N.D. Admin Code 69-05.2-10-07 - Permit applications - Challenges to ownership or control listings and findings
1. A person may challenge a listing or
finding of ownership or control usingthe procedures detailed below if that
person is:
a. Listed in a permit application
or in AVS as an owner or controllerof an entire surface coal mining operation,
or any portion or aspectthereof;
b.
Found to be an owner or controller of an entire surface coalmining operation,
or any portion or aspect thereof, under section
69-05.2-10-08 or
69-05.2-32-01: or
c. An applicant or permittee affected by an
ownership and controllisting or finding.
2. In order to challenge an ownership and
control listing or finding, a writtenexplanation must be submitted to the
regulatory authority regarding thebasis of the challenge along with any
evidence or explanatory materialsoutlined in subsection 7. If the challenge
concerns a pending permitapplication, the written explanation must be submitted
to the regulatoryauthority with jurisdiction over the application. If the
challenge concernsthe applicant's ownership and control of a surface coal
mining operationand the person is not currently seeking a permit, the written
explanationmust be submitted to the regulatory authority with jurisdiction over
thesurface coal mining operation.
3. When a challenge concerns a violation
under the jurisdiction of adifferent regulatory authority, the commission will
consult the regulatoryauthority with jurisdiction over the violation and the
AVS office to obtainadditional information.
4. If the commission is responsible for
deciding a challenge under thissection, it may reguest an investigation by the
AVS office.
5. At any time a person
listed in AVS as an owner or controller of a surfacecoal mining operation may
reguest an informal explanation from the AVSoffice as to the reason it is shown
in the AVS in an ownership or controlcapacity.
6. When a challenge is made to a listing of
ownership and control, ora finding of ownership and control, the challenger
shall prove by apreponderance of the evidence that the challenger either:
a. Does not own or control the entire
operation or relevant portion oraspect thereof: or
b. Did not own or control the entire
operation or relevant portion oraspect during the relevant time
period.
7. In order to
meet the burden of proof in subsection 6. the challengershall present reliable,
credible, and substantial evidence and anyexplanatory materials to the
regulatory authority. A reguest to holdmaterials submitted under this section
as a trade secret may be made to the commission following the procedures of
69-02-09.Acceptable materials include:
a.
Notarized affidavits containing specific facts concerning the dutiesthat were
performed for the relevant operation, the beginning andending dates pertaining
to ownership or control of the operation,and the nature and details of any
transaction creating or severingownership or control of the operation in
question.
b. Certified copies of
corporate minutes, stock ledgers, contracts,purchase and sale agreements,
leases, correspondence, or otherrelevant company records.
c. Certified copies of documents filed with
or issued by any state,municipal, or federal government agency.
d. An opinion of counsel, when supported by
evidentiary materials,a statement by counsel that counsel is qualified to
render theopinion, and a statement that counsel has personally and
diligentlyinvestigated the facts of the matter.
8. Within sixty days of receipt of an
ownership and control listing or findingchallenge, the commission will review
and investigate the evidence andexplanatory materials submitted and any other
reasonable availableinformation bearing on the challenge and issue a written
decision. Thedecision will state whether the challenger owns or controls the
relevantsurface coal mining operation, or owned or controlled the
operationduring the relevant time period. Decisions regarding the challenge
willbe promptly provided to the challenger by certified mail, return
receiptrequested. Service of the decision will be complete upon delivery andis
not incomplete if acceptance of delivery is refused. Appeals of thewritten
decision must be made by requesting a formal hearing underNorth Dakota Century
Code section
38-14.1-30. The commission
willalso post all decisions in AVS.
9. Following the commission's written
decision, or any formal hearingdecision or court reviewing such decision, the
commission will reviewthe information in AVS to determine if it is consistent
with the decision. Ifit is not, the commission will promptly inform the office
of surface miningreclamation and enforcement and request that the AVS
information berevised to reflect the decision.
Notes
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-21, 38-14.1-22, 38-14.1-23
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