R643.  Natural Resources; Oil, Gas and Mining; Abandoned Mine Reclamation.
R643-874.  General Reclamation Requirements.
R643-874-100.  Scope.
	The rules under R643-874 establish land and water eligibility requirements, reclamation objectives and priorities, and reclamation contractor responsibility.
	110.  Applicability.  The provisions of R643-874 apply to all reclamation projects carried out with monies from the Account.
	120.  Eligible Lands and Water.  Lands and water are eligible for reclamation activities if:
	121.  They were mined or affected by mining processes;
	122.  They were mined prior to August 3, 1977, and left or abandoned in either an unreclaimed or inadequately reclaimed condition; and
	123.  There is no continuing responsibility for reclamation by the operator, permittee, or agent of the permittee under statutes of the state or federal government, or the state as a result of bond forfeiture.  Bond forfeiture will render lands or water ineligible only if the amount forfeited is sufficient to pay the total cost of the necessary reclamation.  In cases where the forfeited bond is insufficient to pay the total cost of reclamation, additional moneys from the Account may be sought.
	124.  Notwithstanding paragraphs 120, 121, 122, and 123 of this section, coal lands and waters damaged and abandoned after August 3, 1977, by coal mining processes are also eligible for funding if the Division finds in writing that:
	124.100.  They were mined for coal or affected by coal mining processes; and
	124.200.  The mining occurred and the site was left in either an unreclaimed or inadequately reclaimed condition between August 4, 1977, and:
	124.210.  January 21, 1981, and that any funds for reclamation or abatement that are available pursuant to a bond or other form of financial guarantee or from any other source are not sufficient to provide for adequate reclamation or abatement at the site; or
	124.220.  November 5, 1990, that the surety of the mining operator became insolvent during such period and that, as of November 5, 1990, funds immediately available from proceedings relating to such insolvency or from any financial guarantee or other source are not sufficient to provide for adequate reclamation or abatement at the site; and
	124.300.  The site qualifies as a priority 1 or 2 site pursuant to Section 40-10-25(2)(a) and (b) of the Act.  Priority will be given to those sites that are in the immediate vicinity of a residential area or that have an adverse economic impact upon a community.
	125.  The Reclamation Program may expend funds made available under Sections 40-10-25.1(2) and (3) of the Act for reclamation and abatement of any site eligible under paragraph 124 of this section, if the Reclamation Program, with the concurrence of the Secretary, makes the findings required in paragraph 124 of this section and the Reclamation Program determines that the reclamation priority of the site is the same or more urgent than the reclamation priority for the lands and water eligible pursuant to paragraphs 120, 121, 122, or 123 of this section that qualify as a priority 1 or 2 site under Section 40-10-25(2) of the Act.
	126.  With respect to lands eligible pursuant to paragraph 124 or 125 of this section, monies available from sources outside the Account or that are ultimately recovered from responsible parties shall either be used to offset the cost of the reclamation or transferred to the Account if not required for further reclamation activities at the permitted site.
	127.  If reclamation of a site covered by an interim or permanent program permit is carried out under the Abandoned Mine Reclamation Program, the permittee of the site shall reimburse the Account for the cost of reclamation that is in excess of any bond forfeited to ensure reclamation.  Neither the Secretary nor the State performing reclamation under paragraph 124 or 125 of this section shall be held liable for any violations of any performance standards or reclamation requirements specified in the Coal Regulatory portion of the Act (Section 40-10-1 et seq.) nor shall a reclamation activity undertaken on such lands or waters be held to any standards set forth in the Coal Regulatory portion of the Act (Section 40-10-1 et seq.).
	128.  Surface coal mining operations on lands eligible for remining pursuant to Section 40-10-25(6) of the Act shall not affect the eligibility of such lands for reclamation activities after the release of the bonds or deposits posted by any such operation as provided by R645-301-800.  If the bond or deposit for a surface coal mining operation on lands eligible for remining is forfeited, funds available under this title may be used if the amount of such bond or deposit is not sufficient to provide for adequate reclamation or abatement, except that if conditions warrant the director of the Division shall immediately exercise his/her authority under Section 40-10-25(6)(c) of the Act.
	130.  Reclamation Objectives and Priorities.
	131.  Reclamation projects should be accomplished in accordance with OSM's "Final Guidelines for Reclamation Programs and Projects" (45 FR 14810-14819, March 6, 1980).
	132.  Reclamation projects shall reflect the priorities of Section 40-10-25(2) of the Act.  Generally, projects lower than a priority 2 should not be undertaken until all known higher priority coal projects either have been accomplished, are in the process of being reclaimed, or have been approved for funding by the Secretary, except in those instances where such lower priority projects may be undertaken in conjunction with a priority 1 or 2 site in accordance with OSM's "Final Guidelines for Reclamation Programs and Projects."
	140.  Utilities and other facilities.
	141.  The Reclamation Program, prior to certification of the completion of all coal-related reclamation under Section 40-10-28.1 of the Act, may expend up to 30 percent of the funds granted annually pursuant to Section 40-10-25(1) of the Act for the purpose of protecting, repairing, replacing, constructing, or enhancing facilities relating to water supplies, including water distribution facilities and treatment plants, to replace water supplies adversely affected by coal mining practices.
	142.  If the adverse effect on water supplies referred to in this section occurred both prior to and after August 3, 1977, the project shall remain eligible, notwithstanding the criteria specified in R643-874-122, if the Reclamation Program finds in writing, as part of its eligibility opinion, that such adverse effects are due predominantly to effects of mining processes undertaken and abandoned prior to August 3, 1977.
	143.  If the adverse effect on water supplies referred to in this section occurred both prior to and after the dates (and under the criteria set forth under Section 40-10-25(4) of the Act, the project shall remain eligible, notwithstanding the criteria specified in R643-874-122, if the Reclamation Program finds in writing, as part of its eligibility opinion, that such adverse effects are due predominately to the effects of mining processes undertaken and abandoned prior to those dates.
	144.  Enhancement of facilities or utilities under this section shall include upgrading necessary to meet any local, State, or Federal public health or safety requirement.  Enhancement shall not include, however, any service area expansion of a utility or facility not necessary to address a specific abandoned mine land problem.
	150.  Limited liability.  The State shall not be liable under any provision of Federal law for any costs or damages as a result of action taken or omitted in the course of carrying out an approved abandoned mine reclamation plan.  This section shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by the State.  For purposes of this section, reckless, willful, or wanton misconduct shall constitute gross negligence or intentional misconduct.
	160.  Contractor responsibility.  Every successful bidder for a Reclamation Program contract must be eligible under federal regulation 30 CFR 773.12 through 773.14 at the time of contract award to receive a permit or conditional permit to conduct surface coal mining operations.  Bidder eligibility must be confirmed by OSM's automated Applicant/Violator System for each contract to be awarded.

KEY:  mines, reclamation
Date of Enactment or Last Substantive Amendment:  November 1, 1997
Notice of Continuation:  August 24, 2016
Authorizing, and Implemented or Interpreted Law:  40-10-1 et seq.