| (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. Cont'd... |
