Section 11 AAC 90.134 - Initial review and preliminary finding requirements for improvidently issued permits(a) If the commissioner determines that a surface coal mining and reclamation permit issued under 11 AAC 90.109 or 11 AAC 90.125 may have been improvidently issued, the commissioner will review the circumstances under which the permit was issued. After this review, the commissioner will determine if there is sufficient evidence to make a prima facie case that the permit was improvidently issued because (1) under the permit eligibility criteria in effect at the time the permit was issued, (A) the commissioner should not have issued the permit because of an unabated or uncorrected violation; or(B) the permit was issued on the presumption that a violation was in the process of being corrected to the satisfaction of the agency with jurisdiction over the violation;(2) the applicant or the applicant's operator currently owns or controls, or owned or controlled, a surface coal mining and reclamation operation that has a violation that (A) remains unabated or uncorrected;(B) is not the subject of a good-faith appeal; and(C) is not the subject of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the regulatory authority, department, or agency that has jurisdiction over the violation;(3) through an ownership or control link, the permittee was linked to the violation under the permit eligibility criteria in effect at the time the permit was issued, and the ownership or control link between the permittee and the person responsible for the violation still exists, or, where the link was severed, the permittee continues to be responsible for the violation; or(4) a provisional permit meets one of the criteria listed in 11 AAC 90.109(c).(b) If the commissioner determines that there is sufficient evidence to establish a prima facie case that the permit was improvidently issued, the commissioner will issue a written preliminary finding under (a) of this subsection. The commissioner will serve the permittee with notice and the written preliminary finding.(c) Not later than 30 days after receiving a notice under (b) of this section, the permittee may request in writing that the commissioner reconsider the finding that a permit was improvidently issued and may provide evidence to the commissioner to support this claim. After considering the record and evidence submitted under this subsection, the commissioner will make a final finding, in writing, as to whether the permit was improvidently issued. Based on this finding, the commissioner may propose to either suspend or rescind an improvidently issued permit under 11 AAC 90.136. The commissioner will provide notice of this proposal along with the final finding in accordance with 11 AAC 90.135.(d) The provisions of 11 AAC 90.137 apply when a challenge under (c) of this section concerns a preliminary finding under (a)(2) of this section that the applicant or the applicant's operator currently owns or controls, or owned or controlled, a surface coal mining operation.Eff. 7/7/2022, Register 243, October 2022Authority:AS 27.21.030
AS 27.21.150
AS 27.21.180