§ 880-X-8K-.10. Review Of Permit Applications
(a) The Alabama Surface Mining Commission shall review the application for a permit, revision, or renewal, written comments and objections submitted; and records of any informal conference or hearing held on the application and issue a written decision within sixty (60) days following public notice and opportunity for public hearing as provided in Section 880-X-8K-.05. If an informal conference is held pursuant to Section 880-X-8K-.05, the decision shall be made within sixty (60) days of the close of the conference, unless a later time is necessary to provide an opportunity for a hearing under paragraph (2)(c) of this section.
(b) The applicant for a permit or revision of a permit shall have the burden of establishing that his application is in compliance with all the requirements of the regulatory program.
(2) Review of violations.
(a) Based on available information concerning Federal and State failure-to-abate cessation orders, unabated Federal and State imminent harm cessation orders, delinquent civil penalties issued pursuant to any State or Federal regulatory program under 30 USC 1268, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violations of Federal and State laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, the Regulatory Authority shall not issue the permit if any surface coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant is currently in violation of the Act or any other law, rule, or regulation referred to in this paragraph. In the absence of a failure-to-abate cessation order, the Alabama Surface Mining Commission may presume that a notice of violation issued pursuant to 880-X-11C-.03 or under a Federal or State program has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except where evidence to the contrary is set forth in the permit application, or where the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties. If a current violation exists, the Alabama Surface Mining Commission shall require the applicant or person who owns or controls the applicant, before the issuance of the permit, to either --
1. Submit to the Alabama Surface Mining Commission proof that the current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation; or
2. Establish for the Alabama Surface Mining Commission that the applicant, or any person owned or controlled by either the applicant or any person who owns or controls the applicant, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the current violation. If the initial judicial review authority affirms the violation, then the applicant shall within 30 days of the judicial action submit the proof required under paragraph (2)(a)1. of this section.
(b) Any permit that is issued on the basis of proof submitted under paragraph (2)(a)l. of this section that a violation is in the process of being corrected, or pending the outcome of an appeal described in paragraph (2) (a) 2. of this section, shall be conditionally issued.
(c) If the Alabama Surface Mining Commission makes a finding that the applicant, anyone who owns or controls the applicant, or the operator specified in the application, controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of any State or Federal regulatory program under 30 USC 1201, et seq., of such nature and duration, and with resulting irreparable damage to the environment as to indicate an intent not to comply with the Act, no permit shall be issued. Before such a finding becomes final, the applicant or operator shall be afforded an opportunity for an adjudicatory hearing on the determination as provided for in 880-X-8L.
1. Subsequent to October 24, 1992, the prohibitions of paragraph (2) of this section regarding the issuance of a new permit shall not apply to any violation that:
(i) Occurs after that date;
(ii) Is unabated; and
(iii) Results from an unanticipated event or condition that arises from a surface coal mining and reclamation operation on lands that are eligible for remining under a permit:
(I) Issued before September 30, 2004, or any renewals thereof; and
(II) Held by the person making application for the new permit.
2. For permits issued under 880-X-8J-.13, an event or condition shall be presumed to be unanticipated for the purposes of this paragraph if it:
(i) Arose after permit issuance;
(ii) Was related to prior mining; and
(iii) Was not identified in the permit.
(3) Written findings for permit application approval. No permit application or application for a significant revision of a permit shall be approved unless the application affirmatively demonstrates and the Alabama Surface Mining Commission finds, in writing, on the basis of information set forth in the application or from information otherwise available that is documented in the approval, the following:
(a) The application is complete and accurate and the applicant has complied with all requirements of the Act and the regulatory program.
(b) The applicant has demonstrated that reclamation as required by the Act and the regulatory program can be accomplished under the reclamation plan contained in the permit application.
(c) The proposed permit area is --
1. Not within an area under study or administrative proceedings under a petition, filed pursuant to Chapter 7 to have an area designated as unsuitable for surface coal mining operations, unless the applicant demonstrates that before January 4, 1977, he has made substantial legal and financial commitments in relation to the operation covered by the permit application; or
2. Not within an area designated as unsuitable for mining pursuant to Chapter 880-X-7 or within an area subject to the prohibitions or limitations of Section 880-X-7B-.06 of these regulations.
(d) For mining operations where the private mineral estate to be mined has been severed from the private surface estate, the applicant has submitted to the Alabama Surface Mining Commission the documentation required under Section 880-X-8D-.07 and Section 880-X-8G-.07 of this chapter.
(e) The Alabama Surface Mining Commission has made an assessment of the probable cumulative impacts of all anticipated coal mining on the hydrologic balance in the cumulative impact area and has determined that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.
(f) The applicant has demonstrated that any existing structure will comply with Section 880-X-2B-.01, and the applicable performance standards of Chapter 3 or 10.
(g) The applicant has paid all reclamation fees from previous and existing operations as required by 30 C.F.R., Subchapter R.
(h) The applicant has satisfied the applicable requirements of Subchapter 880-X-8J.
(i) The applicant has, if applicable, satisfied the requirements for approval of a long-term, intensive agricultural, postmining land use, in accordance with the requirements of 880-X-10C-.58(4) and 880-X-10D-.52(4).
(j) The operation would not affect the continued existence of endangered or threatened species or result in destruction or adverse modification of their critical habitats, as determined under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
(k) The Alabama Surface Mining Commission has taken into account the effect of the proposed permitting action on properties listed or eligible for listing on the National Register of Historic Places. This finding may be supported in part by inclusion of appropriate permit conditions or changes in the operation plan protecting historic resources, or a documented decision that the Alabama Surface Mining Commission has determined that no additional protection measures are necessary.
(l) For a proposed remining operation where the applicant intends to reclaim in accordance with the requirements of Section 880-X-10C-.56 or 880-X-10D-.49, the site of the operation is a previously mined area as defined in Section 880-X-2A-.06.
(m) For permits to be issued under 880-X-8J-.13, the permit application must contain:
1. Lands eligible for remining;
2. An identification of the potential environmental and safety problems related to prior mining activity which could reasonably be anticipated to occur at the site; and
3. Mitigation plans to sufficiently address these potential environmental and safety problems so that reclamation as required by the applicable requirements of the regulatory program can be accomplished.
(4) Performance bond submittal. If the Alabama Surface Mining Commission decides to approve the application, it shall require that the applicant file the performance bond or provide other equivalent guarantee before the permit is issued, in accordance with the provisions of Chapter 880-X-9.
(5) Final compliance review. After an application is approved, but before the permit is issued, the Alabama Surface Mining Commission shall reconsider its decision to approve the application, based on the compliance review required by paragraph (2)(a) of this section in light of any new information submitted under 880-X-8D-.05(8) or 880-X-8.
Author: Randall C. Johnson(Original Filed November 14, 1989; effective March 7, 1991. Amended: September 12, 1991; effective June 10, 1992. Amended: Filed: September 21, 1993; effective November 20, 1993. Amended: Filed July 27, 1998; effective August 31, 1998; operative January 3, 1999. Amended: Filed August 23, 2001; effective September 27, 2001.)
On December 4, 1998, the Office of Surface Mining approved this rulemaking adopted by the commission on July 16, 1998. The effective date of this rule will be January 3, 1999. On February 5, 2002, the Office of Surface Mining approved this rulemaking adopted by the commission on August 16, 2001. The effective date of this rule will be March 7, 2002.
Statutory Authority: Code of Ala. 1975, §§ 9-16-71, et seq.
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