Section 34-33-114 - Permit approval or denial(1) Upon the basis of a complete permit application, including a reclamation plan, or revision or renewal thereof, as required by this article, including public notification and opportunity for public hearing as required by sections 34-33-118 and 34-33-119, the office shall process the permit application and issue a proposed decision granting or denying the permit, in whole or in part, or requiring modifications to the permit application within the time periods provided for in sections 34-33-118 and 34-33-119, and the office shall notify the applicant in writing of the proposed decision. The applicant for a permit or for a revision of a permit shall have the burden of establishing that such application is in compliance with all the requirements of this article. Within ten days after issuing its proposed decision granting or denying a permit, the office shall file a notice with the board of county commissioners of the county in which the area of land to be affected is located stating the proposed decision issued and describing the location of the affected land.(2) No application for a permit or for a revision of an existing permit shall be approved unless the application affirmatively demonstrates and the office or board finds in writing, on the basis of the information set forth in the application or from information otherwise available which will be documented in the decision and made available to the applicant, that:(a) The permit application is accurate and contains all information required under this article and regulations promulgated thereunder and that all the requirements of this article have been complied with;(b) The applicant has demonstrated that reclamation as required by this article can be accomplished under the reclamation plan contained in the permit application;(c) The assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance specified in section 34-33-110 (2)(l) has been made by the office and the proposed operation thereof has been designed to prevent material damage to hydrologic balance outside the permit area;(d) Granting the permit will not conflict with any designation decision issued pursuant to section 34-33-126 or pursuant to section 522 of the federal "Surface Mining Control and Reclamation Act of 1977", as amended, Pub.L. 95-87, nor is the area proposed to be mined within an area under study for unsuitability designation in an administrative proceeding commenced pursuant to section 34-33-126 or section 522 of said Pub.L. 95-87;(e)(I) The proposed surface coal mining operations would: (A) Not interrupt, discontinue, or preclude farming on alluvial valley floors that are irrigated or naturally subirrigated, excluding undeveloped range lands which are not significant to farming on said alluvial valley floors and those lands upon which the board finds that the farming which will be interrupted, discontinued, or precluded is of such small acreage as to be of negligible impact on said land's agricultural production; or(B) Not materially damage the quantity or quality of surface water or groundwater systems that supply the alluvial valley floors described in sub-subparagraph (A) of this subparagraph (I).(II) The requirements of subparagraph (I) of this paragraph (e) shall not affect those surface coal mining operations which, in the year preceding August 3, 1977, either produced coal in commercial quantities and were located within or adjacent to alluvial valley floors or had obtained permit approval to conduct surface coal mining operations within said alluvial valley floors.(f) In cases where the applicant proposes to extract coal by surface methods and where the private mineral estate has been severed from the private surface estate, the applicant has submitted to the office:(I) The written consent of the surface owner to the extraction of coal by surface coal mining; or(II) A conveyance that expressly grants or reserves the right to extract the coal by surface coal mining, but, if the conveyance does not expressly grant the right to extract coal by surface coal mining, the surface-subsurface legal relationship shall be determined in accordance with state law; except that nothing in this article shall be construed to authorize the board to adjudicate property rights disputes;(g) Subject to valid rights existing as of August 3, 1977, and with the further exception of those surface coal mining operations which were in existence on August 3, 1977, the application:(I) Does not include any lands within the boundaries of units of the national park system, the national wildlife refuge systems, the national system of trails, the national wilderness preservation system, the wild and scenic rivers system, including study rivers designated under said act, and national recreation areas designated by act of the United States congress;(II) Does not include any federal lands within the boundaries of any national forest; except that surface coal mining operations may be permitted on such lands if the secretary finds that there are no significant recreational, timber, economic, or other values which may be incompatible with such surface mining operations, and:(A) Surface operations and impacts are incident to an underground coal mine; or(B) Where the secretary of the United States department of agriculture determines, with respect to lands in national forests which do not have significant forest cover, that surface mining is in compliance with the "Multiple-Use Sustained-Yield Act of 1960", as amended, the "Federal Coal Leasing Amendments Act of 1975", as amended, the "National Forest Management Act of 1976", as amended, and the provisions of this article;(III) Will not adversely affect any publicly owned park or place included in the national register of historic sites unless approved jointly by the office and the federal, state, or local agency with jurisdiction over the park or the historic site;(IV) Does not include lands within one hundred feet of the outside right-of-way line of any public road, except where mine access roads or haulage roads join such right-of-way line; except that the office may permit such roads to be relocated or the area affected to lie within one hundred feet of such road if, after public notice and opportunity for public hearing in the locality, a written finding is made that the interests of the public and the landowners affected thereby will be protected; and(V) Does not include lands within three hundred feet of any occupied dwelling, unless waived by the owner thereof, nor within three hundred feet of any public building or school, church, community, or institutional building or any public park, nor within one hundred feet of a cemetery.(3) The applicant shall file with his permit application a schedule listing any and all notices of violations of this article and any applicable law of the United States or of this state, or any applicable rule or regulation of any department or agency of the United States, other states, and this state, pertaining to air or water environmental protection received by the applicant in connection with any surface coal mining operations during the three-year period prior to the date of application. The schedule shall also indicate the final resolution of any such notice of violation. When the schedule or other information available to the board or office indicates that any surface coal mining operation owned or controlled by the applicant is currently in violation of this article or such other laws referred to in this subsection (3), the permit shall not be issued until the applicant submits proof that such violation has been corrected or is in the process of being corrected to the satisfaction of the board, department, or agency which has jurisdiction over such violation, and no permit shall be issued to an applicant after a finding by the board, after opportunity for hearing, that the applicant, or the operator specified in the application, controls or has controlled such surface coal mining operations with a demonstrated pattern of willful violations of this article of such nature and duration and with such resulting irreparable damage to the environment as to indicate an intent not to comply with the provisions of this article.(4)(a) In addition to finding the application in compliance with the provisions of subsection (2) of this section, if the surface area proposed to be affected by the operation contains prime farmland pursuant to section 34-33-110 (2)(q), the office shall, after consultation with the secretary of the United States department of agriculture, and pursuant to regulations issued by the secretary of the United States department of the interior with the concurrence of the secretary of the United States department of agriculture, grant a permit to mine on prime farmland if the board or office finds in writing that the operator has the technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management and that the operator can meet the soil reconstruction standards in section 34-33-120 (2)(g). Except as provided in subsection (2) of this section, the requirements of this paragraph (a) shall apply to all permits issued on and after August 3, 1977.(b) Nothing in this subsection (4) shall apply to any permit issued prior to August 3, 1977, or to any revisions or renewals thereof, or to any existing surface coal mining and reclamation operations for which a permit was issued prior to August 3, 1977.L. 79: Entire article added, p. 1267, § 1, effective July 1. L. 81: (3) amended, p. 1681, § 3, effective June 16. L. 92: (1), IP(2), (2)(c), IP(2)(f), (2)(g)(III), (2)(g)(IV), (3), and (4)(a) amended, p. 1950, § 57, effective July 1. For the "Surface Mining Control and Reclamation Act of 1977", see 30 U.S.C. §1201 et seq.; for the "Multiple-Use Sustained-Yield Act of 1960", see 16 U.S.C. §528 et seq.; for the "Federal Coal Leasing Amendments Act of 1975", see 30 U.S.C. §§184 , 191 , 201 , 202 , 207 , and 208 ; for the "National Forest Management Act of 1976", see 16 U.S.C. §1600 et seq.