(a) Requirement for and timing of review.
(1) The Commission shall review each permit issued
and outstanding under an approved regulatory program during the term
of the permit. This review shall occur not later than the middle of
the permit term and as required by §12.200 of this title (relating
to Experimental Practices Mining).
(2) For permits of longer than five-year terms, a review
of the permit shall be no less frequent than the permit midterm or
every five years, whichever is more frequent.
(3) No less frequently than every 2 1/2 years, the
Commission shall conduct a review of any permit which, in accordance
with §12.100(a) of this title (relating to Responsibilities),
is not required to be renewed but which nonetheless authorizes the
permittee to perform reclamation activities within the permit area.
(b) Action. After this review, the Commission may,
by order, require reasonable revision or modification of the permit
provisions to ensure compliance with the Act and this chapter (relating
to Coal Mining Regulations).
(c) Notice to permittee. Copies of the decision of
the Commission shall be sent to the permittee.
(d) Written findings and appeal. Any order of the Commission
requiring revision or modification of permits, including suspension
or rescission, shall be based upon written findings and shall be subject
to the provisions for administrative and judicial review of §12.222
and §12.223 of this title (relating to Administrative Review,
and Judicial Review, respectively), and for review under §§134.161
- 134.173 of the Act, and §§2001.141 - 2001.147 of the APA
(relating to Contested Cases: Final Decisions and Orders; Motions
for Rehearing).
(e) Improvident issuance. The Commission, when it has
reason to believe, based on evidence sufficient to establish a prima
facie case, that a permit was improvidently issued, shall review a
permit under the authority of §134.082 of the Act and shall,
after notice and opportunity for a hearing, make a preliminary finding
and serve written notice of that finding to the permittee that the
permit was improvidently issued if:
(1) under the violations review criteria of the regulatory
program at the time the permit was issued:
(A) the permit should not have been issued because
of an unabated violation or a delinquent penalty or fee; or
(B) the permit was issued on the information that a
notice of violation was in the process of being corrected to the satisfaction
of the agency with jurisdiction over the violation, but a cessation
order subsequently was issued; and
(2) the violation, penalty or fee referred to in paragraph
(1) of this subsection:
(A) remains unabated or delinquent; and
(B) is not the subject of a good faith appeal, or of
an abatement plan or payment schedule with which the permittee or
other person responsible is complying to the satisfaction of the responsible
agency; and
(3) where the permittee was linked to the violation,
penalty or fee through ownership or control, under the violations
review criteria of the regulatory program at the time the permit was
issued an ownership or control link between the permittee and the
person responsible for the violation, penalty or fee still exists,
or where the link was severed the permittee continues to be responsible
for the violation, penalty or fee.
(f) Remedial measures. If the Commission, under subsection
(e) of this section, finds that, because of an unabated violation
or a delinquent penalty or fee a permit was improvidently issued,
it shall use one or more of the following remedial measures:
(1) implement, with the cooperation of the permittee
or other person responsible, and of the responsible agency, a plan
for abatement of the violation or a schedule for payment of the penalty
or fee;
(2) require revision of the permit to impose a condition
that in a reasonable period of time the permittee abate the violation
or pay the penalty or fee;
(3) suspend the permit until the violation is abated
or the penalty fee is paid; or
(4) rescind the permit under subsection (g) of this
section.
(g) Suspension and rescission. If the Commission elects
to rescind an improvidently issued permit, it shall serve on the permittee
a written notice of the proposed suspension and rescission which includes
the reasons for the findings of the Commission under subsection (e)
of this section and states that:
(1) after a specified period of time not to exceed
60 days, the permit will automatically become suspended, and not to
exceed 60 days thereafter rescinded, unless within those periods the
permittee submits proof, and the Commission finds that:
(A) the finding of the Commission under subsection
(e) of this section was erroneous;
(B) the permittee or operator has abated the violation
on which the finding was based, or paid the penalty or fee, to the
satisfaction of the responsible agency;
(C) the violation, penalty, or fee is the subject of
a good-faith appeal, or of an abatement plan or payment schedule with
which the permittee or operator is complying to the satisfaction of
the responsible agency; or
(D) since the finding was made, the permittee has severed
any ownership or control link with the person responsible for the
violation, penalty, or fee and the permittee is no longer responsible
for the violation, penalty, or fee.
(2) upon permit suspension or rescission under this
section, the Commission shall issue a written notice to the permittee
requiring that the permittee or operator cease all surface coal mining
and reclamation operations under the permit, except for violation
abatement and for reclamation and other environmental protection measures
as required by the Commission. Notice of permit suspension or rescission
will also be posted at the Commission's office closest to the permit
area.
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Source Note: The provisions of this §12.225 adopted to be effective April 7, 1997, 22 TexReg 3093; amended to be effective November 4, 1997, 22 TexReg 10640; amended to be effective October 22, 2012, 37 TexReg 8293; amended to be effective February 24, 2014, 39 TexReg 1121; amended to be effective December 28, 2020, 45 TexReg 9503 |