PURPOSE: This rule sets forth the prohibitions and limitations for surface coal mining operations on or near certain private, federal and other public lands and sets forth procedures for these limitations and prohibitions, pursuant to sections 444.810 and 444.890, RSMo.

Editor’s Note: The secretary of state has determined that the publication of this rule in its entirety would be unduly cumbersome or expensive. The entire text of the material referenced has been filed with the secretary of state. This material may be found at the Office of the Secretary of State or at the headquarters of the agency and is available to any interested person at a cost established by state law.

1. (1) Definitions. For the purposes of this chapter—

   1. (A) Valid existing rights means—

      1. 1. Except for haul roads—

         1. A. Those property rights in existence

on August 3, 1977 that were created by a legally binding conveyance, lease, deed, contract or other document legally binding under Missouri statutes and Missouri case law entitling one to surface mine coal in this state; and

1. B. The person proposing to conduct

surface coal mining operations on these lands either—

1. (I) Had on or before August 3,

1977 been validly issued or made a good faith effort to obtain all state and federal permits necessary to conduct surface coal mining operations on those lands; or

1. (II) Can demonstrate to the com-

mission or director that the coal is both needed for, and immediately adjacent to, an ongoing surface coal mining operation for which all permits were obtained prior to August 3, 1977;

1. 2. For haul roads—

   1. A. A recorded right-of-way, recorded

easement or a permit for a coal haul road recorded as of August 3, 1977; or

1. B. Any other road in existence as of

August 3, 1977;

1. 3. That interpretation of the terms of the

document relied upon to establish valid existing rights shall be based upon the usage and custom at the time and place where it came into existence and upon a showing by the applicant that the parties to the document actually contemplated a right to conduct the same underground or surface mining activities for which the applicant claims a valid existing right; and

1. 4. Not the mere expectation of a right to

conduct surface coal mining operations or the right to conduct underground coal mining. Examples of rights which alone do not constitute valid existing rights include, but are not limited to, coal exploration permits or licenses, applications or bids for leases, or where a person has only applied for a state or federal permit;

1. (B) Significant recreational, timber, economic or other values incompatible with surface coal mining operations means those values which could be damaged by, and are not capable of existing together with, surface coal mining operations because of the undesirable effects mining would have on those values, either on the area included in the permit application or on other affected area. Those values to be evaluated for their importance include:

   1. 1. Recreation, including hiking, boat-

ing, camping, skiing or other related outdoor activities;

1. 2. Timber management and silviculture;
2. 3. Agriculture, aquaculture or produc-

tion of other natural, processed or manufactured products which enter commerce; and

1. 4. Scenic, historic, archaeologic, esthet-

ic, fish, wildlife, plants or cultural interests;

1. (C) Surface operations and impacts incident to an underground coal mine means all activities involved in or related to underground coal mining which are either conducted on the surface of the land, produce changes in the land surface or disturb the surface, air or water resources of the area, including all activities listed in the definition of surface coal mining operations in the law and 10 CSR 40-8.010(1)(A);
2. (D) Significant forest cover means an existing plant community consisting predominantly of trees and other woody vegetation;
3. (E) Occupied dwelling means any building that is currently being used on a regular or temporary basis for human habitation;
4. (F) Public building means any structure that is owned by a public agency or used principally for public business, meetings or other group gatherings;
5. (G) Community or institutional building means any structure, other than a public building or an occupied dwelling, which is 10 CSR 40-5

used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental health or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation or sewage treatment;

1. (H) Surface coal mining operations which exist on the date of enactment means all surface coal mining operations which were being conducted on September 28, 1979;
2. (I) Public park means an area dedicated or designated by any federal, state or local agency for public recreational use, whether or not this use is limited to certain times or days, including any land leased, reserved or held open to the public because of that use;
3. (J) Public road means any thoroughfare open to the public which has been and is being used by the public for vehicular travel which has been designated as a public road pursuant to the laws of the jurisdiction in which it is located; which is maintained with public funds in a manner similar to other public roads of the same classification within the jurisdiction and which meets road construction standards for other public roads of the same classification in the local jurisdiction;
4. (K) Cemetery means any area of land where human bodies are interred;
5. (L) Fragile lands means geographic areas containing natural, ecologic, scientific or esthetic resources that could be damaged or destroyed by surface coal mining operations. Examples of fragile lands include valuable habitats for fish, wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, National Natural Landmark sites, areas where mining may cause flooding, environmental corridors containing a concentration of ecologic and esthetic features, areas of recreational value due to high environmental quality, and buffer zones adjacent to the boundaries of areas where surface coal mining operations are prohibited under section 444.890.4, RSMo and this rule;
6. (M) Historic lands means historic or cultural districts, places, structures or objects, including archeological and paleontological sites, National Historic Landmark sites, sites listed on or eligible for listing on a State or National Register of Historic Places, sites having religious or cultural significance to native Americans or religious groups or sites for which historic designation is pending;
7. (N) Natural hazard lands means geographic areas in which natural conditions exist which pose or, as a result of surface coal mining operations, may pose a threat to the health, safety or welfare of people, property or the environment, including areas subject to landslides, cave-ins, large or encroaching sand dunes, severe wind or soil erosion, frequent flooding, avalanches and areas of unstable geology; and
8. (O) Substantial legal and financial commitments in a surface coal mining operation means significant investments that have been made on the basis of a long-term coal contract in power plants, railroads, coal-handling, preparation, extraction or storage facilities and other capital-intensive activities. An example would be an existing mine, not actually producing coal, but in a substantial stage of development prior to production. Costs of acquiring the coal in place or of the right to mine it without an existing mine, as described in the previous example, alone are not sufficient to constitute substantial legal and financial commitments.

1. (2) Areas Where Mining is Prohibited or Limited. Subject to valid existing rights, no surface coal mining operations shall be conducted after September 28, 1979 unless those operations existed on that date—

   1. (A) On any lands within the boundaries of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic River System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act (16 USC 1276(a)), and National Recreation Areas designated by act of congress;
   2. (B) On any federal lands within the boundaries of any national forest, unless permitted by the United States secretary of the interior;
   3. (C) On any publiclyor privately-owned lands which will adversely affect any publicly-owned park or any places included on the National Register of Historic Places, unless approved in the permit and plan and by the federal, state or local agency with jurisdiction over the park or places;

   4. (D) Within one hundred feet (100'), measured horizontally, of the outside right-of-way line of any public road, except where—

      1. 1. Mine access roads or haulage roads

join that right-of-way line; or

1. 2. The permit and plan allows the public

road to be relocated or the area affected to be within one hundred feet (100’) of that road after—

1. A. Public notice and opportunity for a

public hearing in accordance with subsection (3)(D) of this rule; and

1. B. A written finding is made that the

interests of the affected public and landowners will be protected;

1. (E) Within three hundred feet (300'), measured horizontally, from any occupied dwelling unless the permit applicant submits with the application a written waiver from the owner of the dwelling, clarifying that the owner and signatory had the legal right to deny mining and knowingly waived that right. The waiver shall act as consent to surface coal mining operations within a closer distance of the dwelling as specified;
2. (F) Within three hundred feet (300'), measured horizontally, of any public building, school, church, community or institutional building or public park; or
3. (G) Within one hundred feet (100'), measured horizontally, of a cemetery.

1. (3) Procedures.

   1. (A) Upon receipt of a complete application for a surface coal mining and reclamation operation permit, the commission or director shall review the application to determine whether surface coal mining operations are limited or prohibited under section (2) of this rule on the lands which would be disturbed by the proposed operation.

   2. (B) On lands not subject to determination—

      1. 1. Where the proposed operation would

be located on any lands listed in subsections (2)(A), (F) or (G) of this rule, the application shall be rejected if the applicant had no valid existing rights for the area on August 3, 1977 or if the operation did not exist on September 28, 1979; and

1. 2. If it cannot be determined whether

the proposed operation is located within the boundaries of any of the lands in subsection (2)(A) of this rule or closer than the limits provided in subsections (2)(F) and (G) of this rule, a copy of the relevant portions of the permit application will be transmitted to the appropriate federal, state or local governmental agency for a determination or clarification of the relevant boundaries or distances, with a notice to the appropriate agency that it must respond within thirty (30) days of receipt of the request. The National Park Service and the United States Fish and Wildlife Service shall be notified of any request for a determination of valid existing rights pertaining to areas within the boundaries of areas under their jurisdiction and shall have thirty (30) days from receipt of the notification in which to respond. The director, upon request by the appropriate agency, shall grant an extension to the thirty (30)-day period of an additional thirty (30) days. If no response is received within the thirty (30)-day period or within the extended period granted, the regulatory authority may make the necessary determination based on the information it has available.

1. (C) Where the proposed operation would include federal lands within the boundaries of any national forest, and the applicant seeks a determination that mining is permissible under subsection (2)(B) of this rule, the applicant, pursuant to 30 CFR 761.12, shall submit a permit application to the regional director of the office for processing under 30 CFR, Subchapter D.

2. (D) Where the proposed mining operation is to be conducted within one hundred feet (100'), measured horizontally, of the outside right-of-way line of any public road (except where mine access roads or haulage roads join the right-of-way line) or where the applicant proposes to close or relocate any public road, the commission or director or the appropriate public road authority designated by the director shall—

   1. 1. Require the applicant to obtain neces-

sary approvals of the public road authority with jurisdiction;

1. 2. Provide public notice in a newspaper

of general circulation in the affected locale;

1. 3. Provide an opportunity for a public

hearing in the locality of the proposed mining operations at which any member of the public may participate for purpose of determining whether the interests of the public and affected landowners will be protected;

1. 4. Publish, if a hearing is requested, a

public notice of the location, date and time of the hearing in a newspaper of general circulation in the affected locale two (2) weeks prior to the hearing; and

1. 5. Make a written finding based upon

information received at the public hearing, within thirty (30) days after completion of the hearing, as to whether the interests of the public and affected landowners will be protected from the proposed mining operations.

1. (E) Where the proposed surface coal mining operations would be conducted within three hundred feet (300'), measured horizontally, of any occupied dwelling, the applicant shall submit with the application a written waiver from the owner of the dwelling, consenting to these operations within a closer distance of the dwelling as specified in the waiver. The waiver must be made knowingly and separate from a lease or deed unless the lease or deed contains an explicit waiver.

2. (F) Public Parks or Historic Places.

   1. 1. Where the proposed surface coal min-

ing operation may adversely affect any public park or places included on, or eligible for listing on, the National Register of Historic Places the director shall transmit to the federal, state or local agencies with jurisdiction over the park or historic place a copy of the completed permit application containing the following: and Areas Unsuitable for Mining

1. A. A request for that agency’s

approval or disapproval of the operations; and

1. B. A notice to the appropriate agency

that it must respond within thirty (30) days from receipt of the request.

1. 2. A permit for the operation will not be

issued unless jointly approved by all affected agencies.

1. (G) If it is determined that the proposed surface coal mining operation is not prohibited under section 444.890.4, RSMo and this rule, nevertheless, pursuant to appropriate petitions, these lands may be designated as unsuitable for all or certain types of surface coal mining operations pursuant to this rule or 10 CSR 40-5.020.
2. (H) A determination of the commission or director that a person holds or does not hold a valid existing right or that the surface coal mining operations did or did not exist on the date of enactment shall be subject to administrative and judicial review under 10 CSR 40-6.080(1)(B) and (2)(B).

AUTHORITY: section 444.530, RSMo Supp. 1999.* Original rule filed Oct. 12, 1979, effective Feb. 11, 1980. Amended: Filed Dec. 10, 1980, effective April 11, 1981. Amended: Filed Feb. 9, 1981, effective July 11, 1981. 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. Amended: Filed May 15, 1992, effective Jan. 15, 1993. Amended: Filed March 21, 2000, effective Oct. 30, 2000. *Original authority: 444.530, RSMo 1971, amended 1983, 1990, 1993, 1995.