Current through Register Vol. 63, No. 9, September 1, 2024
(1)
Within 90 days after receiving an application for an operating permit:
(a) The Department will issue the operating
permit or
(b) Notify the applicant
if the Department determines that either the permit application or the proposed
reclamation plan is not complete.
(c) If the Department determines the
application is incomplete it will notify the applicant of the information or
documentation needed to make the submittal complete. A notice of an incomplete
submittal does not constitute a denial of the operating permit application and
proposed reclamation plan.
(d) The
Department will determine the adequacy of the operating permit application and
proposed reclamation plan by taking the following actions:
(A) Inspect the site in accordance with OAR
632-030-0024 and file an inspection report;
(B) Circulate the complete operating permit
application, including the proposed reclamation plan, draft operating permit,
an inspection report or an evaluation to appropriate federal, state, and local
agencies for review and comment.
(C) Notify the affected local government in
writing that an operating permit application and proposed reclamation plan have
been received by the Department, accompanied by a request that a determination
be made if a local land-use permit pursuant to ORS
215.428 or
227.178 or a comprehensive plan amendment is required.
(D) Determine the appropriate amount of the
reclamation bond or alternative form of security; and
(E) Notify the applicant of any deficiencies
that will be addressed by attaching conditions to the operating
permit.
(2) The
Department will ensure consistency with local government land-use plans and
regulations as follows:
(a) Applications
involving a local land-use permit and a request by the affected local
jurisdiction that it act first: If the affected local government informs the
Department under subsection (1)(d)(C) of this rule that the application
involves an aggregate site that requires a local-land use permit issued
pursuant to ORS
215.428 or
227.178,
and the local government requests that the application not be decided by the
Department until the local government has taken final action, the Department
will make its final decision on the operating permit and reclamation plan no
later than 165 days after the date a complete land-use application is submitted
to the local government, unless the applicant agrees to allow additional time
under ORS
215.428 or
227.178.
The Department will not approve the operating permit and reclamation plan or
modification to existing permits if the application for the local land-use
permit is denied by the local jurisdiction. However, in a situation where
action on the local land-use permit is still pending, the Department may
initiate its review of the application for its technical acceptability before
the local government makes its final decision. The results of the Department's
technical review will be provided to the local government and the applicant.
For the purposes of this section, a requirement for review of a site plan is
not a local land-use permit.
(b)
Applications involving a comprehensive plan amendment: If the affected local
government informs the Department under subsection (1)(d)(C) of this rule that
the application involves an aggregate site that requires a comprehensive plan
amendment, and the local government requests that the application not be
decided until the local government has taken final action on the plan
amendment, the Department will not make its final decision on the operating
permit and reclamation plan until the local government has taken final action
on the plan amendment. The Department will make its final decision on an
application within 45 days of the date that the local government has taken
final action on the plan amendment unless a longer period is required under
subsection (2)(a) of this rule. For applications for new operating permits or
intensification or substantial modification to existing operating permits the
Department will not approve the operating permit or intensification or
substantial modification if the application for the comprehensive plan
amendment is denied by the local jurisdiction.
(c) If the affected local government does not
request that the Department delay a decision on an operating permit and a
reclamation plan as provided in subsection (2)(a) or (b) of this rule, the
Department will give the local government opportunity to review and comment on
the application in the manner described in subsection (1)(d)(B) of this rule.
If the local government fails to respond in writing within 30 days of mailing,
the Department will issue its decision within 45 days of receipt of complete
application. Local government approval must also be obtained before operation
under the permit can begin.
(d) If
no local government permit or approval is required, the applicant shall provide
a written statement to that effect from the local government to the
Department.
(3)
(a) The Department will notify the affected
local government of the Department's decision under subsections (2) (a), (b),
and (c) of this rule to approve or deny an operating permit and reclamation
plan, including any requirements and conditions imposed by the
Department.
(b) Any conditions and
requirements imposed by the Department on an operating permit and reclamation
plan, including any modifications made pursuant to OAR 632-030-0035, issued
subsequent to a final local land-use approval must be compatible with the
requirements and conditions of the local government land-use plan and permit,
including any conditions established to comply with statewide planning Goal 5,
unless more stringent Department requirements are necessary to comply with the
provisions of ORS
517.750 to
517.900. Any issue
concerning the compatibility of the Department's permit decision with the
requirements and conditions of the local government comprehensive plan or
land-use permit may be addressed in accordance with the Department's dispute
resolution process as set forth in OAR 632-001-0015(6).
(4) Within 60 days after the receipt of a
deficiency list or permit conditions, the applicant shall comply with the
additional requirements prescribed by the Department or file a written notice
of appeal of the decision to the Department in accordance with OAR
632-030-0056. Failure to comply with the additional requirements or file a
notice of appeal within the 60-day period, unless an extension is granted by
the Department, may result in the application for an operating permit being
denied. As provided in ORS
517.830(2),
the Department may issue a provisional operating permit to the applicant
pending the outcome of the appeal, subject to the requirements of sections (1)
through (3) of this rule.
(5) The
Department may determine that the applicant's reclamation plan is technically
acceptable if it adequately provides for reclamation of surface mined lands as
required by OAR chapter 632, division 30, without issuing an operating permit,
and so advise the local government.
(6) The Department may attach conditions to
the operating permit. These conditions may be added to reflect special concerns
which are not adequately addressed in the reclamation plan and fall within the
scope of these rules. The permittee may appeal these conditions by filing a
written notice of appeal in accordance with OAR 632-030-0056.
(7) The approval of the reclamation plan and
the issuance of the operating permit by the Department does not constitute a
finding of compliance with statewide planning goals or local regulations
implementing acknowledged comprehensive land-use plans. The permittee is
responsible for obtaining local land-use approval before commencing the
proposed surface mining activity. When issued by the Department, a statement
placed on the operating permit and approved reclamation plan under subsection
(2)(c) of this rule, will inform the applicant that:
(a) Issuance of the operating permit and
approval of the reclamation plan is not a finding of compliance with the
statewide planning goals (ORS
197.225) or
compatibility with the acknowledged comprehensive plan; and
(b) The applicant must receive any land-use
approval required from the affected local government before commencing surface
mining authorized under the approved operating permit and reclamation
plan.
(8) The Department
may not issue, amend, renew, or transfer an operating permit to a person if
person is not complying with the terms of an operating permit, reclamation
plan, the provisions of the Act, or these rules. The Department may refuse to
issue, amend, renew or transfer an operating permit to a person that has not
substantially complied with an operating permit, a reclamation plan, the
provisions of the Act, or these rules. For purposes of this rule, a person
includes a subsidiary or other entity in which the person has a substantial
financial interest.
(9) The minimum
time periods for Department action established by this rule do not apply to
applications on high value farmland in the Willamette Valley that are subject
to OAR 632-030-0023. The Department will process applications subject to OAR
632-030-0023, in a timely manner by making a completeness determination within
120 days of receipt of an application and, making a permit decision within 90
days after determining the application is complete.
Statutory/Other Authority: ORS
197.180 & ORS 517
Statutes/Other Implemented: ORS
517.790,
ORS
517.810 & ORS
517.825
