SECTION 460:20-33-4. Mountaintop removal mining

(a)   This Section applies to any person who conducts or intends to conduct surface mining activities by mountaintop removal mining.

(b)   Mountaintop removal mining means surface mining activities where the mining operation removes an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill, except as provided for in Section 460:20-51-3(a) (6) of this Chapter, by removing substantially all of the overburden off the bench and creating a level plateau or a gently rolling contour, with no highwalls remaining, and capable of supporting postmining land uses in accordance with the requirements of this Section.

(c)   The Department may issue a permit for mountaintop removal mining, without regard to the requirements of Sections 460:20-43-38, 460:20-43-39, 460:20-43-40, and 460:20-43-42 of this Chapter to restore the lands disturbed by such mining to their approximate original contour, if it first finds, in writing, on the basis of a complete application, that the following requirements are met:

(1)   The proposed postmining land use of the lands to be affected will be an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use and, if:

(A)   After consultation with the appropriate land-use planning agencies, if any, the proposed land use is deemed by the Department to constitute an equal or better economic or public use of the affected land compared with the premining use;

(B)   The applicant demonstrates compliance with the requirements for acceptable alternative postmining land uses of Subsections (a) through (c) of Section 460:20-43-51 of this Chapter;

(C)   The applicant has presented specific plans for the proposed postmining land use and made appropriate assurance that such use will be:

(i)   Compatible with adjacent land uses;

(ii)   Obtainable according to data regarding expected need and market;

(iii)   Assured of investment in necessary public facilities;

(iv)   Supported by commitments from public agencies where appropriate;

(v)   Practicable with respect to private financial capability for completion of the proposed use;

(vi)   Planned pursuant to schedule attached to the reclamation plan so as to integrate the mining operation and reclamation with the postmining land use; and

(vii)   Designed by a registered engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site.

(D)   The proposed use would be compatible with adjacent land uses and existing State and local land use plans and programs; and

(E)   The Department has provided, in writing, an opportunity of not more than 60 days to review and comment on such proposed use to the governing body of general purpose government in whose jurisdiction the land is located and any State or Federal agency which the Department, in its discretion, determines to have an interest in the proposed use.

(2)   The applicant demonstrates that in place of restoration of the land to be affected to the approximate original contour under Sections 460:20-43-38, 460:20-43-39, 460:20-43-40, and 460:20-43-42 of this Chapter, the operation will be conducted in compliance with the requirements of Subchapter 51 of this Chapter.

(3)   The requirements of Subchapter 51 of this Chapter are made a specific condition of the permit.

(4)   All other requirements of the Act, this Chapter, and the regulatory program are met by the proposed operations.

(5)   The permit is clearly identified as being for mountaintop removal mining.

(d)   Variance.

(1)   Any permits incorporating a variance issued under this Section shall be reviewed by the Department to evaluate the progress and development of mining activities to establish that the operator is proceeding in accordance with the terms of the variance:

(A)   Within the sixth month preceding the third year from the date of its issuance;

(B)   Before each permit renewal; and

(C)   Not later than the middle of each permit term.

(2)   Any review required under (d) (1) of this Section need not be held if the permittee has demonstrated and the Department finds, in writing, within three months before the scheduled review, that all operations under the permit are proceeding and will continue to be conducted in accordance with the terms of the permit and requirements of the Act, this Chapter, and the regulatory program.

(3)   The terms and conditions of a permit for mountaintop removal mining may be modified at any time by the Department, if it determines that more stringent measures are necessary to insure that the operation involved is conducted in compliance with the requirements of the Act, this Chapter, and the regulatory program.

[Source: Amended at 12 Ok Reg 3592, eff 10-12-95]