess durable rock spoil is placed such that the underdrain system is constructed simultaneously with excess spoil placement by the natural segregation of dumped materials, color photographs of the underdrains must be taken as they are formed. All color photographs shall be of adequate size and number to provide a relative scale and to clearly identify the site. A copy of the certified report shall be maintained at the mine site;

14.14.b.3. After total completion of the fill, a certification form shall be completed and submitted to the Secretary by the registered professional engineer overseeing construction of the fill; and

14.14.b.4. In addition to the requirements of paragraph 14.14.b.2 of this subdivision, certification forms for durable rock fills shall be accompanied by the following:

14.14.b.4.A. A statement attesting that the fill contains no more than twenty-percent (20%) non-durable material;

14.14.b.4.B. A statement attesting that foundation preparation is proceeding in accordance with the design plans;

14.14.b.4.C. A statement that prohibited materials are not being placed, deposited, or disposed of into the fill area; and

14.14.b.4.D. A statement that sediment control measures are constructed and being maintained in accordance with the approved design plans and the terms and conditions of the permit.

14.14.c. location. Excess spoil not required to achieve the approximate original contour on the permit areas may be deposited outside the permit area if the following conditions are met:

14.14.c.1. The excess spoil is deposited on another permit area; or

14.14.c.2. The excess spoil is placed on an abandoned mine land project conducted under the Abandoned Mine Land Program where:

14.14.c.2.A. A reclamation contract is in effect;

14.14.c.2.B. The project will result in improved environmental, aesthetic, or safety conditions; and

14.14.c.2.C. The project is designed and constructed in accordance with the Act and this rule.

14.14.d. Disposal of Excess Spoil on Existing Benches. Spoil material not required to return the area to the approximate original contour may be placed on an existing bench if the following conditions are met:

14.14.d.1. Sufficient foundation investigations and laboratory analysis of foundation materials which include the effects of underground workings below the solid bench, shall be performed. Based on information obtained from such investigations and analysis, the Secretary may require modification of design requirements from the spill. Fills which are proposed on pre-existing benches where the slope of the solid bench exceeds ten percent (10%) toward the outslope shall meet the design requirements of subdivision 14.14.f of this section.

14.14.d.2. All vegetation and organic material shall be removed from the disposal area prior to placement of excess spoil. All topsoil shall be removed and redistributed or stockpiled in accordance with subsection 14.3 of this section. All excess spoil shall be transported and placed only on the solid portion of the bench in a controlled manner in horizontal lifts not exceeding four (4) feet in thickness. The spoil must be compacted or otherwise mechanically stabilized to achieve a static safety factor of 1.3. The area shall be backfilled and graded to achieve the most moderate slope possible which does not exceed the angle of repose. The final graded configuration shall be such that the surface and subsurface drainage is compatible with the natural surroundings and the approved postmining land use. Terraces may be constructed on the outslope if required for stability, control of erosion, or to conserve soil moisture. The grade of the outslopes between terraces shall not be steeper than two (2) horizontal to one (1) vertical (50 percent).

14.14.d.3. No permanent impoundments are allowed on the completed fill. Small depressions may be allowed if they are needed to retain moisture, minimize erosion, create and enhance wildlife habitat, or assist revegetation; and if they are not incompatible with the stability of the fill.

14.14.d.4. If the disposal area contains springs, natural or manmade water courses, or wet weather seeps, the fill design shall include diversions and underdrains as necessary to control erosion, prevent water infiltration into the fill, and ensure stability. Diversions shall comply with the requirements of subdivision 5.3.C and subsection 14.4 of this rule. Underdrains shall be designed and constructed in accordance with paragraph 14.14.e.1 of this rule.

14.14.d.5. Underdrains shall consist of durable rock or pipe, be designed and constructed using current, prudent engineering practices and meet any design criteria established by the Act, this rule, and the terms and conditions of the permit.

14.14.d.6. The existing highwall shall be eliminated to the maximum extent technically practicable.

14.14.d.7. Disposal of excess spoil from an upper actively mined bench to a lower preexisting bench by means of gravity transport may be approved by the Secretary provided that:

14.14.d.7.A. The gravity transport courses are determined on a site-specific basis by the operator as part of the permit application and approved by the Secretary to minimize hazards to health and safety and to ensure that damage will be minimized between the benches, outside the set course, and downslope of the lower bench should excess spoil accidentally move;

14.14.d.7.B. All gravity transported excess spoil, including that excess spoil immediately below the gravity transport courses and any pre-existing spoil that is disturbed, is rehandled and placed in horizontal lifts in a controlled manner, concurrently compacted as necessary to ensure mass stability and to prevent mass movement, and graded to allow surface and subsurface drainage to be compatible with the natural surroundings and to ensure a minimum long-term static safety factor of 1.3. Excess spoil on the bench prior to the current mining operation that is not disturbed need not be rehandled except where necessary to ensure stability of the fill;

14.14.d.7.C. A safety berm is constructed on the solid portion of the lower bench prior to gravity transport of the excess spoil. Where there is insufficient material on the lower bench to construct a safety berm, only that amount of excess spoil necessary for the construction of the berm may be gravity transported to the lower bench prior to construction of the berm; and

14.14.d.7.D. Excess spoil shall not be allowed on the downslope below the upper bench except on designated gravity transport courses properly prepared in accordance with subsection 14.3 of this section. Upon completion of the fill, no excess spoil shall be allowed to remain on the designated gravity transport course between the two benches and each transport course shall be reclaimed in accordance with the requirements of the Act, this rule, and the approved permit.

14.14.e. Valley Fills. Where the excess spoil disposal site is located in a valley, the following criteria shall be met:

14.14.e.1. If the fill area contains springs, natural water courses, or wet weather seeps, lateral underdrains shall be constructed from the wet areas to the rock core in such a manner that infiltration and entrapment of water within the fill will be prevented. Underdrains shall consist of durable rock or pipe, be designed and constructed using current, prudent engineering practices which will meet any design criteria established by the Secretary. The underdrain system and the rock core shall be designed to carry the anticipated seepage of water due to rainfall away from the excess spoil fill and from seeps and springs in the foundation of the disposal area and shall be protected from piping and contamination by an adequate filter. Rock underdrains shall be constructed of durable, nonacid, nontoxic-forming rock (e.g., natural sand and gravel, sandstone, limestone, or other durable rock) that does not slake in water or degrade to soil material, and which is free of coal, clay or other nondurable material. Perforated pipe underdrains shall be corrosion resistant and shall have characteristics consistent with the long-term life of the fill.

14.14.e.2. The fill shall be designed to assure a long-term static safety factor of 1.5 or greater.

14.14.e.3. The outer slope or face of the valley fill shall be no steeper than two (2) horizontal to one (1) vertical with terraces constructed at a maximum of each fifty (50) feet vertical rise above the toe of the fill. The bench width of each terrace shall be no less than twenty (20) feet with a three (3) to five (5) percent slope toward the face and a one (1) percent slope toward the rock core located near the center of the valley fill.

14.14.e.4. A rock core chimney drain may be utilized for fills that will come to the level of the ridge line with no natural drainage area above the fill. A rock core chimney drain may also be used for fills that do not come to the ridge line provided that the fill does not contain more than two hundred and fifty thousand (250,000) cubic yards of material unless located in an area where the valley floor is always above the local water table. Surface water runoff from areas above and adjacent to the fill shall be diverted into properly designed and constructed stabilized diversion channels which have been designed using best current technology to safely pass the peak runoff from a 100 year, 24-hour precipitation event. The channel shall be designed and constructed to ensure stability of the fill, control erosion, and minimize water infiltration into the fill.

14.14.e.5. The central rock core or "chimney drain" shall lie in the apex of the valley and extends throughout the depth and length of the fill. The rock core shall be designed and constructed in accordance with the following criteria:

14.14.e.5.A. The rock core shall consist of durable non-acid producing or toxic forming rock of a minimum average diameter of twelve (12) inches with no more than ten (10) percent of the core material consisting of fines, and which is free of coal, clay or other non-durable material.

14.14.e.5.B. The minimum width of the rock core shall be sixteen feet, and shall be protected by a filter system to ensure proper long-term frinctioning which is designed and constructed using current, prudent engineering practices. If no filter is designed for the underdrains, a rock core of sufficient capacity shall be provided to allow for partial plugging of the drain and/or rock core.

14.14.e.5.C. The core shall be constructed progressively and concurrently with each lift of the valley fill.

14.14.e.5.D. The finished surface of the rock core shall form a trapezoidal channel capable of permitting the peak runoff of a one-hundred (100) year twenty-four (24) hour precipitation event.

14.14.e.6. Where valley fills are designed for construction without a rock core, an underdrain shall be used. The underdrain shall be designed and constructed in accordance with standards set forth in paragraph 14.4.e.1 of this subdivision. Surface runoff from above and across the surface of the fill shall be carried through a surface diversion system capable of handling the peak runoff from a one-hundred (100) year twenty-four (24) hour precipitation event.

14.14.e.7. Sufficient foundation investigations and laboratory analysis of foundation materials which include the effects of underground workings, shall be performed in order to develop the necessary plans, design specifications, and standards set forth in the approved permit. Based on information obtained from such investigations and analysis, the Secretary may require modification of the design requirements of the fill.

14.14.e.8. Areas upon which a valley fill is to be constructed shall first be progressively cleared of all trees, brush, shrubs, and other organic material which is above ground level; provided that, in critical foundation areas, including, but not limited to, the toe of the fill, seepage or underdrain areas, and downstream portions of the fill that provide a resisting force against massive slope failure, all organic material both above and below the ground surface must be removed. This material shall be disposed of outside the fill area. No more than three (3) acres, excluding roadways, shall be cleared until the first lift of the valley fill is completed.

14.14.e.9. The valley fill shall be constructed in lifts not exceeding four (4) feet in thickness beginning at the toe of the fill. Where fills are designed and constructed using lifts exceeding four (4) feet in thickness, the design plans and specifications shall specify the thickness of the lifts. The operator shall demonstrate how and the engineer shall certify that such thickness will insure stability and meet all safety and environmental protection standards.

14.14.e.10. During and after construction, grading may drain surface water away from the outslope of the fill and toward the rock core with a maximum slope of three percent (3%). A drainage pocket shall be maintained at the head of the fill at all times to intercept and direct surface runoff to the rock core. In no case shall this pocket have a potential for impounding more than ten thousand (10,000) cubic feet of water. No other impoundments may be constructed on the fill.

14.14.e.11. Where the toe of the spoil rests on a downslope which is in excess of thirty-six (36) percent, keyway cuts or rock toe buttresses shall be constructed of sufficient size so as to ensure stability of the fill as determined by stability analysis.

14.14.f Side Hill Fills.

14.14.f.1. Side hill fills shall be constructed on the most stable and moderate slopes available with the natural downslope at the toe of the fill not to exceed thirty-six (36) percent. Where possible, the toe of the fill shall rest on or above a natural terrace, bench or berm in a manner which will provide additional stability and prevent mass movement.

14.14.f.2. Each design shall be based on the results of sufficient geotechnical investigation of the construction site. The investigations shall include such factors as geologic conditions, soil characteristics, depth of bedrock, springs, seeps and groundwater flow, and a description of materials to be placed in the fill.

14.14.f.3. The design and construction of all side hill fills must be certified by a registered professional engineer.

14.14.f.4. If the fill area contains springs, natural water courses or wet weather seeps, lateral drains shall be constructed from the wet areas in the same manner as set forth in paragraph 14.14.e. 1 of this rule.

14.14.f.5. All areas upon which the fill is to be constructed shall be progressively cleared of all trees, brush, shrubs, and other organic material which is above ground level; provided that, in critical foundation areas, including, but not limited to, the toe of the fill, seepage or underdrain areas, and downstream portions of the fill that provide a resisting force against massive slope failure, all organic material both above and below the ground surface must be removed. This material shall be disposed of outside the fill area.

14.14.f.6. The fill shall be constructed in concurrently compacted lifts not exceeding four (4) feet in thickness.

14.14.f.7. The fill shall be designed and constructed to assure a static safety factor of at least 1.5.

14.14.f.8. The outer slope or face of the fill shall be no steeper than two (2) horizontal to one (1) vertical. Terraces shall be constructed on the face of the fill at each fifty (50) feet vertical rise above the toe of the fill. The terraces shall be a minimum of twenty (20) feet wide and shall slope three (3) to five (5) percent toward the face with a lateral slope of one (1) percent to a discharge channel capable of passing a one hundred (100) year twenty-four (24) hour precipitation event.

14.14.f.9. Surface water runoff from the fill and from surrounding areas shall be diverted away from the fill and into stabilized channels designed to pass safely the runoff from a one-hundred (100) year, twenty-four (24) hour precipitation event.

14.14.f.10. No permanent impoundments may be constructed on the completed fill except that small depressions may be allowed if they are needed to retain moisture, minimize erosion, create and enhance wildlife habitat, or assist revegetation; and if they are not incompatible with the stability of the fill.

14.14.g. Durable Rock Fills.

14.14.g.1. Fills proposed after January 1, 2004, the Secretary may only approve the design, construction, and use of a single lift fill with an erosion protection zone or a durable rock fill designed to be reclaimed from the toe upward, both consisting of at least eighty (80) percent durable rock if it can be determined, based on information provided by the operator, that the following conditions exist:

14.14.g.1.A. Examination of core borings and the geologic column show that the overburden consists of durable sandstone, limestone, or other durable material in sufficient thickness and amounts to generate spoil material that is eighty (80) percent or greater durable rock. Where the fill will contain non-cemented clay shale, clay spoil, or other nondurable material, such material must be mixed with the durable rock in a controlled manner such that no more than twenty (20) percent of the fill volume is not durable rock. Tests shall be performed by a Registered Professional Engineer and approved by the Secretary to demonstrate that no more than twenty (20) percent of the fill volume is not durable rock.

14.14.g.1.B. The durable rock shall not consist of acid-producing or toxic-forming material, will not slake in water, and will not degrade to soil material. For purposes of this paragraph only, soil material means material of which at least fifty (50) percent is finer than 0.074 mm, which exhibits plasticity, and which meets the criteria for group symbol ML, CL, OL, MH, CH, or OH, as determined by the Unified Soil Classification System (ASTM D-2487).

14.14.g.1.C. The toe of the fill will rest on natural slopes no steeper than twenty (20) percent.

14.14.g.2. Design Specifications and Requirements of Single Lift Fills with an Erosion Protection Zone. In addition to the requirements of this subdivision, the design, specifications and requirements of single lift fills with an erosion protection zone shall be in accordance with the following:

14.14.g.2.A. Erosion Protection Zone. The erosion protection zone is a designed structure constructed to provide energy dissipation to minimize erosion vulnerability and may extend beyond the designed toe of the fill.

14.14.g.2.A.1. The effective length of the erosion protection zone shall be at least one half the height of the fill measured to the target fill elevation or fill design elevation as defined in the approximate original contour procedures and shall be designed to provide a continuous underdrain extension from the fill through and beneath the erosion protection zone.

14.14.g.2.A.2. The height of the erosion protection zone shall be sufficient to accommodate designed flow from the underdrain of the fill and shall comply with 14.14.e.1. of this rule.

14.14.g.2.A.3. The erosion protection zone shall be constructed of durable rock as defined in 14.14.g.1. originating from a permit area and shall be of sufficient gradation to satisfy the underdrain function of the fill.

14.14.g.2.A.4. The outer slope or face of the erosion protection zone shall be no steeper than two (2) horizontal or one (1) vertical (2:1). The top of the erosion protection zone shall slope toward the fill at a three (3) to five (5) percent grade and slope laterally from the center toward the sides at one (1) percent grade to discharge channels capable of passing the peak runoff of a one-hundred (100) year, twenty-four (24) hour precipitation event.

14.14.g.2.A.5. Prior to commencement of single lift construction of the durable rock fill, the erosion protection zone must be seeded and certified by a registered professional engineer as a critical phase of fill construction. The erosion protection zone shall be maintained until completion of reclamation of the fill.

14.14.g.2.A.6. Unless otherwise approved in the reclamation plan, the erosion protection zone shall be removed and the area upon which it was located shall be regarded and revegetated in accordance with the reclamation plan.

14.14.g.2.B. Single Lift Construction Requirements.

14.14.g.2.B.1 Excess spoil disposal shall commence at the head of the hollow and proceed downstream to the final toe. Unless required for construction of the underdrain, there shall be no material placed in the fill from the sides of the valley more than 300 feet ahead of the advancing toe. Exceptions from side placement of material limits may be approved by the Secretary if requested and the applicant can demonstrate through sound engineering that it is necessary to facilitate access to isolated coal seams, the head of the hollow or otherwise facilitates fill stability, erosion, or drainage control.

14.14.g.2.B.2. During construction, the fill shall be designed and maintained in such a manner as to prevent water from discharging over the face of the fill.

14.14.g.2.B.2.(a) The top of the fill shall be configured to prevent water from discharging over the face of the fill and to direct water to the sides of the fill.

14.14.g.2.B.2.(b) Water discharging along the edges of the fill shall be conveyed in such a manner to minimize erosion along the edges of the fill.

14.14.g.2.B.3. Reclamation of the fill shall be initiated from the top of the fill and progress to the toe with concurrent construction of terraces and permanent drainage.

14.14.g.3. Design Specifications and Requirements for Durable Rock fills designed to be reclaimed from the toe upward. Durable rock fills that are designed to be reclaimed from the toe upward shall comply with all requirements of this subdivision including the following:

14.14.g.3.A. Transportation of Material to toe of fill. The method of transporting material to the toe of the fill shall be specified in the application and shall include a plan for inclement weather dumping. The means of transporting material to the toe may be by any method authorized by the Act and this rule and is not limited to the use of roads.

14.14.g.3.A.1. Constructed roads shall be graded and sloped in such a manner that water does not discharge over the face. Sumps shall be constructed along the road in switchback areas and shall be located at least 15 feet from the outslope.

14.14.g.3.A.2. The constructed road shall be in compliance with all applicable State and Federal safety requirements. The design criteria to comply with all applicable State and Federal safety requirements shall be included in the permit.

14.14.g.3.B. Once the necessary volume of material has been transported to the toe of the fill, face construction and installation of terraces and permanent drainage shall commence. The face construction and reclamation of the fill shall be from the bottom up with progressive construction of terraces and permanent drainage in dumping increments not to exceed 100 feet.

14.14.g.4 The fill shall be designed based on the results of sufficient geotechnical investigations of the construction site. The investigation shall include such factors as geologic conditions, soil characteristics, depth to bedrock, location of springs, seeps and groundwater flow, potential effects of subsidence and a description of materials to be placed in rock cores and drains.

14.14.g.5. The design and construction of all durable rock fills must be certified by a registered professional engineer experienced in design and construction of earth and rock embankments.

14.14.g.6. The foundation of the fill and the fill shall be designed to assure a long-term static safety factor of 1.5 or greater, and meet an earthquake safety factor of 1.1.

14.14.g.7. The outer slope or face of the fill shall be no steeper than two (2) horizontal or one (1) vertical (2:1). Terraces shall be constructed on the fill at a maximum of every fifty (50) feet in vertical rise above the toe of the fill. The terraces shall be no less than twenty (20) feet in width and slope toward the fill at a three (3) to five (5) percent grade and slope laterally at one (1) percent grade to discharge channels capable of passing the peak runoff for a one-hundred(100) year twenty-four (24) hour precipitation event.

14.14.g.8. All areas upon which the fill is to be placed shall first be progressively cleared of all trees, brush, shrubs and other organic material which is above ground level; provided that, in critical foundation areas, including, but not limited to, the toe of the fill, seepage or underdrain areas, and downstream portions of the fill that provide a resisting force against massive slope failure, all organic material both above and below the ground surface must be removed. This material shall be disposed of outside the fill area.

14.14.g.9. The underdrain system may be constructed simultaneously with excess spoil placement by the natural segregation of dumped materials; provided, that the resulting underdrain system shall be capable of carrying anticipated seepage of water due to rainfall away from the excess spoil fill and from seeps and springs in the foundation of the disposal area and the other requirements for drainage control shall be met. If the underdrain system is not constructed by natural segregation of dumped material, it shall be designed and constructed in accordance with paragraph 14.4.e. 1 of this subdivision.

14.14.g.10. Surface water runoff from areas above and adjacent to the fill shall be diverted into properly designed and constructed stabilized diversion channels which have been designed using best current technlogy to safely pass the peak runoff from a 100 year, 24-hour precipitation event. The channel shall be designed and constructed to ensure stability of the fill, control erosion, and minimize water infiltration into the fill.

14.14.g.11. The grade of the top surface of the completed fill shall not exceed five (5) percent and shall slope toward the drainage channel.

14.14.g.12. No permanent impoundments may be constructed on the completed fill except that small depressions may be allowed if they are needed to retain moisture, minimize erosion, create and enhance wildlife habitat, or assist revegetation; and if they are not incompatible with the stability of the fill.

14.14.g.13. Notwithstanding any other provisions of this rule or the terms and conditions of a permit to the contrary, additional storage capacity or sediment control measures may be required through permit revision if sediment removal performance of the structure(s) during operation and construction of the fill is found to be deficient to the point that significant non-compliance with applicable effluent limits or water quality standards results.

14.14.g.14. The following materials are hereby prohibited from being placed, deposited, or disposed of into a durable rock fill or durable rock fill area:

14.14.g.14.A. Surface soils, provided that such soils used to establish vegetation on the surface of the fill are not prohibited; provided, however, that such soils may be placed in the fill if accounted for in design and construction as nondurable material and such soils are not deposited in critical zones of the fill;

14.14.g.14.B. Mud, silt, or sediment cleaned or removed from mining pits, roadways, sediment control structures and/or other areas of the operation;

14.14.g.14.C. Vegetative or organic materials cleared or grubbed from the permit or other areas;

14.14.g.14.D. Non-coal wastes; and

14.14.g.14.E. Coal refuse.

14.15. Contemporaneous Reclamation Standards.

14.15.a. General. This subsection establishes general performance standards relating to backfilling, regrading, and stabilization for all surface mining operations within the State. The mining and reclamation plan for each operation shall reflect these standards in describing how the mining operations and reclamation operations are to be coordinated to minimize total land disturbance and to keep reclamation operations as contemporaneous as possible with the advance of mining operations. Particular emphasis must be given to (1) limiting the size and number of excess spoil disposal fills; (2) locating and configuring excess spoil disposal fills in such a way so as to minimize land disturbance; (3) controlled handling and placement of all spoil material; and (4) the timing and sequence of backfilling and regrading operations which will minimize the ratio of disturbed and unreclaimed area versus undisturbed and reclaimed area. All surface mining operations shall be conducted in such a manner so as to comply with the approved reclamation plan and the standards set forth in this subsection.

14.15.a.1. Spoil returned to the mined-out area shall be backfilled and graded to the approximate original contour unless a waiver is granted pursuant to W. Va. Code § 22-3-13 and this rule with all highwalls eliminated. Backfilling and grading of all disturbed areas will be done in a manner which eliminates spoil piles and depressions, returns all slopes to the angle of repose or lesser slopes so as to achieve a static safety factor of 1.3 or greater, minimizes erosion and water pollution both off and on the site, supports the postmining land use, and covers all coal seams, acid-producing or toxic-forming materials, and combustible material with nontoxic and non-combustible material.

14.15.a.2. All permit applications shall incorporate into the required mining and reclamation plan a detailed site specific description of the timing, sequence, and areal extent of each progressive phase of the mining and reclamation operation which reflects how the mining operations and the reclamation operations will be coordinated so as to minimize the amount of disturbed, unreclaimed area, minimize surface water runoff, comply with the storm water runoff plan and to quickly establish and maintain a specified ratio of disturbed versus reclaimed area throughout the life of the operation.

14.15.b. Time, Distance, and Acreage Limits. Grrading, backfilling, and water management practices shall be kept current as follows:

14.15.b.1. Where the operation consists of single seam contour mining only (no augering) on steep or non-steep slopes-and grading and backfilling shall follow the mineral removal by a period not to exceed sixty (60) days or a distance of one thousand five hundred (1,500) linear feet. Provided the provisions of 14.15.d. are satisfied.

14.15.b.2. Where the operation consists of single seam contour mining and augering or highwall mechanical mining on steep or non-steep slopes, disturbed and unreclaimed acreage including all excess spoil disposal sites shall not exceed fifty (50) acres, and the augering or highwall mechanical mining shall fol10w the advance of the mining pit by a period not to exceed sixty (60) days. The grading and backfilling shall follow the augering or highwall mechanical mining by a period of not more than one hundred and eighty (180) days or a distance of not more than one thousand five hundred (1,500) linear feet; provided. That in no event shall more than three thousand (3,000) linear feet of pit be exposed at any time.

14.15.b.3. Where the operation consists of augering or highwall mechanical mining only on steep or non-steep slopes, disturbed and unreclaimed acreage shall not exceed thirty-five (35) acres, and the grading and backfilling shall follow the augering or highwall mechanical mining by a period not to exceed sixty (60) days or a distance of not more than one thousand five hunderd (1,500) linear feet.

14.15.b.4. Where the operation consists of area mining only, on slopes which are on the average less than 20 degrees (20 ) in steepness, disturbed and unreclaimed acreage including excess spoil disposal sites shall not exceed one hundred (100) acres or fifty (50) percent of the permit area, whichever is less, and backfilling and grading shall not be more than two spoil ridges or mining cuts behind the pit being worked. For single seam mining operations the maximum linear feet of open pit shall not exceed three thousand feet at any time and backfilling and regrading shall follow mineral removal within one hundred and eighty days (180). For multiple seam operations utilizing the stair stepped approach. The initial pit will be limited to no more than three thousand linear feet with the subsequent cut of the next underlying seam occurring within one hundred and eighty days (180). Backfilling and regrading shall follow mineral removal of the lowest seam to be mined one hundred and eighty days (180).

14.15.b.5. Where the operation consists of multiple seam mining along the topographic contour on steep or non-steep slopes, and where the coal seams running through the mountain, hill, or ridge are only partially removed, disturbed and unreclaimed acreage including excess spoil disposal sites, shall not exceed two hundred (200) acres or fifty (50) percent of the permit area, whichever is less. Augering and/or highwall mechanical mining which becomes a part of these types of operations shall be incorporated into the operation in such a fashion so as to meet the subject acreage limitations. Regardless of the allowable limits contained in this section, any disturbed area other than those specified in subdivision 14.15.c of this rule must complete backfilling and rough grading within the following:

For single seam mining operations the maximum linear feet of open pit shall not exceed three thousand feet at any time and backfilling and regrading shall follow mineral removal within one hundred and eighty days (180). For multiple seam operations utilizing the stair stepped approach. The initial pit will be limited to no more than three thousand linear feet with the subsequent cut of the next underlying seam occurring within one hundred and eighty days (180). Backfilling and regrading shall follow mineral removal of the lowest seam to be mined one hundred and eighty days (180).

14.15.b.6. Where the mining operation consists of removing entire coal seam(s) running through the upper fraction of a mountain, hill or ridge, or removing entire coal seam(s), running through the upper fraction of a mountain, hill, or ridge in conjunction with partially removing lower seam(s) along the topographic contour, the following contemporaneous reclamation requirements apply:

14.15.b.6.A. Disturbed and unreclaimed acreage, including excess spoil disposal sites, shall not exceed thirty-five (35) percent of the total permit acreage, or three hundred (300) acres, whichever is less. Provided; however, the Secretary may grant a variance not to exceed five hundred (500) acres on operations which consist of multiple spreads of equipment. Where operations contemplated under this section are approved with incidental contour mining, which may include augering or highwall mining, the acreage must be calculated in the allowable disturbance authorized in this paragraph. The incidental contour pit length cannot exceed 3000 feet and backfilling/grading shall follow mineral removal within 180 days. Regardless of the allowable limits contained in section fourteen of this rule, any disturbed area other than those specified in subdivision 14.15.C. of this rule must complete backfilling and rough grading within the following;

Operations required to comply with AOC+ guidelines or approved specific post-mining land use requirements must complete backfilling and rough grading within 270 days of final mineral removal unless a waiver is otherwise granted by the Secretary pursuant to this section.

The ratio of disturbed and unreclaimed acreage versus reclaimed or undisturbed acreage shall be shown on progress maps submitted annually or as otherwise required by the Secretary. The subject ratios shall be verified by the Secretary to be consistent with the mining and reclamation plan on the next regular inspection following receipt of the progress map.

14.15.b.6.B. On operations which utilize draglines with a bucket capacity of greater than forty-five (45) cubic yards, the requirements of subparagraph 14.15.b.6.A of this paragraph is waived and the following contemporaneous reclamation requirements apply:

14.15.b.6.B.1. Pre-stripping or benching operations cannot exceed four hundred(400) acres for any single permit and cannot precede dragline operations more than twenty-four (24) months unless otherwise approved by the Secretary

14.15.b.6.B.2. Rough backfilling and regrading shall be completed within one hundred (180) days following coal removal and not more than four (4) spoil ridges behind the pit being worked, the spoil from the active pit constituting the first spoil ridge;

14.15.b.6.B.3. The ratio of disturbed acreage versus reclaimed or undisturbed acreage shall be shown on progress maps submitted annually or as otherwise required by the Secretary.

14.15.c. Reclaimed Area. For purposes of this subsection, reclaimed acreage shall be that portion of the permit area which has at a minimum been fully regraded and stabilized in accordance with the reclamation plan, meets Phase I standards, and seeding has occurred. The following shall not be included in the calculation of disturbed area:

14.15.c.1. Semi-permanent ancillary facilities (haulroads, drainage control systems, parking areas, maintenance, storage and supply areas, etc.), and areas cleared but not grubbed, provided, that such areas have appropriate drainage control systems in place; Provided, That with the exception of permanent haulroads, drainage control systems and material handling facilities (including but are not limited to such facilities as preparation plants, fixed coal stockpiles/transfer areas and commercial forestry topsoil areas) the total acreage of all other semi-permanent ancillary facilities cannot exceed ten percent of the total permit acreage.

14.15.c.2. Areas within the confines of excess spoil disposal fills which are under construction provided the fill is being constructed in the "conventional" method, i.e., completed from the toe up, or those fills which are being constructed progressively in lifts from the toe up or are being progressively completed from the toe up by constructing benches and appropriate drainage control structures (ditches, flumes, channels, etc.) from the toe up as soon as the first two lifts are in and are seeded.

14.15.c.3. Areas containing 30 aggregate acres or less which have been cleared and grubbed and have the appropriate drainage control (temporary or permanent) installed and certified, and which will become a part of the operational area within six months or less. Failure to incorporate these areas into the operational area within six months may result in the loss of this exemption; The Secretary may consider larger acreage for clearing operations where it can be demonstrated that it is necessary to comply with applicable Endangered Species Act requirements.

14.15.c.4. Areas which have been backfilled and graded with material placed in a stable, controlled manner which will not subsequently be moved to final grade, mechanically stabilized, and had appropriate drainage control structures installed in accordance with the approved mining and reclamation plans. The sediment control structures need not be certified to meet this requirement if the mining plan is such that it would make this unfeasible.

14.15.d. Excess Spoil Disposal Fills. All fills must be constructed contemporaneously and contiguously with that segment of the operations that contains the material that is designated to be placed in the fill. In addition to all other standards in effect, the following shall apply to excess spoil disposal fills.

14.15.d.1. All fills must be planned for continuous material placement until designed capacity is reached and cannot have a period of inactivity that exceeds 180 days unless otherwise approved by the secretary.

14.15.d.2. The areas where contour mining is proposed within the confines of the fill are not eligible for the exemption contained in 14.15.c.2.

14.15.e. The Secretary may consider contemporaneous reclamation plans on multiple permitted areas with contiguous areas of disturbance to ensure that contemporaneous reclamation is practiced on a total operational basis. In order to establish a method of orderly transition between operations, plans submitted on multiple permitted areas cannot add allowable disturbed areas in such a manner as to result in increased disturbed areas on a single operation unless a variance is obtained pursuant to subdivision 14.15.g.

14.15.f. Revegetation. Revegetation shall be kept current by establishing a temporary or permanent vegetative cover on regraded areas by the end of the first growing season and a permanent cover by the end of the second growing season.

14.15.g. Variance - Permit Applications. The Secretary may grant approval of a mining and reclamation plan for a permit which seeks a variance to one or more of the standards set forth in this subsection, if on the basis of site specific conditions and sound scientific and/or engineering data, the applicant can demonstrate that compliance with one or more of these standards is not technologically or economically feasible and demonstrate that the variance being sought will comply with section 5.6 of this rule. Furthermore, the amount of bond for the operation shall be based on the maximum amount per acre specified in WV Code § 22-3-12(b) (1) and shall remain in effect until the permittee requests termination of variance and request a recalculation of the bond in accordance with section 11 and 12 of the Act and section 11 of this rule . The Secretary shall make written findings in accordance with the applicable provisions of section 3.32 of this rule when granting or denying a request for variance under this section.

14.15.g.1. A description of the specific standard(s) for which a variance is sought.

14.15.g.2. A statement with supporting documentation and scientific and/or engineering data which describes how site specific conditions make compliance with the standard(s) technologically or economically infeasible, including a discussion and feasibility analysis of alternatives that were considered.

14.15.g.3. Specific alternative standards of the same type and specificity as the standards for which a variance is sought.

14.15.g.4. A sequential plan showing all phases of the proposed mining and reclamation operation to include specific time frames for completing each phase. The plan must at a minimum describe at what point reclamation operations will commence and how such operations will advance in relation to the mining operations throughout the remainder of operational sequence.

14.15.h. Variance - Existing and Ongoing Operations. The Secretary may grant approval of a request for a variance to the standards set forth in this subsection for existing and/or ongoing surface mining operations only after all reasonable steps have been taken by the operator to minimize land disturbance and if the operator demonstrates, through an on-site evaluation and sound scientific and/or engineering data, that compliance with these standards are technologically or economically infeasible. The variance request will be in writing and shall contain the elements set forth in subdivision 14.5.g. of this subsection.

14.15.i. Notwithstanding any provision of this rule to the contrary, revision of the mining and reclamation plan contained in a permit is required prior to any change in mining methods which would substantially affect the standards contained in this section.

14.15.j. Reclamation Equipment. Operable regrading equipment shall be kept on the permit area until satisfactory completion of grading of all disturbed area unless otherwise approved.

14.15.k. Exemptions. Backfilling and grading may be postponed on a permit where surface mining operations and underground mining operations are proposed on the same area; provided that all requirements set forth in paragraph 16, subsection (b), section 13 of the Act are met. Where the underground mining permit is terminated or revoked, backfilling, regrading, and reclamation shall commence and proceed in accordance with the provisions of subdivision 15.2.b of this subsection.

14.15.l. Grading Outer Spoil. All outer spoil shall be graded so as to blend into the adjoining undisturbed lands. All spoil must be placed in such a manner that the final surface of all slopes is mechanically stabilized using tracked equipment or other equivalent means.

14.15.m. Erosion Control. All disturbed areas shall be regraded and stabilized in a manner which effectively controls erosion.

14.15.n. Regraded Drainage Control. Drainage control on regraded areas shall prevent excessive erosion or additional contributions of suspended solids to the receiving stream, ensure safety and conserve soil moisture. Drainage control measures may include, but are not limited to, constructed drainways, flumes and riprap channels, tracking in, small depressions or other devices.

14.15.o. Coal Processing Waste Disposal. Where approval for placing coal processing waste in the backfill has been granted, such placement shall be done in accordance with the compaction requirements of subdivision 22.3.p. of this subsection. The final graded slope shall not exceed either the angle of repose or such other lesser slope as is necessary to achieve a minimum long-term static safety factor of 1.3 and to prevent slides.

14.15.o.1 The coal processing waste shall be placed in a controlled manner so as to:

14.15.o.1.A Minimize adverse effects of leachate and surface-water runoff on surface and ground water quality and quantity;

14.15.o.1.B. Ensure mass stability and prevent mass movement during and after construction;

14.15.o.1.C. Ensure that the final disposal facility is suitable for reclamation and revegetation compatible with the natural surroundings and the approved postmining land use;

14.15.o.1.D. Not create a public hazard; and

14.15.o.1.E. Prevent combustion.

14.15.o.2. The coal processing waste will not be placed in the backfill unless it has been demonstrated to the satisfaction of the Secretary that:

14.15.o.2.A. the coal processing waste to be placed based upon laboratory testing to be nontoxic and/or non-acid producing; or

14.15.o.2.B. an adequate handling plan including alkaline additives has been developed and the material after alkaline addition is non-toxic and/or non-acid producing.

The disposal facility shall be designed using current, prudent engineering practices and shall meet any design criteria established by the Secretary. A qualified registered professional engineer, experienced in the design of similar earth and waste structures, shall certify the design of the disposal facility. If any examination or inspection discloses that a potential hazard exists, the Secretary shall be informed promptly of the finding and of the emergency procedures formulated for public protection and remedial action. If adequate procedures cannot be formulated or implemented, the Secretary shall be notified immediately, and the Secretary will then notify the appropriate agencies that other emergency procedures are required to protect the public.

14.16. Control of Fugitive Dust. All exposed surface areas shall be protected and stabilized to effectively control erosion and air pollution attendant to erosion and comply with 45 CSR 17.

14.17. Utility Installations. All surface mining operations shall be conducted in a manner which minimizes damage, destruction, or disruption of services provided by oil, gas, and water wells; oil, gas, and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under, or through the permit area, unless otherwise approved by the owner of those facilities and the Secretary.

14.18. Disposal of Noncoal Mine Wastes.

14.18.a. Noncoal mine wastes, except coal refuse and/or timber from clearing and grubbing operations, includes, but is not limited to grease, lubricants, paints, flammable liquids, garbage, abandoned mining machinery, lumber and other combustible materials generated during mining activities shall be placed and stored in a controlled manner in a designated portion of the permit area. Placement and storage shall ensure that leachate and surface runoff do not degrade surface or ground water, that fires are prevented, and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings.

14.18.b. Final disposal of noncoal mine waste within the permit area will be in accordance with a permit issued pursuant to W. Va. Code §22-15 et seq. (Solid Waste Management Act).

14.18.c. At no time shall any noncoal mine waste be deposited in a refuse pile or impounding structure, nor shall an excavation for a noncoal mine waste disposal site be located within eight (8) feet of any coal outcrop or coal storage area.

W. Va. Code R. § 38-2-14