020-12 Wyo. Code R. § 12-1 - Permitting Procedures
(a) In addition to
the permitting procedures described in the Act, the following shall be
applicable to applications for a permit for a surface coal mine operation:
(i) For the purposes of alluvial valley
floors, prior to determining that an application is suitable for publication in
accordance with W.S. § 35 -
1 l-406(j) and upon the basis of sufficient
information, the Administrator shall make a determination in writing as to the
existence and extent of an alluvial valley floor within the permit area or on
adjacent areas where the mining operation may affect surface water or
groundwater that supply an alluvial valley floor unless the preapplication
determination in Chapter 3, Section
2(a) has already been
made. Any preapplication determination and all information submitted for this
determination shall be included in the permit application and shall be
available for public notice, opportunity for comment and any conference or
hearing. The Administrator shall determine that an alluvial valley floor exists
when, in accordance with W.S. §
35-11-103(e)(xviii), it is
found that:
(A) Unconsolidated streamlaid
deposits holding streams are present; and
(B) There is sufficient water to support
subirrigation or flood irrigation agricultural activities.
(ii) The public notice required by W.S.
§ 35 -
1 l-406(j) shall:
(A) Contain detailed information which
identifies a USGS map(s) and appropriate landmarks locating and allowing local
residents to readily identify the proposed permit area.
(B) Be sent by the Administrator to Federal,
State, and local governmental agencies, including planning agencies, with
jurisdiction over or an interest in the proposed operation or permit area, and
local sewage and water treatment authorities. At a minimum this shall include
the U.S. Department of Agriculture Soil Conservation Service District office,
the local U.S. Army Corps of Engineers District Engineer, the National Park
Service if NPS lands are adjacent, State and Federal fish and wildlife
agencies, and the State Historic Preservation Officer. Such entities and any
person who filed a comment or objection shall also receive the final decision
on the application. In addition, the Administrator will publish a summary of
his decision in a newspaper of general circulation in the general area of the
proposed operation.
(iii) Any subsequent revision of the
application, or objections or comments to the application, shall be filed in
the offices of the county clerks of the counties in which the proposed permit
area is located. Copies of comments and objections shall also be transmitted to
the applicant.
(iv) In addition to
the specific findings required by W.S. § 35 -
1 l-406(n), no permit shall be approved
unless the Administrator also finds in writing that:
(A) The proposed operation will not be
inconsistent with other surface coal mining and reclamation operations proposed
or contemplated in pending or approved mining permits;
(B) The effect of the proposed operation on
properties listed on and properties eligible for listing on the National
Register of Historic Places has been taken into account; and
(I) Mining has been prohibited within 100
feet of any such properties by permit condition; or
(II) The applicant has provided for the
protection of such properties in the approved mining and reclamation plan;
or
(III) The Administrator has
determined, in consultation with the State Historic Preservation Officer, that
no additional protection measures are necessary.
(v) The criteria contained in W.S.
§ 35 -
1 l-406(n)(iv) regarding Section 522(e) of
PL. 95-87 shall mean that, prior to approval of any complete application for a
surface coal mining permit, the applicant must demonstrate and the
Administrator determine, utilizing the assistance of the appropriate Federal,
State or local government agency, if necessary, that the application does not
propose a surface coal mining operation on those lands where such operation is
prohibited or limited by Section 522(e) of PL. 95-87; or if one is so proposed,
that the applicant either has valid existing rights or was conducting a surface
coal mining operation on those lands on August 3, 1977. Subject to the above
stated limitations, surface coal mining operations are prohibited or limited:
(A) On any lands within the boundaries of the
National Park System, the National Wildlife Refuge System, the National System
of Trails, the National Wilderness Preservation System, the Wild and Scenic
Rivers System, including study rivers designated under Section
5(a) of the Wild and
Scenic Rivers Act or study rivers or study river corridors as established in
any guidelines pursuant to that Act and National Recreation Areas designated by
Act of Congress;
(B) On any federal
lands within the boundaries of any national forest unless the applicant
demonstrates compliance with
30
CFR §
761.11(b) and
submits a finding by the Secretary in his favor using the procedures at
30
C.F.R. §
761.13 (2009)
(http://www.gpoaccess.gov/cfr/retrieve.html);
(C) On any lands where mining will adversely
affect any publicly owned park or any properties listed on and any properties
eligible for listing on the National Register of Historic Places, unless
jointly approved by the Administrator and the Federal, State or local agency
with jurisdiction over the park or place;
(D) Within 100 feet, measured horizontally,
of the outside right-of-way line of any public road, except where mine primary
roads join such right-of-way line. Provided, however, the Administrator may
specifically authorize operations where the road is to be relocated, closed, or
where the area affected lies within 100 feet of a public road. Such specific
authorization shall provide a public comment period and an opportunity to
request a public hearing in the locality of the proposed operation together
with a written finding on whether the interests of the public and the affected
landowners will be protected from the proposed operation. If a hearing is
requested, a public notice shall be published at least two weeks prior to the
hearing in a local newspaper of general circulation. If a hearing is held, the
Administrator shall make this finding within 30 days after the hearing or if a
hearing is not held the Administrator must make this finding within 30 days
after the end of the public comment period. The Administrator may rely upon
findings of the public road authority with jurisdiction over the road in
specifically authorizing road relocations or closures;
(E) Within 300 feet from any occupied
dwelling except when the owner has provided a written waiver consenting to
operations within a closer distance, clarifying that the owner and signator had
the legal right to deny mining and knowingly waived that right. Such a waiver
shall remain effective, regardless of when it was obtained, against subsequent
purchasers who had actual or constructive knowledge of the existing waiver at
the time of purchase. Subsequent purchasers shall be deemed to have
constructive knowledge if the waiver has been properly filed in the public
property records or if the mining has proceeded to within the 300-foot limit
prior to the date of purchase;
(F)
Within 300 feet, measured horizontally, of any public building, school, church,
community, or institutional building, or public park; or
(G) Within 100 feet, measured horizontally,
of a cemetery.
(vi) For
Federal lands described in subsections (v)(A) and (v)(B) above the Office of
Surface Mining Reclamation and Enforcement shall be the responsible agency for
making valid existing rights (VER) determinations. For Non-Federal lands
described in subsection (v)(A) above the Division is the responsible agency for
making VER determinations and shall make evaluations using the Federal VER
definition.
(vii) VER submission
requirements and procedures.
(A) A request
for a VER determination shall be submitted to the appropriate agency identified
in subsection (vi) above if the applicant intends to conduct surface coal
mining operations on the basis of valid existing rights under
30
C.F.R. §
761.11 (2009),
(http://www.gpoaccess.gov/cfir/retrieve.html), or wishes to confirm the rightto
do so. Requests may be submitted prior to submitting an application for a
permit or boundary revision for the land.
(I)
Property rights demonstrations required under the VER definition at Chapter 1,
Section
2(fq)(i) for requests that
rely on the good faith/all permits standard or the needed for and adjacent
standard detailed in the VER definition at Chapter 1, Section
2(fq)(ii)(A) and (B)
respectively shall include the following:
(1.) A legal description of the land to which
the request pertains;
(2.) Complete
documentation of the character and extent of the current interests in the
surface and mineral estates of the land to which the request
pertains;
(3.) A complete chain of
title for the surface and mineral estates of the land to which the request
pertains;
(4.) A description of the
nature and effect of each title instrument that forms the basis of the request,
including any provision pertaining to the type or method of mining or mining
related surface disturbances and facilities;
(5.) A description of the type and extent of
surface coal mining operations that the requestor claims the right to conduct,
including the method of mining, any mining related surface activities and
facilities, and an explanation of how those operations would be consistent with
State property law;
(6.) Complete
documentation of the nature and ownership, as of the date that the land came
under the protection of 522(e) of PL. 95-87 (2009),
(http://www.gpoaccess.gov/uscode/) or
30
C.F.R. §
761.11 (2009),
(http://www.gpoaccess.gov/cfir/retrieve.html), of all property rights for the
surface and mineral estates of the land to which the request
pertains;
(7.) Names and addresses
of the current owners of the surface and mineral estates of the land to which
the request pertains;
(8.) If the
coal interests have been severed from other property interests, documentation
that the requestor has notified and provided reasonable opportunity for the
owner of other property interests in the land to which the request pertains to
comment on the validity of the property rights claims made; and
(9.) Any comments that are received in
response to the notification discussed in (8.) above.
(II) If the VER determination request relies
on the good faith/all permits standard, the request shall include the
documentation discussed in (I) above, and:
(1.) Approval and issuance dates and
identification numbers for any permits, licenses and authorizations that the
person seeking the request or a predecessor in interest obtained before the
land came under the protection of 522(e) of PL. 95-87 (2009) or
30
C.F.R. §
761.11 (2009);
(2.) Application dates and identification
numbers for any permits, licenses and authorizations that the person seeking
the request or a predecessor in interest submitted an application before the
land came under the protection of 522(e) of P.L. 95-87 (2009) or
30
C.F.R. §
761.11 (2009); and
(3.) An explanation of any other good faith
effort that was made by the person seeking the request or a predecessor in
interest made to obtain the necessary permits, licenses and authorizations as
of the date that the land came under the protection of 522(e) of P.L. 95-87
(2009) or
30
C.F.R. §
761.11
(2009).
(III) If the
request relies on the needed for and adjacent standard, the request shall
include the documentation discussed in (I) above and shall also explain how and
why the land is needed for and immediately adjacent to the operation on which
the request is based including a demonstration that prohibiting expansion of
the operation onto that land would unfairly impact the viability of the
operation as originally planned before the land came under the protection of
522(e) of P.L. 95-87 (2009) or
30
C.F.R. §
761.11 (2009).
(IV) If the request relies on one of the
standards for roads detailed in the definition of VER at Chapter 1, Section
2(fq)
(iii)(A) through (C), the request shall
include documentation that:
(1.) The road
existed when the land on which it is located came under the protection of
522(e) of P.L. 95-87 (2009) or
30
C.F.R. §
761.11 (2009) and that the
person making the request has a legal right to use the road for surface coal
mining operations;
(2.) A properly
recorded right of way or easement for a road in that location existed when the
land came under the protection of 522(e) of PL. 95-87 (2009) or
30
C.F.R. §
761.11 (2009) and under the
document creating the right of way or easement, and under any subsequent
conveyances the person making the request has a legal right to use or construct
a road across the right of way or easement to conduct surface coal mining
operations; or
(3.) A valid permit
for use or construction of a road in that location for surface coal mining
operations existed when the land came under the protection of 522(e) of PL.
95-87 (2009) or
30
C.F.R. §
761.11
(2009).
(B)
Initial review of request.
(I) The
responsible agency shall conduct an initial review to determine whether the
request includes all applicable components of the submission requirements
discussed in subsection (A) above. This review only examines completeness of
the request not the legal or technical adequacy of the materials
submitted.
(II) If the request does
not include all applicable components of the submission requirements, the
responsible agency shall notify the requestor and establish a reasonable time
for submitting the missing components.
(III) When the request contains all
applicable submission requirements the responsible agency shall implement the
notice and comment requirements discussed in subsection (C) below.
(IV) If the information requested in (II)
above is not submitted within the time specified or amended the responsible
agency shall issue a determination that VER has not been demonstrated as
discussed in Section l(a)(vii)(D)(IV) below.
(C) Notice and comment requirements and
procedures.
(I) When the VER request
satisfies the completeness requirements of (B) above, the VER applicant must
publish a notice in a newspaper of general circulation in the county in which
the land is located. This notice must invite comment on the merits of the
request. The applicant must provide the Division with a proof of publication.
Each notice shall include:
(1.) Location of
land to which the VER request pertains;
(2.) A description of the type of surface
coal mining operations planned;
(3.) A reference to and brief description of
the applicable standards, found in the definition of VER at Chapter 1, Section
2(fq) of these rules;
a. If the request relies upon the good
faith/all permits standard or the needed for and adjacent standard found in
Chapter 1, Section
2(fq)(ii)(A) and (B), the
notice shall also contain a description of the property rights claimed and the
basis for the claim.
b. If the
request relies upon the standard in subsection (A)(IV)(1.) above, the notice
shall also include a description of the basis for the claim that the road
existed when the land came under the protection of 522(e) of PL. 95-87 (2009)
or
30
C.F.R. §
761.11 (2009). In addition the
notice shall include a description of the basis for your claim that the VER
requestor has a legal right to use that road for surface coal mining
operations.
c. If the request
relies upon the standard in subsection (A)(IV)(2.) above, the notice shall also
include a description of the basis for the claim that a properly recorded
right-of-way or easement for a road in that location existed when the land came
under the protection of 522(e) of PL. 95-87 (2009) or
30
C.F.R. §
761.11 (2009). In addition the
notice shall include a description of the basis for the claim that, under the
document creating the right of way or easement, and under any subsequent
conveyances, the VER requestor has a legal right to use or construct a road
across the right of way or easement to conduct surface coal mining
operations.
d. If the request
relies upon one or more of the standards in Chapter 1, Section
2(fq)(ii),
(iii)(A) and (iii)(B) of the VER definition,
a statement that the Division will not make a decision on the merits of the
request if, by the close of the comment period under this notice or the notice
required below, a person with a legal interest in the land initiates
appropriate legal action in the proper venue to resolve any differences
concerning the validity or interpretation of the deed, lease, easement or other
documents that form the basis of the VER claim.
e. A description of the procedures that the
agency will follow to process a VER request.
f. The closing date of the comment period,
which must be a minimum of 30 days after the publication date of the
notice.
g. A statement that
interested persons may obtain a 30-day extension of the comment period on
request.
h. The name and address of
the agency office where a copy of the request is available for a public
inspection and to which comments and requests for extension of the comment
period should be sent.
(II) The Division shall promptly provide a
copy of the notice required under this Section to:
(1.) All reasonably locatable owners of
surface and mineral estates in the land included in the VER request.
(2.) The owner of the feature causing the
land to come under the protection of 522(e) of P.L. 95-87 (2009) or
30
C.F.R. §
761.11 (2009) and, when
applicable, the agency with primary jurisdiction over the feature with respect
to the values causing the land to come under the protection of 522(e) of P.L.
95-87 (2009) or
30
C.F.R. §
761.11 (2009). For example,
both the landowner and the State Historic Preservation Officer must be notified
if surface coal mining operations would adversely impact any site listed on the
National Register of Historic Places. As another example, both the surface
owner and the National Park Service must be notified if the request includes
non-Federal lands within the authorized boundaries of a unit of the National
Park System.
(III) The
letter transmitting the notice required under subsection (II) above shall
provide a 30-day comment period, starting from the date of service of the
letter, and specify that another 30 days is available upon request. At its
discretion, the Division, as the agency responsible for the determination of
VER may grant additional time for good cause upon request. The Division need
not necessarily consider comments received after the closing date of the
comment period.
(D) How
a VER decision will be made.
(I) The Division
shall review the materials submitted under Subsection (A) above, any comments
received under Subsection (C) above and any other relevant reasonably available
information to determine whether the record is sufficiently complete and
adequate to support a decision on the merits of the request. If not, the
Division shall notify the requestor in writing, explaining the inadequacy of
the record and requesting submittal, within a specified reasonable time, of any
additional information that the agency deems necessary to remedy the
inadequacy.
(II) Once the record is
complete and adequate, the Division shall determine whether the requestor has
demonstrated VER. The decision document shall explain how the requestor has or
has not satisfied all the applicable elements, shall contain findings of fact
and conclusions and shall specify the reasons for the conclusions.
(III) Impact of property rights
disagreements. This subsection only applies when the request relies upon on or
more of the standards in the Chapter 1, VER definition.
(1.) The Division shall issue a determination
that the requestor has not demonstrated VER if the property rights claims are
the subject of pending litigation in a court or administrative body with
jurisdiction over the property rights in question. A requestor may refile the
request once the property rights dispute is finally adjudicated. This
subsection only applies if the legal action has been initiated as of the
closing date of the comment periods discussed under Subsections (C)(1) and
(C)(III) above.
(2.) If the record
indicates disagreement as to the accuracy of the requestor's property rights
claims, but the disagreement is not the subject of pending litigation in a
court or administrative agency of competent jurisdiction, the Land Quality
Division shall evaluate the merits of the information in the record and
determine whether the requestor has demonstrated that the requisite property
rights exist under Subsections (i), (iii)(A) or (iii)(B) of the VER definition
in Chapter 1 of these Rules and Regulations, as appropriate. The Division shall
then proceed to subsection (D)(II) above.
(IV) The Division must issue a determination
that the requestor has not demonstrated VER if the requestor has not submitted
the information requested under subsections (B)(II) and (D)(1) above within the
time specified or as subsequently extended. A requestor may submit a revised
request at any time after that determination has been made.
(V) After making a VER determination, the
Division shall:
(1.) Provide a copy of the
determination, together with an explanation of appeal rights and procedures to
the VER requestor, the owner or owners of the land to which the determination
applies, the owner of the feature causing the land to come under the protection
of 522(e) of PL. 95-87 (2009) or
30
C.F.R. §
761.11 (2009) and when
applicable, to the agency with primary jurisdiction over the feature with
respect to the values that caused the land to come under the protection of
522(e) of PL. 95-87 (2009) or
30
C.F.R. §
761.11 (2009).
(2.) Require the VER requestor to publish
notice of the determination in a newspaper of general circulation in the county
in which the land is located and provide the Division with proof of
publication. If the initial VER request contained Federal lands with an area
listed in subsections (v)(A) and (B) above, the OSM will publish the
determination, together with an explanation of appeal rights and procedure in
the Federal Register.
(E) Administrative and judicial review. A
determination that the VER requestor does or does not have VER is subject to
administrative and judicial review under the Wyoming Administrative Procedure
Act, W.S. W.S. 16-3-101 through
16-3-115(2011).
(F) Availability of records. When the Land
Quality Division is the agency responsible for processing a request subject to
notice and comment under subsection (C) above the Division shall make a copy of
that request and related materials available to the public in the same manner
as public availability of permit applications under these Rules and
Regulations. In addition, the Division shall make records associated with that
request, and any subsequent determination under subsection (D) above available
to the public in accordance with the requirements and procedures of W.S. §
35-11-1101(2011), the
Wyoming Public Records Act (W.S. §§
16-4-201 thru
16-4-205(2013) ), W.S.
§ 35 -
1 l-406(d) (2013) and the Division's rules
and regulations related to public review and participation, and shall at a
minimum make copies of those records immediately available to the public in the
area of mining until at least five years after the expiration of the period
during which the operation is active or is covered by any portion of a
reclamation bond so that they are conveniently available to residents of that
area in compliance with
30 CFR 840.14(b), (c) and
(d), (2013) (http://www.gpo.gov/fdsys/).
(G) Procedures for joint approval
of surface coal mining operations that will adversely affect publicly owned
parks or historic places.
(I) If the
regulatory authority determines that the proposed surface coal mining operation
will adversely affect any publicly owned park or any place included in the
National Register of Historic Places, the regulatory authority must request
that the Federal, State, or local agency with jurisdiction over the park or
place either approve or object to the proposed operation. The request shall:
(1.) Include a copy of applicable parts of
the permit application.
(2.)
Provide the agency with 30 days after receipt to respond, with a notice that
another 30 days is available upon request.
(3.) State that failure to interpose an
objection within the time specified under subsection (2.) above will constitute
approval of the proposed operation.
(II) The regulatory authority may not issue a
permit for a proposed operation subject to subsection (I) above unless all
affected agencies jointly approve.
(III) Subsections (I) and (II) above do not
apply to:
(1.) Lands for which a person has
VER, as determined under Section l(a)(vi) and (vii) of this Chapter;
(2.) Lands within the scope of the exception
for existing operations contained in the Chapter 1, Section
2(fq)(iv) "valid existing
rights" definition.
(viii) Final Compliance Review. After finding
the application administratively complete and suitable for publication but
prior to permit issuance, the Department of Environmental Quality.shall conduct
a review of the following before making a permit eligibility determination
under (x) of this section:
(A) The
information the applicant submitted regarding applicant, operator and ownership
or control information AVS information and any other available information to
review the applicants and operators organizational structure and ownership or
control relationships;
(B) The
information the applicant submitted regarding applicant permit history, AVS
information and any other available information to review the applicant and
operator's permit history. In addition, the Division shall determine if the
applicant and operator have previous mining experience and if the applicant or
operator does not have any previous mining experience additional ownership or
control investigations may be conducted under subsection (ix)(E) below to
determine if someone else with mining experience controls the mining operation;
and
(C) The information the
applicant submitted regarding compliance history, AVS compliance report and any
other available information to review histories of compliance with the Wyoming
Environmental Quality Act and regulations promulgated thereunder and any other
air or water quality laws for the applicant, operator, operations owned or
controlled by the applicant and operations the operator owns or
controls.
(ix) The
Division shall enter into AVS:
(A) The
information submitted in the application in compliance with Chapter 2, Section
2(a)(i)(B)-(F);
(B) The information submitted pertaining to
violations which are unabated or uncorrected after the abatement or correction
period has expired; and
(C) The
Division shall update the information above upon verification of any additional
information submitted or discovered during Division's permit application
review.
(D) For the purposes of
future permit eligibility determinations and enforcement actions:
(I) All permit records within 30 days after
the permit is issued or subsequent changes are made;
(II) All unabated or uncorrected violations
within 3 0 days after the abatement or correction period for a violation
expires;
(III) All changes to
information initially required to be provided by the applicant as part of the
application process within 30 days after receiving notice of a change;
and
(IV) All changes in violation
status within 30 days after abatement, correction, or termination of a
violation or a decision from an administrative or judicial tribunal.
(E) At any time, the Division may
identify any person who owns or controls an entire surface coal mining
operation or any relevant portion or aspect thereof. If the Division identifies
such a person, the Division must issue a written preliminary finding to the
person and the applicant or permittee describing the nature and extent of
ownership or control. The written preliminary finding must be based on evidence
sufficient to establish a prima facie case of ownership or control. After the
Division issues a written preliminary finding under this section, the Division
will allow, the person subject to the preliminary finding, thirty (30) days in
which to submit any information tending to demonstrate that persons lack of
ownership or control. If, after reviewing any information submitted, the
Division is persuaded that the person is not an owner or controller, the
Division will serve a written notice to that effect to the person identified.
If, after reviewing any information submitted, the Division still finds that
the person identified is an owner or controller, or if the person identified
does not submit any information within the 30-day period, the Division will
issue a written finding and enter the Division's finding into AVS. If the
Division identifies a person as an owner or controller under this section, that
person may challenge the finding using the provisions of Chapter 12, Section
l(a)(xiii) and (xiv)(A)-(E). If a hearing is not requested regarding
preliminary findings of permanent permit ineligibility and the time for seeking
a hearing has expired, the Division will enter our finding into AVS. If a
hearing is requested, the Division will enter the finding into AVS only if that
finding is upheld on administrative appeal.
(F) The Land Quality Division need not make a
finding as provided for under (E) above before entering into AVS the
information required to be disclosed in compliance with Chapter 2, Section
2(a)(i)(B)-
(E); however, the mere listing in AVS of a
person identified in Chapter 2, Section
2(a)(i)(B)-
(E) does not create a presumption or
constitute a determination that such person owns or controls a surface coal
mining operation.
(x) In
addition to the specific findings required by W.S. § 35 -
1 l-406(n) and based on the reviews
required in subsection (viii) above, the Land Quality Division (LQD) shall
determine whether the applicant is eligible for a coal mining permit. An
applicant is not eligible for a permit if the LQD determines for any surface
coal mining operation that:
(A) The applicant
directly owns or controls has an unabated or uncorrected violation;
(B) The applicant or his operator indirectly
controls has an unabated or uncorrected violation and the applicant's control
was established or the violation was cited after November 2, 1988; or
(C) The applicant or his operator controls or
has controlled mining operations with a demonstrated pattern of willful
violations as outlined in W.S. § 35 - ll-406(o).
(D) Exceptions
(I) An applicant is eligible for a permit if
an unabated violation occurred after October 24, 1992 and 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.
(II) An applicant may be eligible for a
provisionally issued permit if the applicant owns or controls a surface coal
mining and reclamation operation with a notice of violation issued under
Chapter 16 of these rules and regulations for which the abatement period has
not yet expired or a violation that is unabated or uncorrected beyond the
abatement or correction period.
(III) An applicant is eligible for a
provisionally issued permit if the applicant is pursuing a good faith challenge
to all pertinent ownership or control listings or findings under Chapter 12,
Section
1 or administrative or judicial appeal of
all pertinent ownership or control listings or findings or contesting the
validity of a violation unless there is an initial judicial decision affirming
the listing or finding or the violation, and those decisions remains in
force.
(IV) A provisionally issued
permit will be considered improvidently issued and the Division will begin
procedures to suspend or rescind the permit as described in Section
l(a)(xiv)(G) if the violations are not abated within the specified abatement
period, or the applicant, operator or operations that the operator or applicant
own or control do not comply with the terms of an abatement plan or payment
schedule for fees or penalties assessed. Suspension or rescission proceedings
will also be initiated if, in the absence of a request for judicial review, the
disposition of a challenge and any subsequent administrative review as
discussed above affirms the validity of the violation or the ownership or
control listing or finding or if the initial judicial review decision discussed
above affirms the validity of the violation or the ownership or control listing
or finding.
(xi) Following the Director's approval of a
permit but prior to issuance of that permit, the applicant shall update,
correct or indicate that no change has occurred in the information provided in
Chapter 2, Section
2.
(xii) After the applicant completes the above
requirements, the DEQ shall request a compliance history report from AVS to
determine if there are any unabated or uncorrected violations that affect the
applicant's permit eligibility in subsection (x) above. The DEQ shall request
this report no more than five business days before a permit is issued. If the
applicant is ineligible for a permit the DEQ shall send you written
notification of the decision and will detail the reasons for ineligibility and
include notice of appeal rights.
(xiii) A person may challenge a listing or
finding of ownership or control using the procedures detailed below if that
person is:
(A) Listed in a permit application
or in AVS as an owner or controller of an entire surface coal mining operation,
or any portion or aspect thereof; or
(B) Found to be an owner or controller of an
entire surface coal mining operation, or any portion or aspect thereof, under
Chapter 12, Section l(a)(xiv)(G) or Section l(a)(ix)(E); or
(C) An applicant or permittee affected by an
ownership or control listing or finding.
(xiv) In order to challenge an ownership or
control listing or finding a written explanation shall be submitted to the
Department of Environmental Quality regarding the basis of the challenge along
with any evidence or explanatory materials outlined in subsection (E) below. If
the challenge concerns a pending permit application the written explanation
shall be submitted to the regulatory authority with jurisdiction over the
application. If the challenge concerns the applicant's ownership or control of
a surface coal mining operation and the applicant is not currently seeking a
permit the written explanation shall be submitted to the regulatory authority
with jurisdiction over the surface coal mining operation. The provisions of
this section and of subsections D through F below apply only to challenges to
ownership or control listings or findings and may not be used to challenge
liability or responsibility under any other section of the Wyoming
Environmental Quality Act or the Land Quality Division, Coal Rules and
Regulations.
(A) When a challenge concerns a
violation under the jurisdiction of a different regulatory authority, the
regulatory authority with jurisdiction over the permit application or permit
shall consult the regulatory authority with jurisdiction over the violation and
the AVS Office to obtain additional information.
(B) The regulatory authority responsible for
deciding a challenge under this section may request an investigation by the AVS
Office.
(C) At any time a person li
sted in AVS as an owner or controller of a surface coal mining operation may
request an informal explanation from the AVS Office as to the reason they are
shown in the AVS in an ownership or control capacity. The AVS Office will
provide a response describing why the person is listed in AVS in accordance
with
30
C.F.R. §
773.26(e)
(2013) (http://www.gpo.gov/fdsys/).
(D) When a challenge is made to a listing of
ownership or control, or a finding of ownership or control, the challenger must
prove by a preponderance of the evidence that they either:
(I) Do not own or control the entire surface
coal mining operation or relevant portion or aspect thereof; or
(II) Did not own or control the entire
surface coal mining operation or relevant portion or aspect thereof during the
relevant time period.
(E) In order to meet the burden of proof in
subsection (D) above, the challenger must present reliable, credible, and
substantial evidence and any explanatory materials to the regulatory authority.
The materials presented in connection with your challenge will become part of
the permit file, an investigation file or another public file. A request to
hold materials submitted under this Section confidential may be made to the
Administrator subject to Land Quality Division Rules and Regulations and the
Wyoming Public Records Act. Acceptable materials include, but are not limited
to:
(I) Notarized affidavits containing
specific facts concerning the duties that were performed for the relevant
operation, the beginning and ending dates pertaining to ownership or control of
the operation, and the nature and details of any transaction creating or
severing ownership or control of the operation in question;
(II) Certified copies of corporate minutes,
stock ledgers, contracts, purchase and sale agreements, leases, correspondence,
or other relevant company records;
(III) Certified copies of documents filed
with or issued by any State; municipal, or Federal government agency;
(IV) An opinion of counsel, when supported by
evidentiary materials, a statement by counsel that they are qualified to render
the opinion and a statement that counsel has personally and diligently
investigated the facts of the matter.
(F) Within sixty (60) days of receipt of a
challenge as described above, the Division will review and investigate the
evidence and explanatory materials submitted and any other reasonable available
information bearing on the challenge and issue a written decision. The decision
shall state whether the challenger owns or controls the relevant surface coal
mining operation, or owned or controlled the operation during the relevant time
period. Decisions regarding the challenge will be promptly provided to the
challenger by either certified mail, return receipt requested or by any
alternative means consistent with rules governing service under the Wyoming
Rules of Civil Procedure. Service of the decision will be complete upon
delivery and is not incomplete if acceptance of delivery is refused. The
Division will post all decisions made under this section on AVS. Any person who
receives a written decision under this section, and who wishes to appeal that
decision shall exhaust all administrative remedies under the procedures of the
Wyoming Environmental Quality Act, the Department's Rules of Practice and
Procedure, the Wyoming Administrative Procedure Act, W.S.
W.S.
16-3-101 through
16-3-115(2013)
and Chapter 12 of these Rules and Regulations before seeking judicial review.
Following the Division's written decision or any decision by a reviewing
administrative or judicial tribunal, the Division must review the information
in AVS to determine if it is consistent with the decision. If it is not, the
Division shall promptly revise the information to reflect the
decision.
(G) Improvidently issued
coal mining permits.
(I) If the Administrator
has reason to believe that a permit was improvidently issued to the permittee a
review shall be conducted of the circumstances under which the permit was
issued. The Administrator shall make a preliminary finding that the permit was
improvidently issued if under the permit eligibility requirements in effect at
the time of permit issuance the permit should not have been issued because the
applicant or operator owned or controlled a surface coal mining and reclamation
operation with an unabated or uncorrected violation.
(II) The Administrator will make a finding
under subsection (I) above only if the applicant or operator:
(1.) Continue to own or control the operation
with the unabated or uncorrected violation;
(2.) The violation remains unabated or
uncorrected; and
(3.) The violation
would cause the permittee to be ineligible under the permit eligibility
criteria under the current rules and regulations.
(III) When a preliminary finding under
subsection (I) above is made, a written notice shall be served on the permittee
which must be based on evidence sufficient to establish a prima facie case that
the permit was improvidently issued. Within thirty (30) days of receiving a
written notice the permittee may challenge the preliminary finding by providing
the Administrator with evidence as to why the permit was not improvidently
issued under the criteria of subsections (I) and (II) above. Challenges under
subsections (I) and (II)(1.) above shall use the procedures outlined in
subsections (xiii) and (xiv)(A) through (E) above when the challenge is related
to whether the permittee or operator currently own or control, or owned or
controlled, a surface coal mining operation.
(IV) The Administrator shall serve the
permittee with written notice of a proposed suspension or rescission together
with a statement of the reasons for the proposed suspension or rescission, if
after considering any evidence submitted under subsection (IE) above the
Administrator finds that a permit was improvidently issued under the criteria
of subsections (I) and (II) above or the permit was provisionally issued under
Chapter 12, Section l(a)(x)(D)(II) and one or more of the conditions in Chapter
12, Section l(a)(x)(D)(III) exists. If a permit suspension is proposed, sixty
(60) days notice shall be provided and if a permit rescission is proposed one
hundred twenty (120) days notice shall be provided. If the permittee wishes to
appeal the notice, the permittee must exhaust administrative remedies under the
procedures of the Wyoming Environmental Quality Act, the Department's Rules of
Practice and Procedure, the Wyoming Administrative Procedure Act and Chapter 12
of these Rules and Regulations.
(V)
Appeals regarding the notice shall be governed by the Wyoming Environmental
Quality Act, Department's Rules of Practice and Procedure, the Wyoming
Administrative Procedure Act and Chapter 12 of these Rules and Regulations. All
administrative remedies shall be exhausted if a permittee wishes to appeal the
notice under the above statutes and regulations. The times specified in
subsection (IV) above shall be applicable unless the Environmental Quality
Council has granted a stay for temporary relief to provide the administrative
review in subsection (VII) below.
(VI) Service. For purposes of this Section,
service of the notice shall be performed on the permittee by certified mail, or
by any alternative means consistent with the rules governing service of a
summons and complaint under Rule 4 of the Wyoming Rules of Civil Procedure.
Service shall be complete upon tender of the notice of proposed suspension or
recession and any attached information or of the certified mail and shall not
be deemed incomplete because of refusal to accept. Except as provided in
subsection (VII) below, the Administrator shall suspend or rescind the permit
upon expiration of the notice periods provided in subsection (IV) above unless
the permittee has submitted evidence and the Administrator finds that:
(1.) The violation has been abated or
corrected to the satisfaction of the agency with jurisdiction over the
violation;
(2.) The permittee or
operator no longer owns or controls the relevant operation;
(3.) The Administrator's finding for
suspension or rescission was in error;
(4.) The violation is the subject of a good
faith administrative or judicial appeal, unless there is an initial judicial
decision affirming the violation and that decision remains in force;
(5.) The violation is the subject of an
abatement plan or payment schedule that is being met to the satisfaction of the
agency with jurisdiction over the violation; or
(6.) The permittee is pursuing a good faith
challenge or administrative or judicial appeal of the relevant ownership or
control listing or finding unless there is an initial judicial decision
affirming the listing or finding and that decision remains in
force.
(VII) If an
administrative review is requested of a notice of proposed suspension or
rescission, the DEQ will not suspend or rescind the permit unless and until the
finding is affirmed that the permit was improvidently issued.
(VIII) When a permit is suspended or
rescinded under this section, the DEQ shall:
(1.) Issue a written notice requiring that
the permittee and operator shall cease all surface coal mining operations under
the permit; and
(2.) Post the
notice in the District office closest to the permit area.
(IX) If the Administrator suspends or
rescinds your permit under this section, you may request administrative review
of the notice under the procedures of the Wyoming Environmental Quality Act,
the Department's Rules of Practice and Procedure, the Wyoming Administrative
Procedure Act and Chapter 12 of these Rules and Regulations, or alternatively
you may request judicial review of the notice provided all other administrative
remedies have been exhausted.
(xv) If the Administrator is unable to
determine whether or not the proposed operation is on lands where surface coal
mining operations are prohibited, lands described in (v) immediately above,
then a copy of relevant portions of the application shall be sent to
appropriate State, Federal and local government agencies with an interest or
jurisdiction in the lands in question. Along with the copy a notice shall be
sent asking for clarification or determination of relevant boundaries or
distances, and stating that the agency has 60 days from receipt of the notice
to respond. If no response is received, the Administrator may make a
determination based on the information available.
(xvi) The criteria for permit approval where
prime farmland will be affected by the mining operation shall be that, upon the
basis of the complete application:
(A) The
postmining land use of the prime farmland will be capable of supporting crop
yields equivalent to the surrounding nonmined prime farmland under equivalent
levels of management.
(B) Adequate
consideration has been given to any soil reconstruction revisions recommended
by the local conservation district and Soil Conservation Service.
(C) The applicant has the technological
capability to restore the prime farmland.
(xvii) In addition to the specific findings
required by W.S. § 35 -
1 l-406(n), no permit authorizing a delay
in the contemporaneous reclamation requirements for a proposed combined surface
and underground mining operation shall be approved unless the Administrator
finds that:
(A) The proposed underground
mining activities will assure maximum practical recovery of the resource and
avoid multiple future disturbances of surface land or waters.
(B) The permit for the surface mining
activities contains specific conditions:
(I)
Delineating the particular surface area for which a delay in reclamation is
authorized; and
(II) Identifying
the alternative reclamation standards in lieu of those otherwise applicable,
together with a detailed schedule for timely compliance.
(xviii) In granting surface coal
mining permits, the Director shall impose the following conditions on the
operation:
(A) All operations shall be
conducted in accordance with the approved mining and reclamation plan and any
conditions of the permit or license;
(B) The rights of entry shall be provided as
described by the Act and any regulations promulgated pursuant
thereto;
(C) The operation shall be
conducted in a manner which prevents violation of any other applicable State or
Federal law;
(D) All possible steps
shall be taken to minimize any adverse impact to the environment or public
health and safety resulting from noncompliance with the approved mining and
reclamation plan and other terms and conditions of any permit or license,
including monitoring to define the nature of the noncompliance and warning of
any potentially dangerous condition; and
(E) All reclamation fees shall be paid as
required by Title IV, P.L. 95-87, for coal produced under the permit for sale,
transfer or use.
(b) All procedural requirements of the Act
and the regulations relating to review, public participation, and approval or
disapproval of permit applications, and permit term and conditions shall,
unless otherwise provided, apply to permit revisions, amendments, renewals and
permit transfer, assignment or sale of permit rights. In addition, the
following requirements are applicable.
(i)
All requirements imposed by W.S. § 35 - ll-405(e) for permit renewals. The
application shall be filed at least 120 days before the expiration of the
permit term and shall include at a minimum:
(A) A statement of the name and address of
the permittee, the term of the renewal requested, the permit number, a
description of any changes to the matters set forth in the original application
for a permit or prior permit renewal;
(B) A copy of the public notice and proof of
publication;
(C) Evidence that the
bond and a liability insurance policy will be provided; and
(D) Additional revised or updated information
required by the Administrator.
(E)
If an application for renewal includes any proposed revisions to the mine or
reclamation plan, such revisions shall be identified and subject to the
requirements of Chapter 13.
(ii) All requirements imposed by W.S. §
35-11-408 and this section shall be
applicable to a permit transfer, assignment or sale of permit rights. These
requirements shall be met, as evidenced by the written approval of the
statement of qualifications by the Administrator and Director, prior to any
permit transfer, assignment or sale of permit rights. For purposes of this
section, potential transferee, means any person who succeeds to rights granted
under a permit, by transfer, assignment, or sale of those rights.
(A) The potential transferee shall obtain a
renewal bond by either transfer of the permit holder's bond, written agreement
with the permit holder, or providing other sufficient bond or equivalent
guarantee.
(B) The statement of
qualifications shall contain all legal, financial, compliance and related
information required by Chapter 2, Section
2(a)(i)
through (iii) which would be required if the
potential transferee were the original applicant for the permit and, in
addition, the name, address and permit number of the existing permit
holder.
(C) The applicant for a
transfer, assignment or sale of permit rights shall advertise the filing of the
application in a newspaper of general circulation in the locality of the
operations involved once a week for four (4) consecutive weeks, indicating the
name and address of the applicant, the permittee, the permit number, the
geographic location of the permit and the address to which written comments may
be sent.
(D) Public Participation.
Any person having an interest which is or may be adversely affected by a
decision on the transfer, assignment or sale of permit rights, including an
official of any Federal, State, or local government agency, may submit written
comments on the application to the Division within a time specified by the
Division.
(E) Criteria for
Approval. The Divi si on may allow a permittee to transfer, assign or sell
permit rights to a potential transferee, if the Administrator finds in writing
that the potential transferee:
(I) Is
eligible to receive a permit in accordance with Chapter 12, Section l(a)(x),
(xi) and (xii);
(II) Has submitted
a performance bond or other guarantee, or obtained the bond coverage of the
original permittee as required in Subsection (A) above; and
(III) Meets any other requirements specified
by the Division.
(F)
Notification.
(I) The Admini strator shall
notify the permittee, potential transferee, commenters and the Office of
Surface Mining of its findings.
(II) The potential transferee shall
immediately provide notice to the Division of the consummation of the transfer,
assignment or sale of permit rights.
(G) Continued operation under existing
permit. The potential transferee shall assume the liability and reclamation
responsibilities of the existing permit and shall conduct the surface coal
mining and reclamation operations in full compliance with the Environmental
Quality Act, the Division's rules and regulations, and the terms and conditions
of the existing permit, unless the applicant has obtained a new or revised
permit under the Environmental Quality Act and the Division's rules and
regulations.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.