N.D. Admin Code 69-05.2-10-03 - Permit applications - Criteria for permit approval or denial
1. The commission
will 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 any law or rule of this
state, the Surface Mining Control and Reclamation Act of 1977 [ Pub. L. 95-87;
91 Stat. 445; 30 U.S.C.
1201 et seq.], or any law or rule in any
state enacted under federal law or regulation pertaining to air or water
environmental protection, incurred in connection with any surface coal mining
and reclamation operation, or if any of the following are outstanding:
a. Delinquent civil penalties under North
Dakota Century Code sections
38-12.1-08 and
38-14.1-32, the Surface Mining
Control and Reclamation Act of 1977 [ Pub. L. 95-87; 91 Stat. 445;
30 U.S.C.
1201 et seq.], or any law or rule in any
state enacted under federal law or regulation pertaining to air or water
environmental protection, incurred in connection with any surface coal mining
and reclamation operation.
b. Bond
forfeitures where violations upon which the forfeitures were based have not
been corrected.
c. Delinquent
abandoned mine reclamation fees.
d.
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 and reclamation operation.
e. Unresolved federal and state
failure-to-abate cessation orders, f. Unresolved imminent harm cessation
orders.
2. If a current
violation exists, the commission will require the applicant or person who owns
or controls the applicant, before the permit is issued, to:
a. Submit proof that the violation has been
or is being corrected to the satisfaction of the agency with jurisdiction over
the violation; or
b. Establish 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 that violation. If the administrative or judicial authority either
denies a stay applied for in the appeal or affirms the violation, then any
operations being conducted under a permit issued under this section must
immediately cease, until the provisions of subdivision a are
satisfied.
3. Any permit
issued on the basis of proof submitted under subdivision a of subsection 2 that
a violation is being corrected, or pending the outcome of an appeal under
subdivision b of subsection 2, will be conditionally issued.
4. The commission will not issue a permit if
it finds 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 law or rule of this state, the Surface Mining Control and
Reclamation Act of 1977 [ Pub. L. 95-87; 91 Stat. 445;
30 U.S.C.
1201 et seq.], or any state or federal
program approved under the Surface Mining Control and Reclamation Act of 1977,
of such nature and duration, and with resulting irreparable damage to the
environment as to indicate an intent not to comply with those laws, rules, or
programs. The applicant, anyone who owns or controls the applicant, or the
operator must be given an opportunity for hearing on the determination under
North Dakota Century Code section
38-14.1-30.
5. After an application is deemed ready for
approval, but before the permit is issued, the commission's decision to approve
or disapprove the application will be made, based on the compliance review
required by subsection 1, in light of any new information submitted under
subsection 2 of section
69-05.2-06-01 and subsection 6 of
section 69-05.2-06-02. After that
information is submitted, the commission will again request a compliance
history report from AVS to determine if there are any unabated or uncorrected
violations which affect the applicant's permit eligibility under subsections 1
through 4. This report will be requested no more than five business days before
the permit is issued by the commission. If the commission then determines that
the applicant is not eligible for a permit, written notification of the
decision will be sent to the applicant explaining the reasons and the appeal
rights that are available under North Dakota Century Code section
38-14.1-30.
6. In addition to the requirements of
subsection 3 of North Dakota Century Code section
38-14.1-21, no permit or
significant revision will be approved, unless the application affirmatively
demonstrates and the commission finds, in writing, on the basis of information
in the application or otherwise available, which is documented in the approval
and made available to the applicant, that:
a.
The permit area is not on any lands subject to the prohibitions or limitations
of North Dakota Century Code section
38-14.1-07 or the area has met the
application review procedures of section
69-05.2-04-01.1.
b. For alluvial valley floors:
(1) The applicant has obtained either a
negative determination; or
(2) If
the permit area or adjacent area contains an alluvial valley floor:
(a) The operations would be conducted
according to 69-05.2-25 and all applicable requirements of North Dakota Century
Code chapter 38-14.1.
(b) Any
change in the use of the lands covered by the permit area from its premining
use in or adjacent to alluvial valley floors will not interfere with or
preclude the reestablishment of the essential hydrologic functions of the
alluvial valley floor.
(3) The significance of the impact of the
operations on farming will be based on the relative importance of the
vegetation and water of the developed grazed or hayed alluvial valley floor
area to the farm's production, or any more stringent criteria established by
the commission as suitable for site-specific protection of agricultural
activities in alluvial valley floors.
(4) Criteria for determining whether a mining
operation will materially damage the quantity or quality of waters include:
(a) Potential increases in the concentration
of total dissolved solids of waters supplied to an alluvial valley floor to
levels above the threshold value at which crop yields decrease, based on crop
salt tolerance research studies approved by the commission, unless the
applicant demonstrates compliance with subdivision e of subsection 3 of North
Dakota Century Code section
38-14.1-21.
(b) The increases in subparagraph a will not
be allowed unless the applicant demonstrates, through testing related to local
crop production that the operations will not decrease crop yields.
(c) For types of vegetation specified by the
commission and not listed in approved crop tolerance research studies, a
consideration must be made of any observed correlation between total dissolved
solids concentrations in water and crop yield declines.
(d) Potential increases in the average depth
to water saturated zones (during the growing season) within the root zone that
would reduce the amount of subirrigated land compared to premining
conditions.
(e) Potential decreases
in surface flows that would reduce the amount of irrigable land compared to
premining conditions.
(f) Potential
changes in the surface or ground water systems that reduce the area available
to agriculture as a result of flooding or increased root zone
saturation.
(5) For the
purposes of this subsection, a farm is one or more land units on which
agricultural activities are conducted. A farm is generally considered to be the
combination of land units with acreage [hectarage] and boundaries in existence
prior to July 1, 1979, or, if established after July 1, 1979, with boundaries
based on enhancement of the farm's agricultural productivity not related to
mining operations.
(6) If the
commission determines the statutory exclusions of subsection 3 of North Dakota
Century Code section
38-14.1-21 do not apply and that
any of the findings required by this section cannot be made, the commission
may, at the applicant's request:
(a) Determine
that mining is precluded and deny the permit without the applicant filing any
additional information required by this section; or
(b) Prohibit surface coal mining and
reclamation operations in all or part of the area to be affected by
mining.
c.
The applicant has, with respect to prime farmland, obtained either a negative
determination or if the permit area contains prime farmlands:
(1) The postmining land use will be
cropland.
(2) The permit
specifically incorporates the plan submitted under section
69-05.2-09-15 after consideration
of any revisions suggested by the natural resource conservation
service.
(3) The operations will be
conducted in compliance with 69-05.2-26 and other standards required by this
article and North Dakota Century Code chapter 38-14.1.
(4) The permit demonstrates that the
applicant has the technological capability to restore prime farmland, within a
reasonable time, to equivalent or higher yields as nonmined prime farmland in
the surrounding area under equivalent management practices.
(5) The aggregate total prime farmland
acreage will not be decreased from that which existed prior to mining based on
the cooperative soil survey. Any postmining water bodies that are part of the
reclamation must be located within the nonprime farmland portions of the permit
area. If any such water bodies reduce the amount of prime farmland that a
surface owner had before mining, the affected surface owners must consent to
the creation of the water bodies and the plans must be approved by the
commission.
d. The
operations will not affect the continued existence of endangered or threatened
species or result in the destruction or adverse modification of their critical
habitats.
e. The applicant has
submitted proof that all reclamation fees required by 30 CFR subchapter R have
been paid.
f. The applicant has, if
applicable, satisfied the requirements for approval of a cropland postmining
land use under section
69-05.2-22-01.
7. The commission may make
necessary changes in the permit to avoid adverse effects on finding that
operations may adversely affect any publicly owned park or places included on
the state historic sites registry or the national register of historic places.
Operations that may adversely affect those parks or historic sites will not be
approved unless the federal, state, or local governmental agency with
jurisdiction over the park or site agrees, in writing, that mining may be
allowed.
Notes
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-21, 38-14.1-33
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