Missouri Code of State Regulations › Title 10 - DEPARTMENT OF NATURAL RESOURCES › Division 40 - Missouri Mining Commission › Chapter 8 - Definitions and General Requirements › Section 10 CSR 40-8.070 - Applicability and General Requirements

Current through Register Vol. 49, No. 14, July 15, 2024
PURPOSE: This rule sets forth general requirements
				  and statements of applicability for 10 CSR 40-3-10 CSR 40-9, pursuant to
				  section
				  444.810,
				  RSMo.
(1) Incorporation by
				Reference. Any incorporation by reference of any federal document, including
				the
Federal Register
, shall be as that document exists on the
				date that the rule which incorporates that document is adopted by the
				commission.
(2) Applicability. 10
				CSR 40-3-10 CSR 40-9 apply to all coal exploration and surface coal mining and
				reclamation operations, except the following:
(A) The extraction of coal by a landowner for
				his/her own noncommercial use from land owned or leased by him/her.
				Noncommercial use does not include the extraction of coal by one unit of an
				integrated company or other business or nonprofit entity which uses the coal in
				its own manufacturing or power plants;
(B) The extraction of coal as an incidental
				part of federal, state or local government-financed highway or other
				construction;
(C) This subsection
				implements the exemption contained in section 444.815.6(3) of the Surface Coal
				Mining Law concerning the extraction of coal incidental to the extraction of
				other minerals where coal does not exceed sixteen and two-thirds percent (16
				2/3%) of the total tonnage of coal and other minerals removed for purposes of
				commercial use or sale.
1. As used in
				subsection (2)(C), the following terms have the meanings specified, except
				where otherwise indicated:
A. Cumulative
				measurement period means the period of time over which both cumulative
				production and cumulative revenue are measured-
(I) For purposes of determining the beginning
				of the cumulative measurement period, subject to regulatory authority approval,
				the operator must select and consistently use one (1) of the following:
(a) For mining areas where coal or other
				minerals were extracted prior to August 3, 1977, the date extraction of coal or
				other minerals commenced at that mining area or August 3, 1977; or
(b) For mining areas where extraction of coal
				or other minerals commenced on or after August 3, 1977, the date extraction of
				coal or other minerals commenced at that mining area, whichever is earlier;
				and
(II) For annual
				reporting purposes pursuant to paragraph (2)(C)11. of this rule, the end of the
				period for which cumulative production and revenue is calculated is either for
				mining areas where-
(a) Coal or other minerals
				were extracted prior to October 1, 1992, September 30, 1992 and every September
				30 after that; or
(b) Extraction of
				coal or other minerals commenced on or after October 1, 1992, the last day of
				the calendar quarter during which coal extraction commenced and each
				anniversary of that day after commencement;
B. Cumulative production means the total
				tonnage of coal or other minerals extracted from a mining area during the
				cumulative measurement period. The inclusion of stockpiled coal and other
				mineral tonnages in this total is governed by paragraph (2)(C)8. of this
				rule;
C. Cumulative revenue means
				the total revenue derived from the sale of coal or other minerals and the fair
				market value of coal or other minerals transferred or used, but not sold,
				during the cumulative measurement period;
D. Mining area means an individual excavation
				site or pit from which coal, other minerals and overburden are removed;
				and
E. Other minerals means any
				commercially valuable substance mined for its mineral value, excluding coal,
				topsoil, waste and fill material.
2. Collection of information procedures are
				described in the following:
A. The
				collections of information contained in paragraphs (2)(C)3., 4., 5., 7. and 10.
				of this rule have been approved by the Land Reclamation Commission. The
				information will be used to determine the initial and continuing applicability
				of the incidental mining exemption to a particular mining operation. Response
				is required to obtain and maintain the incidental mining exemption in
				accordance with section 444.815.6(3) of the Surface Coal Mining Law;
				and
B. Public reporting burden for
				this collection of information is estimated to average one (1) hour per
				response, including the time for reviewing instructions, searching existing
				data sources, gathering and maintaining the data needed and completing and
				reviewing the collection of information. Send comments regarding this burden
				estimate or any other aspect of this collection of information, including
				suggestions for reducing the burden, to Director, Land Reclamation Program, PO
				Box 176, Jefferson City, MO 65102.
3. Application requirements and procedures
				shall be completed as described in the following:
A. New operations.
(I) Any person who plans to commence or
				continue coal extraction after November 30, 1990, in reliance on the incidental
				mining exemption, shall file a complete application for exemption with the
				regulatory authority for each mining area.
(II) Following incorporation of an exemption
				application approval process into a regulatory program, a person may not
				commence coal extraction based upon the exemption until the regulatory
				authority approves the application, except as provided in part (2)(C)3.E.(III)
				of this rule;
B.
				Existing operations. Any person who has commenced coal extraction at a mining
				area in reliance upon the incidental mining exemption prior to November 30,
				1990 may continue mining operations for sixty (60) days after (January 29,
				1991) the effective date (November 30, 1990). Coal extraction may not continue
				after the sixty- (60-) day period unless that person files an administratively
				complete application for exemption with the regulatory authority. If an
				administratively complete application is filed within sixty (60) days, the
				person may continue extracting coal in reliance on the exemption beyond the
				sixty- (60-) day period until the regulatory authority makes an administrative
				decision on the application;
C.
				Additional information. The regulatory authority shall notify the applicant if
				the application for exemption is incomplete and may at any time require
				submittal of additional information;
D. Public comment period. Following
				publication of the newspaper notice required by subparagraph (2)(C)4.I. of this
				rule, the regulatory authority shall provide a period of no less than thirty
				(30) days during which time any person having an interest which is or may be
				adversely affected by a decision on the application may submit written comments
				or objections;
E. Exemption
				determination.
(I) No later than ninety (90)
				days after filing of an administratively complete application, the regulatory
				authority shall make a written determination whether, and under what
				conditions, the persons claiming the exemption are exempt under this part and
				shall notify the applicant and persons submitting comments on the application
				of the determination and the basis for the determination.
(II) The determination of exemption shall be
				based upon information contained in the application and any other information
				available to the regulatory authority at that time.
(III) If the regulatory authority fails to
				provide an applicant with the determination as specified in part (2)(C)3.E.(I)
				of this rule, an applicant who has not begun may commence coal extraction
				pending a determination on the application unless the regulatory authority
				issues an interim finding, together with reasons for this finding, that the
				applicant may not begin coal extraction; and
F. Administrative review.
(I) Any adversely affected person may request
				administrative review of a determination under subparagraph (2)(C)3.E. of this
				rule within thirty (30) days of the notification of the determination in
				accordance with procedures established under Chapter 536, RSMo.
(II) A petition for administrative review
				filed under Chapter 536, RSMo shall not suspend the effect of a determination
				under subparagraph (2)(C)3.E. of this rule.
4. An application for exemption, at a
				minimum, shall include:
A. The name and
				address of the applicant;
B. A list
				of the minerals sought to be extracted;
C. Estimates of annual production of coal and
				the other minerals within each mining area over the anticipated life of the
				mining operation;
D. Estimated
				annual revenues to be derived from bona fide sales of coal and other minerals
				to be extracted within the mining area;
E. Where coal or the other minerals are to be
				used rather than sold, estimated annual fair market values at the time of
				projected use of the coal and other minerals to be extracted from the mining
				area;
F. The basis for all annual
				production, revenue and fair market value estimates;
G. A description, including county, township,
				if any, and boundaries of the land, of sufficient certainty that the mining
				areas may be located and distinguished from other mining areas;
H. An estimate to the nearest acre of the
				number of acres that will compose the mining area over the anticipated life of
				the mining operation;
I. Evidence
				of publication, in a newspaper of general circulation in the county of the
				mining area, of a public notice that an application for exemption has been
				filed with the regulatory authority (the public notice must identify the
				persons claiming the exemption and must contain a description of the proposed
				operation and its locality that is sufficient for interested persons to
				identify the operation);
J. The
				representative stratigraphic cross-section(s) based on test borings or other
				information identifying and showing the relative position, approximate
				thickness and density of the coal and each other mineral to be extracted for
				commercial use or sale and the relative position and thickness of any material,
				not classified as other minerals, that also will be extracted during the
				conduct of mining activities;
K. A
				map of appropriate scale which clearly identifies the mining area;
L. A general description of mining and
				mineral processing activities for the mining area;
M. A summary of sales commitments and
				agreements for future delivery, if any, which the applicant has received for
				other minerals to be extracted from the mining area, or a description of
				potential markets for the minerals;
N. If the other minerals are to be
				commercially used by the applicant, a description specifying the use;
O. For operations having extracted coal or
				other minerals prior to filing an application for exemption, in addition to the
				information required, the following information also must be submitted:
(I) Any relevant documents the operator has
				received from the regulatory authority documenting its exemption from the
				requirements of the surface coal mining law;
(II) The cumulative production of the coal
				and other minerals from the mining area; and
(III) Estimated tonnages of stockpiled coal
				and other minerals; and
P. Any other information pertinent to the
				qualification of the operation as exempt.
5. Public availability of information is
				defined and shall be handled as described in the following:
A. Except as provided in subparagraph
				(2)(C)5.B. of this rule, all information submitted to the regulatory authority
				under subsection (2)(C) shall be made available immediately for public
				inspection and copying at the local offices of the regulatory authority having
				jurisdiction over the mining operations claiming exemption until at least three
				(3) years after expiration of the period during which the subject mining area
				is active;
B. The regulatory
				authority may keep information submitted to the regulatory authority under this
				part confidential if the person submitting it requests in writing, at the time
				of submission, that it be kept confidential and the information concerns trade
				secrets or is privileged commercial or financial information of the persons
				intending to conduct operations under this rule; and
C. Information requested to be held as
				confidential under subparagraph (2)(C)5.B. of this rule shall not be made
				publicly available until after notice and opportunity to be heard is afforded
				persons both seeking and opposing disclosure of the information.
6. Requirements for exemption.
A. Activities are exempt from the
				requirements of the surface coal mining law if all of the following are
				satisfied:
(I) The cumulative production of
				coal extracted from the mining area determined annually as described in this
				rule does not exceed sixteen and two-thirds percent (16 2/3%) of the total
				cumulative production of coal and other minerals removed during that period for
				purposes of a bona fide sale or reasonable commercial use;
(II) Coal is produced from a geological
				stratum lying above or immediately below the deepest stratum from which other
				minerals are extracted for purposes of a bona fide sale or reasonable
				commercial use; and
(III) The
				cumulative revenue derived from the coal extracted from the mining area
				determined annually shall not exceed fifty percent (50%) of the total
				cumulative revenue derived from the coal and other minerals removed for
				purposes of a bona fide sale or reasonable commercial use. If the coal
				extracted or the minerals removed are used by the operator or transferred to a
				related entity for use instead of being sold in a bona fide sale, then the fair
				market value of the coal or other minerals shall be calculated at the time of
				use or transfer and shall be considered rather than revenue.
B. Persons seeking or that have
				obtained an exemption from the requirements of the surface coal mining law
				shall comply with the following:
(I) Each
				other mineral upon which an exemption under this rule is based must be a
				commercially valuable mineral for which a market exists or which is mined in
				bona fide anticipation that a market will exist for the mineral in the
				reasonably foreseeable future, not to exceed twelve (12) months from the end of
				the current period for which cumulative production is calculated. A legally
				binding agreement for the future sale of other minerals is sufficient to
				demonstrate this standard; and
(II)
				If either coal or other minerals are transferred or sold by the operator to a
				related entity for its use or sale, the transaction must be made for legitimate
				business purposes.
7. A person conducting activities covered by
				this rule shall-
A. Maintain on-site or at
				other locations available to the commission and its representatives and the
				secretary information necessary to verify the exemption including, but not
				limited to, commercial use and sales information, extraction tonnages and a
				copy of the exemption application and exemption approved by the regulatory
				authority;
B. Notify the regulatory
				authority upon the completion of the mining operation or permanent cessation of
				all coal extraction activities; and
C. Conduct operations in accordance with the
				approved application or when authorized to extract coal under subparagraph
				(2)(C)3.B. or part (2)(C)3.E.(III) of this rule prior to submittal or approval
				of an exemption application in accordance with the standards of this
				rule.
8. Authorized
				representatives of the commission and the secretary shall have the right to
				conduct inspections of operations claiming exemption under this subsection.
A. Each authorized representative of the
				commission and the secretary conducting an inspection under subsection (2)(C)-
(I) Shall have a right of entry to, upon and
				through any mining and reclamation operations without advance notice or a
				search warrant, upon presentation of appropriate credentials;
(II) At reasonable times and without delay,
				may have access to and copy any records relevant to the exemption;
				and
(III) Shall have a right to
				gather physical and photographic evidence to document conditions, practices or
				violations at a site.
9. Stockpiling of minerals shall be conducted
				as described in the following:
A. Coal. Coal
				extracted and stockpiled may be excluded from the calculation of cumulative
				production until the time of its sale, transfer to a related entity or use-
(I) Up to an amount equaling a twelve- (12-)
				month supply of the coal required for future sale, transfer or use as
				calculated, based upon the average annual sales, transfer and use from the
				mining area over the two (2) preceding years; or
(II) For a mining area where coal has been
				extracted for a period of fewer than two (2) years, up to an amount that would
				represent a twelve- (12-) month supply of the coal required for future sales,
				transfer or use as calculated based on the average amount of coal sold,
				transferred or used each month; and
B. Other minerals.
(I) The commission shall disallow all or part
				of an operator's tonnages of stockpiled other minerals for purposes of meeting
				the requirements of this rule if the operator fails to maintain adequate and
				verifiable records of the mining area of origin, the disposition of stockpiles
				or if the disposition of the stockpiles indicates the lack of commercial use or
				market for the minerals.
(II) The
				commission may only allow an operator to utilize tonnages of stockpiled other
				minerals for purposes of meeting the requirements of this rule if-
(a) The stockpiling is necessary to meet
				market conditions or is consistent with generally accepted industry practices;
				and
(b) Except as provided in part
				(2)(C)9.B.(III) of this rule, the stockpiled other minerals do not exceed a
				twelve- (12-) month supply of the mineral required for future sales as approved
				by the regulatory authority on the basis of the exemption
				application.
(III) The
				commission may allow an operator to utilize tonnages of stockpiled other
				minerals beyond the twelve- (12-) month limit established in part
				(2)(C)9.B.(II) of this rule if the operator can demonstrate to the regulatory
				authority's satisfaction that the additional tonnage is required to meet future
				business obligations of the operator, as may be demonstrated by a legally
				binding agreement for future delivery of the minerals.
(IV) The commission may periodically revise
				the other mineral stockpile tonnage limits in accordance with the criteria
				established by parts (2)(C)9.B.(II) and (III) of this rule, based on additional
				information available to the commission.
10. Revocation and enforcement shall be
				conducted as described in the following:
A.
				Commission responsibility. The commission shall conduct an annual compliance
				review of the mining area, utilizing the annual report submitted pursuant to
				paragraph (2)(C)11. of this rule, an on-site inspection and any other
				information available to the commission;
B. If the commission has reason to believe
				that a specific mining area was not exempt under the provisions of this rule or
				counterpart provisions of the state regulatory program at the end of the
				previous reporting period, is not exempt, or will be unable to satisfy the
				exemption criteria at the end of the current reporting period, the regulatory
				authority shall notify the operator that the exemption may be revoked and the
				reason(s) for relocation. The exemption will be revoked unless the operator
				demonstrates to the regulatory authority within thirty (30) days that the
				mining area in question should continue to be exempt;
C. If the commission finds that an operator
				has not demonstrated that activities conducted in the mining area qualify for
				the exemption, the commission shall revoke the exemption and immediately notify
				the operator and intervenors. If a decision is made not to revoke an exemption,
				the commission shall immediately notify the operator and intervenors;
D. Any adversely affected person may request
				administrative review of a decision whether to revoke an exemption within
				thirty (30) days of the notification of that decision in accordance with
				procedures established under Chapter 536, RSMo;
E. A petition for administrative review filed
				under Chapter 536, RSMo shall not suspend the affect of a decision whether to
				revoke an exemption; and
F. Direct
				enforcement.
(I) An operator mining in
				accordance with the terms of an approved exemption shall not be cited for
				violations of the regulatory program which occurred prior to the revocation of
				the exemption.
(II) An operator who
				does not conduct activities in accordance with the terms of an approved
				exemption, and knows or should know the activities are not in accordance with
				the approved exemption shall be subject to direct enforcement action for
				violations of the regulatory program which occur during the period of these
				activities.
(III) Upon revocation
				of an exemption or denial of an exemption application, an operator shall stop
				conducting surface coal mining operations until a permit is obtained and shall
				comply with the reclamation standards of the regulatory program with regard to
				conditions, areas and activities existing at the time of revocation or
				denial.
11.
				Reporting requirements.
A. Following approval
				by the commission of an exemption for a mining area, the person receiving the
				exemption, for each mining area, shall file a written report annually with the
				commission containing the information specified in subparagraph (2)(C)11.B. of
				this rule.
(I) The report shall be filed no
				later than thirty (30) days after the end of the twelve- (12-) month period as
				determined in accordance with the definition of cumulative measurement period
				in paragraph (2)(C)1. of this rule.
(II) The information in the report shall
				cover-
(a) Annual production of coal and other
				minerals and annual revenue derived from coal and other minerals during the
				preceding twelve- (12-) month period; and
(b) The cumulative production of coal and
				other minerals and the cumulative revenue derived from coal and other
				minerals.
B.
				For each period and mining area covered by the report, the report shall
				specify-
(I) The number of tons of extracted
				coal sold in bona fide sales and total revenue derived from the
				sales;
(II) The number of tons of
				coal extracted and used or transferred by the operator or related entity and
				the estimated total fair market value of the coal;
(III) The number of tons of coal
				stockpiled;
(IV) The number of tons
				of other commercially valuable minerals extracted and sold in bona fide sale
				and total revenue derived from the sales;
(V) The number of tons of other commercially
				valuable minerals extracted and used or transferred by the operator or related
				entity and the estimated total fair market value of the minerals; and
(VI) The number of tons of other commercially
				valuable minerals removed and stockpiled by the operator;
(D) Coal-Related
				Structures.
1. Each structure used in
				connection with or to facilitate a coal exploration or surface coal mining and
				reclamation operation shall comply with the performance standards and the
				design requirements of 10 CSR 40-3 or 10 CSR 40-4, except that-
A. An existing structure which meets the
				performance standards of 10 CSR 40-3 or 10 CSR 40-4 but does not meet the
				design requirements of 10 CSR 40-3 or 10 CSR 40-4 may be exempt from meeting
				those design requirements but only as approved in the permit and plan after
				obtaining the information required by
				10
				CSR 40-6.050(3),
				10
				CSR 40-6.120(3) and after making the
				findings required in
				10
				CSR 40-6.070(9);
B. If the performance standards of 10 CSR
				40-2 are at least as stringent as the comparable performance standards of 10
				CSR 40-3 or 10 CSR 40-4, an existing structure which meets the performance
				standards of
10 CSR 40-2 may be exempt from meeting the design
				  requirements of 10 CSR 40-3 or 10 CSR 40-4 but only as approved in the permit
				  and plan process after obtaining the information required by
				  10
				  CSR 40-6.050(3),
				  10
				  CSR 40-6.120(3) and after making the
				  findings required in
				  10
				  CSR 40-6.070(9);
C. An existing structure which meets a
				performance standard of 10 CSR 40-2 which is less stringent than the comparable
				performance standards of 10 CSR 40-3 or 10 CSR 40-4 or which does not meet a
				performance standard of 10 CSR 40-3 or 10 CSR 40-4 for which there was no
				equivalent performance standard in 10 CSR 40-2 shall be modified or
				reconstructed to meet the design standards of 10 CSR 40-3 or 10 CSR 40-4
				pursuant to a compliance plan approved in the permit and plan as required in
				10
				CSR 40-6.050(3),
				10
				CSR 40-6.120(3) and according to the
				findings required by
				10
				CSR 40-6.070(9); and
D. An existing structure which does not meet
				the performance standards of 10 CSR 40-2, and which the applicant proposes to
				use in connection with or to facilitate the coal exploration or surface coal
				mining and reclamation operation shall be modified or reconstructed to meet the
				design standards of 10 CSR 40-3 or 10 CSR 40-4 prior to issuance of the
				permit.
2. The
				exemptions provided in
				10 CSR
				40-8.070(2)(D) shall not apply to the
				requirements-
A. For existing and new waste
				piles used either temporarily or permanently as dams or embankments;
				and
B. To restore the approximate
				original contour of the land;
(E) The commission or director shall make a
				written determination whether the operation is exempt under this section within
				sixty (60) days of the receipt of the exemption request. The commission or
				director shall provide public notice in a newspaper of general circulation in
				the general vicinity of the proposed operations. Prior to the time a
				determination is made, a person may submit, and the commission or director
				shall consider, any written information relevant to the determination. A person
				requesting that an operation be declared exempt shall have the burden of
				establishing the exemption. If a written determination of exemption is reversed
				through subsequent administrative or judicial action, any person who, in good
				faith, has made a complete and accurate request for an exemption and relied
				upon the determination, shall not be cited for violations which occurred prior
				to the date of the reversal;
(F)
				The commission may terminate its jurisdiction under the regulatory program over
				the reclaimed site of a completed surface coal mining and reclamation
				operation, or portion thereof, when:
1. The
				commission or director determines in writing that under the initial program,
				all requirements imposed under 10 CSR 40-2, 10 CSR 40-3, 10 CSR 40-4 and 10 CSR
				40-8 have been successfully completed; or
2. The commission or director determines in
				writing that all requirements imposed under 10 CSR 40 chapters 3 through 8 have
				been successfully completed; and
3.
				The operator has properly applied for, and obtained release of Phase III
				reclamation liability in accordance with
				10 CSR 40-7.021(3) through
				(5); and
(G) Following a termination of jurisdiction
				under subsection (2)(F) of this rule, the commission shall reassert
				jurisdiction under the regulatory program over a site if it is demonstrated
				that the determination made under subsection (2)(F) of this rule, or the
				release of Phase III reclamation liability referred to under paragraph (2)(F)2.
				of this rule was based upon fraud, collusion, or misrepresentation of a
				material fact.