16 Tex. Admin. Code § 12.72 - Procedures for Compatibility Findings, Public Road Closures and Relocations, Buffer Zones, and Valid Existing Rights Determinations

(a) 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.

(1) This section does not apply to:

(A) lands for which a person has valid existing rights, as determined under subsection (c) of this section;

(B) lands within the scope of the exception for existing operations in § 12.71(b) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited); and

(C) access or haul roads that join a public road, as described in § 12.71(a)(4)(A) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited).

(2) All necessary approvals from the authority with jurisdiction over the road must be obtained for the following:

(A) relocation of a public road;

(B) closure of a public road; or

(C) surface coal mining operations proposed within 100 feet, measured horizontally, of the outside right-of-way line of a public road.

(3) Before approving an action proposed under paragraph (2) of this subsection, the Commission or a public road authority that it designates must determine that the interests of the public and affected landowners will be protected. Before making this determination, the Commission or designated authority must:

(A) provide a public comment period and opportunity to request a public hearing in the locality of the proposed operation;

(B) if a public hearing is requested, publish appropriate advance notice at least two weeks before the hearing in a newspaper of general circulation in the affected locality; and

(C) based upon information received from the public, make a written finding as to whether the interests of the public and affected landowners will be protected. If a hearing is held by the Commission or designated authority, the Commission or designated authority must make a written finding within 30 days after the hearing. If no hearing is held, the Commission or designated authority must make a written finding within 30 days after the end of the public comment period.

(b) Procedures for waiving the prohibition on surface coal mining operations within the buffer zone of an occupied dwelling.

(1) This section does not apply to:

(A) lands for which a person has valid existing rights, as determined under subsection (c) of this section;

(B) lands within the scope of the exception for existing operations in § 12.71(b) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited); and

(C) access or haul roads that connect with an existing public road on the side of the public road opposite the dwelling, as provided in § 12.71(a)(5)(B) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited).

(2) If surface coal mining operations are proposed to be conducted within 300 feet, measured horizontally, of any occupied dwelling, the permit application must include a written waiver by lease, deed, or other conveyance from the owner of the dwelling. The waiver must clarify that the owner and signatory have 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.

(3) If a valid waiver from the owner of an occupied dwelling to conduct operations within 300 feet of the dwelling was obtained before August 3, 1977, a new waiver does not need to be provided.

(4) If a valid waiver is obtained from the owner of an occupied dwelling, that waiver will remain effective against subsequent purchasers who have 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 300-foot zone before the date of purchase.

(c) Submission and processing of requests for valid existing rights determinations.

(1) Basic framework for valid existing rights determinations. The following table identifies the agency responsible for making a valid existing rights determination and the definition that it must use, based upon which part of § 12.71(a) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited) applies and whether the request includes federal lands.

Attached Graphic

(2) Contents of requests for a valid existing rights determination. A request for a valid existing rights determination for any land other than federal land must be submitted to the Commission if the applicant intends to conduct surface coal mining operations on the basis of valid existing rights under § 12.71(a) of this title or wishes to confirm the right to do so. This request may be submitted before preparing and submitting an application for a permit or boundary revision for the land.

(A) Requirements for property rights demonstration. A property rights demonstration must be provided under the definition of "valid existing rights" in § 12.3(187)(A) of this title (relating to Definitions) if the request relies upon the good faith/all permits standard or the needed for and adjacent standard in the definition of "valid existing rights" in § 12.3(187)(B) of this title. This demonstration must include the following items:

(i) a legal description of the land to which the request pertains;

(ii) 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;

(iii) a complete chain of title for the surface and mineral estates of the land to which the request pertains;

(iv) 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;

(v) 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;

(vi) complete documentation of the nature and ownership, as of the date that the land came under the protection of § 12.71(a) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited) or §134.022 of the Act, of all property rights for the surface and mineral estates of the land to which the request pertains;

(vii) names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains;

(viii) 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 has been notified and provided reasonable opportunity to comment on the validity of the applicant's property rights claims; and

(ix) any comments that are received by the applicant in response to the notification provided under clause (viii) of this subparagraph.

(B) Requirements for good faith/all permits standard. If the applicant's request relies upon the good faith/all permits standard in the definition of "valid existing rights" in § 12.3(187)(B)(i) of this title, the information required under that clause must be submitted. The following information about permits, licenses, and authorizations for surface coal mining operations on the land to which the request pertains must also be submitted:

(i) approval and issuance dates and identification numbers for any permits, licenses, and authorizations that the applicant or a predecessor in interest obtained before the land came under the protection of § 12.71(a) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited) or §134.022 of the Act;

(ii) application dates and identification numbers for any permits, licenses, and authorizations for which the applicant or a predecessor in interest submitted an application before the land came under the protection of § 12.71(a) of this title or §134.022 of the Act; and

(iii) an explanation of any other good faith effort that the applicant 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 § 12.71(a) of this title or §134.022 of the Act.

(C) Requirements for needed for and adjacent standard. If the applicant's request relies upon the needed for and adjacent standard in the definition of "valid existing rights" in § 12.3(187)(B)(i) of this title, the information required under subparagraph (A) of this paragraph must be submitted. 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 § 12.71(a) of this title or §134.022 of the Act.

(D) Requirements for standards for mine roads. If the applicant's request relies upon one of the standards for roads in the definition of "valid existing rights" in § 12.3(187)(c)(i)-(iii) of this title, the applicant must submit satisfactory documentation that:

(i) the road existed when the land upon which it is located came under the protection of § 12.71(a) of this title or §134.022 of the Act, and that the applicant has a legal right to use the road for surface coal mining operations;

(ii) a properly recorded right of way or easement for a road in that location existed when the land came under the protection of § 12.71(a) of this title or §134.022 of the Act, 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

(iii) 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 § 12.71(a) of this title or §134.022 of the Act.

(3) Initial review of request regarding any land other than federal land.

(A) The Commission must conduct an initial review to determine whether the applicant's request includes all applicable components of the submission requirements of paragraph (2) of this subsection. This review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted.

(B) If the applicant's request does not include all applicable components of the submission requirements of paragraph (2) of this subsection, the Commission must notify the applicant and establish a reasonable time for submission of the missing information.

(C) When the applicant's request includes all applicable components of the submission requirements of paragraph (2) of this subsection, the Commission must implement the notice and comment requirements of paragraph (4) of this subsection.

(D) If the information requested by the Commission under subparagraph (B) of this paragraph is not provided within the time specified or as subsequently extended, the Commission must issue a determination that the applicant has not demonstrated valid existing rights, as provided in paragraph (5)(D) of this subsection.

(4) Notice and comment requirements and procedures.

(A) When the applicant's request satisfies the completeness requirements of paragraph (3) of this subsection, the Commission 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 may require that the applicant publish this notice and provide the Commission with a copy of the published notice. Each notice must include:

(i) the location of the land to which the request pertains;

(ii) a description of the type of surface coal mining operations planned;

(iii) a reference to and brief description of the applicable standard(s) under the definition of "valid existing rights" in § 12.3(187) of this title; and

(I) if the request relies upon the good faith/all permits standard or the needed for and adjacent standard in the definition of "valid existing rights" in § 12.3(187)(B) of this title, the notice also must include a description of the property rights claimed and the basis for that claim;

(II) if the request relies upon the standard in the definition of "valid existing rights" in § 12.3(187)(C)(i) of this title, 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 § 12.71(a) of this title or §134.022 of the Act. 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 in the definition of "valid existing rights" in § 12.3(187)(C)(ii) of this title, the notice must also 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 § 12.71(a) of this title or §134.022 of the Act. 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 applicant's request relies upon one or more of the standards in the definition of "valid existing rights" in § 12.3(187)(B), (C)(i), and (C)(ii) of this title, a statement that the Commission 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 subparagraph (C) of this paragraph, a person with a legal interest in the land initiates appropriate legal action to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the applicant's claim;

(v) a description of the procedures that the Commission will follow in processing the request;

(vi) the closing date of the comment period, which must be a minimum of 30 days after the publication date of the notice;

(vii) a statement that interested persons may obtain a 30-day extension of the comment period upon request; and

(viii) the name and address of the Commission 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.

(B) The Commission must promptly provide a copy of the notice required under subparagraph (A) of this paragraph to:

(i) all reasonably locatable owners of surface and mineral estates in the land included in the request; and

(ii) the owner of the feature causing the land to come under the protection of § 12.71(a) of this title, 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 § 12.71(a) of this title. 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.

(C) The letter transmitting the notice required under subparagraph (B) of this paragraph must provide a 30-day comment period, starting from the date of service of the letter, and specify that another 30 days is available upon request. At its discretion, the Commission may grant additional time for good cause upon request. The Commission need not necessarily consider comments received after the closing date of the comment period.

(5) How a decision will be made.

(A) Procedure. The Commission must review the materials submitted under paragraph (2) of this subsection, comments received under paragraph (4) of this subsection, 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 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 agency deems necessary to remedy the inadequacy.

(B) Determination. Once the record is complete and adequate, the Commission 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 § 12.3(187) of this title. It must contain findings of fact and conclusions, and it must specify the reasons for the conclusions.

(C) Impact of property rights disagreements. This subparagraph applies only when the request relies upon one or more of the standards in the definition of "valid existing rights" in § 12.3(187)(B), (C)(i) and (C)(ii) of this title.

(i) The Commission must issue a determination that the applicant has not demonstrated valid existing rights if those 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 will make this determination without prejudice, meaning that an applicant may refile the request once the property rights dispute is finally adjudicated. This clause applies only to situations in which legal action has been initiated as of the closing date of the comment period under paragraph (4)(A) or (C) of this subsection.

(ii) If the record indicates disagreement as to the accuracy of property rights claims, but this disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, the Commission 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 § 12.3(187)(A), (C)(i) or (C)(ii) of this title, as appropriate. The Commission must then proceed with the decision process under subparagraph (B) of this paragraph.

(D) Default determination. The Commission must issue a determination that an applicant has not demonstrated valid existing rights if the information that is requested under paragraph (3)(B) of this subsection or subparagraph (A) of this paragraph has not been submitted within the time specified or as subsequently extended. The Commission will make this determination without prejudice, meaning that the applicant may refile a revised request at any time.

(E) Notice after decision. After making a determination, the Commission must:

(i) 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 § 12.71(a) of this title, 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 § 12.71(a) of this title; and

(ii) publish notice of the determination in a newspaper of general circulation in the county in which the land is located. Alternatively, the Commission may require that the applicant publish this notice and provide a copy of the published notice to the Commission.

(6) Administrative and judicial review. A determination that an applicant has or does not have valid existing rights is subject to administrative and judicial review under § 12.222 and § 12.223 of this title (relating to Administrative Review and Judicial Review).

(7) Availability of records. The Commission must make a copy of that request available to the public in the same manner as it must make permit applications available to the public under § 12.210 of this title (relating to Public Availability of Information in Permit Applications On File With the Commission). In addition, the Commission must make records associated with that request, and any subsequent determination under paragraph (5) of this subsection, available to the public in accordance with the requirements and procedures of § 12.672 of this title (relating to Availability of Records).

Notes

16 Tex. Admin. Code § 12.72

The provisions of this §12.72 adopted to be effective June 9, 2003, 28 TexReg 4412