312 IAC 25-4-114 - Review, public participation, and approval or disapproval of permit applications; permit terms and conditions; review of permit applications
Authority: IC 14-34-2-1
Affected: IC 4-21.5-3-5; IC 4-21.5-5; IC 5-15-3; IC 14-34-4-6; IC 14-34-17
Sec. 114.
(a) The
director shall review the complete application for a permit, revision or
renewal, written comments, written objections submitted, and records of any
informal conference or hearing held on the application and issue a written
decision either granting, requiring modification of, or denying the application
within the following times:
(1) If:
(A) an informal conference is held under
section 112 of this rule or a hearing under IC 14-34-4-6, the decision shall be
made within sixty (60) days of the close of the conference or hearing unless a
later time is necessary to provide an opportunity for a hearing under
subsection (b)(2); or
(B) no
informal conference is held under section 112 of this rule, or no hearing is
held under IC 14-34-4-6, the decision shall be made within one hundred eighty
(180) days from the date the administratively complete application is submitted
to the director.
(2) The
applicant for a permit or revision of a permit shall have the burden of
establishing that the application is in compliance with all requirements of
this article and the approved regulatory program.
(b) The director shall conduct a review of
violations as follows:
(1) Based on available
information concerning federal and state failure to abate cessation orders,
unabated federal and state imminent harm cessation orders, delinquent civil
penalties issued under 312 IAC 25-7, delinquent civil penalties issued under
Section 518 of the federal Surface Mining Control and Reclamation Act of 1977 (
30
U.S.C. 1268 ), or any state's equivalent
counterpart, 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, rules, 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
any surface coal mining and reclamation operation owned or controlled by either
the applicant or by any person who owns or controls the applicant is currently
in violation of IC 14-34, the federal Surface Mining Control and Reclamation
Act of 1977 (
30 U.S.C.
1201 et seq.), or any other law, rule, or
regulation referred to in this subdivision. In the absence of a failure to
abate a cessation order, the director may presume that a notice of violation
issued under 312 IAC 25-7 or 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 director shall require the applicant or person who owns or controls
the applicant, before the issuance of the permit, to do either of the
following:
(A) Submit to the director proof
that the current violation has been or is in the process of being corrected to
the satisfaction of the agency that has jurisdiction over the
violation.
(B) Establish to the
director that the applicant, or any person owned or controlled by either the
applicant 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 that violation. If the initial judicial review
authority under IC 14-34-17 and IC 4-21.5-5, or a federal or state counterpart
to IC 14-34-17 or IC 4-21.5-5, affirms the violation, then the applicant shall,
within thirty (30) days of the judicial action, submit the proof required under
clause (A).
(2) Any
permit that is issued on the basis of proof submitted under subdivision (1)(A)
that a violation is in the process of being corrected or pending the outcome of
an appeal described in subdivision (1)(B) shall be conditionally
issued.
(c) If the
director makes a finding that 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 violation of IC 14-34, the federal Surface Mining Control
and Reclamation Act of 1977 (
30 U.S.C.
1201 et seq.) of such nature, duration, and
with such resulting irreparable damage to the environment that indicates an
intent not to comply with the provisions of IC 14-34, the federal Surface
Mining Control and Reclamation Act of 1977 (
30 U.S.C. Section
1201 et seq.), no permit shall be issued.
Before such a finding becomes final, the applicant or operator shall be
afforded an opportunity for a hearing on the determination as provided in IC
4-21.5 and 312 IAC 3.
(d) After
October 24, 1992, the following apply:
(1) The
prohibitions of subsection (b) regarding the issuance of a new permit shall not
apply to any violation that:
(A) occurs after
October 24, 1992;
(B) is unabated;
and
(C) results from an
unanticipated event or condition that arises from a surface coal mining and
reclamation operation on lands that are eligible for remining under a permit:
(i) issued before September 30, 2004, or any
renewals thereof; and
(ii) held by
the person making application for the new permit.
(2) A permit issued under section
105.5 of this rule, an event or condition shall be presumed to be unanticipated
for the purposes of this subsection if the event or condition:
(A) arose after permit issuance;
(B) was related to prior mining;
and
(C) was not identified in the
permit.
Notes
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No prior version found.