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RULE §12.26Application Requirements and Procedures

(a) Requirement to file an application. Any person who plans to commence or continue coal extraction after the effective date of §12.25, this section, and §§12.27-12.33 of this title (relating to Exemption for Coal Extraction Incidental to the Extraction of Other Minerals), in reliance on the incidental mining exemption shall file a complete application for exemption with the Commission for each mining area. A person may not commence coal extraction based upon the exemption until the Commission approves such application, except as provided in subsection (e)(3) of this section.

(b) Existing operations. Any person who has commenced coal extraction at a mining area in reliance upon the incidental mining exemption prior to the effective date of §12.25, this section, and §§12.27-12.33 of this title, may continue mining operations for 60 days after the effective date of §12.25, this section, and §§12.27-12.33 of this title. Coal extraction may not continue after such 60 day period unless that person files an administratively complete application for exemption with the Commission. An application will be determined to be administratively complete when it contains the information responsive to the requirements of §12.27 of this title (relating to Contents of Application for Exemption). If an administratively complete application is filed within 60 days, the person may continue extracting coal in reliance on the exemption beyond the 60-day period until the Commission makes an administrative decision on such application.

(c) Additional information. The Commission shall notify the applicant if the application for exemption is incomplete and may at any time require submittal of additional information.

(d) Public comment period. Following publication of the newspaper notice required by §12.27(i) of this title, the Commission shall provide a period of no less than 30 days, during which time any person having an interest which is or may be adversely affected by a decision on the application may submit written comments or objections.

(e) Exemption determination.

  (1) No later than 90 days after filing of an administratively complete application, the Commission shall make a written determination whether, and under what conditions, the persons claiming the exemption are exempt under §12.25, this section, and §§12.27-12.33 of this title, and shall notify the applicant and persons submitting comments on the application of the determination and the basis for the determination.

  (2) The determination of exemption shall be based upon information contained in the application and any other information available to the Commission at that time.

  (3) If the Commission fails to provide an applicant with the determination as specified in paragraph (1) of this subsection, an applicant who has not begun may commence coal extraction pending a determination on the application unless the Commission issues an interim finding, together with reasons therefor, that the applicant may not begin coal extraction.

(f) Appeal and review. Any adversely affected person may request appeal or review of a determination under subsection (e) of this section in accordance with procedures established under §12.222 of this title (relating to Administrative Review).

Source Note: The provisions of this §12.26 adopted to be effective November 4, 1997, 22 TexReg 10640.

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