PURPOSE: This rule complies with section 444.535.1(1), RSMo by setting forth the requirements for reclamation by coal strip mine operators for prime farmland.

PUBLISHER’S NOTE: The secretary of state has determined that the publication of the entire text of the material which is incorporated by reference as a portion of this rule would be unduly cumbersome or expensive. Therefore, the material which is so incorporated is on file with the agency who filed this rule, and with the Office of the Secretary of State. Any interested person may view this material at either agency’s headquarters or the same will be made available at the Office of the Secretary of State at a cost not to exceed actual cost of copy reproduction. The entire text of the rule is printed here. This note refers only to the incorporated by reference material.

1. (1) Applicability.

   1. (A) Operators of coal strip mining and reclamation operations conducted on prime farmland shall comply with all the requirements of this chapter in addition to the special requirements of this rule. Prime farmlands are those lands defined in section (2) of this rule that have been used for the production of cultivated crops including nurseries, orchards and other specialty crops and small grains for at least five (5) years out of the twenty (20) years preceding the date of the permit application.

   2. (B) Nothing in this section shall apply to any permit issued prior to August 3, 1977, any revisions or renewals of that permit or any continuous and existing strip mining operation for which a permit was issued prior to August 3, 1977. To meet the criteria of a continuous and existing operation, the applicant must submit to the director for review the following:

      1. 1. Proof that a definite contract for the

coal field, which they intend to mine, existed on August 3, 1977;

1. 2. Proof that the permittee had a legal

right to mine the lands prior to August 3, 1977, through ownership, contract or lease, but not including an option to buy, lease or contract;

1. 3. Proof that the lands contain part of a

continuous recoverable coal seam that was being mined in a single continuous mining pit (or multiple pits if the lands are proven to be part of a single continuous surface coal mining operation) begun under a permit issued prior to August 3, 1977;

1. 4. A plan including any supportive data

required by the director, outlining the proposed procedures to meet the productive capacity of the intended land use as declared in the permit, as per 10 CSR 40-2.090; and

1. 5. A detailed map delineating the

exempted acreage.

1. (2) For purposes of this rule—

   1. (A) Prime farmland means those lands that meet the applicability requirements in section

2. (1) of this rule and the specific technical criteria prescribed by the secretary of agriculture as published at 42 FedReg 42359 (August 23, 1977). These criteria are included here for convenience. Terms used in this section are defined in United States Department of Agriculture publications Soil Taxonomy, Agriculture Handbook 436; Soil Survey Manual, Agriculture Handbook 18; Rainfall-Erosion Losses From Cropland, Agriculture Handbook 282; and Saline and Alkali Soils, Agriculture Handbook 60. To be considered prime farmland, soils must meet all of the following criteria:

   1. 1. The soils have—

      1. A. Aquic, udic, ustic or xeric mois-

ture regimes and sufficient available water capacity within a depth of forty inches (40") or, if the root zone is less than forty inches (40") deep, in the root zone in order to produce the commonly grown crops in seven (7) or more years out of ten (10);

1. B. Xeric or ustic moisture regimes in

which the available water capacity is limited but the area has a developed irrigation water supply that is dependable and of adequate quality (a dependable water supply is one in which enough water is available for irrigation in eight (8) out of ten (10) years for the crops commonly grown); or

1. C. Aridic or torric moisture regimes

and the area has a developed irrigation water supply that is dependable and of adequate quality;

1. 2. The soils have a temperature regime

that is frigid, nexic, thermic or hyperthermic (pergelic and cryic regimes are excluded). These are soils that at a depth of ten inches (10") have a mean annual temperature higher than thirty-two degrees Fahrenheit (32° F). In addition, the mean summer temperature at this depth in soils with a zero (0) horizon is higher than forty-seven degrees Fahrenheit (47° F); in soils that have no zero (0) horizon, the mean summer temperature is higher than fifty-nine degrees Fahrenheit (59° F);

1. 3. The soils have a pH between 4.5 and

8.4 in all horizons within a depth of forty inches (40") or, if the root zone is less than forty inches (40") deep, in the root zone;

1. 4. The soils either have no water table or

have a water table that is maintained at a sufficient depth during the cropping season to allow food, feed, fiber, forage and oilseed crops common to the area to be grown;

1. 5. The soils can be managed so that, in

all horizons within a depth of forty inches (40"), or if the root zone is less than forty inches (40") deep, in the root zone; during part of each year the conductivity of saturation extract is less than four (4) mmhos/cm and the exchangeable sodium percentage (ESP) is less than fifteen (15);

1. 6. The soils are not flooded frequently

during the growing season (less often than once in two (2) years);

1. 7. The soils have a product of K (erodi-

bility factor) × percent slope of less than 2.0 and a product of I (soil erodibility) × C (climatic factor) not exceeding sixty (60);

1. 8. The soils have a permeability rate of

at least 0.06 inch per hour in the upper twenty inches (20") and the mean annual soil temperature at a depth of twenty inches (20") is less than fifty-nine degrees Fahrenheit (59° F); the permeability rate is not a limiting factor if the mean annual soil temperature is fifty-nine degrees Fahrenheit (59° F) or higher; and

1. 9. Less than ten percent (10%) of the

surface layer (upper six inches (6")) in these soils consists of rock fragments more coarse than three inches (3").

1. (B) Renewal of permit shall mean a decision by the regulatory authority to extend the time by which the permittee may complete mining within the boundaries of the original permit, and revision of the permit shall mean a decision by the regulatory authority to allow changes in the method of mining operations within the original permit area or the decision of the regulatory authority to allow incidental boundary changes to the original permit;
2. (C) A pit shall be deemed to be a single continuous mining pit even if portions of the pit are crossed by a road, pipeline, railroad, powerline or similar crossing; and
3. (D) A single continuous surface coal mining operation is presumed to consist only of a single continuous mining pit under a permit issued prior to August 3, 1977, but may include noncontiguous parcels if the operator can prove by clear and convincing evidence that, prior to August 3, 1977, the noncontiguous parcels were part of a single permitted operation. For the purposes of this subsection, clear and convincing evidence includes, but is not limited to, contracts, leases, deeds or other properly executed legal documents (not including options) that specifically treat physically separate parcels as one (1) surface coal mining operation.

1. (3) Identification of Prime Farmland. Prime farmland shall be identified on the basis of soil surveys submitted by the applicant. The requirement for submission of soil surveys may be waived if the operator can demonstrate according to the procedures in section

2. (4) of this rule that no prime farmlands are involved. Soil surveys shall be conducted according to standards of the National Cooperative Soil Survey, which include the procedures set forth in United States Department of Agriculture Handbooks 436, Soil Taxonomy and 18, Soil Survey Manual and shall include:

   1. (A) Data on moisture availability, temperature regime, flooding, water table, erosion characteristics, permeability or other information that is needed to determine prime farmland in accordance with section (2) of this rule;
   2. (B) A map designating the exact location and extent of the prime farmland; and
   3. (C) A description of each soil mapping unit.

3. (4) Negative Determination of Prime Farmland. The land shall not be considered as prime farmland where the operator can demonstrate one (1) or more of the following situations:

   1. (A) Lands within the proposed permit boundaries have been used for the production of cultivated crops for less than five (5) years out of twenty (20) years preceding the date of the permit application;
   2. (B) The slope of all land within the permit area is ten percent (10%) or greater;
   3. (C) Land within the permit area is not irrigated or naturally subirrigated, has no developed water supply that is dependable and of adequate quality and the average annual precipitation is fourteen inches (14") or less;
   4. (D) Other factors exist, such as a very rocky surface, or the land is frequently flooded, which clearly place all land within the area outside the purview of prime farmland; and
   5. (E) A written notification, based on scientific findings and soil surveys that land within the proposed mining area does not meet the applicability requirements in section (1) of this rule, is submitted by a qualified person other than the operator and is approved in the reclamation plan.

4. (5) Plan for Restoration of Prime Farmland. The operator shall submit a reclamation plan for the mining and restoration of any prime farmland within the proposed permit boundaries. This plan shall be used in judging the technological capability of the operator to restore prime farmlands. The plan shall include:

   1. (A) A description of the original undisturbed soil profile, as determined from a soil 10 CSR 40-2

survey, showing the depth and thickness of each of the soil horizons that collectively constitute the root zone of the locally adapted crops and are to be removed, stored and replaced;

1. (B) The proposed method and type of equipment to be used for removal, storage and replacement of the soil in accordance with section (7) of this rule;
2. (C) The location of areas to be used for the separate stockpiling of the soil and plans for soil stabilization before redistribution;
3. (D) If applicable, documentation, such as agricultural school studies or other scientific data from comparable areas that supports the use of other suitable material instead of the A, B or C soil horizon, to obtain on the restored area equivalent or higher levels of yield as nonmined prime farmlands in the surrounding area under equivalent levels of management;
4. (E) Plans for seeding or cropping the final graded mine land and the conservation practices to control erosion and sedimentation during the first twelve (12) months after regrading is completed. Proper adjustments for seasons must be made so that final graded land is not exposed to erosion during seasons when vegetation or conservation practices cannot be established due to weather conditions; and
5. (F) Available agricultural school studies, company data or other scientific data for comparable areas that demonstrate that the operator using his/her proposed method of reclamation will achieve within a reasonable time, equivalent or higher levels of yield after mining as existed before mining.

1. (6) Consultation with Secretary of Agriculture and Issuance of Permit.

   1. (A) The commission may grant a permit which shall incorporate the plan submitted under section (5) of this rule if it finds in writing that the applicant—
   2. 1. Has the technological capability to

restore the prime farmland within the proposed permit area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management; and

1. 2. Will achieve compliance with the

standards of section (7) of this rule.

1. (B) Before any permit is issued for areas that include prime farmlands, the commission will consult with the secretary of agriculture or his/her designee. The secretary of agriculture will provide a review of the proposed method of soil reconstruction and comment on possible revisions that will result in a more complete and adequate restoration.

1. (7) Special Requirements. For all prime farmlands to be mined and reclaimed, the operator shall meet the following special requirements:

   1. (A) All soil horizons to be used in the reconstruction of the soil shall be removed before drilling, blasting or mining to prevent contaminating the soil horizons with undesirable materials. Where removal of soil horizons results in erosion that may cause air and water pollution, the reclamation plan shall specify methods of treatment to control erosion of exposed overburden. The operator shall remove separately the—

      1. 1. Entire A horizon or other suitable soil

materials which will create a final soil having an equal or greater productive capacity than that which existed prior to mining in a manner that prevents mixing or contamination with other material before replacement;

1. 2. B horizon of the natural soil or a

combination of B horizon and underlying C horizon or other suitable soil material that will create a reconstructed root zone of equal or greater productive capacity than that which existed prior to mining in a manner that prevents mixing or contamination with other material; and

1. 3. Underlying C horizons or other stra-

ta, or a combination of these horizons or other strata, to be used instead of the B horizon that are of equal or greater thickness and that can be shown to be equal or more favorable for plant growth than the B horizon and that when replaced will create in the reconstructed soil a final root zone of comparable depth and quality to that which existed in the natural soil;

1. (B) The A horizon and B horizon must be stored separately from each other, if stockpiling of soil horizons is allowed in the reclamation plan in lieu of immediate replacement. The stockpiles must be placed within the permit area and where they will not be disturbed or exposed to excessive erosion by water or wind before the stockpiled horizons can be redistributed on terrain graded to final contour. Stockpiles in place for more than thirty (30) days must meet the requirements of 10 CSR 40-2.050(4);
2. (C) The final graded land must be scarified before the soil horizons are replaced;
3. (D) The material from the B horizon, or other suitable material specified in paragraph (7)(A)2. or 3. of this rule must be replaced in such a manner as to avoid excessive compaction of overburden and to a thickness comparable to the root zone that existed in the soil before mining;

4. (E) The A horizon or other suitable soil materials, which will create a final soil having an equal or greater productive capacity than existed prior to mining, as the final surface soil layer to the thickness of the original soil as determined in paragraph (7)(A)1. of this rule must be replaced in a manner that—

   1. 1. Prevents excess compaction of both

the surface layer and underlying material and reduction of permeability to less than 0.06 inch per hour in the upper twenty inches (20") of the reconstructed soil profile; and

1. 2. Protects the surface layer from wind

and water erosion before it is seeded or planted; and

1. (F) Nutrients and soil amendments must be applied as needed to establish quick vegetative growth.

AUTHORITY: sections 444.535.1(1) and 444.810, RSMo 1986.* Original rule filed July 13, 1978, effective Jan. 13, 1979. Amended: Filed Nov. 10, 1980, effective Feb. 12, 1981. Amended: Filed April 1, 1988, effective July 1, 1988. Amended: Filed Sept. 15, 1988, effective Jan. 15, 1989. Amended: Filed March 2, 1989, effective May 15, 1989. Amended: Filed July 3, 1990, effective Nov. 30, 1990. *Original authority 444.535.1(1), RSMo 1978, amended 1988; and 444.810, RSMo 1979, amended 1983.