Section 9-16-96

Designation of areas unsuitable for surface coal mining; right to petition; review and public hearing; areas exempt from mining operations.

(a)(1) The regulatory authority shall establish a planning process enabling objective decisions based upon competent and scientifically sound data and information as to which, if any, land areas of the state are unsuitable for all or certain types of surface coal mining operations pursuant to the standards set forth in subdivisions (2) and (3) of this subsection but such designation shall not prevent the mineral exploration pursuant to the article of any area so designated.

(2) Upon petition pursuant to subsection (c) of this section, the regulatory authority shall designate an area as unsuitable for all or certain types of surface coal mining operations if the regulatory authority determines that reclamation pursuant to the requirements of this article is not technologically and economically feasible.

(3) Upon petition pursuant to subsection (c) of this section, a surface area may be designated unsuitable for certain types of surface coal mining operations if such operations will:

a. Be incompatible with existing state or local land use plans or programs; or

b. Affect fragile or historic lands in which such operations could result in significant damage to important historic, cultural, scientific, and aesthetic values and natural systems; or

c. Affect renewable resource lands in which such operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products, and such lands to include aquifers and aquifer recharge areas; or

d. Affect natural hazard lands in which such operations could substantially endanger life and property, such lands to include areas subject to frequent flooding and areas of unstable geology.

(4) To comply with this section, the regulatory authority, which is the state agency responsible for surface mining lands review, must develop a process which includes:

a. A data base and an inventory system which will permit proper evaluation of the capacity of different land areas of the state to support and permit reclamation of surface coal mining operations;

b. A method or methods for implementing land use planning decisions concerning surface coal mining operations; and

c. Proper notice, opportunities for public participation, including a public hearing prior to making any designation or redesignation, pursuant to this section.

(5) Determinations of the unsuitability of land for surface coal mining, as provided for in this section, shall be integrated as closely as possible with present and future land use planning and regulation processes at the federal, state, and local levels.

(6) The requirements of this section shall not apply to lands on which surface coal mining operations are being conducted on August 3, 1977, or under a permit issued pursuant to this article, or where substantial legal and financial commitments in such operation were in existence prior to January 4, 1977.

(b) Any person having an interest which is or may be adversely affected shall have the right to petition the regulatory authority to have an area designated as unsuitable for surface coal mining operations or to have such a designation terminated. Such a petition shall contain allegations of facts with supporting evidence which would tend to establish the allegations. Within ten months after receipt of the petition the regulatory authority shall hold a public hearing in the locality of the affected area, after appropriate notice and publication of the date, time, and location of such hearing. After a person having an interest which is or may be adversely affected has filed a petition and before the hearing, as required by this subsection, any person may intervene by filing allegations of facts with supporting evidence which would tend to establish the allegations. Within 60 days after such hearing, the regulatory authority shall issue and furnish to the petitioner and any other party to the hearing, a written decision regarding the petition, and the reasons therefor. In the event that all the petitioners stipulate agreement prior to the requested hearing, and withdraw their request, such hearing need not be held.

(c) Prior to designating any land areas as unsuitable for surface coal mining operations, the regulatory authority shall prepare a detailed statement on (i) the potential coal resources of the area, (ii) the demand for coal resources, and (iii) the impact of such designation on the environment, the economy, and the supply of coal.

(d) Within 30 days of the final decision of the regulatory authority, any party to the proceedings before the regulatory authority may petition the commission to review the decision. Upon request, the commission shall hold a public hearing after appropriate notice in the manner specified in Section 9-16-79 of this article at such location as the commission deems appropriate. At the hearing, any person may appear and be heard on the record. Documentary or other evidence may be received for inclusion in the record. Within 30 days of the hearing, the commission shall issue a written decision affirming or reversing the decision of the regulatory authority or referring the decision back to the regulatory authority for further specific inquiry.

(e) After the enactment of this article and subject to valid existing rights no surface coal mining operations except those which exist on the date of enactment of this article shall be permitted:

(1) On any lands within the boundaries of units of the National Park System, the National Wildlife Refuge Systems, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act, National Recreation Areas designated by act of Congress; and any state park;

(2) On any federal lands within the boundaries of any national forest; provided, however, that surface coal mining operations may be permitted on such lands if the Secretary of Interior finds that there are no significant recreational, timber, economic, or other values which may be incompatible with such surface mining operations and surface operations and impacts are incident to an underground coal mine;

(3) Which will adversely affect any publicly owned park or places included in the National Register of Historic Sites unless approved jointly by the regulatory authority and the federal, state, or local agency with jurisdiction over the park or the historic site;

(4) Within 100 feet of the outside right-of-way line of any public road, except where mine access roads or haulage roads join such right-of-way line and except that the regulatory authority may permit such roads to be relocated or the area affected to lie within 100 feet of such road, if after public notice and opportunity for public hearing in the locality a written finding is made that the interests of the public and the landowners affected thereby will be protected; or

(5) Within 300 feet from any occupied dwelling, unless waived by the owner thereof, nor within 300 feet of any public building, school, church, community, or institutional building, public park, or within 100 feet of a cemetery;

(6) Within 1,000 feet horizontally of the mean high water level of Lewis Smith Lake (which mean high water level shall be a topographic contour line corresponding to the spillway elevation of the Lewis Smith Lake Dam); 1,000 feet horizontally of the rim of Little River Canyon; 1,000 feet horizontally on either side of the Little River and the east, middle and west forks of the Little River.

(Acts 1981, No. 81-435, p. 682, §28.)