10 CSR 40-5.010 - Prohibitions and Limitations on Mining in Certain Areas
PURPOSE: This rule sets forth the prohibitions and limitations for surface coal mining operations on or near certain private, federal, and other public lands and sets forth procedures for these limitations and prohibitions, pursuant to sections 444.810 and 444.890, RSMo.
(1) Definitions. For
the purposes of this chapter-
(A) Valid
existing rights means-
1. A set of
circumstances under which a person may, subject to regulatory authority
approval, conduct surface coal mining operations on lands where section
444.890.4, RSMo, and this rule, would otherwise prohibit such operations.
Possession of valid existing rights only confers an exception from the
prohibitions of section 444.890.4, RSMo, and this rule. A person seeking to
exercise valid existing rights must comply with all other pertinent
requirements of the law and 10 CSR 40-3-10 CSR 40-8.
2. Property rights demonstration. Except as
provided in paragraph (1)(A)4. of this definition, a person claiming valid
existing rights must demonstrate that a legally binding conveyance, lease,
deed, contract, or other document vests that person, or a predecessor in
interest, with the right to conduct the type of surface coal mining operations
intended. This right must exist at the time that the land came under the
protection of section 444.890.4, RSMo, or this rule. Applicable state statutory
or case law will govern interpretation of documents relied upon to establish
property rights, unless federal law provides otherwise. If no applicable state
law exists, custom and generally accepted usage at the time and place that the
documents came into existence will govern their interpretation.
3. Except as provided in paragraph (1)(A)4.
of this definition, a person claiming valid existing rights also must
demonstrate compliance with one (1) of the following standards:
A. Good faith/all permits standard. All
permits and other authorizations required to conduct surface coal mining
operations had been obtained, or a good faith effort to obtain all necessary
permits and authorizations had been made, before the land came under the
protection of section 444.890.4, RSMo, or this rule. At a minimum, an
application must have been submitted for any permit required under 10 CSR 40-6;
or
B. Needed for and adjacent
standard. The land is needed for and immediately adjacent to a surface coal
mining operation for which all permits and other authorizations required to
conduct surface coal mining operations had been obtained, or a good faith
attempt to obtain all permits and authorizations had been made, before the land
came under the protection of section 444.890.4, RSMo, or this rule. To meet
this standard, a person must demonstrate that prohibiting expansion of the
operation onto that land would unfairly impact the viability of the operation
as originally planned before the land came under the protection of section
444.890.4, RSMo, or this rule. Except for operations in existence before August
3, 1977, or for which a good faith effort to obtain all necessary permits had
been made before August 3, 1977, this standard does not apply to lands already
under the protection of section 444.890.4, RSMo, or this rule, when the
regulatory authority approved the permit for the original operation or when the
good faith effort to obtain all necessary permits for the original operation
was made. In evaluating whether a person meets this standard, the agency making
the determination may consider factors such as-
(I) The extent to which coal supply contracts
or other legal and business commitments that predate the time that the land
came under the protection of section 444.890.4, RSMo, or this rule, depend upon
use of that land for surface coal mining operations;
(II) The extent to which plans used to obtain
financing for the operation before the land came under the protection of
section 444.890.4, RSMo, or this rule, rely upon use of that land for surface
coal mining operations;
(III) The
extent to which investments in the operation before the land came under the
protection of section 444.890.4, RSMo, or this rule, rely upon use of that land
for surface coal mining operations; and
(IV) Whether the land lies within the area
identified on the life-of-mine map submitted under
10 CSR
40-6.010(5)(E) before the land came
under the protection of section 444.890.4, RSMo, or this rule.
4. Roads. A person who
claims valid existing rights to use or construct a road across the surface of
lands protected by section 444.890.4, RSMo, or this rule, must demonstrate that
one (1) or more of the following circumstances exist if the road is included
within the definition of "surface coal mining operations" in
10 CSR
40-8.010(1)(A) 98.:
A. The road existed when the land upon which
it is located came under the protection of section 444.890.4, RSMo, or this
rule, and the person has a legal right to use the road for surface coal mining
operations;
B. A properly recorded
right-of-way or easement for a road in that location existed when the land came
under the protection of section 444.890.4, RSMo, or this rule, and, under the
document creating the right-of-way or easement, and under subsequent
conveyances, the person has a legal right to use or construct a road across the
right-of-way or easement for surface coal mining operations;
C. A valid permit for use or construction of
a road in that location for surface coal mining operations existed when the
land came under the protection of section 444.890.4, RSMo, or this rule;
or
D. Valid existing rights exist
under paragraphs (1)(A)2. and 3. of this definition;
(B) Significant recreational,
timber, economic, or other values incompatible with surface coal mining
operations means those values which could be damaged by, and are not capable of
existing together with, surface coal mining operations because of the
undesirable effects mining would have on those values, either on the area
included in the permit application or on other affected area. Those values to
be evaluated for their importance include:
1.
Recreation, including hiking, boating, camping, skiing, or other related
outdoor activities;
2. Timber
management and silviculture;
3.
Agriculture, aquaculture, or production of other natural, processed, or
manufactured products which enter commerce; and
4. Scenic, historic, archaeologic, esthetic,
fish, wildlife, plants, or cultural interests;
(C) Surface operations and impacts incident
to an underground coal mine means all activities involved in or related to
underground coal mining which are either conducted on the surface of the land,
produce changes in the land surface or disturb the surface, air, or water
resources of the area, including all activities listed in the definition of
surface coal mining operations in the law and
10 CSR
40-8.010(1)(A);
(D) Significant forest cover means an
existing plant community consisting predominantly of trees and other woody
vegetation;
(E) Occupied dwelling
means any building that is currently being used on a regular or temporary basis
for human habitation;
(F) Public
building means any structure that is owned by a public agency or used
principally for public business, meetings, or other group gatherings;
(G) Community or institutional building means
any structure, other than a public building or an occupied dwelling, which is
used primarily for meetings, gatherings, or functions of local civic
organizations or other community groups; functions as an educational, cultural,
historic, religious, scientific, correctional, mental health, or physical
health care facility; or is used for public services, including, but not
limited to, water supply, power generation, or sewage treatment;
(H) Public park means an area dedicated or
designated by any federal, state, or local agency for public recreational use,
whether or not this use is limited to certain times or days, including any land
leased, reserved, or held open to the public because of that use;
(I) Public road means any thoroughfare open
to the public which has been and is being used by the public for vehicular
travel which has been designated as a public road pursuant to the laws of the
jurisdiction in which it is located; which is maintained with public funds in a
manner similar to other public roads of the same classification within the
jurisdiction and which meets road construction standards for other public roads
of the same classification in the local jurisdiction;
(J) Cemetery means any area of land where
human bodies are interred;
(K)
Fragile lands means geographic areas containing natural, ecologic, scientific,
or esthetic resources that could be damaged or destroyed by surface coal mining
operations. Examples of fragile lands include valuable habitats for fish,
wildlife, critical habitats for endangered or threatened species of animals or
plants, uncommon geologic formations, National Natural Landmark sites, areas
where mining may cause flooding, environmental corridors containing a
concentration of ecologic and esthetic features, areas of recreational value
due to high environmental quality, and buffer zones adjacent to the boundaries
of areas where surface coal mining operations are prohibited under section
444.890.4, RSMo, and this rule;
(L)
Historic lands means historic or cultural districts, places, structures, or
objects, including archeological and paleontological sites, National Historic
Landmark sites, sites listed on or eligible for listing on a State or National
Register of Historic Places, sites having religious or cultural significance to
native Americans or religious groups, or sites for which historic designation
is pending;
(M) Natural hazard
lands means geographic areas in which natural conditions exist which pose or,
as a result of surface coal mining operations, may pose a threat to the health,
safety, or welfare of people, property, or the environment, including areas
subject to landslides, cave-ins, large or encroaching sand dunes, severe wind
or soil erosion, frequent flooding, avalanches, and areas of unstable geology;
and
(N) Substantial legal and
financial commitments in a surface coal mining operation means significant
investments that have been made on the basis of a long-term coal contract in
power plants, railroads, coal-handling, preparation, extraction, or storage
facilities, and other capital-intensive activities. An example would be an
existing mine, not actually producing coal, but in a substantial stage of
development prior to production. Costs of acquiring the coal in place or of the
right to mine it without an existing mine, as described in the previous
example, alone are not sufficient to constitute substantial legal and financial
commitments.
(2) Areas
Where Mining is Prohibited or Limited. Surface coal mining operations may not
be conducted on the following lands unless the permit applicant either has
valid existing rights, as determined under section (7) of this rule or
qualifies for the exception for existing operations under section (3) of this
rule-
(A) On any lands within the boundaries
of the National Park System, the National Wildlife Refuge System, the National
System of Trails, the National Wilderness Preservation System, the Wild and
Scenic River System, including study rivers designated under Section 5(a) of
the Wild and Scenic Rivers Act (
16
USC 1276(a)) , and National
Recreation Areas designated by act of congress;
(B) On any federal lands within the
boundaries of any national forest, unless permitted by the United States
secretary of the interior;
(C) On
any publicly- or privately-owned lands which will adversely affect any
publicly-owned park or any places included on the National Register of Historic
Places, unless approved in the permit and plan and by the federal, state, or
local agency with jurisdiction over the park or places;
(D) Within one hundred feet (100'), measured
horizontally, of the outside right-of-way line of any public road, except
where-
1. Mine access roads or haulage roads
join that right-of-way line; or
2.
The permit and plan allows the public road to be relocated or closed or the
area affected to be within one hundred feet (100') of that road after-
A. Public notice and opportunity for a public
hearing in accordance with subsection (5)(B) of this rule; and
B. A written finding is made that the
interests of the affected public and landowners will be protected;
(E) Within three
hundred feet (300'), measured horizontally, from any occupied dwelling. This
prohibition does not apply when-
1. The permit
applicant submits with the application a written waiver from the owner of the
dwelling, clarifying that the owner and signatory had the legal right to deny
mining and knowingly waived that right. The waiver shall act as consent to
surface coal mining operations within a closer distance of the dwelling as
specified; or
2. The part of the
operation to be located closer than three hundred feet (300') to the dwelling
is an access or haul road that connects with an existing public road on the
side of the public road opposite the dwelling;
(F) Within three hundred feet (300'),
measured horizontally, of any public building, school, church, community or
institutional building, or public park; or
(G) Within one hundred feet (100'), measured
horizontally, of a cemetery. This prohibition does not apply if the cemetery is
relocated in accordance with all applicable laws and regulations.
(3) Exception for Existing
Operations. The prohibitions and limitations of section (2) of this rule do not
apply to surface coal mining operations for which a valid permit, issued under
10 CSR 40-6, exists when the land comes under the protection of section
444.890.4, RSMo, or this rule. This exception applies only to lands within the
permit area as it exists when the land comes under the protection of section
444.890.4, RSMo, or this rule.
(4)
Procedures for Compatibility Findings for Surface Coal Mining Operations on
Federal Lands in National Forests.
(A) Where
the proposed operation would include federal lands within the boundaries of any
national forest, and the applicant seeks a determination that mining is
permissible under subsection (2)(B) of this rule, the applicant, pursuant to
30
CFR 761.13, shall submit a permit application
to the regional director of the office for processing under 30 CFR, subchapter
D.
(B) The applicant may submit a
request to the regional director of the office for a determination before
preparing and submitting an application for a permit or boundary revision. The
applicant must explain how the proposed operation would not damage the values
listed in the definition of "significant recreational, timber, economic, or
other values incompatible with surface coal mining operations" in subsection
(1)(B). The applicant must include a map and sufficient information about the
nature of the proposed operation for the United States Secretary of the
Interior to make adequately documented findings. The regional director of the
office may request the applicant to provide any additional information that it
determines is needed to make the required findings.
(C) When a proposed surface coal mining
operation or proposed boundary revision for an existing surface coal mining
operation includes federal lands within a national forest, the commission or
director may not issue the permit or approve the boundary revision before the
United States Secretary of the Interior makes the findings required by
subsection (2)(B) of this rule.
(5) Procedures for Relocating or Closing a
Public Road or Waiving the Prohibition on Surface Coal Mining Operations Within
the Buffer Zone of a Public Road.
(A) This
section does not apply to-
1. Lands for which
a person has valid existing rights, as determined under section (7) of this
rule;
2. Lands within the scope of
the exception for existing operations in section (3) of this rule;
and
3. Access or haul roads that
join a public road, as described in paragraph (2)(D)1. of this rule.
(B) Where the proposed mining
operation is to be conducted within one hundred feet (100'), measured
horizontally, of the outside right-of-way line of any public road or where the
applicant proposes to close or relocate any public road, the commission or
director or the appropriate public road authority designated by the director
shall-
1. Require the applicant to obtain
necessary approvals of the public road authority with jurisdiction;
2. Provide public notice in a newspaper of
general circulation in the affected locale;
3. Provide a public comment period and an
opportunity for a public hearing in the locality of the proposed mining
operations at which any member of the public may participate for purpose of
determining whether the interests of the public and affected landowners will be
protected;
4. Publish, if a hearing
is requested, a public notice of the location, date, and time of the hearing in
a newspaper of general circulation in the affected locale two (2) weeks prior
to the hearing; and
5. Make a
written finding based upon information received from the public as to whether
the interests of the public and affected landowners will be protected from the
proposed mining operations. If a hearing was held, make this finding within
thirty (30) days after the hearing. If no hearing is held, make this finding
within thirty (30) days after the end of the public comment period.
(6) Procedures for
Waiving the Prohibition on Surface Coal Mining Operations Within the Buffer
Zone of an Occupied Dwelling.
(A) This section
does not apply to-
1. Lands for which a person
has valid existing rights, as determined under section (7) of this
rule;
2. Lands within the scope of
the exception for existing operations in section (3) of this rule;
and
3. Access or haul roads that
connect with an existing public road on the side of the public road opposite
the dwelling, as provided in paragraph (2)(E)2. of this rule.
(B) Where the proposed surface
coal mining operations would be conducted within three hundred feet (300'),
measured horizontally, of any occupied dwelling, the applicant shall submit
with the application a written waiver from the owner of the dwelling,
consenting to these operations within a closer distance of the dwelling as
specified in the waiver. The waiver must be made knowingly and separate from a
lease or deed unless the lease or deed contains an explicit waiver. The waiver
must clarify that the owner and signatory had the legal right to deny mining
and knowingly waived that right. The waiver will act as consent to surface coal
mining operations within a closer distance of the dwelling as
specified.
(C) If the permit
applicant obtained a valid waiver before August 3, 1977, from the owner of an
occupied dwelling to conduct operations within three hundred feet (300') of the
dwelling, the permit applicant need not submit a new waiver.
(D) If the permit applicant obtains a valid
waiver from the owner of an occupied dwelling, that waiver will remain
effective against subsequent purchasers who had actual or constructive
knowledge of the existing waiver at the time of purchase. A subsequent
purchaser will be deemed to have constructive knowledge if the waiver has been
properly filed in public property records pursuant to state laws or if surface
coal mining operations have entered the three hundred (300)-foot zone before
the date of purchase.
(7) Submission and Processing of Requests for
Valid Existing Rights Determinations.
(A)
Agency Responsible for Valid Existing Rights Determinations. An applicant must
request a valid existing rights determination from the director of the office
for federal lands protected under subsections (2)(A) and
(B) of this rule and for those features on
federal lands protected under subsections (2)(C) through (G) of this rule. An
applicant must request a valid existing rights determination from the
regulatory authority for non-federal lands protected under subsection (2)(A) of
this rule and for those features on non-federal lands protected under
subsections (2)(C) through (G) of this rule. The regulatory authority must use
the federal definition of valid existing rights at
30
CFR 761.5 when making a determination for
non-federal lands protected under subsection (2)(A) of this rule and the
definition of valid existing rights at subsection (1)(A) of this rule when
making a determination for those features protected under subsections (2)(C)
through (G) of this rule.
(B)
Request for a Valid Existing Rights Determination. An applicant must request a
valid existing rights determination from the appropriate agency under
subsection (7)(A) of this rule if he or she intends to conduct surface coal
mining operations on the basis of valid existing rights under section (2) of
this rule or wishes to confirm the right to do so. The applicant may submit
this request before preparing and submitting an application for a permit or
boundary revision for the land. If the regional director of the office is the
appropriate agency, the applicant must request the determination in accordance
with the requirements of the federal regulations at
30
CFR 761.16. If the regulatory authority is
the appropriate agency, the applicant must request the determination in
accordance with the requirements of this section.
1. Requirements for property rights
demonstration. The applicant must provide a property rights demonstration under
paragraph (1)(A)2. of this rule if the request relies upon the good faith/all
permits standard or the needed for and adjacent standard in paragraph (1)(A)3.
of this rule. This demonstration must include the following items:
A. A legal description of the land to which
the request pertains;
B. Complete
documentation of the character and extent of the applicant's current interests
in the surface and mineral estates of the land to which the request
pertains;
C. A complete chain of
title for the surface and mineral estates of the land to which the request
pertains;
D. A description of the
nature and effect of each title instrument that forms the basis for the
request, including any provision pertaining to the type or method of mining or
mining-related surface disturbances and facilities;
E. A description of the type and extent of
surface coal mining operations that the applicant claims the right to conduct,
including the method of mining, any mining-related surface activities and
facilities, and an explanation of how those operations would be consistent with
state property law;
F. Complete
documentation of the nature and ownership, as of the date that the land came
under the protection of section 444.890.4, RSMo, or this rule, of all property
rights for the surface and mineral estates of the land to which the request
pertains;
G. Names and addresses of
the current owners of the surface and mineral estates of the land to which the
request pertains;
H. If the coal
interests have been severed from other property interests, documentation that
the owners of other property interests in the land to which the request
pertains have been notified and provided reasonable opportunity to comment on
the validity of the property rights claims; and
I. Any comments received in response to the
notification provided under subparagraph (7)(B)1.H. of this rule.
2. Requirements for good faith/all
permits standard. If the request relies upon the good faith/all permits
standard in subparagraph (1)(A)3.A. of this rule, the applicant must submit the
information required under paragraph (7)(B)1. of this rule. Also, the applicant
must submit the following information about permits, licenses, and
authorizations for surface coal mining operations on the land to which the
request pertains:
A. Approval and issuance
dates and identification numbers for any permits, licenses, and authorizations
that the applicant obtained or that a predecessor in interest obtained before
the land came under the protection of section 444.890.4, RSMo, or this
rule;
B. Application dates and
identification numbers for any permits, licenses, and authorizations that the
applicant submitted or a predecessor in interest submitted in an application
before the land came under the protection of section 444.890.4, RSMo, or this
rule; and
C. An explanation of any
other good faith effort that the applicant made or a predecessor in interest
made to obtain the necessary permits, licenses, and authorizations as of the
date that the land came under the protection of section 444.890.4, RSMo, or
this rule.
3.
Requirements needed for and adjacent standard. If the request relies upon the
needed for and adjacent standard in subparagraph (1)(A)3.B. of this rule, the
applicant must submit the information required under paragraph (7)(B)1. of this
rule. In addition, the applicant must explain how and why the land is needed
for and immediately adjacent to the operation upon which the request is based,
including a demonstration that prohibiting expansion of the operation onto that
land would unfairly impact the viability of the operation as originally planned
before the land came under the protection of section 444.890.4, RSMo, or this
rule.
4. Requirements for standards
for mine roads. If the request relies upon one (1) of the standards for roads
in subparagraphs (1)(A)4.A. through C. of this rule, the applicant must submit
satisfactory documentation that-
A. The road
existed when the land upon which it is located came under the protection of
section 444.890.4, RSMo, or this rule, and the applicant has a legal right to
use the road for surface coal mining operations;
B. A properly recorded right-of-way or
easement for a road in that location existed when the land came under the
protection of section 444.890.4, RSMo, or this rule, and, under the document
creating the right-of-way or easement, and under any subsequent conveyances,
the applicant has a legal right to use or construct a road across that
right-of-way or easement to conduct surface coal mining operations;
or
C. A valid permit for use or
construction of a road in that location for surface coal mining operations
existed when the land came under the protection of section 444.890.4, RSMo, or
this rule.
(C) Initial Review of Request.
1. The commission or director must conduct an
initial review to determine whether the request includes all applicable
components of the submission requirements of subsection (7)(B) of this rule.
This review pertains only to the completeness of the request, not the legal or
technical adequacy of the materials submitted.
2. If the request does not include all
applicable components of the submission requirements of subsection (7)(B) of
this rule, the commission or director must notify the applicant and establish a
reasonable time for submission of the missing information.
3. When the request includes all applicable
components of the submission requirements of subsection (7)(B) of this rule,
the commission or director must implement the notice and comment requirements
of subsection (7)(D) of this rule.
4. If the information that the commission or
director requests under paragraph (7)(C)2. of this rule is not provided within
the time specified or as subsequently extended, the commission or director must
issue a determination that the applicant has not demonstrated valid existing
rights, as provided in paragraph (7)(E)4. of this rule.
(D) Notice and Comment Requirements and
Procedures.
1. When the completeness
requirements of subsection (7)(C) of this rule are satisfied, the commission or
director must publish a notice in a newspaper of general circulation in the
county in which the land is located. This notice must invite comment on the
merits of the request. Alternatively, the commission or director may require
that the applicant publish this notice and provide the commission or director
with a copy of the published notice. Each notice must include:
A. The location of the land to which the
request pertains;
B. A description
of the type of surface coal mining operations planned; and
C. A reference to and brief description of
the applicable standard(s) under the definition of valid existing rights in
subsection (1)(A) of this rule.
(I) If the
request relies upon the good faith/all permits standard or the needed for and
adjacent standard of the definition of valid existing rights in paragraph
(1)(A)3. of this rule, the notice also must include a description of the
property rights that are claimed and the basis for the claim.
(II) If the request relies upon the standard
of the definition of valid existing rights in subparagraph (1)(A)4.A. of this
rule, the notice also must include a description of the basis for the claim
that the road existed when the land came under the protection of section
444.890.4, RSMo, or this rule. In addition, the notice must include a
description of the basis for the claim that the applicant has a legal right to
use that road for surface coal mining operations.
(III) If the request relies upon the standard
of the definition of valid existing rights in subparagraph (1)(A)4.B. of this
rule, the notice also must include a description of the basis for the claim
that a properly recorded right-of-way or easement for a road in that location
existed when the land came under the protection of section 444.890.4, RSMo, or
this rule. In addition, the notice must include a description of the basis for
the claim that, under the document creating the right-of-way or easement, and
under any subsequent conveyances, the applicant has a legal right to use or
construct a road across the right-of-way or easement to conduct surface coal
mining operations.
(IV) If the
request relies upon one or more of the standards in paragraph (1)(A)3., and
subparagraphs (1)(A)4.A. and (1)(A)4.B. of the definition of valid existing
rights in subsection (1)(A) of this rule, a statement that the commission or
director will not make a decision on the merits of the request if, by the close
of the comment period under this notice or the notice required by paragraph
(7)(D)3. of this rule, a person with a legal interest in the land initiates
appropriate legal action in the proper venue to resolve any differences
concerning the validity or interpretation of the deed, lease, easement, or
other documents that form the basis of the claim.
(V) A description of the procedures that the
commission or director will follow in processing the request.
(VI) The closing date of the comment period,
which must be a minimum of thirty (30) days after the publication date of the
notice.
(VII) A statement that
interested persons may obtain a thirty (30)-day extension of the comment period
upon request.
(VIII) The name and
address of the commission or director's office where a copy of the request is
available for public inspection and to which comments and requests for
extension of the comment period should be sent.
2. The commission or director must promptly
provide a copy of the notice required under paragraph (7)(D)1. to-
A. All reasonably locatable owners of surface
and mineral estates in the land included in the request; and
B. The owner of the feature causing the land
to come under the protection of section 444.890.4, RSMo, or this rule, and,
when applicable, the agency with primary jurisdiction over the feature with
respect to the values causing the land to come under the protection of section
444.890.4, RSMo, or this rule. For example, both the landowner and the state
historic preservation officer must be notified if surface coal mining
operations would adversely impact any site listed on the National Register of
Historic Places. As another example, both the surface owner and the National
Park Service must be notified if the request includes non-federal lands within
the authorized boundaries of a unit of the National Park System.
3. The letter transmitting the
notice required under paragraph (7)(D)2. of this rule must provide a thirty
(30)-day comment period, starting from the date of service of the letter, and
specify that another thirty (30) days is available upon request. At its
discretion, the commission or director may grant additional time for good cause
upon request. The commission or director need not necessarily consider comments
received after the closing date of the comment period.
(E) How a Decision Will be Made.
1. The commission or director must review the
materials submitted under subsection (7)(B) of this rule, comments received
under subsection (7)(D) of this rule, and any other relevant, reasonably
available information to determine whether the record is sufficiently complete
and adequate to support a decision on the merits of the request. If not, the
commission or director must notify the applicant in writing, explaining the
inadequacy of the record and requesting submittal, within a specified
reasonable time, of any additional information that the commission or director
deems necessary to remedy the inadequacy.
2. Once the record is complete and adequate,
the commission or director must determine whether the applicant has
demonstrated valid existing rights. The decision document must explain how the
applicant has or has not satisfied all applicable elements of the definition of
valid existing rights in subsection (1)(A) of this rule. It must contain
findings of fact and conclusions, and it must specify the reasons for the
conclusions.
3. Impact of property
rights disagreements. This paragraph applies only when the applicant's request
relies upon one (1) or more of the standards of the definition of valid
existing rights in paragraph (1)(A)3., and subparagraphs (1)(A)4.A. and
(1)(A)4.B. of this rule.
A. The commission or
director must issue a determination that the applicant has not demonstrated
valid existing rights if the property rights claims are the subject of pending
litigation in a court or administrative body with jurisdiction over the
property rights in question. The commission or director will make this
determination without prejudice, meaning that the applicant may refile the
request once the property rights dispute is finally adjudicated. This paragraph
applies only to situations in which legal action has been initiated as of the
closing date of the comment period under paragraph (7)(D)1. or (7)(D)3. of this
rule.
B. If the record indicates
disagreement as to the accuracy of the applicant's property rights claims, but
this disagreement is not the subject of pending litigation in a court or
administrative agency of competent jurisdiction, the commission or director
must evaluate the merits of the information in the record and determine whether
the applicant has demonstrated that the requisite property rights exist under
the definition of valid existing rights in paragraph (1)(A)3., and
sub-paragraphs (1)(a)4.A. and (1)(A)4.B. of this rule, as appropriate. The
commission or director must then proceed with the decision process under
paragraph (7)(E)2. of this rule.
4. The commission or director must issue a
determination that the applicant has not demonstrated valid existing rights if
the applicant does not submit information that the commission or director
requests under paragraph (7)(C)2. or (7)(E)1. of this rule within the time
specified or as subsequently extended. The commission or director will make
this determination without prejudice, meaning that the applicant may refile a
revised request at any time.
5.
After making a determination, the commission or director must-
A. Provide a copy of the determination,
together with an explanation of appeal rights and procedures, to the applicant,
to the owner or owners of the land to which the determination applies, to the
owner of the feature causing the land to come under the protection of section
444.890.4, RSMo, or this rule, and, when applicable, to the agency with primary
jurisdiction over the feature with respect to the values that caused the land
to come under the protection of section 444.890.4, RSMo, or this rule;
and
B. Publish notice of the
determination in a newspaper of general circulation in the county in which the
land is located. Alternatively, the commission or director may require that the
applicant publish this notice and provide a copy of the published notice to the
commission or director.
(F) A determination of the commission or
director that a person holds or does not hold a valid existing right or that
the surface coal mining operations did or did not exist on the date of
enactment shall be subject to administrative and judicial review under
10
CSR 40-6.080(1)(B) and
(2)(B).
(G) Availability of Records. The commission
or director must make a copy of the request subject to notice and comment under
subsection (7)(D) of this rule available to the public in the same manner as
the commission or director makes permit applications available to the public
under
10
CSR 40-6.070(6). In addition, the
commission or director must make records associated with that request, and any
subsequent determination under subsection (7)(E) of this rule, available to the
public in accordance with the requirements and procedures of
10 CSR
40-8.030(3).
(8) Regulatory Authority Obligations at Time
of Permit Application Review.
(A) Upon
receipt of an administratively complete application for a surface coal mining
and reclamation operation permit, or an administratively complete application
for revision of the boundaries of a surface coal mining operation permit, the
commission or director shall review the application to determine whether the
proposed surface coal mining operation would be located on any lands protected
under section 444.890.4, RSMo, or this rule.
(B) The commission or director must reject
any portion of the application that would locate surface coal mining operations
on land protected under section 444.890.4, RSMo, or this rule, unless-
1. The site qualifies for the exception for
existing operations under section (3) of this rule;
2. A person has valid existing rights for the
land, as determined under section (7) of this rule;
3. The applicant obtains a waiver or
exception from the prohibitions of section 444.890.4, RSMo, or this rule, in
accordance with sections (4) through (6) of this rule; and
4. For lands protected by subsection (2)(C)
of this rule, both the commission or director and the agency with jurisdiction
over the park or place jointly approve the proposed operation in accordance
with subsection (8)(D) of this rule.
(C) Location Verification. If the commission
or director has difficulty determining whether an application includes land
within an area specified in subsection (2)(A) of this rule or within the
specified distance from a structure or feature listed in subsection (2)(F) or
(G) of this rule, the commission or director shall request that the federal,
state, or local governmental agency with jurisdiction over the protected land,
structure, or feature verify the location.
1.
The request for location verification must-
A.
Include relevant portions of the permit application;
B. Provide the agency with thirty (30) days
after receipt to respond, with a notice that another thirty (30) days is
available upon request; and
C.
Specify that the commission or director will not necessarily consider a
response received after the comment period provided under subparagraph
(8)(C)1.B. of this rule.
2. If the agency does not respond in a timely
manner, the commission or director may make the necessary determination based
on available information.
(D) Procedures for Joint Approval of Surface
Coal Mining Operations that will Adversely Affect Publicly-Owned Parks or
Historic Places.
1. If the commission or
director determines that the proposed surface coal mining operation will
adversely affect any publicly-owned park or any place included in the National
Register of Historic Places, the director shall request that the federal,
state, or local agency with jurisdiction over the park or place either approve
or object to the proposed operation. The request must-
A. Include a copy of applicable parts of the
permit application;
B. Provide the
agency with thirty (30) days after receipt to respond, with a notice that
another thirty (30) days is available upon request; and
C. State that failure to interpose an
objection within the time specified under sub-paragraph (8)(D)1.B. of this rule
will constitute approval of the proposed operation.
2. The commission or director may not issue a
permit for a proposed operation subject to paragraph (8)(D)1. of this rule
unless all affected agencies jointly approve.
3. Paragraphs (8)(D)1. and 2. of this rule do
not apply to-
A. Lands for which a person has
valid existing rights, as determined under section (7) of this rule;
and
B. Lands within the scope of
the exception for existing operations in section (3) of this rule.
Notes
*Original authority: 444.530, RSMo 1971, amended 1983, 1990, 1993, 1995.
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