Mo. Code Regs. tit. 10 § 40-6.070

Current through Register Vol. 49, No.12, June 17, 2024

Section 10 CSR 40-6.070 - Review, Public Participation and Approval of Permit Applications and Permit Terms and Conditions

PURPOSE: This rule sets forth requirements for review, public participation and approval of permit applications and permit terms and conditions pursuant to sections 444.810, 444.815, 444.820, 444.835, 444.840, and 444.850, RSMo.

(1) Definitions. As used in subsections (7)(D) and (8)(I)-

(A) Willful violation means an act or omission which violates state or federal laws or regulations or individual permit conditions, committed by a person who intends the result which actually occurs; and

(B) Irreparable damage to the environment means any damage to the environment that cannot be corrected by actions of the applicant.

(2) Public Notices of Filing of Permit Applications.

(A) An applicant for a permit shall place an advertisement in a local newspaper of general circulation in the locality of the proposed surface coal mining and reclamation operations at least once a week for four (4) consecutive weeks. The applicant shall place the advertisement in the newspaper at the same time the complete permit application is filed with the director. The advertisement shall contain, at a minimum, the following information:

1. The name and business address of the applicant;

2. A map or description which shall-

A. Clearly show or describe towns, rivers, streams, or other bodies of water, local landmarks, and any other information, including routes, streets, or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area;

B. Clearly show or describe the exact location and boundaries of the proposed permit area;

C. State the name of the United States Geological Survey 7.5-minute quadrangle map(s) which contains the area shown or described; and

D. If a map is used, indicate the north point;

3. The location where a copy of the application is available for public inspection under subsection (2)(D) of this rule;

4. The name and address of the director to which written comments, objections, or requests for informal conferences on the application may be submitted under sections (3)-(5) of this rule; and

5. If an applicant seeks a permit to mine within one hundred feet (100') of the outside right-of-way of a public road or to relocate a public road, a concise statement describing the mine-related activities to be conducted within one hundred feet (100') of the outside right-of-way or, in the case of a relocation of a public road, the particular part to be relocated, where the relocation is to occur, and the duration of the relocation.

(B) Upon receipt of a complete application for a permit, the director, within ten (10) days, shall issue written notification of-

1. The applicant's intention to surface mine a particularly described tract of land;

2. The application number;

3. Where a copy of the application may be inspected; and

4. Where comments on the application may be submitted under section (3) of this rule.

(C) The written notifications shall be sent to-

1. Federal, state, and local governmental agencies with jurisdiction over or an interest in the area of the proposed operations and reclamation including, but not limited to, the local office of the Soil Conservation Service, the local United States Army Corps of Engineers district engineer, the National Park Service, other general governmental entities, and fish and wildlife and historic preservation agencies;

2. Governmental planning agencies with jurisdiction to act with regard to land use, air, or water quality planning in the area of the proposed operations;

3. Sewage and water treatment authorities and water companies, either providing sewage or water services to users in the area of the proposed operations or having water sources or collection, treatment, or distribution facilities located in these areas; and

4. The federal or state governmental agencies with authority to issue all other permits and licenses needed by the applicant in connection with operations proposed in the application.

(D) The applicant shall-

1. Make a full copy of his/her complete application for a permit available for the public to inspect and copy. This shall be done by filing a copy of the application with the recorder of deeds at the courthouse of the county where the mining is proposed to occur; and

2. File the copy of the complete application under paragraph (2)(D)1. of this rule by the first date of newspaper advertisement of the application. The applicant shall file any subsequent revision of the application with the recorder of deeds at the same time as the revision is submitted to the commission or director.

(3) Opportunity for Submission of Written Comments on Permit Applications.

(A) Written comments on permit applications may be submitted to the commission and director by the public entities to whom notification is provided under subsections (2)(B) and (C) of this rule with respect to the effects of the proposed mining operations on the environment within their area of responsibility.

(B) These comments shall be submitted to the commission and director within thirty (30) days after the last publication of the newspaper advertisement required by subsection (2)(A) of this rule.

(C) The director shall immediately transmit a copy of all comments for filing and public inspection to the recorder of deeds where the applicant filed a copy of the application for a permit under subsection (2)(D) of this rule. A copy shall also be transmitted to the applicant.

(4) Right to File Written Objections.

(A) Any person whose interests are or may be adversely affected or an officer or head of any federal, state, or local government agency or authority shall have the right to file written objections to an initial, renewed, or revised application for a permit within thirty (30) days after the last publication of the newspaper advertisement required by subsection (2)(A) of this rule.

(B) Upon receipt of any written objections, the director shall immediately-

1. Transmit a copy of them to the applicant; and

2. File a copy for public inspection at the office of the recorder of deeds where the applicant filed a copy of the application for permit under subsection (2)(D) of this rule.

(5) Informal Conferences.

(A) Procedure for Requests. Any objector under section (4) of this rule or the applicant, in writing, may request that the director hold an informal conference on the application for a permit. The request shall-

1. Briefly summarize the issues to be raised by the requestor at the conference;

2. State whether the requestor desires to have the conference conducted in the locality of the proposed mining operations; and

3. Be filed not later than thirty (30) days after the last publication of the newspaper advertisement in subsection (2)(A) of this rule.

(B) Except as provided in subsection (5)(C) of this rule, if an informal conference is requested in accordance with subsection (5)(A) of this rule, the director shall hold an informal conference within thirty (30) days following the receipt of the request. The informal conference shall be conducted according to the following:

1. If requested under paragraph (5)(A)2. of this rule, the informal conference shall be held in the locality of the proposed mining;

2. The date, time, and location of the informal conference shall be advertised by the director in a newspaper of general circulation in the locality of the proposed mine at least two (2) weeks prior to the scheduled conference;

3. If requested in writing by a conference requestor, within a reasonable time prior to the conference, the director shall arrange with the applicant to grant parties to the conference access to the mine plan area for the purpose of gathering information relevant to the conference; and

4. The conference shall be conducted by the director, who may accept oral or written statements and any other relevant information from any party to the conference. An electronic or stenographic record shall be made of the conference proceeding, unless waived by all the parties. The record shall be maintained and shall be accessible to the parties to the conference until final release of the applicant's performance bond pursuant to 10 CSR 40-7.

(C) If all parties requesting the informal conference stipulate agreement before the requested informal conference and withdraw their request, the informal conference need not be held.

(D) Informal conferences held in accordance with this section may be used as the public hearing required under 10 CSR 40-5.010(3)(D) on proposed uses or relocation of public roads.

(6) Public Availability of Permit Application on File With the Commissioner or Director.

(A) General Availability. Except as provided in subsection (6)(C) of this rule, all applications for permits, revisions, renewals, and transfers, assignments or sales of permit rights on file with the regulatory authority shall be available, at reasonable times, for public inspection and copying.

(B) Limited Availability. Except as provided in subsection (6)(C) of this rule, information pertaining to coal seams, test borings, core samplings, or soil samples in an application shall be made available to any person with an interest which is or may be adversely affected. Information subject to this subsection shall be made available to the public when the information is required to be on public file pursuant to state law.

(C) Confidentiality. The director shall provide notice and the opportunity to be heard for persons both seeking and opposing disclosure, when this request is made through the procedures outlined in section (5) of this rule, to ensure confidentiality of qualified confidential information, which shall be clearly identified by the applicant and submitted separately from the remainder of the application. Confidential information is limited to information-

1. That pertains only to the analysis of the chemical and physical properties of the coal to be mined, except information on components of the coal which are potentially toxic in the environment;

2. Required under section 444.825, RSMo, that is not on public file pursuant to state law and that the applicant has requested in writing to be held confidential; and

3. On the nature and location of archeological resources on public land and Indian land as required under the Archaeological Resources Protection Act of 1979 ( P. L. 96-95, 93 Stat. 721, 16 U.S.C. 470 ).

(7) Review of Permit Applications.

(A) Review by the Director and Determination of the Adequacy of the Fish and Wildlife Plan. The director shall-

1. Review the complete application and written comments, written objections submitted, and records of any informal conference held under sections (3)-(5) of this rule;

2. Determine the adequacy of the fish and wildlife plan submitted pursuant to 10 CSR 40-6.050(7) or 10 CSR 40-6.120(12), in consultation with state and federal fish and wildlife management and conservation agencies having responsibilities for the management and protection of fish and wildlife or their habitats which may be affected or impacted by the proposed surface coal mining and reclamation operations; and

3. Provide the resource information required under 10 CSR 40-6.040(11) and the protection and enhancement plan required under this section to the United States Fish and Wildlife Service for its review within ten (10) days of receipt of the request from the service.

(B) If the director decides to approve the application, s/he shall require that the applicant file the performance bond before the permit is issued, in accordance with the provisions of 10 CSR 40-7.

(C) Based on available information concerning federal and state failure-to-abate cessation orders, unabated federal and state imminent harm cessation orders, delinquent civil penalties, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees and unabated violations of federal and state laws and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, the director shall not issue the permit if the applicant, operator, or any surface coal mining and reclamation operation owned or controlled by either the applicant, operator, or by any person who owns or controls the applicant or operator is currently in violation of any federal or state surface coal mining law or any other law or regulation referred to in subsection (7)(C). In the absence of a failure-to-abate cessation order, the regulatory authority may presume that a notice of violation issued pursuant to 10 CSR 40-8.030(7) or under a federal or state program has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except where evidence to the contrary is set forth in the permit application or where the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties. If a current violation exists, the regulatory authority shall require the applicant, operator, or person who owns or controls the applicant or operator, before the issuance of the permit, to either-

1. Submit proof which is satisfactory to the regulatory authority, department, or agency which has jurisdiction over the violation that the violation-

A. Has been corrected; or

B. Is in process of being corrected; or

2. Establish for the regulatory authority that the applicant, operator, or any person owned or controlled by either the applicant, operator, or any person who owns or controls the applicant, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the current violation. If the initial judicial review authority affirms the violation, then the applicant, within thirty (30) days of the judicial action, shall submit the proof required under paragraph (7)(C)1. of this rule.

(D) Before any final determination that the applicant or the operator specified in the application controls or has controlled mining operations with a demonstrated pattern of willful violation of the law or the Act of that nature, duration, and with the result in irreparable damage to the environment that indicates an intent not to comply with the provisions of the law or the Act, the applicant or operator shall be afforded an opportunity for an adjudicatory hearing conducted pursuant to 10 CSR 40-6.080(1).

(E) The applicant for a permit shall have the burden of establishing that the application is in compliance with all the requirements of the regulatory program.

(F) Any permit that is issued on the basis of proof submitted under paragraph (7)(C)1. of this rule that a violation is in the process of being corrected, or pending the outcome of an appeal described in paragraph (7)(C)2. of this rule, shall be conditionally issued.

(G) Final Compliance Review. After an application is approved, but before the permit is issued, the decision to approve the application shall be reconsidered, based on the compliance review required by subsection (7)(C) of this rule in light of any new information submitted under 10 CSR 40-6.030(1)(H) and (2)(D).

(8) Criteria for Permit Approval or Denial. No permit or revision application shall be approved, unless the application affirmatively demonstrates, and the director finds, in writing, on the basis of information set forth in the application or from information otherwise available, which is documented in the approval and made available to the applicant, that-

(A) The permit application is accurate and complete and that all requirements of the regulatory program have been complied with;

(B) The applicant has demonstrated that surface coal mining and reclamation operations, as required by the regulatory program, can be feasibly accomplished under the mining and reclamation operations plan contained in the application;

(C) The assessment of the probable cumulative impacts of all anticipated coal mining in the general area on the hydrologic balance, as described in 10 CSR 40-6.050(9)(E), has been made by the commission or director and the operations proposed under the application have been designed to prevent damage to the hydrologic balance outside the proposed mine plan area;

(D) The proposed permit area is not-

1. Included within an area designated unsuitable for surface coal mining operations under 10 CSR 40-5.020;

2. Within an area under study for designation as unsuitable for surface coal mining operations in an administrative proceeding begun under 10 CSR 40-5.020, unless the applicant demonstrates that, before January 4, 1977, s/he has made substantial legal and financial commitments in relation to the operation for which s/he is applying for a permit;

3. On any lands subject to the prohibitions or limitations of 10 CSR 40-5.010(2);

4. Within one hundred feet (100') of the outside right-of-way line of any public road, except as provided for in 10 CSR 40-5.010(5)(B); or

5. Within three hundred feet (300') from any occupied dwelling, except as provided for in 10 CSR 40-5.010(2)(E) and (6)(B);

(E) The proposed operations will not adversely affect any publicly- or privately-owned parks or places included or eligible for listing in the National Register of Historic Places, except as provided for in 10 CSR 40-5.010(2)(C). This finding may be supported in part by inclusion of appropriate permit conditions or changes in the operation plan protecting historic resources, or a documented decision that the director has determined that no additional protection measures are necessary;

(F) For operations involving the surface mining of coal where the private mineral estate to be mined has been severed from the private surface estate, the applicant has submitted the documentation required under 10 CSR 40-6.030(3)(B) or 10 CSR 40-6.100(3)(B);

(G) If applicable, the applicant has either-

1. Submitted the proof required by paragraph (7)(C)1. of this rule; or

2. Made the demonstration required by paragraph (7)(C)2. of this rule;

(H) The applicant has submitted proof that all required federal reclamation fees have been paid;

(I) If the applicant, anyone who owns or controls the applicant or the operator specified in the application, controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of a nature and duration and with resulting irreparable damage to the environment indicating an intent not to comply with the law, no permit shall be issued. Before a finding becomes final, the applicant or operator shall be afforded an opportunity for an adjudicatory hearing on the determination;

(J) The applicant, with respect to prime farmland, has obtained either a negative determination or satisfied the requirements of 10 CSR 40-6.060(4);

(K) It is found that the activities would not affect the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitats as determined under the Endangered Species Act of 1973 ( 16 U.S.C. Section 1531 );

(L) The applicant, if applicable, satisfied the requirements for approval of a long-term, intensive agricultural postmining land use in accordance with the requirements of 10 CSR 40-3.120(1)(E) or 10 CSR 40-3.270(1)(E); and

(M) For a proposed remining operation where the applicant intends to reclaim in accordance with the requirements of 10 CSR 40-4.080, the site of the operation is a previously mined area as defined in 10 CSR 40-8.010(1)(A) 72. The applications must contain:

1. Lands eligible for remining;

2. An identification of the potential environmental and safety problems related to prior mining activity which could reasonably be anticipated to occur at the site. This identification shall be based on a due diligence investigation which shall include visual observations at the site, a record review of past mining at the site, and environmental sampling tailored to current site conditions; and

3. Mitigation plans to sufficiently address these potential environmental and safety problems so that reclamation as required by the applicable requirements of the regulatory program can be accomplished.

(N) The applicant is eligible to receive a permit, based on the reviews under 10 CSR 40-6.030(2); 10 CSR 40-6.070(7), (8), (10) and (11); and 10 CSR 40-6.090(4) and (8).

(9) Criteria for Permit Approval or Denial- Existing Structures.

(A) No application for a permit or revisions which proposes to use an existing structure in connection with or to facilitate the proposed surface coal mining and reclamation operation shall be approved, unless the applicant demonstrates and it is found, in writing, on the basis of information set forth in the complete application that-

1. If the applicant proposes to use an existing structure in accordance with the exemption provided in 10 CSR 40-8.070(2)(D) 1.A.-

A. The structure meets the performance standards of the Act and 10 CSR 40-3 and 10 CSR 40-4; and

B. No significant harm to the environment or public health or safety will result from use of the structure; and

2. If other existing structures will be used-

A. If the application proposes to use an existing structure in accordance with the exemption provided in 10 CSR 40-8.070(2)(D) 1.B.-

(I) The structure meets the performance standards of the law and 10 CSR 40-2;

(II) No significant harm to the environment or public health or safety will result from use of the structure; and

(III) The performance standards of 10 CSR 40-2 are at least as stringent as performance standards of 10 CSR 40-3 and 10 CSR 40-4; and

B. If it is found that the structure meets the criteria of subparagraphs (9)(A)1.A. and B. of this rule, but does not meet the criterion of 10 CSR 40-8.070(2)(D) 1.C., the applicant shall submit a compliance plan for modification or reconstruction of the structure and it must be found prior to the issuance of the permit that-

(I) The modification or reconstruction of the structure will bring the structure into compliance with the design and performance standards of 10 CSR 40-3 and 10 CSR 40-4 as soon as possible, but not later than six (6) months, after issuance of the permit;

(II) The risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction; and

(III) The applicant will monitor the structure to determine compliance with the performance standards of 10 CSR 40-3 and 10 CSR 40-4.

(B) If it is found that the existing structure cannot be reconstructed without causing significant harm to the environment or public health or safety, the applicant will be required to abandon the existing structure. The structure shall not be used for or to facilitate surface coal mining operations after the effective date of issuance of the permit issued under this chapter. Abandonment of the structure shall proceed on a schedule approved in compliance with 10 CSR 40-3.150(4) or 10 CSR 40-3.310(4).

(10) Permit Approval or Denial Actions.

(A) The director shall approve, require modification of or deny all applications for permits on the basis of-

1. Complete applications for permits and revisions or renewals of permits;

2. Public participation as provided for in this chapter;

3. Compliance with any applicable provisions of 10 CSR 40-6.060; and

4. Processing and review of applications as required by this rule.

(B) The director shall take action as required under subsection (10)(A) of this rule, within the following times:

1. Initiation of regulatory program. Except as provided for in paragraph (10)(B)3. of this rule, a complete application submitted within two (2) months after approval of the state program by the secretary of the interior shall be processed by the director so that an application is approved or denied-

A. Within eight (8) months after the date of approval by the secretary of the interior of a regulatory program, unless the state or the commission and director are specifically enjoined from submitting a state program or the commission and director are specifically enjoined from implementing a regulatory program but in no case later than eight (8) months after program approval; and

B. If an informal conference has been held pursuant to section (5) of this rule, within sixty (60) days from the close of the conference;

2. Subsequent operation of regulatory programs. Except as provided for in paragraph (10)(B)3. of this rule, a complete application submitted in accordance with subsection (4)(B) of this rule shall be processed by the director, so that an application is approved or denied within the following times:

A. If an informal conference has been held under section (5) of this rule, within sixty (60) days of the close of the conference; and

B. If no informal conference has been held under section (5) of this rule, then within sixty (60) days after the last publication of notice; and

3. Notwithstanding any of the previously mentioned provisions of this section, no time limit requiring the commission or director to act shall be considered expired from the time the commission or director initiates a proceeding under subsection (7)(D) of this rule until the final decision of the hearing body.

(C) If an informal conference is held under section (5) of this rule, the director shall give his/her written findings to the permit applicant and to each person who is a party to the conference, approving, modifying or denying the application in whole or in part and stating the specific reasons therefore in the decision.

(D) If no informal conference has been held, the director shall give his/her written findings to the permit applicant, approving, modifying, or denying the application in whole or in part and stating the specific reason in the decision.

(E) The director shall simultaneously give a copy of his/her decision to-

1. Each person and governmental official who filed a written objection or comment with respect to the application; and

2. The regional director of the office together with a copy of any permit issued.

(F) Within ten (10) days after the granting of a permit, including the filing of the performance bond which complies with 10 CSR 40-7, the director shall notify the local government officials in the county in which the area of land to be affected is located that a permit has been issued and shall describe the location of the lands within the permit area.

(11) Improvidently-Issued Permit.

(A) General Procedures.

1. Permit review. Where the director has reason to believe a surface coal mining and reclamation permit was improvidently issued, s/he shall review the circumstances under which the permit was issued, using the criteria in paragraph (11)(A)2. of this rule. Where the regulatory authority finds that the permit was improvidently issued, it shall comply with paragraph (11)(A)3. of this rule.

2. Review criteria. The director shall find that a surface coal mining and reclamation permit was issued improvidently if-

A. Under the violations review criteria of the regulatory program at the time the permit was issued-

(I) The regulatory authority should not have issued the permit because of an unabated violation or a delinquent penalty or fee; or

(II) The permit was issued on the presumption that a notice of violation was in the process of being corrected to the satisfaction of the agency with jurisdiction over the violation, but a cessation order subsequently was issued;

B. The violation, penalty, or fee-

(I) Remains unabated or delinquent; and

(II) Is not the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; and

C. Where the permittee was linked to the violation, penalty, or fee through ownership or control, under the violations review criteria of the regulatory program at the time the permit was issued an ownership or control link between the permittee and the person responsible for the violation, penalty, or fee still exists, or where the link was severed the permittee continues to be responsible for the violation, penalty, or fee.

3. Remedial measures. If the director, under paragraph (11)(A)2. of this rule, finds that because of an unabated violation or a delinquent penalty or fee a permit was issued improvidently, s/he shall use one (1) or more of the following remedial measures:

A. Implement, with the cooperation of the permittee or other person responsible and of the responsible agency, a plan for abatement of the violation or a schedule for payment of the penalty or fee;

B. Impose on the permit a condition requiring that in a reasonable period of time the permittee or other person responsible abate the violation or pay the penalty or fee;

C. Suspend the permit until the violation is abated or the penalty or fee is paid; or

D. Rescind the permit under subsection (11)(B) of this rule.

4. The regulatory authority will consider a provisionally issued permit to be improvidently issued, and must immediately initiate procedures under 10 CSR 40-6.070(11) to suspend or rescind that permit, if-

A. Violations are not abated within the specified abatement period;

B. The applicant, the applicant's operator, or operations that the applicant or the applicant's operator own or control do not comply with the terms of an abatement plan or payment schedule;

C. In the absence of a request for judicial review, the disposition of a challenge and any subsequent administrative review of this section affirms the validity of the violation or the ownership or control listing or finding; or

D. The initial judicial review decision of this section affirms the validity of the violation or the ownership or control listing or finding.

(B) Suspension and Rescission Procedures.

1. A regulatory authority which, under subparagraph (11)(A)3.D. of this rule, elects to suspend or rescind an improvidently-issued permit shall serve on the permittee and post at its nearest office to the permit area a notice of proposed suspension and rescission which includes the reasons for the finding of the regulatory authority under paragraph (11)(A)2. of this rule and states that-

A. If the regulatory authority proposes to suspend the applicant's permit, the regulatory authority will provide sixty (60) days notice and the permit will automatically become suspended. If the regulatory authority proposes to rescind the applicant's permit, the regulatory authority will provide one hundred twenty (120) days notice and the applicant's permit will be automatically rescinded. These periods will be followed unless the permittee submits proof and the regulatory authority finds that-

(I) The finding of the regulatory authority under paragraph (11)(A)2. of this rule was erroneous;

(II) The permittee or other person responsible has abated the violation on which the finding was based, or paid the penalty or fee, to the satisfaction of the responsible agency;

(III) The violation, penalty, or fee is the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; or

(IV) Since the finding was made, the permittee has severed any ownership or control link with the person responsible for, and does not continue to be responsible for, the violation, penalty, or fee; and

B. When the permit is suspended or rescinded, written notification shall be provided to the permittee requiring the permittee to cease all surface coal mining and reclamation operations under the permit and shall be posted at the nearest office to the permit area, except for violation abatement and for reclamation and other environmental protection measures as required by the regulatory authority.

2. Right to appeal. If the permit is suspended or rescinded, the permittee may file an appeal for administrative review of the notice under Administrative Procedures and Review, Chapter 536, RSMo. This review shall be requested within thirty (30) days of the receipt of the notice of suspension and rescission. The requested hearing shall be held before the commission within thirty (30) days of the receipt of the request. The commission shall issue its decision within thirty (30) days of the hearing.

(12) Permit Terms.

(A) Each permit shall be issued for a fixed term not to exceed five (5) years. A longer fixed permit term may be granted, if-

1. The application is full and complete for the specified longer term; and

2. The applicant shows that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing of equipment and the opening of this operation and the need is confirmed, in writing, by the applicant's proposed source for the financing.

(B) Termination and Extension Conditions.

1. A permit shall terminate, if the permittee has not begun the surface coal mining and reclamation operation covered by the permit, within three (3) years of the issuance of the permit.

2. The commission may grant reasonable extensions of time for commencement of these operations upon receipt of a written statement showing that these extensions of time are necessary, if-

A. Litigation precludes the commencement or threatens substantial economic loss to the permittee; or

B. There are conditions beyond the control and without the fault or negligence of the permittee.

3. With respect to coal to be mined for use in a synthetic fuel facility or specified major electric generating facility, the permittee shall be deemed to have commenced surface mining operations at the time that the construction of the synthetic fuel or generating facility is initiated.

4. Extensions of time granted under this subsection shall be specifically set forth in the permit and notice of the extension shall be made to the public.

(C) Permits may be suspended, revoked, or modified in accordance with 10 CSR 40-6.060(1)-(3) and (5), 10 CSR 40-6.090(3), and 10 CSR 40-8.030.

(13) Conditions of Permits-General and Right of Entry. Each permit shall ensure that-

(A) Except to the extent that the commission or director otherwise directs in the permit that for specific actions be taken, the permittee shall conduct all surface coal mining and reclamation operations as described in the complete application;

(B) The permittee shall allow the authorized representative of the secretary of the interior, the commission, director, or authorized representatives, without advance notice or a search warrant, upon presentation of appropriate credentials and without delay, to-

1. Have the rights of entry provided for in 10 CSR 40-8.030(2); and

2. Be accompanied by private persons for the purpose of conducting an inspection when the inspection is in response to an alleged violation reported to the commission or director by the private person;

(C) The permittee shall conduct surface coal mining and reclamation operations only on those lands specifically designated on the maps submitted under 10 CSR 40-6.040 or 10 CSR 40-6.110, 10 CSR 40-6.050, or 10 CSR 40-6.120 and approved for the term of the permit and which are subject to the performance bond in effect pursuant to 10 CSR 40-7;

(D) The operator shall pay all reclamation fees required by Subchapter R of Chapter 30 of the Code of Federal Regulations for coal produced under the permit for sale, transfer, or use in the manner required by that subchapter; and

(E) Within thirty (30) days after a cessation order is issued under 10 CSR 40-8.030(6) for operations conducted under the permit, except where a stay of the cessation order is granted and remains in effect, the permittee shall either submit to the regulatory authority the following information, current to the date the cessation order was issued, or notify the regulatory authority in writing that there has been no change since the immediately preceding submittal of that information:

1. Any new information needed to correct or update the information previously submitted to the regulatory authority by the permittee under 10 CSR 40-6.030(1)(C); or

2. If not previously submitted, the information required from a permit applicant by 10 CSR 40-6.030(1)(C).

(14) Conditions of Permits-Environment, Public Health, and Safety. Each permit shall ensure and contain specific conditions requiring that the permittee shall-

(A) Take all possible steps to minimize any adverse impact to the environment or public health and safety resulting from noncompliance with any term or condition of the permit, including, but not limited to:

1. Any accelerated or additional monitoring necessary to determine the nature and extent of noncompliance;

2. Immediate implementation of measures necessary to comply; and

3. Warning, as soon as possible after learning of the noncompliance, any person whose health and safety is in imminent danger due to the noncompliance;

(B) Dispose of solids, sludge, filter backwash, or pollutants removed in the course of treatment or control of waters or emissions to the air in the manner required by 10 CSR 40-3 and 10 CSR 40-4, by the regulatory program and which prevents violation of any other applicable state or federal law; and

(C) Conduct its operations-

1. In accordance with any measures specified in the permit as necessary to prevent significant, imminent environmental harm to the health or safety of the public; and

2. Utilizing any methods specified in the permit in approving alternative methods of compliance with the performance standards of the regulatory program, in accordance with the provisions of the law, subsection (8)(M) of this rule and 10 CSR 40-3 and 10 CSR 40-4.

10 CSR 40-6.070

AUTHORITY: sections 444.530 and 444.810, RSMo 2000.* Original rule filed Oct. 12, 1979, effective Feb. 11 , 1980. Amended: Filed April 14, 1980, effective Aug. 11 , 1980. Amended: Filed July 15, 1980, effective 11/13/1980. Amended: Filed Aug. 1, 1980, effective Dec. 11 , 1980. Amended: Filed Dec. 10, 1980, effective April 11 , 1981. Amended: Filed Jan. 5, 1987, effective 7/1/1987. Amended: Filed Dec. 15, 1987, effective 4/1/1988. Amended: Filed June 2, 1988, effective 8/25/1988. Amended: Filed Jan. 5, 1989, effective 4/1/1989. Amended: Filed March 2, 1989, effective 5/15/1989. Amended: Filed May 2, 1989, effective 8/1/1989. Amended: Filed July 3, 1990, effective 11/30/1990. Amended: Filed May 15, 1992, effective 1/15/1993. Amended: Filed Sept. 15, 1994, effective 4/30/1995. Amended: Filed March 21, 2000, effective 10/30/2000. Amended: Filed Dec. 17, 2012, effective 7/30/2013. Amended: Filed July 15, 2013, effective 1/30/2014.

*Original authority: 444.530, 1971, amended 1983, 1990, 1993, 1995 and 444.810, RSMo 1979, amended 1983, 1993, 1995.