§ 38-14.1-21 — Permit approval or denial standards

North Dakota § 38-14.1-21

• Jurisdiction: North Dakota
• Title 38: Mining and Gas and Oil Production
• Ch. 38-14.1: Surface Mining and Reclamation Operations

Text

1. Upon the basis of a complete mining application and reclamation plan or a revision
thereof as required by this chapter and pursuant to regulations established under this
chapter, the commission shall grant, require modification of, or deny the application for
a permit and notify the applicant in writing within a reasonable time as established by
regulation if no informal conference is held and if an informal conference is held, within
thirty days of such conference. The applicant for a permit, or a revision of a permit, has
the burden of establishing that the application is in compliance with all the
requirements of this chapter. Within ten days after the granting of a permit, the
commission shall notify the appropriate local governmental officials in the county 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.
2. The commission's approval or modification of the permit or permit revision application
must include consideration of the advice and technical assistance of the state
historical society, the department of environmental quality, the soil conservation
committee, the game and fish department, the state forester, the state geologist, and
the department of water resources, and may include those state agencies versed in
soils, agronomy, ecology, geology, and hydrology, and other agencies and individuals
experienced in reclaiming surface mined lands.
3. No permit or revision application may be approved unless the applicant affirmatively
demonstrates and the commission 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 all the following
requirements are met:
a. The permit application is accurate and complete and all the requirements of this
chapter and of regulations promulgated by the commission have been complied
with.
b. The permit applicant has demonstrated that reclamation as required by this
chapter and by regulations promulgated by the commission 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 subdivision o of subsection 1 of
section 38-14.1-14 has been made by the commission and the proposed
operation thereof has been designed to prevent material damage to the
hydrologic balance outside the permit area.
d. The area proposed to be mined is not included within an area designated
unsuitable for all or certain types of surface coal mining operations pursuant to
section 38-14.1-05 or is not within an area under study for such designation in an
administrative proceeding, provided the petition to have an area so designated
has been filed prior to or within the time period specified in subsection 1 of
section 38-14.1-18, or unless in such an area as to which an administrative
proceeding has commenced, the permit applicant demonstrates that prior to
January 4, 1977, the permit applicant has made substantial legal and financial
commitments in relation to the operation for which the applicant is applying for a
permit.
e. The proposed surface coal mining operation, if located west of the one hundredth
meridian west longitude, would:
(1) Not interrupt, discontinue, or preclude farming on alluvial valley floors that
are irrigated or naturally subirrigated, but, excluding undeveloped
rangelands which are not significant to farming on said alluvial valley floors
and those lands as to which the commission finds that if the farming that will
be interrupted, discontinued, or precluded is of such small acreage
[hectarage] as to be of negligible impact on the farm's agricultural
production; or
(2) Not materially damage the quantity or quality of water in surface or
underground water systems that supply these alluvial valley floors. This
subdivision does not affect those surface coal mining operations which on
July 1, 1979, produce coal or commercial leonardite in commercial
quantities and are located within or adjacent to alluvial valley floors or have
obtained specific permit approval by the commission to conduct surface coal
mining operations within said alluvial valley floors.
f. When the mineral estate has been severed from the surface estate, the applicant
has complied with the requirements of chapter 38-18.
4. The commission may delete certain areas from a permit or revision application, reject
the application, require the permit applicant to amend the application or any part of
such application, including any mining plan, or require any combination of the
foregoing, if:
a. The commission finds that the overburden on any part of the area of land
described in the application for a permit is such that experience in the state of
North Dakota with a similar type of operation upon land with similar overburden
shows that substantial deposition of sediment in streambeds, landslides, water
pollution, or permanent destruction of land for agricultural purposes without
approved rehabilitation for other uses cannot feasibly be prevented.
b. The commission finds that the proposed surface coal mining operation will
constitute a hazard to a dwelling house, public building, school, church, cemetery,
commercial or institutional building, public road, stream, lake, or other public or
private property other than property subject to a coal or commercial leonardite
lease.
Whenever the commission finds that ongoing surface mining operations are causing or
are likely to cause any of the conditions set forth in this subsection, it may make such
changes in the permit as it may deem necessary to avoid such described conditions.
5. When information available to the commission indicates that any surface coal mining
operation owned or controlled by the permit applicant is currently in violation of this
chapter, the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87;
91 Stat. 445; 30 U.S.C. 1201 et seq.], or any law or rule of the United States or the
state of North Dakota, or of any department or agency of the United States or the state

of North Dakota, pertaining to air or water environmental protection, the permit may
not be issued until the permit applicant submits proof that such violation has been
corrected or is in the process of being corrected to the satisfaction of the regulatory
authority with jurisdiction over the violation.
6. In addition to finding the application in compliance with other requirements of this
section, if the area proposed to be mined contains prime farmland pursuant to
paragraph 3 of subdivision a of subsection 2 of section 38-14.1-14, the commission
shall, pursuant to regulations issued by the commission, grant a permit to mine on
prime farmland if the commission finds in writing that the permit applicant has the
technological capability to restore such mined area, within a reasonable time, to a level
of productivity equal to or greater than nonmined prime farmland in the surrounding
area under equivalent levels of management and can meet the soil reconstruction
standards in subsection 6 of section 38-14.1-24. Nothing in this chapter pertaining to
prime farmland applies to any permit issued prior to July 1, 1979, or to any revisions or
renewals thereof, or to any existing surface coal mining operations for which a permit
was issued prior to July 1, 1979.