VARIANCE FROM REQUIREMENT TO RESTORE CONTOUR.

(a) The commission may grant a variance from the requirement in Section 134.108(a)(2) to restore to approximate original contour after steep slope surface coal mining if:

(1) the surface owner requests in writing, as part of the permit application, that the variance be granted to render the land suitable after reclamation for industrial, commercial, residential, or public use, including use as a recreational facility;

(2) the watershed control of the affected area is improved; and

(3) other requirements of this section are met.

(b) The watershed control of an affected area is considered to be improved for purposes of Subsection (a) if the potential use of the affected land is:

(1) considered by the commission, after consultation with the appropriate land use planning agencies, if any, to constitute an economic or public use equal to or better than the premining use;

(2) designed and certified by a qualified registered professional engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site; and

(3) approved by the appropriate state environmental agencies.

(c) In granting a variance under this section, the commission shall require the operator to:

(1) backfill with spoil material to cover the highwall completely and ensure that the material maintains stability after mining and reclamation;

(2) place off the mine bench only the amount of spoil necessary to achieve the planned postmining land use;

(3) comply with Section 134.106 in placing spoil off the mine bench;

(4) ensure stability of the spoil retained on the bench; and

(5) meet the other requirements of this chapter.

(d) The commission shall adopt specific rules to govern the granting of variances under this section and may impose additional requirements it considers necessary.

(e) A variance granted under this section shall be reviewed not later than the third anniversary of the date the permit is issued unless the permit holder demonstrates that the proposed development is proceeding in accordance with the terms of the reclamation plan.