Md. Code Regs. 26.20.10.03

Current through Register Vol. 51, No. 18, September 6, 2024

Section 26.20.10.03 - Determination of Limits and Prohibitions

A. Upon receipt of a complete application for a surface coal mining operation permit or a revision of the boundaries of a surface coal mining operation permit, the Bureau shall review the application to determine whether the proposed surface coal mining operations are limited or prohibited under this chapter.

B. If the proposed operation is to be located on any lands where surface coal mining is prohibited, the Bureau shall reject any portion of the application that would locate surface coal mining operations on land protected under Regulation .02 of this chapter unless:

(1) The site qualifies for an exception for existing operations under Regulation .04 of this chapter;

(2) The applicant has valid existing rights for the land as determined under Regulation .07 of this chapter;

(3) The applicant obtains a waiver or exception from the prohibitions of Regulation .02C, D, and E of this chapter in accordance with §§D, E, and F of this regulation; or

(4) For land protected by Regulation .02B of this chapter, both the Bureau and the agency with jurisdiction over the park or place jointly approve the proposed operation in accordance with §H of this regulation.

C. If the Bureau is unable to determine whether the proposed operation is located within the boundaries of any of the lands in Regulation .02A of this chapter, or closer than the limits provided in Regulation .02F and G of this chapter, the Bureau shall transmit a copy of the relevant portions of the permit application to the appropriate federal, State, or local government agency with a request for assistance in making a determination or clarification of the relevant boundaries or distances, with a notice to the appropriate agency that the agency has 30 days from receipt of the request in which to respond. On request by the appropriate agency, the Bureau shall grant an extension to the 30-day period of an additional 30 days. If a response is not received within the 30-day period or within the extended period granted, the Bureau may make the necessary determination based on the information it has available.

D. If the proposed mining operation is to be conducted within 100 feet measured horizontally from the outside right-of-way line of any public road, except where mine access roads or haulage roads join this right-of-way line, or if the applicant proposes to relocate or close any public road, the Bureau:

(1) Shall require the applicant to obtain necessary approvals of the authority with jurisdiction over the public road;

(2) Shall require the applicant to specifically advertise that the proposed surface mining operation would relocate or close a public road or would be conducted within 100 feet of the right-of-way of a public road and provide a public comment period and opportunity to request a public hearing;

(3) Shall make a written finding based upon information received at the public hearing, within 30 days after completion of the hearing, or after any public comment period ends if no hearing is held, as to whether the interests of the public and affected landowners will be protected from the proposed mining operation; and

(4) May not allow mining within 100 feet of the outside right-of-way line of a public road, or allow a public road to be relocated or closed, unless the Bureau determines that the interests of the public and affected landowners will be protected.

E. If the proposed surface coal mining operation is to be conducted within 300 feet measured horizontally from any occupied dwelling, the applicant shall submit with the application a written waiver from the owner of the dwelling, stating that the owner and signator had the legal right to deny mining and knowingly waived that right and consented to the operations within a closer distance of the dwelling as specified in the waiver. The waiver shall be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver. If an applicant obtained a valid waiver before August 3, 1977, a new waiver is not required. If an applicant obtained a valid waiver on or after August 3, 1977, that waiver shall remain effective against subsequent purchasers who had actual or record knowledge of the existing waiver at the time of purchase.

F. A subsequent purchaser is considered to have record knowledge if the waiver has been properly filed in public property records under State laws, or if the mining has proceeded to within the 300-foot limit before the date of purchase.

G. If the proposed surface coal mining operation is to be conducted within 25 feet, or a distance of 2 feet for each vertical foot of highwall, of any adjacent property line, the applicant shall submit with the application a written waiver from the owner of the adjacent property, consenting to the operations within a closer distance as specified in the waiver.

H. If the Bureau determines that the proposed surface mining operation will adversely affect any publicly owned park or any places included on the National Register of Historic Places, the Bureau shall transmit to the federal, State, or local agencies with jurisdiction over the park or historic place, a copy of applicable parts of the permit application, together with a request for that agency's approval or disapproval of the operation, and a notice to that agency that the agency has 30 days from receipt of the request in which to respond, and that failure to interpose a timely objection constitutes approval. The Bureau, upon request by the appropriate agency, may grant an extension to the 30-day period of an additional 30 days. Failure to interpose an objection within 30 days or the extended period granted constitutes an approval of the proposed permit. A permit for the operation may not be issued unless jointly approved by all affected agencies.

I. The Bureau's determination as to whether a person holds a valid existing right, or whether surface coal mining operations existed on the date of enactment, is subject to administrative and judicial review.

Md. Code Regs. 26.20.10.03

Regulations .03 were previously codified as COMAR 08.13.09.10 a A_C, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.
Regulation .03 amended effective February 12, 2007 (34:3 Md. R. 301)