Section 11 AAC 90.104 - Permit eligibility determination(a) Except as provided in (c) of this section and 11 AAC 90.109, the commissioner will make a preliminary finding that an applicant is not eligible for a permit under AS 27.21.180(e) and (f) and this section if a surface coal mining operation (1) that the applicant directly owns or controls has an unabated or uncorrected violation; or(2) that the applicant or the applicant's operator indirectly controls has an unabated or uncorrected violation that was cited after November 2, 1988, and the control was established after November 2, 1988.(b) In determining whether an applicant is eligible for a permit, the commissioner will conduct a review under 11 AAC 90.105 of available information, including the applicant and operator history, permit history, and history of violations. If the commissioner finds that(1) neither condition under (a) of this section is met, the commissioner will move the application forward for permitting;(2) an applicable surface coal mining operation has one or more unabated or uncorrected violations, the commissioner will make a preliminary finding of ineligibility and determine if the applicant is eligible for a provisional permit under 11 AAC 90.109;(3) an applicable surface coal mining operation has more than one unabated or uncorrected violation, the commissioner will make a preliminary finding of ineligibility and determine if the applicant is (A) eligible for a provisional permit under 11 AAC 90.109; or(B) permanently ineligible for a permit under (g) of this section.(c) An applicant is eligible for a permit under this section if an unabated violation (1) occurred after October 24, 1992; and(2) resulted from an unanticipated event or condition at a surface coal mining and reclamation operation on lands that are eligible for re-mining under a permit held by the person applying for the new permit.(d) For a permit issued under 11 AAC 90.159 to conduct a surface coal mining operation on previously mined land, an event or condition is presumed to be unanticipated for the purpose of (c) of this section if it(1) arose after permit issuance;(2) was related to prior mining; and(3) was not identified in the permit application.(e) When reviewing a permit application under 11 AAC 90.125, the commissioner will not issue a permit until the applicant meets the requirement of 11 AAC 90.023(g) to update and certify interests and compliance information. After the applicant submits this information, the commissioner will request a compliance history report from the applicant violator system under 11 AAC 90.125(c) to determine if the applicant or applicant's operator has unabated or uncorrected violations that affect permit eligibility under this section.(f) If the commissioner determines that an applicant is ineligible for a permit under this section, the commissioner will send written notification to the applicant of the applicant's right to appeal this decision. This notification must include the reason the applicant is ineligible and include the applicant's right to appeal under 11 AAC 90.131. The applicant may attempt to cure the violation before the commissioner finding the applicant permanently ineligible to receive a permit.(g) The commissioner will not issue a permit under this chapter if the commissioner determines that an applicant or the applicant's operator is permanently ineligible to receive a permit under this section. After making a preliminary finding of ineligibility and providing written notification under (f) of this section, the commissioner will make a preliminary finding of permanent permit ineligibility if(1) the applicant or operator controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations under 11 AAC 90.617(b); and(2) the violations are of a nature and duration, with resulting irreparable damage to the environment, as to indicate an intent not to comply with AS 27.21, this chapter, or the approved permit.(h) Not later than 30 days after receiving notice of a preliminary finding of permanent permit ineligibility, the applicant or operator may request a hearing on a under AS 27.21.150. If an applicant does not request a hearing or the hearing affirms the preliminary finding of permanent permit ineligibility, the preliminary decision becomes a final finding.Eff. 7/7/2022, Register 243, October 2022Authority:AS 27.21.030
AS 27.21.140
AS 27.21.180
AS 27.21.190