| (a) The Commission shall:
(1) review the complete application and written comments,
written objections submitted, and the record of any public hearing
held under §§12.208 - 12.214 of this title (relating to
Opportunity for Submission of Written Comments on Permit Applications;
Right to File Written Objections; Public Availability of Information
in Permit Applications on File with the Commission; Public Hearing
on Application; Notice of Public Hearing on Application; Continuance;
and Transcript);
(2) determine the adequacy of the fish and wildlife
plan submitted pursuant to §12.144 or §12.195 of this title
(relating to Fish and Wildlife Plan), in consultation with state and
federal fish and wildlife management and conservation agencies having
responsibilities for the management and protection of fish and wildlife
or their habitats which may be affected or impacted by the proposed
surface coal mining and reclamation operations;
(3) based on an administratively complete application,
enter into AVS:
(A) the information required to be submitted under §12.116(b)
and (c) or §12.156(b) and (c) of this title (relating to Identification
of Interests and Compliance Information); and
(B) the information submitted under §12.116(e)
or §12.156(e) of this title pertaining to violations which are
unabated or uncorrected after the abatement or correction period has
expired; and
(4) update the information referred to in paragraph
(3) of this subsection in AVS upon verification of any additional
information submitted or discovered during the permit application
review.
(b) Within the time frame provided by the APA if the
public hearing provided for occurs, or within 45 days of the last
publication of notice of application if no public hearing is held,
the Commission shall notify the applicant and any objectors whether
the application has been approved or denied.
(c) All provisions of the APA apply to each permit
application and notices, other than specifically provided for above,
of hearings and appeals are governed thereby.
(d) If the Commission decides to approve the application,
it shall require that the applicant file the performance bond or provide
other equivalent guarantee before the permit is issued, in accordance
with the provisions of Subchapter J of this chapter (relating to Bond
and Insurance Requirements for Surface Coal Mining and Reclamation
Operations).
(e) The following criteria shall apply with regard
to denial or conditional issuance of an application for permit:
(1) if the Commission determines from either the schedule
submitted as part of an application submitted after the adoption of
these rules under §12.116(e) or §12.156(e) of this title,
or from other available information concerning federal and state failure-to-abate
cessation orders, unabated federal and state imminent harm cessation
orders, delinquent civil penalties issued pursuant to the Act or Federal
Act or federally-approved coal regulatory program, bond forfeitures
where violations upon which the forfeitures were based have not been
corrected, delinquent abandoned mine reclamation fees, and unabated
violations of federal and any state laws, rules, and regulations pertaining
to air or water environmental protection incurred in connection with
any surface coal mining operation, the Commission shall deny the permit
if any surface coal mining and reclamation operation owned or controlled
by either the applicant or by any person who owns or controls the
applicant is currently in violation of the Act or any other law, rule
or regulation referred to in this subsection. In the absence of a
failure-to-abate cessation order, the Commission may presume that
a notice of violation issued pursuant to §12.678 of this title
(relating to Notices of Violation) or under a federal or state program
has been or is being corrected to the satisfaction of the agency with
jurisdiction over the violation, except where evidence to the contrary
is set forth in the permit application, or where the notice of violation
is issued for nonpayment of abandoned mine reclamation fees or civil
penalties. If a current violation exists, the Commission shall require
the applicant or person who owns or controls the applicant, before
the issuance of the permit, to either:
(A) submit to the Commission proof that the current
violation has been or is in the process of being corrected to the
satisfaction of the agency that has jurisdiction over the violation;
or
(B) establish for the Commission that the applicant,
or any person owned or controlled by either the applicant or any person
who owns or controls the applicant, has filed and is presently pursuing,
in good faith, a direct administrative or judicial appeal to contest
the validity of the current violation. If the initial judicial review
affirms the violation, the applicant shall within 30 days of the judicial
action submit the proof required under subparagraph (A) of this paragraph;
and
(2) any permit that is issued on the basis of proof
submitted under paragraph (1)(A) of this subsection that a violation
is in the process of being corrected, or pending the outcome of an
appeal described in paragraph (1)(B) of this subsection, shall be
conditionally issued.
(f) Before any final determination by the Commission
that the applicant, anyone who owns or controls the applicant, or
the operator specified in the application, controls or has controlled
mining operations with a demonstrated pattern of willful violations
of the Act or Federal Act and its implementing Federal Regulations
and all federal and state programs approved under the Federal Act
or federal or state laws as used in 30 CFR 773.15(b) of such nature,
duration, and with such resulting irreparable damage to the environment
that indicates an intent not to comply with the provisions of the
Act or Federal Act and its implementing Federal Regulations and all
federal and state programs approved under the Federal Act or federal
or state laws as used in 30 CFR 773.15(b), no permit shall be issued
and a hearing shall be held. The applicant or operator shall be afforded
an opportunity for an adjudicatory hearing on the determination as
provided for in the regulatory program. Such hearing shall be conducted
pursuant to §12.222 of this title (relating to Administrative
Review). The Commission shall deny an application after a determination
has been made that a pattern of willful violations exists.
(g) After an application is approved, but before the
permit is issued, the Commission shall review and consider any new
compliance information submitted pursuant to §12.116(a)(2) of
this title under the criteria of subsection (e)(1) of this section.
If the applicant fails or refuses to respond as required by the Commission
to provide new compliance information, or the new compliance information
shows that the applicant, anyone who owns or controls the applicant,
or the operator is in violation, the Commission shall deny the permit.
(h) The Commission shall rely upon the permit history
information submitted in the application under §12.116(c) or §12.156(c)
of this title, information from AVS, and any other available information
to review the permit histories of the applicant and its operator.
The Commission shall:
(1) conduct a review of the permit history information
before making a permit eligibility determination under subsection
(j) of this section;
(2) determine whether the applicant or its operator
have previous mining experience; and
(3) conduct an additional review under §12.234(c)(6)
of this title (relating to Challenge of Ownership or Control, Information
on Ownership and Control, and Violations, and Applicant/Violator System
Procedures) if the applicant or operator do not have any previous
mining experience to determine if a person with mining experience
controls the mining operation.
(i) The Commission, relying upon the violation information
supplied by the applicant under §12.116(e) or §12.156(e)
of this title, a report from AVS, and any other available information
to review histories of compliance with the Act or the applicable State
regulatory program, and any other applicable air or water quality
laws, for the permittee, operator, and for operations owned or controlled
by the permittee or by the operator, shall conduct the review before
making a permit eligibility determination required under subsection
(j) of this section.
(j) Based on reviews of the applicant's and any operator's
organizational structure and ownership or control relationships provided
in the application as required under subsections (h) and (i) of this
section, the Commission shall determine whether an applicant is eligible
for a permit under §134.068 and §134.069 of the Act (relating
to Schedule of Notices of Violations, and to Effect of Past or Present
Violation).
(1) Except as provided in subsections (k) and (l) of
this section, an applicant is not eligible for a permit if the Commission
finds that any surface coal mining operation that:
(A) the applicant directly owns or controls has an
unabated or uncorrected violation; or
(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.
|
