Any auger mining associated with surface mining activities shall be conducted to maximize recoverability of mineral reserves remaining after the mining activities are completed. The permittee shall leave areas of undisturbed coal as approved by the Bureau, to provide access for removal of those reserves by future underground mining activities, unless the Bureau determines that the coal reserves have been depleted or are limited in thickness or extent to the point that it will not be practicable to recover the remaining coal reserves. The Bureau shall make the determination upon presentation of appropriate technical evidence by the permittee. An auger hole may not extend closer than 500 feet in horizontal distance to any abandoned or active underground mine workings, except as approved in accordance with Regulation .07 of this chapter. Each auger hole shall be plugged by backfilling and compacting noncombustible and impervious material into the hole, as follows: Each auger hole discharging water containing toxic-forming or acid-forming material shall be plugged within 72 hours after completion, or the discharge shall be treated to meet applicable effluent limitations and water quality standards until the hole is properly sealed; and Each auger hole not discharging water shall be sealed to close the opening within 30 days following completion. An auger hole need not be plugged, if the Bureau finds that: Impoundment of the water which would result from plugging the hole may create a hazard to the environmental or public health or safety; and Drainage from the auger hole will not pose a threat of pollution to surface water. The Bureau shall prohibit auger mining, if it determines that: Adverse water quality impacts cannot be prevented or corrected; Fill stability cannot be achieved; The prohibition is necessary to maximize the utilization, recoverability, or conservation of the solid fuel resources; or Subsidence resulting from auger mining may disturb or damage powerlines, pipelines, buildings, or other facilities. The permittee shall adopt: Measures consistent with known technology which prevent subsidence from causing material damage to the extent technologically and economically feasible, and maintain the value and reasonably foreseeable use of surface lands; or Mining technology which provides for planned subsidence in a predictable and controlled manner. The permittee shall: Correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible, by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses which it was capable of supporting before subsidence; and Correct material damage resulting from subsidence caused to any structures or facilities by repairing the damage or compensate the owner of the structures or facilities in the full amount of the diminution in value resulting from the subsidence. Repair of damage under §G(2) of this regulation includes rehabilitation, restoration, or replacement of damaged structures or facilities. Compensation under §G(2) of this regulation may be accomplished by the purchase before mining of a noncancellable premium-prepaid insurance policy. Surface coal mining and reclamation operations conducted on prime farmland shall meet the following requirements: Soil materials to be used in the reconstruction of prime farmland shall be removed before drilling, blasting, or mining, in a manner that prevents mixing or contamination with undesirable material. The minimum depth of soil and soil material to be removed for use in reconstruction of prime farmland soils shall be sufficient to meet the soil replacement requirements. If removal of soil materials results in erosion that may cause air and water pollution, the Bureau shall specify methods to control erosion of exposed overburden. Operations shall be conducted so as to separately remove the: Topsoil or other suitable materials when the other soil materials which will create a final soil having an equal or greater productive capacity than that which existed before mining; “B” horizon of the soil, a combination of “B” horizon and underlying “C” horizon, or other suitable soil material that will create a reconstructed soil of equal or greater productive capacity than that which existed before mining; Underlying “C” horizons, other strata, or a combination of horizons or other strata, to be used instead of the “B” horizon; when replaced, these combinations shall be equal to, or more favorable for plant growth than, the “B” horizon. If not utilized immediately, the topsoil or other suitable soil materials, the “B” horizon or other suitable materials, and the “C” horizon or other suitable soil materials, shall be stored separately from each other and from spoil. These stockpiles shall be placed within the permit area so they are not disturbed or exposed to excessive water or wind erosion before the stockpiles horizons can be redistributed. Stockpiles in place for more than 30 days shall meet the requirements for topsoil storage. Soil Replacement. The minimum depth of soil and soil material to be reconstructed for prime farmland shall be 48 inches, or a depth equal to the depth of a subsurface horizon in the natural soil that inhibits root penetration, whichever is shallower. The Bureau shall specify a depth greater than 48 inches wherever necessary to restore productive capacity due to uniquely favorable soil horizons at greater depths. Soil horizons shall be considered as inhibiting root penetration if their densities, chemical properties, or water-supplying capacities restrict or prevent penetration by roots of plants common to the vicinity of the permit area, and have little or no beneficial effect on soil productive capacity. Soil material may be replaced only on land which has been first returned to final grade, and scarified, unless site-specific evidence is provided and approved by the Bureau showing that scarification will not enhance the capability of the reconstructed soil to achieve equivalent or higher levels of yield. Replacement of the soil horizons or other suitable soil material shall be in a manner that avoids excessive compaction. The “B” horizon or other suitable material shall be replaced to the thickness needed to meet the requirements of §C(1) of this regulation. The “A” horizon or other suitable soil materials shall be replaced as the final surface soil layer. This surface soil layer shall equal or exceed the thickness of the original soil, and be replaced in a manner that protects the surface layer from wind and water erosion before it is seeded or planted. Nutrients and soil amendments shall be applied as needed to quickly establish vegetation growth. Revegetation. Following soil replacement, a vegetative cover shall be established which is capable of stabilizing the soil surface with respect to erosion. All vegetation shall be carried out in a manner that encourages prompt vegetation cover and the recovery of productive capacity. Prime farmland soil productivity shall be restored in accordance with the following provisions: Measurement of soil productivity shall be initiated within 10 years after completion of soil replacement. Soil productivity shall be measured on a representative sample or on all of the mined and reclaimed prime farmland area using the reference crop determined under §D(2)(f) of this regulation. A statistically valid sampling technique at a 90 percent or greater statistical confidence level shall be used as approved by the Regulatory Authority in consultation with the U.S. Soil Conservation Service. The measurement period for determining average annual crop production (yield) shall be a minimum of 3 crop years before release of the operator's performance bond. The level of management applied during the measurement period shall be the same as the level of management used on nonmined prime farmland in the surrounding area. Restoration of soil productivity shall be considered achieved when the average yield during the measurement period equals or exceeds the average yield of the reference crop established for the same period for non-mined soils of the same or similar texture or slope phase of the soil series in the surrounding area under equivalent management practices. The reference crop on which restoration of soil productivity is proven shall be selected from the crops most commonly produced on the surrounding prime farmland. When row crops are the dominant crops grown on prime farmland in the area, the row crop requiring the greatest rooting depth shall be chosen as one of the reference crops. Reference crop yields for a given group season are to be determined from the: Current yield records of representative local farms in the surrounding area, with concurrence by the U.S. Soil Conservation Service; or Average county yields recognized by the U.S. Department of Agriculture, which have been adjusted by the U.S. Soil Conservation Service for local yield variation within the county that is associated with differences between non-mined prime farmland soil and all other soils that produce the reference crop. Under the procedures in §E(1) or (2) of this regulation, the average reference crop yield may be adjusted with the concurrence of the U.S. Soil Conservation Service for: Disease, pest, and weather-induced seasonal variations; or Difference in specific management practices when the overall management practices of the crops being compared are equivalent. The Bureau may grant a variance from the requirement for restoring affected areas to their approximate original contour if all of the following conditions are satisfied: The permit application specifically requests a variance, and contains information in accordance with COMAR 26.20.03.03, and the following criteria, which enables the Bureau to make all necessary findings. The activities involve the mining of an entire coal seam running through the upper fraction of a mountain, ridge, or hill, by removing all of the overburden and creating a level plateau or gently rolling contour with no highwalls remaining. An industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use is proposed and approved for the affected land. The alternative land-use requirements in COMAR 26.20.03.03 are met. All applicable requirements of the Regulatory Program, other than the requirement to restore affected areas to their approximate original contour, are met. An outcrop barrier of sufficient width, consisting of the toe of the lowest coal seam, and its associated overburden, are retained to prevent slides and erosion. The Bureau may permit an exemption to the retention of the coal barrier requirement if the following conditions are satisfied: The proposed mine site was mined before May 3, 1978, and the toe of the lowest seam has been removed; or A coal barrier adjacent to a head-of-hollow fill may be removed after the elevation of a head-of-hollow fill attains the elevation of the coal barrier if the head-of-hollow fill provides the stability otherwise ensured by the retention of a coal barrier. The final graded slopes on the mined area are less than 5:1 so as to create a level plateau or gently rolling configuration, and the outslope of the plateau does not exceed 2:1 except where engineering data substantiates and the bureau finds, in writing, and includes in the permit, that a minimum static safety factor of 1.5 will be attained. The resulting level or gently rolling contour is graded to drain inward from the outslope, except at specified points where it drains over the outslope in stable and protected channels. The drainage may not be through or over a valley or head-of-hollow fill. Natural watercourses below the lowest coal seam mined are not damaged. All waste and acid-forming or toxic-forming materials, including the strata immediately below the coal seam, are covered with non-toxic spoil to prevent pollution and achieve the approved postmining land use. Spoil is placed on the mountaintop bench as necessary to achieve the postmining land use approved. All excess spoil material not retained on the mountaintop shall be placed in accordance with the Regulatory Program. The following special requirements apply whenever the affected area includes steep slopes: The permittee shall prevent the following materials from being placed or allowed to remain on the downslope: Spoil; Waste materials, including waste mineral matter; Debris, including that from clearing and grubbing of haul road construction; and Abandoned or disabled equipment. Nothing in §A of this regulation shall prohibit the placement of material in road embankments located on the downslope, so long as the material used and embankment design comply with the requirements of the Regulatory Program, and the material is moved and placed in a controlled manner. The permittee shall demonstrate to the Bureau, using standard geotechnical analysis, that the minimum static factor of safety for the stability of all portions of the reclaimed land is at least 1.5. Land above the highwall may not be disturbed, unless the Bureau finds that the disturbance assists compliance with the requirements of this regulation. Material in excess of that required by the grading and backfilling provisions shall be disposed of in accordance with the requirements of the Regulatory Program. Woody materials may not be buried in the backfilled area unless the Bureau determines that the proposed method for placing woody material beneath the highwall will not deteriorate the stable condition of the backfilled area. Woody materials may be chipped and distributed over the surface of the backfill as mulch, if special provision is made for their use and approved by the Bureau. Unlined or unprotected drainage channels may not be constructed on backfills unless approved by the Bureau as stable and not subject to erosion. In multiple-seam, steep slope affected areas, spoil not required to reclaim and restore the permit area may be placed on a preexisting bench, if approved by the Bureau and if the following requirements are met: All excess spoil shall be hauled, placed, and retained on the solid bench; The spoil shall be graded to a moderate slope, so as to eliminate the existing highwall to the extent possible with the available material; The fill shall comply with the Regulatory Program. Each person who operates a coal preparation plant and associated facilities, as defined in COMAR 26.20.01, shall obtain a permit to conduct those operations and otherwise comply with, at a minimum, the Regulatory Program requirements related to: Signs and markers for the coal processing plant, coal processing waste disposal area, and water treatment facilities; Roads, transport, and associated structures; Stream or channel realignment; Sediment control structures, and all discharges from disturbed areas; Permanent impoundments associated with coal preparation plants, and dams constructed of or impounding coal processing waste; Use of water wells, and provisions for protection of water rights; Disposal of coal processing waste, solid waste, and any excavated materials; Discharge structures for diversions and sediment control structures; Air pollution control measures associated with fugitive dust emissions; Protection of fish, wildlife, and related environmental values; Slide areas and other surface areas in general; Adverse effects upon or resulting from nearby underground coal mining activities; Reclamation, including proper topsoil handling procedures, revegetation, and abandonment; Conveyors, buildings, storage bins or stockpiles, water treatment facilities, water storage facilities, and any other related structure or system; Prime farmland. In situ processing activities shall be planned and conducted to minimize disturbance to the prevailing hydrologic balance by: Avoiding discharge of fluids into holes or wells, other than as approved by the Bureau; Injecting process recovery fluids only into geologic zones or intervals approved as production zones by the Bureau; Avoiding annular injection between the wall of the drill hole and the casing; and Preventing discharge of process fluid into surface waters. Each person who conducts in situ processing activities shall submit for approval as part of the application for a permit, a plan that ensures that all acid-forming, toxic-forming, or radioactive gases, solids, or liquids constituting a fire, health, safety, or environmental hazard, and caused by the mining and recovery process, are promptly treated, confined, or disposed of in a manner that prevents contamination of ground and surface waters, damage to fish, wildlife, and related environmental values, and threats to the public health and safety. Each person who conducts in situ processing activities shall prevent flow of the process recovery fluid: Horizontally beyond the affected area identified in the permit; and Vertically into overlying or underlying aquifers. Each person who conducts in situ processing activities shall restore the quality of affected ground water in the mine plan and adjacent area, including ground water above and below the production zone, to the approximate pre-mining levels or better, to ensure that the potential for use of the ground water is not diminished. Monitoring. Each person who conducts in situ processing activities shall monitor the quality and quantity of surface and ground water and the subsurface flow and storage characteristics, in a manner approved by the Bureau, to measure changes in the quantity and quality of water in surface and ground water systems in the mine plan and in adjacent areas. Air and water quality monitoring shall be conducted in accordance with monitoring programs approved by the Bureau as necessary according to appropriate federal and State air and water quality standards. Surface coal mining activities may not be conducted closer than 500 feet to any point of either an active or abandoned underground mine, except to the extent that: For active underground mines, including abandoned sections of active mines: The nature, timing, and sequence of the operations are jointly approved by the Mine Safety and Health Administration and the Bureau; and The activities result in improved resource recovery, abatement of water pollution, or elimination of hazards to the health and safety of the public; For abandoned underground mines: The nature, timing, and sequence of the operations are approved by the Bureau, and The activities result in improved resource recovery, abatement of water pollution, or elimination of hazards to the health and safety of the public. Surface mining activities shall be designed to protect disturbed areas, including spoil disposal sites, so as not to endanger any present or future operations of either surface or underground mining activities. Deep mine areas containing significant amounts of impounded water shall be bypassed in open-pit mining unless plans for water handling during and after mining are submitted with the application and demonstrate that there will be no adverse effects. Purpose and Scope. This regulation establishes certain minimum standards pertaining to the use of coal combustion byproducts in surface coal mining and reclamation operations and in abandoned coal mines. Coal combustion byproducts may not be used in surface coal mining and reclamation operations or in abandoned coal mines, except in accordance with this regulation. Compliance with this regulation does not relieve a person from the duty to comply with any other applicable federal, State, and local laws, regulations, and ordinances, including but not limited to the general requirements of COMAR 26.20. This regulation is in addition to the general requirements of COMAR 26.20. Definitions. In this regulation, the following terms have the meanings indicated. Terms Defined. “Alkaline coal combustion byproducts (ACCBs)” means coal combustion byproducts which, either naturally or by the addition of lime or other alkaline materials, exhibit a net neutralization potential of 5 tons per 1,000 tons CaCO3 equivalent or greater. Coal Combustion Byproducts. “Coal combustion byproducts” means the residue generated by or resulting from the burning of coal. “Coal combustion byproducts” includes fly ash, bottom ash, boiler slag, pozzolan, and other solid residuals removed by air pollution control devices from the flue gas and combustion chambers of coal burning furnaces and boilers, including flue gas desulfurization sludge and other solid residuals recovered from flue gas by wet or dry methods. “Department” means the Maryland Department of the Environment. “Pozzolan” has the meaning stated in Environment Article, §15-407, Annotated Code of Maryland. Conditions for Utilization. A person may utilize coal combustion byproducts at a permitted surface coal mining and reclamation operation or as part of an abandoned coal mine project only if: The coal combustion byproducts are: Not regulated under COMAR 26.13; and Alkaline coal combustion byproducts; The person proposing to utilize the ACCBs provides to the Bureau a certified laboratory analysis demonstrating that the coal combustion byproducts proposed to be utilized constitute ACCBs; and The utilization is approved by the Bureau in writing. Coal Combustion Byproducts Utilization Request. A person who proposes to utilize coal combustion byproducts in a surface coal mining and reclamation operation or in an abandoned coal mine project shall complete and submit to the Bureau a Coal Combustion Byproducts Utilization Request in the form provided by the Bureau for review and approval by the Bureau. In a surface coal mining and reclamation operation, the utilization request shall be submitted as part of the permit application and reclamation plan, or modification of an existing permit. The Bureau's review and approval of the utilization request shall be in accordance with the permit and reclamation plan review process. In an abandoned coal mine project, the utilization request shall be submitted to the Bureau before the proposed use and the Bureau shall approve, disapprove, or provide comments on the utilization request within 90 days of submission. The utilization request shall be signed and certified by a duly authorized official of the person proposing to utilize the coal combustion byproducts and shall include at a minimum the following information: Name, address, and contact information of the applicant; Surface coal mine operation permit number, if applicable; An estimate of coal tonnage produced, if applicable; Whether the request is a result of a haul-back agreement, and, if so, whether the agreement is proposed or finalized; A letter approving the utilization of the coal combustion byproducts from the landowner or landowners of the area where utilization is proposed; Name, address, and contact information of the source of the coal combustion byproducts; Type of facility that generated the coal combustion byproducts; Type of fuel burned to generate the coal combustion byproducts; Type of coal combustion byproduct (that is, bottom ash/slag, fly ash, fluidized bed combustion ash, desulfurization sludge, calcium spray dryer sludge, other); If combined coal combustion byproducts, a description of the types and relative percentages; A copy of a solids analysis of the coal combustion byproducts, performed within the last 60 days, which at a minimum provides analysis for the following: Aluminum; Arsenic; Barium; Boron; Cadmium; Chromium; Copper; Lead; Lithium; Manganese; Mercury; Molybdenum; Selenium; Silver; and Zinc; A copy of a Toxicity Characteristics Leaching Procedure (TCLP) leachate analysis, or other test approved by the Department, of the coal combustion byproducts, performed within the last 60 days, which at a minimum includes analysis for the following: Aluminum; Arsenic; Barium; Cadmium; Chromium; Copper; Lead; Manganese; Mercury; Selenium; Silver; and Zinc; A copy of an acid-base accounting analyses for the coal combustion byproducts and any materials to be used to increase the net neutralization potential of the coal combustion byproducts, providing the following: Neutralization potential in tons of CaCO3 equivalents per thousand tons of material; Maximum potential acidity in terms of tons per thousand tons of material; and Net neutralization potential in tons of CaCO3 equivalents per thousand tons of material; A copy of water quality analyses for the proposed coal combustion byproducts utilization area, performed within the last 60 days, which provides analysis for the following parameters: pH; Specific conductance; Total dissolved solids; Total suspended solids; Acidity; Alkalinity; Aluminum; Arsenic; Barium; Boron; Cadmium; Chromium; Copper; Iron; Lead; Lithium; Manganese; Mercury; Molybdenum; Selenium; Silver; Sulfate; and Zinc; The quantity of coal combustion byproducts to be utilized per month; A narrative description with map or maps, drawings, and cross-sections of the proposed handling plan, including at a minimum details on: Where the coal combustion byproducts will be placed; How the coal combustion byproducts will be placed; How instability in fills or backfills will be prevented; How the approximate original contour of the mine backfill configuration will be achieved; and How coal combustion byproducts that cannot be immediately utilized will be stored; A narrative description with drawings and cross-sections, if appropriate, explaining how dust from hauling, unloading, storage, and coal combustion byproducts placement operations will be controlled; A narrative description with drawings and cross-sections, if appropriate, explaining how contamination of surface and ground water will be prevented, and how surface and ground water will be monitored; A narrative description of the potential hazards to workers involved in the handling of the coal combustion byproducts, and the plan to protect them if warranted; A narrative description of the processes and procedures used or to be used to augment the net neutralization potential of the coal combustion byproducts, including a description of the type and quantity of any materials to be used to increase the net neutralization potential of the coal combustion byproducts; and Other information as the Bureau or Department requires. Permitted Utilization of Alkaline Coal Combustion Byproducts. Subject to the other provisions of this regulation, ACCBs may be used for the purpose of alkaline addition to neutralize potentially acid materials in and around coal mines or in surface coal mine reclamation as follows: A layer on the pit floor to reduce the acid producing potential of the coal pavement; Mixed with overburden material in the backfilling process to add alkalinity; Part of a Bureau designed or approved reclamation project; or Otherwise as approved by the Bureau. Testing and Monitoring. Before using ACCBs in a surface coal mining and reclamation operation or in an abandoned coal mine, and annually thereafter or on such other basis as the Bureau may require, a person using or proposing to use ACCBs shall: Submit to the Bureau a chemical analysis of the ACCB that includes a Toxicity Characteristic Leaching Procedure (TCLP), an acid-base accounting, and any other analysis required by the Bureau; and Submit to the Bureau a report of the number of tons of ACCBs placed or to be placed at a site each month. A utilization of coal combustion byproducts in a surface coal mining and reclamation operation or in an abandoned coal mine that is not in compliance with the provisions of this regulation as determined by the Department may be a disposal of a solid waste as determined by the Department and subject to all applicable laws and regulations governing the disposal of a solid waste, including applicable permit requirements of the Department. The Bureau or the Department may require additional controls or impose other conditions on the utilization of coal combustion byproducts under this regulation as it considers necessary for the protection of human health and the environment. Environment Article, §§1-404, 15-503, and 15-702, Annotated Code of Maryland Effective date: Regulations .01—.07 were previously codified as COMAR 08.13.09.28A—G, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.24 to COMAR 26.20.24, June 1996 Regulation .08 adopted effective December 1, 2008 (35:24 Md. R. 2080)