Section 9-16-85

Permits - Approval or denial by authority; filing of violation schedule; issuance to mine on prime farm land.

(a) Upon the basis of a complete mining application and reclamation plan or a revision or renewal thereof, as required by this article, following public notification and opportunity for a public hearing as required by Section 9-16-88, the regulatory authority shall grant, require modification of, or deny the permit within 30 days and notify the applicant in writing of its action. The applicant for a permit, or revision of a permit, shall have the burden of establishing that his application is in compliance with all the requirements of this article. Within 10 days after the granting of a permit, the regulatory authority shall notify the local governmental officials in the local political subdivision in which the area of land to be affected is located that a permit has been issued and shall describe the location of the land.

(b) No permit or revision application shall be approved unless the application affirmatively demonstrates and the regulatory authority finds in writing on the basis of the information set forth in the application or from information otherwise available which will be documented in the approval and made available to the applicant, that:

(1) The permit application is accurate and complete and that all the requirements of this article have been complied with;

(2) The applicant has demonstrated that reclamation as required by this article can be accomplished under the reclamation plan contained in the permit application;

(3) The assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance specified in Section 9-16-83(b) has been made by the regulatory authority and the proposed operation thereof has been designed to prevent material damage to hydrologic balance outside the permit area;

(4) The area proposed to be mined is not included within an area designated unsuitable for surface coal mining pursuant to Section 9-16-96 or is not within an area under study for such designation in an administrative proceeding commenced pursuant to Section 9-16-96(a)(4)c or Section 9-16-96(b) (unless in such an area as to which an administrative proceeding has commenced pursuant to Section 9-16-96(a)(4)c, the operator making the permit application demonstrates that, prior to January 1, 1977, he has made substantial legal and financial commitments in relation to the operation for which he is applying for a permit);

(5) In cases where the private mineral estate has been severed from the private surface estate, the applicant has submitted to the regulatory authority:

a. The written consent of the surface owner to the extraction of coal by surface mining methods; or

b. A conveyance that expressly grants or reserves the right to extract the coal by surface mining methods; or

c. If the conveyance does not expressly grant the right to extract coal by surface mining methods, the surface-subsurface legal relationship shall be determined in accordance with state law; provided, that nothing in this article shall be construed to authorize the regulatory authority to adjudicate property right disputes.

(c) The applicant shall file with his permit application a schedule listing any and all notices of violations of this article and any law, rule, or regulation of the United States, or of any department or agency in the United States pertaining to air or water environmental protection incurred by the applicant in connection with any surface coal mining operation during the three-year period prior to the date of application. The schedule shall also indicate the final resolution of any such notice of violation. Where the schedule or other information available to the regulatory authority indicates that any surface coal mining operation owned or controlled by the applicant is currently in violation of this article or such other laws referred to in this subsection, the permit shall not be issued until the applicant submits proof that such violation has been corrected or is in the process of being corrected to the satisfaction of the regulatory authority, department, or agency which has jurisdiction over such violation and no permit shall be issued to an applicant after a finding by the regulatory authority, after opportunity for hearing, that the applicant, or the operator specified in the application, controls or has controlled mining operations with a demonstrated pattern of willful violations of this article of such nature and duration with such resulting irreparable damage to the environment as to indicate an intent not to comply with the provisions of this article.

(d)(1) In addition to finding the application in compliance with subsection (b) of this section, if the area proposed to be mined contains prime farm land identified as such pursuant to Section 9-16-83(b), the regulatory authority shall, after consultation with the Secretary of Agriculture and pursuant to regulations issued by the Secretary of Interior with the concurrence of the Secretary of Agriculture, grant a permit to mine on prime farm land if the regulatory authority finds in writing that the operator has the technological capability to restore such mined area within a reasonable time, to equivalent or higher levels of yield as nonmined prime farm land in the surrounding area under equivalent levels of management and can meet the soil reconstruction standards of Section 9-16-90(b)(7). Except for compliance with subsection (b) of this section, the requirement of this subdivision shall apply to all permits issued after the date of August 3, 1977.

(2) Nothing in this subsection shall apply to any permit issued prior to August 3, 1977, or to any revisions or renewals thereof, or any existing surface mining operations for which a permit was issued prior to the date of August 3, 1977.

(Acts 1981, No. 81-435, p. 682, §17; Acts 1986, No. 86-106, p. 113, §3.)