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TITLE 16ECONOMIC REGULATION
PART 1RAILROAD COMMISSION OF TEXAS
CHAPTER 12COAL MINING REGULATIONS
SUBCHAPTER FLANDS UNSUITABLE FOR MINING
DIVISION 2AREAS DESIGNATED BY ACT OF CONGRESS
RULE §12.72Procedures for Compatibility Findings, Public Road Closures and Relocations, Buffer Zones, and Valid Existing Rights Determinations

(a) Procedures for relocating or closing a public road or waiving the prohibition on surface coal mining operations within the buffer zone of a public road.

  (1) This section does not apply to:

    (A) lands for which a person has valid existing rights, as determined under subsection (c) of this section;

    (B) lands within the scope of the exception for existing operations in §12.71(b) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited); and

    (C) access or haul roads that join a public road, as described in §12.71(a)(4)(A) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited).

  (2) All necessary approvals from the authority with jurisdiction over the road must be obtained for the following:

    (A) relocation of a public road;

    (B) closure of a public road; or

    (C) surface coal mining operations proposed within 100 feet, measured horizontally, of the outside right-of-way line of a public road.

  (3) Before approving an action proposed under paragraph (2) of this subsection, the Commission or a public road authority that it designates must determine that the interests of the public and affected landowners will be protected. Before making this determination, the Commission or designated authority must:

    (A) provide a public comment period and opportunity to request a public hearing in the locality of the proposed operation;

    (B) if a public hearing is requested, publish appropriate advance notice at least two weeks before the hearing in a newspaper of general circulation in the affected locality; and

    (C) based upon information received from the public, make a written finding as to whether the interests of the public and affected landowners will be protected. If a hearing is held by the Commission or designated authority, the Commission or designated authority must make a written finding within 30 days after the hearing. If no hearing is held, the Commission or designated authority must make a written finding within 30 days after the end of the public comment period.

(b) Procedures for waiving the prohibition on surface coal mining operations within the buffer zone of an occupied dwelling.

  (1) This section does not apply to:

    (A) lands for which a person has valid existing rights, as determined under subsection (c) of this section;

    (B) lands within the scope of the exception for existing operations in §12.71(b) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited); and

    (C) access or haul roads that connect with an existing public road on the side of the public road opposite the dwelling, as provided in §12.71(a)(5)(B) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited).

  (2) If surface coal mining operations are proposed to be conducted within 300 feet, measured horizontally, of any occupied dwelling, the permit application must include a written waiver by lease, deed, or other conveyance from the owner of the dwelling. The waiver must clarify that the owner and signatory have the legal right to deny mining and knowingly waived that right. The waiver will act as consent to surface coal mining operations within a closer distance of the dwelling as specified.

  (3) If a valid waiver from the owner of an occupied dwelling to conduct operations within 300 feet of the dwelling was obtained before August 3, 1977, a new waiver does not need to be provided.

  (4) If a valid waiver is obtained from the owner of an occupied dwelling, that waiver will remain effective against subsequent purchasers who have actual or constructive knowledge of the existing waiver at the time of purchase. A subsequent purchaser will be deemed to have constructive knowledge if the waiver has been properly filed in public property records pursuant to state laws or if surface coal mining operations have entered the 300-foot zone before the date of purchase.

(c) Submission and processing of requests for valid existing rights determinations.

  (1) Basic framework for valid existing rights determinations. The following table identifies the agency responsible for making a valid existing rights determination and the definition that it must use, based upon which part of §12.71(a) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited) applies and whether the request includes federal lands.

Attached Graphic

  (2) Contents of requests for a valid existing rights determination. A request for a valid existing rights determination for any land other than federal land must be submitted to the Commission if the applicant intends to conduct surface coal mining operations on the basis of valid existing rights under §12.71(a) of this title or wishes to confirm the right to do so. This request may be submitted before preparing and submitting an application for a permit or boundary revision for the land.

    (A) Requirements for property rights demonstration. A property rights demonstration must be provided under the definition of "valid existing rights" in §12.3(187)(A) of this title (relating to Definitions) 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. This demonstration must include the following items:

      (i) a legal description of the land to which the request pertains;

      (ii) complete documentation of the character and extent of the applicant's current interests in the surface and mineral estates of the land to which the request pertains;

      (iii) a complete chain of title for the surface and mineral estates of the land to which the request pertains;

      (iv) a description of the nature and effect of each title instrument that forms the basis for the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities;

      (v) a description of the type and extent of surface coal mining operations that the applicant claims the right to conduct, including the method of mining, any mining-related surface activities and facilities, and an explanation of how those operations would be consistent with state property law;

      (vi) complete documentation of the nature and ownership, as of the date that the land came under the protection of §12.71(a) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited) or §134.022 of the Act, of all property rights for the surface and mineral estates of the land to which the request pertains;

      (vii) names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains;

      (viii) if the coal interests have been severed from other property interests, documentation that the owners of other property interests in the land to which the request pertains has been notified and provided reasonable opportunity to comment on the validity of the applicant's property rights claims; and

      (ix) any comments that are received by the applicant in response to the notification provided under clause (viii) of this subparagraph.

    (B) Requirements for good faith/all permits standard. If the applicant's request relies upon the good faith/all permits standard in the definition of "valid existing rights" in §12.3(187)(B)(i) of this title, the information required under that clause must be submitted. The following information about permits, licenses, and authorizations for surface coal mining operations on the land to which the request pertains must also be submitted:

      (i) approval and issuance dates and identification numbers for any permits, licenses, and authorizations that the applicant or a predecessor in interest obtained before the land came under the protection of §12.71(a) of this title (relating to Areas Where Surface Coal Mining Operations are Prohibited or Limited) or §134.022 of the Act;

      (ii) application dates and identification numbers for any permits, licenses, and authorizations for which the applicant or a predecessor in interest submitted an application before the land came under the protection of §12.71(a) of this title or §134.022 of the Act; and

      (iii) an explanation of any other good faith effort that the applicant or a predecessor in interest made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of §12.71(a) of this title or §134.022 of the Act.

    (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;

Cont'd...

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