# Title 38 — Mining and Gas and Oil Production

## Chapter 38-14.1 — Surface Mining and Reclamation Operations

### § 38-14.1-01. Declaration of findings and intent.

The legislative assembly finds and declares that:
1. Many surface coal mining operations may result in disturbances of surface areas that
adversely affect the public welfare by diminishing the utility of land for commercial,
industrial, residential, cultural, educational, scientific, recreational, agricultural, and
forestry purposes, by causing erosion, by polluting the water, by destroying fish and
wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by
creating hazards dangerous to life and property, by degrading the quality of life in local
communities, and by counteracting governmental programs and efforts to conserve
soil, water, other natural resources, and cultural resources.
2. The expansion of coal mining to meet the nation's energy needs makes even more
urgent the establishment of appropriate standards to minimize damage to the
environment and to productivity of the soil and to protect the health and safety of the
public.
3. Surface mining and reclamation technology as now developed requires effective and
reasonable regulation of surface coal mining operations in accordance with the
requirements of this chapter to minimize so far as practicable the adverse social,
economic, and environmental effects of such mining operations.
4. Surface coal mining operations contribute to the economic well-being, security, and
general welfare of the state and should be conducted in an environmentally sound
manner.
5. Surface coal mining and reclamation operations should be so conducted as to aid in
maintaining and improving the tax base, to provide for the conservation, development,
management, and appropriate use of all the natural resources of affected areas for
compatible multiple purposes, and to ensure the restoration of affected lands
designated for agricultural purposes to the level of productivity equal to or greater than
that which existed in the permit area prior to mining.
6. Warrantless inspections are necessary in this state to ensure effective enforcement of
surface coal mining and reclamation operation requirements.
### § 38-14.1-02. Definitions.

Wherever used or referred to in this chapter, unless a different meaning clearly appears
from the context:
1. "Alluvial valley floors" means the unconsolidated stream-laid deposits holding streams
where water availability is 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 sediment from sheet erosion, deposits
by unconcentrated runoff or slope wash, together with talus, other mass movement
accumulation, and windblown deposits.
2. "Approximate original contour" means that surface configuration achieved by
backfilling and grading an area affected by surface coal mining operations so that the
reclaimed area closely resembles the general surface configuration of the land prior to
being affected by surface coal mining operations and blends into and complements the
surrounding undisturbed land.
3. "Coal" means a dark-colored compact and earthy organic rock with less than forty
percent inorganic components, based on dry material, formed by the accumulation and
decomposition of plant material. The term includes consolidated lignitic coal, in both
oxidized and nonoxidized forms, having less than eight thousand three hundred British
thermal units per pound [453.59 grams], moist and mineral matter free, whether or not
the material is enriched in radioactive materials. The term does not include commercial
leonardite.

4. "Commercial leonardite" means a dark-colored, soft, earthy organic rock formed from
the oxidation of lignite coal, and is produced from a mine that has as its only function
for supply for purposes other than gasification or combustion to generate electricity.
5. "Commission" means the public service commission, or such other department,
bureau, or commission as may lawfully succeed to the powers and duties of that
commission. The commission is the state regulatory authority for all purposes relating
to the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat.
445; 30 U.S.C. 1201 et seq.].
6. "Extended mining plan" means a written statement setting forth the matters specified
in section 38-14.1-15 and covering the estimated life of the surface coal mining
operation.
7. "Final cut" means the last pit created in a surface mining pit sequence.
8. "Highwall" and "endwall" mean those sides of the pit adjacent to unmined land.
9. "Imminent danger to the health and safety of the public" means the existence of any
condition or practice, or any violation of a permit or other requirement of this chapter 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 conditions or practices giving rise to the peril, would not
expose the person's self to the danger during the time necessary for abatement.
10. "Operator" means any individual, person, partnership, firm, association, society, joint
stock company, company, cooperative, corporation, limited liability company, or other
business organization, or any department, agency, or instrumentality of the state, local,
or federal government, or any governmental subdivision thereof including any publicly
owned utility or publicly owned corporation of the state, local, or federal government,
engaged in or controlling a surface coal mining operation. Operator does not include
those who remove or intend to remove two hundred fifty tons [226.80 metric tons] or
less of coal or commercial leonardite from the earth by coal or commercial leonardite
mining within twelve consecutive calendar months in any one location or who remove
any coal or commercial leonardite pursuant to reclamation operations under chapter
38-14.2.
11. "Other minerals" means clay, stone, sand, gravel, metalliferous and nonmetalliferous
ores, and any other solid material or substances of commercial value occurring within
five hundred feet [152.4 meters] or less of the land surface and which are excavated in
solid form from natural deposits on or in the earth, exclusive of coal or commercial
leonardite and those minerals which occur naturally in liquid or gaseous form.
12. "Other suitable strata" means those portions of the overburden determined by the
commission to be suitable for meeting the requirements of subsections 2 and 17 of
section 38-14.1-24 and based on data submitted by the permit applicant.
13. "Overburden" means all of the earth and other materials, with the exception of suitable
plant growth material, which lie above natural deposits of coal or commercial
leonardite and also means such earth and other materials, with the exception of
suitable plant growth material, disturbed from their natural state by surface coal or
commercial leonardite mining operations.
14. "Performance bond" means a surety bond, collateral bond, self-bond, deposit, a bond
issued under the state surface mining and reclamation bond fund, any alternative form
of security approved by the commission, or combination thereof, by which a permittee
assures faithful performance of all requirements of this chapter.
15. "Permit" means a permit to conduct surface coal mining and reclamation operations
issued by the commission.
16. "Permit applicant" means a person or operator applying for a permit.
17. "Permit area" means the area of land approved by the commission for surface coal
mining operations which shall be readily identifiable by appropriate markers on the
site.

18. "Permit renewal" means the extension of the permit term for areas within the
boundaries of the initial or existing permit, upon the expiration of the initial or existing
permit term.
19. "Permit revision" means the modification of permit provisions during the term of the
permit and includes changes in the mining and reclamation plans, incidental boundary
extensions, and the transfer, assignment, or sale of rights granted under the permit.
20. "Permit term" means a period of time beginning with the date upon which a permit is
given for surface coal mining and reclamation operations under the provisions of this
chapter, and ending with the expiration of the next succeeding five years plus any
renewal of the permit granted under this chapter.
21. "Permittee" means a person or operator holding a permit.
22. "Person" means an individual, partnership, firm, association, society, joint stock
company, company, cooperative, corporation, limited liability company, or other
business organization.
23. "Pit" means a tract of land, from which overburden, coal, or commercial leonardite, or
any combination of overburden, coal, or commercial leonardite has been or is being
removed for the purpose of surface coal mining operations.
24. "Prime farmland" means lands as prescribed by commission regulation that have the
soil characteristics and moisture supply needed to produce sustained high yields of
adapted crops economically when treated and managed, including management of
water, according to modern farming methods. Furthermore, such lands historically
have been used for intensive agricultural purposes and are large enough in size to
constitute a viable economic unit.
25. "Prime soils" means those soils that have the required soil characteristics (including
slope and moisture supply) needed to produce sustained high yields of adapted crops,
as determined by the state conservationist of the United States department of
agriculture soil conservation service.
26. "Reclaimed" or "reclaim" means conditioning areas affected by surface coal mining
operations to make them capable of supporting the uses which they were capable of
supporting prior to any mining, or higher or better uses, pursuant to subsection 2 of
section 38-14.1-24.
27. "Reclamation plan" means a plan submitted by an applicant for a permit which sets
forth a plan for reclamation of the proposed surface coal mining operations pursuant to
subsection 2 of section 38-14.1-14.
28. "Refuse" means all waste material directly connected with the production of coal or
commercial leonardite mined by surface coal mining operations.
29. "Soil amendments" means those materials added by the operator to the replaced
overburden or suitable plant growth material, or both, to improve the physical or
chemical condition of the soil in its relation to plant growth capability.
30. "Soil classifier" means a professional soil classifier as defined in subsection 4 of
section 43-36-01.
31. "Soil survey" means the identification and location of all suitable plant growth material
within the proposed permit area and an accompanying report that describes, classifies,
and interprets for use such materials.
32. "State program" means the program established by the state of North Dakota in
accordance with the requirements of section 503 of the federal Surface Mining Control
and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 470; 30 U.S.C. 1253] to regulate
surface coal mining and reclamation operations on lands within the state of North
Dakota.
33. "Suitable plant growth material" means that soil material (normally the A, B, and
portions of the C horizons) located within the proposed permit area which, based upon
a soil survey, is found by the commission to be the most acceptable as a medium for
plant growth when respread on the surface of regraded areas.
34. "Surface coal mining and reclamation operations" means surface coal mining
operations and all activities necessary and incidental to the reclamation of such
operations after July 1, 1979.

35. "Surface coal mining operations" means:
a. Activities affecting the surface of lands in connection with a surface coal or
commercial leonardite mine. Such activities include extraction of coal or
commercial leonardite from coal or commercial leonardite refuse piles, excavation
for the purpose of obtaining coal or commercial leonardite, including such
common methods as contour, strip, auger, box cut, open pit, and area mining, the
uses of explosives and blasting, and in situ distillation or retorting, leaching or
other chemical or physical processing, and the cleaning, concentrating, or other
processing or preparation, and loading of coal or commercial leonardite at or near
the minesite, except that such activities do not include coal or commercial
leonardite exploration subject to chapter 38-12.1, or the extraction of coal or
commercial leonardite incidental to reclamation operations under chapter
38-14.2; and
b. The areas upon which such activities 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 adjacent lands affected by the
construction of new roads or the improvement or use of existing roads to gain
access to the site of such activities and for haulage, and excavations, workings,
impoundments, dams, 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 sited
structures, facilities, or other property or materials on the surface, resulting from
or incident to such activities.
36. "Unwarranted failure to comply" means the failure of a permittee to prevent the
occurrence of any violation of the permittee's permit or any requirement of this chapter
due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate
any violation of such permit or this chapter due to indifference, lack of diligence, or lack
of reasonable care.
### § 38-14.1-03. Powers and duties of the commission.

The commission shall have and may exercise the following powers and duties:
1. To establish a program to protect society and the environment from the adverse effects
of surface coal mining operations.
2. To assure that surface coal mining operations are so conducted as to protect the
environment.
3. To assure that adequate procedures are undertaken to reclaim surface areas as
contemporaneously as possible with the surface coal mining operations.
4. To assure that surface coal mining operations are not conducted where reclamation as
required by this chapter is not feasible.
5. To assure that appropriate procedures are provided for public participation in the
development, revision, and enforcement of regulations, standards, reclamation plans,
or programs established by the commission under this chapter.
6. To encourage the voluntary cooperation of persons or affected groups to achieve the
purposes of this chapter.
7. To encourage and support training, research, experiments, and demonstrations, to
utilize the expertise of other state agencies, and to collect and disseminate information
relating to surface mining and reclamation of lands and waters affected by surface
mining.
8. To examine and act upon all plans and specifications submitted by the permit applicant
for the method of operation, backfilling, grading, and for the reclamation of the area of
land affected by the permit applicant's operation.
9. To attach conditions to all permits and permit revisions as necessary to carry out the
provisions of this chapter.
10. To issue permits for surface coal mining operations in accordance with the
requirements of this chapter and the Surface Mining Control and Reclamation Act of
1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.].

11. To promulgate such regulations as may be necessary to carry out the purposes and
provisions of this chapter and the Surface Mining Control and Reclamation Act of 1977
[Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.].
12. To adopt rules consistent with state law in consultation with the state geologist,
department of environmental quality, and department of water resources for the
protection of the quality and quantity of waters affected by surface coal mining
operations.
13. To promulgate regulations requiring the training, examination, and certification of
persons engaged in or directly responsible for blasting or use of explosives in surface
coal mining and reclamation operations.
14. To exercise general supervision and administration and enforcement of this chapter
and all regulations and orders promulgated thereunder and all incidental powers
necessary to carry out the purposes of this chapter, including the utilization of the
powers of other state agencies by delegation to those other state agencies, by
cooperative agreement or regulation, certain responsibilities to avoid duplication of
effort, to promote the efficient use of personnel, and to assure effective reclamation of
surface mined lands in the state of North Dakota.
15. To make investigations and inspections which may be deemed necessary to ensure
compliance with any provision of this chapter. The commission or its authorized
representatives, upon presentation of appropriate credentials, shall have the right of
entry without a warrant for the purposes of such investigations or inspections.
16. To issue such orders as may be necessary to effectuate the purposes of this chapter
and enforce the same by all appropriate administrative and judicial procedures.
17. To hold any hearings and informal conferences necessary for the proper administration
of this chapter.
18. To reclaim, in keeping with this chapter, any land with respect to which a performance
bond has been forfeited.
19. To exercise those additional powers and duties relative to the designation of lands
unsuitable for surface coal mining operations granted in section 38-14.1-04.
20. To take all action necessary and appropriate including the promulgation of regulations
for all provisions of this chapter to secure for this state the benefits of and to
implement the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87;
91 Stat. 445; 30 U.S.C. 1201 et seq.] and similar federal acts.
21. To advise, consult, and cooperate with other agencies of the state, other states and
interstate agencies, and with affected groups, political subdivisions, and industries in
furtherance of the purposes of this chapter.
22. To accept and administer loans and grants from the federal government and from
other sources, public or private, for carrying out any functions pursuant to this chapter,
which loans and grants may not be expended for other than the purposes for which
provided.
23. To provide by regulation standards and procedures for specific variances to any
permittee so long as the permittee affirmatively demonstrates that the requested
variance provides equal or greater protection to the environment and to public health
and safety and will achieve reclamation consistent with the purposes of this chapter.
24. To provide by regulation for the conservation and utilization of other minerals found
within the permit area during surface coal mining and reclamation operations in
consultation with the state geologist and to approve plans for the use of such other
minerals outside the permit area so long as the permittee affirmatively demonstrates
that such removal is lawful and will provide equal or greater protection to the
environment and to public health and safety and will achieve reclamation consistent
with the purposes of this chapter.
25. To exercise the full reach of the state constitutional powers wherever necessary to
ensure the protection of the public interest through effective control of surface coal
mining operations.
26. To establish a performance bonding system and an alternative to the performance
bonding system which achieve the objectives and purposes of this chapter.

### § 38-14.1-04. Powers and duties of the commission relative to designation of lands

unsuitable for surface coal mining operations.
The commission has the following powers and duties:
1. To be responsible for surface coal mining lands review.
2. To develop a database and an inventory system which will permit proper evaluation of
the capacity of different land areas of the state to support and permit reclamation of
surface coal mining operations.
3. To develop a method or methods for implementing land use planning decisions
concerning surface coal mining operations.
4. To develop procedures ensuring proper notice, opportunities for public participation,
including a public hearing prior to making a designation or redesignation, pursuant to
this chapter.
5. To develop procedures whereby determinations of the unsuitability of land for surface
coal mining, as provided for in this chapter, are integrated as closely as possible with
land use planning and regulation processes at the state and local levels.
6. To develop a planning process in order to designate which, if any, land areas are
unsuitable for all or certain types of surface coal mining operations, providing said
decisions are based upon competent and scientifically sound data and information and
accomplished pursuant to the procedures of sections 38-14.1-05 and 38-14.1-06.
### § 38-14.1-04.1. Reclamation research advisory committee.

Repealed by S.L. 1997, ch. 321, § 1.
### § 38-14.1-04.2. Advisory committee responsibilities.

Repealed by S.L. 1997, ch. 321, § 1.
### § 38-14.1-04.3. Reclamation research objectives.

Repealed by S.L. 1997, ch. 321, § 1.
### § 38-14.1-05. Areas unsuitable for all or certain surface coal mining operations.

1. Upon petition pursuant to section 38-14.1-06, the commission shall designate an area
as unsuitable for all or certain types of surface coal mining operations if the
commission determines, after hearings conducted in accordance with this chapter, that
reclamation pursuant to the requirements of this chapter is not technologically and
economically feasible.
2. Upon petition pursuant to section 38-14.1-06, and after hearings conducted in
accordance with this chapter, the commission may designate an area as unsuitable for
certain types of surface coal mining operations if such operations will:
a. Be incompatible with existing state or local land use plans or programs;
b. Affect fragile or historic lands in which such operations could result in significant
damage to important historic, cultural, scientific, and aesthetic values and natural
systems;
c. Affect renewable resource lands in which such operations could result in a
substantial loss or reduction of productivity of long-range water supply or food or
fiber products, and such lands include aquifers and aquifer recharge areas; or
d. Affect natural hazard lands in which such operations could substantially endanger
life and property, and such lands include areas subject to frequent flooding and
areas of unstable geology.
3. Prior to designating any land area as unsuitable for surface coal mining operations, the
commission shall prepare a detailed statement on:
a. The potential coal or commercial leonardite resources of the area;
b. The demand for coal or commercial leonardite resources; and
c. The impact of such designation on the environment, the economy, and the supply
of coal or commercial leonardite.

### § 38-14.1-06. Right to petition - Notice and hearing - Right to intervene.

1. Any person having an interest which is or may be adversely affected, including state
agencies other than the commission, has the right to petition the commission to hold a
hearing for the purpose of having an area designated as unsuitable for surface coal
mining operations, or to have such designation terminated. Such petition must contain
allegations of facts with supporting evidence which would tend to establish the
allegations.
2. Prior to designating an area as unsuitable for surface coal mining operations and
within ten months after receipt of a complete petition pursuant to subsection 1, the
commission shall hold a public hearing in the locality of the affected area.
3. Notice of the hearing must be published in the official newspaper of each county
wherein the affected area lies and in other daily newspapers of general circulation in
the locality of the affected area at least once a week for four successive weeks prior to
the hearing. The names and post-office addresses of surface and subsurface mineral
rights owners must be determined as specified by the commission from the records of
the county recorder in each affected county. Notice of the hearing must be sent by
certified mail to the owners of surface rights and subsurface mineral rights in the
affected area and to the county auditor of each county wherein such area lies no later
than two weeks prior to the date of the hearing.
4. After a person having an interest which is or may be adversely affected has filed a
petition and before the hearing, as required by this section, any person may intervene
by filing allegations of facts with supporting evidence which would tend to establish the
allegations.
5. Within sixty days after the hearing, the commission shall issue and furnish to all
petitioners and any other party to the hearing a written decision regarding the petition
and reasons therefor.
6. In the event that all petitioners stipulate agreement prior to the requested hearing, and
withdraw their request, such hearing need not be held.
7. If petitions are filed on lands adjacent to or in close proximity to each other, hearings
required by each petition may be consolidated by the commission.
### § 38-14.1-07. Mining is prohibited.

After August 3, 1977, and subject to valid existing rights, no surface coal mining operations
except those which existed on August 3, 1977, may be permitted:
1. On any lands within the boundaries of units of the North Dakota state park system, the
national park system, the national wildlife refuge systems, the national system of trails,
the national wilderness preservation system, the national wild and scenic rivers
system, including study rivers designated under section 5(a) of the Wild and Scenic
Rivers Act [Pub. L. 90-542; 82 Stat. 906; 16 U.S.C. 1271 et seq.] and national
recreation areas designated by Act of the Congress of the United States.
2. On any federal lands within the boundaries of any national forest unless the
requirements of 30 U.S.C. 1272(e)(2) are met.
3. Within three hundred feet [91.44 meters] of any publicly owned park or places included
in the state historic sites registry or the national register of historic places unless
approved jointly by the commission and the federal, state, or local agency with
jurisdiction over the park or the historic site.
4. Within one hundred feet [30.48 meters] of the outside right-of-way line of any public
road, except where mine access roads or haulage roads join such right-of-way line
and except that the commission with the approval of the proper authority may permit
such roads to be relocated or the area affected to lie within one hundred feet [30.48
meters] of such road, if after public notice and the opportunity for public hearing in the
locality a written finding is made by the proper authority that the interests of the public
and the landowners affected thereby will be protected.
5. Within five hundred feet [152.4 meters] of any occupied dwelling unless approved by
the owner thereof, nor within three hundred feet [91.44 meters] of any public building,

school, church, community, or institutional building, or within one hundred feet [30.48
meters] of a cemetery.
### § 38-14.1-08. Mineral exploration not prohibited.

The designation of an area as unsuitable for all or certain types of surface coal mining
operations does not prevent the mineral exploration of such an area.
### § 38-14.1-09. Unsuitable lands - Savings provision.

The requirements and provisions of this chapter dealing with designation of lands unsuitable
for all or certain types of surface coal mining operations (sections 38-14.1-04 through
38-14.1-08) do not apply:
1. To lands on which surface coal mining operations are being conducted on July 1,
1979, or under a permit issued pursuant to this chapter.
2. To lands where substantial legal and financial commitments in surface coal mining
operations were in existence prior to January 4, 1977.
3. To lands where a permit application has been filed pursuant to the provisions of this
chapter and the petition to have an area designated as unsuitable for surface coal
mining operations has not been filed within thirty days of the last publication of the
notice required by subsection 1 of section 38-14.1-18.
### § 38-14.1-10. Necessity of permit - Exception.

It is unlawful for any operator to engage in surface coal mining operations without first
obtaining from the commission a permit to do so. All existing surface coal mining operations
must on July 1, 1979, comply with this chapter and all rules adopted under the chapter, except
that lands from which the coal has been removed before July 1, 1979, are governed by the
reclamation standards that were in effect at the time of coal removal from the lands. A person or
operator shall engage in the inventorying and evaluation of cultural resources upon compliance
with section 55-03-01 and may implement a cultural resource mitigation plan approved by the
director of the state historical society before applying for or receiving an approved surface coal
mining and reclamation permit.
### § 38-14.1-11. Reapplication for permit under approved state program.

No later than two months following approval of the state program in accordance with the
requirements of section 503 of the federal Surface Mining Control and Reclamation Act of 1977
[Pub. L. 95-87; 91 Stat. 470; 30 U.S.C. 1253], regardless of litigation contesting that approval,
all permittees who expect to continue to conduct surface coal mining operations after the
expiration of eight months from the approval of such state program shall file an application with
the commission for a new permit in accordance with the requirements of section 38-14.1-13.
Such application must cover those lands to be surface mined after the expiration of eight
months from the approval of the state program. The commission shall process such applications
and grant or deny a permit within eight months after the date of approval of the state program.
### § 38-14.1-12. Permits - Term - Termination.

1. All permits for surface coal mining and reclamation operations must comply with the
standards of this chapter, any regulations promulgated thereunder, and such other
requirements as the commission shall establish.
2. All permits issued pursuant to the requirements of this chapter must be issued for a
term not to exceed five years; provided, that if the applicant demonstrates that a
specified longer term is reasonably needed to allow the applicant to obtain necessary
financing for equipment and the opening of the operation and if the application is full
and complete for such specified longer term, the commission may grant a permit for
such longer term.
3. A permit terminates if the permittee has not commenced the surface coal mining
operations covered by such permit within three years of the issuance of the permit,
provided that:

a. The commission may grant reasonable extensions of time upon a showing that
such extensions are necessary by reason of litigation precluding such
commencement or threatening substantial economic loss to the permittee, or by
reason of conditions beyond the control and without the fault or negligence of the
permittee.
b. With respect to coal to be mined for use in a synthetic fuel facility or specific
major electric generating facility, the permittee must be deemed to have
commenced surface coal mining operations at such time as the construction of
the synthetic fuel or generating facility is initiated.
### § 38-14.1-13. Permit applications - General requirements.

1. Any person or operator desiring to engage in surface coal mining operations shall
make written application to the commission for a permit. Application for such permit
must be made upon a form furnished by the commission. Included in the application
must be:
a. A bond or security to attach to the lands for which a permit is sought from and
after the time a permit is granted pursuant to the requirements of section
38-14.1-16.
b. A nonrefundable filing fee of five hundred dollars, plus ten dollars for each acre
[.40 hectare] included in the permit application.
c. Mining and reclamation plans and other information required to be submitted
pursuant to section 38-14.1-14.
d. An extended mining plan as required by section 38-14.1-15.
2. Each applicant for a surface coal mining and reclamation permit shall file a copy of the
applicant's application for public inspection with the office of the county auditor for
each county where the mining is proposed to occur.
3. Upon request by the permit applicant, the commission, in its discretion, may designate
specific information included in the plans required by subdivisions c and d of
subsection 1 as exempt from disclosure under section 44-04-18, provided such
specific information pertains only to the analysis of the chemical and physical
properties of the coal or commercial leonardite (excepting information regarding such
mineral or elemental contents which is potentially toxic in the environment). Each
request must be accompanied by a statement specifying the need for nondisclosure,
which statement must be considered part of the permit application to be filed for public
inspection as specified in subsection 2. The confidential information is exempt for a
period not to exceed ten years subsequent to the date on which the request for
nondisclosure was filed, unless it is demonstrated by the permit applicant that such
period should be further extended in order to prevent possible resulting harm to the
permit applicant, or the applicant's successors and assigns.
### § 38-14.1-14. Permit applications - Mining and reclamation plans.

1. The permit application must be submitted in a manner satisfactory to the commission
and must contain among other things:
a. A legal description of the land for which a permit is sought, so that it may be
identified and distinguished from other lands.
b. An identification of all lands, interests in lands, or options on such interests (both
surface and subsurface) held by the applicant or pending bids on interests in
lands by the applicant, which lands are contiguous to the area to be covered by
the permit.
c. The names and addresses of all of the following:
(1) The permit applicant.
(2) Every legal or equitable owner of record (surface and subsurface) of the
property for which a permit is sought.
(3) The holders of record (surface and subsurface) of any leasehold interest in
the property.

(4) Any purchaser of record (surface and subsurface) of the property under a
real estate contract.
(5) The operator, if the operator is a person different from the permit applicant.
(6) If any of these are business entities other than a single proprietor, the
names and addresses of the principals, officers, and resident agent.
d. The names and addresses of the owners of record of all surface and subsurface
areas adjacent to any part of the permit area as prescribed by the commission by
regulation.
e. If the applicant is a partnership, corporation, limited liability company, association,
or other business entity, the following where applicable:
(1) The names and addresses of every officer, manager, partner, director,
governor, or person performing a function similar to a director, of the permit
applicant.
(2) The name and address of any person owning of record ten percent or more
of any class of voting stock or membership interests of the applicant.
(3) A list of all names under which the applicant, partner, principal shareholder,
or principal member previously operated a surface coal mining operation
within any state within the five-year period preceding the date of the
application.
f. A statement of any current or previous surface coal mining permits in any state
held by the applicant and the permit identification for said permits and for each
pending application.
g. A schedule listing any and all notices of violation of this chapter, the Surface
Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445;
30 U.S.C. 1201 et seq.], and any law, rule, or regulation of the United States or of
the state of North Dakota, or of any department or agency in the United States or
of the state of North Dakota pertaining to air or water environmental protection
incurred by the applicant in connection with any surface coal mining operation
during the three-year period prior to the date of application. The schedule must
also indicate the final resolution of any such notice of violation.
h. A statement of whether the permit applicant, any subsidiary, affiliate, or persons
controlled by or under common control with the permit applicant, has ever held
any federal or state mining permit which in the five-year period prior to the date of
submission of the application has been suspended or revoked, or has had a
mining bond or similar security deposited in lieu of bond forfeited and, if so, a
brief explanation of the facts involved.
i. A copy of the permit applicant's advertisement as required in section 38-14.1-18.
j. A map or plan, to an appropriate scale, clearly showing the land to be affected
within the permit area upon which the applicant has the legal right to enter and
commence surface coal mining operations.
k. A copy of those documents upon which the permit applicant bases the applicant's
legal right to enter and commence surface coal mining operations and whether
that right is the subject of pending court litigation.
l. A description of the type and method of surface coal mining operation that exists
or is proposed, the engineering techniques proposed or used, and the equipment
used or proposed to be used.
m. The anticipated or actual starting and termination dates of each phase of the
mining operations.
n. The name of the watershed and location of the surface stream or tributary into
which surface and pit drainage will be discharged, including the drainage permit
application to the department of water resources, if required.
o. A determination by the permit applicant of the probable hydrologic consequences
of the mining and reclamation operations, both on and off the minesite, with
respect to the hydrologic regime, quantity and quality of water in surface and
ground water systems, including the dissolved and suspended solids under
seasonal flow conditions and the collection of sufficient data for the minesite and

surrounding areas so that an assessment can be made by the commission of the
probable cumulative impacts of all anticipated mining in the area upon the
hydrology of the area and particularly upon water availability.
p. The climatological factors that are peculiar to the locality of the land to be
affected, including the average seasonal precipitation, the average direction and
velocity of prevailing winds, and the seasonal temperature ranges.
q. Topographic maps to an appropriate scale, as prescribed by the commission by
regulation, clearly showing the land to be affected as of the date of the
application. Such a map, among other things specified by the commission, must
show all of the following information:
(1) All manmade features.
(2) All boundaries of the land to be affected.
(3) The boundary lines and names of present owners of record of all surface
areas abutting the permit area.
(4) The location of all buildings within one-half mile [804.67 meters] of the
permit area.
r. Cross sections, maps or plans of the land to be affected, including the actual area
to be mined, prepared by or under the direction of and certified by a registered
professional engineer, a registered land surveyor, or a qualified professional
geologist with assistance from experts in related fields, showing pertinent
elevation and location of test borings or core samplings and depicting all of the
following information:
(1) The nature and depth of the various strata of overburden.
(2) The location of subsurface water, if encountered, and its quality.
(3) The nature and thickness of any coal, commercial leonardite, or rider seam
above the coal or commercial leonardite seam to be mined.
(4) The nature of the stratum immediately beneath the coal or commercial
leonardite seam to be mined.
(5) All mineral crop lines and the strike and dip of the coal or commercial
leonardite to be mined, within the area of land to be affected.
(6) Existing or previous surface mining limits.
(7) The location and extent of known workings of any underground mines,
including mine openings to the surface.
(8) The location of aquifers.
(9) The estimated elevation of the water table.
(10) The location of spoil, waste, or refuse areas, suitable plant growth material
stockpiling areas and, if necessary, stockpiling areas for other suitable
strata.
(11) The location of all impoundments for waste or erosion control.
(12) Any settling or water treatment facility.
(13) Constructed or natural drainways and the location of any discharges to any
surface body of water on the area of land to be affected or adjacent thereto.
(14) Profiles at appropriate cross sections of the anticipated final surface
configuration that will be achieved pursuant to the applicant's proposed
reclamation plan.
s. A statement by the applicant of the result of test borings or core samplings from
the permit area, including logs of the drill holes, the thickness of the coal or
commercial leonardite seam found, an analysis of the chemical properties of such
coal or commercial leonardite, the sulfur content of any coal or commercial
leonardite seam, chemical analysis of potentially toxic forming sections of the
overburden, and chemical analysis of the stratum lying immediately underneath
the coal or commercial leonardite to be mined. The provisions of this subdivision
may be waived by the commission with respect to the specific application by a
written determination that such requirements are unnecessary.
t. A soil survey of all the suitable plant growth material within the permit area. Such
survey must also locate and identify prime soils in the permit area. The survey

must be made by a professional soil classifier as described in subsection 4 of
section 43-36-01.
u. Cultural resource information, including all of the following:
(1) A statement evidencing compliance with the requirements of chapter 55-03.
(2) A cultural resource inventory, including all buildings, structures, and objects
referred to in section 55-03-01, covering the proposed permit and adjacent
area conducted in accordance with guidelines developed by the state
historic preservation office and the director of the state historical society.
(3) An evaluation of each cultural resource site which will be affected by any
surface coal mining and reclamation operation. The evaluation must include
sufficient information to allow the director to determine if the cultural
resource site is significant in accordance with the national register criteria
[36 CFR 60.4] and guidelines established by the director.
(4) An appropriately scaled map identifying the location of each cultural
resource site determined significant by the director within the proposed
permit area and the adjacent area.
(5) A description of adverse effects on significant cultural resources that may
result from the proposed surface coal mining operations.
(6) A statement that the permit applicant will inform the director and the
commission of any discovery within the permitted area of previously
unrecorded archaeological, cultural, or historic materials and allow
reasonable time for the director to determine the significance of the
discovery and, if determined significant, to approve a mitigation plan.
(7) A plan approved by the director that has been or will be used to mitigate
adverse effects on significant sites that are known, or a statement that such
a plan will be approved and implemented before any adverse effects. Any
mitigation plan that has not begun implementation within five years of plan
approval is subject to review by the director.
2. Each applicant for a permit shall submit as part of the permit application a reclamation
plan that must include, in the degree of detail necessary to demonstrate that
reclamation as required by this chapter can be accomplished, a statement of:
a. The condition of the land to be covered by the permit prior to any mining,
including all of the following:
(1) The uses existing at the time of the application, and if the land has a history
of previous mining, the uses which preceded any mining.
(2) The capability of the land prior to any mining to support a variety of uses
giving consideration to soil and foundation characteristics, topography,
vegetative cover, and the soil survey prepared pursuant to subdivision t of
subsection 1.
(3) The productivity of the land prior to mining, including appropriate
identification of prime farmlands, as well as the average yield of food, fiber,
and forage products from such lands obtained under high levels of
management.
b. The use which is proposed to be made of the land following reclamation,
including a discussion of the utility and capacity of the reclaimed land to support a
variety of alternative uses and the relationship of such use to existing land use
policies and plans, the surface owner's preferred use, and the comments of state
and local governments or agencies thereof, which would have to initiate,
implement, approve, or authorize the proposed use of the land following
reclamation.
c. The consideration which has been given to maximize the utilization and
conservation of the coal or commercial leonardite being recovered so that
re-affecting the land in the future can be minimized.
d. The consideration which has been given to making the surface mining and
reclamation operations consistent with surface owner plans and applicable state
and local land use plans and programs.

e. The consideration which has been given to developing the reclamation plan in a
manner consistent with local physical, environmental, and climatological
conditions, including the use made of hydrologic and geochemical information in
addressing problems of subsurface drainage and stability.
f. A detailed description of how the proposed postmining land use is to be achieved
and the necessary support activities which may be needed to achieve the
proposed land use.
g. The engineering techniques proposed to be used in mining and reclamation and
a description of the major equipment.
h. Plans for:
(1) The control of surface water drainage and of water accumulation.
(2) Backfilling, soil stabilization, compacting, grading, and appropriate
revegetation.
(3) Soil reconstruction, replacement, and stabilization, pursuant to the
performance standards in subsections 5 and 6 of section 38-14.1-24.
i. A detailed description of the measures to be taken during the mining and
reclamation process to assure the protection of:
(1) The quality of surface and ground water systems, both onsite and offsite,
from adverse effects of the mining and reclamation process.
(2) The rights of present users to such water.
(3) The quantity of surface and ground water systems, both onsite and offsite,
from adverse effects of the mining and reclamation process or to provide
alternative sources of water where such protection of quantity cannot be
assured.
j. The steps to be taken to comply with applicable air quality and water quality and
quantity laws and regulations and any applicable health and safety standards.
k. A detailed estimated timetable for the accomplishment of each major step in the
reclamation plan.
l. An estimate of the cost per acre [.40 hectare] of the reclamation, including a
statement as to how the applicant plans to comply with each of the requirements
set out in section 38-14.1-24.
m. The results of test borings which the applicant has made of the area to be
covered by the permit, or other equivalent information and data, in a form
satisfactory to the commission, including the location of subsurface water and an
analysis of the chemical properties, including toxic forming properties of the
mineral and overburden.
3. Each applicant for a permit shall submit to the commission as part of the permit
application a certificate issued by an insurance company authorized to do business in
this state certifying that the applicant has a public liability insurance policy in force for
the surface coal mining and reclamation operations for which such permit is sought.
Such policy must provide for personal injury and property damage protection in an
amount adequate to compensate any persons, except employees covered by
workforce safety and insurance pursuant to chapter 65-01, damaged as a result of
surface coal mining and reclamation operations, including use of explosives, and
entitled to compensation under the applicable provisions of state law. Such policy must
be maintained in full force and effect during the terms of the permit or any renewal,
including the length of all reclamation operations. The policy must include a rider
requiring that the insurer notify the commission whenever substantive changes are
made in the policy, including any termination or failure to renew. All operations must
cease if the policy is terminated or is not renewed.
4. Each applicant for a surface coal mining and reclamation permit shall submit to the
commission as part of the permit application a blasting plan which must outline the
procedures and standards by which the permittee will meet the provisions of
subsection 13 of section 38-14.1-24.

### § 38-14.1-15. Permit applications - Extended mining plan.

1. An applicant shall submit as part of a permit application a plan identifying the lands
subject to surface coal mining operations over the estimated life of those operations
and the size, sequence, and timing of the subareas for which it is anticipated that
individual permits will be sought.
2. The permittee shall annually advise the commission of the status of the plan and shall
amend such plan if changes are made in anticipated mining operations or if updated
information is available.
### § 38-14.1-16. Performance bond - Amount - Sufficiency of surety - Amount of forfeiture.

1. As part of a surface coal mining and reclamation permit application, the permit
applicant shall file with the commission, on a form prescribed and furnished by the
commission, a bond for performance payable to the state of North Dakota and
conditional upon faithful performance of all the requirements of this chapter and the
requirements of all regulations promulgated pursuant to this chapter and all permit
terms and conditions.
2. The commission shall set the bond amount sufficient to complete the reclamation plan
in event of forfeiture. The bond for the permit area must be at least ten thousand
dollars.
3. The bond must cover that area of land within the permit area upon which the permittee
will initiate and conduct surface coal mining and reclamation operations for the
ensuing year. Prior to initiating and conducting succeeding increments of surface coal
mining and reclamation operations within the permit area, the permittee shall file with
the commission an additional bond or bonds to cover such increments in accordance
with this section.
4. Liability under the bond, subject to allowable releases under subsection 7 of section
38-14.1-17, is for the duration of the surface coal mining and reclamation operation
and for a period coincident with the permittee's responsibility for revegetation
requirements in subsection 18 of section 38-14.1-24 and until such time as the lands
included in the surface coal mining operation have been approved and released by the
commission. The bond must be executed by the permit applicant and a corporate
surety licensed to do business in North Dakota, except that the permit applicant may
elect to deposit cash, negotiable bonds of the United States or of North Dakota, or
negotiable certificates of deposit of any bank organized or transacting business in the
state. The cash deposit or market value of such securities must be equal to or greater
than the amount of the bond required for the bonded area.
5. Cash or securities so deposited must be deposited upon the same terms as the terms
upon which surety bonds may be deposited. Such securities are security for the
repayment of such negotiable certificate of deposit.
6. A bond filed as prescribed in subsection 2 for areas not yet affected by surface coal
mining and reclamation operations may not be canceled by the surety unless it shall
give not less than ninety days' notice to the commission. For lands on which surface
coal mining and reclamation operations are being conducted, the bond may not be
canceled by the surety unless a substitute surety assuming liability from the initiation
of such operations is obtained and is approved by the commission.
7. If the corporate surety's license is suspended or revoked, the permittee, after notice
from the commission, shall provide a substitute performance bond. If the permittee
fails to make substitution within thirty days, the commission may suspend the permit. If
substitution is not made within ninety days, the commission shall suspend the permit.
8. The commission may accept the bond of the permit applicant itself without separate
surety when the permit applicant demonstrates to the satisfaction of the commission
the existence of a suitable agent to receive service of process and a history of financial
solvency and continuous operation sufficient for authorization to self-insure or bond
such amount.
9. The amount of the bond or deposit required and the terms of each acceptance of the
permit applicant's bond must be adjusted by the commission from time to time as

acreages [hectarages] affected by surface coal mining operations are increased or
decreased or where the cost of future reclamation changes.
10. The amount of any forfeiture of the bond or security must be the amount prescribed in
the permit for each acre [.40 hectare] or portion thereof on which surface coal mining
and reclamation operations are being conducted.
### § 38-14.1-17. Release of performance bond - Schedule - Notification - Public hearing.

1. The permittee may file a request with the commission for the release of all or part of a
performance bond or deposit furnished subsequent to July 1, 1975. As part of any
bond release application, the permittee shall submit:
a. Within thirty days after filing of the request, a copy of an advertisement placed at
least once a week for four successive weeks in the official newspaper of each
county in which the surface coal mining operation is located. The advertisement
must contain notification of all of the following:
(1) The precise location and the number of acres [hectares] of the land affected.
(2) The permit and the date approved.
(3) The amount of the bond filed and the portion sought to be released.
(4) The type and approximate dates of reclamation work performed and a
description of the results achieved as they relate to the permittee's approved
reclamation plan.
(5) The right to file written objections and to request a public hearing or an
informal conference as specified in subsection 2.
b. Copies of letters which the permittee has sent to all owners of surface rights
within the permit area proposed for bond release, adjoining property owners,
state agencies specified in subsection 2 of section 38-14.1-21, heads of local
governmental bodies, including the county commissioners and mayors of
municipalities, planning agencies, sewage and water treatment authorities, and
water companies in the locality in which the surface coal mining and reclamation
operations took place, notifying them of the permittee's intention to seek release
from the bond. The letters must also contain notice of the right to file written
objections and request an informal conference or a public hearing as specified in
subsection 2.
2. Any person having a valid legal interest which is or may be adversely affected by
release of the bond or the responsible officer or head of any state or local
governmental agency which has jurisdiction by law or special expertise with respect to
any environmental, social, or economic impact involved in the surface coal mining
operation or is authorized to develop and enforce environmental standards with
respect to such operations has the right to file written objections to the proposed
release from bond with the commission and to request an informal conference
pursuant to the procedures established in section 38-14.1-19 or a public hearing
pursuant to procedures established in subsection 3 of section 38-14.1-30 within thirty
days after the last publication of the notice required in subsection 1.
3. Upon receipt of the application for bond release, the commission shall, within thirty
days, conduct an inspection and evaluation of the reclamation work involved. Such
evaluation must consider, among other things, all of the following:
a. The degree of difficulty to complete any remaining reclamation.
b. Whether pollution of surface and subsurface water is occurring.
c. The probability of continuance or future occurrence of such pollution.
d. The estimated cost of abating such pollution.
e. The effectiveness of soil erosion control measures employed.
f. The level of bonding.
The commission shall make written findings with its ruling to release or not to release
all or part of the performance bond or deposit within sixty days from the filing of the
request for bond release, if no informal conference or public hearing is held, and if
there has been an informal conference or a public hearing, within thirty days thereafter.

4. Time periods established by subsection 3 do not apply if effective inspections cannot
be carried out because of inclement weather.
5. If the commission disapproves the application for release of the bond or portion
thereof, the commission shall state the reasons for disapproval, recommend corrective
actions necessary to secure said release, and provide the permittee with an
opportunity for a formal public hearing pursuant to the procedures of section
38-14.1-30.
6. If the commission decides to release the bond either totally or in part, the commission
shall notify the county commissioners and the mayors of the municipalities in the
county in which the applicable surface coal mining operation is located by certified
mail, at least thirty days prior to the actual release of all or a portion of the bond.
7. The commission may release bond as follows:
a. When the permittee completes the backfilling, regrading, and drainage control in
a bonded area, forty percent of the bond for the area may be released.
b. After spreading suitable plant growth material or other suitable strata on the
regraded land, twenty percent of the bond for the area may be released.
c. After vegetation is established on the regraded land, additional bond may be
released. The commission shall retain sufficient bond to cover third-party
revegetation and associated costs for the period set by subsection 18 of section
38-14.1-24, provided:
(1) There may be no release under this subdivision until the requirements of
subdivision b of subsection 8 of section 38-14.1-24 are met and prime
farmlands are returned to productivity equal to or greater than nonmined
prime farmland in the surrounding area under equivalent management
practices.
(2) If there is a permanent silt dam impoundment under subsection 7 of section
38-14.1-24, bond may be released if the commission approves the
commitments for future maintenance.
d. When the permittee has successfully completed all surface coal mining and
reclamation operations, and after the period set by subsection 18 of section
38-14.1-24, the remaining bond may be released. No bond may be fully released
until all reclamation requirements are met.
8. Until reclamation has been accomplished to the satisfaction of the commission and
until the bond has been fully released pursuant to subsection 7, control of the affected
lands shall remain in the commission, and the commission may not allow use of the
land which is inconsistent with reclamation.
### § 38-14.1-18. Permit application procedures - Notice requirements.

1. At the time of filing an application for a permit, or for revision of an existing permit, the
applicant shall submit to the commission a copy of the applicant's advertisement of the
ownership, precise location, and boundaries of the land proposed to be affected by the
permit or permit revision and the location where the application is available for public
inspection. Such advertisement must include notification to any person with an interest
which is or may be adversely affected that a petition to designate an area as
unsuitable for surface coal mining operations that is within the proposed permit area
must be filed within thirty days of the last publication of the notice. The permit applicant
shall place such advertisement in the official newspaper of each county wherein land
to be included within the permit area lies and in other daily newspapers of general
circulation in the locality of the proposed surface coal mining operation at least once a
week for four consecutive weeks from the date of filing the application for a permit.
Affidavits of publication for all advertisements published pursuant to this subsection
must be furnished to the commission by the permit applicant.
2. The permit applicant shall also conduct a search of the records of the county recorder
for each county for land within the proposed permit area and shall supply the
commission with a list of names and addresses of all owners of surface rights of land
within the proposed permit area and a list of all subsurface mineral owners within the

proposed permit area. The lists must be submitted to the commission along with the
application for a permit or permit revision.
3. Upon receipt of an application for a permit, or a revision thereof, the commission shall
serve notice upon state agencies specified in subsection 2 of section 38-14.1-21, city
and county governmental authorities, planning agencies, sewage and water treatment
authorities, and water companies in the locality of the proposed surface coal mining
operation of the permit applicant's intent to surface mine the particularly described
tract of land, indicating the application's permit number and where a copy of the
proposed mining and reclamation plan may be inspected, and informing them of their
right to submit written comments or objections pursuant to this section with respect to
the effect of the proposed surface coal mining operations on the environment within
their area of responsibility.
4. In addition, the commission shall send by certified mail to all owners of surface rights
of the land to be included within the permit area a notice of the opportunity to submit
comments or objections pursuant to this section on the proposed permit application
and its effect on the environment and the surface owner. This notice must also inform
each surface owner of the surface owner's right to request an informal conference
within the time prescribed in subsection 5 and of the surface owner's right to request a
formal hearing within thirty days of the ruling of the commission pursuant to subsection
3 of section 38-14.1-30.
5. Any person having an interest which is or may be adversely affected, including state
agencies other than the commission, has the right to file written comments or
objections to the application for a proposed initial or revised permit and to submit a
request for an informal conference pursuant to section 38-14.1-19, provided that the
written comments or objections and any request for an informal hearing are made
within thirty days after the last publication of the advertisement referred to in
subsection 1.
6. Any comments, objections, and requests for an informal conference must immediately
upon receipt be transmitted to the permit applicant by the commission and must be
made available to the public at the same location as is the permit application.
### § 38-14.1-19. Informal conference procedures.

1. If written objections or comments are filed and an informal conference is requested as
provided in section 38-14.1-17, 38-14.1-18, or 38-14.1-28, the commission shall
schedule such informal conference within forty-five days of the receipt of such request
but in no event prior to the expiration of the thirty-day period allowed for submission of
comments, objections, and requests in subsection 2 of section 38-14.1-17 or
subsections 3, 4, and 5 of section 38-14.1-18.
2. The informal conference must be held in the locality of the proposed mining if the
request for such conference so specifies. Date, time, and location of such informal
conference must be advertised by the commission in the official newspaper of each
county wherein land included in the proposed permit area lies and in other daily
newspapers of general circulation in the locality of the proposed surface coal mining
operation at least two weeks prior to the scheduled conference date.
3. Upon request of any party to the informal conference, the commission may arrange
with the applicant access by the requesting party to the proposed mining area for the
purpose of gathering information relative to such conference.
4. An electronic or stenographic record must be made of the informal conference
proceedings, unless waived by all parties. Such record must be maintained and must
be accessible to the parties until final release of the permittee's performance bond
pursuant to this chapter.
5. In the event all parties requesting the informal conference stipulate agreement prior to
the requested informal conference and withdraw their request, such informal
conference need not be held.
6. The commission shall issue its written findings and ruling within thirty days of the
informal conference. Along with these findings and ruling, notice must be served upon

all persons who were parties to the informal conference, informing them of their right,
within thirty days of such service, to request that a formal administrative hearing be
held by the commission pursuant to section 38-14.1-30 in order to review the findings
and ruling.
### § 38-14.1-20. Ruling on permit application - Timing and content.

1. If an informal conference in reference to a permit application has been held pursuant
to section 38-14.1-19, the commission shall issue its written findings approving or
disapproving the application in whole or in part and stating the reasons for such
findings within thirty days of the informal conference. At the time of issuance, copies of
the findings, reasons, and the commission's ruling must be furnished to the permit
applicant and all persons who were parties to the informal conference along with the
notice of the right to request a formal hearing provided for in section 38-14.1-30.
2. If no informal conference has been held, the commission shall notify the permit
applicant within a reasonable time as set forth in regulations, whether the application
has been approved or disapproved in whole or in part along with notice of the right to
request a formal hearing pursuant to section 38-14.1-30. In setting such reasonable
time, the commission shall take into account the time needed for proper investigation
of the site, the complexity of the permit application, and whether objections to the
application have been filed.
3. Under either subsection 1 or 2, if the application is approved, a permit must be issued
subject to the right of any person with an interest which is or may be adversely
affected to request formal hearing pursuant to section 38-14.1-30; if the application is
disapproved, specific reasons therefor must be set forth in the notification of
disapproval together with the requirements for approval.
### § 38-14.1-21. Permit approval or denial standards.

1. Upon the basis of a complete mining application and reclamation plan or a revision
thereof as required by this chapter and pursuant to regulations established under this
chapter, the commission shall grant, require modification of, or deny the application for
a permit and notify the applicant in writing within a reasonable time as established by
regulation if no informal conference is held and if an informal conference is held, within
thirty days of such conference. The applicant for a permit, or a revision of a permit, has
the burden of establishing that the application is in compliance with all the
requirements of this chapter. Within ten days after the granting of a permit, the
commission shall notify the appropriate local governmental officials in the county in
which the area of land to be affected is located that a permit has been issued and shall
describe the location of the land.
2. The commission's approval or modification of the permit or permit revision application
must include consideration of the advice and technical assistance of the state
historical society, the department of environmental quality, the soil conservation
committee, the game and fish department, the state forester, the state geologist, and
the department of water resources, and may include those state agencies versed in
soils, agronomy, ecology, geology, and hydrology, and other agencies and individuals
experienced in reclaiming surface mined lands.
3. No permit or revision application may be approved unless the applicant affirmatively
demonstrates and the commission finds in writing on the basis of the information set
forth in the application or from information otherwise available which will be
documented in the approval and made available to the applicant, that all the following
requirements are met:
a. The permit application is accurate and complete and all the requirements of this
chapter and of regulations promulgated by the commission have been complied
with.
b. The permit applicant has demonstrated that reclamation as required by this
chapter and by regulations promulgated by the commission can be accomplished
under the reclamation plan contained in the permit application.

c. The assessment of the probable cumulative impact of all anticipated mining in the
area on the hydrologic balance specified in subdivision o of subsection 1 of
section 38-14.1-14 has been made by the commission and the proposed
operation thereof has been designed to prevent material damage to the
hydrologic balance outside the permit area.
d. The area proposed to be mined is not included within an area designated
unsuitable for all or certain types of surface coal mining operations pursuant to
section 38-14.1-05 or is not within an area under study for such designation in an
administrative proceeding, provided the petition to have an area so designated
has been filed prior to or within the time period specified in subsection 1 of
section 38-14.1-18, or unless in such an area as to which an administrative
proceeding has commenced, the permit applicant demonstrates that prior to
January 4, 1977, the permit applicant has made substantial legal and financial
commitments in relation to the operation for which the applicant is applying for a
permit.
e. The proposed surface coal mining operation, if located west of the one hundredth
meridian west longitude, would:
(1) Not interrupt, discontinue, or preclude farming on alluvial valley floors that
are irrigated or naturally subirrigated, but, excluding undeveloped
rangelands which are not significant to farming on said alluvial valley floors
and those lands as to which the commission finds that if the farming that will
be interrupted, discontinued, or precluded is of such small acreage
[hectarage] as to be of negligible impact on the farm's agricultural
production; or
(2) Not materially damage the quantity or quality of water in surface or
underground water systems that supply these alluvial valley floors. This
subdivision does not affect those surface coal mining operations which on
July 1, 1979, produce coal or commercial leonardite in commercial
quantities and are located within or adjacent to alluvial valley floors or have
obtained specific permit approval by the commission to conduct surface coal
mining operations within said alluvial valley floors.
f. When the mineral estate has been severed from the surface estate, the applicant
has complied with the requirements of chapter 38-18.
4. The commission may delete certain areas from a permit or revision application, reject
the application, require the permit applicant to amend the application or any part of
such application, including any mining plan, or require any combination of the
foregoing, if:
a. The commission finds that the overburden on any part of the area of land
described in the application for a permit is such that experience in the state of
North Dakota with a similar type of operation upon land with similar overburden
shows that substantial deposition of sediment in streambeds, landslides, water
pollution, or permanent destruction of land for agricultural purposes without
approved rehabilitation for other uses cannot feasibly be prevented.
b. The commission finds that the proposed surface coal mining operation will
constitute a hazard to a dwelling house, public building, school, church, cemetery,
commercial or institutional building, public road, stream, lake, or other public or
private property other than property subject to a coal or commercial leonardite
lease.
Whenever the commission finds that ongoing surface mining operations are causing or
are likely to cause any of the conditions set forth in this subsection, it may make such
changes in the permit as it may deem necessary to avoid such described conditions.
5. When information available to the commission indicates that any surface coal mining
operation owned or controlled by the permit applicant is currently in violation of this
chapter, the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87;
91 Stat. 445; 30 U.S.C. 1201 et seq.], or any law or rule of the United States or the
state of North Dakota, or of any department or agency of the United States or the state

of North Dakota, pertaining to air or water environmental protection, the permit may
not be issued until the permit applicant submits proof that such violation has been
corrected or is in the process of being corrected to the satisfaction of the regulatory
authority with jurisdiction over the violation.
6. In addition to finding the application in compliance with other requirements of this
section, if the area proposed to be mined contains prime farmland pursuant to
paragraph 3 of subdivision a of subsection 2 of section 38-14.1-14, the commission
shall, pursuant to regulations issued by the commission, grant a permit to mine on
prime farmland if the commission finds in writing that the permit applicant has the
technological capability to restore such mined area, within a reasonable time, to a level
of productivity equal to or greater than nonmined prime farmland in the surrounding
area under equivalent levels of management and can meet the soil reconstruction
standards in subsection 6 of section 38-14.1-24. Nothing in this chapter pertaining to
prime farmland applies to any permit issued prior to July 1, 1979, or to any revisions or
renewals thereof, or to any existing surface coal mining operations for which a permit
was issued prior to July 1, 1979.
### § 38-14.1-22. Permit renewal.

1. Any valid permit issued pursuant to this chapter shall carry with it the right of
successive renewal upon expiration with respect to areas within the boundaries of the
existing permit. The holders of the permit may apply for renewal and such renewal
must be issued within a reasonable time as set forth in regulations promulgated by the
commission subsequent to fulfillment of the public notice requirements of subsection 1
of section 38-14.1-18 unless it is established that and written findings are made by the
commission that:
a. The terms and conditions of the existing permit are not being satisfactorily met;
and
b. The present surface coal mining and reclamation operation is not in compliance
with the provisions of this chapter; or
c. The renewal requested substantially jeopardizes the operator's continuing
responsibility on existing permit areas; and
d. The permittee has not provided evidence that the performance bond in effect for
said operation will continue in full force and effect for any renewal requested in
such application as well as any additional bond the commission might require
pursuant to section 38-14.1-16; or
e. Any additional revised or updated information required by the commission has not
been provided.
2. On application for renewal, the burden is on the opponents of renewal.
3. Any permit renewal must be for a term not to exceed the period of the original permit
established by this chapter. Application for permit renewal must be made at least one
hundred eighty days prior to the expiration of the valid permit.
### § 38-14.1-23. Permit revision.

1. During the term of the permit the permittee may submit an application for a revision of
the permit, together with a revised reclamation plan, to the commission.
2. An application for a revision of a permit may not be approved unless the commission
finds that reclamation as required by this chapter can be accomplished under the
revised reclamation plan. The revision must be approved or disapproved within a
reasonable time as established by commission regulation. The commission shall
establish guidelines for a determination of the scale or extent of a revision request for
which all permit application information requirements and procedures, including notice
and hearing, shall apply. Any revisions which propose significant alterations in the
reclamation plan are, at a minimum, subject to the notice and hearing requirements of
sections 38-14.1-18, 38-14.1-19, and 38-14.1-20.
3. Any extensions to the area covered by the permit except incidental boundary revisions
must be made by application for another permit.

4. No transfer, assignment, or sale of the rights granted under any permit issued
pursuant to this chapter may be made without the written approval of the commission.
The commission shall deny approval to the successor in interest of the permittee if the
successor in interest is unable to obtain the bond coverage of the original permittee or
its equivalent. If the successor in interest is able to obtain the bond coverage of the
original permittee, or its equivalent, the successor in interest may arrange for the
continuation of surface mining and reclamation operations according to the approved
surface mining and reclamation plan of the original permittee pending commission
approval of the transfer, assignment, or sale of the rights granted under said permit
and any necessary revision or modification of said permit, provided the successor in
interest furnishes the necessary information to the commission within thirty days of
succeeding to such interest so that the permit in issue can be properly revised or
modified.
5. The commission shall, within a time limit prescribed by commission regulation, review
outstanding permits and may require reasonable revision or modification of the permit
provisions during the term of such permit. Any such revision or modification must be
based upon a written finding and subject to notice and hearing requirements in
accordance with sections 38-14.1-18, 38-14.1-19, and 38-14.1-20.
6. A permittee may withdraw any land described in either the permit application required
in section 38-14.1-14 or the extended mining plan required in section 38-14.1-15,
except land on which surface coal mining operations have commenced, by notifying
the commission thereof. If land covered by the permit term is so withdrawn, the
amount of the bond or security filed by the permittee pursuant to the provisions of this
chapter must be reduced proportionately.
### § 38-14.1-24. Environmental protection performance standards.

General performance standards are applicable to all surface coal mining and reclamation
operations and must require the permittee at a minimum to:
1. Conduct surface coal mining operations so as to maximize the utilization and
conservation of the coal or commercial leonardite being recovered so that re-affecting
the land in the future through surface coal mining can be minimized.
1.1. Conduct any auger mining associated with surface coal mining operations in a manner
that will maximize recoverability of coal or commercial leonardite and other mineral
reserves remaining after mining activities and reclamation operations are completed,
and seal or fill all auger holes as necessary to ensure long-term stability of the area
and minimize any adverse impact to the environment or hazard to public health or
safety. The commission may prohibit auger mining if necessary to maximize the
utilization, recoverability, or conservation of coal or commercial leonardite resources,
to ensure long-term stability, or to protect against any adverse impact to the
environment or hazard to public health or safety.
2. Restore the land affected to a condition capable of supporting the uses which it was
capable of supporting prior to any mining, or higher or better uses approved by the
commission, which may include industrial, commercial, agricultural, residential,
recreational, or public facilities. In approving the postmining land use, or changes
thereto, the commission shall establish by regulation postmining land use criteria that
must be demonstrated by the permittee and considered by the commission in making
its decision.
3. Backfill, compact (where advisable to ensure stability or to prevent leaching of toxic
materials), and grade to reshape all areas affected by surface coal mining operations
to the gentlest topography consistent with adjacent unmined landscape elements in
order to develop a postmining landscape that will provide for maximum moisture
retention, drainage that will complement the surrounding terrain, maximum stability,
minimum soil losses from runoff and erosion, with all highwalls, spoil piles, and
depressions eliminated (unless small depressions are needed in order to retain
moisture to assist revegetation or as otherwise authorized pursuant to this chapter),

and with maximum postmining graded slopes that do not exceed the approximate
original contour; provided, however, that:
a. A different contour or topography may be required by the commission to better
achieve the approved postmining land use.
b. The permittee, at a minimum, shall backfill, grade, and compact (where
advisable) using all available overburden and other spoil and waste materials to
attain the lowest practicable grade (not to exceed the angle of repose), to provide
adequate drainage, and to contain all toxic materials in order to achieve an
ecologically sound land use compatible with the surrounding region, in those
instances where:
(1) Surface coal mining operations are carried out over a substantial period of
time at the same location where the operation transects the coal or
commercial leonardite deposit;
(2) The thickness of the coal or commercial leonardite deposits relative to the
volume of overburden is large; and
(3) The permittee demonstrates that the overburden and other spoil and waste
materials at a particular point in the permit area or otherwise available from
the entire permit area are insufficient, giving due consideration to volumetric
expansion, to restore the approximate original contour.
4. Stabilize and protect all surface areas, including spoil piles affected by the surface coal
mining and reclamation operation, to effectively control erosion and attendant air and
water pollution.
5. Remove, segregate, and respread suitable plant growth material as required by the
commission within the permit area. The commission may require the permittee to
segregate suitable plant growth material in two or more soil layers. The commission
shall determine the soil layer or layers to be removed based upon the quality and
quantity of suitable plant growth material inventoried by the soil survey required in
subdivision t of subsection 1 of section 38-14.1-14. Based on the soil survey, the
commission shall also determine whether other suitable strata are necessary to meet
revegetation requirements. If other strata can be shown to be suitable and necessary
to meet revegetation requirements, the commission may require the permittee to
determine the areal extent of other suitable strata within the proposed permit area, and
to remove, segregate, protect, and respread such material. If the suitable plant growth
material or other suitable strata cannot be replaced on an approved graded area within
a time short enough to avoid deterioration of such material, the permittee shall
stockpile and stabilize such materials by establishing a successful cover of
quick-growing plants or by other means thereafter so that the suitable plant growth
material or other suitable strata will be protected from wind and water erosion and will
remain free from any contamination by toxic material. In the interest of achieving the
maximum reclamation provided for in this chapter, the permittee may, or at the
discretion of the commission shall, utilize such soil amendments as described in
section 38-14.1-02.
6. For all prime farmlands as identified in paragraph 3 of subdivision a of subsection 2 of
section 38-14.1-14 to be mined and reclaimed, the permittee shall, at a minimum, be
required to:
a. Segregate the A horizon of the natural soil or a combination of the A horizon
materials and other available suitable plant growth materials that will create a
final soil having a productive capacity equal to or greater than that which existed
prior to mining; and if not utilized immediately, stockpile this material and provide
needed protection from wind and water erosion or contamination;
b. Segregate the B horizon of the natural soil, or underlying C horizons or other
strata, or a combination of such horizons or other strata that are shown to be
physically and chemically suitable for plant growth and that can be shown to be
equally or more favorable for plant growth than the B horizon, in sufficient
quantities to create in the regraded final soil a root zone of comparable depth and
quality to that which existed in the natural soil. If not utilized immediately, such

material must be stockpiled and provided needed protection from wind and water
erosion or contamination;
c. Replace the material described in subdivision b with proper compaction and
uniform depth as determined by the commission over the regraded spoil material;
and
d. Redistribute in a uniform manner as determined by the commission the surface
soil described in subdivision a.
7. Create, if authorized in the approved mining and reclamation plan and permit, as part
of reclamation activities, permanent water impoundments in accordance with the
requirements of the department of water resources and all of the following standards:
a. The size of the impoundment will be adequate for its intended purposes.
b. The impoundment dam construction will be designed to achieve necessary
stability with an adequate margin of safety compatible with the requirements of
applicable state law.
c. The quality of impounded water will be suitable on a permanent basis for its
intended use, and discharges from the impoundment will not exceed the quality
limitations imposed by the North Dakota pollutant discharge elimination system or
degrade the water quality below water quality standards established pursuant to
this chapter, whichever is more stringent.
d. The level of water will be reasonably stable.
e. Final grading will provide adequate safety and access for maintenance and
proposed water users.
f. The water impoundments will not result in the diminution of the quality or quantity
of water utilized by adjacent or surrounding landowners for agricultural, industrial,
recreational, or domestic uses.
8. Minimize the disturbances to the prevailing hydrologic balance at the minesite and in
associated offsite areas and to the quality and quantity of water in surface and ground
water systems both during and after surface coal mining operations and during
reclamation by:
a. Avoiding toxic mine drainage by such measures as, but not limited to:
(1) Preventing water from coming in contact with, or removing water from, toxic
producing deposits.
(2) Treating drainage to reduce toxic content which adversely affects
downstream water upon being released to watercourses.
(3) Casing, sealing, or otherwise managing boreholes and wells to keep toxic
drainage from entering ground and surface waters.
b. Conducting surface coal mining operations so as to prevent, to the extent
possible using the best technology currently available, additional contribution of
suspended solids to streamflow, or runoff outside the permit area, but in no event
may contributions be in excess of requirements set by applicable state law.
c. Constructing any siltation structures pursuant to subdivision b prior to
commencement of surface coal mining operations, such structures to be certified
by a registered professional engineer to be constructed as designed and as
approved in the reclamation plan.
d. Cleaning out and removing temporary settling ponds or other siltation structures
from drainways after disturbed areas are revegetated and stabilized and
depositing the silt and debris at a site and in a manner approved by the
commission.
e. Restoring recharge capacity of the mined area to approximate premining
conditions to the extent possible using the best technology currently available.
f. Avoiding natural channel deepening or enlargement in operations requiring the
discharge of water from mines.
g. Preserving throughout the surface coal mining and reclamation process the
essential hydrologic functions of alluvial valley floors.
h. Such other actions as the commission may prescribe.

9. Make such repairs, alterations, or construction as necessary to ensure the delivery of
that quality and quantity of water available prior to mining to a surface owner whose
supply of water for domestic, agricultural, industrial, or other legitimate use has been
disrupted or diminished in quality or quantity by the surface coal mining operation.
Such repairs, alterations, or construction must be considered to be part of reclamation
and must be made at no cost to the surface owner. Nothing in this chapter may be
construed as affecting in any way the right of any person to enforce or protect, under
applicable law, the person's interest in water resources affected by a surface coal
mining operation.
10. Remove or bury all debris and other similar material resulting from the operation and
bury all mine wastes, coal, and commercial leonardite processing wastes unless the
commission approves the surface disposal of such wastes. If the commission
approves the surface disposal of such wastes, the permittee shall stabilize all waste
piles in designated areas through construction in compacted layers, including the use
of incombustible and impervious materials if necessary, to assure that the final contour
of the waste pile will be compatible with natural surroundings and that the site can and
will be stabilized and revegetated according to the provisions of this chapter.
11. Refrain from surface coal mining within five hundred feet [152.4 meters] of
underground mines in order to prevent breakthroughs; provided, that the commission
shall allow a permittee to mine near, through, or partially through an underground mine
if such operations will result in improved resource recovery, abatement of water
pollution, or elimination of hazards to the health and safety of the public.
12. Ensure that all debris, toxic materials, or materials constituting a fire hazard are
treated or buried and compacted or otherwise disposed of in a manner designed to
prevent contamination of ground or surface waters and that contingency plans are
developed to prevent sustained combustion. If a fire hazard exists, the commission
has the authority to require the permittee to take such actions as are necessary to
abate the hazard, both inside and outside the permit area.
13. Ensure that explosives are used only in accordance with existing state law and the
regulations promulgated by the commission, which must include provisions to:
a. Provide adequate advance written notice to local governments and residents who
might be affected by the use of such explosives by the publication of the planned
blasting schedule in a newspaper of general circulation in the locality, by mailing
a copy of the proposed blasting schedule to every resident living within one-half
mile [804.67 meters] of the proposed blasting site, and by providing daily notice to
residents in such areas prior to any blasting.
b. Maintain for a period of at least three years and make available for public
inspection upon request a log detailing the location of the blasts, the pattern and
depth of the drill holes, the amount of explosives used per hole, and the order
and length of delay in the blasts.
c. Limit the type of explosives and detonating equipment, the size, the timing, and
the frequency of blasts based upon the physical conditions of the site so as to
prevent:
(1) Injury to persons.
(2) Damage to public and private property outside the permit area.
(3) Change in the course, channel, or availability of ground or surface water
outside the permit area.
d. Require that all blasting operations be conducted by trained and competent
persons as certified by the commission.
e. Provide that upon the request of a resident or owner of a manmade dwelling or
structure within one mile [1.61 kilometers] of any portion of the permitted area the
permittee shall conduct a preblasting survey of such structures and submit the
survey to the commission and a copy to the resident or owner making the
request. The area of the survey must be decided by the commission and must
include such provisions as the commission may promulgate.

14. Ensure that all reclamation efforts proceed in an environmentally sound manner and
as contemporaneously as practicable with the surface coal mining operations,
provided that all reclamation through the initial planting on any land within the permit
area must be completed by the operator no later than three years from completion of
surface coal mining operations on such lands, unless otherwise prescribed by the
commission.
15. Ensure that the construction, maintenance, and postmining conditions of haul roads
and access roads into and across the site of operations will control or prevent erosion
and siltation, pollution of water, damage to fish or wildlife or their habitat, or public or
private property.
16. Refrain from the construction of haul roads and access roads up a streambed or
drainage channel or in such proximity to such channel so as to seriously alter the
normal flow of water.
17. Restore lands affected by the surface coal mining operation which have been
designated for postmining agricultural purposes to the level of productivity equal to or
greater, under equivalent management practices, than nonmined agricultural lands of
similar soil types in the surrounding area. For those lands which are to be rehabilitated
to native grasslands, a diverse, effective, and permanent vegetative cover must be
established of the same seasonal variety native to the area to be affected and capable
of self-regeneration, plant succession, and at least equal in extent of cover and
productivity to the natural vegetation of the area. The level of productivity and cover
attained on disturbed lands within the permit area must be demonstrated by the
permittee using comparisons with similar lands in the surrounding area having
equivalent historical management practices and that are undisturbed by mining, or
comparable disruptive activities.
18. Assume the responsibility for successful revegetation, as required by subsection 17,
for a period of ten full years after the last year of augmented seeding, fertilizing,
irrigation, or other work, provided that, when the commission approves a long-term
intensive agricultural postmining land use, the ten-year period of responsibility for
revegetation commences at the date of initial planting. However, for previously mined
areas that are affected by remining, the operator's responsibility for successful
revegetation will extend for a period of five full years after the last year of augmented
seeding, fertilizing, irrigation, and other work in order to assure compliance with the
applicable standards. For the purposes of this subsection, "previously mined areas"
are lands that were affected by coal or commercial leonardite mining activities prior to
January 1, 1970, and "augmented seeding, fertilizing, irrigation, or other work" does
not include normal conservation practices recognized locally as good management for
the postmining land use.
19. Place all spoil material from the initial pit or other excess spoil material resulting from
surface coal mining and reclamation activities in such a manner that all of the following
requirements are met:
a. Spoil is transported and placed in a controlled manner in position for concurrent
compaction and in such a way so as to assure mass stability and to prevent mass
movement.
b. The areas of disposal are within the bonded permit areas.
c. Appropriate surface and internal drainage systems and diversion ditches are
used so as to minimize spoil erosion and movement.
d. The disposal area does not contain springs, natural watercourses, or wet weather
seeps unless lateral drains are constructed from the wet areas to the main
underdrains in such a manner that filtration of the water into the spoil pile will be
prevented.
e. If placed on a slope, the spoil is placed upon the most moderate slope among
those upon which, in the judgment of the commission, the spoil could be placed in
compliance with all the requirements of this chapter.
f. The final configuration is compatible with the natural drainage pattern and
surroundings and suitable for intended uses.

g. Design of the spoil disposal area is certified by a registered professional engineer
in conformance with professional standards.
h. All other provisions of this chapter are met.
20. Meet such other criteria as are necessary to achieve reclamation in accordance with
the purposes of this chapter, taking into consideration the physical, climatological, and
other characteristics of the site.
21. To the extent possible using the best technology currently available, minimize
disturbances and adverse impacts of the surface coal mining operation on fish, wildlife,
and related environmental values, and achieve enhancement of such resources where
practicable.
### § 38-14.1-25. Prohibited mining practices.

1. A permittee may not use any coal or commercial leonardite mine waste piles
consisting of mine wastes, tailings, coal processing wastes, or other liquid or solid
wastes either temporarily or permanently as dams or embankments unless approved
by the commission after consultation with the department of water resources.
2. A permittee may not locate any part of the surface coal mining and reclamation
operations or deposit overburden, debris, or waste materials outside the permit area
for which bond has been posted, except as provided in subsection 24 of section
38-14.1-03.
3. A permittee may not deposit overburden, debris, or waste materials in such a way that
normal erosion or slides brought about by natural causes will permit the same to go
beyond or outside the permit area for which bond has been posted.
### § 38-14.1-26. Interference with commission employees.

No operator or permittee may, except as provided by law, willfully resist, prevent, impede, or
interfere with the commission or any of its agents in the performance of duties under this
chapter. Whoever knowingly violates this section is, upon conviction, subject to the penalty
provided in subsection 4 of section 38-14.1-32.
### § 38-14.1-27. Inspections and monitoring.

1. For the purpose of developing or assisting in the development, administration, and
enforcement of this chapter and of regulations promulgated by the commission in
accordance with this chapter or in the administration and enforcement of any permit
under this chapter, or of determining whether any operator or permittee is in violation
of any requirement of this chapter or the regulations promulgated by the commission in
accordance with this chapter:
a. The commission shall require any permittee to:
(1) Establish and maintain appropriate records.
(2) Submit monthly, semiannual, annual, and other reports, including
information as the commission may require.
(3) Install, use, and maintain any necessary monitoring equipment or methods.
(4) Evaluate results in accordance with such methods, at such locations,
intervals, or in such manner as the commission shall prescribe.
(5) Provide such other information relative to surface coal mining and
reclamation operations as the commission deems reasonable and
necessary.
b. For those surface coal mining and reclamation operations which remove or
disturb strata that serve as aquifers which significantly ensure the hydrologic
balance of water use either on or off the mining site, the commission, in
consultation with other appropriate state agencies, shall specify those:
(1) Monitoring sites to record the quantity and quality of surface drainage above
and below the minesite as well as in the potential zone of influence.

(2) Monitoring sites to record level, amount, and samples of ground water and
aquifers potentially affected by the mining and also directly below the
lowermost (deepest) coal or commercial leonardite seam to be mined.
(3) Records of well logs and borehole data to be maintained.
(4) Monitoring sites to record precipitation.
The monitoring data collection and analysis required by this section must be
conducted according to standards and procedures set forth by the commission in
consultation with other appropriate state agencies in order to assure their
reliability and validity.
c. An annual map must be submitted by the operator to the commission for each
year of the permit term and until the total bond amount has been released. The
map must be in a form prescribed by the commission showing the status of
surface coal mining and reclamation operations that have occurred during the
year being reported, with a legend showing the number of acres [hectares]
affected by such operations.
d. The authorized representatives of the commission, without advance notice,
without a warrant, and upon presentation of appropriate credentials:
(1) Shall have the right of entry to, upon, or through any surface coal mining
and reclamation operations or any premises in which any records required
to be maintained under this subsection are located; and
(2) May at reasonable times, and without delay, have access to and copy any
records, inspect any monitoring equipment or method of operation required
under this chapter.
2. The commission shall cause to be made such inspections of any surface coal mining
and reclamation operation as are necessary to ensure compliance with this chapter
and any regulations promulgated pursuant thereto. However, the inspections by the
commission shall:
a. Occur on an irregular basis averaging not less than one partial inspection per
month and one complete inspection per calendar quarter for the surface coal
mining and reclamation operation covered by each permit.
b. Occur without prior notice to the permittee or the permittee's agents or employees
except for necessary onsite meetings with the permittee.
c. Include the filing of inspection reports adequate to enforce the requirements of
and to carry out the terms and purposes of this chapter.
d. Occur without a warrant.
3. Each permittee shall conspicuously maintain at the entrances to surface coal mining
and reclamation operations a clearly visible sign which sets forth the name, business
address, and telephone number of the permittee and the permit number of the surface
coal mining and reclamation operation.
4. Each inspector, upon detection of each violation of any requirement of this chapter or
the regulations promulgated by the commission, shall inform the operator or permittee
in writing, and shall report in writing any such violations to the commission.
5. Copies of any material records, reports, inspection materials, or information required
under this section by the commission must be filed in the office of the county auditor of
the county in which the surface coal mining operations occur.
### § 38-14.1-28. Enforcement procedures.

1. Whenever, on the basis of any information available to it, including information from
any person, the commission has reason to believe that any requirement of this chapter
or of any regulation adopted by the commission under this chapter or any permit
condition has not been complied with, the commission shall immediately conduct an
inspection, without a warrant, of the surface coal mining operation at which the alleged
violation is occurring unless the information available is a result of a previous
inspection of such operation. If, based on such inspection, the commission determines
enforcement measures are appropriate, it shall initiate one of the following procedures:

a. If the commission or its authorized representative determines that any condition,
practice, or violation exists which also creates an imminent danger to the health
or safety of the public, or is causing, or can reasonably be expected to cause,
significant, imminent environmental harm to land, air, or water resources, the
commission or its authorized representative shall immediately order a cessation
of surface coal mining and reclamation operations or the portion thereof relevant
to the condition, practice, or violation. Such cessation order remains in effect until
the commission or its authorized representative determines that the condition,
practice, or violation has been abated, or until modified, vacated, or terminated by
the commission or its authorized representative pursuant to paragraph 2.
(1) When the commission finds that the ordered cessation will not completely
abate the imminent danger or the significant imminent environmental harm,
the commission shall, in addition to the cessation order, impose any
remedial measures on the operator deemed necessary to abate the
imminent danger or the significant environmental harm.
(2) Any cessation order issued pursuant to this paragraph expires within thirty
days of actual notice to the operator or permittee unless a public hearing is
held within that period within such reasonable proximity of the site to allow
viewings of the site during the course of the hearing.
b. If the commission or its authorized representative determines that any operator or
permittee is in violation of any requirement of this chapter or regulations
thereunder or any permit condition but it is unable to make the additional finding
that a condition, practice or violation exists which also creates an imminent
danger to the health or safety of the public, or is causing or can reasonably be
expected to cause significant, imminent environmental harm to land, air, or water
resources, the commission or its authorized representative shall serve on the
operator or permittee a notice of violation. The notice must fix a reasonable time,
not more than ninety days, for the abatement of the violation and shall provide
opportunity for an informal conference pursuant to section 38-14.1-19 and for
public hearing, if requested, pursuant to the procedures of section 38-14.1-30.
(1) If the operator or permittee does not comply with the remedial measures set
forth in the notice within the abatement period as originally fixed or
subsequently extended for good cause shown and upon the written findings
of the commission or its authorized representative, the commission or its
authorized representative shall immediately order a cessation of surface
coal mining and reclamation operations or that portion thereof relevant to
the violation. Such cessation order remains in effect until the commission
determines that the violation has been abated, or until modified, vacated, or
terminated by the commission or pursuant to paragraph 2.
(2) Any cessation order issued pursuant to this paragraph expires within thirty
days of actual notice to the operator or permittee unless a public hearing is
held within that period within such reasonable proximity of the site to allow
viewings of the site during the course of the hearing.
c. If the commission or its authorized representative determines that a pattern of
violations of any requirements of this chapter or of regulations thereunder or of
any permit conditions exists or has existed and also finds that such violations are
caused by the unwarranted failure of the permittee to comply with any
requirements of this chapter or any permit conditions, or that such violations are
willfully caused by the permittee, an order to show cause why the permit should
not be suspended or revoked shall promptly issue from the commission or its
authorized representative and opportunity for a hearing on such order pursuant to
procedures in subsection 2 of section 38-14.1-30 must be provided. Upon the
permittee's failure to show cause why the permit should not be suspended or
revoked, the commission or its authorized representative shall promptly suspend
or revoke the permit.

2. Any notices and orders issued pursuant to subsection 1 must set forth with reasonable
specificity the nature of the violation and any remedial action required, any period of
time established for abatement, and a reasonable description of the portion of the
surface coal mining and reclamation operation to which the notice or order applies. All
such notices and orders must be in writing, must be signed by the commission or its
authorized representative, and must be served promptly upon the operator and
permittee personally or by certified mail addressed to the permanent address of the
operator and permittee.
### § 38-14.1-29. Procedures for imposing civil penalties.

1. A civil penalty may be assessed by the commission as authorized by section
public hearing pursuant to the procedures specified in section 38-14.1-30.
a. If such public hearing has been held, the commission shall make findings of fact
and issue a written decision pursuant to subdivision g of subsection 3 of section
which is warranted, incorporating, when appropriate, an order requiring that the
penalty be paid.
b. If the operator or permittee charged with such violation fails to use the opportunity
for a public hearing, a civil penalty must be assessed by the commission if it
determines that a violation did occur and issues a final order requiring that the
penalty be paid.
2. Hearings under this section must be consolidated with any enforcement hearings
under section 38-14.1-30.
3. Any civil penalties assessed under this chapter may be recovered by the commission
in a civil action in the North Dakota district court for the county in which the violation
occurred or in which the party assessed has the party's residence or principal office in
the state.
### § 38-14.1-30. Administrative review of commission rulings - Formal hearings.

1. Within thirty days after a permit applicant is notified of a ruling by the commission
pursuant to section 38-14.1-20, or after an operator or permittee is issued a notice or
order pursuant to subdivision a or b of subsection 1 of section 38-14.1-28, or after the
commission disapproves an application for release of all or a portion of a performance
bond under section 38-14.1-17, or after the director of the state historical society
renders a decision on an application for approval of a cultural resources mitigation
plan under section 38-14.1-10 and subdivision u of subsection 1 of section 38-14.1-14,
the applicant, operator, or permittee, or any person with an interest that is or may be
adversely affected by the ruling, notice, or order or by an order modifying, vacating, or
terminating a notice or order, may request and initiate formal hearing procedures
before the commission. The right to the administrative review is forfeited if not
requested within thirty days of the notification of any ruling or issuance of a notice of
violation or order as provided in this subsection. The filing of an application for review
under this subsection does not operate as a stay of any order or notice.
2. Following the issuance pursuant to subdivision c of subsection 1 of section 38-14.1-28
of an order to show cause as to why a permit should not be suspended or revoked, the
commission shall hold a public hearing pursuant to procedures specified in
subsection 3 on such order to show cause. After such public hearing, the commission
shall issue a written decision concerning suspension or revocation of the permit
pursuant to subdivision g of subsection 3.
a. If the commission issues an order of permit suspension, it shall subsequently
reinstate the permit in accordance with procedures established by commission
regulations, upon a showing of compliance with the condition for reinstatement as
specified in the suspension order.
b. If the permittee fails to comply with the conditions for reinstatement as specified
in an order of suspension, the commission shall, pursuant to procedures

established by commission regulations, issue an order revoking the permit and
forfeiting the performance bond to the state of North Dakota.
c. If the commission revokes a permit, all surface coal mining operations must
cease immediately in the permit area.
3. Administrative hearings pursuant to this section must be conducted in accordance with
the provisions of chapter 28-32 and the following procedures:
a. A hearing must be held within thirty days of a request for a formal hearing under
subsection 1 or the issuance of an order to show cause under subsection 2.
b. The commission shall cause an investigation to be made as it deems appropriate
in connection with any hearing under this section. Evidence taken at a hearing
under this section held in connection with a permit application ruling under
section 38-14.1-20 may include, but is not limited to, site inspections of the land
to be affected and other surface coal mining operations carried on by the
applicant for a permit in the general vicinity of the proposed operation.
c. Hearings held pursuant to this section are subject to judicial review in accordance
with the provisions of chapter 28-32. Any requirements, procedural or otherwise,
specifically imposed under this section which are in conflict with the provisions of
chapter 28-32 shall supersede the provisions of chapter 28-32.
d. All parties to any informal conference held in reference to a permit application or
application for release of performance bond under section 38-14.1-19, and all
persons who submitted comments or written objections to the application for
release of performance bond or the permit application under sections 38-14.1-17
and 38-14.1-18 respectively, and the permittee and other interested parties in
hearings to review enforcement actions taken pursuant to section 38-14.1-28
must be given written notice of the date, place, and time of the hearing at least
twenty days prior to the hearing under this section. In case of an emergency, the
notification period may be shortened, but in no event may notice be given less
than five days prior to the hearing.
e. In addition to any notice required by chapter 28-32, notice of hearings under this
section must be published in the official newspaper of each county in which the
subject matter of the hearing is located and in other daily newspapers of general
circulation in the general vicinity of such counties, at least once a week for two
successive weeks prior to the hearing. In case of an emergency, the publication
period may be shortened, but in no event may notice be published less than five
days prior to the hearing in daily newspapers of general circulation in the general
locality of the subject matter involved.
f. No person who presides at an informal conference under section 38-14.1-19 in
reference to a permit application may preside at a formal administrative hearing
under this section or participate in making the final administrative decision
pursuant to chapter 28-32.
g. All final orders of the commission under this section, except those issued under
subsection 4, must be issued pursuant to the following procedures:
(1) Whenever a formal hearing has been held, the commission shall issue a
written order pursuant to chapter 28-32, provided that the decision must be
issued within thirty days after the hearing. The commission shall have no
discretion to increase such time period.
(2) In the event that no one with standing to request an administrative hearing
under subsection 1 requests such a hearing, the commission shall establish
whether or not a permit should be granted or suspended or revoked; or, in
enforcement proceedings, whether the violation has in fact occurred; or, in
connection with an application for release of a bond, whether the application
should be approved or denied, in whole or in part; and shall issue a final
order as appropriate pursuant to rules adopted by the commission.
4. Pending completion of any investigation and hearing procedures being conducted
under this section in connection with a request for review of a ruling on a permit
application pursuant to section 38-14.1-20 or in connection with any notice or order

issued pursuant to subdivision a or b of subsection 1 of section 38-14.1-28 and at any
time prior to a decision by the commission on the request for review of a ruling on a
permit application or a request for review of a notice or order, the permittee or any
person with an interest which is or may be adversely affected by such notice, order, or
the issuance of a permit may file with the commission a written request for temporary
relief from such notice or order or permit decision together with a detailed statement
giving reasons why such temporary relief should be granted. The commission shall
issue an order granting or denying such relief expeditiously as provided by
commission regulations. Provided, if the permittee or person with an interest which is
or may be adversely affected requests relief from a cessation order, the commission's
order under this subsection must be issued within five days of receipt of such request.
The commission may grant such relief, under such conditions as it may prescribe, if:
a. A hearing on the request for temporary relief has been held in the locality of the
permit area, providing all parties with an opportunity to be heard and the
requirements of subdivisions b and c have been met;
b. The permittee or person shows that there is substantial likelihood that the findings
of the commission in the formal administrative proceedings being conducted
pursuant to this section will be favorable to the permittee or person; and
c. Such relief will not adversely affect the health or safety of the public or cause
significant, imminent environmental harm to land, air, or water resources.
An order granting or denying temporary relief pursuant to this subsection is final and
not subject to review in any subsequent administrative or judicial proceeding since any
temporary relief granted is in effect only until the investigation and hearing procedures
of this section are completed.
5. Nothing in this section may be construed to eliminate any additional enforcement
rights or procedures which may be available under state law but are not specifically
enumerated herein.
### § 38-14.1-31. Civil action for injunctive relief.

1. In addition to other relief available, the commission may without bond or other
undertaking institute a civil action for relief, including a permanent or temporary
injunction, restraining order, or any other appropriate order in the North Dakota district
court for the district in which the surface mining and reclamation operation is located or
in which the permittee thereof has the permittee's principal office in the state,
whenever such permittee or the permittee's agent:
a. Fails to comply with any order or decision issued by the commission under this
chapter;
b. Interferes with or delays the commission or its authorized representative in
carrying out the provisions of this chapter;
c. Refuses to admit such authorized representative to the mine;
d. Refuses to permit inspection of the mine by such authorized representative;
e. Refuses to furnish any information or report requested by the commission in
furtherance of this chapter;
f. Refuses to permit access to, and copying of, such records as the commission
determines necessary in carrying out the provisions of this chapter; or
g. Refuses to permit inspection of monitoring equipment.
2. The court has jurisdiction to provide such relief as may be appropriate, including a
permanent or temporary injunction or restraining order.
3. Any relief granted by the court to enforce an order or decision under subdivision a of
subsection 1 continues in effect until the completion or termination of all proceedings
for administrative and judicial review of such order or decision unless the district court
granting relief under this section sets it aside or modifies it prior to such final
determination.
4. No liability may accrue to the commission or its authorized representatives in
proceeding against any operator or permittee pursuant to this section.

### § 38-14.1-32. Penalties - Unclassified.

1. Any operator or permittee who violates this chapter, or any permit condition or
regulation implementing this chapter may be assessed a civil penalty not to exceed ten
thousand dollars per day of such violation except that if such violation leads to the
issuance of a cessation order, a civil penalty must be assessed. Each day of
continuing violation may be deemed a separate violation for purposes of penalty
assessments. In determining the amount of the penalty, consideration must be given
to:
a. The operator's or permittee's history of previous violations at the particular
surface coal mining operation;
b. The seriousness of the violation, including any irreparable harm to the
environment and any hazard to the health or safety of the public;
c. Whether the operator or permittee was negligent; and
d. The demonstrated good faith of the operator or permittee charged in attempting
to achieve rapid compliance after notification of the violation.
2. Any operator or permittee who fails to correct a violation for which a notice or order
has been issued under section 38-14.1-28 within the period permitted for the
accomplishment of remedial measures must be assessed a civil penalty of not less
than seven hundred fifty dollars for each day during which such failure or violation
continues.
3. Any person, operator, or permittee must, upon conviction, be punished by a fine of not
more than fifteen thousand dollars or by imprisonment for not more than one year, or
both, who:
a. Knowingly engages in surface coal mining operations without previously securing
a permit as required by this chapter;
b. Knowingly violates any permit condition or limitation implementing this chapter;
c. Willfully makes any false statement, representation, or certification, or willfully
fails to make any statement, representation, or certification in any application,
record, report, plan, or other document filed or required to be maintained under
this chapter;
d. Willfully falsifies, tampers with, or knowingly and willfully renders inaccurate, any
monitoring device or method required to be maintained under this chapter; or
e. Fails or refuses to comply with a final order by a court pursuant to section
38-14.1-35, an order issued by the commission pursuant to section 38-14.1-28, or
any order incorporated in a final decision by the commission, except an order
incorporated in a decision requiring the payment of a penalty.
4. Any operator or permittee who knowingly violates section 38-14.1-26 must, upon
conviction, be punished by a fine of not more than five thousand dollars or by
imprisonment for not more than one year, or both.
5. Any employee of the commission who willfully violates section 38-14.1-38 must, upon
conviction, be punished by a fine of not more than two thousand five hundred dollars,
or by imprisonment of not more than one year, or both.
6. Whenever a corporate permittee or limited liability company permittee violates a
condition of a permit or fails or refuses to comply with an order issued by the
commission pursuant to section 38-14.1-28, or any order incorporated in a final
decision issued by the commission, except an order incorporated in a decision
requiring the payment of a penalty, any director, officer, or agent of such corporation
and any governor, manager, or agent of such limited liability company who willfully and
knowingly authorized, or carried out such violation, failure, or refusal is subject to the
same criminal and civil penalties, fines, and imprisonment that may be imposed under
subsections 1 and 3.
7. Any action for the collection of civil penalties under this section must be tried in the
district court for the county in which the alleged violation occurred or in which the
person or operator alleged to have committed the violation has the person's or
operator's residence or principal office in the state.

### § 38-14.1-33. Permit revocation - Bond forfeiture.

1. The commission may institute proceedings for the revocation of the permit and
forfeiture of the performance bond of a permittee for violation by the permittee of any
of the provisions of this chapter or of regulations implementing this chapter. The
commission shall issue an order forfeiting the bond and revoking the permit of a
permittee who fails to comply with an order of the commission suspending the permit
pursuant to subsection 2 of section 38-14.1-30.
2. A permittee whose bond has been forfeited and permit revoked shall immediately
cease all surface coal mining operations in this state. The permittee is not eligible to
receive another permit unless the land for which the bond was forfeited has been
reclaimed without cost to the state or the permittee has paid into the reclamation
account a sum which, added to the value of the bond, the commission finds adequate
to reclaim the land.
3. A permittee who refuses or willfully fails to comply with this chapter is ineligible for any
further mining permits. After an opportunity for hearing and after a finding by the
commission that the permit applicant, or operator specified in the application, controls
or has controlled mining operations with a demonstrated pattern of willful violations of
this chapter, or the Surface Mining Control and Reclamation Act of 1977 [Pub. L.
95-87; 91 Stat. 445; 30 U.S.C. 1201, et seq.], of such nature and duration and with
such resulting irreparable damage to the environment as to indicate an intent not to
comply with the provisions of this chapter, or the Surface Mining Control and
Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201, et seq.], no
permit may be issued to said permit applicant or permittee.
### § 38-14.1-34. Administrative review of regulations.

Any person aggrieved or adversely affected by any regulation promulgated by the
commission under this chapter may petition the commission for a hearing to reconsider or
amend such regulation. The commission shall grant a public hearing pursuant to procedures
established in chapter 28-32.
### § 38-14.1-35. Judicial review.

1. There is a right to judicial review pursuant to sections 28-32-42 through 28-32-49:
a. To any applicant or any person with an interest which is or may be adversely
affected who has participated in administrative proceedings under section
commission.
b. To any person with an interest which is or may be adversely affected who has
participated in the administrative proceedings if the commission fails to act within
the time limits specified in this chapter or in accordance with the provisions of
chapter 28-32.
c. To any permittee who is subject to an order by the commission implementing a
final decision to suspend or revoke the permittee's permit under section
commission implementing a final decision imposing a penalty under section
affected by such order or by any modification, vacation, or termination of such
order.
d. To any person claiming to be aggrieved or adversely affected by any regulation
promulgated by the commission to carry out the provisions of this chapter or by
any order of the commission or by its failure to enter an order.
2. Availability of judicial review under this section may not be construed to limit the
operation of the rights established in section 38-14.1-40 except as provided therein.

### § 38-14.1-36. Assessment of costs - Attorney's fees.

1. Whenever an order is issued as a result of any administrative proceeding under this
chapter, at the request of any party, a sum equal to the aggregate amount of all costs
and expenses, including attorney's fees as determined by the commission to have
been reasonably incurred by such party for or in connection with the party's
participation in such proceedings, may be assessed against any party as the
commission deems proper.
2. The court, in issuing any final order pursuant to chapter 28-32 in review of commission
proceedings under this chapter may assess costs, including attorney's fees against
any party whenever the court determines such award is appropriate.
3. The court, in issuing any final order in a civil action brought under section 38-14.1-40
by any person having an interest which is or may be adversely affected to compel
compliance with this chapter, may award costs of litigation, including attorney's and
expert witness fees, to any party whenever the court determines such award is
appropriate.
4. In civil proceedings pertaining to this chapter, the provisions of this section govern as
herein provided, rather than those provided for in section 28-26-01.
### § 38-14.1-37. Small operators.

1. The provisions of this chapter do not apply to any of the following activities:
a. Extraction of coal or commercial leonardite by a landowner for the landowner's
own noncommercial use from land owned or leased by the landowner.
b. Extraction of coal or commercial leonardite as an incidental part of federal, state,
or local government-financed highway or other construction under regulations
established by the commission.
2. If the commission finds that the probable total annual production at all locations to be
mined by any permit applicant will not exceed three hundred thousand tons
[272155.41 metric tons], the cost of the following activities, which must be performed
by a qualified public or private entity designated by the commission, may be assumed
by the commission upon the written request of the operator in connection with a permit
application:
a. The determination of probable hydrologic consequences required by
subdivision o of subsection 1 of section 38-14.1-14, including the engineering
analyses and designs necessary for the determination.
b. The development of cross sections, maps, and plans required by subdivision r of
subsection 1 of section 38-14.1-14.
c. The geologic drilling and the statement of the result of test borings and core
samplings required by subdivision s of subsection 1 of section 38-14.1-14.
d. The collection of cultural resource information required by subdivision u of
subsection 1 of section 38-14.1-14, any other archaeological and historical
information required by the director of the state historical society, and the
preparation of mitigation plans necessitated thereby.
e. Preblast surveys required by subdivision e of subsection 13 of section
38-14.1-24.
f. The collection of site-specific resource information and the development of
protection and enhancement plans for fish and wildlife habitats and other
environmental values required by the commission in accordance with this
chapter.
3. The commission may provide or assume the cost of training coal or commercial
leonardite operators who meet the qualifications in subsection 2 concerning the
preparation of permit applications and compliance with the regulatory program.
4. An operator who has received assistance under subsection 2 or 3 shall reimburse the
commission for the cost of the services rendered if the commission finds that the
operator's actual and attributed annual production of coal or commercial leonardite for
all locations exceeds three hundred thousand tons [272155.41 metric tons] during the

twelve months immediately following the date the operator is issued a surface coal
mining and reclamation permit.
5. Proposed surface coal mining operations that will not be subject to payment of
reclamation fees required by the Surface Mining Control and Reclamation Act of 1977
[Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.] are not eligible for the assistance
to small operators provided by subsections 2 and 3.
### § 38-14.1-38. Conflict of interest.

No employee of the commission performing any function or duty under this chapter may
have a direct or indirect financial interest in any underground or surface coal mining operation.
Whoever willfully violates this section is, upon conviction, subject to the penalty provided in
subsection 5 of section 38-14.1-32. The commission shall promulgate regulations to establish
methods by which the provisions of this section will be monitored and enforced by the
commission, including appropriate provisions for the filing by such employees and the review of
statements and supplements thereto concerning any financial interests which may be affected
by this section.
### § 38-14.1-39. Forfeitures - Surface mining and reclamation fund - Continuing

appropriation.
Performance bond forfeitures collected under this chapter must be deposited in the state
treasury and credited to a special account designated as the surface mining and reclamation
fund. All moneys deposited to the surface mining and reclamation fund are hereby appropriated
to the commission for the purpose of reclaiming land affected by surface coal mining operations.
The fund is not subject to section 54-44.1-11.
### § 38-14.1-40. Citizen suits.

1. Any person having an interest which is or may be adversely affected may commence a
civil action on the person's own behalf to compel compliance with this chapter, or any
regulation, order, or permit issued pursuant to this chapter:
a. Against any person or any governmental instrumentality or agency who is alleged
to be in violation of any regulation, order, or permit issued pursuant to this
chapter; or
b. Against the commission when there is alleged a failure of the commission to
perform any act or duty under this chapter which is not discretionary with the
commission.
2. Notice of the violation must be given to the commission and to any alleged violator
sixty days before commencement of an action under subdivision a of subsection 1.
Notice of the commencement of an action under subdivision b of subsection 1 must be
given to the commission in such manner as the commission shall prescribe by
regulation sixty days before commencement of such action, except that such action
may be brought immediately after notification if the violation or order complained of
constitutes an imminent threat to the health or safety of the plaintiff or would
immediately affect a legal interest of the plaintiff.
3. No action may be commenced if the commission has commenced and is diligently
prosecuting a civil action to require compliance with the provisions of this chapter, or
any regulation, order, or permit issued pursuant to this chapter. In any such action, any
person with an interest which is or may be adversely affected may intervene as a
matter of right.
4. Any person who is injured in person or property through the violation by any operator
or permittee of any rule, order, or permit issued pursuant to this chapter may bring an
action for damages, including reasonable attorney's and expert witness fees, or for
temporary or permanent equitable relief. This subsection does not affect the rights
established by or limits imposed under the state workforce safety and insurance laws.

5. Any action brought under this section may be brought only in the district court in which
the surface coal mining operation complained of is located. The commission, if not a
party, may intervene in any such action as a matter of right.
6. Nothing in this section restricts any right which any person or class of persons may
have under any statute or common law to seek enforcement of any of the provisions of
this chapter and the regulations thereunder, or to seek any other relief, including relief
against the commission.
### § 38-14.1-41. Chapter 28-32 to apply to this chapter - Regulations.

Chapter 28-32 applies to this chapter, except as otherwise provided in specific provisions of
this chapter. The commission may promulgate regulations with respect to the administration of
this chapter under chapter 28-32 except that if the commission determines that an emergency
exists due to changes in federal performance standards promulgated under the Surface Mining
Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.], and
any amendments thereto, the commission may adopt emergency regulations in accordance with
the purposes of this chapter, which are effective immediately upon approval by the attorney
general. Such emergency regulations remain in effect for a period not to exceed ninety days
unless a public hearing is held pursuant to sections 28-32-10 and 28-32-11.
### § 38-14.1-42. Cooperation with federal and state agencies.

The commission shall have the authority to cooperate with and receive technical and
financial assistance from the United States, any state, or any department, agency, or officer
thereof, and to file such reports and promulgate regulations as required by federal law for any
purposes relating to reclamation. In the administration, inspection, and enforcement of North
Dakota's reclamation program, the commission is also authorized and encouraged to cooperate
with other federal and state agencies in order to eliminate duplication of effort and unnecessary
review, establish a common database for similar reviews and timely decisions, and to
promulgate rules and regulations relevant to such authorization.
