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TITLE 16ECONOMIC REGULATION
PART 1RAILROAD COMMISSION OF TEXAS
CHAPTER 12COAL MINING REGULATIONS
SUBCHAPTER GSURFACE COAL MINING AND RECLAMATION OPERATIONS, PERMITS, AND COAL EXPLORATION PROCEDURES SYSTEMS
DIVISION 14SMALL OPERATOR ASSISTANCE
RULE §12.234Challenge of Ownership or Control, Information on Ownership and Control, and Violations, and Applicant/Violator System Procedures

(a) Challenges to ownership and control information.

  (1) Applicability. An applicant or operator may challenge a listing or finding of ownership or control using the provisions under paragraphs (2) and (3) of this subsection if the challenger is:

    (A) listed in a permit application or AVS as an owner or controller of an entire surface coal mining operation, or any portion or aspect thereof;

    (B) found to be an owner or controller of an entire surface coal mining operation, or any portion or aspect thereof, under §12.225(e) of this title (relating to Commission Review of Outstanding Permits) or subsection (c)(7) of this section; or

    (C) an applicant or permittee affected by an ownership or control listing or finding.

  (2) Procedure.

    (A) To challenge an ownership or control listing or finding, the challenger shall submit to the Commission a written explanation of the basis for the challenge, along with any evidence or explanatory materials that the challenger wishes to provide under paragraph (3)(B) of this subsection.

    (B) The provisions of paragraph (3) of this subsection and of subsection (b) of this section apply only to challenges to ownership or control listings or findings. A challenger may not use these provisions to challenge its liability or responsibility under any other provision of the Act or the implementing regulations.

    (C) When the challenge concerns a violation under the jurisdiction of a regulatory authority other than the Commission, the Commission must consult the regulatory authority with jurisdiction over the violation and the AVS Office to obtain additional information.

    (D) The Commission may request an investigation by the AVS Office.

    (E) At any time, a person listed in AVS as an owner or controller of a surface coal mining operation, may request an informal explanation from the AVS Office as to the reason that person is shown in AVS in an ownership or control capacity. Pursuant to 30 CFR 773.26(e), within 14 days of the request, the AVS Office will provide a response describing why that person is listed in AVS.

  (3) Burden of proof.

    (A) In a challenge to a listing of ownership or control in AVS or a finding of ownership or control made under subsection (c)(7) of this section, the challenger must prove by a preponderance of the evidence that it either:

      (i) does not own or control the entire surface coal mining operation or relevant portion or aspect thereof; or

      (ii) did not own or control the entire surface coal mining operation or relevant portion or aspect thereof during the relevant time period.

    (B) In meeting this burden of proof, the challenger must present reliable, credible, and substantial evidence and any explanatory materials to the regulatory authority identified in paragraph (2) of this subsection and to the Commission. The materials presented in connection with the challenge will become part of the permit file, an investigation file, or another public file. If requested by the challenger, the Commission will hold as confidential any information submitted under this paragraph which is not required to be made available to the public under §12.672 of this title (relating to Availability of Records).

    (C) Materials that may be submitted in response to the requirements of subparagraph (B) of this paragraph include, but are not limited to:

      (i) notarized affidavits containing specific facts concerning the duties that the challenger performed for the relevant operation, the beginning and ending dates of the challenger's ownership or control of the operation, and the nature and details of any transaction creating or severing the challenger's ownership or control of the operation;

      (ii) certified copies of corporate minutes, stock ledgers, contracts, purchase and sale agreements, leases, correspondence, or other relevant company records;

      (iii) certified copies of documents filed with or issued by any State, municipal, or Federal governmental agency;

      (iv) an opinion of counsel, when supported by:

        (I) evidentiary materials;

        (II) a statement by counsel that he or she is qualified to render the opinion; and

        (III) a statement that counsel has personally and diligently investigated the facts of the matter.

(b) Written agency decision.

  (1) Within 60 days of receipt of a challenge under subsection (a)(2)(A) of this section, the Commission will review and investigate the evidence and explanatory materials submitted and any other reasonably available information bearing on the challenge and issue a written decision. The decision document must include a statement of whether the challenger owns or controls the relevant surface coal mining operation, or owned or controlled the operation, during the relevant time period.

  (2) The Commission will promptly provide the challenger with a copy of its decision by either:

    (A) certified mail, return receipt requested; or

    (B) any means consistent with the rules governing service of a summons and complaint under Rule 176 of the Texas Rules of Civil Procedure.

  (3) Service of the decision on the challenger is complete upon delivery and is not incomplete if the challenger refuses to accept delivery.

  (4) The Commission will post all decisions made under this section on AVS.

  (5) Any person who receives a written decision under this section and who wishes to appeal that decision must exhaust administrative remedies under the procedures at §12.222 of this title (relating to Administrative Review), before seeking review under §12.223 of this title (relating to Judicial Review).

  (6) Following service of the written decision or any decision by a reviewing administrative or judicial tribunal, the Commission shall review the information in AVS to determine if it is consistent with the decision. If it is not, the Commission shall promptly revise the information in AVS to reflect the decision.

(c) Post-permit issuance information requirements for the Commission.

  (1) For the purposes of future permit eligibility determinations and enforcement actions, the Commission shall enter into AVS all permit records, unabated or uncorrected violations, changes to information initially required to be provided by an applicant under §12.116(b) or §12.156(b) of this title (relating to Identification of Interests and Compliance Information), and any changes in violation status within 30 days after:

    (A) the permit is issued or subsequent changes made;

    (B) the abatement or correction period for a violation expires;

    (C) the receipt of notice of a change; or

    (D) abatement, correction, or termination of a violation, or a decision from an administrative or judicial tribunal.

  (2) If, at any time, the Commission discovers that any person owns or controls an operation with an unabated or uncorrected violation, the Commission shall determine whether enforcement action is appropriate under Subchapter L of this title (relating to Permanent Program Inspection and Enforcement Procedures), and will enter the results of each enforcement action, including administrative and judicial decisions, into AVS.

  (3) The Commission shall serve a preliminary finding of permanent permit ineligibility under §134.068 and §134.069 of the Act on a permittee or operator, if the criteria in subparagraphs (A) and (B) of this paragraph are met. In making a finding under this paragraph, the Commission will only consider control relationships and violations that would make, or would have made, a permittee ineligible for a permit under §12.215(j) of this title (relating to Review of Permit Applications). The Commission shall make a preliminary finding of permanent permit ineligibility if it finds that:

    (A) the permittee controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations under §134.068 and §134.069 of the Act; and

    (B) the violations are of such nature and duration with such resulting irreparable damage to the environment as to indicate the permittee's intent not to comply with the Act, its implementing regulations, the regulatory program, or the permit.

  (4) The permittee may request a hearing on a preliminary finding of permanent permit ineligibility under §12.222 and §12.223 of this title.

  (5) The Commission shall enter its findings into AVS:

    (A) if a hearing is not requested and the time for seeking a hearing has expired; or

    (B) if a hearing is requested, only if the Commission's findings are upheld on administrative appeal.

  (6) At any time, the Commission may identify any person who owns or controls an entire surface coal mining operation or any relevant portion or aspect thereof. If such person is identified, the Commission shall issue a written preliminary finding to the person and the applicant or permittee describing the nature and extent of ownership or control. The Commission's written preliminary finding shall be based on evidence sufficient to establish a prima facie case of ownership or control.

  (7) After the Commission issues a written preliminary finding under paragraph (6) of this subsection, the Commission shall allow the person subject to the preliminary finding 30 days in which to submit any information tending to demonstrate the person's lack of ownership or control. If, after reviewing any information the person submits, the Commission is persuaded that the person is not an owner or controller, the Commission shall serve the person a written notice to that effect. If, after reviewing any information submitted, the Commission still finds that the person is an owner or controller, or if the person does not submit any information within the 30-day period, the Commission shall issue a written finding and enter that finding into AVS.

  (8) If the Commission identifies a person as an owner or controller under paragraph (7) of this subsection, the person may challenge the finding using the provisions of subsection (a) of this section.

(d) Post-permit issuance information requirements for permittees.

  (1) Within 30 days after the issuance of a cessation order under §12.677 of this title (relating to Cessation Orders), the permittee must provide or update all the information required under §12.116(b) or §12.156(b) of this title.

  (2) The permittee does not need to submit information under paragraph (1) of this subsection if a court of competent jurisdiction grants a stay of the cessation order and the stay remains in effect.

  (3) Within 60 days of any addition, departure, or change in position of any person identified in §12.116(b)(4) or §12.156(b)(4) of this title, the permittee must provide:

    (A) the information required under §12.116(b)(4) or §12.156(b)(4) of this title; and

    (B) the date of any departure.


Source Note: The provisions of this §12.234 adopted to be effective February 24, 2014, 39 TexReg 1121

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