10 CSR 40-9.030 - Rights of Entry
PURPOSE: This rule sets forth requirements for the entry onto land by the state under the state reclamation plan for purposes of reclamation and of conducting studies or exploratory work to determine the existence of adverse effects of past coal mining practices and performing reclamation work pursuant to sections 444.810, 444.925 and 444.940, RSMo.
(1) Consent to Entry.
The commission, its agents, employees or contractors shall take all reasonable
actions to obtain written consent from the owner of record of the land or
property to be entered in advance of such entry. The consent shall be in the
form of a signed statement by the owner of record or his/her authorized agent
which, as a minimum, includes a legal description of the land to be entered,
the projected nature of work to be performed on the land and any special
conditions for entry. The statement shall not include any commitment by the
state to perform reclamation work nor to compensate the owner for
entry.
(2) Entry for Studies or
Exploration.
(A) The commission, its agents,
employees, or contractors shall have the right to enter upon any property for
the purpose of conducting studies or exploratory work to determine the
existence of adverse effects of past coal mining practices and the feasibility
of restoration, reclamation, abatement, control, or prevention of such adverse
effects.
(B) If the owner of the
land to be entered under this section will not provide consent to entry, the
commission will give notice in writing to the owner of its intent to enter for
purposes of study and exploration to determine the existence of adverse effects
of past coal mining practices which may be harmful to the public health,
safety, or environment. The notice shall be by mail, return receipt requested,
to the owner, if known, and shall include a statement of the reasons why entry
is believed necessary. If the owner is not known, or the current mailing
address of the owner is not known, or the owner is not readily available, the
notice shall be posted in one (1) or more places on the property to be entered
where it is readily visible to the public and advertised once in a newspaper of
general circulation in the locality in which the land is located. Notice shall
be given at least thirty (30) days before entry.
(C) Entry necessary to investigate and
explore reported emergency conditions will be governed by 10 CSR
40-9.030(4).
(3) Entry
for Reclamation.
(A) The commission, its
agents, employees, or contractors may enter upon land to perform reclamation
activities if the consent of the owner cannot be obtained.
(B) Prior to entry under this section, the
commission shall find in writing with supporting reasons that-
1. Land or water resources have been
adversely affected by past coal mining practices;
2. The adverse effects are at a stage where,
in the interest of the public health, safety, or environment, action to
restore, reclaim, abate, control, or prevent should be taken;
3. The owner of the land or water resources
where entry is necessary to restore, reclaim, abate, control, or prevent the
adverse effects of past coal mining practices is not known or readily
available; or
4. The owner will not
give permission for the commission, its agents, employees, or contractors to
enter upon such property to restore, reclaim, abate, control, or prevent the
adverse effects of past coal mining practices.
(C) The commission will give notice of its
intent to enter for purposes of conducting reclamation at least thirty (30)
days before entry upon the property. The notice shall be in writing and mailed,
return receipt requested, to the owner, if known, with a copy of the findings
required by this section. If the owner is not known, or if the current mailing
address of the owner is not known, notice shall be posted in one (1) or more
places on the property to be entered where it is readily visible to the public
and advertised once in a newspaper of general circulation in the locality in
which the land is located. The notice posted on the property and advertised in
the newspaper shall include a statement of where the findings required by this
section may be inspected or obtained.
(4) Entry for Emergency Reclamation.
(A) The commission, its agents, employees, or
contractors shall have the right to enter upon any land where an emergency
exists and on any other land to have access to the land where the emergency
exists to restore, reclaim, abate, control, or prevent the adverse effects of
coal mining practices and to do all things necessary or expedient to protect
the public health, safety, or environment.
(B) Prior to entry under this section, the
director shall make a written finding with supporting reasons that-
1. An emergency exists constituting a danger
to the public health, safety, or environment;
2. Emergency restoration, reclamation,
abatement, control, or prevention of adverse effects of past coal mining is
necessary; and
3. No other person
or agency will act expeditiously to restore, reclaim, abate, control, or
prevent the adverse effects of past coal mining practices.
(C) Notice to the owner shall not be required
prior to entry for emergency reclamation. The director shall make reasonable
efforts to notify such owner and obtain consent prior to entry consistent with
the emergency conditions that exist. Written notice shall be given to the owner
as soon after entry as practical. The notice shall be mailed, return receipt
requested, to the owner, if known, and shall include a copy of the findings
required by this section. If the owner is not known, or if the current mailing
address of the owner is not known, notice shall be posted on the property
entered in one (1) or more places where it is readily visible to the public and
advertised once in a newspaper of general circulation in the locality in which
the land is located. The notice posted on the property and advertised in the
newspaper shall include a statement that an emergency existed and where the
findings required by this section may be inspected or obtained.
(D) The moneys expended for such work, and
the benefits accruing to any such premises so entered, shall be chargeable
against such land and shall mitigate or offset any claim in, or action brought
by any owner of any interest in such premises for any alleged damages as a
result of the entry.
Notes
*Original authority 1979, amended 1983, 1993.
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