10 CSR 40-5.020 - State Designation of Areas as Unsuitable for Mining
PURPOSE: This rule sets forth criteria and procedures
for the
(1) Criteria for
Designating Lands as Unsuitable.
(A) An area
shall be designated as unsuitable for all or certain types of surface coal
mining operations, upon petition, if it is determined that reclamation is not
technologically and economically feasible under the law and 10 CSR 40-3-10 CSR
40-8.
(B) Upon petition an area may
be designated (but is not required to be) as unsuitable for certain types of
surface coal mining operations, if the operations will-
1. Be incompatible with existing state or
local land use plans or programs;
2. Affect fragile or historic lands in which
the operations could result in significant damage to important historic,
cultural, scientific, or esthetic values or natural systems;
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; or
4. Affect natural hazard lands in which the
operations could substantially endanger life and property. These lands to
include areas subject to frequent flooding and areas of unstable
geology.
(2)
The requirements of this rule do not apply to-
(A) Lands on which surface coal mining
operations were being conducted on September 28, 1979;
(B) Lands covered by a permit and plan;
or
(C) Lands where substantial
legal and financial commitments in surface coal mining operations were in
existence prior to January 4, 1977.
(3) Applicability to Lands Designated as
Unsuitable by Congress. Pursuant to appropriate petitions, lands listed under
10
CSR 40-5.010(2) are subject to
designation as unsuitable for all or certain types of surface coal mining
operations under this rule.
(4)
Exploration on Land Designated as Unsuitable for Surface Coal Mining
Operations. Designation of any areas as unsuitable for all or certain types of
surface coal mining operations does not prohibit coal exploration operations in
the area, if conducted in accordance with the law and 10 CSR 40-3-10 CSR 40-8,
and other applicable federal and state requirements. Exploration operations on
any lands designated unsuitable for surface coal mining operations must be
approved under
10 CSR
40-6.020 to insure that exploration does not interfere
with any value for which the area has been designated unsuitable for surface
coal mining.
(5)
Procedures-Petitions.
(A) Right to Petition.
Any person having an interest which is, or may be, adversely affected has the
right to petition the commission and director to have an area designated as
unsuitable for surface coal mining operations or to have an existing
designation terminated. The petition shall be filed with the
director.
(B) Designation. The only
information that a petitioner need provide is-
1. The location and size of the area and a
United States Geological Survey (USGS) topographic map outlining the perimeter
of the petitioned area covered by the petition;
2. Specific 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;
3. A description of how mining of the area
has affected or may adversely affect people, land, air, water , or other
resources;
4. The petitioner's
name, address, telephone number, and notarized signature;
5. Identification of the petitioner's
interest which is or may be adversely affected; and
6. Other supplementary information which is
readily available.
(C)
Termination. The only information that a petitioner need provide is-
1. The location and size of the area and a
USGS topographic map outlining the perimeter of the petitioned area covered by
the petition;
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-
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 subsection (1)(B) of this rule;
B. Reclamation now being technologically and
economically feasible, if the designation was based on the criteria found in
subsection (1)(A) of this rule; or
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 subsection (1)(B)
of this rule;
3. The
petitioner's name, address, telephone number, and notarized
signature;
4. Identification of the
petitioner's interest which is or may be adversely affected by the continuation
of the designation; and
5. Other
supplementary information which is readily available.
(6) Procedures-Initial Processing,
Record-Keeping, and Notification Requirements.
(A) Initial Processing.
1. Within thirty (30) days of receipt of a
petition, the director shall notify the petitioner by certified mail whether or
not the petition is complete under subsection (5)(B) or (C) of this
rule.
2. The director shall
determine whether any identified coal resources exist in the area covered by
the petition, without requiring any showing from the petitioner. If the
director finds there are not any identified coal resources in that area, s/he
shall return the petition to the petitioner with a statement of
findings.
3. The director may
reject petitions for designations or terminations of designations which are
frivolous. Once the requirements of section (5) of this rule are met, no party
shall bear any burden of proof, but each accepted petition shall be considered
and acted upon by the commission and director pursuant to the procedures of
sections (5)-(11) of this rule.
4.
When considering a petition for an area which was previously and unsuccessfully
proposed for designation, the director shall determine if the new petition
presents new allegations of facts. If the petition does not contain new
allegations of facts, the director shall not consider the petition and shall
return the petition to the petitioner, with a statement of his/her findings and
a reference to the record of the previous designation proceedings where the
facts were considered.
5. If the
director determines that the petition is incomplete or frivolous, s/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.
6. The director
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.
7. Any petition received after the close of
the public comment period on a permit application relating to the same mine
plan area shall not prevent the commission or director from issuing a decision
on that permit application. The commission or director may return any petition
received after that to the petitioner with a statement why the com- mission or
director cannot consider the petition. For the purposes of this section, close
of the public comment period shall mean at the close of any informal conference
held under
10
CSR 40-6.070(5) or, if no conference
is requested, at the close of the period for filing written comments and
objections under
10
CSR 40-6.070(3) and (4).
(B) Public Notice.
1. Within three (3) weeks after the
determination that a petition is completed, the director shall circulate copies
of the petition to, and request submissions of relevant information from, other
interested governmental agencies, the petitioner, intervenors, persons with an
ownership interest of record in the property, and other persons known to the
director to have an interest in the property.
2. Within three (3) weeks after the
determination that a petition is complete, the director 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.
(C) Until three (3) days before the
commission holds a hearing under section (7) of this rule, 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 intervenor's name, address, and telephone number.
(D) Beginning immediately after a complete
petition is filed, the director shall compile and maintain a record consisting
of all documents relating to the petition filed with or prepared by the
commission . The director 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 multicounty area in which the land
petitioned is located and at the main office of the director.
(7) Procedures-Hearing
Requirements.
(A) Within ten (10) months after
receipt of a complete petition, the commission shall hold a public hearing in
the locality of the area covered by the petition. If all petitioners and
intervenors agree, the hearing need not be held. The hearing shall be
legislative and fact-finding in nature, without cross-examination of witnesses.
The commission shall make a verbatim transcript of the hearing.
(B) Hearing Notices.
1. The director shall give notice of the
date, time, and location of the hearing to-
A. Local, state, and federal agencies which
may have an interest in the decision on the petition;
B. The petitioner and the intervenors;
and
C.
Any person with an ownership or other interest known to the director in the
area covered by the petition.
2. Notice of the hearing shall be sent by
certified mail and postmarked not less than thirty (30) days before the
scheduled date of the hearing.
(C) The director shall notify the general
public of the date, time, and location of the hearing by placing a 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 and five (4-5) weeks before the scheduled date of the public
hearing.
(D) The commission may
consolidate in a single hearing the hearings required for each of several
petitions which relate to areas in the same locale.
(E) Prior to designating any land areas as
unsuitable for surface coal mining operations, the commission will 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
this designation on the environment, the economy, and the supply of
coal .
(F) In the event that all
petitioners and intervenors stipulate agreement prior to the hearing, the
petition may be withdrawn from consideration.
(8) Procedures-Decision.
(A) In reaching its decision, the commission
shall use-
1. Information contained in the
data base and inventory system;
2.
Information provided by other governmental agencies;
3. The detailed statement prepared under
subsection (7)(E) of this rule; and
4. Any other relevant information submitted
during the comment period.
(B) A final written decision shall be issued
by the commission , 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 director shall
simultaneously send the decision by certified mail to the petitioner, every
other party to the proceeding and to the regional director of the office for
the region in which the state is located.
(C) The decision of the commission with
respect to a petition, or the failure of the commission to act within the time
limits set forth in this section, are subject to judicial review.
(9) Data Base and Inventory System
Requirements.
(A) The director shall develop a
data base and inventory system which will permit evaluation of whether
reclamation is feasible in areas covered by petitions.
(B) The director shall include in the system
information relevant to the criteria in section (1) of this rule, including,
but not limited to, information received from the United States Fish and
Wildlife Service, the state historic preservation officer, and the agency
administering Section 127 of the Clean Air Act ( 42 USC Section 7470
).
(C) The director shall add to
the data base and inventory system the following information:
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 commission to prepare the statements required by
subsection (7)(E) of this rule; and
2. That which becomes available from
petitions, publications, experiments, permit applications, mining and
reclamation operations, and other sources.
(10) Public Information. The director shall-
(A) Make the information and data base system
developed under section (9) of this rule available to the public for inspection
free of charge and for copying at reasonable cost; and
(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.
(11)
Responsibility for Implementation.
(A) Permits
will not be issued which are inconsistent with designations made pursuant to
10
CSR 40-5.010 or this rule.
(B) The director shall maintain a map of
areas designated as unsuitable for all or certain types of surface coal mining
operations.
(C) The director shall
make available to any person any information within his/her control regarding
designations, including mineral and elemental content which is potentially
toxic in the environment but excepting proprietary information on the chemical
and physical properties of the coal .
Notes
*Original authority: 444.530, RSMo 1971, amended 1983, 1990, 1993, 1995.
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