WYOMING REGULATORY PROGRAM AGENCY 020 DEPARTMENT OF ENVIRONMENTAL QUALITY SUB-AGENCY 040 LAND QUALITY COAL MINING RULES AND REGULATIONS (2002) CHAPTER 12 PROCEDURES APPLICABLE TO SURFACE COAL MINING OPERATIONS Section 1 Permitting Procedures. Section 2 Bonding and Insurance Procedures. NOTE: Cross references to OSM's federal statute and regulations appear in double braces to the right of the Wyoming regulation section numbers, e.g., "Section 3 APPLICABILITY. {{ SMCRA 528; 30 CFR 700.11, 707.11 }}". The cross references were compiled using the preambles to OSM's approval of amendments to the Wyoming regulatory program published in the Federal Register, the Wyoming File in the COALEX Library in LexisNexis and Side-by-Side Forms provided by the Wyoming Regulatory Authority. Section 1 PERMITTING PROCEDURES. {{ SMCRA 522(e); 30 CFR Parts 761, 773, 774; 800 }} (a) In addition to the permitting procedures described in the Act, the following shall be applicable to applications for a permit for a surface coal mine operation: (i) For the purposes of alluvial valley floors, prior to determining that an application is suitable for publication in accordance with W.S. Sec. 35-11-406(j) and upon the basis of sufficient information, the Administrator shall make a determination in writing as to the existence and extent of an alluvial valley floor within the permit area or on adjacent areas where the mining operation may affect surface water or groundwater that supply an alluvial valley floor unless the preapplication determination in Chapter 3, Section 2(a) has already been made. Any preapplication determination and all information submitted for this determination shall be included in the permit application and shall be available for public notice, opportunity for comment and any conference or hearing. The Administrator shall determine that an alluvial valley floor exists when, in accordance with W.S. Sec. 35-11-103(e)(xviii), it is found that: (A) Unconsolidated streamlaid deposits holding streams are present; and (B) There is sufficient water to support subirrigation or flood irrigation agricultural activities. (ii) The public notice required by W.S. Sec. 35-11-406(j) shall: (A) Contain detailed information which identifies a USGS map(s) and appropriate landmarks locating and allowing local residents to readily identify the proposed permit area. (B) Be sent by the Administrator to Federal, State, and local governmental agencies, including planning agencies, with jurisdiction over or an interest in the proposed operation or permit area, and local sewage and water treatment authorities. At a minimum this shall include the U.S. Department of Agriculture Soil Conservation Service District office, the local U.S. Army Corps of Engineers District Engineer, the National Park Service if NPS lands are adjacent, State and Federal fish and wildlife agencies, and the State Historic Preservation Officer. Such entities and any person who filed a comment or objection shall also receive the final decision on the application. In addition, the Administrator will publish a summary of his decision in a newspaper of general circulation in the general area of the proposed operation. (iii) Any subsequent revision of the application, or objections or comments to the application, shall be filed in the offices of the county clerks of the counties in which the proposed permit area is located. Copies of comments and objections shall also be transmitted to the applicant. (iv) In addition to the specific findings required by W.S. Sec. 35-11-406(n), no permit shall be approved unless the Administrator also finds in writing that: (A) The proposed operation will not be inconsistent with other surface coal mining and reclamation operations proposed or contemplated in pending or approved mining permits; (B) The effect of the proposed operation on properties listed on and properties eligible for listing on the National Register of Historic Places has been taken into account; and (I) Mining has been prohibited within 100 feet of any such properties by permit condition; or (II) The applicant has provided for the protection of such properties in the approved mining and reclamation plan; or (III) The Administrator has determined, in consultation with the State Historic Preservation Officer, that no additional protection measures are necessary. (v) The criteria contained in W.S. Sec. 35-11-406(n)(iv) regarding Section 522(e) of P.L. 95-87 shall mean that, prior to approval of any complete application for a surface coal mining permit, the applicant must demonstrate and the Administrator determine, utilizing the assistance of the appropriate Federal, State or local government agency, if necessary, that the application does not propose a surface coal mining operation on those lands where such operation is prohibited or limited by Section 522(e) of P.L. 95-87; or if one is so proposed, that the applicant either has valid existing rights or was conducting a surface coal mining operation on those lands on August 3, 1977. Subject to the above stated limitations, surface coal mining operations are prohibited or limited: (A) On any lands within the boundaries of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act or study rivers or study river corridors as established in any guidelines pursuant to that Act and National Recreation Areas designated by Act of Congress; (B) On any federal lands within the boundaries of any national forest unless the applicant demonstrates compliance with 30 CFR Sec. 761.11(b) and submits a finding by the secretary in his favor; (C) On any lands where mining will adversely affect any publicly owned park or any properties listed on and any properties eligible for listing on the National Register of Historic Places, unless jointly approved by the Administrator and the Federal, State or local agency with jurisdiction over the park or place; (D) Within 100 feet, measured horizontally, of the outside right-of-way line of any public road, except where mine access roads or haulage roads join such right-of-way line. Provided, however, the Administrator may specifically authorize operations where the road is to be relocated, closed, or where the area affected lies within 100 feet of a public road. Such specific authorization shall follow public notice and an opportunity for public hearing, together with a finding on whether the interests of the public and the affected landowners will be protected from the proposed operation. The Administrator may rely upon the procedures and findings of the public road authority with jurisdiction over the road in specifically authorizing road relocations or closures; (E) Within 300 feet from any occupied dwelling except when the owner has provided a written waiver consenting to operations within a closer distance, clarifying that the owner and signator had the legal right to deny mining and knowingly waived that right. Such a waiver shall remain effective, regardless of when it was obtained, against subsequent purchasers who had actual or constructive knowledge of the existing waiver at the time of purchase. Subsequent purchasers shall be deemed to have constructive knowledge if the waiver has been properly filed in the public property records or if the mining has proceeded to within the 300-foot limit prior to the date of purchase; (F) Within 300 feet, measured horizontally, of any public building, school, church, community, or institutional building, or public park; or (G) Within 100 feet, measured horizontally, of a cemetery. (vi) If the Administrator is unable to determine whether or not the proposed operation is on lands where surface coal mining operations are prohibited, lands described in (v) immediately above, then a copy of relevant portions of the application shall be sent to appropriate State, Federal and local government agencies with an interest or jurisdiction in the lands in question. Along with the copy a notice shall be sent asking for clarification or determination of relevant boundaries or distances, and stating that the agency has 60 days from receipt of the notice to respond. If no response is received, the Administrator may make a determination based on the information available. (vii) The criteria for permit approval where prime farmland will be affected by the mining operation shall be that, upon the basis of the complete application: (A) The postmining land use of the prime farmland will be capable of supporting crop yields equivalent to the surrounding nonmined prime farmland under equivalent levels of management. (B) Adequate consideration has been given to any soil reconstruction revisions recommended by the local conservation district and Soil Conservation Service. (C) The applicant has the technological capability to restore the prime farmland. (viii) In addition to the specific findings required by W.S. Sec. 35-11-406(n), no permit authorizing a delay in the contemporaneous reclamation requirements for a proposed combined surface and underground mining operation shall be approved unless the Administrator finds that: (A) The proposed underground mining activities will assure maximum practical recovery of the resource and avoid multiple future disturbances of surface land or waters. (B) The permit for the surface mining activities contains specific conditions: (I) Delineating the particular surface area for which a delay in reclamation is authorized; and (II) Identifying the alternative reclamation standards in lieu of those otherwise applicable, together with a detailed schedule for timely compliance. (ix) In granting surface coal mining permits, the Director shall impose the following conditions on the operation: (A) All operations shall be conducted in accordance with the approved mining and reclamation plan and any conditions of the permit or license; (B) The rights of entry shall be provided as described by the Act and any regulations promulgated pursuant thereto; (C) The operation shall be conducted in a manner which prevents violation of any other applicable State or Federal law; (D) All possible steps shall be taken to minimize any adverse impact to the environment or public health and safety resulting from noncompliance with the approved mining and reclamation plan and other terms and conditions of any permit or license, including monitoring to define the nature of the noncompliance and warning of any potentially dangerous condition; and (E) All reclamation fees shall be paid as required by Title IV, P.L. 95-87, for coal produced under the permit for sale, transfer or use. (b) All procedural requirements of the Act and the regulations relating to review, public participation, and approval or disapproval of permit applications, and permit term and conditions shall, unless otherwise provided, apply to permit revisions, amendments, renewals and transfers. In addition, the following requirements are applicable. (i) All requirements imposed by W.S. Sec. 35-11-405(e) for permit renewals. The application shall be filed at least 120 days before the expiration of the permit term and shall include at a minimum: (A) A statement of the name and address of the permittee, the term of the renewal requested, the permit number, a description of any changes to the matters set forth in the original application for a permit or prior permit renewal; (B) A copy of the public notice and proof of publication; (C) Evidence that the bond and a liability insurance policy will be provided; and (D) Additional revised or updated information required by the Administrator. (E) If an application for renewal includes any proposed revisions to the mine or reclamation plan, such revisions shall be identified and subject to the requirements of Chapter 13. (ii) All requirements imposed by W.S. Sec. 35-11-408 and this provision for permit transfers. These requirements shall be met, as evidenced by the written approval of the statement of qualifications by the Administrator and Director, prior to any permit transfer. Permit transfers shall not be subject to the requirements of W.S. Sec. 35-11-406(g). (A) The potential transferee shall obtain a renewal bond by either transfer of the permit holder's bond, written agreement with the permit holder, or providing other sufficient bond or equivalent guarantee. (B) The statement of qualifications shall contain all information which would be required if the potential transferee were the original applicant for the permit and, in addition, the name of the existing permit holder. Section 2 BONDING AND INSURANCE PROCEDURES. {{ SMCRA 509, 519; 30 CFR Part 800 }} (a) For surface coal mining operations, the following two types of bond calculations shall be required for setting a single bond amount: (i) Area Bond: This bond calculation shall be no less than the estimated cost of completing the maximum amount of rough backfilling during the annual bonding period set forth in W.S. Secs. 35-11-411 and 35-11-417(c), in order to meet the applicable rough backfilling standards in Chapter 4 of these regulations and any other rough backfilling requirements of the approved permit. (ii) Incremental Bond: This bond calculation shall be no less than the estimated cost of performing all reclamation requirements other than those covered by (a)(i) above, during the annual bonding period in order to meet the standards of the Act, the regulations, and the provisions of the permit. (b) For purposes of determining bond amounts, the estimated cost shall include all costs necessary, expedient or incidental to achieve required rough backfilling and reclamation. This shall reflect the probable difficulty of reclaiming the affected lands, giving consideration, as applicable, to such factors as topography, geology of the site, hydrology and revegetation potential. The estimated cost shall be based on the operator's cost estimate submitted with the permit, plus the Administrator's estimate of the additional cost to the State of bringing in personnel and equipment should the operation fail or the site be abandoned, plus an additional amount covering reclamation cost for any land which may reasonably be expected to be affected, as determined by the Administrator's assessment of the applicant's mine plan, prior to filing the renewal bond. All bonds shall be calculated on, and never fall below, the amount necessary to assure that the operator shall faithfully perform all requirements of the Act and comply with all rules and regulations and any provisions of the approved permit. (c) Upon receipt of the annual report required by W.S. Sec. 35-11-411, the Administrator shall publish a notice in a newspaper of general circulation in the locality of the mining operation, notifying all interested persons that the annual report is available for review, and that the renewal area and incremental bond calculations will be determined. Interested persons may submit information relating to the bond amounts within 30 days of the notice. This information, together with information submitted by the operator and developed by the Division, shall be considered by the Administrator and Director in setting bond amounts. (d) Liability. (i) Liability under the bond(s) shall be for the entire permit area. (ii) Liability under the area bond shall be for a duration sufficient to assure that all rough backfilling has been achieved pursuant to the applicable standards of Chapter 4, Section 2.(b) and the approved permit. (iii) Liability under the incremental bond shall be for the entire duration of the operation and for the ten- year period of revegetation responsibility described in Chapter 4, Section 2(d). The liability period and area for an incremental bond may be limited if it is posted and approved to guarantee only specific increments of reclamation within the permit. Actions of third persons to implement an approved alternative postmining land use, which are beyond the control of the permittee or operator need not be covered by the bond. (iv) Isolated increments of bonded land. (A) Isolated and clearly defined portions of the permit area requiring extended liability or limited areas or increments being assessed a specific bond amount may be separated from the original area and bonded separately with the approval of the Administrator. (B) Such areas shall be of sufficient size and configuration and not constitute a scattered, intermittent, or checkerboard pattern to provide for efficient reclamation operations should reclamation by the Administrator become necessary pursuant to Section 2(b) of this Chapter. (C) Access to the isolated areas for remedial work may be included in the area under extended liability if deemed necessary by the Administrator. (e) A permittee may request reduction of the amount of either the area or incremental bond upon submission of evidence to the Administrator proving that the permittee's method of operation or other circumstances will reduce the estimated cost to the State for reclamation. This reduction of bond shall be deemed a bond adjustment if the reduction is based on a change in method of operation or a decrease in the number of acres projected to be disturbed. If the reduction is due to a decrease in the number of acres that have already been disturbed to account for areas partially reclaimed, then the request for reduction will be considered a request for partial bond release in accordance with the procedures of Chapter 15. (f) A corporate surety shall not be considered good and sufficient for purposes of W.S. Sec. 35-11-417(b) unless: (i) It is licensed to do business in the State; (ii) The estimated bond amount does not exceed the limit of risk as provided for in W.S. Sec. 26-5-110, nor raise the total of all bonds held by the applicant under that surety above three times the limit of risk; (iii) The surety agrees: (A) Not to cancel bond, except as provided for in W.S. Sec. 35-11-419 or where the Administrator approves a good and sufficient replacement surety with transfer of the liability that has accrued against the permittee on the permit area; (B) To be jointly and severally liable with the permittee; and (C) To provide notice to the Administrator and operator once it becomes unable or may become unable due to any action filed against it to fulfill its obligations under the bond. (g) The provisions applicable to cancellation of the surety's license in W.S. Sec. 35-11-420 shall also apply if for any other reason the surety becomes unable to fulfill its obligations under the bond. Upon such occurrence the operator shall provide the required notice. Failure to comply with this provision shall result in suspension of the permit. (h) The Administrator shall not accept an individual certificate of deposit in an amount in excess of $100,000 or the maximum insurable amount as determined by the FDIC or the Federal Savings and Loan Insurance Corporation. Such certificates of deposit shall be made payable to the Department both in writing and upon the records of the bank issuing these certificates.The Administrator shall require the banks issuing these certificates to waive all rights of setoff or liens against the certificates. The bond amount may be calculated to include any amount which would be deducted as a penalty for payment before maturity. (i) Minimum insurance coverages for the public liability insurance policy required in W.S. Sec. 35-11-406(a)(xiii) shall be $300,000 for each occurrence of bodily injury or property damage, and $500,000 aggregate. (j) The public insurance liability policy shall include a rider requiring that the insurer notify the Administrator whenever substantive changes are made in the policy, including any termination or failure to renew. The policy shall be maintained in full force during the life of the permit or any renewal thereof, including the liability period necessary to complete all reclamation operations.