| (B) the applicant or the operator indirectly controls
has an unabated or uncorrected violation and the control was established
or the violation was cited after November 2, 1988.
(2) The Commission shall not issue the permit if the
applicant or operator are permanently ineligible to receive a permit
under §12.234(c)(3) of this title.
(3) After approval of the permit under §12.216
of this title (relating to Criteria for Permit Approval or Denial),
the Commission shall not issue the permit until the information updates
and certification requirements of §12.116(a)(2) or §12.156(a)(2)
of this title are met. After the applicant completes this requirement,
the Commission shall again request a compliance history report from
AVS to determine if there are any unabated or uncorrected violations
which affect permit eligibility under paragraphs (1) and (2) of this
subsection. The Commission shall request this report no more than
five business days before permit issuance under §12.218 and §12.219
of this title (relating to Permit Approval or Denial Actions, and
Permit Terms).
(4) If the applicant is determined to be ineligible
for a permit under this section, the Commission shall send written
notification to the applicant of its decision. The notice will contain
an explanation as to why the applicant is ineligible and include notice
of the rights of appeal under §12.222 and §12.223 of this
title (relating to Administrative Review, and Judicial Review).
(k) An applicant is eligible for a permit:
(1) under subsection (j) of this section if an unabated
violation:
(A) occurred after October 24, 1992; and
(B) resulted from an unanticipated event or condition
at a surface coal mining and reclamation operation on lands that are
eligible for remining under a permit that was held by the person applying
for the new permit; or
(2) under §12.206 of this title (relating to Mining
in Previously Mined Areas), an event or condition is presumed to be
unanticipated for the purpose of this section if it:
(A) arose after permit issuance;
(B) was related to prior mining; and
(C) was not identified in the permit application.
(l) For provisionally issued permits:
(1) This subsection applies to an applicant who owns
or controls a surface coal mining and reclamation operation with:
(A) a notice of violation for which the abatement period
has not yet expired; or
(B) a violation that is unabated or uncorrected beyond
the abatement or correction period.
(2) The Commission shall find an applicant eligible
for a provisionally issued permit under this section if the applicant
demonstrates that one or more of the following circumstances exists
with respect to all violations listed in paragraph (1) of this subsection:
(A) for violations meeting the criteria of paragraph
(1)(A) of this subsection, the applicant certifies that the violation
is being abated to the satisfaction of the regulatory authority with
jurisdiction over the violation, and the Commission has no evidence
to the contrary;
(B) the applicant, operator, and operations owned or
controlled by the applicant or operator, as applicable, are in compliance
with the terms of any abatement plan, or a payment schedule for delinquent
fees or penalties, approved by the Commission;
(C) the applicant is pursuing a good faith:
(i) challenge to all pertinent ownership or control
listings or findings under §12.234(a)(1) - (3) of this title;
or
(ii) administrative or judicial appeal of all pertinent
ownership or control listings or findings, unless there is an initial
judicial decision affirming the listing or finding and that decision
remains in force; or
(D) the violation is the subject of a good faith administrative
or judicial appeal contesting the validity of the violation, unless
there is an initial judicial decision affirming the violation and
that decision remains in force.
(3) A provisionally issued permit will be considered
to be improvidently issued, and the Commission will immediately initiate
procedures under §12.225(g) of this title (relating to Commission
Review of Outstanding Permits) to suspend or rescind that permit,
if:
(A) violations included in paragraph (2)(A) of this
subsection are not abated within the specified abatement period;
(B) the permittee, operator, or operations that the
permittee or operator own or control do not comply with the terms
of an abatement plan or payment schedule mentioned in paragraph (2)(B)
of this subsection;
(C) in the absence of a request for judicial review,
the disposition of a challenge and any subsequent administrative review
referenced in paragraph (2)(C) or (D) of this subsection affirms the
validity of the violation or the ownership or control listing or finding;
or
(D) the initial judicial review decision referenced
in paragraph (2)(C)(ii) or (D) of this subsection affirms the validity
of the violation or the ownership or control listing or finding.
|
| Source Note: The provisions of this §12.215 adopted to be effective April 7, 1997, 22 TexReg 3093; amended to be effective November 4, 1997, 22 TexReg 10640; amended to be effective February 24, 2014, 39 TexReg 1121; amended to be effective December 28, 2020, 45 TexReg 9503 |
