SECTION 12.3. Definitions

The following words and terms, when used in this Chapter (relating to Coal Mining Regulations), shall have the following meanings unless the context clearly indicates otherwise:

(1) Acid drainage--Water with a pH of less than 6.0 and in which total acidity exceeds total alkalinity, discharged from an active, inactive or abandoned surface coal mine and reclamation operation or from an area affected by surface coal mining and reclamation operations.

(2) Acid-forming materials--Earth materials that contain sulfide minerals or other materials which, if exposed to air, water, or weathering processes, form acids that may create acid drainage.

(3) Act or State Act--The "Texas Surface Coal Mining and Reclamation Act" (Texas Natural Resources Code, Chapter 134).

(4) Adjacent area--Land located outside the affected area or permit area, depending on the context in which adjacent area is used, where air, surface or ground water, fish, wildlife, vegetation or other resources protected by the Act may be adversely impacted by surface coal mining and reclamation operations.

(5) Administratively complete application--An application for permit approval or approval for coal exploration where required, which the Commission determines to contain information addressing each application requirement of the regulatory program and to contain all information necessary to initiate processing and public review.

(6) Affected area--Any land or water surface which is used to facilitate, or which is physically altered by surface coal mining and reclamation operations. Affected area includes the disturbed area; any area upon which surface coal mining and reclamation operations are conducted; any adjacent lands the use of which is incidental to surface coal mining and reclamation operations; all areas covered by new or existing roads used to gain access to, or for hauling coal to or from surface coal mining and reclamation operations; any area covered by surface excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, shipping areas; any areas which contain sited structures, facilities, or other property material on the surface resulting from, or incident to, surface coal mining and reclamation operations; and the area located above underground workings.

(7) Agricultural activities--With respect to alluvial valley floors, the use of any tract of land for the production of animal or vegetable life, where the use is enhanced or facilitated by subirrigation or flood irrigation associated with alluvial valley floors. These uses include, but are not limited to, the pasturing, grazing or watering of livestock, and the cropping, cultivation or harvesting of plants whose production is aided by the availability of water from subirrigation or flood irrigation. Those uses do not include agricultural practices which do not benefit from the availability of water from subirrigation or flood irrigation.

(8) Agricultural use--The use of any tract of land for the production of animal or vegetable life. The uses include, but are not limited to, the pasturing, grazing, and watering of livestock, and the cropping, cultivation, and harvesting of plants.

(9) Airblast--An airborne shock wave resulting from the detonation of explosives and which may or may not be audible.

(10) Alluvial valley floors--The unconsolidated stream-laid deposits holding streams with water availability sufficient for subirrigation or flood irrigation agricultural activities but does not include upland areas which are generally overlain by a thin veneer of colluvial deposits composed chiefly of debris from sheet erosion, deposits formed by unconcentrated runoff or slope wash, together with talus, or other mass-movement accumulations, and windblown deposits.

(11) Anthracite--Coal classified as anthracite in the American Society for Testing and Materials (ASTM) Standard D 388-77. Coal classifications are published by the ASTM under the title, "Standard Specification for Classification of Coals by Rank", ASTM D 388-77. This ASTM Standard is on file and available for inspection at the Office of the Surface Mining and Reclamation Division, Railroad Commission of Texas, 1701 North Congress Avenue, Austin, Texas.

(12) APA--The "Administrative Procedure Act" (Texas Government Code, Chapter 2001).

(13) Applicant--Any person seeking a permit, permit revision, renewal, and transfer, assignment, or sale of permit rights from the Commission to conduct surface or underground coal mining and reclamation operations pursuant to the Act. With respect to Subchapter G of this chapter (relating to Surface Coal Mining and Reclamation Operations Permits and Coal Exploration Procedures Systems), this term includes a person who seeks to obtain exploration approval or a permit under that subchapter and the regulatory program. With respect to Subchapter M of this chapter (relating to Training), this term includes a person who submits an application to the Commission to request blaster training, examination or certification.

(14) Applicant/Violator System or AVS--An automated information system of applicant, permittee, operator, violation and related data that the Office maintains to assist in implementing the Federal Act.

(15) Application--The documents and other information filed with the Commission under this chapter (relating to Coal Mining Regulations) for the issuance of permits; revisions; renewals; and transfers, assignment, or sale of permit rights for surface coal mining and reclamation operations or, where required, for coal exploration. With respect to Subchapter M of this chapter, this term includes a request submitted to the Commission on a prescribed form, and including any required fee and any applicable supporting evidence or other attachments.

(16) Approximate original contour--That surface configuration achieved by backfilling and grading of the mined areas so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles and coal refuse piles eliminated. Permanent water impoundments may be permitted where the Commission has determined that they comply with §134.092(a)(8) of the Act.

(17) Aquifer--A zone, stratum, or group of strata that can store and transmit water in sufficient quantities for a specific use.

(18) Arid or semiarid area--In the context of alluvial valley floors, an area west of the 100th meridian west longitude, experiencing water deficits, where water use by native vegetation equals or exceeds that supplied by precipitation. As an example, the Eagle Pass field in Texas is in an arid or semiarid area.

(19) Auger mining--A method of mining coal at a cliff or highwall by drilling holes into an exposed coal seam from the highwall and transporting the coal along an auger bit to the surface.

(20) Best Technology Currently Available (BTCA)--Equipment, devices, systems, methods, or techniques which will:

(A) prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but in no event result in contributions of suspended solids in excess of requirements set by applicable state or federal laws; and

(B) minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, methods, or techniques which are currently available anywhere as determined by the Commission, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with §§12.330 - 12.403 and 12.500 - 12.572 of this title (relating to Permanent Program Performance Standards--Surface Mining Activities, and to Permanent Program Performance Standards--Underground Mining Activities). The Commission shall have the discretion to determine the best technology currently available on a case-by-case basis, as authorized by the Act and this chapter.

(21) Blaster--A person who is directly responsible for the use of explosives.

(22) Blaster certification--To issue to an applicant a Commission Blaster Certificate.

(23) Blasthole--A hole drilled for the placement of explosives in rock or other material to be blasted.

(24) Blasting crew--Persons whose function is to load explosive charges and assist blasters in the use of explosives.

(25) Cemetery--Any area of land where human bodies are interred.

(26) Certificate issuance--To grant to an applicant his or her first Commission blaster certificate.

(27) Certificate reissuance--To grant to an applicant, who has had a Commission blaster certificate that expired or was revoked, a subsequent certificate for which additional training and examination are required.

(28) Certificate renewal--To grant to an applicant, who holds a Commission blaster certificate that is currently valid and not expired or revoked, a subsequent certificate for which training and examination are not required.

(29) Certificate replacement--To grant to an applicant, who holds a Commission blaster certificate that is currently valid and not expired, suspended, or revoked, a duplicate certificate as a substitute for one that was lost or destroyed.

(30) Certified blaster--A person who has met the qualifications of Subchapter M of this chapter and who has been issued a Commission blaster certificate that is currently valid and not expired, suspended, or revoked.

(31) CFR--The federal Code of Federal Regulations.

(32) Close of public comment period--The close of a public hearing on a surface mining permit application. When no public hearing is held, this time shall be 30 days after the last publication of the newspaper notice required by §12.207(a) of this title (relating to Public Notices of Filing of Permit Applications).

(33) Coal--Combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77.

(34) Coal exploration--The field gathering of:

(A) Surface or subsurface geologic, physical, or chemical data by mapping, trenching, drilling, geophysical, or other techniques necessary to determine the quality and quantity of overburden and coal of an area; or

(B) The gathering of environmental data to establish the conditions of an area before beginning surface coal mining and reclamation operations under the requirements of this chapter.

(35) Coal exploration operation--The substantial disturbance of the surface or subsurface for the purpose of coal exploration.

(36) Coal mine waste--Coal processing waste and underground development waste.

(37) Coal mining operation--The business of developing, producing, preparing or loading bituminous coal, subbituminous coal, anthracite, or lignite, or of reclaiming the areas upon which such activities occur.

(38) Coal preparation--Chemical or physical processing and the cleaning, concentrating, or other processing or preparation of coal.

(39) Coal processing plant or coal preparation plant--A facility where coal is subjected to chemical or physical processing or cleaning, concentrating, or other processing or preparation. It includes facilities associated with coal preparation activities, including, but not limited to, the following: loading facilities; storage and stockpile facilities; sheds, shops and other buildings; water treatment and water storage facilities; settling basins and impoundments; coal processing and other waste disposal areas; and, roads, railroads and other transport facilities. It does not include facilities operated by the final consumer of the coal, such as an electricity generating power plant, when, in the opinion of the Commission, the primary purpose of the facilities is to make the coal ready for conversion into a different energy form and the facilities are located at or near the electricity generating plant or other point of final consumption away from the mine site and outside of the approved mine permit area.

(40) Coal processing waste--Earth materials which are separated and wasted from the product coal during cleaning, concentrating, or other processing or preparation of coal.

(41) Combustible material--Organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

(42) Commission--The Railroad Commission of Texas.

(43) Commission Blaster Certificate--A certificate issued by the Commission to a person determined to be qualified under §§12.700 - 12.710 of this title (relating to Training, Examination, and Certification of Blasters) to be directly responsible for the use of explosives in mining operations regulated by the Commission.

(44) Commissioner--One of the elected or appointed members of the decision making body defined as the Commission.

(45) Community or institutional building--Any structure, other than a public building or an occupied dwelling, which is 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.

(46) Compaction--Increasing the density of a material by reducing the voids between the particles and is generally accomplished by controlled placement and mechanical effort such as from repeated application of wheel, track, or roller loads from heavy equipment.

(47) Complete and accurate application--An application for permit approval or approval for coal exploration where required, which the Commission determines to contain all information required under the Act, this chapter, and the regulatory program that is necessary to make a decision on permit issuance.

(48) Control or controller--

(A) a permittee of a surface coal mining operation;

(B) an operator of a surface coal mining operation; or

(C) any person who has the ability to determine the manner in which a surface coal mining operation is conducted.

(49) Cropland--Land used for the production of adapted crops for harvest, alone or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar specialty crops, but does not include quick cover crops grown primarily for erosion control.

(50) Cumulative impact area--The area, including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of all anticipated mining on surface-water and ground-water systems. Anticipated mining shall include, at a minimum, the entire projected lives through bond release of:

(A) the proposed operation;

(B) all existing operations;

(C) any operation for which a permit application has been submitted to the Commission; and

(D) all operations required to meet diligent development requirements for leased federal coal for which there is actual mine development information available.

(51) Cumulative measurement period--As used in §§12.25 - 12.33 of this title (relating to Exemption for Coal Extraction Incidental to the Extraction of Other Minerals), the period of time over which both cumulative production and cumulative revenue are measured.

(A) For purposes of determining the beginning of the cumulative measurement period, subject to Commission approval, the operator must select and consistently use one of the following:

(i) for mining areas where coal or other minerals were extracted prior to August 3, 1977, the date extraction of coal or other minerals commenced at that mining area or August 3, 1977; or

(ii) for mining areas where extraction of coal or other minerals commenced on or after August 3, 1977, the date extraction of coal or other minerals commenced at that mining area, whichever is earlier.

(B) For annual reporting purposes pursuant to §12.33 of this title (relating to Reporting Requirements), the end of the period for which cumulative production and revenue is calculated is either:

(i) for mining areas where coal or other minerals were extracted prior to the effective date of §§12.25 - 12.33 of this title, the first anniversary of that date, and each anniversary of that date thereafter; or

(ii) for mining areas where extraction of coal or other minerals commenced on or after the effective date of §§12.25 - 12.33 of this title, the last day of the calendar quarter during which coal extraction commenced, and each anniversary of that date thereafter.

(52) Cumulative production--As used in §§12.25 - 12.33 of this title, the total tonnage of coal or other minerals extracted from a mining area during the cumulative measurement period. The inclusion of stockpiled coal and other mineral tonnages in this total is governed by §12.31 of this title (relating to Stockpiling of Minerals).

(53) Cumulative revenue--As used in §§12.25 - 12.33 of this title, the total revenue derived from the sale of coal or other minerals and the fair market value of coal or other minerals transferred or used, but not sold, during the cumulative measurement period.

(54) Department--The U.S. Department of the Interior.

(55) Direct financial interest--Ownership or part ownership by an employee of lands, stocks, bonds, debentures, warrants, partnership shares, or other holdings and also means any other arrangement where the employee may benefit from his or her holding in or salary from coal mining operations. Direct financial interests include employment, pensions, creditor, real property and other financial relationships.

(56) Director--The Director or Acting Director, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, or the Director's representative.

(57) Disturbed area--An area where vegetation, topsoil, or overburden is removed or upon which topsoil, spoil, coal processing waste, underground development waste, or noncoal waste is placed by surface coal mining operations. Those areas are classified as disturbed until reclamation is complete and the performance bond or other assurance of performance required by Subchapter J of this chapter (relating to Bond and Insurance Requirements for Surface Coal Mining and Reclamation Operations) is released.

(58) Diversion--A channel, embankment, or other manmade structure constructed to divert water from one area to another.

(59) Division--The Surface Mining and Reclamation Division of the Railroad Commission of Texas.

(60) Downslope--The land surface between the projected outcrop of the lowest coal bed being mined along each highwall and a valley floor.

(61) Embankment--An artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads or railways, or for other similar purposes.

(62) Employee--Shall include:

(A) any person employed by the Commission who performs any function or duty under the Act, including the Commissioners; and

(B) Advisory board or Commission members and consultants who perform any function or duty under the Act, if they perform decision making functions for the Commission under the authority of state law or regulations. However, members of advisory boards or commissions established in accordance with state law or regulations to represent multiple interests are not considered to be employees.

(63) Ephemeral stream--A stream which flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice, and which has a channel bottom that is always above the local water table.

(64) Essential hydrologic functions--The role of an alluvial valley floor in collecting, storing, regulating, and making the natural flow of surface or ground water, or both, usefully available for agricultural activities by reason of the valley floor's topographic position, the landscape and the physical properties of its underlying materials. A combination of these functions provides a water supply during extended periods of low precipitation.

(A) The role of the valley floor in collecting water includes accumulating runoff and discharge from aquifers in sufficient amounts to make the water available at the alluvial valley floor greater than the amount available from direct precipitation.

(B) The role of the alluvial valley floor in storing water involves limiting the rate of discharge of surface water, holding moisture in soils, and holding ground water in porous materials.

(C) The role of the alluvial valley floor in regulating:

(i) the natural flow of surface water results from the characteristic configuration of the channel flood plain and adjacent low terraces; and

(ii) the natural flow of ground water results from the properties of the aquifers which control inflow and outflow.

(D) The role of the alluvial valley floor in making water usefully available for agricultural activities results from the existence of flood plains and terraces where surface and ground water can be provided in sufficient quantities to support the growth of agriculturally useful plants, from the presence of earth materials suitable for the growth of agriculturally useful plants, from the temporal and physical distribution of water making it accessible to plants throughout the critical phases of the growth cycle either by flood irrigation or by subirrigation, from the natural control of alluvial valley floors in limiting destructive extremes of stream discharge, and from the erosional stability of earth materials suitable for the growth of agriculturally useful plants.

(65) Existing structure--A structure or facility used in connection with or to facilitate surface coal mining and reclamation operations for which construction began prior to approval of the state program.

(66) Experimental practice--The use of alternative surface coal mining and reclamation operation practices for experimental or research purposes.

(67) Explosives--Any chemical compound, mixture, or device by whose decomposition or combustion gas is generated with such rapidity that it can be used for blasting.

(68) Extraction of coal as an incidental part--The extraction of coal which is necessary to enable the construction to be accomplished. For purposes of §12.21 and §12.22 of this title (relating to Applicability, and to Information to be Maintained On Site), only that coal extracted from within the right-of-way, in the case of a road, railroad, utility line or other such construction, or within the boundaries of the area directly affected by other types of government-financed construction, may be considered incidental to that construction. Extraction of coal outside the right-of-way or boundary of the area directly affected by the construction shall be subject to the requirements of the Act and this chapter.

(69) Federal Act--The "Surface Mining Control and Reclamation Act of 1977" (Pub. L. 95-87).

(70) Federal lands--Any land, including mineral interests, owned by the United States, without regard to how the United States acquired ownership of the lands or which agency manages the lands. It does not include Indian lands.

(71) Federal lands program--A program established by the Secretary, pursuant to Section 523 of the Federal Act, to regulate surface coal mining and reclamation operations on federal lands.

(72) Flood irrigation--With respect to alluvial valley floors, supplying water to plants by natural overflow or the diversion of flows, so that the irrigated surface is largely covered by a sheet of water.

(73) Flyrock--Rock or other blasted material that is propelled from a blast through the air or along the ground.

(74) Fragile lands--Areas containing natural, ecologic, scientific or esthetic resources that could be significantly damaged by surface coal mining operations. Examples of fragile lands include valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, paleontological sites, National Natural Landmarks, areas where mining may result in flooding, environmental corridors containing a concentration of ecologic and esthetic features, and areas of recreational value due to high environmental quality.

(75) Fugitive dust--That particulate matter not emitted from a duct or stack which becomes airborne due to the forces of wind or surface coal mining and reclamation operations or both. During surface coal mining and reclamation operations, it may include emissions from haul roads; wind erosion of exposed surfaces, storage piles, and spoil piles; reclamation operations; and other activities in which material is either removed, stored, transported, or redistributed.

(76) Fund--The Abandoned Mine Reclamation Fund established pursuant to Section 401 of the Federal Act.

(77) General area--With respect to hydrology, the topographic and ground-water basin surrounding a permit area which is of sufficient size, including areal extent and depth, to include one or more watersheds containing perennial streams and ground-water zones and to allow assessment of the probable cumulative impacts on the quality and quantity of surface- and ground-water systems in the basins.

(78) Government financing agency--A federal, state, county, municipal, or local unit of government, or a department, bureau, agency or office of the unit which, directly or through another unit of government, finances construction.

(79) Government-financed construction--Construction funded 50% or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds, but shall not mean government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent, or in-kind payments.

(80) Ground cover--The area of ground covered by the combined aerial parts of vegetation and the litter that is produced naturally onsite, expressed as a percentage of the total area of measurement.

(81) Ground water--Subsurface water that fills available openings in rock or soil materials to the extent that they are considered water saturated.

(82) Half-shrub--A perennial plant with a woody base whose annually produced stems die back each year.

(83) Head-of-hollow fill--A fill structure consisting of any material, other than coal processing waste and organic material, placed in the uppermost reaches of a hollow where side slopes of the existing hollow measured at the steepest point are greater than 20 degrees or the average slope of the profile of the hollow from the toe of the fill to the top of the fill is greater than 10 degrees. In fills with less than 250,000 cubic yards of material, associated with contour mining, the top surface of the fill will be at the elevation of the coal seam. In all other head-of-hollow fills, the top surface of the fill, when completed, is at approximately the same elevation as the adjacent ridge line, and no significant area of natural drainage occurs above the fill draining into the fill area.

(84) Highwall--The face of exposed overburden and coal in an open cut of a surface coal mining activity or for entry to underground mining activities.

(85) Historically used for cropland--Refers to:

(A) lands that have been used for cropland for any 5 years or more out of the 10 years immediately preceding the acquisition, including purchase, lease, or option, of the land for the purpose of conducting or allowing through resale, lease or option the conduct of surface coal mining and reclamation operations;

(B) lands that the Commission determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific 5-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or

(C) lands that would likely have been used as cropland for any 5 out of the last 10 years, immediately preceding such acquisition but for some fact of ownership or control of the land unrelated to the productivity of the land.

(86) Historic lands--Historic, cultural, or scientific resources. Examples of historic lands include archeological sites, National Historic Landmarks, properties listed on or eligible for listing on a state or National Register of Historic Places, properties having religious or cultural significance to Native Americans or religious groups, and properties for which historic designation is pending.

(87) Hydrologic balance--The relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or reservoir. It encompasses the dynamic relationships among precipitation, runoff, evaporation, and changes in ground and surface water storage.

(88) Hydrologic regime--The entire state of water movement in a given area. It is a function of the climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns to the atmosphere as vapor by means of evaporation and transpiration.

(89) Imminent danger to the health and safety of the public--The existence of any condition or practice, or any violation of a permit or other requirements of the Act in a surface coal mining and reclamation operation, which condition, practice, or violation could reasonably be expected to cause substantial physical harm to persons outside the permit area before such condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same condition or practices giving rise to the peril, would not expose that person to the danger during the time necessary for abatement.

(90) Impoundment--A closed basin, naturally formed or artificially built, which is dammed or excavated for the retention of water, sediment, or waste.

(91) Indian lands--All lands, including mineral interests, within the exterior boundaries of any federal Indian reservation, notwithstanding the issuance of any patent, and including rights-of-way, and all lands including mineral interests held in trust for or supervised by an Indian tribe.

(92) Indian tribe--Any Indian tribe, band, group, or community having a governing body recognized by the Secretary.

(93) Indirect financial interest--The same financial relationships as for direct ownership, but where the employee reaps the benefits of such interests, including interests held by his or her spouse, minor child and other relatives, including in-laws, residing in the employee's home. The employee will not be deemed to have an indirect financial interest if there is no relationship between the employee's functions or duties and the coal mining operation in which the spouse, minor children or other resident relatives hold a financial interest.

(94) In situ processes--Activities conducted on the surface or underground in connection with in-place distillation, retorting, leaching, or other chemical or physical processing of coal. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, solution mining, borehole mining, and fluid recovery mining.

(95) Intermittent stream--A stream or reach of a stream that:

(A) drains a watershed of at least one square mile; or

(B) is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground-water discharge.

(96) Irreparable damage to the environment--Any damage to the environment that cannot be or has not been corrected by actions of the applicant.

(97) Knowing or knowingly--With respect to §§12.696 - 12.699 of this title (relating to Individual Civil Penalties), that a person who authorized, ordered, or carried out an act or omission knew or had reason to know that the act or omission would result in either a violation or a failure to abate or correct a violation.

(98) Lands eligible for remining--Previously mined areas that would otherwise be eligible for expenditures under §134.142 of the Act.

(99) Land use--Specific uses or management-related activities, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal uses occur. Changes of land use or uses from one of the following categories to another shall be considered as a change to an alternative land use which is subject to approval by the Commission.

(A) Cropland. Land used for the production of adapted crops for harvest, alone or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar specialty crops. Land used for facilities in support of cropland farming operations which is adjacent to or an integral part of these operations is also included for purposes of these land use categories.

(B) Pastureland or land occasionally cut for hay. Land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock or occasionally cut and cured for livestock feed. Land used for facilities in support of pastureland or land occasionally cut for hay which is adjacent to or an integral part of these operations is also included.

(C) Grazingland. Includes both grasslands and forest lands where the indigenous vegetation is actively managed for grazing, browsing, or occasional hay production. Land used for facilities in support of ranching operations which are adjacent to or an integral part of these operations is also included.

(D) Forestry. Land used or managed for the long-term production of wood, wood fiber, or wood derived products. Land used for facilities in support of forest harvest and management operations which is adjacent to or an integral part of these operations is also included.

(E) Residential. Includes single- and multiple-family housing, mobile home parks, and other residential lodgings. Land used for facilities in support of residential operations which is adjacent to or an integral part of these operations is also included. Support facilities include, but are not limited to, vehicle parking and open space that directly relate to the residential use.

(F) Industrial/Commercial. Land used for:

(i) extraction or transformation of materials for fabrication of products, wholesaling of products, or for long-term storage of products. This includes all heavy and light manufacturing facilities, such as lumber and wood processing, chemical manufacturing, petroleum refining, and fabricated metal products manufacturing. Land used for facilities in support of these operations which is adjacent to or an integral part of that operation is also included. Support facilities include, but are not limited to, all rail, road, and other transportation facilities; or

(ii) retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments. Land used for facilities in support of commercial operations which is adjacent to or an integral part of these operations is also included. Support facilities include, but are not limited to, parking, storage or shipping facilities.

(G) Recreation. Land used for public or private leisure-time use, including developed recreation facilities such as parks, camps, and amusement areas, as well as areas for less intensive uses such as hiking, canoeing, and other undeveloped recreational uses.

(H) Fish and wildlife habitat. Land dedicated wholly or partially to the production, protection or management of species of fish or wildlife.

(I) Developed water resources. Includes land used for storing water for beneficial uses, such as stockponds, irrigation, fire protection, flood control, and water supply.

(J) Undeveloped land or no current use or land management. Land that is undeveloped or, if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession.

(100) Materially damage the quantity or quality of water--With respect to alluvial valley floors, changes in the quality or quantity of the water supply to any portion of an alluvial valley floor where such changes are caused by surface coal mining and reclamation operations and result in changes that significantly and adversely affect the composition, diversity, or productivity of vegetation dependent on subirrigation, or which result in changes that would limit the adequacy of the water for flood irrigation of the irrigable land acreage existing prior to mining.

(101) Mining area--As used in §§12.25 - 12.33 of this title, an individual excavation site or pit from which coal, other minerals, and overburden are removed.

(102) Moist bulk density--The weight of soil (oven dry) per unit volume. Volume is measured when the soil is at field moisture capacity (1/3 bar moisture tension). Weight is determined after drying the soil at 105 degrees C.

(103) Monitoring--The collection of environmental data by either continuous or periodic sampling methods.

(104) Mulch--Vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, thus providing micro-climatic conditions suitable for germination and growth.

(105) Natural hazard lands--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.

(106) Noxious plants--Species that have been included on official Texas list of noxious plants.

(107) Occupied dwelling--Any building that is currently being used on a regular or temporary basis for human habitation.

(108) Office--The Office of Surface Mining Reclamation and Enforcement, within the U.S. Department of the Interior, established under Title II of the Federal Act.

(109) Operator--Any person engaged in coal mining who removes or intends to remove more than 250 tons of coal from the earth or from coal refuse piles by mining within 12 consecutive calendar months in any one location.

(110) Other minerals--As used in §§12.25 - 12.33 of this title, any commercially valuable substance mined for its mineral value, excluding coal, topsoil, waste, and fill material.

(111) Other treatment facility--Any chemical treatments, such as flocculation or neutralization, or mechanical structures, such as clarifiers or precipitators, that have a point source discharge and are utilized:

(A) to prevent additional contributions of dissolved or suspended solids to streamflow or runoff outside the permit area; or

(B) to comply with all applicable state and federal water-quality laws and regulations.

(112) Outslope--The face of the spoil or embankment sloping downward from the highest elevation to the toe.

(113) Overburden--Material of any nature, consolidated or unconsolidated, that overlies a coal deposit, excluding topsoil.

(114) Own, owner, or ownership--A sole proprietor or owner of record in excess of 50 percent of the voting securities or other instruments of ownership of an entity. Does not apply in context of ownership of real property.

(115) Owner of record or ownership interest of record--The owner and address as shown in the tax records of the Texas Assessor-Collector of taxes for the county where the property is located.

(116) Perennial stream--A stream or part of a stream that flows continuously during all of the calendar year as a result of ground-water discharge or surface runoff. The term does not include intermittent stream or ephemeral stream.

(117) Performance bond--A surety bond, collateral bond or self-bond or a combination thereof, by which a permittee assures faithful performance of all the requirements of the Act, this chapter, and the requirements of the permit and reclamation plan.

(118) Performing any function or duty under this Act--Those decisions or actions, which if performed or not performed by an employee, affect the programs under the Act.

(119) Permanent diversion--A diversion remaining after surface coal mining and reclamation operations are completed which has been approved for retention by the Commission and other appropriate state and federal agencies.

(120) Permanent impoundment--An impoundment which is approved by the Commission and, if required, by other state and federal agencies for retention as part of the postmining land use.

(121) Permit--A permit to conduct surface coal mining and reclamation operations issued by the Commission.

(122) Permit area--The area of land and water indicated on the map submitted by the operator with the application, as approved by the Commission, which area shall be covered by the operator's bond as required by §§134.121 - 134.127 of the Act and shall be readily identifiable by appropriate markers on the site. This area shall include, at a minimum, all areas which are or will be affected by the surface coal mining and reclamation operations during the term of the permit.

(123) Permittee--A person holding or required by the Act or this chapter to hold a permit to conduct surface or underground coal mining and reclamation operations issued by the Commission.

(124) Person--An individual, partnership, society, joint stock company, firm, company, corporation, business organization, governmental agency, or any organization or association of citizens.

(125) Person having an interest which is or may be adversely affected or person with a valid legal interest--Shall include any person:

(A) who uses any resources of economic, recreational, esthetic, or environmental value that may be adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the Commission; or

(B) whose property is or may be adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the Commission.

(126) Precipitation event--A quantity of water resulting from drizzle, rain, snow, sleet, or hail in a limited period of time. It may be expressed in terms of recurrence interval. As used in these regulations, precipitation event also includes that quantity of water emanating from snow cover as snowmelt in a limited period of time.

(127) Previously mined area--Land affected by surface coal mining operations prior to August 3, 1977, that has not been reclaimed to the standards of this Chapter.

(128) Prime farmland--Those lands which are defined by the Secretary of Agriculture in 7 CFR 657 and which have been historically used for cropland.

(129) Principal shareholder--Any person who is the record or beneficial owner of 10% or more of any class of voting stock.

(130) Probable cumulative impacts--The expected total qualitative, and quantitative, direct and indirect effects of mining and reclamation activities on the hydrologic regime.

(131) Probable hydrologic consequences--The projected result of proposed surface coal mining and reclamation operations which may reasonably be expected to change the quantity or quality of the surface- or ground-water flow, timing and pattern; the stream-channel conditions; and the aquatic habitat on the permit area and other affected areas.

(132) Professional engineer--A person who is duly licensed by the Texas Board of Professional Engineers and Land Surveyors to engage in the practice of engineering in this state.

(133) Professional geoscientist--A person who is duly licensed by the Texas Board of Professional Geoscientists to engage in the practice of geoscience in this state.

(134) Professional specialist--A person whose training, experience, and professional certification or licensing are acceptable to the Commission for the limited purpose of performing certain specified duties under this chapter.

(135) Prohibited financial interest--Any direct or indirect financial interest in any coal mining operation.

(136) Property to be mined--Both the surface estates and mineral estates within the permit area and the area covered by underground workings.

(137) Public building--Any structure that is owned or leased, and principally used by a governmental agency for public business or meetings.

(138) Publicly-owned park--A public park that is owned by a federal, state or local governmental entity.

(139) Public office--A facility under the direction and control of a governmental entity which is open to public access on a regular basis during reasonable business hours.

(140) Public park--An area or portion of an area dedicated or designated by any federal, state, or local agency primarily for public recreational use, whether or not such use is limited to certain times or days, including any land leased, reserved, or held open to the public because of that use.

(141) Public road--Any thoroughfare open to the public for passage of vehicles.

(142) Qualified jurisdiction--A state or federal mining regulatory authority that has a blaster certification program approved by the U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement, in accordance with the Federal Act.

(143) Qualified laboratory--A designated public agency, private firm, institution, or analytical laboratory that can provide the required determination of probable hydrologic consequences or statement of results of test borings or core samplings or other services as specified at §12.236 and §12.240 of this title (relating to Program Services, and Data Requirements), and that meets the standards of §12.241 of this title (relating to Qualified Laboratories).

(144) Rangeland--Land on which the natural potential (climax) plant cover is principally native grasses, forbs, and shrubs valuable for forage. This land includes natural grass lands and savannahs, such as prairies, and juniper savannahs, such as brushlands. Except for brush control, management is primarily achieved by regulating the intensity of grazing and season of use.

(145) Recharge capacity--The ability of the soils and underlying materials to allow precipitation and runoff to infiltrate and reach the zone of saturation.

(146) Reciprocity--The conditional recognition by the Commission of a blaster certificate issued by another qualified jurisdiction.

(147) Reclamation--Those actions taken to restore mined land as required by this chapter to a postmining land use approved by the Commission.

(148) Recurrence interval--The interval of time in which a precipitation event is expected to occur once, on the average. For example, the 10-year, 24-hour precipitation event would be that 24-hour precipitation event expected to occur on the average once in 10 years.

(149) Reference area--A land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity and plant species diversity that are produced naturally or by crop production methods approved by the Commission. Reference areas must be representative of geology, soil, slope, and vegetation in the permit area.

(150) Regional Director--A Regional Director of the Office or a Regional Director's representative.

(151) Remining--Surface coal mining and reclamation operations that affect previously mined areas.

(152) Renewable resource lands--Aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands. With respect to Subchapter F of this chapter (relating to Lands Unsuitable for Mining), geographic areas which contribute significantly to the long-range productivity of water supply or of food or fiber products, such lands to include aquifers and aquifer recharge areas.

(153) Replacement of water supply--With respect to protected water supplies contaminated, diminished, or interrupted by coal mining operations, provision of water supply on both a temporary and permanent basis equivalent to premining quantity and quality. Replacement includes provision of an equivalent water-delivery system and payment of operation and maintenance costs in excess of customary and reasonable delivery costs for premining water supplies.

(A) Upon agreement by the permittee and the water-supply owner, the obligation to pay such operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the permittee and the water-supply owner.

(B) If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If the latter approach is selected, written concurrence must be obtained from the water-supply owner.

(154) Road--A surface right-of-way for purposes of travel by land vehicles used in surface coal mining and reclamation operations or coal exploration. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side areas, approaches, structures, ditches, and surface. The term includes access and haulroads constructed, used, reconstructed, improved, or maintained for use in surface coal mining and reclamation operations or coal exploration, including use by coal-hauling vehicles to and from transfer, processing, or storage areas. The term does not include ramps and routes of travel within the immediate mining area or within spoil or coal mine waste disposal areas.

(155) Safety factor--The ratio of the available shear strength to the developed shear stress, or the ratio of the sum of the resisting forces to the sum of the loading or driving forces, as determined by accepted engineering practices.

(156) Secretary--The Secretary of the U.S. Department of the Interior, or the Secretary's representative.

(157) Sedimentation pond--A primary sediment control structure designed, constructed and maintained in accordance with §12.344 or §12.514 of this title (relating to Hydrologic Balance: Siltation Structures) and including but not limited to a barrier, dam, or excavated depression which slows down water runoff to allow sediment to settle out. A sedimentation pond shall not include secondary sedimentation control structures, such as straw dikes, riprap, check dams, mulches, dugouts and other measures that reduce overland flow velocity, reduce runoff volume or trap sediment to the extent that such secondary sedimentation structures drain to a sedimentation pond.

(158) Significant forest cover--An existing plant community consisting predominantly of trees and other woody vegetation.

(159) Significant, imminent environmental harm to land, air or water resources--Determined in the following context:

(A) An environmental harm is an adverse impact on land, air, or water resources, which resources include, but are not limited to, plant and animal life.

(B) An environmental harm is imminent, if a condition, practice, or violation exists which:

(i) is causing such harm; or

(ii) may reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under §134.162 of the Act.

(C) An environmental harm is significant if that harm is appreciable and not immediately reparable.

(160) Significant recreational, timber, economic, or other values incompatible with surface coal mining operations--Those significant 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 areas. Those values to be evaluated for their significance include:

(A) recreation, including hiking, boating, camping, skiing or other related outdoor activities;

(B) timber management and silviculture;

(C) agriculture, aquaculture or production of other natural, processed or manufactured products which enter commerce; and

(D) scenic, historic, archaeologic, esthetic, fish, wildlife, plants or cultural interests.

(161) Siltation structure--A sedimentation pond, a series of sedimentation ponds, or other treatment facility.

(162) Slope--Average inclination of a surface, measured from the horizontal, generally expressed as the ratio of a unit of horizontal distance to a given number of units of vertical distance (e.g., 5h:1v). It may also be expressed as a percent or in degrees.

(163) Soil horizons--Contrasting layers of soil parallel or nearly parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics and laboratory data. The four master soil horizons are:

(A) A horizon. The uppermost mineral layer, often called the surface soil. It is the part of the soil in which organic matter is most abundant, and leaching of soluble or suspended particles is typically the greatest;

(B) E horizon. The layer commonly near the surface below an A horizon and above a B horizon. An E horizon is most commonly differentiated from an overlying A horizon by lighter color and generally has measurably less organic matter than the A horizon. An E horizon is most commonly differentiated from an underlying B horizon in the same sequum by color of higher value or lower chroma, by coarser texture, or by a combination of these properties;

(C) B horizon. The layer that typically is immediately beneath the E horizon and often called the subsoil. This middle layer commonly contains more clay, iron, or aluminum than the A, E, or C horizons; and

(D) C horizon. The deepest layer of soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity.

(164) Soil survey--A field and other investigation, resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies, and interprets such soils for use. Soil surveys must meet the standards of the National Cooperative Soil Survey.

(165) Spoil--Overburden that has been removed during surface coal mining operations.

(166) Stabilize--To control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties, such as by providing a protective surface coating.

(167) Steep slope--Any slope of more than 20 degrees or such lesser slope as may be designated by the Commission after consideration of soil, climate, and other characteristics of a region or state.

(168) Subirrigation--With respect to alluvial valley floors, the supplying of water to plants from underneath or from a semi-saturated or saturated subsurface zone where water is available for use by vegetation. Subirrigation may be identified by:

(A) diurnal fluctuation of the water table, due to the differences in nighttime and daytime evapotranspiration rates;

(B) increasing soil moisture from a portion of the root zone down to the saturated zone, due to capillary action;

(C) mottling of the soils in the root zones;

(D) existence of an important part of the root zone within the capillary fringe or water table of an alluvial aquifer; or

(E) an increase in streamflow or a rise in ground-water levels, shortly after the first killing frost on the valley floor.

(169) Substantial legal and financial commitments in a surface coal mining operation--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 the right to mine it without an existing mine, as described in the above example, alone are not sufficient to constitute substantial legal and financial commitments.

(170) Substantially disturb--For purposes of coal exploration, to significantly impact land, air or water resources by such activities as blasting; mechanical excavation; drilling or altering coal or water exploratory holes or wells; removal of vegetation, topsoil, or overburden; construction of roads or other access routes; placement of structures, excavated earth, or waste material on the natural surface of land; or by other such activities; or to remove more than 250 tons of coal.

(171) Successor in interest--Any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights.

(172) Surface coal mining and reclamation operations--Surface coal mining operations and all activities necessary or incidental to the reclamation of such operations. This term includes the term surface coal mining operations.

(173) Surface coal mining operations--Includes:

(A) activities conducted on the surface of lands in connection with a surface coal mine or, subject to the requirements of §134.015 of the Act, surface operations and surface impacts incident to an underground coal mine, the products of which enter or the operations of which directly or indirectly affect interstate commerce. Such activities include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining; the use of explosives and blasting; in situ distillation or retorting; leaching or other chemical or physical processing; the cleaning, concentrating, or other processing or preparation of coal; and the loading of coal for interstate commerce at or near the mine-site. Provided, however, that such activities do not include the extraction of coal incidental to the extraction of other minerals, where coal does not exceed 16 2/3% of the tonnage of minerals removed annually from all sites operated by a person on contiguous tracts of land for purposes of commercial use or sale, or coal exploration subject to §134.014 and §134.031(d) of the Act; and provided further, that excavation for the purpose of obtaining coal includes extraction of coal from coal refuse piles; and

(B) areas upon which the activities described in subparagraph (A) of this definition occur or where such activities disturb the natural land surface. Such areas shall also include any adjacent land the use of which is incidental to any such activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of those activities and for haulage and excavation, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are site structures, facilities, or other property or material on the surface, resulting from or incident to those activities.

(174) Surface mining activities--Those surface coal mining and reclamation operations incident to the extraction of coal from the earth by removing the materials over a coal seam, before recovering the coal, by auger coal mining, or by recovery of coal from a deposit that is not in its original geologic location.

(175) Surface operations and impacts incident to an underground coal mine--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 §134.004(19) of the Act and the definition of surface coal mining operations contained in this section.

(176) Suspended solids or nonfilterable residue--Expressed as milligrams per liter, organic or inorganic materials carried or held in suspension in water which are retained by a standard glass fiber filter in the procedure outlined by the U.S. Environmental Protection Agency regulations for wastewater and analyses (40 CFR 136).

(177) Temporary diversion--A diversion of a stream or overland flow which is used during coal exploration or surface coal mining and reclamation operations and not approved by the Commission to remain after reclamation as part of the approved postmining land use.

(178) Temporary impoundment--An impoundment used during surface coal mining and reclamation operations, but not approved by the Commission to remain as part of the approved postmining land use.

(179) Thick overburden--More than sufficient spoil and other waste materials available from the entire permit area to restore the disturbed area to its approximate original contour. More than sufficient spoil and other waste materials occur where the overburden thickness times the swell factor exceeds the combined thickness of the overburden and coal bed prior to removing the coal, so that after backfilling and grading the surface configuration of the reclaimed area would not:

(A) closely resemble the surface configuration of the land prior to mining; or

(B) blend into and complement the drainage pattern of the surrounding terrain.

(180) Thin overburden--Insufficient spoil and other waste materials available from the entire permit area to restore the disturbed area to its approximate original contour. Insufficient spoil and other waste materials occur where the overburden thickness times the swell factor, plus the thickness of other available waste materials, is less than the combined thickness of the overburden and coal bed prior to removing the coal, so that after backfilling and grading the surface configuration of the reclaimed area would not:

(A) closely resemble the surface configuration of the land prior to mining; or

(B) blend into and complement the drainage pattern of the surrounding terrain.

(181) Ton--2,000 pounds avoirdupois (0.90718 metric ton).

(182) Topsoil--The A and E soil-horizon layers of the four master soil horizons.

(183) Toxic-forming materials--Earth materials or wastes which, if acted upon by air, water, weathering, or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water.

(184) Toxic mine drainage--Water that is discharged from active or abandoned mines or other areas affected by coal exploration or surface coal mining and reclamation operations, which contains a substance that through chemical action or physical effects is likely to kill, injure, or impair biota commonly present in the area that might be exposed to it.

(185) Transfer, assignment, or sale of rights--A change in ownership or other effective control over the right to conduct surface coal mining operations under a permit issued by the Commission.

(186) Unconsolidated streamlaid deposits holding streams--With respect to alluvial valley floors, all flood plains and terraces located in the lower portions of topographic valleys which contain perennial or other streams with channels that are greater than 3 feet in bankfull width and greater than 0.5 feet in bankfull depth.

(187) Underground development waste--Waste rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone, or related materials that are excavated, moved, and disposed of during development and preparation of areas incident to underground mining activities.

(188) Underground mining activities--Includes:

(A) surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance, and reclamation of roads, above-ground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities including hoist and ventilating ducts, areas utilized for the disposal and storage of waste, and areas on which materials incident to underground mining operations are placed; and

(B) underground operations such as underground construction, operation, and reclamation of shafts, adits, underground support facilities, in situ processing, and underground mining, hauling, storage, and blasting.

(189) Undeveloped rangeland--For purposes of alluvial valley floors, lands where the use is not specifically controlled and managed.

(190) Unwarranted failure to comply--The failure of the permittee to prevent the occurrence of any violation of the permit or any requirement of the Act, due to the indifference, lack of diligence, or lack of reasonable care, or the failure to abate any violation of such permit or the Act, due to indifference, lack of diligence, or lack of reasonable care.

(191) Upland areas--With respect to alluvial valley floors, those geomorphic features located outside the floodplain and terrace complex, such as isolated higher terraces, alluvial fans, pediment surfaces, landslide deposits, and surfaces covered with residuum, mud flows or debris flows, as well as highland areas underlain by bedrock and covered by residual weathered material or debris deposited by sheetwash, rillwash, or windblown material.

(192) Valid existing rights--A set of circumstances under which a person may, subject to Commission approval, conduct surface coal mining operations on lands where §134.022 of the Act and §12.71(a) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited) would otherwise prohibit such operations. Possession of valid existing rights only confers an exception from the prohibitions of §12.71(a) of this title and §134.022 of the Act. A person seeking to exercise valid existing rights must comply with all other pertinent requirements of the Act and this chapter.

(A) Property rights demonstration. Except as provided in subparagraph (C) of this paragraph, a person claiming valid existing rights must demonstrate that a legally binding conveyance, lease, deed, contract, or other document vests that person, or a predecessor in interest, with the right to conduct the type of surface coal mining operations intended. This right must exist at the time that the land came under the protection of §12.71(a) of this title or §134.022 of the Act. Applicable state statutory or case law will govern interpretation of documents relied upon to establish property rights. If no applicable state law exists, custom and generally accepted usage at the time and place that the documents came into existence will govern their interpretation.

(B) Additional demonstrations. Except as provided in subparagraph (C) of this paragraph, a person claiming valid existing rights must also demonstrate compliance with one of the following standards:

(i) Good faith/all permits standard. All permits and other authorizations required to conduct surface coal mining operations have been obtained, or a good faith effort to obtain all necessary permits and authorizations has been made, before the land came under the protection of §12.71(a) of this title or §134.022 of the Act. At a minimum, an application must have been submitted for any permit required under Subchapter G of this chapter (relating to Surface Coal Mining and Reclamation Operations, Permits, and Coal Exploration Procedure Systems); or

(ii) Needed for and adjacent standard. The land is needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations required to conduct surface coal mining operations have been obtained, or a good faith attempt to obtain all permits and authorizations has been made, before the land came under the protection of §12.71(a) of this title or §134.022 of the Act. To meet this standard, a person must demonstrate that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of §12.71(a) of this title or §134.022 of the Act. Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits have been made before August 3, 1977, this standard does not apply to lands already under the protection of §12.71(a) of this title or §134.022 of the Act when the Commission approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made. In evaluating whether a person meets this standard, the Commission may consider factors such as:

(I) the extent to which coal supply contracts or other legal and business commitments that predate the time that the land came under the protection of §12.71(a) of this title or §134.022 of the Act depend upon use of that land for surface coal mining operations;

(II) the extent to which plans used to obtain financing for the operation before the land came under the protection of §12.71(a) of this title or §134.022 of the Act rely upon use of that land for surface coal mining operations;

(III) the extent to which investments in the operation before the land came under the protection of §12.71(a) of this title or §134.022 of the Act rely upon use of that land for surface coal mining operations; and

(IV) whether the land lies within the area identified on the life-of-mine map submitted under §12.136(3) of this title (relating to Maps: General Requirements) or §12.182(3) of this title (relating to Maps: General Requirements) before the land came under the protection of §12.71(a) of this title.

(C) Roads. A person who claims valid existing rights to use or construct a road across the surface of lands protected by §12.71(a) of this title or §134.022 of the Act must demonstrate that one or more of the following circumstances exist if the road is included within the definition of "surface coal mining operations" in this section:

(i) the road existed when the land upon which it is located came under the protection of §12.71(a) of this title or §134.022 of the Act, and the person has a legal right to use the road for surface coal mining operations;

(ii) a properly recorded right of way or easement for a road in that location existed when the land came under the protection of §12.71(a) of this title or §134.022 of the Act, and, under the document creating the right of way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement for surface coal mining operations;

(iii) a valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of §12.71(a) of this title or §134.022 of the Act; or

(iv) valid existing rights exist under subparagraphs (A) and (B) of this paragraph.

(193) Valley fill--A fill structure consisting of any material other than coal waste and organic material that is placed in a valley where side slopes of the existing valley measured at the steepest point are greater than 20 degrees or the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than 10 degrees.

(194) Violation--When used in the context of the permit application information or permit eligibility requirements of the Act and this chapter:

(A) a failure to comply with an applicable provision of a Federal or state law or regulation pertaining to air or water environmental protection, as evidenced by a written notification from a governmental entity to the responsible person; or

(B) a noncompliance for which the Commission has provided one or more of the following types of notice, or another state's regulatory authority has provided equivalent notice under corresponding provisions of that state's regulatory program:

(i) a notice of violation under §12.678 of this title (relating to Notices of Violation);

(ii) a cessation order under §12.677 of this title (relating to Cessation Orders);

(iii) a final order, bill, or demand letter pertaining to a delinquent civil penalty assessed under Subchapter L of this chapter (relating to Permanent Program Inspection and Enforcement Procedures);

(iv) a bill or demand letter pertaining to delinquent reclamation fees owed under 30 CFR, Part 870; or

(v) a notice of bond forfeiture under §12.314(d) of this title (relating to Forfeiture of Bonds) when:

(I) one or more violations upon which the forfeiture was based have not been abated or corrected; or

(II) the amount forfeited and collected is insufficient for full reclamation under §12.314 of this title, the Commission orders reimbursement for additional reclamation costs, and the person has not complied with the reimbursement order.

(195) Violation, failure, or refusal--With respect to §§12.696 - 12.699 of this title, a violation of or a failure or refusal to comply with any order of the Commission including, but not limited to, a condition of a permit, notice of violation, failure-to-abate cessation order, imminent harm cessation order, order to show cause why a permit should not be suspended or revoked, and order in connection with a civil action for relief, except an order incorporated in a decision issued under §134.175 of the Act.

(196) Violation notice--Any written notification from a regulatory authority or other governmental entity, as specified in the definition of "violation" in this section.

(197) Water table--The upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.

(198) Willful or willfully--With respect to §§12.696 - 12.699 of this title, an individual that authorized, ordered, or carried out an act or omission that resulted in either a violation or the failure to abate or correct a violation acted:

(A) intentionally, voluntarily, or consciously; and

(B) with intentional disregard or plain indifference to legal requirements.

(199) Willful violation--An act or omission which violates the Act, state, or federal laws or regulations, or any permit condition required by the Act or this chapter, committed by a person who intends the result which actually occurs.

Source Note: The provisions of this §12.3 adopted to be effective April 7, 1997, 22 TexReg 3093; amended to be effective November 4, 1997, 22 TexReg 10640; amended to be effective December 29, 1998, 23 TexReg 13041; amended to be effective June 9, 2003, 28 TexReg 4412; amended to be effective February 24, 2014, 39 TexReg 1121; amended to be effective December 28, 2020, 45 TexReg 9503