§ 35-11-406 — Application for permit; generally; denial; limitations

Wyoming § 35-11-406

• Jurisdiction: Wyoming
• Title 35: Public Health and Safety
• Ch. 11: ENVIRONMENTAL QUALITY
• Art. 4: LAND QUALITY

Text

(a) Applications for a mining permit shall be made in
writing to the administrator and shall contain:
(i) The name and address of the applicant, and, if
the applicant is a partnership, association, or corporation, the
names and addresses of all managers, partners and executives
directly responsible for operations in this state;
(ii) A sworn statement stating that the applicant has
the right and power by legal estate owned to mine from the land
for which the permit is desired;
(iii) A sworn statement that the applicant has not
forfeited a bond posted for reclamation purposes and that all
the statements contained in the permit application are true and
correct to the best knowledge of the applicant;
(iv) The names and last known addresses of the owners
of record of the surface and mineral rights on the land to be
covered by the proposed permit;
(v) The names and last known addresses of the owners
of record of the surface rights of the lands immediately
adjacent to the proposed permit area and for surface coal mining
operations, the names and last known addresses of coal ownership
immediately adjacent to the permit area;
(vi) An identification of the land to be included in
the permit area to include:
(A) The location of the lands by legal
subdivision, section, township, range, county, and municipal
corporation, if any;
(B) The name, if any, by which such lands or any
part thereof are known;
(C) The approximate number of acres to be
affected, including the total number of acres in the area
covered by the permit application;
(D) The nearest town, village, or city.
(vii) A general description of the land which shall
include as nearly as possible its vegetative cover, the annual
rainfall, the general directions and average velocities of the
winds, indigenous wildlife, its past and present uses, its
present surface waters, and adjudicated water rights and their
immediate drainage areas and uses, and, if known, the nature and
depth of the overburden, topsoil, subsoil, mineral seams or
other deposits and any subsurface waters known to exist above
the deepest projected depth of the mining operation;
(viii) A United States Geological Survey topographic
map, if available, of the permit area;
(ix) A map based upon public records showing the
boundaries of the land to be affected, its surrounding immediate
drainage area, the location and names, where known, of all
roads, railroads, public or private rights-of-way and easements,
utility lines, lakes, streams, creeks, springs, and other
surface water courses, oil wells, gas wells, water wells, and
the probable limits of underground mines and surface mines,
whether active or inactive, on or immediately adjacent to the
land to be affected. The map shall also show:
(A) The names, last known addresses and boundary
lines of the present surface landowners and occupants on the
adjacent land to be affected;
(B) The location, ownership, and uses of all
buildings on, or on lands adjacent to, the land to be affected;
(C) An outline of all areas previously disturbed
by underground mining or that will be affected by future
underground mining as a guide to potential subsidence problems;
(D) Any political boundaries of special
districts on or near the land to be affected.
(x) The mineral or minerals to be mined;
(xi) The estimated dates of commencement and
termination of the proposed permit;
(xii) A minimum fee of two hundred dollars ($200.00)
plus ten dollars ($10.00) for each acre in the requested permit,
but the maximum fee for any single permit shall not exceed two
thousand dollars ($2,000.00). The permit is amendable, excepting
permits for surface coal mining operations, without public
notice or hearing if the area sought to be included by amendment
does not exceed twenty percent (20%) of the total permit
acreage, is contiguous to the permit area, and if the operator
includes all of the information necessary in his application to
amend that is required in this section including a mining and
reclamation plan acceptable to the administrator. The fee for a
permit amendment shall be two hundred dollars ($200.00) plus ten
dollars ($10.00) for each acre not to exceed two thousand
dollars ($2,000.00);
(xiii) A certificate issued by an insurance company
authorized to do business in the United States certifying that
the applicant has a public liability insurance policy in force
for the surface mining and reclamation operations for which this
permit is sought, or evidence that the applicant has satisfied
other state or federal self-insurance requirements. This policy
shall provide for personal injury and property damage protection
in an amount adequate to compensate any persons damaged as a
result of surface coal mining and reclamation operations
including use of explosives and entitled to compensation under
the applicable provisions of state law. This policy shall be
maintained in full force and effect during the terms of the
permit or any renewal, including the length of all reclamation
operations;
(xiv) For surface coal mining permit applications, a
schedule listing all notices of violation which resulted in
enforcement action of this act, 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 (3) year period
prior to the date of application;
(xv) Such other information as the administrator
deems necessary or as good faith compliance with the provisions
of this act require.
(b) The application shall include a mining plan and
reclamation plan dealing with the extent to which the mining
operation will disturb or change the lands to be affected, the
proposed future use or uses and the plan whereby the operator
will reclaim the affected lands to the proposed future use or
uses. The mining plan and reclamation plan shall be consistent
with the objectives and purposes of this act and of the rules
and regulations promulgated. The mining plan and reclamation
plan shall include the following:
(i) A statement of the present and proposed use of
the land after reclamation;
(ii) Plans for surface gradient to a contour suitable
for proposed use after reclamation is completed and proposed
method of accomplishment;
(iii) Type of vegetation and manner of proposed
revegetation or other surface treatment of affected area;
(iv) Method of disposal of buildings and structures
erected during the operation;
(v) One (1) or more maps as may be required by the
administrator of reclamation and mining operators on an
appropriate scale showing location and extent of the proposed
affected lands, together with the location of any public
highways, dwelling, surface drainage area, and all utility and
other easements existing on the affected lands. The map shall
also show the location of all proposed pits, spoil banks, haul
roads, railroads, topsoil conservation areas, buildings, refuse
or waste areas, shipping areas including conveyors, and shall
further set forth the drainage plan on, below, above and away
from the affected land including subsurface water above the
mineral seam to be removed; and shall further show the location
of all waste water impoundments, any settling ponds, and other
water treatment facilities, constructed drainways and natural
drainways, and the surface bodies of water receiving this
discharge. In lieu of an original map, a reproduction of a
United States Geological Survey topographic map or aerial
photograph is acceptable if the required information is platted.
The map of the affected lands shall be accompanied by a typical
cross section, showing the elevations of the surface, top and
bottom of the mineral seam. Additional cross sections at
appropriate intervals may be required by the administrator. The
cross sections shall show surface elevations for a distance
beyond the outlines of the affected areas as may be determined
by the administrator;
(vi) An estimate of the total cost of reclaiming the
affected lands as outlined in the written proposal computed in
accordance with established engineering principles;
(vii) A contour map on the same scale as the
reclamation map showing to the extent possible the proposed
approximate contours of the affected area after completion of
proposed reclamation;
(viii) The proposed method of separating topsoil,
subsoil, and spoil piled, protecting and conserving them from
wind and water erosion before reclamation begins by planting a
quick growing cover or other acceptable methods, and the
proposed method of preserving topsoil free of acid or toxic
materials, as well as the manner in which topsoil shall be
replaced. If topsoil is virtually nonexistent or is not capable
of sustaining vegetation, then the method of removing,
segregating and preserving in a like manner subsoil which is
better able to support vegetation. Spoil piles are to be kept
separate and apart from topsoil. All piles are to be clearly
marked so as to avoid confusion. If conditions do not permit the
separation, conservation and replacement of topsoil or subsoil,
a full explanation of such conditions shall be given and
alternate procedures proposed;
(ix) A plan for insuring that all acid forming, or
toxic materials, or materials constituting a fire, health or
safety hazard uncovered during or created by the mining process
are promptly treated or disposed of during the mining process in
a manner designed to prevent pollution of surface or subsurface
water or threats to human or animal health and safety. Such
method may include, but not be limited to covering, burying,
impounding or otherwise containing or disposing of the acid,
toxic, radioactive or otherwise dangerous material;
(x) For a surface mining operation granted a new
permit after July 1, 1973, and prior to March 1, 1975, except
for an operation legally operating under the 1969 Open Cut Land
Reclamation Act, an instrument of consent from the surface
landowner, if different from the mineral owner, to the mining
plan and reclamation plan. If consent cannot be obtained as to
either or both, the applicant may request a hearing before the
environmental quality council. The council shall issue an order
in lieu of consent if it finds:
(A) That the mining plan and the reclamation
plan have been submitted to the surface owner for approval;
(B) That the mining plan and the reclamation
plan is detailed so as to illustrate the full proposed surface
use including proposed routes of egress and ingress;
(C) That the use does not substantially prohibit
the operations of the surface owner;
(D) The proposed plan reclaims the surface to
its approved future use, in segments if circumstances permit, as
soon as feasibly possible.
(xi) For an application filed after March 1, 1975, an
instrument of consent from the resident or agricultural
landowner, if different from the owner of the mineral estate,
granting the applicant permission to enter and commence surface
mining operation, and also written approval of the applicant's
mining plan and reclamation plan. As used in this paragraph
"resident or agricultural landowner" means a natural person or
persons who, or a corporation of which the majority stockholder
or stockholders:
(A) Hold legal or equitable title to the land
surface directly or through stockholdings, such title having
been acquired prior to January 1, 1970, or having been acquired
through descent, inheritance or by gift or conveyance from a
member of the immediate family of such owner; and
(B) Have their principal place of residence on
the land, or personally conduct farming or ranching operations
upon a farm or ranch unit to be affected by the surface mining
operation, or receive directly a significant portion of their
income from such farming or ranching operations.
(xii) For any application filed after March 1, 1975,
including any lands privately owned but not covered by the
provisions of paragraph (b)(xi) of this section an instrument of
consent from the surface landowner, if different from the owner
of the mineral estate, to the mining plan and reclamation plan.
If consent cannot be obtained as to the mining plan or
reclamation plan or both, the applicant may request a hearing
before the environmental quality council. The council shall
issue an order in lieu of consent if it finds:
(A) That the mining plan and the reclamation
plan have been submitted to the surface owner for approval;
(B) That the mining plan and the reclamation
plan is detailed so as to illustrate the full proposed surface
use including proposed routes of egress and ingress;
(C) That the use does not substantially prohibit
the operations of the surface owner;
(D) The proposed plan reclaims the surface to
its approved future use, in segments if circumstances permit, as
soon as feasibly possible;
(E) For surface coal mining operations, that the
applicant has the legal authority to extract coal by surface
mining methods.
(xiii) The procedures proposed to avoid constituting
a public nuisance, endangering the public safety, human or
animal life, property, wildlife and plant life in or adjacent to
the permit area including a program of fencing all stockpiles,
roadways, pits and refuse or waste areas to protect the surface
owner's ongoing operations;
(xiv) The methods of diverting surface water around
the affected lands where necessary to effectively control
pollution or unnecessary erosion;
(xv) The methods of reclamation for effective control
of erosion, siltation, and pollution of affected stream channels
and stream banks by the mining operations;
(xvi) A statement of the source, quality and quantity
of water, if any, to be used in the mining and reclamation
operations;
(xvii) A blasting plan which shall outline the
procedures and standards by which the operator of a surface coal
mine will meet the provisions of W.S. 35-11-415(b)(xi);
(xviii) For surface coal mining operations, a plan to
minimize the disturbances to the prevailing hydrologic balance
at the minesite and in associated offsite areas and to the
quality and quantity of water in surface and ground water
systems both during and after mining operations and during
reclamation. This paragraph does not alter the authority
granted under any other section of this act with respect to
requirements for maintaining the hydrologic balance in the
minesite, or associated offsite areas, of other mining
operations;
(xix) A projected timetable for accomplishment of the
reclamation plan;
(xx) For surface coal mining operations, a request
for approval of any alternatives which may be proposed to the
provisions of the regulations promulgated by the council. For
each alternative provision the applicant shall:
(A) Identify the provision in the regulations
promulgated by the council for which the alternative is
requested;
(B) Describe the alternative proposed and
provide an explanation including the submission of data,
analysis and information in order to demonstrate that the
alternative is in accordance with the applicable provisions of
the act and consistent with the regulations promulgated by the
council. In addition, the applicant shall demonstrate that the
proposed alternative is necessary because of local requirements
or local environmental or agricultural conditions;
(C) Paragraph (xx) of this subsection shall not
take effect until approved by the secretary of the interior as
an amendment to a state program approved pursuant to section 503
of P.L. 95-87.
(xxi) A blasting plan that shall outline the
procedures and standards by which the operator of a noncoal
surface mine will comply with the standards specified and the
rules promulgated under W.S. 35-11-402(d).
(c) The applicant may have the local conservation district
assist in preparation of, provide data for, perform research,
review and comment upon the reclamation. For those lands in a
surface coal mining permit application which a reconnaissance
inspection suggests may be prime farm lands, a soil survey shall
be made or obtained according to standards established by the
United States secretary of agriculture in order to confirm the
exact location of these prime farm lands, if any. If the United
States secretary of agriculture or his representative has
determined that the state, area or exact location within the
permit area does not contain prime farm lands this subsection is
inapplicable.
(d) The applicant shall file a copy of his application for
public inspection at the office of the administrator and in the
offices of the county clerks of the counties in which the
proposed permit area is located. Those parts of the application
which contain confidential trade secrets whose disclosure would
be harmful to the applicant are exempt from these filings.
(e) The administrator shall notify the applicant within
sixty (60) days of submission of the application whether or not
it is complete. If the administrator deems the application
incomplete, he shall so advise and state in writing to the
applicant the information required. All items not specified as
incomplete at the end of the first sixty (60) day period shall
be deemed complete for the purposes of this subsection.
(f) If the applicant resubmits an application or further
information, the administrator shall review the application or
additional information within sixty (60) days of each submission
and advise the applicant in writing if the application or
additional information is complete.
(g) After the application is determined complete, the
applicant shall publish a notice of the filing of the
application once each week for two (2) consecutive weeks in a
newspaper of general circulation in the locality of the proposed
mining site.
(h) The administrator shall review the application and
unless the applicant requests a delay advise the applicant in
writing within one hundred fifty (150) days from the date of
determining the application is complete, that it is suitable for
publication under subsection (j) of this section, that the
application is deficient or that the application is denied. All
reasons for deficiency or denial shall be stated in writing to
the applicant. All items not specified as being deficient at
the end of the first one hundred fifty (150) day period shall be
deemed complete for the purposes of this subsection. After this
period, for noncoal permits, the administrator shall not raise
any item not previously specified as being deficient unless the
applicant in subsequent revisions significantly modifies the
application. If the applicant submits additional information in
response to any deficiency notice, the administrator shall
review such additional information within thirty (30) days of
submission and advise the applicant in writing if the
application is suitable for publication under subsection (j) of
this section, that the application is still deficient or that
the application is denied.
(j) The applicant shall cause notice of the application to
be published in a newspaper of general circulation in the
locality of the proposed mining site once a week for four (4)
consecutive weeks commencing within fifteen (15) days after
being notified by the administrator. The notice shall contain
information regarding the identity of the applicant, the
location of the proposed operation, the proposed dates of
commencement and completion of the operation, the proposed
future use of the affected land, the location at which
information about the application may be obtained, and the
location and final date for filing objections to the
application. For initial applications or additions of new lands
the applicant shall also mail a copy of the notice within five
(5) days after first publication to all surface owners of record
of the land within the permit area, to surface owners of record
of immediately adjacent lands, and to any surface owners within
one-half (1/2) mile of the proposed mining site. The applicant
shall mail a copy of the application mining plan map within five
(5) days after first publication to the Wyoming oil and gas
commission. Proof of notice and sworn statement of mailing shall
be attached to and become part of the application.
(k) Repealed by Laws 2020, ch. 35, § 2.
(m) The requested permit, other than a surface coal mining
permit, shall be granted if the applicant demonstrates that the
application complies with the requirements of this act and all
applicable federal and state laws. The director shall not deny a
permit except for one (1) or more of the following reasons:
(i) The application is incomplete;
(ii) The applicant has not properly paid the required
fee;
(iii) Any part of the proposed operation, reclamation
program, or the proposed future use is contrary to the law or
policy of this state, or the United States;
(iv) The proposed mining operation would irreparably
harm, destroy, or materially impair any area that has been
designated by the council a rare or uncommon area and having
particular historical, archaeological, wildlife, surface
geological, botanical or scenic value;
(v) If the proposed mining operation will cause
pollution of any waters in violation of the laws of this state
or of the federal government;
(vi) If the applicant has had any other permit or
license issued hereunder revoked, or any bond posted to comply
with this act forfeited;
(vii) The proposed operation constitutes a public
nuisance or endangers the public health and safety;
(viii) The affected land lies within three hundred
(300) feet of any existing occupied dwelling, home, public
building, school, church, community or institutional building,
park or cemetery, unless the landowner's consent has been
obtained. The provisions of this subsection shall not apply to
operations conducted under an approved permit issued by the
state land commissioner in compliance with the "Open Cut Land
Reclamation Act of 1969";
(ix) The operator is unable to produce the bonds
required;
(x) Repealed by Laws 2020, ch. 35, § 2.
(xi) If information in the application or information
obtained through the director's investigation shows that
reclamation cannot be accomplished consistent with the purposes
and provisions of this act;
(xii) Repealed by Laws 1980, ch. 64, § 3.
(xiii) Repealed by Laws 1980, ch. 64, § 3.
(xiv) Repealed by Laws 1980, ch. 64, § 3.
(xv) If the applicant has been and continues to be in
violation of the provisions of this act;
(xvi) No permit shall be denied on the basis that the
applicant has been in actual violation of the provisions of this
act if the violation has been corrected or discontinued.
(n) The applicant for a surface coal mining permit has the
burden of establishing that his application is in compliance
with this act and all applicable state laws. No surface coal
mining permit shall be approved unless the applicant
affirmatively demonstrates and the administrator finds in
writing:
(i) The application is accurate and complete;
(ii) The reclamation plan can accomplish reclamation
as required by this act;
(iii) The proposed operation has been designed to
prevent material damage to the hydrologic balance outside the
permit area;
(iv) The area proposed to be mined is not included
within an area designated unsuitable for surface coal mining
pursuant to W.S. 35-11-425, within an area where mining is
prohibited pursuant to section 522(e) of P.L. 95-87, or within
an area under review for this designation under an
administrative proceeding, unless in such an area as to which an
administrative proceeding has commenced pursuant to W.S.
35-11-425, 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;
(v) The proposed operation would:
(A) Not interrupt, discontinue, or preclude
farming on alluvial valley floors that are irrigated or
naturally subirrigated, but, excluding undeveloped range lands
which are not significant to farming on said alluvial valley
floors and those lands as to which the administrator finds that
if the farming that will be interrupted, discontinued or
precluded is of such small acreage as to be of negligible impact
on the farm's agricultural production; or
(B) Not materially damage the quantity or
quality of water in surface or underground water systems that
supply these alluvial valley floors. Paragraph (n)(v) of this
section shall not affect those surface coal mining operations
which in the year preceding August 3, 1977, produced coal in
commercial quantities, and were located within or adjacent to
alluvial valley floors or had obtained specific permit approval
by the administrator to conduct surface coal mining operations
within said alluvial valley floors. If coal deposits are
precluded from being mined by this paragraph, the administrator
shall certify to the secretary of the interior that the coal
owner or lessee may be eligible for participation in a coal
exchange program pursuant to section 510(b)(5) of P.L. 95-87.
(vi) If the area proposed to be surface coal mined
contains prime farmland, 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 can meet the soil reconstruction standards of
this act and the regulations promulgated pursuant thereto;
(vii) The schedule provided in paragraph (a)(xiv) of
this section indicates that all surface coal mining operations
owned or controlled by the applicant are currently in compliance
with this act and all laws referred to in paragraph (a)(xiv) of
this section or that any violation has been or is in the process
of being corrected to the satisfaction of the authority,
department or agency which has jurisdiction over the violation.
(o) No permit shall be issued to an applicant after a
finding by the director or council, after opportunity for
hearing, that the applicant or operator specified in the
application controls or has controlled mining operations with a
demonstrated pattern of willful violations of such nature and
duration with such resulting irreparable harm to the environment
as to indicate reckless, knowing or intentional conduct.
(p) The following objection procedure shall apply to
applications for mining permits for coal:
(i) Any interested person has the right to file
written objections to the application with the director within
thirty (30) days after the last publication of the notice
required in subsection (j) of this section. The director shall
within five (5) business days forward any objection to the
applicant and shall make objections available to the public;
(ii) If an informal conference is requested by the
applicant or objector, the director shall hold the informal
conference in the locality of the proposed operation within
thirty (30) days after the final date for filing objections
under paragraph (i) of this subsection unless a different period
is stipulated to by the parties. The director shall publish
notice of the time, date and location of the informal conference
in a newspaper of general circulation in the locality of the
proposed operation at least two (2) weeks before the date of the
informal conference;
(iii) The director shall render a decision on the
application within thirty (30) days after the deadline to file
objections provided in paragraph (i) of this subsection if no
informal conference is requested. If the director holds an
informal conference, all parties to the conference shall be
furnished with a copy of the final written decision of the
director issuing or denying the permit within sixty (60) days of
the conference. The applicant or objector may appeal the
director's written decision after an informal conference to the
council. If a hearing is held, the hearing shall be conducted
as a contested case in accordance with the Wyoming
Administrative Procedure Act and the council shall issue
findings of fact and a decision on the application within sixty
(60) days after the final hearing;
(iv) Notwithstanding W.S. 35-11-1001, only the
applicant or an objector who participated in a hearing before
the council may obtain judicial review of the council's
decision.
(q) The following objection procedure shall apply for any
other mining permit application:
(i) Any interested person has the right to file
written objections to the administrator within thirty (30) days
after the last publication of the notice required in subsection
(j) of this section. The administrator shall within five (5)
business days forward any objection to the applicant and shall
make objections available to the public;
(ii) The administrator shall review all objections
and shall forward a report and recommendations on the objections
to the director. The director shall issue to the applicant and
to any objector a final written decision issuing or denying the
permit within thirty (30) days after the deadline to file
objections provided in paragraph (i) of this subsection;
(iii) The applicant or objector may appeal the
director's written decision to the council. If a hearing is
held, the council shall issue findings of fact and a decision
within sixty (60) days after the final hearing;
(iv) A person who does not object as provided under
this subsection has no right of appeal.