38-14.1-24. Environmental protection performance standards
General performance standards are applicable to all surface coal mining and reclamation
operations and must require the permittee at a minimum to:
1. Conduct surface coal mining operations so as to maximize the utilization and
conservation of the coal or commercial leonardite being recovered so that re-affecting
the land in the future through surface coal mining can be minimized.
1.1. Conduct any auger mining associated with surface coal mining operations in a manner
that will maximize recoverability of coal or commercial leonardite and other mineral
reserves remaining after mining activities and reclamation operations are completed,
and seal or fill all auger holes as necessary to ensure long-term stability of the area
and minimize any adverse impact to the environment or hazard to public health or
safety. The commission may prohibit auger mining if necessary to maximize the
utilization, recoverability, or conservation of coal or commercial leonardite resources,
to ensure long-term stability, or to protect against any adverse impact to the
environment or hazard to public health or safety.
2. Restore the land affected to a condition capable of supporting the uses which it was
capable of supporting prior to any mining, or higher or better uses approved by the
commission, which may include industrial, commercial, agricultural, residential,
recreational, or public facilities. In approving the postmining land use, or changes
thereto, the commission shall establish by regulation postmining land use criteria that
must be demonstrated by the permittee and considered by the commission in making
its decision.
3. Backfill, compact (where advisable to ensure stability or to prevent leaching of toxic
materials), and grade to reshape all areas affected by surface coal mining operations
to the gentlest topography consistent with adjacent unmined landscape elements in
order to develop a postmining landscape that will provide for maximum moisture
retention, drainage that will complement the surrounding terrain, maximum stability,
minimum soil losses from runoff and erosion, with all highwalls, spoil piles, and
depressions eliminated (unless small depressions are needed in order to retain
moisture to assist revegetation or as otherwise authorized pursuant to this chapter),
and with maximum postmining graded slopes that do not exceed the approximate
original contour; provided, however, that:
a. A different contour or topography may be required by the commission to better
achieve the approved postmining land use.
b. The permittee, at a minimum, shall backfill, grade, and compact (where
advisable) using all available overburden and other spoil and waste materials to
attain the lowest practicable grade (not to exceed the angle of repose), to provide
adequate drainage, and to contain all toxic materials in order to achieve an
ecologically sound land use compatible with the surrounding region, in those
instances where:
(1) Surface coal mining operations are carried out over a substantial period of
time at the same location where the operation transects the coal or
commercial leonardite deposit;
(2) The thickness of the coal or commercial leonardite deposits relative to the
volume of overburden is large; and
(3) The permittee demonstrates that the overburden and other spoil and waste
materials at a particular point in the permit area or otherwise available from
the entire permit area are insufficient, giving due consideration to volumetric
expansion, to restore the approximate original contour.
4. Stabilize and protect all surface areas, including spoil piles affected by the surface coal
mining and reclamation operation, to effectively control erosion and attendant air and
water pollution.
5. Remove, segregate, and respread suitable plant growth material as required by the
commission within the permit area. The commission may require the permittee to
segregate suitable plant growth material in two or more soil layers. The commission
shall determine the soil layer or layers to be removed based upon the quality and
quantity of suitable plant growth material inventoried by the soil survey required in
subdivision t of subsection 1 of section 38-14.1-14. Based on the soil survey, the
commission shall also determine whether other suitable strata are necessary to meet
revegetation requirements. If other strata can be shown to be suitable and necessary
to meet revegetation requirements, the commission may require the permittee to
determine the areal extent of other suitable strata within the proposed permit area, and
to remove, segregate, protect, and respread such material. If the suitable plant growth
material or other suitable strata cannot be replaced on an approved graded area within
a time short enough to avoid deterioration of such material, the permittee shall
stockpile and stabilize such materials by establishing a successful cover of
quick-growing plants or by other means thereafter so that the suitable plant growth
material or other suitable strata will be protected from wind and water erosion and will
remain free from any contamination by toxic material. In the interest of achieving the
maximum reclamation provided for in this chapter, the permittee may, or at the
discretion of the commission shall, utilize such soil amendments as described in
section 38-14.1-02.
6. For all prime farmlands as identified in paragraph 3 of subdivision a of subsection 2 of
section 38-14.1-14 to be mined and reclaimed, the permittee shall, at a minimum, be
required to:
a. Segregate the A horizon of the natural soil or a combination of the A horizon
materials and other available suitable plant growth materials that will create a
final soil having a productive capacity equal to or greater than that which existed
prior to mining; and if not utilized immediately, stockpile this material and provide
needed protection from wind and water erosion or contamination;
b. Segregate the B horizon of the natural soil, or underlying C horizons or other
strata, or a combination of such horizons or other strata that are shown to be
physically and chemically suitable for plant growth and that can be shown to be
equally or more favorable for plant growth than the B horizon, in sufficient
quantities to create in the regraded final soil a root zone of comparable depth and
quality to that which existed in the natural soil. If not utilized immediately, such
material must be stockpiled and provided needed protection from wind and water
erosion or contamination;
c. Replace the material described in subdivision b with proper compaction and
uniform depth as determined by the commission over the regraded spoil material;
and
d. Redistribute in a uniform manner as determined by the commission the surface
soil described in subdivision a.
7. Create, if authorized in the approved mining and reclamation plan and permit, as part
of reclamation activities, permanent water impoundments in accordance with the
requirements of the department of water resources and all of the following standards:
a. The size of the impoundment will be adequate for its intended purposes.
b. The impoundment dam construction will be designed to achieve necessary
stability with an adequate margin of safety compatible with the requirements of
applicable state law.
c. The quality of impounded water will be suitable on a permanent basis for its
intended use, and discharges from the impoundment will not exceed the quality
limitations imposed by the North Dakota pollutant discharge elimination system or
degrade the water quality below water quality standards established pursuant to
this chapter, whichever is more stringent.
d. The level of water will be reasonably stable.
e. Final grading will provide adequate safety and access for maintenance and
proposed water users.
f. The water impoundments will not result in the diminution of the quality or quantity
of water utilized by adjacent or surrounding landowners for agricultural, industrial,
recreational, or domestic uses.
8. Minimize the disturbances to the prevailing hydrologic balance at the minesite and in
associated offsite areas and to the quality and quantity of water in surface and ground
water systems both during and after surface coal mining operations and during
reclamation by:
a. Avoiding toxic mine drainage by such measures as, but not limited to:
(1) Preventing water from coming in contact with, or removing water from, toxic
producing deposits.
(2) Treating drainage to reduce toxic content which adversely affects
downstream water upon being released to watercourses.
(3) Casing, sealing, or otherwise managing boreholes and wells to keep toxic
drainage from entering ground and surface waters.
b. Conducting surface coal mining operations so as to prevent, to the extent
possible using the best technology currently available, additional contribution of
suspended solids to streamflow, or runoff outside the permit area, but in no event
may contributions be in excess of requirements set by applicable state law.
c. Constructing any siltation structures pursuant to subdivision b prior to
commencement of surface coal mining operations, such structures to be certified
by a registered professional engineer to be constructed as designed and as
approved in the reclamation plan.
d. Cleaning out and removing temporary settling ponds or other siltation structures
from drainways after disturbed areas are revegetated and stabilized and
depositing the silt and debris at a site and in a manner approved by the
commission.
e. Restoring recharge capacity of the mined area to approximate premining
conditions to the extent possible using the best technology currently available.
f. Avoiding natural channel deepening or enlargement in operations requiring the
discharge of water from mines.
g. Preserving throughout the surface coal mining and reclamation process the
essential hydrologic functions of alluvial valley floors.
h. Such other actions as the commission may prescribe.
9. Make such repairs, alterations, or construction as necessary to ensure the delivery of
that quality and quantity of water available prior to mining to a surface owner whose
supply of water for domestic, agricultural, industrial, or other legitimate use has been
disrupted or diminished in quality or quantity by the surface coal mining operation.
Such repairs, alterations, or construction must be considered to be part of reclamation
and must be made at no cost to the surface owner. Nothing in this chapter may be
construed as affecting in any way the right of any person to enforce or protect, under
applicable law, the person's interest in water resources affected by a surface coal
mining operation.
10. Remove or bury all debris and other similar material resulting from the operation and
bury all mine wastes, coal, and commercial leonardite processing wastes unless the
commission approves the surface disposal of such wastes. If the commission
approves the surface disposal of such wastes, the permittee shall stabilize all waste
piles in designated areas through construction in compacted layers, including the use
of incombustible and impervious materials if necessary, to assure that the final contour
of the waste pile will be compatible with natural surroundings and that the site can and
will be stabilized and revegetated according to the provisions of this chapter.
11. Refrain from surface coal mining within five hundred feet [152.4 meters] of
underground mines in order to prevent breakthroughs; provided, that the commission
shall allow a permittee to mine near, through, or partially through an underground mine
if such operations will result in improved resource recovery, abatement of water
pollution, or elimination of hazards to the health and safety of the public.
12. Ensure that all debris, toxic materials, or materials constituting a fire hazard are
treated or buried and compacted or otherwise disposed of in a manner designed to
prevent contamination of ground or surface waters and that contingency plans are
developed to prevent sustained combustion. If a fire hazard exists, the commission
has the authority to require the permittee to take such actions as are necessary to
abate the hazard, both inside and outside the permit area.
13. Ensure that explosives are used only in accordance with existing state law and the
regulations promulgated by the commission, which must include provisions to:
a. Provide adequate advance written notice to local governments and residents who
might be affected by the use of such explosives by the publication of the planned
blasting schedule in a newspaper of general circulation in the locality, by mailing
a copy of the proposed blasting schedule to every resident living within one-half
mile [804.67 meters] of the proposed blasting site, and by providing daily notice to
residents in such areas prior to any blasting.
b. Maintain for a period of at least three years and make available for public
inspection upon request a log detailing the location of the blasts, the pattern and
depth of the drill holes, the amount of explosives used per hole, and the order
and length of delay in the blasts.
c. Limit the type of explosives and detonating equipment, the size, the timing, and
the frequency of blasts based upon the physical conditions of the site so as to
prevent:
(1) Injury to persons.
(2) Damage to public and private property outside the permit area.
(3) Change in the course, channel, or availability of ground or surface water
outside the permit area.
d. Require that all blasting operations be conducted by trained and competent
persons as certified by the commission.
e. Provide that upon the request of a resident or owner of a manmade dwelling or
structure within one mile [1.61 kilometers] of any portion of the permitted area the
permittee shall conduct a preblasting survey of such structures and submit the
survey to the commission and a copy to the resident or owner making the
request. The area of the survey must be decided by the commission and must
include such provisions as the commission may promulgate.
14. Ensure that all reclamation efforts proceed in an environmentally sound manner and
as contemporaneously as practicable with the surface coal mining operations,
provided that all reclamation through the initial planting on any land within the permit
area must be completed by the operator no later than three years from completion of
surface coal mining operations on such lands, unless otherwise prescribed by the
commission.
15. Ensure that the construction, maintenance, and postmining conditions of haul roads
and access roads into and across the site of operations will control or prevent erosion
and siltation, pollution of water, damage to fish or wildlife or their habitat, or public or
private property.
16. Refrain from the construction of haul roads and access roads up a streambed or
drainage channel or in such proximity to such channel so as to seriously alter the
normal flow of water.
17. Restore lands affected by the surface coal mining operation which have been
designated for postmining agricultural purposes to the level of productivity equal to or
greater, under equivalent management practices, than nonmined agricultural lands of
similar soil types in the surrounding area. For those lands which are to be rehabilitated
to native grasslands, a diverse, effective, and permanent vegetative cover must be
established of the same seasonal variety native to the area to be affected and capable
of self-regeneration, plant succession, and at least equal in extent of cover and
productivity to the natural vegetation of the area. The level of productivity and cover
attained on disturbed lands within the permit area must be demonstrated by the
permittee using comparisons with similar lands in the surrounding area having
equivalent historical management practices and that are undisturbed by mining, or
comparable disruptive activities.
18. Assume the responsibility for successful revegetation, as required by subsection 17,
for a period of ten full years after the last year of augmented seeding, fertilizing,
irrigation, or other work, provided that, when the commission approves a long-term
intensive agricultural postmining land use, the ten-year period of responsibility for
revegetation commences at the date of initial planting. However, for previously mined
areas that are affected by remining, the operator's responsibility for successful
revegetation will extend for a period of five full years after the last year of augmented
seeding, fertilizing, irrigation, and other work in order to assure compliance with the
applicable standards. For the purposes of this subsection, "previously mined areas"
are lands that were affected by coal or commercial leonardite mining activities prior to
January 1, 1970, and "augmented seeding, fertilizing, irrigation, or other work" does
not include normal conservation practices recognized locally as good management for
the postmining land use.
19. Place all spoil material from the initial pit or other excess spoil material resulting from
surface coal mining and reclamation activities in such a manner that all of the following
requirements are met:
a. Spoil is transported and placed in a controlled manner in position for concurrent
compaction and in such a way so as to assure mass stability and to prevent mass
movement.
b. The areas of disposal are within the bonded permit areas.
c. Appropriate surface and internal drainage systems and diversion ditches are
used so as to minimize spoil erosion and movement.
d. The disposal area does not contain springs, natural watercourses, or wet weather
seeps unless lateral drains are constructed from the wet areas to the main
underdrains in such a manner that filtration of the water into the spoil pile will be
prevented.
e. If placed on a slope, the spoil is placed upon the most moderate slope among
those upon which, in the judgment of the commission, the spoil could be placed in
compliance with all the requirements of this chapter.
f. The final configuration is compatible with the natural drainage pattern and
surroundings and suitable for intended uses.
g. Design of the spoil disposal area is certified by a registered professional engineer
in conformance with professional standards.
h. All other provisions of this chapter are met.
20. Meet such other criteria as are necessary to achieve reclamation in accordance with
the purposes of this chapter, taking into consideration the physical, climatological, and
other characteristics of the site.
21. To the extent possible using the best technology currently available, minimize
disturbances and adverse impacts of the surface coal mining operation on fish, wildlife,
and related environmental values, and achieve enhancement of such resources where
practicable.
