PURPOSE: This rule amendment follows the review conducted pursuant to Executive Order 17-03. The amendment proposes to remove language that repeats statute or is obsolete.
(1) Public Meetings.
(A) If the recommendation of the director is for issuance of the permit, and a petition has been filed by an aforementioned person or persons prior to the termination of the public notice time frame, the director shall, within thirty (30) days after the time frame for such request has passed, order that a public meeting be held provided that the applicant agrees. If the applicant does not agree to the public meeting then the petition may be referred to the commission for a formal public hearing as directed by subsection (3)(B) of this rule if the petitioner makes a written request within fifteen (15) days of notification of the denial of the public meeting by the applicant.
(B) If a meeting is ordered by the director and the applicant agrees, it shall be held in a reasonably convenient location for all interested parties. The applicant shall cooperate with the director in making all necessary arrangements for the public meeting.
(C) Only those parties who submitted a written request to the director during the public notice period referred to in subsection (1)(A) of this rule may participate in a public meeting. Anyone may attend a public meeting, however.
(D) The applicant shall be responsible for moderating a public meeting.
(E) Within thirty (30) days after the close of the public meeting, the director shall recommend to the commission approval or denial of the permit.
(F) If the public meeting does not resolve the concerns expressed by the petitioner, then only the petitioner(s) who has requested a public meeting or hearing during the public comment period referred to in subsection (1)(A) of this rule, may, within thirty (30) days after the director renders a recommendation to the commission on the application, make a written request to the Land Reclamation Commission for a formal public hearing.
(G) The commission may grant the petitioner a formal public hearing provided the petitioner has standing for such a hearing.
(2) Establishing Standing for a Formal Public Hearing.
(A) For a formal public hearing to be granted by the Land Reclamation Commission, the petitioner must first establish standing.
(B) The petitioner is said to have standing to be granted a formal public hearing if the petitioner provides good faith evidence of how their health, safety, or livelihood will be unduly impaired by the issuance of the permit. The impact to the petitioner's health, safety, and livelihood must be within the authority of any environmental law or regulation administered by the Missouri Department of Natural Resources.
(C) The director and the applicant have standing and are parties in any formal public hearing whether held at the request of the applicant or at the request of the petitioner.
(3) Application Hearings.
(A) Any operator, whose permit application has been denied, may request a hearing before the Land Reclamation Commission if s/he notifies the director within fifteen (15) days of receipt of the notification of permit denial.
(B) The burden of establishing an issue of fact regarding the impact, if any, of the permitted activity on a hearing petitioner's health, safety or livelihood shall be on that petitioner by competent and substantial scientific evidence on the record. Furthermore, the burden of establishing an issue of fact whether past noncompliance of the applicant is cause for denial of the permit application shall be upon a hearing petitioner and/or the director by competent and substantial scientific evidence on the record. Once such issues of fact have been established, the burden of proof for those issues is upon the applicant for the permit.
(C) Any public hearing pursuant to this section shall be conducted according to the procedures outlined in section (5) of this rule, Procedure for Hearings Before the Commission.
(D) If the commission finds, based upon competent and substantial scientific evidence on the record, that a hearing petitioner's health, safety or livelihood will be unduly impaired by impacts from activities that the recommended mining permit authorizes, the commission may deny the permit.
(E) If the commission finds, based upon competent and substantial scientific evidence on the record, that the operator has, during the five (5)-year period immediately preceding the date of the permit application, demonstrated a pattern of noncompliance at other locations in Missouri that suggests a reasonable likelihood of future acts of noncompliance, the commission may deny such permit, provided however:
1. Such past acts of noncompliance in Missouri, in and of themselves, are an insufficient basis to suggest a reasonable likelihood of future acts of noncompliance.
2. Such past acts of noncompliance in Missouri shall not be used as a basis to suggest a reasonable likelihood of future acts of noncompliance unless the noncompliance has caused or has the potential to cause, a risk to human health or to the environment, or has caused or has potential to cause pollution or was knowingly committed, or is defined by the United States Environmental Protection Agency as other than minor.
(F) If a hearing petitioner or the director demonstrates either present acts of noncompliance or a reasonable likelihood that the applicant or the operations of associated persons or corporations in Missouri will be in noncompliance in the future, such a showing will satisfy the noncompliance requirement in this subsection, but such basis must be developed by multiple noncompliances of any environmental law administered by the Missouri Department of Natural Resources at any single facility in Missouri where such non-compliances resulted in harm to the environment or impaired the health, safety, or livelihood of persons outside the facility.
(G) For any permit applicant that has not been in business in Missouri for five (5) years immediately preceding the date of application, the commission may review the record of noncompliance with environmental laws in any state where the applicant has conducted business during the past five (5) years.
(H) Any decision of the commission made pursuant to this rule is subject to judicial review as provided in Chapter 536, RSMo. No judicial review shall be made available until all administrative remedies are exhausted.
(4) (1) Other Hearings.
(A) If an owner of land that has been affected files a petition in opposition to the release of an operator's bond within thirty (30) days of the receipt date of the application for bond release, a hearing may be held to determine if the site meets bond release standards. The landowner shall make a demonstration that a performance standards(s) has/have not been met at the site in question in order for the commission to determine if a hearing will be held.
(B) If the director recommends denial of an application for bond release, the operator may request a hearing within thirty (30) days of the receipt of the denial.
(C) Within fifteen (15) days of being issued a formal complaint, the operator may request a hearing before the Missouri Mining Commission at its regular meeting.
(D) For any decision of the commission made pursuant to a hearing held under this section, judicial review is provided in Chapter 536, RSMo. No judicial review shall be available, however, until and unless all administrative remedies are exhausted. The hearing shall also adhere to the requirements of section 444.789, RSMo and corresponding regulations.
(E) For all hearings, the Missouri Mining Commission shall issue these orders as shall be appropriate and shall give notice to the operator and, if applicable, to the person requesting the hearing.
(F) All final orders of the
commission shall be subject to judicial review. Judicial review shall not become available until all administrative remedies are exhausted.
(5) Procedure for Hearings Before the Commission.
(A) Any hearing shall be of record and shall be a contested case.
(B) Those involved in the hearing may make oral argument, introduce testimony and evidence and cross-examine witnesses.
(C) The hearing shall be before-
1. The commission as a body;
2. One (1) designated commission member; or
3. A member of the Missouri Bar or a hearing officer.
(D) The full commission shall make the final decision as to the results of the hearing and shall issue written findings of fact and conclusions of law.
(E) Any member of the commission may issue, in the name of the commission, notice of hearing and subpoenas. The rules of discovery that apply to any civil case shall apply to hearings held by the commission.
(F) The commission immediately shall notify the operator of its decision by certified mail.
(6) (2) Informal Conferences.
(A) Within fifteen (15) days of receipt of a notice of violation, an
operator may request an informal conference with the
director at a location of the
director's discretion, unless the
operator has been cited for failure to obtain a
permit or for failure to renew a
permit, and has been issued a notice of violation under
10 CSR 40-10.070(1). The
director shall give as much advance notice as practicable of the informal conference to the
operator and to the
person who filed the complaint that led to the notice of violation, if applicable.
1. Within thirty (30) days of the close of the informal conference, the director shall affirm, modify, or vacate the notice or order in writing. Copies of the decision shall be sent to the operator.
(B) An informal conference may be requested by any person whose property, safety, or health are adversely affected by a violation of the Land Reclamation Act and who requests the director for this informal conference. Within thirty (30) days of the informal conference, the director shall order the operator to adopt corrective measures as are necessary.
(C) Informal conferences are conducted by the director who shall take information from any person in attendance.
(D) Informal Assessment Conference.
1. The director shall arrange for an informal conference to review the proposed assessment or reassessment upon written request of the person to whom the notice or order was issued. If the request is received within fifteen (15) days from either the date of issuance of the proposed assessment/reassessment, the informal conference shall be held within sixty (60) days of the receipt of the written request.
2. Failure to hold these conferences within that sixty (60)-day time period shall not be grounds for dismissal.
3. The commission shall assign the director to hold the informal assessment conference. The conference shall not be governed by Chapter 536, RSMo regarding the requirements for formal adjudicatory hearings.
4. The director shall notify the person issued the notice or order, any person who caused, directly or indirectly, the issuance of the notice or order and any interested persons of the time and place of the conference.
5. The
director shall consider all relevant information on the violation within thirty (30) days after the conference is held. The
director either shall-
A. Issue a proposed settlement agreement that has been prepared and signed by him/herself to the person issued the notice or order; or
B. Affirm, raise, lower, or vacate the proposed penalty.
6. The director promptly shall serve the person assessed with the notice of his/her action in the form of a settlement agreement and a cover letter explaining the action or a letter and new worksheet, if required, if the penalty has been affirmed, vacated, raised, or lowered.
7. If the settlement agreement is signed by the person issued the notice or order, the person assessed will be deemed to have waived all rights of further review of the violation or penalty in question, except as otherwise expressly provided for in the settlement agreement, the settlement agreement shall contain a clause to this effect.
8. If the settlement agreement is entered into, the agreement shall be proposed to the commission for approval or disapproval.
9. If approved, the commission shall send the person issued the notice or order a copy of the commission order and request for payment within thirty (30) days.
10. If the settlement agreement is disapproved or if payment is not made within thirty (30) days, the assessments determined by the penalty points shall be proposed to the commission at the next regularly scheduled commission meeting.
11. If the person issued notice or order does not accept a settlement agreement or any other action of the director which is a result of the informal assessment conference, s/he may request a formal review before the commission. The request shall be received by the commission within thirty (30) days of the receipt of the director's decision from the conference.
12. At any formal review proceeding, no evidence as to statements made or evidence produced by any one (1) party at an informal conference or resultant settlement agreement shall be introduced as evidence by another party or to impeach a witness.
