| (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
Cont'd... |
