(1) Upon the basis of a complete
permit application, including a reclamation plan, or revision or renewal thereof, as
required by this article, including public notification and opportunity for public
hearing as required by sections 34-33-118 and 34-33-119, the office shall process
the permit application and issue a proposed decision granting or denying the
permit, in whole or in part, or requiring modifications to the permit application
within the time periods provided for in sections 34-33-118 and 34-33-119, and the
office shall notify the applicant in writing of the proposed decision. The applicant
for a permit or for a revision of a permit shall have the burden of establishing that
such application is in compliance with all the requirements of this article. Within ten
days after issuing its proposed decision granting or denying a permit, the office
shall file a notice with the board of county commissioners of the county in which the
area of land to be affected is located stating the proposed decision issued and
describing the location of the affected land.
(2) No application for a permit or for a revision of an existing permit shall be
approved unless the application affirmatively demonstrates and the office or board
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 decision and made
available to the applicant, that:
(a) The permit application is accurate and contains all information required
under this article and regulations promulgated thereunder and that all the
requirements of this article have been complied with;
(b) The applicant has demonstrated that reclamation as required by this
article can be accomplished under the reclamation plan contained in the permit
application;
(c) The assessment of the probable cumulative impact of all anticipated
mining in the area on the hydrologic balance specified in section 34-33-110 (2)(l)
has been made by the office and the proposed operation thereof has been designed
to prevent material damage to hydrologic balance outside the permit area;
(d) Granting the permit will not conflict with any designation decision issued
pursuant to section 34-33-126 or pursuant to section 522 of the federal Surface
Mining Control and Reclamation Act of 1977, as amended, Pub.L. 95-87, nor is the
area proposed to be mined within an area under study for unsuitability designation
in an administrative proceeding commenced pursuant to section 34-33-126 or
section 522 of said Pub.L. 95-87;
(e) (I) The proposed surface coal mining operations would:
(A) Not interrupt, discontinue, or preclude farming on alluvial valley floors
that are irrigated or naturally subirrigated, excluding undeveloped range lands
which are not significant to farming on said alluvial valley floors and those lands
upon which the board finds that the farming which will be interrupted, discontinued,
or precluded is of such small acreage as to be of negligible impact on said land's
agricultural production; or
(B) Not materially damage the quantity or quality of surface water or
groundwater systems that supply the alluvial valley floors described in sub-subparagraph (A) of this subparagraph (I).
(II) The requirements of subparagraph (I) of this paragraph (e) shall not
affect those surface coal mining operations which, in the year preceding August 3,
1977, either produced coal in commercial quantities and were located within or
adjacent to alluvial valley floors or had obtained permit approval to conduct surface
coal mining operations within said alluvial valley floors.
(f) In cases where the applicant proposes to extract coal by surface methods
and where the private mineral estate has been severed from the private surface
estate, the applicant has submitted to the office:
(I) The written consent of the surface owner to the extraction of coal by
surface coal mining; or
(II) A conveyance that expressly grants or reserves the right to extract the
coal by surface coal mining, but, if the conveyance does not expressly grant the
right to extract coal by surface coal mining, the surface-subsurface legal
relationship shall be determined in accordance with state law; except that nothing
in this article shall be construed to authorize the board to adjudicate property rights
disputes;
(g) Subject to valid rights existing as of August 3, 1977, and with the further
exception of those surface coal mining operations which were in existence on
August 3, 1977, the application:
(I) Does not include 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 said act, and national recreation areas
designated by act of the United States congress;
(II) Does not include any federal lands within the boundaries of any national
forest; except that surface coal mining operations may be permitted on such lands
if the secretary finds that there are no significant recreational, timber, economic, or
other values which may be incompatible with such surface mining operations, and:
(A) Surface operations and impacts are incident to an underground coal
mine; or
(B) Where the secretary of the United States department of agriculture
determines, with respect to lands in national forests which do not have significant
forest cover, that surface mining is in compliance with the Multiple-Use Sustained-Yield Act of 1960, as amended, the Federal Coal Leasing Amendments Act of
1975, as amended, the National Forest Management Act of 1976, as amended,
and the provisions of this article;
(III) Will not adversely affect any publicly owned park or place included in
the national register of historic sites unless approved jointly by the office and the
federal, state, or local agency with jurisdiction over the park or the historic site;
(IV) Does not include lands within one hundred 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; except that the office may permit such roads to be relocated
or the area affected to lie within one hundred 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; and
(V) Does not include lands within three hundred feet of any occupied
dwelling, unless waived by the owner thereof, nor within three hundred feet of any
public building or school, church, community, or institutional building or any public
park, nor within one hundred feet of a cemetery.
(3) The applicant shall file with his permit application a schedule listing any
and all notices of violations of this article and any applicable law of the United
States or of this state, or any applicable rule or regulation of any department or
agency of the United States, other states, and this state, pertaining to air or water
environmental protection received by the applicant in connection with any surface
coal mining operations 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.
When the schedule or other information available to the board or office 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
(3), 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 board, department, or agency which has jurisdiction over such
violation, and no permit shall be issued to an applicant after a finding by the board,
after opportunity for hearing, that the applicant, or the operator specified in the
application, controls or has controlled such surface coal mining operations with a
demonstrated pattern of willful violations of this article of such nature and duration
and with such resulting irreparable damage to the environment as to indicate an
intent not to comply with the provisions of this article.
(4) (a) In addition to finding the application in compliance with the provisions
of subsection (2) of this section, if the surface area proposed to be affected by the
operation contains prime farmland pursuant to section 34-33-110 (2)(q), the office
shall, after consultation with the secretary of the United States department of
agriculture, and pursuant to regulations issued by the secretary of the United
States department of the interior with the concurrence of the secretary of the
United States department of agriculture, grant a permit to mine on prime farmland
if the board or office 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 farmland in the surrounding area under
equivalent levels of management and that the operator can meet the soil
reconstruction standards in section 34-33-120 (2)(g). Except as provided in
subsection (2) of this section, the requirements of this paragraph (a) shall apply to
all permits issued on and after August 3, 1977.
(b) Nothing in this subsection (4) shall apply to any permit issued prior to
August 3, 1977, or to any revisions or renewals thereof, or to any existing surface
coal mining and reclamation operations for which a permit was issued prior to
August 3, 1977.