# Title 69 — Public Service Commission

## Article 69-05.2 — Surface Coal Mining and Reclamation Operations

## Chapter 69-05.2-01 — General Provisions

Construction
Information
Environmental Resources
Resources
Plans
Granted Under Permits
Coal Processing Waste
and Reclamation Operations

### § 69-05.2-01-01. Applicability of article.

This article applies to any person conducting surface coal mining operations; and to all surface coal
mining operations conducted after August 1, 1980, on lands from which the coal had not yet been
removed and to any other lands subject to North Dakota Century Code chapter 38-14.1 or this article.
1. This article does not apply to:
a. The extraction of coal by a landowner for the landowner's own noncommercial use from
land owned or leased by the landowner.
b. Coal removal for reclamation operations under North Dakota Century Code chapter
38-14.2.
c. Coal extraction as an incidental part of federal, state, or local government-financed
highway or other construction, except as provided by chapter 69-05.2-03.
d. Coal extraction of two hundred fifty tons [226.80 metric tons] or less under a coal
exploration permit issued by the office of the state geologist.
2. The commission may on its own initiative and will, within a reasonable time of a request from
any person who intends to conduct surface coal mining operations, make a written
determination whether the operation is exempt under this section. The commission will give
reasonable notice of the request to interested persons. Prior to the time a determination is
made, any person may submit, and the commission will consider, any relevant written
information. A person requesting that an operation be declared exempt has the burden of
establishing the exemption. If an exemption is reversed through subsequent administrative or
judicial action, any person who, in good faith, has made a complete and accurate request for
an exemption and relied upon the determination, may not be cited for violations which
occurred prior to the date of the reversal.
3. The commission may terminate its jurisdiction over the reclaimed site of a completed surface
coal mining and reclamation operation, or increment of an operation, when it has released
fully the related performance bond under the procedures of North Dakota Century Code
section 38-14.1-17 and chapter 69-05.2-12.
4. The commission will reassert jurisdiction over a site if the bond release referred to in
subsection 3 was based upon fraud, collusion, or misrepresentation of a material fact.
History: Effective August 1, 1980; amended effective May 1, 1990; January 1, 1993.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-02, 38-14.1-10, 38-14.1-37
### § 69-05.2-01-02. Definitions.

The definitions in North Dakota Century Code section 38-14.1-02 apply to this article and the
following terms have the specified meaning except where otherwise indicated:
1. "Adjacent area" means 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, alluvial valley floors, or other resources may be adversely impacted by surface
coal mining and reclamation operations.

2. "Affected area" means any land or water upon or in which surface coal mining and reclamation
operations are conducted or located.
3. "Agricultural activities" means, 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 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.
4. "Agricultural use" means the use of any tract of land for the production of animal or vegetable
life. The uses include the pasturing, grazing, and watering of livestock, and the cropping,
cultivation, and harvesting of plants.
5. "Aquifer" means a zone, stratum, or group of strata that can store and transmit water in
sufficient quantities for a specific use.
6. "Best technology currently available" means equipment or techniques which will:
a. Prevent, to the extent possible, additional contributions of suspended solids to
streamflow or runoff outside the permit area, but in no event result in contributions of
suspended solids in excess of requirements set by applicable state law.
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.
c. The term includes equipment or techniques which are currently available anywhere as
determined by the commission, even if they are not in routine use.
d. The term includes construction practices, siting requirements, vegetative selection and
planting requirements, animal stocking requirements, scheduling of activities, and
sedimentation pond design.
e. The commission has the discretion to determine the best technology currently available
on a case-by-case basis.
7. "Blaster" means a person directly responsible for the use of explosives in surface coal mining
operations who is certified under chapter 69-05.2-31.
8. "Cemetery" means any area of land where human bodies are interred.
9. "Coal mining operation" means, for purposes of restrictions on financial interests of
employees, 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.
10. "Coal preparation" means chemical or physical processing and the cleaning, concentrating, or
other processing or preparation of coal.
11. "Coal preparation plant" means a facility where coal is subjected to chemical or physical
processing or the 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, and coal processing
and other waste disposal areas.

12. "Coal processing waste" means earth materials which are wasted and separated from product
coal during cleaning, concentrating, or other processing or preparation of coal.
13. "Collateral bond" means an indemnity agreement in a sum certain payable to the state of
North Dakota executed by the permittee and which is supported by the deposit with the
commission of cash, negotiable bonds of the United States or of North Dakota, or negotiable
certificates of deposit of any bank authorized to do business in North Dakota, or an
irrevocable standby letter of credit issued by a federally insured or equivalently protected bank
authorized to do business in the United States, payable only to the commission upon
presentation.
14. "Combustible material" means organic material that is capable of burning, either by fire or
through a chemical process (oxidation), accompanied by the evolution of heat and a
significant temperature rise.
15. "Community or institutional building" means 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.
16. "Compaction" means 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.
17. "Complete inspection" means an onsite review of a permittee's or operator's compliance with
all permit conditions and requirements imposed under North Dakota Century Code
chapter 38-14.1 and this article, within the entire area disturbed or affected by surface coal
mining and reclamation operations and includes the collection of evidence with respect to
every violation of those conditions or requirements.
18. "Complete permit application" means an application for a surface coal mining and reclamation
operations permit, which contains all information required by North Dakota Century Code
chapter 38-14.1 and this article, to allow the commission to initiate the notice requirements of
North Dakota Century Code section 38-14.1-18 and a technical review for the purpose of
complying with the permit approval or denial standards of North Dakota Century Code section
19. "Cooperative soil survey" means a field or other investigation that locates, describes,
classifies, and interprets for use the soils in a given area. The survey must meet the national
cooperative soil survey standards and is the type of survey that is made for operational
conservation planning by the United States department of agriculture natural resource
conservation service in cooperation with agencies of the state and, in some cases, other
federal agencies. If the survey is not available and a permit applicant is required to have a
survey made, the map scale must be 1:20,000.
20. "Cropland" means 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.
21. "Cumulative impact area" means the surface and ground water systems which may be
affected until final bond release by:

a. The proposed operation and all existing surface coal mining and reclamation operations;
b. Any operations for which a permit application has been submitted to the regulatory
authority; and
c. All operations required to meet diligent development requirements for leased federal coal
for which there is actual mine development information available.
22. "Developed water resources" means, for land use purposes, land used for storing water for
beneficial uses such as stockponds, irrigation, wildlife habitat, fire protection, flood control,
and water supply.
23. "Direct financial interest" means 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 the employee's holding in or salary from
coal mining operations. Direct financial interests include employment, pensions, creditor, real
property, and other financial relationships.
24. "Disturbed area" means those areas that have been affected by surface coal mining and
reclamation operations. Areas are classified as "disturbed" until reclamation is complete and
the performance bond or other assurance of performance required by North Dakota Century
Code chapter 38-14.1 and this article is released.
25. "Diversion" means a channel, embankment, or other manmade structure constructed to divert
water from one area to another.
26. "Embankment" means 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.
27. "Emergency spillway" means the spillway designed to convey excess water through, over, or
around a dam.
28. "Employee" means, for purposes of restrictions on financial interests of employees: any
person employed by the commission as a state employee who performs any function or duty
under North Dakota Century Code chapter 38-14.1; advisory board, commission members, or
consultants who perform any decisionmaking functions for the commission under authority of
state law or regulations; and any other state employee who performs any decisionmaking
function or duty under a cooperative agreement with the commission. This definition does not
include: the public service commissioners, who file annually with the director of the office of
surface mining reclamation and enforcement, United States department of the interior; and
members of advisory boards or commissions established in accordance with state laws or
regulations to represent multiple interests, such as the North Dakota reclamation advisory
committee.
29. "Ephemeral stream" means 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.
30. "Essential hydrologic functions" means with respect to alluvial valley floors, the role of the
valley floor in collecting, storing, regulating, and making the natural flow of surface or ground
water, usefully available for agricultural activities, by reason of its position in the landscape
and the characteristics of its underlying material. A combination of those 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 the natural flow of surface water results
from the characteristic configuration of the channel floodplain and adjacent low terraces.
d. The role of the alluvial valley floor in regulating the natural flow of ground water results
from the properties of the aquifers which control inflow and outflow.
e. The role of the alluvial valley floor in making water usefully available for agricultural
activities results from the existence of floodplains 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 growth of agriculturally useful plants.
31. "Existing structure" means a structure or facility used in connection with or to facilitate surface
coal mining and reclamation operations for which construction began prior to August 1, 1980.
32. "Extraction of coal as an incidental part" means the extraction of coal which is necessary to
enable government-financed construction to be accomplished. 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 North Dakota Century Code chapter 38-14.1 and this article.
33. "Fish and wildlife habitat" means lands or waters used partially or wholly for the maintenance,
production, protection, or management of species of fish or wildlife.
34. "Flood irrigation" means, with respect to alluvial valley floors, supplying water to plants by
natural overflow, or the diversion of flows in which the surface of the soil is largely covered by
a sheet of water.
35. "Fragile lands" means geographic areas containing natural, ecologic, scientific, paleontologic,
or aesthetic resources that could be damaged or destroyed 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, state
and national natural landmark sites, areas where mining may cause flooding, environmental
corridors containing a concentration of ecologic and aesthetic features, areas of recreational
value due to high environmental quality, and buffer zones adjacent to the boundaries of areas
where surface coal mining operations are prohibited under North Dakota Century Code
section 38-14.1-07.
36. "Fugitive dust" means 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.
37. "Government financing agency" means 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.
38. "Government-financed construction" means construction funded fifty percent 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 other equivalent, or in-kind payments.
39. "Ground cover" means the area of ground covered by vegetation and the litter that is produced
naturally onsite, expressed as a percentage of the total area of measurement.
40. "Ground water" means subsurface water that fills available openings in rock or soil materials
to the extent that they are considered water-saturated.
41. "Half-shrub" means a perennial plant with a woody base whose annually produced stems die
back each year.
42. "Historic lands" means areas containing historic, cultural, or scientific resources. Examples
include archaeological sites, national historic landmarks, places listed on or eligible for listing
on the state historic sites registry or the national register of historic places, places having
religious or cultural significance to native Americans or religious groups or places for which
historic designation is pending.
43. "Historically used for cropland" means:
a. Lands that have been used for cropland for any five years or more out of the ten 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 five-years-in-ten 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 five out of the last ten years,
immediately preceding such acquisition but for the same fact of ownership or control of
the land unrelated to the productivity of the land.
44. "Hydrologic balance" means 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 quantity and quality relationships
among precipitation, runoff, evaporation, and changes in ground and surface water storage.
45. "Hydrologic regime" means 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.
46. "Impounding structure" means a dam, embankment, or other structure used to impound water,
slurry, or other liquid or semiliquid materials.

47. "Impoundment" means a closed basin, naturally formed or artificially built, which is dammed or
excavated for the retention of water, sediment, or waste.
48. "Indirect financial interest" means the same financial relationships as for direct ownership, but
where the employee reaps the benefits of such interests, including interests held by the
employee's 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.
49. "Industrial and commercial" means, for land use purposes, land used for:
a. 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 chemical manufacturing, petroleum refining, and
fabricated metal products manufacture. 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.
b. 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.
50. "Intermittent stream" means a stream or part of a stream that flows continuously for at least
one month of the calendar year as a result of ground water discharge or surface runoff.
51. "Irreparable damage to the environment" means any damage to the environment that cannot
be corrected by action of the permit applicant or the operator.
52. "Knowingly" means, with respect to individual civil penalties, that an individual knew or had
reason to know in authorizing, ordering, or carrying out an act or omission on the part of a
corporate permittee that the act or omission constituted a violation, failure, or refusal.
53. "Land use" means 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.
54. "Leachate" means a liquid that has percolated through soil, rock, or waste and has extracted
dissolved or suspended materials.
55. "Materially damage the quantity or quality of water" means, 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.
56. "Monitoring" means the collection of environmental data by either continuous or periodic
sampling methods.
57. "Mulch" means vegetation residues or other suitable materials that aid in soil stabilization and
soil moisture conservation, thus providing microclimatic conditions suitable for the germination
and growth of plants.

58. "Native grassland" means land on which the natural potential plant cover is principally
composed of native grasses, grasslike plants, forbs, and shrubs valuable for forage and is
used for grazing, browsing, or occasional hay production. Land used for facilities in support of
ranching operations which is adjacent to or an integral part of these operations is also
included.
59. "Natural hazard lands" means geographic areas in which natural conditions exist which pose
or, as a result of surface coal mining operations, may pose a threat to the health, safety, or
welfare of people, property, or the environment, including areas subject to landslides,
cave-ins, large or encroaching sand dunes, severe wind or soil erosion, frequent flooding,
avalanches, and areas of unstable geology.
60. "Noxious plants" means species as defined in North Dakota Century Code section 63-01.1-02
that have been included on the official state list of noxious weeds.
61. "Occupied dwelling" means any building that is currently being used on a regular or temporary
basis for human habitation.
62. "Operation plan" means a plan submitted by a permit applicant which sets forth a detailed
description of the surface coal mining operations proposed to be conducted during the term of
the permit within the proposed permit area.
63. "Outslope" means the face of the spoil or embankment sloping downward from the highest
elevation to the toe.
64. "Owned or controlled" and "owns or controls" mean any one or a combination of the
relationships specified in subdivisions a and b:
a. Being a permittee of a surface coal mining operation; based on instrument of ownership
or voting securities, owning of record in excess of fifty percent of an entity; or having any
other relationship which gives one person authority, directly or indirectly, to determine the
manner in which an applicant, operator, or other entity conducts surface coal mining
operations.
b. The following relationships are presumed to constitute ownership or control unless a
person can demonstrate that the person subject to the presumption does not in fact have
the authority, directly or indirectly, to determine the manner in which the relevant surface
coal mining operation is conducted:
(1) Being an officer or director of an entity;
(2) Being the operator of a surface coal mining operation;
(3) Having the ability to commit the financial or real property assets or working
resources of an entity;
(4) Being a general partner in a partnership;
(5) Based on the instruments of ownership or the voting securities of a corporate entity,
owning of record ten through fifty percent of the entity; or
(6) Owning or controlling coal to be mined by another person under a lease, sublease,
or other contract and having the right to receive the coal after mining or having
authority to determine the manner in which that person or another person conducts
a surface coal mining operation.

65. "Partial inspection" means an onsite review of a permittee's or operator's compliance with
some of the permit conditions and requirements imposed under North Dakota Century Code
chapter 38-14.1 and this article and includes the collection of evidence of any violation of
those conditions or requirements.
66. "Perennial stream" means 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.
67. "Performing any function or duty" means those decisions or actions which, if performed or not
performed by an employee, affect surface coal mining and reclamation operations under North
Dakota Century Code chapter 38-14.1.
68. "Permanent diversion" means a diversion remaining after surface coal mining and reclamation
operations which has been approved for retention by the commission and other appropriate
state agencies.
69. "Permanent impoundment" means an impoundment requested for retention as part of the
postmining land use by the surface owner and approved by the commission and, if required,
by other state and federal agencies.
70. "Person having an interest which is or may be adversely affected or person with a valid legal
interest" includes:
a. Any person who uses any resource of economic, recreational, aesthetic, or
environmental value that may be adversely affected by surface coal mining and
reclamation operations or any related action of the commission.
b. Any person whose property is or may be adversely affected by surface coal mining and
reclamation operations or any related action of the commission.
c. Any federal, state, or local governmental agency.
71. "Precipitation event" means 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. "Precipitation
event" also includes that quantity of water emanating from snow cover as snowmelt in a
limited period of time.
72. "Prime farmland" means those lands defined by the secretary of agriculture in 7 CFR 657 and
historically used for cropland. Prime farmlands are identified based on cooperative soil
surveys and soil mapping units designated as prime farmland by the natural resource
conservation service.
73. "Principal shareholder" means any person who is the record or beneficial owner of ten percent
or more of any class of voting stock.
74. "Principal spillway" means an ungated pipe conduit with minimum diameter of twelve inches
[30.48 centimeters] constructed for the purpose of conducting water through the embankment
back to streambed elevation without erosion.
75. "Probable cumulative impacts" means the expected total qualitative and quantitative, direct
and indirect effects of mining and reclamation activities on the hydrologic regime.
76. "Probable hydrologic consequence" means 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 and ground water; the surface or ground water flow, timing, and
pattern; the stream channel conditions; and the aquatic habitat on the permit area and
adjacent areas.

77. "Productivity" means the vegetative yield produced by a unit area for a unit of time.
78. "Prohibited financial interest" means any direct or indirect financial interest in any coal mining
operation.
79. "Public building" means any structure that is owned by a public agency or used principally for
public business, meetings, or other group gatherings.
80. "Public office" means a facility under the direction and control of a governmental entity which
is open to the public on a regular basis during reasonable business hours.
81. "Public park" means an area dedicated or designated by any federal, state, or local agency 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.
82. "Public road" means a public way for purposes of vehicular travel, including the entire area
within the right of way, all public ways acquired by prescription as provided by statute, and all
land located within two rods [10.06 meters] on each side of all section lines. This definition
does not include those public ways or section lines which have been vacated as permitted by
statute or abandoned as provided by statute.
83. "Qualified laboratory" means a designated public agency, private consulting firm, institution, or
analytical laboratory which can provide the required determination or statement under the
small operator assistance program.
84. "Recharge capacity" means the ability of the soils and underlying materials to allow
precipitation and runoff to infiltrate and reach the zone of saturation.
85. "Recreation" means, for land use purposes, 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.
86. "Recurrence interval" means the interval of time in which a precipitation event is expected to
occur once, on the average. For example, the ten-year, twenty-four-hour precipitation event
would be that twenty-four-hour precipitation event expected to occur on the average once in
ten years. Magnitude of such events are as defined by the national weather service technical
paper no. 40, Rainfall Frequency Atlas of the United States, May 1961, and subsequent
amendments or equivalent regional or rainfall probability information developed therefrom.
87. "Reference area" means 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.
88. "Refuse pile" means a surface deposit of coal mine waste that does not impound water, slurry,
or other liquid or semiliquid material.
89. "Renewable resource lands" means 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.
90. "Replacement of water supply" means, with respect to protected water supplies contaminated,
diminished, or interrupted by surface mining activities, providing a water supply on both a
temporary and permanent basis equivalent to premining quantity and quality. Replacement
includes providing an equivalent water delivery system and payment of operation and

maintenance costs in excess of customary and reasonable delivery costs for the premining
water supplies.
a. Upon agreement by the permittee and the water supply owner, the obligation to pay such
excess 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 this
approach is selected:
(1) Written concurrence must be obtained from the water supply owner; and
(2) When final bond release is requested for the tract of land that contained the premine
water supply, the newspaper notice and the letters sent to property owners and
governmental agencies pursuant to subsection 1 of North Dakota Century Code
section 38-14.1-17 must identify the approximate location of the premine water
supply and clearly state that the permittee does not intend to replace the water
delivery system.
Based on comments that are received on the final bond release application, the commission
will determine whether or not a replacement water delivery system is needed to protect the
public interest. If the commission determines that a replacement water delivery system is
needed, the permittee must install the water delivery system before final bond release will be
granted.
91. "Residential" means, for land use purposes, single-family 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.
92. "Return on investment" means the relation of net profit for the last yearly period to ending net
worth.
93. "Road" means a surface right of way used, constructed, reconstructed, improved, or
maintained for travel by land vehicles for use in surface coal mining and reclamation
operations. The term includes access and haul roads used in surface coal mining and
reclamation operations, including use by coal hauling vehicles to and from transfer,
processing, or storage areas. 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 does not include ramps and routes of travel within the immediate
mining area or within spoil or coal mine waste disposal areas.
94. "Safety factor" means the ratio of the available shear strength to the developed shear stress
on a potential surface of sliding, 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.
95. "Sedimentation pond" means a primary sediment control structure designed, constructed, and
maintained in accordance with this article 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.
96. "Shelterbelt" means a strip or belt of trees or shrubs planted by man in or adjacent to a field or
next to a farmstead, feedlot, or road. Shelterbelt is synonymous with windbreak.
97. "Significant, imminent environmental harm to land, air, or water resources" is determined as
follows:
a. An environmental harm is any adverse impact on land, air, or water resources, including,
but not limited to, plant and animal life.
b. An environmental harm is imminent if a condition, practice, or violation exists which is
causing such harm or may reasonably be expected to cause such harm at any time
before the end of the reasonable abatement time that would be set under North Dakota
Century Code section 38-14.1-28.
c. An environmental harm is significant if that harm is appreciable and not immediately
reparable.
98. "Significant recreational, economic, or other values incompatible with surface coal mining
operations" means 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
offsite areas which could be affected by mining. Those values to be evaluated for their
importance include:
a. Recreation, including hiking, boating, camping, skiing, or other related outdoor activities.
b. Agriculture, aquaculture, or production of other natural, processed, or manufactured
products which enter commerce.
c. Scenic, historic, archaeologic, aesthetic, fish, wildlife, plants, or cultural interests.
99. "Slope" means average inclination of a surface, measured from the horizontal. Normally
expressed as a unit of vertical distance to a given number of units of horizontal distance, e.g.,
1v to 5h = 20 percent = 11.3 degrees.
100. "Soil horizons" means contrasting layers of soil lying one below the other, parallel, or nearly
parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics
and laboratory data. The three major soil horizons are:
a. A horizon. The uppermost layer in the soil profile, often called the surface soil. It is the
part of the soil in which organic matter is most abundant and where leaching of soluble or
suspended particles is the greatest.
b. B horizon. The layer immediately beneath the A horizon. This middle layer commonly
contains more clay, iron, or aluminum than the A or C horizon.
c. C horizon. The deepest layer of the soil profile. It consists of loose material or weathered
rock that is relatively unaffected by biologic activity.
101. "Spoil" means overburden that has been disturbed during surface coal mining operations.
102. "Stabilize" means 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.

103. "Subirrigation" means, with respect to alluvial valley floors, the supplying of water to plants
from a semisaturated 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.
104. "Substantial legal and financial commitments in a surface coal mining operation" means
significant investments that have been made on the basis of a long-term coal contract in
power plants, railroads, coal handling, preparation, extraction or storage facilities, and other
capital-intensive activities.
105. "Successor in interest" means any person who succeeds to rights granted under a permit, by
transfer, assignment, or sale of those rights.
106. "Surety bond" means an indemnity agreement in a sum certain payable to the state of North
Dakota executed by the permittee or permit applicant which is supported by the performance
guarantee of a corporate surety licensed to do business in the state of North Dakota.
107. "Surface coal mining operations which exist on the date of enactment" means all surface coal
mining operations which were being conducted on July 1, 1979.
108. "Surface mining activities" means 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, or by recovery of coal from a deposit that is not in its original
geologic location.
109. "Suspended solids" means organic or inorganic materials carried or held in suspension in
water that will remain on a forty-five hundredths micron filter.
110. "Tame pastureland" means land used for the long-term production of predominantly adapted,
domesticated species of forage plants to be grazed by livestock or occasionally cut and cured
for livestock feed. Land used for facilities in support of pastureland which is adjacent to or an
integral part of these operations is also included.
111. "Temporary diversion" means a diversion of a stream or overland flow which is used during
surface coal mining and reclamation operations and not approved by the commission to
remain after reclamation as part of the approved postmining land use.
112. "Temporary impoundment" means an impoundment used during surface coal mining and
reclamation operations, but not approved by the commission to remain as part of the
postmining land use.
113. "Ton" means two thousand pounds avoirdupois [0.90718 metric ton].
114. "Toxic mine drainage" means 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.
115. "Toxic-forming materials" means 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.
116. "Transfer, assignment, or sale of rights" means a change in ownership or other effective
control over the right to conduct surface coal mining operations under a permit issued by the
commission.
117. "Unconsolidated streamlaid deposits holding streams" means, with respect to alluvial valley
floors, all floodplains and terraces located in the lower portions of topographic valleys which
contain perennial or other streams with channels that are greater than three feet [0.91 meter]
in bankfull width and greater than six inches [15.24 centimeters] in bankfull depth.
118. "Undeveloped rangeland" means, for purposes of alluvial valley floors, lands generally used
for livestock grazing where such use is not specifically controlled and managed.
119. "Upland areas" means, 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.
120. "Valid existing rights" means a set of circumstances under which a person, subject to
commission approval, may conduct surface coal mining operations on lands where North
Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 would otherwise
prohibit such operations. Possession of valid existing rights confers an exception from these
prohibitions. A person seeking to exercise valid existing rights must comply with all other
pertinent requirements of North Dakota Century Code chapter 38-14.1 and this article.
a. Property rights demonstration. Except as provided in subdivision c, 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 North Dakota Century Code section
govern interpretation of documents relied upon to establish property rights, unless federal
law provides otherwise. 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. Except as provided in subdivision c, a person claiming valid existing rights must also
demonstrate compliance with one of the following standards:
(1) All permits or good-faith standard. All permits and other authorizations required to
conduct surface coal mining operations had been obtained or a good-faith effort to
obtain all necessary permits and authorizations had been made, before the land
came under the protection of North Dakota Century Code section 38-14.1-07 and
section 69-05.2-04-01.1. At a minimum, an application must have been submitted
for the permit required under this article.
(2) 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 had been obtained or a

good-faith attempt to obtain all permits and authorizations had been made, before
the land came under the protection of North Dakota Century Code section
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 North Dakota Century Code section 38-14.1-07 and section
### § 69-05.2-04-01.1. Except for operations in existence before August 3, 1977, or for

which a good-faith effort to obtain all necessary permits had been made before
August 3, 1977, this standard does not apply to lands already under the protection
of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1
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:
(a) 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
North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1
depend upon use of that land for surface coal mining operations.
(b) The extent to which plans used to obtain financing for the operation before the
land came under the protection of North Dakota Century Code section
coal mining operations.
(c) The extent to which investments in the operation before the land came under
the protection of North Dakota Century Code section 38-14.1-07 and section
(d) Whether the land lies within the area identified on the life-of-mine map
submitted under chapter 69-05.2-07 before the land came under the protection
of North Dakota Century Code section 38-14.1-07 and section
69-05.2-04-01.1.
c. Roads. A person who claims valid existing rights to use or construct a road across the
surface of lands protected by North Dakota Century Code section 38-14.1-07 and section
if the road is included within the definition of "surface coal mining operations" in
subsection 33 of North Dakota Century Code section 38-14.1-02:
(1) The road existed when the land upon which it is located came under the protection
of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 and
the person has a legal right to use the road for surface coal mining operations.
(2) A properly recorded right of way or easement for a road in that location existed
when the land came under the protection of North Dakota Century Code section
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.
(3) 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 North Dakota
Century Code section 38-14.1-07 and section 69-05.2-04-01.1.
(4) Valid existing rights exist under subdivisions a and b.

121. "Viable economic unit" means, with respect to prime farmland, any tract of land identified as
prime farmland by the state conservationist of the natural resource conservation service that
has been historically used for cropland.
122. "Violation, failure, or refusal" means, with respect to individual civil penalties:
a. A violation of a condition of a permit issued by the commission; or
b. A failure or refusal to comply with any order issued under North Dakota Century Code
section 38-14.1-28, or any order incorporated in a final decision issued by the
commission under North Dakota Century Code chapter 38-14.1, except an order
incorporated in a decision issued under subsection 1 of North Dakota Century Code
section 38-14.1-29.
123. "Violation notice" means any written notification from a governmental entity of a violation of
law, whether by letter, memorandum, legal or administrative pleading, or other written
communication.
124. "Water table" means the upper surface of a zone of saturation, where the body of ground
water is not confined by an overlying impermeable zone.
125. "Willful violation" means an act or omission which violates North Dakota Century Code chapter
38-14.1, this article, or individual permit conditions committed by a person who intends the
result which actually occurs.
126. "Willfully" means, with respect to individual civil penalties, that an individual acted:
a. Either intentionally, voluntarily, or consciously; and
b. With intentional disregard or plain indifference to legal requirements in authorizing,
ordering, or carrying out a corporate permittee's action or omission that constituted a
violation, failure, or refusal.
127. "Woodland" means land where the primary premining natural vegetation is trees or shrubs.
128. "Woody plants" means trees, shrubs, half-shrubs, and woody vines.
History: Effective August 1, 1980; amended effective June 1, 1983; April 1, 1985; June 1, 1986;
January 1, 1987; May 1, 1990; May 1, 1992; June 1, 1997; May 1, 1999; March 1, 2004.
General Authority: NDCC 38-14.1-03, 38-14.1-38
Law Implemented: NDCC 38-14.1-02, 38-14.1-03, 38-14.1-21, 38-14.1-38
### § 69-05.2-01-03. Promulgation of rules - Notice - Hearing.

1. The commission may propose new rules under this article or propose amendments or
repealers of any rule under this article and will hold a public hearing in accordance with the
procedures of this section.
2. Any person or governmental agency may petition the commission to adopt, amend, or repeal
any rule under this article. Upon receipt of the petition, the commission will determine if the
petition provides a reasonable basis for proposing the issuance, amendment, or repeal of a
rule.
3. If the petition has a reasonable basis, the commission will propose the rule, amendment, or
repealer and hold a public hearing on the proposal.
4. The commission will issue a notice of the public hearing which will:

a. Furnish a brief explanation of the purpose of the proposed rule.
b. Specify a location where the text of the proposed rule may be reviewed.
c. Advise all interested persons of the opportunity to submit written comments and to
appear and testify at the hearing to offer oral testimony.
d. Provide the address to which written comments may be sent.
e. Specify the date, time, and place of the hearing.
5. The commission will publish notice of hearing in newspapers and provide a copy of the
proposed rules and notice to the legislative council as required by subsection 4 of North
Dakota Century Code section 28-32-02.
6. The public comment period on the proposed adoption, amendment, or repeal of any rule
under this article will close at the end of the public hearing, unless extended by the
commission.
7. The commission will consider all written comments and oral testimony received before
adoption, amendment, or repeal of any rule under this article and make a written record of its
consideration.
History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 1992; May 1,
1999; May 1, 2001.
General Authority: NDCC 28-32-02, 38-14.1-03
Law Implemented: NDCC 28-32-02, 38-14.1-34, 38-14.1-41
### § 69-05.2-01-04. Notice of citizen suits.

1. A person who intends to initiate a civil action on one's own behalf under North Dakota Century
Code section 38-14.1-40 shall give notice of intent to do so.
2. Notice shall be given by certified mail to the commission.
3. Notice shall be given by certified mail to the alleged violator, if the complaint alleges a violation
of North Dakota Century Code chapter 38-14.1, this article, a permit condition, or any
commission order.
4. Service of notice is complete upon mailing to the last-known address of the person being
notified.
5. A person giving notice regarding an alleged violation shall state, to the extent known:
a. Sufficient information to identify the provision of North Dakota Century Code chapter
38-14.1, this article, a permit or order allegedly violated.
b. The act or omission alleged to constitute a violation.
c. The name, address, and telephone numbers of the person or persons responsible for the
alleged violation.
d. The date, time, and location of the alleged violation.
e. The name, address, and telephone number of the person giving notice.
f. The name, address, and telephone number of legal counsel, if any, of the person giving
notice.

6. A person giving notice of an alleged failure by the commission to perform a mandatory act or
duty under North Dakota Century Code chapter 38-14.1 or this article shall state, to the extent
known:
a. The provision containing the mandatory act or duty allegedly not performed.
b. Sufficient information to identify the omission alleged to constitute the failure to perform a
mandatory act or duty.
c. The name, address, and telephone number of the person giving notice.
d. The name, address, and telephone number of legal counsel, if any, of the person giving
notice.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-40
### § 69-05.2-01-05. Computation of time.

1. Except as otherwise provided, computation of time is based on calendar days.
2. In computing any period of prescribed time, the beginning day is not included. The last day is
included unless it is a Saturday, Sunday, or legal holiday on which the commission is not open
for business, in which event the period runs until the end of the next day which is not a
Saturday, Sunday, or legal holiday.
3. Intermediate Saturdays, Sundays, and legal holidays are excluded from the computation when
the period is seven days or less.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-03
### § 69-05.2-01-06. Intervention.

1. Any person, including any department, agency, or instrumentality of the state, local, or federal
government, may petition to intervene at any stage of a proceeding conducted under North
Dakota Century Code chapter 38-14.1 or this article.
2. The petitioner shall incorporate a statement setting forth the interest of the petitioner and,
where required, a showing of why the interest is or may be adversely affected.
3. The commission will grant intervention where the petitioner:
a. Had a statutory right to initiate the proceeding in which the petitioner wishes to intervene;
or
b. Has an interest which is or may be adversely affected by the outcome of the proceeding.
4. If neither subdivision a nor subdivision b of subsection 3 apply, the commission will consider
the following in determining whether intervention is appropriate:
a. The nature of the issues;
b. The adequacy of representation of petitioner's interest which is provided by the existing
parties to the proceeding;
c. The petitioner's ability to present relevant evidence and argument; and

d. The effect of intervention on the commission's implementation of its statutory mandate.
5. Any person, including any department, agency, or instrumentality of the state, local, or federal
government, granted intervention in a proceeding may participate as a full party. If an
intervenor wishes to participate in a limited capacity, the extent and terms of the participation
will be in the discretion of the commission.
History: Effective June 1, 1983; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-03
### § 69-05.2-01-07. Petitions for award of costs and expenses - Answer - Awards - Judicial

review.
1. Any person may file a petition for an award of costs and expenses, including attorneys' fees,
reasonably incurred as a result of participation in any administrative proceeding under North
Dakota Century Code chapter 38-14.1 or this article, which results in a final order being issued
by the commission.
2. The petition must be filed within forty-five days after receipt of the order. Failure to timely file
may constitute a waiver of the right to an award.
3. The petition must include the name of the person from whom costs and expenses are sought,
and:
a. An affidavit setting forth in detail all costs and expenses, including attorneys' fees,
reasonably incurred for, or in connection with, participation in the proceeding;
b. Receipts or other evidence of those costs and expenses; and
c. Where attorneys' fees are claimed, evidence concerning the hours expended, the
customary commercial rate for similar services in the area, and the experience,
reputation, and ability of the individuals performing the services.
4. Any person served with a copy of the petition has thirty days from service to file an answer.
5. Appropriate costs and expenses, including attorneys' fees, may be awarded:
a. To any person from the permittee if the person initiates administrative proceedings
reviewing enforcement actions, upon a finding that a violation of North Dakota Century
Code chapter 38-14.1, this article, or the permit occurred, or that an imminent hazard
existed, or to any person who participates in an enforcement proceeding where such a
finding is made if the commission determines that the person made a substantial
contribution to the full and fair determination of the issues.
b. To any person, other than a permittee or the permittee's representative, from the
commission if the person initiates or participates in any proceeding under North Dakota
Century Code chapter 38-14.1 or this article upon a finding that the person made a
substantial contribution to a full and fair determination of the issues.
c. To a permittee from the commission when the permittee demonstrates that the
commission or its authorized representative issued a cessation order, a notice of
violation, or an order to show cause why a permit should not be suspended or revoked,
in bad faith and to harass or embarrass the permittee.

d. To a permittee from any person where the permittee demonstrates that the person
initiated a proceeding under North Dakota Century Code section 38-14.1-30 or
participated in the proceeding in bad faith to harass or embarrass the permittee.
e. To the commission where it demonstrates that any person applied for review pursuant to
North Dakota Century Code section 38-14.1-30 or that any person participated in the
proceeding in bad faith and to harass or embarrass the government.
6. An award under this section may include:
a. All costs and expenses, including attorneys' fees and expert witness fees, reasonably
incurred as a result of initiation or participation in a proceeding under North Dakota
Century Code chapter 38-14.1 or this article; and
b. All costs and expenses, including attorneys' fees and expert witness fees, reasonably
incurred in seeking the award.
7. Any person aggrieved by a decision on the award of costs and expenses in an administrative
proceeding may seek review of the decision under North Dakota Century Code section
38-14.1-35.
History: Effective June 1, 1983; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-35, 38-14.1-36
