Current through Register Vol. XLI, No. 24, June 14, 2024
Section 38-2-19 - Designation of Areas Unsuitable for Mining19.1. Right to Petition.19.1.a. Any person having an interest which is or may be adversely affected, or the Secretary, has the right to petition to have an area designated as unsuitable for surface coal mining operations, or to have an existing designation terminated. Such petition shall be filed in the Office of the Secretary.19.1.b. Designation. The petitioner shall provide the following information:19.1.b.1. A U.S.G.S. topographic map on which is noted the location and size of the area covered by the petition;19.1.b.2. Allegations of facts and supporting evidence which would tend to establish that the area is unsuitable for all or certain types of surface coal mining operations;19.1.b.3. A description of how mining of the area has affected or may adversely affect people, land, air, water or other resources;19.1.b.4. The petitioner's name, notarized signature, address and telephone number; and19.1.b.5. A statement which identifies the petitioner's interest which is or may be adversely affected, including how the petitioner meets an "injury in fact" test by describing the injury to his or her specific affected interests and demonstrates how he or she is among the injured.19.1.c. Termination of the Designation. A petitioner requesting to terminate a designation shall provide the following information: 19.1.c.1. A U.S.G.S. topographic map on which is noted the location and size of the area covered by the petition;19.1.c.2. Allegations of facts with supporting evidence not contained in the record of the proceeding in which the area was designated unsuitable, which would tend to establish the statements or allegations, and which statements or allegations indicate that the designation should be terminated based on:19.1.c.2.A. The nature or abundance of the protected resource or condition or other basis of the designation if the designation was based on criteria found in subdivision 19.7.b of this subsection;19.1.c.2.B. Reclamation now being technologically and economically feasible, if the designation was based on the criteria found in subdivision 19.7.a of this section; or19.1.c.2.C. The resources or condition not being affected by surface coal mining operations, or in the case of land use plans, not being incompatible with surface coal mining operations during and after mining, if the designation was based on the criteria found in subdivision 19.7.b of this section.19.1.c.3. The petitioner's name, notarized signature, address and telephone number;19.1.c.4. A statement which identifies the petitioner's interest which is or may be adversely affected by the continuation of the designation including how the petitioner meets an "injury in fact" test by describing the injury to his or her specific affected interests and demonstrating how he or she is among the injured; and19.1.c.5. For areas previously and unsuccessfully proposed for termination, significantly new allegations of facts and supporting evidence must be presented in the petition.19.2. Initial Processing, Record-keeping, and Notification Requirements. 19.2.a. Within thirty (30) days of receipt of a petition, the Secretary shall notify the petitioner by certified mail whether or not the petition is complete in accordance with subdivision 19.1b, or 19.1.c of this subsection.19.2.b. The Secretary shall determine whether any identified coal resources exist in the area covered by the petition, without requiring any showing from the petitioner. If the Secretary finds there are not any identified coal resources in that area, he shall return the petition to the petitioner with a statement of the findings.19.2.c. The Secretary may reject petitions for designations or terminations of designations which are firvolous. Each petitioner must, at a minimum, satisfy the requirements of subdivisions 19.1.b or 19.1.c of this subsection. No party shall bear any burden of proof, and each accepted petition shall be considered and acted upon by the Secretary pursuant to the procedures of this section.19.2.d. When considering a petition for an area which was previously and unsuccessfully proposed for designation, the Secretary shall determine if the new petition presents new allegations of facts. If the petition does not contain new allegations of facts, the Secretary shall not consider the petition and shall return the petition to the petitioner, with a statement of its findings and a reference to the record of the previous designation proceedings where the facts were considered.19.2.e. If the Secretary determines that the petition is incomplete or firvolous, he shall return the petition to the petitioner, with a written statement of the reasons for the determination and the categories of information needed to make the petition complete.19.2.f. The Secretary shall notify the person who submits a petition of any application for a permit received which proposes to include any area covered by the petition.19.2.g. Any petitions received after the first advertisement has been published on a permit application relating to the same mine plan area shall not prevent the Secretary from issuing a decision on that permit application. The Secretary may return any petition received thereafter to the petitioner with a statement why the petition cannot be considered. For the purposes of this section, close of the public comment period shall mean at the close of any informal conference or if no conference is requested, at the close of the period for filing written comments and objections.19.2.h. Promptly after a petition is received, the Secretary shall notify the general public of the receipt of the petition by a conspicuous newspaper advertisement placed in the locale of the area covered by the petition, in the newspaper providing broadest circulation in the region of the petitioned area, and in the State Register. The Secretary shall also make copies of the petition available to the public and provide copies of the petition to other interested governmental agencies, interveners, persons with an ownership interest of record in the property, and other persons known to the Secretary to have an interest in the property. Notice to those persons with ownership interests in the property of record shall be in accordance with applicable State law.19.2.i. Within three (3) weeks after the determination that a petition is complete, the Secretary shall make copies of the petition available to the public and other agencies and shall notify the general public of the receipt of the petition and request submissions of relevant information by a newspaper advertisement placed once a week for two (2) consecutive weeks in the locale of the area covered by the petition in the newspaper of largest circulation in the State and in any Official State register of public notices.19.2.j. Until three (3) days before the Secretary holds a hearing under subsection 19.3 of this section, any person may intervene in the proceeding by filing allegations of facts, supporting evidence, a short statement identifying the petition to which the allegations pertain and the intervener's name, address, and telephone number.19.2.k. Beginning immediately after a petition is filed, the Secretary shall compile and maintain a record consisting of the petition and all documents relating to the petition filed with or prepared by the Department of Environmental Protection. The Secretary shall make the record available for public inspection, free of charge, and copying, at reasonable cost, during all normal business hours at a central location of the county or multi-county area in which the land petitioned is located, and at the main office of the Department of Environmental Protection.19.3. Hearing Requirements. 19.3.a. Within ten (10) months after receipt of a complete petition, the Secretary shall hold a public hearing in the locality of the area covered by the petition. If all petitioners and interveners agree, the hearing need not be held. The Secretary shall make a verbatim transcript of the hearing.19.3.b. Not less than thirty (30) days prior to a hearing, the Secretary shall give notice by certified mail of the date, time, and location of the hearing to: 19.3.b.1. Local, State, and Federal agencies which may have an interest in the decision on the petition;19.3.b.2. The petitioner and the interveners; and19.3.b.3. Any person with an ownership or other interest known to the Secretary in the area covered by the petition.19.3.c. The Secretary shall notify the general public of the date, time and location of the hearing by placing a conspicuous newspaper advertisement once a week for two (2) consecutive weeks in the locale of the area covered by the petition and once during the week prior to the scheduled date of the public hearing. The consecutive weekly advertisement must begin between four (4) and five (5) weeks before the scheduled date of the public hearing.19.3.d. The Secretary may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale.19.3.e. Prior to designating any land areas as unsuitable for surface coal mining operations, the Secretary shall prepare a detailed statement, using existing and available information, on the potential coal resources of the area, the demand for coal resources and the impact of such designation on the environment, the economy and the supply of coal.19.3.f. In the event that all petitioners and interveners stipulate agreement prior to the hearing, the petition may be withdrawn from consideration.19.4. Decision. 19.4.a. In reaching a decision, the Secretary shall use:19.4.a.1. The relevant information contained in the data base and inventory system;19.4.a.2. Information provided through public comment or by other governmental agencies;19.4.a.3. The detailed statement prepared under subdivision 19.3.e of this subsection; and19.4.a.4. Any other relevant information submitted during the comment period.19.4.b. A final written decision shall be issued by the Secretary including a statement of reasons, within sixty (60) days of completion of the public hearing, or if no public hearing is held, then within twelve (12) months after receipt of the complete petition. The Secretary shall simultaneously send the decision by certified mail to the petitioner, every other party to the proceeding, and to the Field Office Secretary of the Office of Surface Mining.19.4.c. The decision of the Secretary with respect to a petition, or the Secretary's failure to act within the time limits set forth herein shall be subject to judicial review by a court of competent jurisdiction in accordance with State law.19.5. Data Base and Inventory System Requirements.19.5.a. The Secretary shall develop a data base and inventory system which will permit evaluation of whether reclamation is feasible in areas covered by petitions.19.5.b. The Secretary shall include in the system information relevant to the criteria in subdivision 19.7.b of this subsection, including but not limited to, information received from the United States Fish and Wildlife Service, the State Historic Preservation Officer and the Air Pollution Control Commission.19.5.c. The Secretary shall add to the data base and inventory system information: 19.5.c.1. On potential coal resources of the State, demand for those resources, the environment, the economy and the supply of coal, sufficient to enable the Secretary to prepare the statements required by subdivision 19.3.e of this section; and19.5.c.2. That which becomes available from petitions, publications, experiments, permit applications, mining and reclamation operations and other sources.19.6. Public Information. The Secretary shall:19.6.a. Make the information and data base system developed available to the public for inspection free of charge and for copying at a reasonable cost except that areas proposed for or included in the National Register of Historic Places may not be disclosed if the Secretary determines that such disclosure might risk destruction or harm to these resources.19.6.b. Provide information to the public on the petition procedures necessary to have an area designated as unsuitable for all or certain types of surface coal mining operations or to have designations terminated and describe how the inventory and data base system can be used.19.7. Criteria for Designating Lands as Unsuitable.19.7.a. Upon petition, an area shall be designated as unsuitable for all or certain types of surface mining operations, if the Secretary determines that reclamation is not technologically or economically feasible under the Act and this rule.19.7.b. Upon petition, an area may be (but is not required to be) designated as unsuitable for all or certain types of surface mining operations, if the operations will: 19.7.b.1. Be incompatible with existing State or local land use plans or programs;19.7.b.2. Affect fragile or historic lands in which the operations could result in significant damage to important historic, cultural, scientific or aesthetic values or natural systems;19.7.b.3. Affect renewable resource lands in which the operations could result in a substantial loss or reduction of long range productivity of water supply or of food or fiber products (For the purposes of this section, the term "renewable resource lands" means geographical areas which contribute significantly to the long range productivity of a water supply, or food or fiber products); or19.7.b.4. Affect natural hazard lands in which the operations could substantially endanger life and property. Such lands include areas subject to frequent flooding and areas of unstable geology.19.8. Secretary's Responsibility for Implementation. 19.8.a. The Secretary shall not issue permits which are inconsistent with designations made pursuant to section 22 of the Act.19.8.b. The Secretary shall maintain a cumulative map of areas designated as unsuitable for all or certain types of surface coal mining operations.19.8.c. The Secretary shall make available to any person any information within his control regarding designations, including mineral or elemental content which is potentially toxic in the environment but excepting proprietary information on the chemical and physical properties of the coal.19.9. Land Exempt From Designation as Unsuitable for Surface Coal Mining Operations. 19.9.a. The requirements of this section do not apply to: 19.9.a.1. Lands on which surface coal mining operations were being conducted prior to Augusts, 1977;19.9.a.2. Lands covered by a permit issued after August 3, 1977; or19.9.a.3. Lands where substantial legal and financial commitments in surface coal mining operations were in existence prior to January 4, 1977.