Arkansas Administrative Code
Agency 014 - Pollution Control and Ecology Commission
Regulation 15 - Arkansas Open-Cut Mining and Land Reclamation (#014.00-015)
Rule 014.06.14-001
Universal Citation: AR Admin Rules 014.06.14-001
Current through Register Vol. 49, No. 9, September, 2024
CHAPTER ONE :TITLE AND PURPOSE
Reg. 15.101
Title and Authority
The following rules and regulations of the Arkansas Pollution Control and Ecology Commission are promulgated pursuant to the authority of the Arkansas Open-Cut Land Reclamation Act (Act 827 of 1991, as amended) and the Arkansas Water and Air Pollution Control Act (Act 472 of 1949, as amended). This Regulation shall be known as Arkansas Pollution Control and Ecology Commission Regulation Number 15: Arkansas Open-Cut Mining and Land Reclamation" and may be referred to herein as "Regulation".
Reg. 15.102
Purpose
It is the purpose of this Regulation to protect the public health, safety, and the environment during and after completion of open-cut or stream bed mining operations.
CHAPTER TWO :DEFINITIONS
Reg. 15.201
Definitions
Definitions as used in this Regulation unless the context otherwise requires:
"Act" means the Arkansas Open-Cut Land Reclamation Act;
"Affected land" means the area of land where open-cut mining has been or is taking place or upon which spoil has been deposited, or any other surface disturbance including haul roads, processing and loading facilities, or appurtenances related to the mining operations on or after July 1, 1977, until the land is reclaimed;
"Commercial purposes" means the sale of material from an open-cut mine as either a cash transaction, part of a contractual agreement involving payment for materials provided, or use in another process to create a product with value;
"Commission" means the Arkansas Pollution Control and Ecology Commission (APC&EC), or such commission or other entity as may lawfully succeed to the powers and duties of the Commission;
"Contemporaneous Reclamation" means a mining method for a sand and gravel operation where the mining and reclamation of the mine site has been planned such that the reclamation of the mined areas takes place at intervals or stages as prescribed by the Department and defined in the permit. This mining method reduces the amount of land affected by mining at any given point in time and reduces reclamation costs through efficient management of resources;
"Department" means the Arkansas Department of Environmental Quality or such department or other entity which may lawfully succeed to the powers and duties of the Department;
"Director" means the executive head and active administrator of the Department;
"Final cut" means the last pit created in an open-cut mined area;
"Highwall" means that side of the pit adjacent to unmined land;
"Material" means any commodity or natural deposit mined or treated as spoil during open-cut mining operations;
" Open-cut mining" means the surface extraction of clay, bauxite, sand, gravel, soil, shale or other materials for commercial purposes;
"Operator" means any person engaged in or controlling an open-cut mining or stream channel mining operation;
"Ordinary high water mark" means that line delimiting the bed from the bank and is found by ascertaining where the presence and actions of water are so usual and long, continuing in ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, with respect to vegetation and the nature of the soil;
"Peak" means a projecting point of spoil created in the open-cut mining process;
"Permit term" means the period of time beginning with the date upon which a permit is granted for open-cut mining of lands under the provisions of this act and ending on the date requested by the operator and specified by the Department, though not to exceed five (5) years;
"Person" means any individual, partnership, firm, company, public or private corporation, cooperative, association, joint-stock company, trust, estate, political subdivision or any agency, board, department or bureau of the state or any other legal entity whatever which is recognized by law as the subject of rights and duties;
"Pit" means a tract of land where open-cut mining is taking place;
"Reclamation for productive use" means conditioning areas affected by open-cut mining to make them suitable for any uses or purposes consistent with those enumerated in the declaration of policy;
"Ridge" means a lengthened elevation of spoil created in the open-cut mining process;
"Right-of-way" means the portion of land over or under which certain facilities, including, but not limited to roadways, pipelines or power lines, are built;
"Soil" means the unconsolidated mineral or organic material on the immediate surface of the earth that serves as a natural medium for the growth of plants, generally free of boulders, cobbles or other floating rock;
"Spoil" means all waste material and debris connected with open-cut mining and with the mechanical removal, cleaning and preparation of materials at the mine site;
"Streambed" or "stream channel" means that area that lies between the lines delimiting the bed from the bank on each side of a creek, branch, or river. Due to the naturally high turbidity and flow rate of certain rivers, the provisions of this Regulation do not apply to the following rivers: Arkansas, Mississippi, Ouachita (Louisiana State line to Remmel Dam), Red, Little River (not including Lake Millwood), White, North Fork of White (Norfork Dam to White), Black and St. Francis (mouth to 36° parallel); and
"Waterway" means the natural channel of any perennial or intermittent river, creek or stream.
CHAPTER THREE :PERMITTING
Reg. 15.301
Permit Required
(A) It shall be unlawful for any operator to
engage in open-cut mining without first obtaining all appropriate permits from
the Department.
(B) An operator
shall be deemed to be engaged in open-cut mining from the time he or she
affects any land, until all affected land has been reclaimed and released by
the Department.
(C) Operators
desiring to remove gravel or other materials from stream beds must obtain a
permit to do so from the Department.
(1) The
Department will not develop a general permit for the removal of gravel and
other materials from stream beds.
(2) There shall be no mining in streams
designated as "extraordinary resource waters" of the State as established in
water quality standards duly promulgated by the Commission for all surface
waters of the State of Arkansas (APC&EC Regulation No. 2). Refer to
APC&EC Regulation 2 to determine what streams and waterbodies are
considered to be "extraordinary resource waters."
(3) All stream gravel mining operations on
streams designated as "extraordinary resource waters" after January 1, 1995 may
continue to operate under a permit issued by the Department for a period of two
(2) years from the date of such designation. At the end of said two-year
period, all mining activities must be terminated and the affected area
reclaimed in accordance with the operator's approved reclamation
plan.
(D) Previously
mined and un-reclaimed land which is to become affected land during new
open-cut mining operations must be permitted.
(E) The Arkansas State Highway Department or
its contractor shall not be required to obtain a permit for an open-cut mine
where the material is used exclusively in the construction, reconstruction,
improvement or maintenance of roadways. Reclamation of the area shall conform
to the provisions of the standard specifications for highway construction upon
discontinuation of use of the pit for the above listed purposes. This exemption
does not alleviate any obligations to obtain appropriate permits from the
Department, including but not limited to short-term authorizations or water
quality permits.
(1) The occasional sale of
material to the Highway Department by an operator does not exempt the operator
from complying with the requirements of his or her permit, the Act or this
Regulation.
(2) In the event the
reclamation requirements of the operator interfere with a contractual agreement
with the Highway Department, the operator will be allowed to revise his or her
reclamation plan and schedule of completion accordingly. However, any revision
must be in compliance with the declaration of policy in the Act.
(F) The following subdivisions
apply to governmental units:
(1) County and
municipal governments shall not be required to obtain a permit for open-cut
mining operations on lands outside of the channel of a waterway for which said
government entity has established rights when the material is used for
construction, reconstruction, improvement or maintenance of streets, roads,
highways or other public projects.
(a) The
county or municipal government shall remove topsoil and spoil and store it on
site.
(b) Upon completion of
mining, the site shall be graded such that no slope will be steeper than one
foot (1') vertical to three feet (3') horizontal and the topsoil shall be
respread and the site revegetated in a manner to prevent pollution of the
waters of Arkansas.
(2)
An agent or employee of a county government or municipal government acting in
his or her official capacity may remove gravel or other materials from any
stream in order to protect the integrity of bridges or low water crossings of
any public roadway without obtaining a permit.
(3) A governmental unit may remove gravel or
other material from any stream in order to protect the integrity of a
governmental owned or controlled structure without obtaining a
permit.
(4) The above exemptions do
not preclude the governmental unit from obtaining any necessary U.S. Army Corps
of Engineers permits or any necessary permits from the Department, including
but not limited to short-term authorizations or water quality
permits.
(5) Flood control projects
authorized by the U.S. Army Corps of Engineers shall be exempt from the mining
permit requirement, provided, however, that certification under Section 401 of
the Federal Clean Water Act is obtained for said project as well as any
appropriate permits from the Department, including but not limited to
short-term authorizations or water quality permits.
(a) In the event that authorization pursuant
to Section 404 of the Federal Clean Water Act is determined by the U.S. Corps
of Engineers not to be required for a specific flood control or bank
stabilization project, the Department will review the proposed plan using the
Section 401 water quality certification criteria.
(b) The Department shall issue the necessary
authorizations and permits as deemed needed for the project once it has been
established that the activity will not adversely affect water quality through
the Section 401 water quality certification criteria review.
(6) Governmental units not
specifically excluded pursuant to the above sections shall obtain a permit from
the Department as required by this Regulation.
(G) The following subdivisions apply to
landowners:
(1) The requirements of the Act,
as amended, and this Regulation shall not apply to the noncommercial removal of
clay, bauxite, sand, gravel, soil, shale or other materials from lands by the
owner of said lands or by a contractor hired by the owner for the exclusive use
by the land owner for construction, improvement or maintenance of roads or
other projects on land owned by said owner, or any environmental improvements
to previously disturbed lands, or the concurrent or short term, ninety (90)
days or less, excavation of materials during the construction of buildings
either for residential, commercial or industrial purposes. This exemption does
not alleviate any obligation to obtain appropriate permits from the Department,
including but not limited to short-term authorizations or water quality
permits.
(2) Landowners may sell or
barter gravel or other material from stream beds as a part of an approved flood
control or bank stabilization project designed or approved by the U.S. Army
Corp of Engineers, the Natural Resources Conservation Service, or the Arkansas
Game and Fish Stream Team program without a mining permit from the Department.
A landowner may remove sufficient stream bed material from one's own land for
road maintenance, construction or other uses on said land without obtaining a
mining permit. Except as provided above, material shall not be removed for the
purpose of commercial sale without first obtaining a mining permit from the
Department. This exemption does not alleviate any obligation to obtain
appropriate permits from the Department, including but not limited to
short-term authorizations or water quality permits.
(H) The following subdivisions are exceptions
to this section:
(1) Land affected by open-cut
mining operations prior to July 1, 1971 are exempt from the Act and this
Regulation unless subsequently affected after July 1, 1971.
(2) Nothing in this Regulation shall be
construed to require any operator to reclaim or revegetate any previously
exempted excavation sites such as soil and shale pits that were affected and
abandoned prior to January 1, 1999.
(3) Nothing in this Regulation shall be
construed to apply to the removal of soil, shale, or stone at a quarry
operation that is regulated under Ark. Code Ann. §§
15-57-401
through
15-57-414.
(4) Nothing in this Regulation shall be
construed to apply to any excavation activity associated with the improvement
or maintenance of any agricultural lands or associated irrigation
systems.
(5) The requirements of
the Act, as amended, and the Regulation shall not apply to any area being
excavated for soil or shale that is less than three (3) acres where an
undisturbed buffer zone of not less than fifty feet (50') exists between the
highwalls of the excavation site and any adjacent property line or to any size
area being excavated if the area being excavated is at least one-fourth (1/4)
of a mile from any adjacent property line.
(6) The above-listed exemptions do not
alleviate any obligation to obtain the appropriate permits from the Department,
including but not limited to short term authorizations or water quality
permits.
Reg.
15.302
Permits: In General
(A) Individual Permit
(1) Any person desiring to engage in an
open-cut mining operation that is not covered by a general permit authorized by
the Department or stream bed mining shall make written application for an
individual permit to the Department.
(2) The application must include, but may not
be limited to the following documents:
(a) Two
(2) permit application forms;
(b)
Permit application fee;
(c) Proof
of right to mine the land;
(d) Maps
as described in this Regulation;
(e) A mining plan;
(f) Apian of reclamation;
(g) Detailed bond determination;
(h) An acceptable bond instrument;
and
(i) A disclosure form as
provided by the Department.
(B) General Permit
(1) Any person desiring coverage under a
general permit from the Department shall make written notification to the
Department. The notification must include the following documents:
(a) Notice of Intent form as provided by the
Department;
(b) Notice of Intent
fee of two hundred dollars ($200);
(c) Proof of right to mine as described in
Reg. 15.305;
(d) A 7.5 minute
topographic quadrangle map with the outline of the permit boundary clearly
marked;
(e) A disclosure form as
provided by the Department; and
(f)
Reclamation Bond Instrument.
(2) The Department will not approve more than
one (1) general permit on a single property. Mining operations that could
exceed the acreage limitations of an approved general permit should apply for
an individual permit.
(C)
A decision on issuance of a permit will be made by the Department upon
submittal of a complete application or Notice of Intent. A complete application
or Notice of Intent consists of all materials listed in this section for an
individual permit or a general permit, and any additional written information
or materials the Department determines to be necessary to comply with the Act
and this Regulation.
Reg.
15.303
Permit Application Requirements
(A) The permit application must be made on a
form(s) furnished by the Department.
(B) The application form shall be prepared as
two (2) originals with an original notarized signature of an owner, corporate
officer, or duly authorized agent on each.
(C) An agent must provide proof of his or her
authority by a power of attorney or other such document signed by the
principal.
(D) The permit term
shall not exceed five (5) years. At the Director's discretion and based on
information contained in the operator's right to mine and other environmental
concerns, including but not limited to, the proximity of the proposed mining
operation to any water bodies, the permit term that is approved may be less
than the maximum of five (5) years.
(E) Minor revisions do not require public
notice. An applicant for a new permit or major modification of an existing
permit shall comply with the public notice requirements delineated in the
Commission's regulations on administrative procedures.
(F) Written comments on a new permit
application or major modification of an existing permit with respect to the
effects of the proposed mining operations on the environment may be submitted
to the Department by any person within thirty (30) days after the last
publication of the newspaper notice required by the Commission's regulations on
administrative procedures.
(G) The
Department shall, immediately upon receipt of any written comments:
(1) Transmit a copy of the letter to the
applicant;
(2) File a copy for
public inspection with the permit application at the Department's North Little
Rock office;
(3) Review the
comments and prepare a written response to the comments prior to permit
issuance; and
(4) Provide notice of
date of permit issuance to all persons who submitted timely written
comments.
(H) An
applicant for a new or major modification of an existing stream bed mining
permit shall make a reasonable effort to notify all adjacent land owners that a
complete application for a stream bed mining permit is on file with the
Department. This notice shall also contain the permittee's name, mailing
address, type of mine, commodity to be mined, and the location of the mine. The
adjacent land owners shall be notified at the same time that the permit
application is submitted to the Department. The applicant must provide a copy
of the letter sent to each adjacent land owner with the application.
(I) A permit issued under the provisions of
the Act and this Regulation does not convey to the operator the right of access
to the property proposed to be mined. Access must be granted under the Proof of
Right to Mine as required in Reg. 15.305.
Reg. 15.304
Permit Application
Fee
(A) The application for a permit
shall be accompanied by a fee often dollars ($10.00) per acre with a two
hundred dollar ($200) minimum.
(B)
This fee must be paid by check or money order and made payable to the Arkansas
Department of Environmental Quality.
Reg. 15.305
Proof of Right to
Mine
(A) The applicant must provide
the Department with proof that it has the right to mine the land for which a
permit is requested.
(B) Acceptable
documentation to prove this right is as follows:
(1) A copy of the lease agreement with the
landowner. The agreement must contain a legal description of the land to be
permitted and be signed by the applicant and landowner;
(2) A copy of the deed containing a legal
description of the land in the event the applicant owns the land;
(3) A copy of a letter from the land owner
expressly giving the applicant permission to conduct mining. The letter must
contain a legal description of the land and be signed and notarized by the land
owner;
(4) In the event mineral
rights have been severed from the surface rights, an agreement signed by the
mineral rights holder, the surface rights holder, and the applicant must be
provided to the Department. The agreement shall contain legal descriptions of
the mineral rights and surface rights, identify the conditions of the
agreement, and give the applicant permission to conduct mining. The agreement
must be provided to the Department along with proof of the surface rights
holder's and mineral rights holder's respective ownership; or
(5) If the mining operation involves the
removal of gravel or other material from within a stream channel where the
property boundaries are defined by the centerline of the stream channel, then
the site map should clearly identify the boundary of the mining area and the
property line.
Reg.
15.306
Maps
(A) The
applicant must provide the Department with a minimum of one (1) vicinity map,
one (1) site map and one (1) reclamation map.
(B) Additional maps may be submitted as
needed. All maps must be to scale.
(1) The
vicinity map must be a 7.5 minute topographic quadrangle map as prepared by the
U.S. Geological Survey, and contain the following:
(a) A clearly-marked permit area;
(b) The legal description of the area to be
permitted; and
(c) A
clearly-identifiable site entrance.
(2) The site map must be to scale (i.e. 1" =
200') and depict the following features:
(a)
The permit area must be outlined and labeled on a site map showing dimensions
and elevations.
(i) Boundaries of the mine
site and elevations must be tied to temporary reference points established
outside the mine site.
(ii) If the
mine site is greater than forty (40) acres, an engineer or land surveyor who is
registered in Arkansas must prepare the survey.
(iii) The Department may require sites
smaller than forty (40) acres to submit a survey, if the site map calls for the
construction of engineered structures such as dams, impoundments, shows complex
ownership, or for other reasons;
(b) The location and identification of all
affected and unaffected areas.
(i) All areas
that will not be affected should be marked and labeled.
(ii) Areas to be affected such as haul roads,
offices, maintenance shelter(s), loading and process facilities, ponds, scales,
refuse storage, spoil storage area, top soil storage area, and excavation area
must be clearly marked;
(c) Flow patterns in the event decant ponds
or canals are used;
(d) The
precautions taken to avoid affecting any nearby water body;
(e) Identification of any diversion ditches
used to channel water from sensitive areas, including the flow patterns;
and
(f) The mining plan.
(3) The reclamation map should be
of similar scale as the site map, and contain the following:
(a) The permit area must be outlined and
labeled;
(b) Identification of any
roads to remain after reclamation;
(c) Identification of any water impoundments
to remain after reclamation, including approximate size and location;
(d) Areas to be revegetated must be
marked;
(e) Areas to remain
unaffected must be marked; and
(f)
Appurtenances for which the Department has given prior approval to remain must
be identified and labeled.
Reg. 15.307
Mining Plan
(A) In order to adequately assess the
environmental soundness of the proposed operation and assess the proposed bond
amount and its relationship to the proposed reclamation plan a detailed mining
plan must be submitted by the applicant.
(B) The mining plan must include all
provisions of this section.
(C) The
Department, in its discretion, may require the applicant to address other
issues in the mining plan which may impact environmental preservation and the
amount of reclamation bond to be posted.
(D) Where applicable, the mining plan must
include:
(1) Provisions to prevent unpermitted
releases of water from the site, which provisions are to be identified on the
site map and described in the mine plan narrative;
(2) A description of the functions of any
ponds used as part of the process (i.e., decant ponds) and depiction on the
site map;
(3) Methods used to
restrict access to and warn the public of the dangers inherent in a mining
operation such as fencing, natural or man-made barriers and warning
signs;
(4) A description of plan to
preserve topsoil for redistribution during reclamation, unless the Director
approves otherwise;
(5) A detailed
description of any incremental mining map(s) depicting the plan;
(6) Information on the thickness of the
topsoil, overburden, and the resource material to be mined; and
(7) A description of plans for
contemporaneous reclamation as required by the Department. For sand and gravel
open-cut mining operations, a detailed description of the proposed incremental
mining that will be conducted which incorporates contemporaneous
reclamation.
Reg.
15.308
Reclamation Plan
(A) A reclamation plan to return all affected
land at the proposed mine site to a useful purpose must be submitted by the
applicant.
(B) Stream channel
operators must comply with the reclamation requirements of Reg. 15.401(B) and
the applicable requirements of this section.
(C) The applicant shall state the intended
post mining use of all affected land.
(D) The reclamation plan shall include:
(1) A detailed description of the plans for
contemporaneous reclamation as part of the incremental mining plan set forth
under the conditions of Reg. 15.307(D)(7);
(2) A minimum of two (2) cross-sections of
the permit area before mining and two (2) cross-sections of the same area as
anticipated upon completion of the proposed reclamation. Cross-sections shall
be tied to established elevations in the applicant's survey submitted along
with the applicant's site map;
(3)
A reclamation map which shows the planned reclamation goal on all of the permit
area;
(4) A plan for the final
contour of all reclaimed land. The following criteria apply to such plan:
(a) If the original slope of the affected
land was less steep than one (1) vertical to three (3) horizontal (1:3), then
no final slope shall be steeper than 1:3. If a pond is to be left, the banks
must be graded at 1:3 to a point below the water surface at the annual low
water level that will allow safe ingress and egress. Beyond this point the
normal angle of repose for the material being used may be acceptable, provided
it will provide adequate lateral support for the 1:3 slope preceding
it;
(b) If the original slope of
the affected land was steeper than one (1) vertical to three (3) horizontal
(1:3), the Department may approve a final slope steeper than 1:3;
(c) If the material in which excavation is
occurring is unconsolidated, in that it is lacking sufficient hardness or
ability to resist weathering and inhibit erosion or sloughing, the Department
may approve a final slope of approximate original contour, provided the
operator can assure the integrity of this slope;
(d) If the material in which excavation is
occurring is consolidated, in that it is of sufficient hardness or ability to
resist weathering and inhibit erosion or sloughing, the Department may approve
a slope deviation involving terracing, provided the reclamation plan meets the
criteria as follows:
(i) Final slope of a
reclaimed highwall must be approved by the Department as part of the written
reclamation plan;
(ii) The top of
excavation is to be fenced;
(iii)
The uppermost terrace to be no more than ten feet (10') below top of
excavation;
(iv) The remainder of a
highwall must be terraced with no terrace face greater than twenty feet (20')
in height;
(v) The terrace widths
are no less than ten feet (10'); and
(vi) Each terrace is to be revegetated with
trees or other approved vegetative cover.
(5) Methods used to assure the proper pH of
any water impoundments to be left as part of the reclamation. The impoundments
must have a pH no less than six (6) or no greater than nine (9).
(6) The methods used to assure the proper pH
range shall include:
(a) The procedure for any
water treatment;
(b) The design and
maintenance of any diversion berms needed to channel water, which are depicted
on the site map;
(c) In the event
other naturally occurring water bodies in the area of the permit possess pH
levels outside the six (6) to nine (9) pH range, and which levels are not
caused by human influence, then a similar pH level may be accepted by the
Department; and
(d) The Department
may accept a deviation from the six (6) to nine (9) pH range due to water
runoff from outside the affected area if the influent cannot be avoided through
prior planning or sound engineering practice.
(7) A plan to cover all acid-forming
materials that become exposed with earth or spoil materials to a depth of not
less than three feet (3'), or an alternative approved by the
Department;
(8) The location of any
proposed fire lanes must be shown on the reclamation map, in the event
reforestation is to be used as part of the reclamation. Fire lanes of not less
than ten feet (10') in width must be constructed unless otherwise approved by
the Department;
(9) A list of the
varieties and applicable seeding rate that will be used must be included with
the reclamation plan. The applicant shall obtain recommendations on plant
varieties and seeding rates based on the intended use of the land from state
and federal agricultural or forestry agencies;
(10) Plans for reuse of salvaged topsoil,
including the locations where and depth at which topsoil is to be spread;
and
(11) A schedule for completion
of the reclamation. If the operator fails to meet the completion date, the
permit may, in the discretion of the Department, be extended in one -year
increments from the termination of the permit.
(12) In the event that the applicant does not
comply with its schedule of reclamation after no more than three (3) extensions
have been granted, the bond or substituted security posted for such
unsatisfactorily reclaimed land shall be forfeited.
(E) Reclamation using only trees must be in
accordance with the planting guidelines of the State Forestry Department and
include provisions for erosion control.
(F) Successful revegetation will be measured
as follows:
(1) Land reclaimed with grasses,
etc. must attain a seventy percent (70%) coverage, such that any randomly
selected twenty-four inch (24") diameter circle of vegetation must have no less
than seventy percent (70%) coverage; or
(2) Land reclaimed with trees must have no
less than fifty percent (50%) survival rate after two (2) growing
seasons.
(G) All
equipment on site must be removed. Permanent structures may remain provided
they serve a useful purpose and upon approval by the Department.
(H) The results of the soil analysis made
when the site slope is in condition for vegetating. A soil analysis shall be
made as a basis for soil amendments, such as lime, fertilizer, or secondary
micronutrients needed to support the growth of the vegetation species to be
planted. Laboratory analysis shall be obtained from the University of Arkansas
Cooperative Extension Service Office or any other public or private
organization or person approved by the Department.
Reg. 15.309
Reclamation Bond
(A) The application for a mining permit shall
be accompanied by a bond or substituted security for the affected or the
proposed affected area in favor of the State of Arkansas through the
Department.
(B) The bond or
substituted security must be effective prior to the date of issuance of the
permit by the Department and continue in effect until released by the
Department.
(C) The bond amount
must be sufficient to assure performance of the reclamation according to the
approved reclamation plan for the permitted area in the event the reclamation
must be done by the Department through an independent contractor.
(D) In the event the Department determines
the proposed bond amount to be inadequate, the Applicant/Operator and any
surety or indemnifier on the bond will be notified that the value of the
required bond or substituted security must be increased as provided in the
Act.
(E) The operator may submit
any of the following three (3) types of bonds:
(1) A surety bond;
(2) A collateral bond with supporting
collateral consisting of irrevocable letters of credit or certificates of
deposit in favor of the Department; or
(3) A self bond with unencumbered right to
certain property to be held by the Department.
(F) Recommended bond forms shall be provided
by the Department. A variation of the language in all but the self bond form
may be acceptable provided the requirements of the Act and this Regulation are
incorporated and the Department approves the language.
(G) In the event self bonding is used, the
following conditions apply:
(1) The
Applicant/Operator must use the self bond form provided by the
Department;
(2) The
Applicant/Operator shall pay to have the collateral to be offered appraised by
a licensed appraiser approved by the Applicant/Operator and the
Department;
(3) The
Applicant/Operator must have unencumbered ownership of the collateral, and
provide proof of such ownership to the Department;
(4) The value of the collateral as bond will
be no more than eighty percent (80%) of the fair market value of the collateral
as established by the appraiser;
(5) Any collateral that decreases in value
due to usage (i.e., rolling stock) will not be acceptable;
(6) In the event the collateral consists of
real property, an environmental audit of the area must be provided to the
Department; and
(7) Where
applicable, a lien will be filed against the collateral until the affected area
is reclaimed and released by the Department.
(H) In the event incremental mining and
bonding is to be used, the bond amount for each increment must be determined by
the operator and approved by the Department. The accepted amount for the first
increment must then be posted with the Department prior to issuance of the
permit. The approved bond amount for each succeeding increment must be posted
before the land can be affected.
(I) No bond or substituted security shall be
canceled by the Surety or Indemnifier for any reason unless it has given no
less than ninety (90) days' written notice of the cancellation to the
Department's Legal Chief.
(J) In no
event shall a bond be canceled on a permitted area that at the time of
cancellation has become affected land under the provisions of the Act and this
Regulation.
(K) If the license to
do business of any corporate surety upon a bond filed with the Department
pursuant to the Act and this Regulation shall be suspended or revoked, the
operator, within thirty (30) days after receiving notice of such suspension or
revocation, shall substitute for the surety a licensed corporate surety. In the
event the operator fails to substitute the bond or substituted security upon
cancellation or loss of value of its existing bond, the Department shall
suspend the permit of the operator until the substitution is made.
(L) No operator shall be eligible to receive
a new, renewed, or modified permit who has had a permit revoked, bond
forfeited, or who has outstanding substantial unmitigated violations of the Act
or this Regulation, unless the Department finds, upon review, a demonstrable
change of circumstances justifying an exception to these
prohibitions.
Reg. 15.310
Temporary Variances and Interim Authority
The issuance of temporary variances and interim authority shall comply with the requirements found in Ark. Code Ann. § 8-4-230.
Reg. 15.311
Permit Renewal
and Modification
(A) In the event any
area for which a permit applies is not mined or where mining operations have
not been completed during the permit term, the permit as to such area may be
extended by the Department upon application by the permittee. The permittee
must mark the application form as "For an extension of time" and submit a
review fee of one hundred dollars ($100).
(B) Prior to application for renewal or
modification, the permittee should review the current mining plan, reclamation
plan, and bond amount. In the event the permittee desires to renew or modify
the mining or reclamation plan, the permittee must make application to do so
and update the documentation. The permittee must review the bond amount taking
into account inflation and any changes to the mining and reclamation
plan.
(C) The permittee must mark
any application for modification that does not include adding additional new
acreage with "To amend" and submit a review fee of one hundred dollars
($100).
(D) In the event the
permittee seeks to add additional acreage to the permit area, he or she must
submit the following documents for modification:
(1) The permit application filed in duplicate
and marked "To amend" on the designated blank;
(2) A permit application fee for the new
acreage based on the fee schedule listed in Reg. 15.304 in addition to the
permit modification review fee of one hundred dollars ($100);
(3) Proof of right to mine the new area as
set out in Reg.15.305;
(4) A new
site map with the new area clearly delineated from the current permit
area;
(5) A mining plan for the new
area as set out in Reg. 15.307;
(6)
A reclamation plan for the new area that is compatible with that of the current
reclamation plan as set out in Reg.15.308;
(7) A detailed bond determination for the new
area; and
(8) An acceptable bond
instrument for the new area as set out in Reg. 15.309.
(E) General Permits.
(1) General permits may be renewed or
modified by the Department after notice and opportunity for a public
hearing.
(2) Under no circumstances
will a modification of an existing general permit be approved without notice
and opportunity for a public hearing.
(F) General Permit Reissuance.
(1) An operator wishing to continue coverage
under a general permit once that permit is reissued must submit written
notification to the Department as found in Reg. 15.302(B)(1) within thirty (30)
days after the date of reissuance.
(2) The fee for continued coverage under a
general permit will be one hundred dollars ($100).
Reg. 15.312
Permit
Revocation
(A) The Department may
revoke, modify, or suspend, in whole or in part, for cause any permit issued
under the Act and this Regulation, including without limitation:
(1) Violation of any condition of the permit
or the bond; or
(2) Obtaining a
permit by misrepresentation or failure to disclose fully all relevant
facts.
(B) No operator
shall be eligible to receive a new, renewed, transferred, or modified permit
who has had a permit revoked, bond forfeited, or who has outstanding
substantial unmitigated violations of the Act or the Regulation, unless the
Department finds, upon review, a demonstrable change of circumstances
justifying an exception to these prohibitions.
Reg. 15.313
General Permit
(A) After notice and opportunity for a public
hearing, the Department may issue general permits for categories of open-cut
mining operations that:
(1) Are similar in
nature;
(2) Will cause only minimal
temporary adverse environmental effects if performed separately; and
(3) Will have only minimal cumulative adverse
effects on the environment.
(B) A general permit may be revoked or
modified by the Department if after opportunity for a public hearing, the
Department determines that the activities authorized by the general permit:
(1) May have an adverse impact on the
environment; or
(2) Are more
appropriately authorized by individual permits.
(C) The Director, at his or her discretion,
may require an applicant to seek coverage under an individual permit.
CHAPTER FOUR :PERFORMANCE STANDARDS
Reg.
15.401
Performance Standards - General
(A) Every operator to whom a permit is issued
pursuant to the provisions of the Act and this Regulation may engage in
open-cut mining during the permit term on the area described in the permit upon
the performance of and subject to the listed requirements in Reg. 15.402 with
respect to the permitted area.
(B)
In-Stream Mining
(1) Removal of alluvial
materials below the ordinary high water mark of a stream or other waterway
shall be permitted only if an operator demonstrates to the satisfaction of the
Department that activities associated with the removal, processing, or
transport of said materials will not cause a violation of the State's water
quality standards and will provide for preservation of bank stability and
stream channel integrity, and maintain localized in-stream fish
cover.
(2) In addition to
compliance with the applicable requirements of the Act and other provisions of
this Regulation, compliance with the performance standards listed in Reg.
15.403 is required for in-stream mining operations.
(C) Throughout the performance of any
permitted mining activities, the operator must implement measures approved in
the operator's mining and reclamation plan(s) to ensure that the affected area
does not contribute sediment to the stream and restrict access to the site to
enhance stream recovery.
(D) Any
permitted operator must notify the Department in the case of insolvency,
bankruptcy, or receivership.
Reg.
15.402
Open-Cut Mining Standards
(A) The perimeter of the permit area must be
clearly marked on the ground at all times using metal posts or stakes
projecting thirty-six inches (36") above ground and painted Hunter Orange or
like color. These markers must remain in place until the operator has reclaimed
the site and obtained release from reclamation liability from the
Department.
(B) The operator shall
protect the public from the dangers inherent in an open-cut mining operation by
restricting access to the mine site and posting adequate warning
signs.
(C) The operator shall
preserve any topsoil for redistribution during reclamation unless otherwise
approved by the Director.
(D) All
affected land shall be graded to a rolling or terraced topography. No final
slope shall be steeper than one (1) vertical to three (3) horizontal unless
otherwise approved by the Department.
(E) The operator may construct earth dams,
where lakes or other impoundments may be formed, provided they are constructed
and maintained in accordance with sound engineering practices and the
provisions of this Regulation.
(F)
If a lake is to be left as a part of the reclamation plan, provisions must be
made by the operator to assure that a pH factor of six (6) to nine (9) is
maintained unless otherwise authorized by the Department.
(G) If the permit area is near or includes a
waterway, an undisturbed buffer zone must be maintained between the permit
boundary and the ordinary high water mark.
(1)
The ordinary high water mark elevation at the upstream and downstream limits of
the permit area shall be determined numerically by the Department and included
as a permit condition.
(2) If the
applicant proposes a buffer zone of less than one hundred feet (100'),
reasonable scientific and technical data based on the site specific conditions
such as the geology, soil type, slope, or waterway use designation that shows
the proposed buffer zone will protect stream channel integrity must be
presented to and approved by the Director.
(3) If after review of the data submitted by
the applicant, the Director determines that the proposed buffer zone is not
adequate, then the buffer zone shall be established by the Department and not
to exceed one hundred feet (100') measured horizontally from the ordinary high
water mark.
(H) Unless
waived by the Department, all affected land that is reforested shall have
reasonable fire lanes or access roads of at least ten feet (10') in width
constructed through the land.
(I)
When the site slope is in condition for vegetation, a soil analysis shall be
made as a basis for soil amendments.
(J) The operator shall furnish copies of the
soil sample report and recommendations to the Department.
(K) In the event the permit area adjoins
another land owner's property line or a right-of-way, open-cut mining
operations must maintain an undisturbed buffer zone of fifty feet (50') from
any adjacent property line or right-of-way until reclamation begins. For the
department to approve a variance on the fifty-foot buffer zone:
(1) There must be an agreement between the
affected property owner or right-of-way holder and the operator.
(2) The agreement must identify the land to
be affected, describe what is to be done, how close the excavation will
encroach on the property line or right-of-way, the plan and schedule of
reclamation and be signed by all parties.
(3) This agreement must be submitted with the
permit application.
(4) The
operator may begin creating the final slope during reclamation at ten feet
(10') from the adjacent property line or right-of-way.
(L) Whenever the exposed face of mined seams
that contain acid-forming materials is not covered by water or by permanent
water impoundment, the operator shall cover the exposed face of the seams with
earth or spoil material to a depth of not less than three feet (3') upon
approval of the Department.
(M) No
later than June 1st of each year of the permit term,
the operator shall submit to the Department, an annual report, in the form
described in Chapter Six of this Regulation.
(N) All mine spoil generated by the operator
shall be disposed of in a manner approved by the Department.
(O) For sand and gravel operations, the
operator shall perform contemporaneous reclamation of the mine site in
accordance with the operator's incremental mining plan approved by the
Department.
(P) Upon approval from
the Department, stockpiles of processed materials may be left without being
reclaimed if there is a likelihood that there will be a market for the material
in the future and that there will be no form of pollution from the stockpiles
remaining on or leaving the property.
(Q) Mine and permit identification signs
shall:
(1) Be displayed at each point of
access to the permit area from public roads;
(2) Show the current permit number and the
name, business address, and telephone number of the operator; and
(3) Be retained and maintained until after
the final release of the bond for the permit area.
Reg. 15.403
Stream Bed
Mining Standards
(A) Material removal
below the ordinary high water mark must not create a violation of any of the
State's water quality standards established by the Commission.
(B) At no time shall equipment such as
trucks, loaders or dozers be allowed to operate in the water except as
otherwise provided by the Act and this Regulation.
(C) Material removal must not be conducted
below an elevation of one foot (1') above the elevation of the surface of the
water at the time of removal. If the stream is dry, material removal may
proceed to a depth equivalent to one foot (1') above the lowest point of a
cross section of the stream at that location.
(D) At no time shall any material removal
create a condition(s) that will cause the stream to change course or alter the
location of the deepest part of the stream channel or cause bank or channel
instability.
(E) Any removal of
material below the ordinary high water mark must be conducted in a manner that
leaves an undisturbed slope next to the bank to prevent erosion.
(F) An undisturbed buffer zone must be
maintained from the ordinary high water mark landward for the length of the
material removal site.
(1) If the applicant
proposes a buffer zone of less than one hundred feet (100'), reasonable
scientific and technical data based on the site specific conditions such as
geology, soil type, slope, or waterway use designation that shows the proposed
buffer zone will protect the water quality of the waterway must be presented to
and approved by the Director.
(2)
If, after review of the data submitted by the applicant, the director
determines that the proposed buffer zone is not adequate, then the buffer zone
shall be established by the Department not to exceed one hundred feet (100')
measured horizontally from the ordinary high water mark.
(3) Disturbance in this buffer zone shall be
limited to well-maintained access roads for ingress and egress only and when no
other reasonable access is available.
(4) Upon temporary or permanent cessation of
material removal at a site, steps shall be taken to minimize the amount of
surface water and sediment that may enter the stream via an unvegetated access
road.
(G) If available,
large oversized material shall be salvaged and placed back on the excavated
area upon cessation of material removal to provide stability to the area. A
description of such material must be included in the mining plan and
replacement detailed in the reclamation plan.
(H) Mechanical material processing or
storage:
(1) Mechanical material processing or
storage shall not occur below the ordinary high water mark;
(2) Mechanical material processing or storage
shall occur at a higher elevation than the ordinary high water mark and be
outside the buffer zone; and
(3) An
incidental pile of material used to facilitate loading below the ordinary high
water mark will not be deemed as material storage providing that the pile is of
a reasonable size that could practicably be removed that day.
(I) Where conditions exist at
specific sites that pose unique environmental threats to a stream, the
Department may require additional steps to be taken to protect water quality
and aquatic habitat.
(J) If no
other access to the material to be mined is available other than to cross a
stream, thereby creating turbidity, the Department may approve a temporary
crossing structure, provided the structure:
(1) Is designed to reduce or eliminate
turbidity;
(2) Is placed
perpendicular to the stream;
(3)
Does not block or dam the stream; and
(4) Is removed immediately upon cessation of
mining.
(K) The mining
plan must include, but is not limited to:
(1)
A map or maps that depict the permit area, access to the site (from a state,
county or municipal road);
(2)
Identification of all land to be affected (i.e., process facility, product
storage, location of material to be mined with respect to the stream,
etc.);
(3) Provisions for storm
water and process water containment;
(4) A cross section of the stream channel to
be mined; and
(5) Any other site
specific information the Department determines to be necessary to provide
adequate information to determine if the goals of the Act and this Regulation
will be achieved.
(L)
There will be no reclamation requirements within the stream channel other than
what is necessary to provide bank stability and prevent erosion as listed in
paragraphs (E) and (G) above and all affected area outside the stream channel
must be reclaimed in accordance with the grading and revegetation requirements
of the open-cut provisions of the Act and this Regulation.
(M) No material removal shall be conducted in
streams designated as extraordinary resource waters except as provided in Reg.
15.301(F) and (G).
(N) Where a
stream that is not designated as an extraordinary resource water converges with
a stream that is designated as an extraordinary resource water, no mining shall
be permitted in the non- extraordinary resource water from the point of
confluence upstream for a distance equal to two times the stream channel width
of the extraordinary resource water at the confluence or some other distance as
agreed to by the Department and the applicant.
(O) A permit obtained under the Act and this
Regulation does not exempt the operator from the necessity of obtaining other
state or federal permits or licenses nor does it authorize site activities to
begin that require other permits or licenses.
(P) Storage of such fluids as fuel, oil or
hydraulic fluid and the respective wastes thereof must be such that they cannot
enter the stream channel. However, should extraordinary events occur that
result in waste water or one or more of these fluids entering the stream, the
Department must be notified immediately.
(Q) Landowners may sell or barter gravel or
other material from stream beds as a part of an approved flood control project
without obtaining a mining permit from the Department. A landowner may remove
sufficient stream material from his or her own land for road maintenance,
construction or other uses on said land without obtaining a mining permit.
Except as provided above, material shall not be removed for the purpose of
commercial sale without first obtaining a mining permit from the
Department.
(R) The Department may
allow deviations from the provisions of paragraphs (B), (D), (E) and (H) above
where in the Department's opinion proposed alternatives will achieve the same
level of stream protection or rehabilitation.
(S) No later than June
1st of each year of the permit term, the operator
shall submit to the Department an annual report in the form described in
Chapter Six of this Regulation.
CHAPTER FIVE :ENFORCEMENT
Reg. 15.501
Inspections
(A) The Department or its designated
representative may enter upon the lands affected by open-cut mining at all
reasonable times for the purpose of determining compliance with the provisions
of the Act or this Regulation.
(B)
The Department shall file all reports concerning any site visits in accordance
with Department and division guidance documents.
Reg. 15.502
Enforcement
(A) The Department shall seek compliance with
the Act and this Regulation through the cooperation of all regulated parties
and will afford suspected violators a reasonable opportunity to resolve
violations through informal procedures prior to the initiation of
administrative enforcement proceedings unless circumstances warrant
otherwise.
(B) It shall be unlawful
for any person to:
(1) Violate any provision
of the Act, this Regulation or order of the Commission or the Department issued
pursuant to the Act or this Regulation;
(2) Engage in open-cut or stream bed mining
without a permit issued pursuant to the Act or this Regulation;
(3) Violate any conditions of a permit or
reclamation plan issued pursuant to the Act or this Regulation;
(4) Knowingly make any false statement,
representation or certification or knowingly fail to make a statement,
representation or certification in any application, plan, record, report or
other document filed or required to be maintained under the Act or this
Regulation; or
(5) Willfully
resist, prevent, impede or interfere with the Director or any of his or her
authorized representatives in the performance of duties pursuant to the Act or
this Regulation.
(C) Any
person who engages in open-cut or stream bed mining without first securing a
permit as required by the Act and this Regulation or who fails to reclaim
affected lands in accordance with the Act or this Regulation or who violates
any provision of the Act or this Regulation or any order, regulations, rule,
permit or reclamation plan issued pursuant thereto, may be issued a Notice of
Violation and assessed an administrative civil penalty by the Department not to
exceed:
(1) One thousand dollars ($1,000) for
the first violation;
(2) Two
thousand five hundred ($2,500) for a second separate violation of the same
offense within two (2) years; and
(3) Five thousand dollars ($5,000) for a
third separate or subsequent violation of the same offense within two (2)
years.
(D) No
administrative civil penalty may be assessed until the person charged with the
violation has been given the opportunity for a hearing and has exhausted all
administrative appellate remedies.
(E) The amount of the administrative civil
penalty assessed by the Department shall be determined pursuant to the
Commission's administrative regulations and procedures.
(F) The Department is authorized to institute
a civil action in any court of competent jurisdiction to accomplish any or all
of the following:
(1) Restrain any violation
of, or compel compliance with, the Act, this Regulation, the permit, the
reclamation plan, or any order, rule, or regulation issued pursuant
thereto;
(2) Accomplish remedial
measures as may be necessary or appropriate to implement or effectuate the
purpose and intent of the Act and this Regulation, including the reclamation of
affected land;
(3) Recover all
costs, expenses and damages to the Department or any other agency of the State
in enforcing the provisions of the Act and this Regulation and reclaiming
affected land;
(4) Assess civil
penalties for violations of the Act or of any order, rule, regulation, permit,
or reclamation plan issued pursuant thereto, in an amount not to exceed:
(a) One thousand dollars ($1,000) for the
first violation;
(b) Two thousand
five hundred dollars ($2,500) for a second separate violation of the same
offense within two (2) years; and
(c) Five thousand dollars ($5,000) for a
third separate or subsequent violation of the same offense within two (2)
years;
(5) Recover civil
penalties assessed by the Department; or
(6) Forfeit reclamation bond.
(G) For the purposes of fines
only, each day or part of a day during which the violation is continued or
repeated shall constitute a separate offense.
(H) As an alternative to the limits on civil
or administrative penalties under Reg. 15.502(C) or Reg.15.502(F), if a person
who is found liable in an action brought under Reg.15.502(C) or Reg.15.502(F)
has derived pecuniary gain from the commission of mining without a permit or
mining outside of the area authorized in the permit, then the person may be
ordered to pay a civil penalty equal to the amount of the pecuniary
gain.
(I) All hearings and appeals
arising under the Act and this Regulation shall be conducted in accordance with
the procedures described in Ark. Code Ann. §
8-4-218,
et seq. and in accordance with regulations adopted by the
Commission, including, but not limited to, the Commission's regulations on
administrative procedures.
(J) The
Department may institute proceedings to have the bond or substituted security
of the operator forfeited for any of the following reasons including but not
limited to:
(1) Failure to abate any
violation of the Act or this Regulation;
(2) Failure to comply with the terms and
conditions of the open-cut mining permit or the bond;
(3) Failure to comply with any order of the
Department;
(4) Failure to reclaim
the affected land in accordance with the approved reclamation plan, the Act or
this Regulation; or
(5) Insolvency,
bankruptcy or receivership of the permittee.
(K) The Department shall notify the operator
in writing of the bond forfeiture and the operator shall be given an
opportunity for a hearing as provided in this
Regulation.
CHAPTER SIX :ADMINISTRATIVE REQUIREMENTS
Reg. 15.601
Annual Report and
Fees
(A) No later than June
1st of each year of the permit term, the operator
shall submit to the Department an annual report that contains the following
information:
(1) A site map showing the
current status of the permit area with the following features clearly marked:
(a) Permit boundary;
(b) Equipment installation;
(c) All roadways including entrance
road;
(d) Water impoundments and
water circulation system if applicable;
(e) Areas mined but unreclaimed;
(f) Areas currently being mined;
(g) Areas being reclaimed;
(h) Area not yet affected; and
(i) The section, range, township and
county.
(2) A narrative
providing the following:
(a) The total number
of affected acres that have not yet been released by the Department;
and
(b) The amount of material
mined during the period from May 1st of the previous
year through April 30th of the current
year.
(B) As
authorized in Ark. Code Ann. §
15-57-319(c),
the Commission prescribes the following annual permit fee on affected land:
|
First 100 acres.............. |
$10.00 per acre |
|
101 to 200 acres........... |
$7.50 per acre |
|
201 and up.................... |
$5.00 per acre |
CHAPTER SEVEN :RELEASES
Reg. 15.701
Land and Bond
Releases
(A) Release from reclamation
liability and a proportionate amount of bond may be obtained for permitted land
not yet affected and for affected land upon approved reclamation.
(B) To obtain release from reclamation
liability on reclaimed or unaffected land and, if desired, a proportionate bond
release for land on which bond has been posted:
(1) The operator must make a formal written
request to the Department for the release;
(2) The Department will make a preliminary
review of the release area to assure compliance with the Act, this Regulation,
the permit or any conditions thereto, and the approved reclamation
plan;
(3) In the event the
preliminary inspection finds the site a viable candidate for release, a Mined
Land Review Committee comprised of representatives of various state agencies
having experience in foresting and reclaiming open-cut mined lands with forest
or agronomic or horticultural species, will tour the site;
(4) The Director will determine release based
on the advice and technical assistance provided by the Mined Land Review
Committee and the recommendation of Department staff; and
(5) The amount of bond released will be based
solely on the cost of reclamation of the release area. In no event shall the
amount of bond remaining be less than the cost of reclaiming the remainder of
the affected land in accordance with the Act, this Regulation, the permit and
the conditions thereto, and the approved reclamation plan.
CHAPTER EIGHT : ABANDONED MINE LAND
Reg. 15.801
Inactive or Abandoned Mine Lands
(A) The Department shall locate and document
inactive or abandoned mine lands.
(B) The Department shall conduct
investigations to ascertain whether any sites were mined post-1971 and make
every reasonable effort to locate and notify the operator of the site to comply
with the Act and this Regulation.
CHAPTER NINE :SEVERABILITY AND EFFECTIVE DATE
Reg. 15.901
Severability
If any provision of this Regulation or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Regulation which can be given effect without the invalid provision or application, and, to this end, provisions of this Regulation are declared to be severable.
Reg. 15.902
Effective Date
This Regulation is effective thirty (30) days after filing with the Secretary of State, the State Library, and the Bureau of Legislative Research.
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