Current through Register Vol. XLI, No. 24, June 14, 2024
Section 38-2-17 - Small Operator Assistance Program17.1. General. This section comprises the Small Operator Assistance Program (SOAP) and governs the procedures for providing assistance to qualified small operators for the determination of the probable Hydrologic consequences of mining and reclamation required by the Act and this rule, including the engineering analyses and designs; the development of cross-section maps and plans; the geologic drilling and statement of results of test borings and core samplings; preblast surveys; the collection of site-specific resource information and production of protection and enhancement plans for fish and wildlife habitats and other environmental values; and the collection of archaeological and historical information; and any other archaeological and historical information required by the federal department of the interior and the preparation of plans that may be necessitated thereby; and the Secretary shall provide or assume the cost of training coal operators that meet the qualifications concerning the preparation of permit applications and compliance with the regulatory program, and shall ensure that qualified coal operators are aware of the assistance available under this section. The Secretary shall establish a formula for allocating funds to provide services for eligible small operators if available funds are less than those required to provide the services pursuant to this section.
The Secretary will develop a procedure for the interstate coordination and exchange of information collected under the Small Operators Assistance Program.
Data collected under this program shall be made available to all interested persons in accordance with subsection 18.4 of this rule, except information related to the chemical and physical properties of coal; provided, that information which pertains only to the analysis of the chemical and physical properties of coal, except information regarding such mineral or elemental content which is potentially toxic to the environment, shall be kept confidential.
17.2. Program Services. Where a qualified small operator requests in writing assistance, as provided by the Small Operator Assistance Program, the Department of Environmental Protection shall select and pay a qualified laboratory to determine the probable Hydrologic consequences of mining and reclamation operations in the permit and adjacent areas and potentially impacted offsite areas. The probable Hydrologic consequences shall be in accordance with paragraphs (7), (8), (10), (11), (12), (13) and (16) through (19) subsection (a) section 9 of the Act, subdivision 3.22.a of this rule, and subsection 3.23 of this rule.17.3. Eligibility for Assistance. Applicants are eligible for assistance if they: 17.3.a. Intend to apply for a permit pursuant to the Act; and17.3.b. Establish that their probable total attributed annual coal production from all locations during any consecutive twelve (12) month period either during the term of the permit or during the first five (5) years after issuance of the permit, whichever period is shorter, will not exceed three hundred thousand (300,000) tons. Production from the following operations shall be attributed to the applicant:17.3.b.1. The pro rata share, based upon percentage of ownership of applicant, of coal produced by operations in which the applicant owns more than a ten percent (10%) interest;17.3.b.2. The pro rata share, based upon percentage of ownership of applicant, of coal produced in other operations by persons who own more than ten percent (10%) of the applicant's operation;17.3.b.3. All coal produced by operations which are owned by members of the applicant's family and relatives unless there is no direct or indirect business relationship between or among them; and17.3.b.4. All coal produced by operations owned or controlled by the applicant, or by persons who directly or indirectly control the applicant by reason of direction of management.17.3.c. Persons who are prohibited from receiving a permit for any reason, and persons who organize or reorganize a company for the sole purpose of obtaining assistance from SOAP, shall be deemed ineligible.17.4. Request for Assistance. Each applicant requesting assistance shall provide information on forms provided by the Secretary in an application that shall be clear and concise and shall be provided in a format prescribed by the Secretary and/or a format required by the Federal Office of Surface Mining Reclamation and Enforcement. Each application for assistance shall include the following information: 17.4.a. A statement of the operator's intent to file a permit application;17.4.b. The names and addresses of: 17.4.b.1. The permit applicant; and17.4.b.2. The operator if different from the applicant.17.4.c. A schedule of the estimated total production of coal from the proposed permit area and all other locations from which production is attributed to the applicant. The schedule shall include for each location: 17.4.c.1. The operator or company name under which coal is or will be mined;17.4.c.2. The permit number and Mine Safety and Health Administration (MSHA) number;17.4.c.3. The actual coal production during the year preceding the year for which the applicant applies for assistance and production that may be attributed to the applicant; and17.4.c.4. The estimated coal production and any production which may be attributed to the applicant for each year of the proposed permit.17.4.d. A description of:17.4.d.1. The proposed method of coal mining;17.4.d.2. The anticipated starting and termination dates of mining operations;17.4.d.3. The number of acres of land to be affected by the proposed mining operation; and17.4.d.4. A general statement on the probable depth and thickness of the coal resource including a statement of reserves in the permit area and the method by which they were calculated.17.4.e. A U.S. geological Survey topographic map at a scale of 1:24,000 or larger or other topographic map of equivalent detail which clearly shows: 17.4.e.1. The area of land to be affected;17.4.e.2. The location of any existing or proposed test borings; and17.4.e.3. The location and extent of known workings of any underground mines.17.4.f. Copies of documents which show that: 17.4.f.1. The applicant has a legal right to enter and commence mining within the permit area; and17.4.f.2. A legal right of entry has been obtained for the program administrator and laboratory personnel to inspect the lands to be mined and adjacent areas to collect environmental data or to install necessary instruments.17.5. Application Approval and Notice. 17.5.a. The applicant shall be notified in writing if the application requesting assistance has been approved or denied, and if denied, the reasons shall be attached.17.5.b. If application requesting assistance has been approved, then one or more qualified laboratory or contractor will be selected to perform this work. A copy of the contract or other appropriate work order and the final report shall be provided to the applicant.17.5.c. The applicant shall arrange for any necessary right-of-entry for State personnel and the selected laboratory's or contractor's personnel to gain access to data collection and monitoring sites on the proposed permit area and adjacent areas and shall provide written agreements of such to the Secretary prior to entry.17.6. Qualified Laboratories. 17.6.a. General. A qualified laboratory means a designated public agency, private consulting firm, institution, or analytical laboratory that can provide the required determination of a probable Hydrologic consequences or statement of results of test borings or core samplings or other services as specified under the Small Operator Assistance Program and that is approved by the Department of Environmental Protection as a SOAP contractor.17.6.b. Basic Qualifications. To qualify for designation, the laboratory or contractor must demonstrate that it:17.6.b.1. Is staffed with experienced, professional personnel in the field of hydrology, mining engineering, aquatic biology, geology, or chemistry applicable to the work to be performed;17.6.b.2. Is capable of collecting necessary field data and samples;17.6.b.3. Has adequate space for material preparation, cleaning and sterilizing necessary equipment, stationary equipment, storage, and space to accommodate periods of peak work loads;17.6.b.4. Meets the requirements of the Occupational Safety and health Act or the equivalent state safety and health program;17.6.b.5. Has the financial capability and business organization necessary to perform the work required;17.6.b.6. Has analytical, monitoring and measuring equipment capable of meeting the applicable standards and methods contained in the most current edition of the Standard Methods for the Examination of Water and Waste Water; Methods for Chemical Analysis of Water and Wastes; and EPA Manual 600/2-78-054 Field and Laboratory Methods Applicable to Overburden Mine Soils; and17.6.b.7. Has the capability of making Hydrologic field measurements and analytical laboratory determinations by acceptable Hydrologic engineering or analytical methods.17.6.c. The qualified laboratory or contractor shall be capable of performing the determination and statement, and other components of work as described in the work directive given to the contractor by the Secretary which are required components necessary to make a determination of the proposed permit's probable Hydrological consequences. Subcontractors may be used to provide the services required provided their use is defined in the application for designation and prior written approval is granted by the Department of Environmental Protection.17.7. Liability of Operators. 17.7.a. The applicant shall reimburse the Department of Environmental Protection for the cost of the program services performed if the applicant:17.7.a.1. Submits false information on the application;17.7.a.2. Fails to submit a surface mining permit application within one (1) year from the date of receipt of the approved probable Hydrologic consequences report;17.7.a.3. Fails to mine after obtaining a surface mining permit;17.7.a.4. Has an actual and attributed annual production of coal for all locations exceeding three hundred thousand (300,000) tons during the twelve (12) month period immediately following permit issuance; or17.7.a.5. Sells, transfers, or assigns the permit to another person and the transferee's total actual and attributed production exceeds the 300,000 ton annual production limit during any consecutive twelve-(12) month period of the remaining term of the permit. Under this paragraph, the applicant and its successor are jointly and severally obligated to reimburse the Secretary.17.7.b. The Secretary can waive the reimbursement obligation if he finds that the applicant at all times acted in good faith and the applicant submits to the Secretary written statements which sufficiently demonstrate that the applicant has acted in good faith at all times.