W. Va. Code R. § 38-2-3

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 38-2-3 - Permit Application Requirements and Contents

3.1. Applicant Information. All information provided by an applicant in an application for a surface mining permit 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. In addition to the information requirements of section 9 of the Act, each application for a permit shall contain the following information except that submittal of a social security number is at the option of the applicant:

3.1.a. A statement as to whether the applicant is a corporation, partnership, sole proprietorship, association, or other business entity.

3.1.b. The name, address, telephone number and, as applicable, social security number and employer identification number of the:

3.1.b.1. Applicant;

3.1.b.2. Applicant's resident agent; and

3.1.b.3. Person who will pay the abandoned mine land reclamation fee.

3.1.c. List, for each person who owns or controls the applicant under the definition of "owned or controlled" and "owns and controls" in subsection 2.85 of this rule (as applicable):

3.1.c.1. The person's name, address, social security number, and employer identification

3.1.c.2. The person's ownership or control relationship to the applicant, including percentage of ownership and Location in organizational structure;

3.1.c.3. The title of the person's position, date position was assumed, and when submitted under subdivision 3.33.h of this rule, date of departure from the position;

3.1.c.4. Each additional name and identifying number, including employer identification number, federal or state permit number, and, if available, MSHA number with date of issuance, under which the person owns or controls, or previously owned or controlled, a surface coal mining and reclamation operation in the United States within the five (5) years preceding the date of the application; and

3.1.c.5. The application number or other identifier of, and the regulatory authority for, any other pending surface coal mining operation permit application filed by the person in any state in the United States.

3.1.d. List, either in the application or in an electronic database accessible to the agency which has been updated within three months of submittal, for any surface coal mining operation owned or controlled by either the applicant or by any person who owns or controls the applicant under the definition of "owned or controlled" and "owns or controls" in subsection 2.85 of this rule, the operation's:

3.1.d.1. Name, address, identifying numbers, including employer identification number, Federal or State permit number and MSHA number, the date of issuance of the MSHA number, and the regulatory authority; and

3.1.d.2. Ownership or control relationship to the applicant, including percentage of ownership and Location in organizational structure.

3.1.e. The name and address of each legal or equitable owner of record of the surface and mineral property to be mined, each holder of record of any leasehold interest in the property to be mined, and any purchaser of record under a real estate contract for the property to be mined.

3.1.f. The name and address of each owner of record of all property (surface and subsurface) within one hundred (100) feet of any part of the proposed permit area.

3.1.g. The Mine Safety and healthy Administration (MSHA) numbers for all mine-associated structures identified in the permit that require MSHA approval.

3.1.h. A statement of all lands, interest in lands, options, or pending bids on interests held or made by the applicant for lands contiguous to the area described in the permit application. If requested by the applicant, any information required by this paragraph which is not on public file pursuant to the Act shall be held in confidence.

3.1.i. A statement of whether the applicant or any subsidiary, affiliate, or persons owned or controlled or under control or ownership with the applicant has:

3.1.i.1. Had a Federal or State coal mining permit suspended or revoked in the five (5) years preceding the date of submission of the application; or

3.1.i.2. Forfeited a bond or similar security deposited in lieu of bond.

3.1.j. A brief explanation of the facts involved if any such suspension, revocation, or forfeiture referred to in paragraphs 3.1.i.1 and 3. 1.i.2 of this subdivision has occurred, including:

3.1.j.1. Identification number and date of issuance of the permit, and the date and amount of bond or similar security;

3.1.j.2. Identification of the authority that suspended or revoked the permit or forfeited the bond and the stated reasons for the action;

3.1.j.3. The current status of the permit and bond, or similar security involved;

3.1.j.4. The date, Location, and type of any administrative or judicial proceedings initiated concerning the suspension, revocation, or forfeiture; and

3.1.j.5. The current status of any administrative or judicial proceedings.

3.1.k. A list either in the application or in an electronic database accessible to the agency which has been updated within three months of submittal, for any violation of a provision of the Act or this rule and any other Federal or State laws, rules and regulations pertaining to air or water environmental protection incurred in connection with any surface mining operation received by the applicant during the three (3) year period preceding the application date, and a list of all unabated cessation orders, and unabated air and water quality violation notices received prior to the date of the application by any surface mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant For each violation notice or cessation order reported, the lists shall include the following information as applicable:

3.1.k.1. Any identifying numbers for the operation, including the Federal or State permit number and MSHA number, the dates of issuance of the violation notice and MSHA number, the name of the person to whom the violation notice was issued, and the name of the issuing regulatory authority, department or agency;

3.1.k.2. A brief description of the violation alleged in the notice;

3.1.k.3. The date, Location, and type of any administrative or judicial proceedings initiated concerning the violation, including, but not limited to, proceedings initiated by any person to obtain administrative or judicial review of the violation;

3.1.k.4. The current status of both the proceedings and the violation notice; and

3.1.k.5. The actions, if any, taken by any person to abate the violation.

3.1.l. Each application for a permit 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.

3.1.m. The applicant for a permit or a revision of a permit shall have the burden of establishing that his application is in compliance with all the requirements of the Act and this rule.

3.1.n. After an applicant is notified that the application is approved, but before the permit is issued, the applicant shall update and correct the information previously submitted under this subsection or indicate that no change in such information has occurred.

3.1.o. Upon request by one or more permittees related through ownership and control, and with the approval of the Secretary, a permittee, or permittees related through ownership and control, may submit and maintain a centralized ownership and control file.

Any permit application which references an approved centralized ownership and control file may be determined to be complete and accurate for the purposes of this subsection. Each centralized ownership and control file shall at a minimum:

3.1.o.1. Contain the information required by subdivisions 3.1.a, 3.1.c, 3.1.d, and 3.1.1 of this subsection on such forms, or in the format, as may be required by the Secretary;

3.1.o.2. Provide a procedure for the file to be updated at least quarterly, although this requirement does not relieve an applicant from having complete and accurate information in the centralized ownership and control file during the time it has an application pending; and

3.1.o.3. Provide that the applicant maintain a copy or copies of the file in any required courthouses, regional offices, and other public offices, during any required public notice period, when referenced in an application that is otherwise required to be made available in such offices.

3.2. Advertisement.

3.2.a. SMA File Number. Prior to the publication of an advertisement for a surface mining permit in accordance with paragraph (6), subsection (a), section 9 of the Act, the applicant shall submit a technically complete surface mining permit application and obtain a surface mining application (SMA) file number. Each SMA number shall be valid for one year; provided, that the Secretary may extend an SMA number beyond one year, if the application has been diligently pursued by the applicant throughout the life of the SMA number. In order for an SMA number to be extended, the applicant must submit to the Secretary a written request, which shall state the reason(s) and which shall demonstrate good cause for the extension.

3.2.b. Advertisement Information. Each advertisement will contain at a minimum:

3.2.b.1. The surface mining application (SMA) file number;

3.2.b.2. A clear and accurate Location map of a scale and detail found in the West Virginia General Highway Map. The map size will be at a minimum four inches (4") x four inches (4"). longitude and latitude lines and north arrow will be indicated on the map and such lines will cross at or near the center of the proposed permit area;

3.2.b.3. The names and business address of the applicant to include a street address or route number;

3.2.b.4. A narrative description clearly describing the Location of the proposed permit area;

3.2.b.5. The name(s) of the coal seam(s) to be mined;

3.2.b.6. The name(s) of the receiving stream(s) into which drainage from the permit area will be discharged;

3.2.b.7. The Location where a copy of the application is available for public review;

3.2.b.8. The name and address of the Department of Environmental Protection Office where written comments or requests for informal conferences on the application may be submitted;

3.2.b.9. The type of operation;

3.2.b.10. Surface and mineral ownership of the tract(s) to be permitted;

3.2.b.11. Surface and mineral ownership of property within one hundred (100) feet of the permit area;

3.2.b.12. Where the permit application reflects that mining will occur within one-hundred feet (100') of the outside right-of-way of a public road (except where mine access roads or haulage roads join such right-of-way), the applicant may choose one of the following procedures to satisfy the additional public notice requirement:

3.2.b.12.A. Include in the advertisement required in this section a concise statement:

3.2.b.12.A.1. Identifying the road to be affected;

3.2.b.12.A.2. Identifying the affected segment; and

3.2.b.12.A.3. Advising that a public hearing may be requested; or

3.2.b.12.B. A separate public notice may be published, prior to issuance of a permit, which:

3.2.b.12.B.1. Identifies the road to be affected;

3.2.b.12.B.2. Identifies the affected segment; and

3.2.b.12.B.3. Advises that a public hearing may be requested.

3.2.b.13. Where the permit applicant proposes to relocated or close a public road, the advertisement shall include a concise statement which:

3.2.b.13.A. Describes the identification number and geographic Location of the road;

3.2.b.13.B. Describes the particular segment to be relocated or closed;

3.2.b.13.C. Describes where the relocated segment is to be sited;

3.2.b.13.D. Describes the approximate time and duration of the relocated or closure; and

3.2.b.13.E. Advises that a public hearing may be requested.

3.2.b.14. Where an alternative land use is proposed, indicate the premining land use and the proposed postmining land use; and

3.2.b.15. Where an experimental practice is proposed, the advertisement shall contain a statement indicating such and identifying applicable provisions for which a variance is requested.

3.2.c. Notice to Governmental Agencies. Upon receipt of an administratively complete application for a surface mining and reclamation permit, a permit revision or a permit renewal, the Secretary shall notify all Federal or State government agencies with authority to issue permits and licenses applicable to the proposed surface mining and reclamation operation or those agencies with an interest in the proposed operation, including the U. S. Department of Agriculture Natural Resources Conservation Service district office, the local U. S. Army Corps of Engineers district engineer, the National Park Service, State and Federal fish and wildlife agencies, and the historic preservation officer.

3.2.d. Availability of Comments. The Secretary shall place on file at the regional office in which a permit, permit revision or renewal of a permit is filed, a copy of all public comments received as a result of the advertisement and shall provide the applicant with such comments. When a permit, permit revision or renewal of a permit is issued or approved, the Secretary shall notify within ten (10) days each person who filed comments or objections to the application, each party to an informal conference, and the appropriate local governmental agencies including the clerk of the county commission. The Secretary shall also cause to be published at least monthly a listing of all permits issued, which listing shall include a description of the Location of the land to be affected. The listing shall also be forwarded to the Clerk of the County Commission.

3.2.e. Readvertisement. After a Surface Mine Application (SMA) has been advertised once a week for four successive weeks, and is determined by the Secretary to have had a limited number of minor changes that do not significantly affect the healthy, safety or welfare of the public and which do not significantly affect the method of operation, the reclamation plan, and/or the original advertisement, he may require one (1) additional advertisement to be published with a ten (10) day public comment period.

3.2.f. Renotification. A renotification letter shall be sent to all commenters of a surface mine application (SMA) when a determination has been made by the Secretary that readvertisement is required in accordance with subdivision 3.2.e of this subsection.

3.2.g. Notice of Technical Completeness. After the Secretary deems a Surface Mine Application technically complete, the Secretary shall cause the applicant to advertise that the application is technically complete. The one time notice shall state that the application has been deemed technically complete by the Secretary and include a fifteen (15) day public review period: Provided, that , Notice of Technical Completeness is not necessary if the application was technically complete prior to the end of the comment period of the original advertisement or a decision is made within ninety (90) days of the end of the comment period or informal conference.

3.2.i. Certification of Publication. The advertisement and publication dates for all permit applications, permit renewal applications, applications for revision of a permit, and transfer assignment and sale of permits, shall be certified and notarized by the publishing newspaper. The certificate of publication shall be made a part of the approved application no later than four (4) weeks after the last date of publication.

3.3. Occupied Dwellings.

3.3.a. Valid Existing Rights. Where the proposed surface coal mining operations would be conducted within three hundred (300) feet, measured horizontally, of any occupied dwelling, the permit applicant shall submit with the application a notarized written waiver by lease, deed, or other conveyance from the owner of the dwelling, clarifying that the owner and signator had the legal right to deny mining and knowingly waived that right. The waiver shall act as consent to such operations within a closer distance of the dwelling as specified.

3.3.b. Waiver. Where the applicant for a permit had obtained a valid waiver prior to August 3,1977, from the owner of an occupied dwelling to mine within three hundred (300) feet of such dwelling, a new waiver shall not be required:

3.3.b.1. Where the applicant for a permit had obtained a valid waiver from the owner of an occupied dwelling, that waiver shall remain effective against subsequent purchasers who had actual or constructive knowledge of the existing waiver at the time of purchase.

3.3.b.2. A subsequent purchaser shall be deemed to have constructive knowledge if the waiver has been properly filed in public property records pursuant to state laws or if the mining has proceeded to within the three hundred (300) feet limit prior to the date of purchase.

3.4. Maps.

3.4.a. Scale for Maps. Except as otherwise noted in this rule, the scale required for all maps shall be as follows:

3.4.a.1. The preferred scale of maps prepared from United States Geological Survey topographic maps on 7.5 minute quadrangle shall be five hundred feet (500') to the inch;

3.4.a.2. The preferred scale for maps associated with underground coal mining operations and facilities incidental to coal mining shall be two hundred feet (200') to the inch; and

3.4.a.3. Other scales may be used where improved clarity and accuracy are achieved.

3.4.b. Map Size. All maps and plans shall be submitted in a format proscribed by the Secretary and either be on paper thirty inches (30") by forty-two inches (42") or less or, if electronic, be capable of being printed on paper of this size. If supplementary maps or plans are attached, match lines shall be used.

3.4.c. Close Code. A Close code shall be used in preparing all maps to indicate critical features of the permit area as follows; provided, that drafted or computer generated graphic symbols or shading may be used in place of a Close code, if a separate, uniquely identifiable, and clearly discernible symbol or shading is provided in place of each Close as specified below, and if the symbols or shading are clearly defined on map legends and used consistently throughout the permit application, and in any subsequent permit revisions, progress maps, or other submittals relating to the permit:

3.4.c.1. Red shall indicate mineral to be removed;

3.4.c.2. Blue shall indicate water and drainage patterns;

3.4.c.3. Green shall indicate areas regraded;

3.4.c.4. Yellow shall indicate all other areas within the permit boundary; and

3.4.c.5. Purple shall be used to outline adjacent mining permits.

3.4.d. Preplan. In addition to the requirements of paragraphs (12) and (13) of subsection (a) section 9 of the Act and section 10 of the Act, the application shall include as applicable the following information:

3.4.d.1. The Location and current use of all structures within one thousand feet (1000') of the proposed permit area;

3.4.d.2. All public roads located on or within one hundred feet (100') of the proposed permit area;

3.4.d.3. The boundaries of any public park or historic lands within or adjacent to the permit area;

3.4.d.4. All cemeteries located on or within one hundred feet (100') of the proposed permit area;

3.4.d.5. Any portion of a unit of the National System of Trails or the Wild and Scenic River System, including study rivers designated under section 5(a) of the Wild and Scenic Rivers Act which are located within or adjacent to the proposed permit area;

3.4.d.6. The current use and land use classifications of the area of land and adjacent lands upon which the permit is sited and adjacent lands;

3.4.d.7. The Location of all existing structures to be used for surface mining operations which are to be exempt from design standards;

3.4.d.8. The date the map was prepared, a north arrow, quadrangle name and Location map;

3.4.d.9. Where the natural slope of the land below the coal outcrop is less than twenty (20) degrees and downslope placement of overburden or spoil is proposed, the map shall indicate percent slope of the land at two hundred foot (200') intervals along the cropline;

3.4.d.10. The Location of each facility to be used to protect or enhance fish and wildlife and related environmental values;

3.4.d.11. Where the proposed permit area has been previously mined and to the extent that such information is available, list the type of mining used, the coal seam or other mineral mined, the extent of mineral removed, and the approximate date of mining;

3.4.d.12. Extent of proposed auger operations;

3.4.d.13. Surface and mineral owners and property lines within the permit area and within one hundred (100) feet of any point of the permit area;

3.4.d.14. Location of water supply intakes for current users of surface water;

3.4.d.15. Location and identification of sub-areas if incremental bonding is to be used;

3.4.d.16. Location and extent of subsurface water, if encountered, within the proposed permit or adjacent areas, including, but not limited to, aerial and vertical distribution of aquifers, and portrayal of seasonal differences of head in different aquifers on cross sections and contour maps;

3.4.d.17. The location of all oil and gas wells and other utilities within the proposed permit area are to be shown;

3.4.d.18. The location and extent of tops oil borrow areas, and the Location of topsoil storage areas;

3.4.d.19. Air pollution monitoring and control facility and subsidence monitoring Location;

3.4.d.20. Any permanent facility to remain after mining;

3.4.d.21. All coal storage, cleaning, loading, and refuse disposal areas;

3.4.d.22. The Location of any non-coal waste storage areas;

3.4.d.23. The Location of any explosive storage and handling facility; which will remain in place for an extended period of time during the life of the operation and

3.4.d.24. The area of land to be affected within the proposed permit area according to the sequence of mining and reclamation.

3.4.e. Drainage Map. Unless the information required by this subdivision can be shown on the preplan map in a clear and legible fashion, a separate drainage map of the same size scale and detail of the preplan map shall be made a part of the permit application and shall contain the following:

3.4.e.1. The directional flow of water on and away from the permit area;

3.4.e.2. Location of all monitoring sites used to develop surface and groundwater base line information;

3.4.e.3. Location of all surface and ground water monitoring sites to be used for satisfying reporting requirements during the mining operation;

3.4.e.4. Location of all erosion and sedimentation control structures; and

3.4.e.5. The extent and boundaries of each component drainage area.

3.4.f. Supplemental maps for underground coal mining permit applications. In addition to other maps required in this section, each permit application for underground mining operations shall include supplemental maps as follows:

3.4.f.1. A U.S.G.S. topographic map of the area extending beyond the proposed mining limits and showing the following:

3.4.f.1.A. Name and series of the sheet;

3.4.f.1.B. Scale, latitude, and longitude;

3.4.f.1.C. Limits of underground mining operation proposed;

3.4.f.1.D. Surface area to be permitted;

3.4.f.1.E. Cropline of the coal seam to be mined;

3.4.f.1.F. Location and identification of all mine openings for the proposed mine including shafts, slopes, drifts, boreholes, etc; and

3.4.f.1.G. Location of all surface structures not owned by the applicant over the area to be mined.

3.4.f.2. A mine development map drawn to scale showing:

3.4.f.2.A. Boundaries of underground mining operation and any adjacent active or abandoned mines in the same seam;

3.4.f.2.B. All owners of property and all residents within the area above the proposed underground workings. The area above the underground works shall mean within the angle of critical deformation but at least 15° from any coal removal;

3.4.f.2.C. Present extent of underground mining as well as projected headings;

3.4.f.2.D. Date, scale, north arrow, dip, strike, and average dip of the coal seam to be mined;

3.4.f.2.E. All gas wells, oil wells, water wells, and test drill holes;

3.4.f.2.F. Location of all known faults;

3.4.f.2.G. Area and extent of previous or proposed auger or strip mining in the same seam;

3.4.f.2.H. Location and thickness of outcrop barriers; and

3.4.f.2.I. Elevation of all entries, fanways and boreholes.

3.5. Cross Sections and Profiles. The application shall contain cross-sections and/or profiles which accurately depict:

3.5.a. The existing premining surface configuration and the final surface configuration that will be achieved. Cross sections shall be developed from sufficient slope measurements to adequately represent the existing land surface configuration of the proposed permit area. slope measurements shall take into account natural variations in slope, to provide accurate representation of the range of natural slopes and reflect geomorphic differences of the area to be disturbed. The Secretary may require additional slope measurements at specified intervals and Locations on a site-by-site basis;

3.5.b. The vertical distribution of aquifers showing seasonal differences in head, if available, for the proposed permit area;

3.5.c. Cross sectional area and profiles of excess spoil disposal areas with all appurtenances shown including rock cores, subsurface drains, surface drainage structures, foundations, etc;

3.5.d. Cross sectional areas and profiles of all drainage and sediment control structures including ponds, impoundments, diversions, sumps, etc; and

3.5.e. Cross sectional areas and profiles of all roads.

3.6. Operation Plans and Specifications. Each application shall contain in addition to other plans, specifications, and descriptions required by the Act and this rule, a description of the mining operations proposed to be conducted during the life of the mine within the proposed permit area, including, at a minimum, the following:

3.6.a. A narrative description of the type and method of coal mining procedures and proposed engineering techniques, anticipated annual and total production of coal, by tonnage, and the major equipment to be used for all aspects of those operations; and

3.6.b. A narrative explaining the construction, modification, use, maintenance, and unless retention of such facilities is necessary for postmining land use, removal of the following facilities:

3.6.b.1. Dams, embankments, and other impoundments;

3.6.b.2. Overburden and topsoil handling and storage areas and structures;

3.6.b.3. Coal removal, handling, storage, cleaning, and transportation areas and structures;

3.6.b.4. Spoil, coal processing waste, and non-coal waste removal, handling, storage, transportation, and disposal areas and structures;

3.6.b.5. Mine facilities; and

3.6.b.6. Water and air pollution control facilities.

3.6.c. A description of how the applicant will case, seal or otherwise manage auger holes, boreholes, shafts, wells and other openings;

3.6.d. A description of how the applicant will remove, store and redistribute topsoil, subsoil or topsoil substitutes, and other materials. When topsoil substitutes are proposed, the suitability determination, analytical data, and laboratory certification required in subdivision 14.3.c of this rule shall be made a part of the permit application;

3.6.e. Where topsoil borrow areas are proposed, the applicant shall submit a reclamation plan for such areas;

3.6.f. A description of how the applicant will handle acid forming and toxic forming materials and materials constituting a fire hazard;

3.6.g. The design and construction of excess spoil disposal areas; and

3.6.h. The design and construction of a drainage and sediment control system to include:

3.6.h.1. A description, map, and cross section of the structure and its Location;

3.6.h.2. Preliminary hydrologic and geologic information required to assess the hydrologic impact of the structure;

3.6.h.3. A survey describing the potential effect on the structure from subsidence of the subsurface strata resulting from past underground mining operation if underground mining has occurred;

3.6.h.4. A certification statement which includes a schedule for the submission of any detailed design plans for structures that are not submitted with the general plan. The Secretary shall have approved, in writing, the detailed design plan for a structure before construction begins;

3.6.h.5. Each structure design plan that is of such size or storage capacity that it is a dam as defined in W. Va. Code §22-14 et seq., shall be prepared by, or under direction of, and certified by a qualified registered professional engineer;

3.6.h.6. The design shall include any geotechnical investigation and construction requirements for the structure;

3.6.h.7. A description of the operation and maintenance requirements for each structure;

3.6.h.8. A timetable and plans to remove each structure, if appropriate;

3.6.i. The design and construction of all roads;

3.6.j. A vegetation plan.

3.6.k. A plan for fugitive dust control practices as required in subsection 14.16 of this rule and comply with 45 CSR 17; and

3.6.l. For area mining operations, as referenced in paragraph 14.15.b.4 of this subsection, mountaintop removal operations as referenced in paragraph 14.15.b.6 of this subsection, and for multiple seam mining operations, the applicant shall include a site specific and detailed plan showing the sequence and schedule for backfilling and regrading.

3.7. Disposal of Excess Spoil.

3.7.a. Each application shall contain descriptions, including appropriate maps, cross sections, drawings, and design of the excess spoil disposal structures which will comply with the standards of subsection 14.14 of this rule. These plans shall describe the design, construction, operation, maintenance, and if appropriate, removal of the site and structures.

3.7.b. Each application shall contain the results of a geotechnical investigation of the proposed disposal site, including the following:

3.7.b.1. The character of bedrock and any adverse geologic conditions in the disposal area;

3.7.b.2. A survey identifying all springs, seepage, and ground water flow observed or anticipated during wet periods in the area of the disposal site;

3.7.b.3. A survey of the potential effects of subsidence of the subsurface strata due to past and future mining operations;

3.7.b.4. A technical description of the rock materials to be utilized in the construction of those disposal structures containing rock chimney cores or underlain using a rock drainage blanket;

3.7.b.5. A stability analysis including, but not limited to, strength parameters, pore pressures and long-term seepage conditions. These data shall be accompanied by a description of all engineering design assumptions and calculations and the alternatives considered in selecting the specific design specifications and methods; and

3.7.b.6. An explicit identification, by narrative and by mapping, of the critical foundation area(s) for the structure, as the term is applied in subsection 14.14. The selection of the critical foundation area(s) shall be based on the results of the geotechnical investigation, shall be certified as a part of the design by a registered professional engineer, and shall be subject to review and approval by the Secretary.

3.7.c. If rock-toe buttresses or key-way cuts are required, the application shall include the following:

3.7.c.1. The number, Location, and depth of borings or test pits which shall be determined with respect to the size of the spoil disposal structure and subsurface conditions; and

3.7.c.2. Engineering specifications utilized to design the rock-toe buttresses or key-way cuts which shall be determined in accordance with paragraph 3.7.b.5 of this subsection.

3.7.d. A survey of the watershed identifying all man made structures and residents in proximity to the disposal area to determine potential storm runoff impacts. At least thirty (30) days prior to any beginning of placement of material, the accuracy of the survey shall be field verified. Any changes shall be documented and brought to the attention of the Secretary to determine if there is a need to revise the permit.

3.8. New and Existing Structures and Support Facilities:

3.8.a. Each application for a permit will contain a description, plans, and drawings for each support facility to be constructed, used, or maintained within the proposed permit area. The plans and drawings shall include a map, appropriate cross sections, design drawings, and specifications sufficient to demonstrate compliance with subsection 4.11 of this rule.

3.8.b. Each application shall contain a description of each existing structure or facility proposed to be used in connection with or to facilitate the surface mining and reclamation operation. The description shall include:

3.8.b.1. Location;

3.8.b.2. Plans of the structure which describe its current condition completed;

3.8.b.3. Approximate dates on which construction of the existing structure was begun and;

3.8.b.4. A showing, including relevant monitoring data or other evidence, as to whether or not the structure meets the performance standards of the Act and this rule; and

3.8.b.5. A compliance plan for each existing structure proposed to be modified or reconstructed for use in connection with or to facilitate the surface coal mining and reclamation operation. The compliance plan shall include:

3.8.b.5.A. Design specifications required for the modification or reconstruction of the structure to bring it into compliance with current design requirements and performance standards of the Act and this rule.

3.8.b.5.B. A construction schedule which shows dates for beginning and completing interim steps and final construction.

3.8.b.5.C. Provisions for monitoring the structure during and after modification or reconstruction to ensure that the performance standards of the Act and this rule are met.

3.8.b.5.D. A showing that the risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction.

3.8.c. Structures and facilities designed, constructed or in use pursuant to an approved surface mining permit or prospecting approval prior to the effective date of this rule may be subject to revision or reconstruction where the Secretary determines that such revision or reconstruction is necessary to comply with the performance standards set forth in the Act and this rule; provided, that the Secretary will notify the permittee that such revision or reconstruction is necessary and shall provide a reasonable time for compliance. Provided, that those structures and facilities, where it can be demonstrated that reconstruction or revision would result in greater environmental harm and the performance standards set forth in the Act and this rule can otherwise be met, may be exempt from revision or reconstruction. This exemption shall not apply to new and existing coal waste facilities.

3.8.d. The plans of a facility or structure that is to be shared by two or more separately permitted mining operations may be included in one permit application and referenced in the other application. Each permittee shall bond the facility or structure unless the permittees sharing it agree to another arrangement for assuming their respective responsibilities. If such agreement is reached, then the application shall include a copy of the agreement between or among the parties setting forth the respective bonding responsibilities of each party for the facility or structure. The agreement shall demonstrate to the satisfaction of the Secretary that all responsibilities under the Act for the facility or structure will be met.

3.9. Operation(s) Near Public Road.

3.9.a. Where the proposed mining operation is to be conducted within one hundred feet (100') (measured horizontally) of the outside right-of-way of any public road (except where mine access roads or haulage roads join such right-of-way) or where the applicant proposes to relocated or close any public road, the Secretary shall:

3.9.a.1. Where the public road is to be closed or relocated, require the applicant to obtain necessary permission from the authority with jurisdiction over the public road.

3.9.a.2. Provide an opportunity for a public hearing in the locality of the proposed mining operation for the purpose of determining that the interests of the public and affected landowners will be protected.

3.9.a.3. Upon request for a public hearing by any person, require the applicant to hold a public hearing and give notice of the date, time, and place of the hearing in a newspaper of general circulation in the area of the proposed mining operation at least two (2) weeks in advance of the hearing date.

3.9.a.4. Make a written finding within thirty (30) days following the hearing or after the close of the comment period as to whether or not the interests of the public and the affected landowners will be protected. Each participant of record at the public hearing shall be notified of the Secretary's findings.

3.10. Experimental Practices.

3.10.a. Each permit application or permit revision shall contain plans and specifications of any proposed experimental practices to be employed as a part of the mining and reclamation operation. All experimental practices shall have prior approval of the Secretary and the director of the Federal Office of Surface Mining Reclamation and Enforcement before a permit or revision can be issued. An application for an experimental practice shall contain descriptions, maps, plans, and data which show:

3.10.a.1. The nature of the experimental practice, including a description of any performance standards for which variances are requested, the duration of the experimental practice, and any special monitoring which will be conducted;

3.10.a.2. How use of the experimental practice encourages advances in mining and reclamation technology or allows a postmining land use for industrial, commercial, residential, or public use (including recreation facilities) on an experimental basis;

3.10.a.3. The experimental practice:

3.10.a.3.A. Is potentially more, or at least as, environmentally protective, during and after mining operations, as would otherwise be required by the Act and this rule.

3.10.a.3.B. Will not reduce the protection afforded public health and safety below that provided by the requirements of the rules.

3.10.a.4. That the applicant will conduct monitoring of the effects of the experimental practice. The monitoring program shall ensure the collection, analysis, and reporting of reliable data that are sufficient to enable the Secretary and the director of the Federal Office of Surface Mining Reclamation and Enforcement to:

3.10.a.4.A. Evaluate the effectiveness of the experimental practice; and

3.10.a.4.B. Identify, at the earliest possible time, potential risk to the environment and public health and safety which may be caused by the experimental practice during and after mining.

3.10.a.5. That the applications for experimental practice under this section will comply with the public notice requirements of the Act and this rule.

3.10.b. Each permit approved for experimental practices shall be reviewed by the Secretary at least annually following date of issuance. The Secretary may, on the basis of this review, require modifications to the experimental practice.

3.11. In Situ Mining. Any application for a permit for operations covered by this subsection shall be made according to all requirements of this section applicable to underground mining activities. In addition, the mining and reclamation operations plan for operations involving in situ processing activities shall contain information establishing how those operations will be conducted in compliance with the requirements of section 15 of this rule, including:

3.11.a. Delineation of proposed holes and wells and production zone for approval of the Secretary;

3.11.b. Specifications of drill holes and casings proposed to be used;

3.11.c. A plan for treatment, confinement or disposal of all acid-forming, toxic-forming or radioactive gases, solids, or liquids constituting a fire, healthy, safety or environmental hazard caused by the mining and recovery process; and

3.11.d. Plans for monitoring surface and ground water and air quality, as required by the Secretary.

3.12. Subsidence Control Plan.

3.12.a. Each application for an underground coal mining permit shall contain a subsidence control plan which includes the following:

3.12.a.1. A survey that identifies, on a topographic map of a scale of 1" = 1,000' more, structures, perennial and intermittent streams, or renewable resource lands and a narrative indicating whether or not subsidence could cause material damage or diminution of value or use of such structures, or renewable resource lands both on the permit area and adjacent areas within an angle of draw of at least 30° unless a greater area is specified by the Secretary. Provided; however, an angle of draw less than 30° can be requested by the applicant based upon results of site specific analyses and demonstration that a different angle of draw is justified. Computer program packages predicting surface movement and deformation caused by underground coal extraction can be utilized. A survey that identifies, on a topographic map of a scale of 1" = 1,000' , larger, Location and type of water supplies and a narrative indicating whether or not subsidence could contaminate, diminish or interrupt water supplies both on the permit area and adjacent areas;

3.12.a.2. A survey of the quality and quantity of water supplies that could be contaminated, diminished or interrupted by subsidence within the permit area and adjacent areas.

A survey of the condition of all non-commercial building or residential dwellings and structures related thereto that may be materially damaged or for which the foreseeable use may be diminished by subsidence within the area encompassed by the applicable angle of draw. Provided; however:

3.12.a.2.A. For areas of extraction that is less than or equal to 60 percent, a pre-subsidence structural survey exemption may be requested by the permittee; provided, it is demonstrated to the satisfaction of the Secretary that damage to the structure(s) will not occur.

3.12.a.2.B. In areas of developmental mining (less than or equal to 60 percent extraction), a postponement of the pre-subsidence structural survey may be requested by the permittee; provided, it is demonstrated that damage to the structure(s) will not occur. No mining (extraction greater than 60 percent) within the applicable angle of draw shall occur until the pre-subsidence structural survey is completed.

In areas for which a pre-subsidence structure survey exemption and/or postponement is granted and the percent extraction exceeds 60 percent, the exemption and/or postponement for the structural survey is voided for the entire underground mining operation. In addition, the presumption of causation will apply to any damage to structure(s) as a result of earth movement within a 30 ° angle of draw from any underground extraction.

If the permittee was denied access to the land or property for the purpose of conducting the pre-subsidence survey, the permittee will notify the owner, in writing, no presumption of causation will exist.

At the cost of the applicant, a written report of the survey containing any technical assessments and engineering evaluation used in the survey shall be prepared and signed by the person or persons who conducted the survey. Copies of the report shall be provided to the property owner and to the Secretary.

Non-commercial building as used in this section means any building, other than an occupied residential dwelling, that the time subsidence occurs, is used on a regular basis as a public building or community or institutional building as those terms are defined in 2.34 of this rule. Any building used only for commercial agricultural, industrial, retail or other commercial enterprises is excluded.

All surveys of the condition of all non-commercial buildings or residential dwellings and structures related thereto shall be confidential and only used for evaluating damage relating to subsidence. The Secretary shall develop a procedure for assuring surveys shall remain confidential.

3.12.a.3. A general description of the technique of coal removal, such as longwall, room and pillar, pillar removal, hydraulic mining or other extraction methods and the size, sequence, and timing of underground development of the mine;

3.12.a.4. An isopach map or other map showing surface contours and bottom of coal contours and the Location and extent of areas in which planned subsidence is projected, including anticipated effects, and all areas in which measures described in paragraphs 3.12.a.7 and 3.12.a.8. of this subdivision will be taken to prevent or minimize subsidence and related damage and where appropriate to correct subsidence related damage;

3.12.a.5. A description of the physical conditions, such as depth of cover, seam thickness, strike and dip, lithology, and other geologic and hydrologic conditions, which affect the likelihood or extent of subsidence and subsidence-related damage;

3.12.a.6. A description of the measures to be taken, in accordance with subdivisions 16.2.a, 16.2.c, and 16.2.d of this rule, to mitigate or remedy any material damage or diminution in value or foreseeable use that may occur to surface lands, structures, or facilities due to subsidence;

3.12.a.7. An acknowledgment that if subsidence causes material damage or reduces the value or reasonably foreseeable use of the surface lands, then the operator shall restore the land to a condition capable of supporting uses it was capable of supporting before subsidence regardless of the right to subside;

3.12.a.8. Except for those areas where planned subsidence is projected to be used, a detailed description of the subsidence control measures that will be taken to prevent or minimize subsidence and subsidence-related damage, including, but not limited to:

3.12.a.8.A. Backstowing or backfilling of voids;

3.12.a.8.B. Leaving support pillars of coal;

3.12.a.8.C. Leaving areas in which no coal is removed, including a description of the overlying area to be protected by leaving the coal in place; and

3.12.a.8.D. Taking measures on the surface to prevent material damage or lessening of the value or reasonably foreseeable use of the surface.

3.12.a.9. A description of monitoring plans, if any, to determine the commencement and degree of subsidence so that other appropriate measures can be taken to prevent, reduce, or correct material damage.

3.12.b. The Secretary may waive the remainder of the requirements for a subsidence control plan if the survey required by paragraph 3.12.a.1. of this subsection demonstrates, and the Secretary determines, that no material damage or diminution of value or foreseeable use of the land or structures could be caused by subsidence.

3.12.c. When an applicant feels it has the right to subside, it will provide adequate documentation of same.

3.12.d. Where longwall mining or room and pillar mining with 80% recovery or greater is proposed, the following information shall be made a part of the plan:

3.12.d.1. Typical predicted subsidence profile(s) for areas of planned subsidence. Specify from what source information was obtained to develop the predicted profile(s) including an explanation of the method and calculations used to develop prediction.

3.12.d.2. For all areas identified by the survey, indicate what measures will be taken to minimize material damage or reduction in value or reasonably foreseeable use. Indicate those areas in which measures are to be taken. Such measures may include, but not be limited to, relocation panels, mining without interruption, exposing gas lines, supporting foundations of structures, and insuring that any damage is repaired.

3.12.d.3. Specify anticipated effects of planned subsidence.

3.12.e. Where room and pillar mining with less than 80% coal extraction is proposed, the following information shall be made a part of the plan:

3.12.e.1. On the development map, show all first mining and areas of planned pillar extraction.

3.12.e.2. Describe anticipated secondary mining plans including percent extraction.

3.12.e.3. Under all structures and renewable resource lands, demonstrate what methods will be used to protect that structure or lands (i.e., leaving solid coal or limited extraction). Under structures and perennial streams, the area addressed must extend to the angle of critical deformation, but not less than 15° unless otherwise approved. If mining is planned under or adjacent to a structure or perennial stream (for structures this need not be addressed when the applicant demonstrates the right to subside), it must be demonstrated to the extent technologically and economically feasible that the pillar design will support the overburden. If it is not technologically and economically feasible, a detailed explanation must be included.

3.13. Underground Mine Abandonment Plan. Each application for an underground coal mine operation shall contain an abandonment plan which complies with the requirements of Federal Mine Health Administration regulations at 30 CFR 75.1711. The abandonment plan shall also contain the following specifications:

3.13.a. The width of outcrop barriers;

3.13.b. The type and number of permanent seals proposed, their design details, and the proposed materials to be used for construction;

3.13.c. The maximum head of water expected on the outcrop barriers and mine seals; and

3.13.d. The type and design details of seals for boreholes.

3.14. Removal of Abandoned Coal Refuse Disposal Piles.

3.14.a. In accordance with subsection (d) section 28 of the Act, the Secretary may, when not in conflict with the purposes and findings of the Act, issue a reclamation contract solely for the removal of existing abandoned coal processing waste piles; provided that, if the average quality of the refuse material meets the minimum BTU value standards to be classified as coal, as set forth in ASTM standard D 388-99, and if not AML eligible, a permit application which meets all applicable requirements of this rule shall be required. The criteria for issuing such reclamation contract are as follows:

3.14.a.1. The removal of the existing abandoned coal processing waste pile will bring about a more desirable land use or;

3.14.a.2. The removal of the existing abandoned coal processing waste pile will result in greater protection of the safety and welfare of the public; or

3.14.a.3. The removal of the existing abandoned coal processing waste pile will result in greater protection of the environment.

3.14.b. A request for a reclamation contract for the removal of existing abandoned coal processing waste piles shall be submitted on forms prescribed by the Secretary containing the following information:

3.14.b.1. All information required by subsection 3.1 of this rule except subdivisions 3.1.C, 3.1.d, 3.1.k, 3.1.n, and 3.1.0 of this section.

3.14.b.2. A public notice containing the same information required by subdivision 3.2.b of this rule, excluding paragraph 3.2.b.5. The notice shall be published in a newspaper of general circulation in the county in which the removal operation is located. The notice shall be published once and provide for a ten (10) day comment period. A certification of publication will be made a part of the permit application;

3.14.b.3. A statement in accordance with paragraph (9), subsection (a), section 9 of the Act;

3.14.b.4. A project narrative which describes:

3.14.b.4.A. Existing site conditions;

3.14.b.4.B. How the removal operation will meet the criteria of subdivision 3.14.a of this rule;

3.14.b.4.C. The design life of the operation;

3.14.b.4.D. Type and quantity of material to be removed; and

3.14.b.4.E. Permits or approvals as necessary from the appropriate environmental agencies or other agencies.

3.14.b.5. A plan for emergency procedures as required in subdivision 22.4.e of this rule.

3.14.b.6. A description and results of sampling and analysis procedures used to develop a representative assay of the physical and chemical properties of the existing abandoned coal processing material;

3.14.b.7. A revegetation plan which conforms to the requirements of subdivision 14.16.m of this rule;

3.14.b.8. A fire control plan which conforms to the requirements of subdivision 22.5.m. of this rule;

3.14.b.9. A procedure for inspections and certifications which conforms to the applicable requirements of subsection 22.6 of this rule;

3.14.b.10. A map of the scale, size and Close code as described in subdivisions 3,4,a, 3.4.b, and 3.4.c of this rule which contains the following information:

3.14.b.10.A. All types of information set forth on topographical maps of the United States Geological Survey including all manmade features;

3.14.b.10.B. The area of land to be affected by the removal operation, including any coal storage and topsoil borrow and storage areas;

3.14.b.10.C. The property boundaries of all surface owners within one hundred (100) feet of any part of the proposed permit area;

3.14.b.10.D. The Location and direction of flow of the drainage patterns both within and outside the proposed permit area and the outline of each component drainage area;

3.14.b.10.E. The Location of all drainage and sediment control structures and monitoring sites for water sampling and analysis;

3.14.b.10.F. A Location map; and

3.14.b.10.G. A signed, notarized, and dated statement as follows: "The information contained herein is true and correct to the best of my knowledge and belief."

3.14.b.11. Cross sections plans and specifications prepared by or under the direction of a registered professional engineer as follows:

3.14.b.11.A. Cross sections and profile of the existing surface configuration and the final surface configuration of all areas to be affected by the removal operation;

3.14.b.11.B. Cross sections, plans, and specifications for all drainage and sediment control structures;

3.14.b.11.C. Cross sections, profiles and design specifications for any roads to be utilized for the removal operation;

3.14.b.11.D. Specifications for the removal of the existing coal processing refuse by either excavating the material in successive horizontal lifts with a maximum elevation differential between working benches of twelve (12) feet or excavation down the face of the existing slope from top to toe, provided that the slope is no steeper than 2H: IV, provided further that no material will be removed from the toe in advance of upper level material in a manner which reduces stability of the working face; and

3.14.b.11.E. If requested by the Secretary, a stability analysis of the existing abandoned coal processing waste pile.

3.14.b.12. Where the existing coal processing refuse pile will only be partially removed, the request will contain additional information and specifications which include:

3.14.b.12.A. Design and configuration of the final graded area which reflects that no water will be impounded above the remaining material and that final graded slopes are no steeper than 2H:1V;

3.14.b.12.B. Surface water must be diverted around or over the material by properly designed and stabilized diversion channels which have been designed using the best current technology to provide protection to the environment or the healthy, welfare and safety of the public. The channel shall be designed and constructed to ensure stability of the remaining material, control erosion, and minimize water infiltration into the remaining material;

3.14.b.12.C. Procedure for performing stability analysis of the remaining material to assure mass stability;

3.14.b.12.D. A plan for long range prevention of combustion of the remaining material; and

3.14.b.12.E. Baseline water quality data.

3.14.b.13. Where the existing coal processing refuse pile does impound water, or has the capacity to impound water, the application will contain the additional plans, design data, and specifications:

3.14.b.13.A. A plan for drawing down the water behind the impoundment to a level and in a manner which assures the protection of the environment and the safety of operation personnel and the public prior to any removal operations;

3.14.b.13.B. Plans, design data and specifications for the construction of a spillway which will pass the peak runoff from a 100 year, 24 hour precipitation event and how such structure will be functionally maintained throughout the life of the operation;

3.14.b.13.C. A description of how the existing coal processing material will be removed maintaining a five (5) foot elevation differential between the breach invert elevation of the excavated embankment and the elevation of any slurry which may be impounded behind the embankment; and

3.14.b.13.D. Provide plans, design data, and specifications for the regrading of any remaining refiise material such that the regraded area blends into the surrounding drainage pattern and will not impound water.

3.14.b.14. A reclamation plan which conforms to the requirements of subdivisions 3.6.d, 3.6.e, 3.6.f, 3.6.h, 3.6.i, and 3.6.j of this rule.

3.14.c. Where a coal reprocessing operation involves disposal of coal processing refuse generated either on site or off site, the design, construction, and maintenance of the new structure will be subject to all the requirements of section 22 of this rule and will be subject to all the permitting requirements of the Act and this rule.

3.14.d. Insurance and filing fee in accordance with subsection b, section 28, of the Act.

3.14.e. Removal operations permitted under this subsection shall be subject to subdivision 22.5.1 of this rule and all other applicable performance standards of the Act and the reclamation contract.

3.14.f. All persons conducting removal of abandoned coal disposal piles under a reclamation contract shall have on site, a copy of the written approval for such activities issued by the Secretary.

3.15. Approved Persons.

3.15.a. Any person approved by the Secretary, unless otherwise provided in the Act and this rule, may prepare, sign, or certify permit applications, maps, plans, and design specifications or other similar materials necessary to complete an application; provided, however, that for purposes of Sections 9(a)(13) and 13(b)(10)(c) of the Act an approved person shall be a registered professional engineer or professional surveyor.

3.15.b. The Secretary's approval shall be in writing and subject to be renewed on an annual basis. Approvals and renewals shall be granted on the basis of the following:

3.15.b.1. A resume of the persons prior experience and training relating to the preparation of permit application materials and certification of associated facilities; provided, that registered professional engineers, registered mining or civil engineers and professional surveyors currently registered or licensed in the State of West Virginia shall submit a copy of their registration or license in addition to a resume; and

3.15.b.2. Any person seeking an approval must demonstrate that he possesses adequate knowledge of the Act and rules and regulations and possess such other skills and qualifications as may be necessary to prepare an application and certify facilities by successfully passing an examination administered by the Secretary. Examinations will be given upon request.

3.15.b.3. Any person seeking an approval must obtain a digital signature approved by the Secretary and maintain the capability of submitting documents bearing digital signatures to the Secretary. A digital signature shall have the same effect when affixed to documents submitted to the Secretary as a signature affixed by other means. Furthermore, any person seeking an approval must be capable and maintain the capability of submitting maps, plans and all other technical data in an electronic format proscribed by the Secretary.

3.15.c. All technical data in the application shall bear the name of the person collecting and analyzing the data, dates of collection and analysis, and description of the methodology used to collect and analyze the data. Any referenced materials not included in the application shall be made available to the Secretary upon request.

3.15.d. Technical analysis shall be planned by, or under the direction of, a professional person qualified in the subject to be analyzed.

3.15.e. Disciplinary action and Procedures.

3.15.e.1. The Secretary may:

3.15.e.1.A. Revoke an approved person authorization;

3.15.e.1.B. Suspend an approved person authorization for a period of time, not exceeding two years, subject to such conditions as the Secretary may specially or

3.15.e.1.C. Make &e continuation of a person's approved person status subject to such conditions as the Secretary ""say specify.

3.15.e.2. The Secretary may suspend or revoke a person's approved person status, or refuse to approve, restore, or renew any continuation of a person's approved person status, or impose conditions upon approval, restoration, or renewal, or may reprimand any approved person who has:

3.15.e.2.A. Engaged or has caused others to engage in fraud or deceit in obtaining or renewing his or her approved person status;

3.15.e.2.B. Been negligent, incompetent or committed an act of misconduct as an approved person;

3.15.e.2.C. Failed to comply with any of the provisions of Chapter 22 Article 3 of the Code of West Virginia or any of the rules promulgated thereunder;

3.15.6.2.D. Been disciplined by a professional or occupational licensing body, or by any state or federal agency;

3.15.6.2.E. Made false statements or signed false statements, certificates or affidavits; or

3.15.6.2.F. Aided or assisted another person in violating any provision of Chapter 22 Article 3 of the Code of West Virginia or any of the rules promulgated thereunder;

3.15.f. Imposition of Conditions, Suspension and Revocation.

3.15.f.1. If the Secretary takes one or more of the actions specified in subsection 3.15.e., the person adversely affected shall be notified.

3.15.f.2. Such notice shall inform the person of the conditions or provisions violated and his or her right to request a hearing for the purpose of showing cause why his or her approved person status should not be revoked, suspended, made subject to conditions, or otherwise abridged.

3.15.f.3. Upon request made in writing within fifteen days of service of the notice, the person shall be granted a hearing before the Secretary to show cause why his or her approved person status should not be suspended, revoked, made subject to conditions, or otherwise abridged.

3.15.f.4. If the approved person requests a hearing, a hearing shall be held within thirty (30) days. Within sixty (60) days following the hearing, the Secretary shall determine whether cause exists, and furnish to the approved person a written decision or order setting forth the reasons therefore.

3.16. Fish and Wildlife Resources Information.

3.16.a. Each application shall include fish and wildlife resource information for the permit area and adjacent area.

3.16.a.1. The scope and level of detail for such information shall be determined by the Secretary in consultation with State and Federal agencies with responsibilities for fish and wildlife resources and shall be sufficient to develop the protection and enhancement plan required under subdivision 3.16.b. of this subsection.

3.16.a.2. The Secretary shall provide for coordination of review of surface mining and reclamation permits where such coordination is appropriate pursuant to the Fish and Wildlife Coordination Act ( 16 U.S.C. 661 et.seq.).

3.16.a.3. Site-specific resource information necessary to address the respective species or habitats shall be required when the permit area or adjacent area is likely to include:

3.16.a.3.A. Listed or proposed endangered or threatened species of plants or animals or their critical habitats listed by the Secretary under the Endangered Species Act of 1973, as amended ( 16 U.S.C. 1531 et seq.), or those species or habitats protected by similar state statutes;

3.16.a.3.B. Habitats of unusually high value for fish and wildlife such as important streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, or reproduction and wintering areas; or

3.16.a.3.C. Other species or habitats identified through agency consultation as requiring special protection under State or Federal Law to include the Migratory Bird Treaty Act of 1918 ( 16 U.S.C. 703 et seq. and the Bald Eagle Protection Act ( 16 U.S.C. 668 et seq.).

3.16.b. Each application shall include a description of how, to the extent possible using the best technology currently available, the operator will minimize disturbances and adverse impacts on fish and wildlife and related environmental values, including compliance with the Endangered Species Act, during the surface mining and reclamation operations and how enhancement of these resources will be achieved where practicable. This description shall:

3.16.b.1. Be consistent with the requirements of section 8 of this rule;

3.16.b.2. Apply, at a minimum, to species and habitats identified under subdivision 3.16.a. of this subsection; and

3.16.b.3. Include:

3.16.b.3.A. Protective measures that will be used during the active mining phase of operation. Such measures may include the establishment of buffer zones, the selective Location and special design of haul roads and power lines, and the monitoring of surface water quality and quantity; and

3.16.b.3.B. Enhancement measures that will be used during the reclamation and postmining phase of operation to develop aquatic and terrestrial habitat. Such measures may include restoration of streams and other wetlands, retention of ponds and impoundments, establishment of vegetation for wildlife food and cover, and the replacement of perches and nest boxes. Where the plan does not include enhancement measures, a statement shall be given explaining why enhancement is not practicable.

3.16.c. Upon request, the Secretary shall provide the resource information required under subdivision 3.16.a of this subsection and the protection and enhancement plan required under subdivision 3.16.b of this subsection to the appropriate State and/or Federal Fish and Wildlife agencies for their review. This information shall be provided within ten (10) days of receipt of the request.

3.17. Parks and Historic Lands.

3.17.a. Each permit application shall contain a description of the nature of cultural, historic and archaeological resources listed or eligible for listing on the National Register of Historic Places and known archaeological sites within the proposed permit and adjacent areas. The description shall be based on all available information, including, but not limited to, information from the State Historic Preservation Officer and from local archaeological, historical, and cultural preservation agencies.

3.17.b. The Secretary may require the applicant to identify and evaluate important historic and archaeological resources within the proposed permit and adjacent areas that may be eligible for listing on the National Register of Historic Places, through the collection of additional information by conducting field investigations or other appropriate analysis.

3.17.c Adverse impacts to any publicly owned park and any place listed on the National Register of Historic Places shall be prohibited unless the permit applicant has valid existing rights or unless joint agency approval is obtained in accordance with subsection 3.19 of this section. In either case all adverse impacts must be minimized.

3.17.d. The Secretary may require the applicant to protect historic or archaeological properties listed on or eligible for listing on the National Register of Historic Places through appropriate mitigation and treatment measures. Appropriate mitigation and treatment measures may be required to be taken after permit issuance provided that the required measures are completed before the properties are affected by any mining operation.

3.18. Endangered Species. When the proposed mining operation will affect threatened or endangered species of plants or animals or their critical habitats, the application shall describe control measures, management techniques, and monitoring methods to be employed in order to protect or enhance such species and habitats. Endangered or threatened species are as listed by the Director of Interior under the Endangered Species Act of 1973 ( 16 U.S.C. 1521 et seq.).

3.19. Effect on Historic Places and Archaeological Sites. Where the proposed surface coal mining operation will adversely affect any publicly owned park, any place listed on the national Register of Historic Places or archaeological sites, the Secretary shall transmit to the Federal, State or local agencies with jurisdiction over the park or historic place the applicable parts of the permit application, together with a request for the agency's approval or disapproval of the operation. Consideration and coordination of the permit review shall be in accordance with the National Historic Preservation Act of 1966 ( 16 U.S.C. 470 et seq.) and the Archaeological Resource Protection Act of 1979 ( 16 U.S.C. 470 et seq.). The agency shall have thirty (30) days from receipt of the request within which to respond unless an additional thirty (30) day extension is requested and granted by the Secretary. A permit for such operation shall have joint approval of all affected agencies. Failure of the agency to respond to the Secretary's request within the prescribed time period shall constitute approval.

3.20. Prime Farmlands. Prior to issuing a permit which involves prime farmland, the Secretary shall consult with the U.S. Natural Resources Conservation Service. On the basis of this consultation and other information available to him, the Secretary shall make a written finding that:

3.20.a. The approved postmining land use will be cropland;

3.20.b. The permit incorporates the prime farmland reconstruction plan as a permit condition;

3.20.c. The applicant has the technological capability to restore the land within a reasonable time period to conditions capable of producing levels of yield equivalent to or higher than those of non-mined prime farmland in the surrounding area under equivalent levels of management; and

3.20.d. Mining will be conducted in accordance with prime farmland performance standards and all other applicable environmental protection performance standards of the Act and this rule.

3.21. Prohibitions and Limitations on Mining. Upon receipt of a complete application for a surface mining permit, the Secretary shall review the application to determine whether the surface coal mining operation is limited or prohibited under section 22 of the Act including any study rivers or corridors thereof as established in any official guidelines issued pursuant to the Wild and Scenic Rivers Act.

3.21.a. If the Secretary is unable to determine whether the proposed operation is located within the boundaries of any of the lands described in paragraph (1), subsection (d), section 22 of the Act, or closer than the limits provided in paragraph (4), subsection (d), section 22 of the Act, the Secretary shall transmit a copy of the relevant portions of the permit application to the appropriate Federal, State or local government agency for a determination or clarification of the relevant boundaries or distances. The agency shall make such determinations within thirty (30) days of receipt of the Secretary's request. The Secretary may extend the response period by thirty (30) days upon written request.

3.21.b. When the Secretary receives any request for determination of valid existing rights on lands within the area of jurisdiction of the National Park Service or the U. S. Fish and Wildlife Service, a notification shall be made to the appropriate agency, and they shall have thirty (30) days in which to respond. The Secretary may, upon written request, extend the response period by an additional thirty (30) days.

3.21.c. Where the proposed operation would include Federal lands within the boundaries of any national forest when the applicant seeks a determination that mining is permissible under paragraph (5), subsection (d), section 22 of the Act, the applicant shall submit a permit application to the field office of the Federal Office of Surface Mine Reclamation and Enforcement with a request that such determinations be made.

3.22. Hydrologic Information.

3.22.a. PHC. Each permit application shall, in addition to the requirements of the Act, contain a statement describing the probable hydrologic consequences (PHC) of the proposed mining operation, with respect to the hydrologic balance, on both the permit area and adjacent areas. The statement shall be based on base line information developed from sampling and analysis of surface and groundwater at monitoring sites established both on the permit area and adjacent areas. Sampling and analysis shall be performed in accordance with methods approved by the Office of Surface Mining Reclamation and Enforcement. The longitude, latitude and elevation shall be given for each of the monitoring sites. Mathematical modeling techniques may be used to aid in the development of the required information. The PHC determination shall include findings on: whether adverse impacts may occur to the hydrologic balance; whether acid-forming or toxic-forming materials are present that could result in the contamination of surface or ground-water, and whether the proposed operation may proximately result in contamination, diminution or interruption of an underground or surface source of water within the proposed permit or adjacent areas which is used for domestic, agricultural, industrial, or other legitimate purpose; and what impact the proposed operation will have on:

3.22.a.1. Sediment yield from the disturbed area;

3.22.a.2. Acidity, total suspended and dissolved solids, and other important water quality parameters;

3.22.a.3. Flooding or stream flow alteration;

3.22.a.4. Ground-water and surface-water availability; and

3.22.a.5. Other characteristics as required by the Secretary.

3.22.b. Base Line Ground Water Information. Each application for a permit shall contain:

3.22.b.1. The Location, ownership, and use (if any) of known existing wells, springs, and other groundwater resources including discharges from other active or abandoned mines on the proposed permit area and adjacent areas in sufficient numbers to allow the applicant to make a reasonable approximation of the base line groundwater conditions and use;

3.22.b.2. Water quality analysis including, at a minimum, total dissolved solids, alkalinity, acidity, sulfates, specific conductance, pH, total iron and total manganese. Correlation data from other monitoring sites within the general area of the proposed mining operations may be accepted; provided, that a limited number of validation samples from the permit area may be required; provided further, that in areas where prior mining experience has shown acid production to be a possibility, or in acid producing seams in areas with no prior mining history, site specific water sampling and analysis data shall be required;

3.22.b.3. For significant aquifers, groundwater quantity descriptions including discharge rates or usage and depth to water under seasonal conditions in each water-bearing stratum above the coal seam and each potentially impacted stratum below the coal seam. Where deemed appropriate and feasible by the Secretary the operator may calculate water usage for water status discharge determinations; and

3.22.b.4. If the determination of the probable hydrologic consequences (PHC) indicates that a currently used or significant groundwater resources is likely to be contaminated, diminished, or interrupted, additional information shall be provided as necessary to fully evaluate such probable hydrologic consequences as water availability and suitability for both the premining and postmining land use in order to plan remedial and reclamation activities such as alternative water sources.

3.22.c. Base Line Surface Water Information. Each application for a permit shall contain:

3.22.c.1. The name, Location, ownership, and description of all surface water bodies on the permit area and adjacent areas;

3.22.c.2. Water quality descriptions including information on total suspended solids, total dissolved solids, specific conductance, pH, acidity, alkalinity, sulfates, total iron and total manganese sufficient to demonstrate seasonal variations; provided, that correlation data from other monitoring which does not include one or more of the above parameters may be accepted; provided further, that a limited number of validation samples may be required. In areas where prior mining experience has shown acid production to be a possibility, or in acid producing seams in areas with no prior mining history, site specific water sampling and analysis data shall be required;

3.22.c.3. Water quantity descriptions including information on seasonal flow rates, variation, and usage; and

3.22.c.4. If the determination of the probable hydrologic consequences (PHC) indicates that a currently used or significant surface water resource (including all lightly buffered streams) is likely to be contaminated, diminished, or interrupted, additional information shall be provided on the flood flows, base flows, and other characteristics or information as necessary to fully evaluate such probable hydrologic consequences as water availability and suitability for both the premining and postmining land use in order to plan remedial and reclamation activities such as alternative water sources.

3.22.d. The applicant shall submit with the application all available data and analysis described in subdivisions 3.22.b and 3.22.c of this subsection for use in preparing the cumulative hydrologic impact assessment (CHIA).

3.22.e. The Secretary shall perform a separate CHIA for the cumulative impact area of each permit application. This evaluation shall be sufficient to determine whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. Material damage to the hydrologic balance outside the permit areas means any long term or permanent change in the hydrologic balance caused by surface mining operation(s), which has a significant adverse impact on the capability of the affected water resource(s) to support existing conditions and uses.

3.22.f. Each permit application shall contain a hydrologic reclamation plan. The plan shall be specific to the local hydrologic conditions. It shall contain in the form of maps and descriptions the steps to be taken during mining and reclamation through bond release to minimize disturbances to the hydrologic balance within the permit and adjacent areas; to prevent material damage outside the permit area; to meet applicable Federal and State water quality laws and regulations; and to protect the rights of present water users. The plan shall include the measures to be taken to:

3.22.f.1. Avoid acid or toxic drainage;

3.22.f.2. Prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow;

3.22.f.3. Provide water treatment facilities when needed;

3.22.f.4. Control drainage;

3.22.f.5. Restore, protect, or replace water supply of present water users in accordance with section 24 of the Act. The plan shall specifically address the potential adverse hydrologic consequences identified in the PHC determination and shall include preventive and remedial measures;

3.22.f.5.A. The plan shall contain a description of the measures, which will be taken to replace water supplies that are contaminated, diminished, or interrupted to include;

3.22.f.5.A.1. Identification of the water replacement, which includes quantity and quality descriptions including discharge rates, or usage and depth to water;

3.22.f.5.A.2. Documentation that the development of identified water replacement is feasible and that the financial resources necessary to replace the affected water supply are available; and

3.22.f.6. Restore approximate premining recharge capacity provided that underground mining operations are exempt from this requirement.

3.22.g. Each application for a permit shall contain a surface water monitoring plans based on the PHC determination and base line hydrologic and geologic information. These plans shall identify monitoring site Locations, quantity and quality parameters, sampling frequency, and describe how the data will be used to determine the impact of the operation on the hydrologic balance both on the permit area and adjacent areas. Monitoring sites shall be located in the surface water bodies such as streams, lakes, and impoundments that are potentially impacted or into which water will be discharged at both upstream and downstream Locations from the discharge. Monitoring parameters shall include but are not limited to total dissolved solids or specific conductance corrected at 25°C, total suspended solids, flow measurements, pH, acidity, alkalinity, total iron and total manganese. The selection of these parameters must be based on current and approved postmining land uses and all hydrologic balance protection objectives.

3.22.h. Each application for a permit shall contain a ground water monitoring plan for all significant groundwater resources provided that monitoring shall not be required if the applicant can demonstrate that the aquifer is not one which significantly ensures the hydrologic balance within the cumulative impact area as provided in subdivision 14.7.c of this rule. The decision of need will be based on the PHC determination and base line hydrologic and geologic information gathered both on and off the mine site. These plans shall identify monitoring site Locations (latitude, longitude, and ground level elevations), quantity and quality parameters to be monitored, sampling frequency and duration, and describe how the data will be used to determine the impact of the operation on the hydrologic balance both on and off the mine site. Monitoring parameters shall include, but are not limited to, total dissolved solids or specific conductance corrected at 25°C, pH, acidity, alkalinity, total iron, total manganese, and water levels or discharge rates. The selection of these parameters must be based on current and approved postmining land uses and all hydrologic balance protection objectives.

3.22.i. If the PHC indicates that adverse impact may occur to the hydrologic balance or that acid forming or toxic forming material is present that may result in contamination of surface or groundwater supplies, then additional information supplemental to that required in subdivisions 3.22.b and 3.22.c. of this subsection shall be provided to evaluate such probable hydrologic consequences and to plan remedial and reclamation activities.

3.23. Geology. Each application for a permit shall contain the following geologic and related information:

3.23.a. Geologic cross sections, maps or plans of the proposed permit area and adjacent areas, prepared by or under the direction of and certified by a person approved by the Secretary. When required by the Secretary, test borings or core samplings shall be analyzed to determine the following information:

3.23.a.1. The Locations (latitude and longitude) and elevations of all bore holes;

3.23.a.2. The nature and depth of the various strata or overburden including geologic formation names and/or geologic members;

3.23.a.3. The elevation Location of subsurface water, if encountered, and its quality;

3.23.a.4. The nature and thickness of any coal or rider seams above the seam to be mined;

3.23.a.5. The nature of the stratum immediately beneath the coal seam to be mined;

3.23.a.6. All mineral crop lines and the strike and dip of the coal to be mined, within the area of land to be affected;

3.23.a.7. Existing or previous surface mining limits; and

3.23.a.8. The Location and extent of known workings of any underground mines, including mine openings to the surface.

3.23.b. information concerning the areal and structural geology of both the proposed permit and adjacent areas, down to the deeper of either the stratum immediately below the lowest coal seam to be mined or any aquifer which may be adversely impacted below the lowest coal seam to be mined. Areal geology may include information such as mapped outcrop Locations shown on a 7/4 minute United State Geological Survey (U.S.G.S.) topographic map, aerial photographs, and published geologic reports for the area of concern. Structural geology may include mapped lineament traces from aerial photography or topographic maps and any published structural geologic reports for the area of concern;

3.23.c. Areal and vertical distribution of aquifers with seasonal differences in head and the name(s) of the stratum (or strata) in which the water is found;

3.23.d. Location and depth of all oil and gas wells within the proposed permit area for both surface and underground mines;

3.23.e. For underground mining operations, indicate whether or not there will be a gravity discharge; and

3.23.f. A statement of the result of test borings or core samples from the permit and adjacent areas including:

3.23.f.1. The results of test borings including the lithologic logs of the drill holes displaying the physical properties and thickness of each stratum encountered which the applicant has made at the area to be covered by the permit, or other equivalent information and data in a form satisfactory to the Secretary including the structural geology, thickness of the coal seam to be mined, Location of subsurface water, if encountered, and an analysis of the chemical and physical properties, including but not limited to the sulfur content of any coal seam, the chemical analysis of potentially acid or toxic-forming sections of the overburden, and the chemical analysis of the stratum lying immediately undemeath the coal to be mined: Provided, that information which pertains only to the analysis of the chemical and physical properties of the coal, except information regarding such mineral or elemental contents which are potentially toxic in the environment, shall be kept confidential and not a matter of public record;

3.23.f.2. Premining overburden sampling and analysis or previous experience and correlation data, shall be made a part of each permit application for all acid-producing seams. Overburden sampling and analysis is to be performed in accordance with standard procedures set forth in Environmental Protection Agency Manual No. 600/2-78-054 (Field and Laboratory Methods Applicable to Overburdens and Mine Soils) or other methods approved by the Secretary;

3.23.f.3. For standard room and pillar mining operations, the thickness and engineering properties of clays or soft rock such as clay shale, if any, in the stratum immediately above and below each coal seam to be mined;

3.23.f.4. Cross sectional or areal maps illustrating faults, crop lines, dip/strike, synclines, anticlines and other known geologic structural features which have a bearing on the extraction of the coal and/or the hydro logic regime. The maps shall be accompanied by a detailed description of the illustrated data including a brief description of the degree of fracturing and weathering noted during the exploration drilling if it is believed to have a potential influence on the extraction of the coal and/or the hydrologic regime;

3.23.f.5. An explanation of the anticipated potential impacts of the proposed mining operation on the hydrology and geology of the area; and

3.23.f.6. An applicant may be granted a waiver for the requirements of paragraphs 3.23.f.1 and 3.23.f.3 of this subdivision only after the Secretary finds in writing that the collection and analysis of such data is unnecessary because other equivalent information exists and is available to the Secretary; provided, that in areas where mining history has shown acid production to be a possibility, or in acid producing seams in areas with no prior mining history, site specific overburden sampling and analysis data shall be required.

3.24. Protection of Adjacent Operations. Surface mining activities shall be designed to protect disturbed surface areas, including spoil disposal sites, so as not to endanger any present or future operations of either surface or underground mining activities.

3.25. Transfer, Reinstatement, Assignment, or Sale of Permit Rights and Obtaining Approval; Sale, Conveyance or Assumption of Control or Ownership of an Operation.

3.25.a. The Secretary may grant written approval of the transfer, reinstatement, assignment, or sale of a permit under the following terms and conditions:

3.25.a.1. The applicant shall affirmatively demonstrate to the Secretary that a bond in the full amount of that required for the permit will be kept in full force and effect before, during, and after the transfer, assignment, or sale.

3.25.a.2. The application for transfer, reinstatement, assignment, or sale, shall set forth on forms prescribed by the Secretary, the information required in paragraphs 1. through 6., subsection a., section 9; and paragraph 9. subsection a. of section 9, subsections d. and f. of section 9; paragraph 10., subsection a. of section 10; and paragraph 5. subsection b. of section 18 of the Act and subdivisions 3.1.a,3.1.b, 3.1.c, 3.1.d, 3.1.i, 3.1.J, and 3.1.k of this rule.

3.25.a.3. The applicant for transfer, reinstatement, assignment, or sale of a permit shall, upon filing of the application with the Secretary, give notice of the filing in a newspaper of general circulation in the locality of the operation. The notice shall be in the form of a legal advertisement containing information as set forth on forms provided by the Secretary, the name and address of the original permittee and the permit number and shall provide for a thirty (30) day comment period. Any person whose interests are or may be adversely affected, may submit written comments to the Secretary within thirty (30) days of the date of publication.

3.25.a.4. Approval of the application for transfer, reinstatement, assignment, or sale of a permit may be granted upon a written finding by the Secretary that the applicant is eligible to receive a permit in accordance with subdivisions 3.32.b, 3.32.c and paragraph 3.32.d.7 of this rule, has submitted a bond or other guarantee or will be covered by the bond of the original permittee, and will conduct mining operations in accordance with the purposes and intent of the Act, this rule, and the terms and conditions of the permit. Such findings will be based on information set forth in the application for transfer, reinstatement, assignment, or sale and any other information made available to the Secretary. Except for reinstatement, such approval may be granted in advance of the close of the public comment period Provided; That where information is made available to the Secretary as a result of public comment that would preclude approval, such approval shall be immediately withdrawn.

3.25.a.5. The Secretary shall notify the permittee, the successor, all commentors, and the Charleston field office of the Office of Surface Mining Reclamation and Enforcement of his findings.

3.25.a.6. The successor shall immediately notify the Secretary upon consummation of the transfer, assignment, or sale.

3.25.a.7. Each application for a transfer, reinstatement, assignment, or sale of a permit 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.

3.25.b. Any person who, through whatever means, assumes ownership or control directly or indirectly of a surface mining and reclamation operation shall become responsible for the correction of all outstanding unabated violations. The payment of all delinquent civil penalties and unpaid reclamation fees for the operation remain the responsibility of the prior permittee, unless it is determined by the Secretary pursuant to subsection 2.85 of this rule that the person assuming control owned or controlled the operation at the time such penalties or fees were incurred. As a condition of reinstatement, the Secretary may require a modification to the mining and reclamation plan.

3.25.c. A permittee who wishes to assign the mining operation through an agreement, contract, job contract, etc., to another person, but retain the permit must:

3.25.c.1. Request prior written approval of such assignment on forms prescribed by the Secretary. Under this arrangement the permittee remains subject to all provisions of the Act, this rule, and the terms and conditions of the permit;

3.25.c.2. Advertise the application pursuant to paragraph 3.25.a..3 of. this subsection; and

3.25.c.3. Provide, with respect to the assignee, the ownership and control information required by subdivisions 3.1.a, 3.1.b, 3.1.c, 3.1.d, 3.1.i, 3.1.J, and 3.1.k of this rule.

3.25.d. Each assignee who will function as an operator pursuant to the provisions of subdivision 3.25.c of this subsection, shall be subject to the eligibility requirements of subdivisions 3.32.c and 3.32.d of this rule.

3.25.e. The sale or other conveyance of a surface coal mining and reclamation operation which has outstanding violation(s), outstanding civil penalties, or reclamation fees, or the sale or other conveyance of any interest in any entity with outstanding violations, penalties, or fees, or the sale or conveyance of an entity which owns or controls an entity, or is owned or controlled by an entity which owns or controls a surface coal mining and reclamation operation with an outstanding violation, penalties or fees shall not in any way affect the application of the permit block sanction set forth in this rule.

3.26. Ownership and Control Changes.

3.26.a. All changes including name changes, replacements and additions to the ownership and control data relating to a permittee or assignee who will function as an operator pursuant to the provisions of subdivision 3.25.c of this subsection shall be reported to the Secretary. In the case of immediate owners and controllers of the permittee or the operator and/or name change, the change must be reported within thirty (30) days of the change. In all other cases, the change must be reported within one hundred twenty (120) days of the change. The Secretary will approve the appropriate permit modifications in the following situations:

3.26.a.1. If the notification is made within the prescribed periods;

3.26.a.2. The notification is made on forms prescribed for this purpose;

3.26.a.3. The change is not a Transfer, Assignment, or Sale of Rights as defined in subsection 2.131 of this rule;

3.26.a.4. The information required by subdivisions 3.1.c, 3.1.d, 3.1.i, 3.1 j, and 3.1.k of this rule is supplied relating to all newly identified owners and controllers;

3.26.a.5. Any newly-identified owner or controller is not prohibited from being issued a surface coal mining and reclamation permit. In the event that a newly-identified owner or controller is prohibited from being issued a surface coal mining and reclamation permit, the Secretary shall, notwithstanding the fact that the person became an owner or controller subsequent to the issuance of any affected permit, declare all affected permits to be improvidently issued and take action pursuant to subdivisions 3.34.c, 3.34.d, and 3.34.e of this section; and

3.26.a.6. In the event that a permittee or operator has incurred no changes in its ownership and control information and therefore has not been obligated to file a report within any consecutive twelve-month period, that permittee or operator is required to notify the Secretary in writing that no changes to the information required by subdivisions 3.1.b, 3.1.c, 3.1.d, and 3.1.i of this section have occurred.

3.26.b. The applicant has the burden of proving that any change in ownership or control is not a Transfer, Assignment, or Sale of Rights as defined in subsection 2.131 of this rule.

3.26.c. The change may require public notice.

3.27. Permit Renewals and Permit Extensions.

All active surface mining operations shall be subject to the renewal requirements and provisions for issuance of a renewal discussed in section 19 of the Act: Provided, That the Secretary shall waive the requirements for renewal if the permittee certifies in writing that all coal extraction is completed, that all backfilling and regrading will be completed and reclamation activities are ongoing. Once an operation has received a waiver of the renewal requirement, it is exempt from the restriction contained in paragraph 11.4.a.2 of this rule regarding changing from full permit bonding to incremental bonding, and the operation may submit a bonding revision to the Secretary for approval.

Those operations which have been granted inactive status in accordance with subsection 14.11 of this rule shall also be subject to the renewal requirements of section 19 of the Act.

Applications for renewal shall be filed on forms provided by the Secretary and shall contain at a minimum the following information:

3.27.a.1. The name and address of the permittee, Location of the permit area including the county, the magisterial district, the nearest post office and the permit number;

3.27.a.2. A statement that the terms and conditions of the preplan are being satisfactorily met;

3.27.a.3. A statement that the operation is in compliance with the applicable environmental protection standards of the Act and this rule;

3.27.a.4. A statement that the bond and insurance policy for the operation will continue in effect;

3.27.a.5. A progress map of an approved size and scale as the proposal maps for all operations except those operations which have obtained a bond release or those operations with no disturbance and which have not started into operation;

3.27.a.6. Each application for a permit renewal 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

3.27.a.7. A copy of the proposed newspaper advertisement in accordance with subsection (a) section 20 of the Act and subsection 3.2 of this rule.

3.27.b. Each application for renewal of a permit shall be administratively complete prior to public notice. The Secretary shall notify the appropriate agencies of the application for renewal as required in subsection (a) of section 20 of the Act.

3.27.c. Any person having an interest which is or may be adversely affected by the decision on the application, or an officer or a head of a Federal, State, or local government agency, may request in writing that the Secretary hold an informal conference on the application for a permit renewal.

3.27.c.1. The request shall:

3.27.c.1.A. Briefly summarize the issues to be raised by the requestor at the conference;

3.27.c.1.B. State whether the requestor desires to have the conference conducted in the locality of the proposed operation; and

3.27.c.1.C. Be filed with the Secretary no later than thirty (30) days after the last publication of the newspaper advertisement required under paragraph 3.27.a.7. of this subdivision.

3.27.c.2. Except as provided in paragraph 3.27.c.3 of this subsection, if any informal conference is requested the Secretary shall hold an informal conference within a reasonable time following the receipt of the request. The informal conference shall be conducted as follows:

3.27.c.2.A. If requested, it shall be held in the locality of the proposed surface mining and reclamation operation.

3.27.c.2.B. The date, time, and Location of the informal conference shall be sent to the applicant and other parties to the conference and advertised by the Secretary in a newspaper of general circulation in the locality of the proposed surface mining and reclamation operation at least two (2) weeks before the scheduled conference.

3.27.c.2.C. If requested in writing by a conference requestor at a reasonable time before the conference, the Secretary may arrange with the applicant to grant parties to the conference access to the proposed permit area and, to the extent that the applicant has the right to grant access to it, to the adjacent area prior to the established date of the conference for the purpose of gathering information relevant to the conference.

3.27.c.2.D. The conference shall be conducted by the Secretary, who may accept oral or written statements and any other relevant information from any party to the conference. An electronic or stenographic record shall be made of the conference, unless waived by all the parties. The record shall be maintained and shall be accessible to the parties of the conference until final release of the applicant's bond or other equivalent guarantee.

3.27.c.3. If all parties requesting the informal conference withdraw their request before the conference is held, the informal conference may be canceled.

3.27.d. A time extension of sixty (60) days may be granted by the Secretary for permit renewal which has been submitted but is logistically impractical to process before the expiration date.

3.27.e. Extensions of time for a permit as provided in subsection 3, section 8 of the Act shall be specifically set forth in a written approval and made part of the permit. Such extension shall be made public by the Secretary.

3.27.f. Extensions of the initial permit term in excess of five (5) years as provided in subsection (1) of section 8 of the Act may be granted upon written request by the applicant. Such request shall be accompanied by a written verification. Any permit extension which is approved under this subdivision shall be reviewed by the Secretary at its mid-term or every five (5) years, whichever is more frequent.

3.28. permit Revisions.

3.28.a. Each request for a permit revision will be submitted on forms prescribed by the Secretary which shall be signed by the accountable official of the applicant and shall be notarized.

3.28.b. Each application for a permit revision shall be subject to review and approval by the Secretary. Each application shall be reviewed by the Secretary to determine if an updated probable hydrologic consequences determination or cumulative hydrologic impact assessment is required. The Secretary shall make a determination, on the basis of information provided in the permit revision application, whether or not the revision is of a significant or non-significant nature. The following criteria shall provide guidance for making such a determination.

3.28.b.1. Where the permit revision constitutes a significant departure from the terms and conditions of the existing permit which may result in a significant impact in any of the following areas, it shall be deemed to be a significant revision and be subject to the public notice requirements of subdivisions 3.2.a,3.2.b., 3.2.c. and 3.2.d. of this rule: :

3.28.b.1.A. The health, safety, or welfare of the public;

3.28.b.1.B. The hydrologic balance in the area of operation;

3.28.b.1.C. The postmining land use;

3.28.b.1.D. Areas prohibited from mining pursuant to the provisions of subsection (d) section 22 of the Act; and

3.28.b.1.E. An individual's legal right to receive notice, as prescribed by the provisions of this rule.

3.28.b.2. Where the permit revision constitutes only an insignificant departure from the terms and conditions of the approved permit, it shall be deemed to be a non-significant revision requiring no public notice.

3.28.c. The Secretary may require reasonable revisions to surface mining permits or prospecting approvals where such revisions are necessary to assure compliance with the Act and this rule; provided, that the Secretary shall notify the permittee that such revisions are necessary and shall provide a reasonable time for compliance.

3.29. Incidental Boundary Revisions (IBRs).

3.29.a. Incidental Boundary Revisions (IBRs) shall be limited to minor shifts or extensions of the permit boundary into non-coal areas or areas where any coal extraction is incidental to or of only secondary consideration to the intended purpose of the IBR IBRs shall also include the deletion of bonded acreage which is overbonded by another valid permit and for which full liability is assumed in writing by the successive permittee. Incidental Boundary Revisions shall not be granted for any prospecting operations..

3.29.b. General. Applications for IBRs shall be as follows:

3.29.b.1. The application shall be filed on forms provided by the Secretary.

3.29.b.2. For purposes of surface mining operations, the maximum total acreage to be permitted under one or more IBR(s) shall not exceed twenty (20) percent of the original permitted acreage or a maximum of fifty (50) acres, whichever is less, throughout the life of the permit. Acreage limitation for IBR(s) on underground mining operations and other mining operations including but not limited to loadout operations, coal refuse disposal operations and coal preparation operations shall be limited to one hundred fifty (150) percent of the original permitted acreage or a maximum of fifty (50) acres, whichever is less, throughout the life of the permit; Provided, That the Secretary may grant a waiver specifying larger acre limits where the applicant demonstrates that the nature and complexity of the operation clearly requires more than fifty (50) acres for additional facilities to include but not be limited to site development, air shafts, fan ways, vent holes, roads, staging areas, etc.

3.29.b.3. The application shall be accompanied by adequate bond.

3.29.b.4. The application shall be accompanied by a map showing the areas covered by the IBR.

3.29.b.5. The application shall be accompanied by a reclamation plan for the area of the IBR which is consistent with the existing reclamation plan.

3.29.b.6. The application shall be subject to review and approval by the Secretary.

3.29.c. An IBR may not be implemented by any operator until written approval of the Secretary has been granted.

3.29.d. The Secretary shall make the following findings prior to approval of an IBR:

3.29.d.1. The IBR will facilitate the orderly and continuous conduct of mining and reclamation operations.

3.29.d.2. Except for underground operations, an area permitted under an IBR must be contiguous to the original permitted area.

3.29.e. Each application for an IBR shall be subject to review and approval by the Secretary. Each application shall be reviewed by the Secretary to determine if an updated probable hydrologic consequences determination or cumulative hydrologic impact assessment is required. The Secretary shall make a determination, on the basis of information provided in the IBR application, whether the IBR is of a significant or non-significant nature. The following criteria shall provide guidance for making such a determination.

3.29.e.1. Where the IBR constitutes a significant departure from the terms and conditions of the existing permit which may result in a significant impact in any of the following areas, it shall be deemed to be significant and be subject to the public notice requirements of subdivisions 3.2.a. ,3.2.b.,3.2c. and 3.2.d. of this rule:

3.29.e.1.A. The healthy, safety, or welfare of the public;

3.29.e.1.B. The hydrologic balance in the area of operation;

3.29.e.1.C. The postmining land use;

3.29.e.1.D. The method of mining;

3.29.e.1.E. Adverse environmental impacts of a larger scope or different nature from those described in the approved permit

3.29.e.1.F. Areas prohibited from mining pursuant to the provisions of subsection (d) section 22 of the Act; and

3.29.e.1.G. An individual's legal right to receive notice, as prescribed by the provisions of this rule

3.29.e.2. Where the IBR constitutes only an insignificant departure from the terms and conditions of the approved existing permit, it shall be deemed to be non-significant, requiring no public notice.

3.30. Variance.

3.30.a. Approximate Original Contour. All permits approved with variances from approximate original contour shall be reviewed by the Secretary two and one-half (2 ½) years after issuance to determine whether or not the operation is proceeding in accordance with the terms of the variance.

3.30.b. Contemporaneous Reclamation. The Secretary may grant a request for variance from contemporaneous reclamation in accordance with paragraph (16), subsection (b), section 13 of the Act, if such request is made a part of the surface mining permit application or a subsequent revision to a permit, and if the area reserved for the underground mining operation is permitted under a separate permit. If the underground mining operation is not activated within three (3) years of the date of issuance of the permit, the permit shall terminate, unless extended as provided for in subsection (3), section 8 of the Act. Upon termination of the permit, the mine site shall be reclaimed in accordance with the Act, this rule, and the reclamation plan approved in the permit.

3.30.c. Any person desiring a variance under subdivision 3.30.b of this subsection shall file with the Secretary complete applications for both the surface mining activities and underground mining activities which are to be combined. The reclamation and operation plans for these permits shall contain appropriate narratives, maps, and plans which:

3.30.c.1. Show why the proposed underground mining activities are necessary or desirable to assure maximum practical recovery of the coal;

3.30.c.2. Show how multiple future disturbances of surface lands or waters will be avoided;

3.30.c.3. Identify the specific surface areas for which a variance is sought and the sections of the Act or this rule from which a variance is being sought;

3.30.c.4. Show how the activities will comply with subsections 3.24 and 14.13 of this rule;

3.30.c.5. Show why the variance sought is necessary for the implementation of the proposed underground mining activities;

3.30.c.6. Provide an assessment of the adverse environmental consequences and damages, if any, that will result if the reclamation of surface mining activities is delayed; and

3.30.c.7. Show how offsite storage of spoil will be conducted to comply witti the requirements of the Act and subsection 14.14 of this rule.

3.30.d. Issuance of Permit. A permit incorporating a variance granted under subdivision 3.30.b. of this subsection may be issued by the Secretary if it is first determined, in writing, upon the basis of a complete application filed in accordance with this subsection, that:

3.30.d.1. The applicant has presented, as part of the permit application, specific, feasible plans for the proposed underground mining activities;

3.30.d.2. The proposed underground mining activities are necessary or desirable to assure maximum practical recovery of the mineral resources and will avoid multiple future disturbances of surface land or waters;

3.30.d.3. The applicant has satisfactorily demonstrated that the applications for the surface mining activities and underground mining activities conform to the requirements of the Act and this rule and that all other permits necessary for the underground mining activities have been issued by the appropriate authority;

3.30.d.4. The surface area of surface mining activities proposed for the variance has been shown by the applicant to be necessary for implementing the proposed underground mining activities;

3.30.d.5. No substantial adverse environmental damage, either onsite or offsite, will result from the delay in completion of reclamation;

3.30.d.6. The operations will, insofar as a variance is authorized, be conducted in compliance with the requirements of subsections 3.24 and 14.13 of this rule;

3.30.d.7. Provisions for offsite storage of spoil will comply with the requirements of the Act and subsection 14.14 of this rule;

3.30.d.8. Liability under the bond required to be filed by the applicant will be for the duration of the underground mining activities and until all requirements of the Act and this rule have been complied with;

3.30.d.9. The permit for the surface mining activities contains specific conditions:

3.30.d.9.A. Delineating the particular surface areas for which a variance is authorized;

3.30.d.9.B. Identifying the applicable provisions of the Act and this rule; and

3.30.d.9.C. Providing a detailed schedule for compliance with the provisions of this subsection.

3.30.e. Variances granted under subdivision 3.30.b of this subsection shall be reviewed by the Secretary no later than three (3) years from the dates of issuance of the permit and any permit renewals.

3.31. Federal, State, County, Municipal, or Other local Government-Financed Highway or Other Construction Exemption.

3.31.a. To qualify as a Federal, State, County, Municipal or other local government-financed highway or other construction project, the construction must be funded fifty percent (50%) or more by the relevant government agency. Funding at less than fifty percent (50%) may qualify if the construction is undertaken as an approved government reclamation contract. Once the exemption is granted, the person doing the construction must have on site available for inspection, the following:

3.31.a.1. Descriptions of the project to include, but not be limited to, the exact Location of the limits of all of the area to be affected by the construction; and

3.31.a.2. authorization from the agency or agencies providing the funding and, if different, the agency or agencies responsible for the construction, giving permission to proceed and the amount of funding provided as a percent of the total project cost.

3.31.b. The extraction of coal shall be limited to areas within the highway right-of-way or within the boundaries of the area directly affected by other construction activities.

3.31.c. Funding less than fifty percent (50%) may qualify if the construction is undertaken as part of an approved reclamation project in accordance with WV Code § 22-3-28.

3.32. Findings - Permit Issuance.

3.32.a. The Secretary shall review an application for a permit a permit revision, or a permit renewal, written comments and objections submitted relative to the application, records of any informal conference or hearing held relative to the application, and issue a written decision either granting, requiring modification of, or denying the application. If an informal conference is held, the decision shall be made within thirty (30) days of the close of the conference, unless a later time is necessary to provide an opportunity for an appeal. The applicant for a permit or revision of a permit shall have the burden of establishing that his application is in compliance with all the requirements of the Act and this rule.

3.32.b. Based on the information provided by applicants for surface mining permits pursuant to subdivisions 3.1.a, 3.1.b, 3.1.c, 3.1.d, 3.1.i, 3.1.J, and 3.1.k of this rule and any other reasonably available information, the Secretary will compile and maintain an accurate and up-to-date computerized listing of all persons who own or control surface mining operations with outstanding unabated cessation orders, delinquent civil penalties, delinquent reclamation fees, and bond forfeitures of record in the state since May 3, 1978. The listing will include, to the extent reasonably possible, all owners and controllers of the violator(s), described in subdivision 3.1.c of this rule. The Secretary will make reasonable efforts to determine the owners and controllers of the permittee, the operator if different from the permittee, and the lessor or mineral owner, where a contract mining situation exists. The procedures and listings described in this subsection do not apply to notices of violations and are subject to rights of rebuttable presumption. The Secretary is not obligated to use this information to conduct a systematic review of all existing permits for the purpose of identifying and subsequently suspending those, if any, which may have been improvidently issued.

The Secretary will, using the computerized data bases, review prior to permit issuance all applications received after the effective date of this rule and make all reasonable efforts to determine at a minimum in each case whether outstanding violations (except for notices of violations), unabated cessation orders, delinquent civil penalties, and/or bond forfeitures exist on the part of the applicant, the owners or controllers of the operator, and the lessor and entities controlled by the lessor, (if the lessor retains rights to the coal after extraction) and, if so, withhold approval of the application until all violations are abated or otherwise resolved in accordance with the requirements of the Act and this rule.

Where the information in the subject data bases is incomplete and where the information is not available or has not been made available to the Secretary prior to issuance of the permit, the Secretary shall not be held in violation of any of the requirements of the Act and this rule. However, where it is later determined that permits were improvidently issued as a result of inadequate information in the subject data bases or other sources available at the time the permit is issued, the Secretary shall initiate the procedures set forth in subsection 3.34 of this section.

3.32.c. Based on reasonably available information concerning Federal and State failure-to-abate cessation orders, unabated Federal and State imminent harm cessation orders, delinquent civil penalties, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violations of Federal and State laws, rules and regulations pertaining to air or water environmental protection incurred in connection with any surface mining operation, the Secretary shall not issue the permit if any surface mining and reclamation operations owned or controlled by either the applicant or by any person who owns or controls the applicant is currently in violation of the Act or any other law, rule or regulation referred to in this paragraph. In the absence of a failure-to-abate cessation order, the Secretary may presume that a notice of violation has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except where evidence to the contrary is set forth in the permit application, or where the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties. If a current violation exists, the Secretary shall require the applicant, or person who owns or controls the applicant, before the issuance of the permit, to either:

3.32.c.1. Submit proof that the current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation; or

3.32.c.2. Establish that the applicant or any person owned or controlled by either the applicant or any person who owns or controls the applicant, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the current violation. If the initial judicial review authority either denies a stay applied for in the appeal or affirms the violation, then the applicant shall within thirty (30) days submit the proof required under paragraph 3.32.c.1 of this subdivision.

3.32.c.3. Any permit that is issued on the basis of proof submitted under paragraph 3.32.c.1. of this subdivision that a violation is in the process of being corrected, or pending the outcome of an appeal described in paragraph 3.32.c.2 of this subdivision, shall be conditionally issued.

3.32.c.4. If the Secretary makes a finding that the applicant, or any person who owns or controls the applicant, or the operator specified in the application, controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of the Act and this rule of such nature and duration and with such resulting irreparable damage to the environment as to indicate an intent not to comply with the Act, or this rule, the permit shall not be granted. Before such a finding becomes final, the applicant or operator shall be afforded an opportunity for an adjudicatory hearing.

3.32.d. No permit application or application for a significant revision of a permit shall be approved unless the application affirmatively demonstrates and the Secretary finds, in writing, on the basis of information set forth in the application or from information otherwise available that is documented in the approval, the following:

3.32.d.1. The application is complete and accurate and the applicant has complied with all requirements of the Act and this rule.

3.32.d.2. The applicant has demonstrated that reclamation as required by the Act and this rule can be accomplished under the reclamation plan contained in the permit application.

3.32.d.3. The proposed permit area is:

3.32.d.3.A. Not within an area under study or administrative proceedings under a petition filed, to have an area designated as unsuitable for surface coal mining operations, unless the applicant demonstrates that before January 4, 1977, he had made substantial legal and financial commitments in relation to the operation covered by the permit application; or

3.32.d.3.B. Not within an area designated as unsuitable for mining and subject to the prohibitions or limitations of subsection (d), section 22, of the Act.

3.32.d.4. Where the private mineral estate to be mined has been severed from the private surface estate, an applicant shall also submit:

3.32.d.4.A. A copy of the written consent of the surface owner for the extraction of coal by surface mining methods;

3.32.d.4.B. A copy of the conveyance that expressly grants or reserves the right to extract coal by surface mining methods; or

3.32.d.4.C. If the conveyance does not expressly grant the right to extract the coal by surface mining methods, documentation that under State law, the applicant has the legal authority to extract the coal by those methods.

3.32.d.5. The Secretary has made an assessment of the probable cumulative impacts of all anticipated coal mining on the hydrologic balance in the cumulative impact area and has determined that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

3.32.d.6. The applicant has demonstrated that any existing structure will comply with subsection 3.8 and section 14 of this rule.

3.32.d.7. The applicant has paid all reclamation fees from previous and existing operations.

3.32.d.8. The applicant has satisfied the applicable requirements for experimental practices, steep slope mining, mountaintop removal mining, variances from approximate original contour, variances for delay in contemporaneous reclamation, prime farmland, auger mining, in situ processing, and coal preparation plants not located within the permit area of a mine, when such are proposed in the application.

3.32.d.9. The applicant has, if applicable, satisfied the requirements for approval of a long-term intensive agricultural postmining land use.

3.32.d.10. The operation would not affect the continued existence of endangered or threatened species or result in destruction or adverse modification of their critical habitats, as determined under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.).

3.32.d.11. The Secretary has taken into account the effect of the proposed permitting action on properties listed on and eligible for listing on the National Register of Historic Places. This finding may be supported in part by inclusion of appropriate permit conditions or changes in the operation plan protecting historic resources, or a documented decision that the Secretary has determined that no additional protection measures are necessary.

3.32.d.12. For a proposed remining operation where the applicant intends to reclaim in accordance with the requirements of section 24 of this rule, the site of the proposed operation is an area which was previously mined would be eligible for expenditures under section 4, Article, Chapter 22 of the Act.

3.32.d.13. The applicant has provided evidence that liability insurance in accordance with subsection 11.1 of this rule is in effect.

3.32.e. If the application is approved, the Secretary shall require that the applicant file a bond as provided in sections 11 and 12 of the Act and section 11 of this rule.

3.32.f. After an application is approved, but before a surface mining permit is issued, the Secretary shall reconsider his decision to approve the application, based on the compliance review required by subdivision 3.32.c of this subsection in light of any new information submitted under subdivision 3.1.n of this rule. Permit revisions and permit renewals are not subject to the provisions of this subdivision.

3.32.g. The prohibition of subdivision 3.32.c shall not apply to a permit application due to any violation resulting from an unanticipated event or condition at a surface mine eligible for remining under permit held by the applicant that meets the requirements of 30 CFR 773.15(4)(i). An event will be presumed to be unanticipated for purposes of this paragraph if it:

3.32.g.1. Arose after remining permit was issued.

3.32.g.2. Was related to prior mining; and

3.32.g.3. Was not identified in the remining permit.

3.33. Permit Conditions. Each permit issued by the Secretary shall be subject to the following conditions:

3.33.a. The permittee shall conduct surface coal mining and reclamation operations only on those lands that are specifically designated as the permit area on the maps submitted with the application and authorized for the term of the permit and that are subject to the bond or other equivalent guarantee in effect pursuant to section 11 and section 12 of the Act and section 11 of this rule.

3.33.b. The permittee shall conduct all surface coal mining and reclamation operations only as described in the approved application, except to the extent that the Secretary otherwise directs in the permit.

3.33.c. The permittee shall comply with the terms and conditions of the permit, all applicable performance standards of the Act, and this rule.

3.33.d. Without advance notice, delay, or a search warrant, upon presentation of appropriate credentials, the permittee shall allow the Secretary to:

3.33.d.1. Have the right of entry provided for in subsection (a), section 15 of the Act; and

3.33.d.2. Be accompanied by private persons for the purpose of conducting an inspection in accordance with subsection 18.2 of this rule when the inspection is in response to an alleged violation reported to the Secretary by the private person.

3.33.e. The permittee shall take all possible steps to minimize any adverse impact to the environment or public healthy and safety resulting from non-compliance with any term or condition of the permit, including, but not limited to:

3.33.e.1. Any accelerated or additional monitoring necessary to determine the nature and extent of non-compliance and the results of the non-compliance;

3.33.e.2. Immediate implementation of measures necessary to comply; and

3.33.e.3. Warning, as soon as possible after learning of such non-compliance, any person whose healthy and safety is in imminent danger due to the non-compliance.

3.33.f. As applicable, the permittee shall comply with subsection 3.8 of this rule and all applicable performance standards for compliance, modification, or abandonment of existing structures.

3.33.g. The operator shall pay all reclamation fees for coal produced under the permit for sale, transfer or use.

3.33.h. Within thirty (30) days after a cessation order is issued for operations conducted under the permit, except where a stay of the cessation order is granted and remains in effect, the permittee shall either submit to the Secretary the following information, current to the date the cessation order was issued, or notify the Secretary in writing that there has been no change since the immediately preceding submittal of such information:

3.33.h.1. Any new information needed to correct or update the information previously submitted to the Secretary by the permittee under subdivision 3.1.c of this rule; or

3.33.h.2. If not previously submitted, the information required from a permit applicant by subdivision 3.1.c of this rule.

3.33.i. The obligations established under the permit, the Act, and this rule shall continue regardless of whether the permit has expired, or has been terminated, suspended, or revoked. The bond and liability insurance shall remain in effect throughout the life of the permit, any renewal thereof, and the liability period necessary to ensure completion of reclamation.

3.34. Improvidently issued permits: General Procedures.

3.34.a. Where the Secretary has reason to believe that an improvidently issued surface coal mining and reclamation permit exists, he shall review the circumstances under which the permit was issued. If, using the criteria set forth in subdivision 3.34.b of this subsection, the Secretary finds that the permit was improvidently issued, he shall take action in accordance with subdivision 3.34.c of this subsection.

3.34.b. A surface coal mining and reclamation permit shall be determined to have been improvidently issued if under the violations review criteria in subdivision 3.32.b of this subsection at the time the permit was issued:

3.34.b.1. The permit should not have been issued because of an unabated violation or a delinquent penalty or fee and the violation, penalty or fee remains unabated or delinquent and is not the subject of a good faith appeal, or an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency;

3.34.b.2. The permit was issued on the presumption that a notice of violation was in the process of being corrected to the satisfaction of the agency with jurisdiction over the violation, but a cessation order subsequently was issued;

3.34.b.3. The permittee was linked to a violation, penalty, or fee through ownership or control, under the violation review criteria, paragraph b. of subsection 3.32 of this Section at the time the permit was issued and an ownership or control link between the permittee and the person responsible for the violation, penalty, or fee still exists, or when the link was severed the permittee continues to be responsible for the violation, penalty, or fee; or

3.34.b.4. The permit should not have been approved because the permittee had a permit revoked or bond forfeited and has not been reinstated, or the permittee was linked to a permit revocation or bond forfeiture through ownership or control, at the time the permit was issued and an ownership or control link between the permittee and the person whose permit was revoked or whose bond was forfeited still exists, or when the link was severed the permittee continues to be responsible for the permit revocation or bond forfeiture.

3.34.c. When the Secretary finds, under subdivision 3.34.b of this subsection, that because of an unabated violation or a delinquent penalty or fee, permit revocation or a bond forfeiture, a permit was improvidently issued, he shall take one or more of the following remedial measures:

3.34.c.1. Implement, with the cooperation of the permittee or other person responsible, and the responsible agency, a plan for abatement of the violation or a schedule for payment of the penalty or fee;

3.34.c.2. Impose on the permit a condition requiring that in a reasonable period of time the permittee or other person responsible abate the violation or pay the penalty or fee;

3.34.c.3. Suspend the permit until the violation is abated or the penalty or fee is paid; or

3.34.c.4. Rescind the permit in accordance with subdivision 3.34.d of this subsection.

3.34.d. When the Secretary elects to rescind an improvidently issued permit, he shall serve on the permittee a notice of proposed suspension and rescission which includes the reasons for the finding and states that:

3.34.d.1. After a specified period of time not to exceed ninety (90) days, the permit automatically will become suspended, and not to exceed ninety (90) days thereafter rescinded, unless within those periods the permittee submits proof, and the regulatory authority finds, that:

3.34.d.1.A. The finding of the Secretary under subdivision 3.34.b of this subsection was erroneous;

3.34.d.1.B. The permittee or other person responsible has abated the violation on which the finding was based, or paid the penalty or fee, to the satisfaction of the Secretary;

3.34.d.1.C. The violation, penalty or fee is the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; or

3.34.d.1.D. Since the finding was made, the permittee, has severed any ownership or control link with the person responsible for, and does not continue to be responsible for, the violation, penalty, or fee.

3.34.d.1.E. The permittee or other person responsible for the permit revocation or bond forfeiture has been reinstated, pursuant to subsection (c), section 18, of the Act.

3.34.e. Cessation of Operations. After permit suspension or rescission, the permittee shall cease all surface mining operations under the permit, except for violation abatement and for reclamation and other environmental protection measures as required by the Act and this rule and the terms and conditions of the permit.

3.34.f. The permittee may file an appeal for administrative review of the notice in accordance with the provisions of subsection (e), section 17 of the Act.

3.34.g. For purposes of this subsection, a permit is issued when it is originally approved, as well as when a transfer, assignment, or sale of permit rights is approved pursuant to subdivisions 3.25.a or 3.25.c of this rule, or when a permit is revised pursuant to subsection 3.26 of this rule.

3.35. Construction Tolerance. All grade measurements and linear measurements in this rule shall be subject to a tolerance of two percent (2%). All angles in this rule shall be measured from the horizontal and shall be subject to a tolerance of five percent (5%). Provided, however, this allowable deviation from the approved plan does not affect storage capacity and/or performance standards.

W. Va. Code R. § 38-2-3