Current through Reg. 50, No. 13; March 28, 2025
(a) The
Commission shall:
(1) review the complete
application and written comments, written objections submitted, and the record
of any public hearing held under §§
12.208-
12.214 of this title (relating to
Opportunity for Submission of Written Comments on Permit Applications; Right to
File Written Objections; Public Availability of Information in Permit
Applications on File with the Commission; Public Hearing on Application; Notice
of Public Hearing on Application; Continuance; and Transcript);
(2) determine the adequacy of the fish and
wildlife plan submitted pursuant to §
12.144 or §
12.195 of this title (relating to
Fish and Wildlife Plan), in consultation with state and federal fish and
wildlife management and conservation agencies having responsibilities for the
management and protection of fish and wildlife or their habitats which may be
affected or impacted by the proposed surface coal mining and reclamation
operations;
(3) based on an
administratively complete application, enter into AVS:
(A) the information required to be submitted
under §12.116(b) and (c) or §
12.156(b) and (c)
of this title (relating to Identification of Interests and Compliance
Information); and
(B) the
information submitted under § 12.116(e) or §
12.156(e) of
this title pertaining to violations which are unabated or uncorrected after the
abatement or correction period has expired; and
(4) update the information referred to in
paragraph (3) of this subsection in AVS upon verification of any additional
information submitted or discovered during the permit application
review.
(b) Within the
time frame provided by the APA if the public hearing provided for occurs, or
within 45 days of the last publication of notice of application if no public
hearing is held, the Commission shall notify the applicant and any objectors
whether the application has been approved or denied.
(c) All provisions of the APA apply to each
permit application and notices, other than specifically provided for above, of
hearings and appeals are governed thereby.
(d) If the 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 Subchapter J of this chapter (relating to Bond and
Insurance Requirements for Surface Coal Mining and Reclamation
Operations).
(e) The following
criteria shall apply with regard to denial or conditional issuance of an
application for permit:
(1) if the Commission
determines from either the schedule submitted as part of an application
submitted after the adoption of these rules under § 12.116(e) or §
12.156(e) of
this title, or from other 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 the Act or
Federal Act or federally-approved coal regulatory program, 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 any state laws, rules, and regulations pertaining to air or water
environmental protection incurred in connection with any surface coal mining
operation, the Commission shall deny 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 subsection. In the
absence of a failure-to-abate cessation order, the Commission may presume that
a notice of violation issued pursuant to §
12.678 of this title (relating to
Notices of Violation) 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 Commission shall require the applicant or person who owns or
controls the applicant, before the issuance of the permit, to either:
(A) submit to the 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
(B) establish for the 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 affirms
the violation, the applicant shall within 30 days of the judicial action submit
the proof required under subparagraph (A) of this paragraph;
and
(2) any permit that
is issued on the basis of proof submitted under paragraph (1)(A) of this
subsection that a violation is in the process of being corrected, or pending
the outcome of an appeal described in paragraph (1)(B) of this subsection,
shall be conditionally issued.
(f) Before any final determination by the
Commission that the applicant, anyone who owns or controls the applicant, or
the operator specified in the application, controls or has controlled mining
operations with a demonstrated pattern of willful violations of the Act or
Federal Act and its implementing Federal Regulations and all federal and state
programs approved under the Federal Act or federal or state laws as used in
30 CFR
773.15(b) of such nature,
duration, and with such resulting irreparable damage to the environment that
indicates an intent not to comply with the provisions of the Act or Federal Act
and its implementing Federal Regulations and all federal and state programs
approved under the Federal Act or federal or state laws as used in
30 CFR
773.15(b), no permit shall
be issued and a hearing shall be held. The applicant or operator shall be
afforded an opportunity for an adjudicatory hearing on the determination as
provided for in the regulatory program. Such hearing shall be conducted
pursuant to §
12.222 of this title (relating to
Administrative Review). The Commission shall deny an application after a
determination has been made that a pattern of willful violations
exists.
(g) After an application is
approved, but before the permit is issued, the Commission shall review and
consider any new compliance information submitted pursuant to §
12.116(a)(2) of
this title under the criteria of subsection (e)(1) of this section. If the
applicant fails or refuses to respond as required by the Commission to provide
new compliance information, or the new compliance information shows that the
applicant, anyone who owns or controls the applicant, or the operator is in
violation, the Commission shall deny the permit.
(h) The Commission shall rely upon the permit
history information submitted in the application under § 12.116(c) or
§
12.156(c) of
this title, information from AVS, and any other available information to review
the permit histories of the applicant and its operator. The Commission shall:
(1) conduct a review of the permit history
information before making a permit eligibility determination under subsection
(j) of this section;
(2) determine
whether the applicant or its operator have previous mining experience;
and
(3) conduct an additional
review under §
12.234(c)(6) of
this title (relating to Challenge of Ownership or Control, Information on
Ownership and Control, and Violations, and Applicant/Violator System
Procedures) if the applicant or operator do not have any previous mining
experience to determine if a person with mining experience controls the mining
operation.
(i) The
Commission, relying upon the violation information supplied by the applicant
under § 12.116(e) or §
12.156(e) of
this title, a report from AVS, and any other available information to review
histories of compliance with the Act or the applicable State regulatory
program, and any other applicable air or water quality laws, for the permittee,
operator, and for operations owned or controlled by the permittee or by the
operator, shall conduct the review before making a permit eligibility
determination required under subsection (j) of this section.
(j) Based on reviews of the applicant's and
any operator's organizational structure and ownership or control relationships
provided in the application as required under subsections (h) and (i) of this
section, the Commission shall determine whether an applicant is eligible for a
permit under §134.068 and §134.069 of the Act (relating to Schedule
of Notices of Violations, and to Effect of Past or Present Violation).
(1) Except as provided in subsections (k) and
(l) of this section, an applicant is not eligible for a permit if the
Commission finds that any surface coal mining operation that:
(A) the applicant directly owns or controls
has an unabated or uncorrected violation; or
(B) the applicant or the operator indirectly
controls has an unabated or uncorrected violation and the control was
established or the violation was cited after November 2,
1988.
(2) The Commission
shall not issue the permit if the applicant or operator are permanently
ineligible to receive a permit under §
12.234(c)(3) of
this title.
(3) After approval of
the permit under §
12.216 of this title (relating to
Criteria for Permit Approval or Denial), the Commission shall not issue the
permit until the information updates and certification requirements of §
12.116(a)(2) or
§
12.156(a)(2) of
this title are met. After the applicant completes this requirement, the
Commission shall again request a compliance history report from AVS to
determine if there are any unabated or uncorrected violations which affect
permit eligibility under paragraphs (1) and (2) of this subsection. The
Commission shall request this report no more than five business days before
permit issuance under §
12.218 and §
12.219 of this title (relating to
Permit Approval or Denial Actions, and Permit Terms).
(4) If the applicant is determined to be
ineligible for a permit under this section, the Commission shall send written
notification to the applicant of its decision. The notice will contain an
explanation as to why the applicant is ineligible and include notice of the
rights of appeal under §
12.222 and §
12.223 of this title (relating to
Administrative Review, and Judicial Review).
(k) An applicant is eligible for a permit:
(1) under subsection (j) of this section if
an unabated violation:
(A) occurred after
October 24, 1992; and
(B) resulted
from an unanticipated event or condition at a surface coal mining and
reclamation operation on lands that are eligible for remining under a permit
that was held by the person applying for the new permit; or
(2) under §
12.206 of this title (relating to
Mining in Previously Mined Areas), an event or condition is presumed to be
unanticipated for the purpose of this section if it:
(A) arose after permit issuance;
(B) was related to prior mining;
and
(C) was not identified in the
permit application.
(l) For provisionally issued permits:
(1) This subsection applies to an applicant
who owns or controls a surface coal mining and reclamation operation with:
(A) a notice of violation for which the
abatement period has not yet expired; or
(B) a violation that is unabated or
uncorrected beyond the abatement or correction period.
(2) The Commission shall find an applicant
eligible for a provisionally issued permit under this section if the applicant
demonstrates that one or more of the following circumstances exists with
respect to all violations listed in paragraph (1) of this subsection:
(A) for violations meeting the criteria of
paragraph (1)(A) of this subsection, the applicant certifies that the violation
is being abated to the satisfaction of the regulatory authority with
jurisdiction over the violation, and the Commission has no evidence to the
contrary;
(B) the applicant,
operator, and operations owned or controlled by the applicant or operator, as
applicable, are in compliance with the terms of any abatement plan, or a
payment schedule for delinquent fees or penalties, approved by the
Commission;
(C) the applicant is
pursuing a good faith:
(i) challenge to all
pertinent ownership or control listings or findings under §
12.234(a)(1) -
(3) of this title; or
(ii) administrative or judicial appeal of all
pertinent ownership or control listings or findings, unless there is an initial
judicial decision affirming the listing or finding and that decision remains in
force; or
(D) the
violation is the subject of a good faith administrative or judicial appeal
contesting the validity of the violation, unless there is an initial judicial
decision affirming the violation and that decision remains in
force.
(3) A
provisionally issued permit will be considered to be improvidently issued, and
the Commission will immediately initiate procedures under §
12.225(g) of
this title (relating to Commission Review of Outstanding Permits) to suspend or
rescind that permit, if:
(A) violations
included in paragraph (2)(A) of this subsection are not abated within the
specified abatement period;
(B) the
permittee, operator, or operations that the permittee or operator own or
control do not comply with the terms of an abatement plan or payment schedule
mentioned in paragraph (2)(B) of this subsection;
(C) in the absence of a request for judicial
review, the disposition of a challenge and any subsequent administrative review
referenced in paragraph (2)(C) or (D) of this subsection affirms the validity
of the violation or the ownership or control listing or finding; or
(D) the initial judicial review decision
referenced in paragraph (2)(C)(ii) or (D) of this subsection affirms the
validity of the violation or the ownership or control listing or
finding.