ALABAMA SURFACE MINING COMMISSION

ADMINISTRATIVE CODE

CHAPTER 880-X-8C SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION GENERAL REQUIREMENTS FOR COAL EXPLORATION

TABLE OF CONTENTS

880-X-8C-.01 Scope

880-X-8C-.02 (Not Used)

880-X-8C-.03 (Not Used)

880-X-8C-.04 Exploration: General Requirements For Removal Of Less Than 250 Tons And Disturbance Of Less Than One-Half Acre

880-X-8C-.05 Exploration: General Requirements For Removal Of More Than 250 Tons And Disturbance Of More Than One-Half Acre Or On Lands Designated Unsuitable For Surface Mining Operations

880-X-8C-.06 Applications: Approval Or Disapproval Of Exploration Of More Than 250 Tons

880-X-8C-.07 Applications: Notice And Hearing For Exploration Of More Than 250 Tons

880-X-8C-.08 Coal Exploration Compliance Duties

880-X-8C-.09 Commercial Use Of Sale

880-X-8C-.10 Public Availability Of Information

880-X-8C-.01 Scope. This Subchapter establishes the requirements and procedures for coal exploration for all lands.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 81, 82, 87.

History: May 20, 1982. Amended: September 18, 1990; effective August 2, 1991.

880-X-8C-.02 (NOT USED). (Repealed: Filed 9/30/90, Effective 8/2/91)

880-X-8C-.03 (NOT USED). (Repealed: Filed 9/30/91, Effective 8/2/91)

880-X-8C-.04 Exploration: General Requirements For Removal Of Less Than 250 Tons And Disturbance Of Less Than One-Half Acre.

(1) Any person who intends to conduct coal exploration operations outside a permit area during which 250 tons or less of coal will be removed and less than one-half acre is disturbed in the coal exploration, shall file with the Regulatory Authority a written notice of intention to explore and shall comply with Rule 880-X-8C-.08 of these regulations. Exploration which will take place on lands designated as unsuitable for surface coal mining operations under Chapter 880-X-7 shall be subject to the permitting requirements under 880-X-8C-.05.

(2) The notice shall include --

(a) The name, address, and telephone number of the person seeking to explore;

(b) The name, address, and telephone number of the person's representative who will be present at, and responsible for conducting, the exploration activities;

(c) A precise description to the nearest quarter-quarter-quarter-quarter section or the location shown on a topographical map at a scale of 1:24,000 or larger of the exploration area, showing the general location of drill holes and trenches, existing and proposed roads, occupied dwellings, topographic features, bodies of surface water, and pipelines;

(d) A statement of the period of the expected commencement and termination of intended exploration;

(e) A description of the methods of exploration to be used and practices proposed to be followed to protect the environment from adverse impacts as a result of the exploration activities, including reclamation procedures in accordance with Subchapter 880-X-10B.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 81, 82, 87.

History: May 20, 1982. Amended: September 18, 1990; effective: August 2, 1991.

880-X-8C-.05 Exploration: General Requirements For Removal Of More Than 250 Tons and Disturbance Of More Than One-half Acre Or On Lands Designated Unsuitable For Surface Mining Operations. Any person who intends to conduct coal exploration outside a permit area during which more than 250 tons of coal are to be removed and/or greater than one-half acre is to be disturbed, or which will take place on lands designated as unsuitable for surface mining under Chapter 880-X-7, shall prior to conducting the exploration, obtain a permit from the State Regulatory Authority, in accordance with the following; and shall be subject to the requirements prescribed under 880-X-8C-.08 and 880-X-8C-.09:

(1) Contents of permit application: Each application shall contain, at a minimum, the following information --

(a) The name, address, and telephone number of the applicant, and his/her representative who will be present at, and responsible for conducting, the exploration activities;

(b) An exploration and reclamation operations plan, including --

1. A narrative description of the proposed exploration area; any endangered or threatened species listed pursuant to the Endangered Species Act of 1973 (16 U.S.C. Section 1531, et seq.); cultural or historic resources listed or known to be eligible for listing on the National Register of Historic Places; and known archaeological resources located within the proposed exploration area;

2. A narrative description of the methods to be used to conduct coal exploration and reclamation, including, but not limited to, the types and uses of equipment, drilling, blasting, road or other access route construction, and excavated earth and other debris disposal activities;

3. An estimated timetable for conducting and completing each phase of the exploration and reclamation;

4. The estimated amounts of coal to be removed and a description of the methods to be used to determine those amounts;

5. A description of the measures to be used to comply with the applicable requirements of Rule 880-X-10B.

(c) The name and address of the owner of record of the surface land and of the subsurface mineral estate of the area to be explored;

(d) A map or maps at a scale of 1:24,000 or larger, showing the areas of land to be disturbed by the proposed exploration and reclamation. The map shall specifically show existing roads, occupied dwellings, and pipelines; proposed location of trenches, roads, and other access routes and structures to be constructed; the location of proposed land excavations to be conducted or waste material disposal areas; water or coal exploratory holes and wells to be drilled or altered; underground openings; earth or debris disposal areas; existing bodies of surface water; topographic, and drainage features; and critical habitats of any endangered or threatened species listed pursuant to the Endangered Species Act of 1973 (16 U.S.C. Section 1531, et seq.); and

(e) If the surface is owned by a person other than the applicant, a description of the basis upon which the applicant claims the right to enter that land for the purpose of conducting exploration and reclamation;

(f) A justification of the need to remove more than 250 tons, and/or disturb more than one-half acre.

(g) For any lands listed in Rule 880X-7B-.06 of these regulations, a demonstration that, to the extent technologically and economically feasible, the proposed exploration activities have been designed to minimize interference with the values for which those lands were designated as unsuitable for surface coal mining operations. The application must include documentation of consultation with the owner of the feature causing the land to come under the protection of Rule 880-X-7B-.06 of these regulations, and, when applicable, with the regulatory authority with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of Rule 880-X-7B-.06 of these regulations.

(2) Public notice and opportunity to comment. Public notice of the application and opportunity to comment shall be provided as follows:

(a) Within five days of the filing of a complete application with the Regulatory Authority, public notice shall be published in a newspaper of general circulation in the county of the proposed exploration area.

(b) The public notice shall state the name and business address of the person seeking approval, the date of filing of the application, the address of the State Regulatory Authority at which written comments on the application may be submitted, the closing date of the comment period, and a description of the area of exploration.

(c) Any person with an interest which is or may be adversely affected shall have the right to file written comments on the application within thirty days of the publication of such notices.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 81, 82, 87.

History: May 20, 1982. Amended: September 18, 1990; effective: August 2, 1991. Amended: Filed August 23, 2001; effective September 27, 2001.

Ed. Note: On February 5, 2002, the Office of Surface Mining approved this rulemaking adopted by the commission on August 16, 2001. The effective date of this rule will be March 7, 2002.

880-X-8C-.06 Applications: Approval Or Disapproval Of Exploration Of More Than 250 Tons.

(1) The State Regulatory Authority shall act upon a completed application within a reasonable period of time but not to exceed thirty days following the close of the public comment period. The approval of a coal exploration permit may be based only on a complete and accurate application.

(2) The State Regulatory Authority shall approve a complete application filed in accordance with this Subchapter, if it finds, in writing, that the applicant has demonstrated that the exploration and reclamation described in the application --

(a) Will be conducted in accordance with the Act, Subchapter 880-X-10B, this Subchapter and these regulations;

(b) Will not jeopardize the continued existence of an endangered or threatened species listed pursuant to Section 4 of the Endangered Species Act of 1973 (16 U.S.C. Section 1531, et seq); or result in the destruction or adverse modification of critical habitat of those species; and

(c) Will not adversely affect any cultural or historical resources or districts, sites, buildings, structures, or objects listed on the National Register of Historical Places, unless the proposed exploration has been approved by both the State Regulatory Authority and the agency with jurisdiction over such matters.

(d) Requires that the tonnage to be removed and acreage to be disturbed are justified by the scope of the operation.

(e) With respect to exploration activities on any lands protected under Rule 880-X-7B-.06 of these regulations, minimize interference, to the extent technologically and economically feasible, with the values of which those lands were designated as unsuitable for surface coal mining operations. Before making this finding, the regulatory authority must provide reasonable opportunity to the owner of the feature causing the land to come under the protection of Rule 880-X-7B-.06 of these regulations, and when applicable, to the regulatory authority with primary jurisdiction over the feature with respect to the values that caused the land to come under such protection, to comment on whether the finding is appropriate.

(3) Terms of permit. Each exploration permit issued by the Regulatory Authority shall be valid for a period determined by the Regulatory Authority and contain conditions necessary to ensure that the exploration and reclamation will be conducted in compliance with the Act, this Chapter, Subchapter 880-X-IOB and any other applicable provisions of these regulations.

(4) The applicant shall submit to the State Regulatory Authority a performance bond and certificate of liability insurance which comply with the requirements of Chapter 880-X-9 except that --

(a) In lieu of the requirement of Rules 880-X-9B-.03 and 880-X-9D-.03(4)(d) there shall be no minimum bond amount;

(b) In lieu of the requirements of Rules 880-X-9B-.04(2)(a) and 880-X-9D-.03(5)(c)(3), the period of liability shall be two (2) full growing seasons; and

(c) Only the requirements of paragraphs (1), (1)(a), (4), and (6)(a)-(d) of Rule 880-X-9D-.02 shall apply.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 81, 82, 87, as amended.

History: May 20, 1982. Amended: September 18, 1990; effective: August 2, 1991. Amended: Filed August 23, 2001; effective September 27, 2001.

Ed. Note: On February 5, 2002, the Office of Surface Mining approved this rulemaking adopted by the commission on August 16, 2001. The effective date of this rule will be March 7, 2002.

880-X-8C-.07 Applications: Notice And Hearing For Exploration Of More Than 250 Ton.

(1) The State Regulatory Authority shall notify the applicant, the appropriate local government officials, and other commentors on the application in writing, of its decision to approve or disapprove the application. If the application is disapproved, the notice to the applicant shall include a statement of the reason for disapproval. The State Regulatory Authority shall provide public notice of approval or disapproval of each application, by posting at a public office in the general vicinity of the proposed operations.

(2) Any person with interests which are or may be adversely affected by a decision of the State Regulatory Authority pursuant to Paragraph (1) above, shall have the opportunity for administrative and judicial review as set forth in Subchapter 88O-X-8L.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 81, 82, 87.

History: May 20, 1982. Amended: September 18, 1990; effective: August 2, 1991.

880-X-8C-.08 Coal Exploration Compliance Duties.

(1) All coal exploration and reclamation activities that substantially disturb the natural land surface shall be conducted in accordance with coal exploration requirements of the Act, this subchapter, Subchapter 880-X-10B and any terms or conditions imposed by ASMC in granting the exploration permit.

(2) Any person who conducts any coal exploration operation in violation of the provisions of this Chapter, Subchapter 880-X-10B, or any exploration permit term or condition imposed by ASMC, shall be subject to the provisions of Section 26 of the Act, and Chapter 880-X-11.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 81, 82, 87 and 30 USC 1235.

History: Original Filed November 14, 1989; effective: March 7, 1991.

880-X-8C-.09 Commercial Use Or Sale.

(1) Except as provided under paragraph (2) of this Rule, any person who intends to commercially use or sell coal extracted during coal exploration operations under an exploration permit, shall first obtain a permit to conduct surface coal mining operations for those operations from the Alabama Surface Mining Commission under Subchapters 880-X-8D through 880-X-8M.

(2) With the prior written approval of the Alabama Surface Mining Commission, no permit to conduct surface coal mining operations is required for the sale or commercial use of coal extracted during exploration operations if such sale or commercial use is for coal testing purposes only. The person conducting the exploration shall file an application for such approval with the Alabama Surface Mining Commission. The application shall demonstrate that the coal testing is necessary for the development of a surface coal mining and reclamation operation for which a surface coal mining operations permit application is to be submitted in the near future, and that the proposed commercial use or sale of coal extracted during exploration operations is solely for the purpose of testing the coal. The application shall contain the following:

(a) The name of the testing firm and the locations at which the coal will be tested.

(b) If the coal will be sold directly to, or commercially used directly by, the intended end user, a statement from the intended end user, or if the coal is sold indirectly to the intended end user through an agent or broker, a statement from the agent or broker. The statement shall include:

1. The specific reason for the test, including why the coal may be so different from the intended user's other coal supplies as to require testing;

2. The amount of coal necessary for the test and why a lesser amount is not sufficient; and

3. A description of the specific tests that will be conducted.

(c) Evidence that sufficient reserves of coal are available to the person conducting exploration or its principals for future commercial use or sale to the intended end user, or agent or broker of such user identified above, to demonstrate that the amount of coal to be removed is not the total reserve, but is a sampling of a larger reserve.

(d) An explanation as to why other means of exploration, such as core drilling, are not adequate to determine the quality of the coal and/or the feasibility of developing a surface coal mining operation.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 80, 81, 82, 87.

History: Original Filed September 18, 1990; effective: August 2, 1991.

880-X-8C-.10 Public Availability Of Information.

(1) Except as provided in Paragraph (2) of this Rule, all information submitted to the State Regulatory Authority under this Rule shall be made available for public inspection at the local offices of the State Regulatory Authority closest to the exploration area.

(2) The State Regulatory Authority shall not make information available for public inspection if the person submitting it requests in writing at the time of submission, that it not be disclosed, the information is clearly marked as "CONFIDENTIAL," and the information concerns trade secrets or is privileged commercial or financial information relative to the competitive rights of the person intending to conduct coal exploration.

(3) Information requested to be held as confidential under this Section shall not be made publicly available until after notice and opportunity to be heard is afforded both persons seeking and opposing disclosure of the information.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 80, 81, 82, 87.

History: May 20, 1982. Amended: September 18, 1990; effective: August 2, 1991.