Section 69-05.2-10-07 - Permit applications - Challenges to ownership or control listings and findings1. A person may challenge a listing or finding of ownership or control usingthe procedures detailed below if that person is: a. Listed in a permit application or in AVS as an owner or controllerof an entire surface coal mining operation, or any portion or aspectthereof;b. Found to be an owner or controller of an entire surface coalmining operation, or any portion or aspect thereof, under section 69-05.2-10-08 or 69-05.2-32-01: orc. An applicant or permittee affected by an ownership and controllisting or finding.2. In order to challenge an ownership and control listing or finding, a writtenexplanation must be submitted to the regulatory authority regarding thebasis of the challenge along with any evidence or explanatory materialsoutlined in subsection 7. If the challenge concerns a pending permitapplication, the written explanation must be submitted to the regulatoryauthority with jurisdiction over the application. If the challenge concernsthe applicant's ownership and control of a surface coal mining operationand the person is not currently seeking a permit, the written explanationmust be submitted to the regulatory authority with jurisdiction over thesurface coal mining operation.3. When a challenge concerns a violation under the jurisdiction of adifferent regulatory authority, the commission will consult the regulatoryauthority with jurisdiction over the violation and the AVS office to obtainadditional information.4. If the commission is responsible for deciding a challenge under thissection, it may reguest an investigation by the AVS office.5. At any time a person listed in AVS as an owner or controller of a surfacecoal mining operation may reguest an informal explanation from the AVSoffice as to the reason it is shown in the AVS in an ownership or controlcapacity.6. When a challenge is made to a listing of ownership and control, ora finding of ownership and control, the challenger shall prove by apreponderance of the evidence that the challenger either: a. Does not own or control the entire operation or relevant portion oraspect thereof: orb. Did not own or control the entire operation or relevant portion oraspect during the relevant time period.7. In order to meet the burden of proof in subsection 6. the challengershall present reliable, credible, and substantial evidence and anyexplanatory materials to the regulatory authority. A reguest to holdmaterials submitted under this section as a trade secret may be made to the commission following the procedures of 69-02-09.Acceptable materials include:a. Notarized affidavits containing specific facts concerning the dutiesthat were performed for the relevant operation, the beginning andending dates pertaining to ownership or control of the operation,and the nature and details of any transaction creating or severingownership or control of the operation in question.b. Certified copies of corporate minutes, stock ledgers, contracts,purchase and sale agreements, leases, correspondence, or otherrelevant company records.c. Certified copies of documents filed with or issued by any state,municipal, or federal government agency.d. An opinion of counsel, when supported by evidentiary materials,a statement by counsel that counsel is qualified to render theopinion, and a statement that counsel has personally and diligentlyinvestigated the facts of the matter.8. Within sixty days of receipt of an ownership and control listing or findingchallenge, the commission will review and investigate the evidence andexplanatory materials submitted and any other reasonable availableinformation bearing on the challenge and issue a written decision. Thedecision will state whether the challenger owns or controls the relevantsurface coal mining operation, or owned or controlled the operationduring the relevant time period. Decisions regarding the challenge willbe promptly provided to the challenger by certified mail, return receiptrequested. Service of the decision will be complete upon delivery andis not incomplete if acceptance of delivery is refused. Appeals of thewritten decision must be made by requesting a formal hearing underNorth Dakota Century Code section 38-14.1-30. The commission willalso post all decisions in AVS.9. Following the commission's written decision, or any formal hearingdecision or court reviewing such decision, the commission will reviewthe information in AVS to determine if it is consistent with the decision. Ifit is not, the commission will promptly inform the office of surface miningreclamation and enforcement and request that the AVS information berevised to reflect the decision.N.D. Admin Code 69-05.2-10-07
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-21, 38-14.1-22, 38-14.1-23
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