Section 11 AAC 90.137 - Ownership or control challenges(a) A person may request a reconsideration of a listing or finding of ownership or control under 11 AAC 90.105 if(1) the person is listed in a permit application or in the applicant violator system as an owner or controller of all or part of a surface coal mining operation;(2) the commissioner finds that the person is an owner or controller of all or part of a surface coal mining operation under 11 AAC 90.105(b); or(3) the person is an applicant or permittee affected by an ownership or control listing or finding.(b) A permittee must include with a request for consideration under this section a written explanation of the basis for the challenge and reliable, credible evidence supporting the challenge. The permittee must also submit the written explanation to a regulatory authority in another jurisdiction if the challenge affects a pending permit application in that jurisdiction or if the challenge affects a surface coal mining operation in that jurisdiction. If the challenge concerns a violation under the jurisdiction of a different regulatory authority, the commissioner will review the information in the applicant violator system and may request that the office overseeing the applicant violator system conduct an investigation into the violation. The commissioner will also consult with the applicable regulatory authority regarding the details of the violation.(c) A challenger under this section must prove by a preponderance of the evidence that the challenger does not currently own or control the relevant operation and did not own or control the operation during the course of the relevant time period.(d) The evidence provided under (a) of this section becomes part of the public record unless the person providing the evidence requests that the commissioner hold materials submitted under this section as confidential, subject to AS 27.21.200(c) and AS 40.25.100 - 40.25.295 (Alaska Public Records Act). Evidence provided under (a) of this section may include(1) a notarized affidavit containing specific facts about the duties performed for the relevant operation, the beginning and ending dates of the 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;(2) certified copies of corporate minutes, stock ledgers, contracts, purchase and sale agreements, leases, correspondence, or other relevant company records;(3) certified copies of documents filed with or issued by any state, municipal, or federal government agency; or(4) an opinion of counsel that includes supporting evidence, 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.(e) Not later than 60 days after a person files a challenge under this section, the commissioner will issue a written decision finding whether the challenger owns or controls the relevant surface coal mining operation, or owned or controlled the operation during the relevant time period. The commissioner will enter the final decision into the applicant violator system and promptly provide a copy of the decision to the challenger.(f) The person who filed the challenge or a person with an interest that may be adversely affected by the decision may appeal this decision. A hearing on an appeal under this section will be conducted in accordance with 11 AAC 90.131 and AS 27.21.150. A permittee must exhaust all administrative remedies before the permittee may seek judicial review.(g) The commissioner will update the applicant violator system to reflect any changes following an appeal.(h) At any time, a person listed in the applicant violator system as an owner or controller of a surface coal mining operation may request an informal explanation from the applicant violator system office as to the reason the person is in the applicant violator system in an ownership or control capacity. The applicant violator system office will provide a response describing why the person is listed in the applicant violator system in accordance with 30 C.F.R. 773.26(e).Eff. 7/7/2022, Register 243, October 2022Authority:AS 27.21.030
AS 27.21.150
AS 27.21.180