Okla. Admin. Code § 460:20-7-5

Current through Vol. 42, No. 7, December 16, 2024

Section 460:20-7-5 - Procedures

(a) Upon receipt of an administratively complete application for a permit for a surface coal mining operation and reclamation operation permit, or an administratively complete application for revision of the boundaries of a surface coal mining operation permit, the Department shall review the application to determine whether surface coal mining operations are limited or prohibited under Section 460:20-7-4 on lands which would be disturbed by the proposed operations.

(b)Rights determination.

(1) The Department shall reject any portion of the application that would locate surface coal mining operations on land protected under Section 460:20-7-4, unless:

(A) The site qualifies for the exception for existing operations under Section 20-7-4.1;

(B) A person has valid existing rights for the land, as determined under Section 460:20-7-5(h);

(C) The applicant obtains a waiver or exception from the prohibitions of Section 460:20-7-4 in accordance with 460:20-7-5(c) through 460:20-7-5(e); or

(D) For lands protected by Section 460:20-7-4(3), both the Department and the agency with jurisdiction over the publicly owned park or place in the National register of Historic Places jointly approve the proposed operation in accordance with Subsection (f) of this section.

(2) If the Department is unable to determine whether the proposed operation is located within the boundaries of any of the lands in Section 460:20-7-4(1) or closer than the limits provided in Sections 460:20-7-4(6) and (7), the Department shall transmit a copy of the relevant portions of the permit application to the appropriate Federal, State, or local government agency for a determination of clarification of the relevant boundaries or distances, with a notice to the appropriate agency that it has 30 days from receipt of the request in which to respond. The National Park Service or the U.S. Fish and Wildlife Service shall be notified of any request for a determination of valid existing rights pertaining to areas within the boundaries of areas under their jurisdiction and shall have 30 days in which to respond. The Department, upon request by the appropriate agency, shall grant an extension to the 30-day period of an additional 30 days. If no response is received within the 30-day period or within the extended period granted, the Department may make the necessary determination based on the information it has available.

(c) Where the proposed operation would include Federal lands within the boundaries of any national forest, and the applicant seeks a determination that mining is permissible under Section 460:20-7-4(2), the applicant shall request that OSM obtain the Secretarial findings required by Section 460:20-7-4(2). Before acting on the application, the Director of OSM shall ensure that the secretary's determination has been received and the findings required by Section 522(e)(2) of the Federal Act [ 30 U.S.C. 1272(e)(2) ] have been made.

(1) The applicant may submit a request to the Department for a determination before preparing and submitting an application for a permit or boundary revision. The applicant must explain how the proposed operation would not damage the values listed in the definition of "significant recreational, timber, economic, or other values incompatible with surface coal mining operations" in Section 460:20-7-3. The applicant must include a map andsufficient information about the nature of the proposed operation for the Secretary to make adequately documented findings. OSM may request the applicant provide any addition information that it determines is needed to make the required findings.

(2) When a proposed surface coal mining operation or proposed boundary revision for an existing surface coal mining operation includes Federal lands within a national forest, the Department may not issue the permit or approve the boundary revision beforethe Secretary makes the findings required by Section 460:20-7-4(2).

(d) Where the proposed mining operation is to be conducted within 100 feet, measured horizontally, of the outside right-of-way line of any public road (or where the applicant proposes to relocate or close any public road, the Department shall:

(1) Require the applicant to obtain the necessary approvals of the authority with jurisdiction over the public road;

(2) If a public hearing is requested, provide notice in a newspaper of general circulation in the affected locale of a public hearing at least 2 weeks before the hearing.

(3) Provide public comment period and opportunity for a public hearing, at which any member of the public may participate, in the locality of the proposed mining operations for the purpose of determining whether the interests of the public and affected landowners will be protected; and

(4) Make a written finding based upon information received from the public hearing within 30 days after completion the hearing, as to whether the interests of the public and affected landowners will be protected. If no hearing was held, the authority must make this finding within 30 days after the end of the public comment period.

(5) Section 460:20-7-5(d) does not apply to:

(A) Lands for which a person has valid existing rights, as determined under Section 460:20-7-5(h).

(B) Lands within the scope of the exception for existing operations in Section 460:20-7-4.1.

(C) Access or haul roads that join a public road, as described in Section 460:20-7-4(4)(A).

(e) Where the surface coal mining operations would be conducted within 300 feet, measured horizontally, from any occupied dwelling. the permit applicant shall submit with the application a written waiver from the owner of the dwelling, consenting to the operations within a closer distance of the dwelling as specified in the waiver. The waiver must be knowingly made and separate from a lease or deed unless the lease or deed contains an explicate waiver. The waiver must clearly state that the owner and signator had the legal right to deny mining and knowingly waived that right.

(1) If the permit applicant obtained a valid waiver before August 3, 1977, from the owner of an occupied dwelling to conduct operations within 300 feet of the dwelling, the permit applicant need not submit a new waiver.

(2) If the permit applicant obtains a valid waiver from the owner of an occupied dwelling, that waiver will remain effective against subsequent purchasers who had actual or constructive knowledge of the existing waiver at the time of purchase. A subsequent purchaser will be deemed to have constructive knowledge if the waiver has been properly filed in public property records pursuant to State laws or if surface coal mining operations have entered the 300-foot zone before the date of purchase.

(3) Section 460:20-7-5(e) does not apply to:

(A) Lands for which a person has valid existing rights, as determined under Section 460:20-7-5(h).

(B) Lands within the scope of the exception for existing operations in Section 460:20-7-4.1.

(C) Access or haul roads that connect with an existing public road on the side of the public road opposite the dwelling, as provided in Section 460:20-7-4(5)(B).

(f)Adverse affects.

(1) Where the Department determines that the proposed surface coal mining operation will adversely affect any publicly owned park or any place included on the National Register of Historic Places, the Department shall transmit to the Federal, State, or local agency with jurisdiction over the park or place, a copy of applicable parts of the permit application, together with a request for that agency's approval or disapproval of the operation, and a notice to that agency that it has 30 days from receipt of the request within which to respond and that failure to interpose timely objection will constitute approval. The Department, upon request by the appropriate agency, may grant an extension to the 30-day period of an additional 30 days. Failure to interpose an objection within 30 days or the extended period granted shall constitute an approval of the proposed permit.

(2) A permit for the operation shall not be issued unless jointly approved by all affected agencies.

(3) Paragraphs (1) and (2) of 460:20-7-5(f) do not apply to:

(A) Lands for which a person has valid existing rights, as determined under Section 460:20-7-5(h).

(B) Lands within the scope of the exception for existing operations in Section 460:20-7-4.1.

(g) If the Department determines that the proposed surface coal mining operation is not prohibited under 45 O.S Section 783 and this Subchapter 7, it may nevertheless, pursuant to appropriate petitions, designate such lands as unsuitable for all or certain types of surface coal mining operations pursuant to Subchapter 9, or 11 of this Chapter.

(h) An applicant must request a valid existing rights determination from OSM for Federal lands protected under 460:20-7-4(1) and (2). An applicant must request a valid existing rights determination from the Department for non-Federal lands protected under 460:20-7-4(1) and for those features protected under 460:20-7-4(3) through (7). The Department must use the Federal definition of valid existing rights at 30 CFR Section 761.5 when making a determination for non-federal lands protected under 460:20-7-4(1) and the definition of valid existing rights at Section 460:20-7-3 when making a determination for those features protected under 460:20-7-4(3) through 460:20-7-4(7).

(1) An Applicant must request a valid existing rights determination from the appropriate agency under Subsection (h) of this Section if he or she intends to conduct surface coal mining operations on the basis of valid existing rights under Section 460:20-7-4 or wishes to confirm the right to do so. The applicant may submit this request before preparing and submitting an application for a permit or boundary revision for the land. If OSM is the appropriate agency, the applicant must request the determination in accordance with the requirements of the Federal regulations at 30 CFR 761.16. If the Department is the appropriate agency, the applicant must request the determination in accordance with the requirements of Subsection (h) of this Section.

(A) The applicant must provide a property rights demonstration under Paragraph (A) of the definition of valid existing rights in Section 460:20-7-3 if the request relies upon the good faith/all permits standard or the needed for and adjacent standard in Paragraph (B) of the definition of valid existing rights in Section 460:20-7-3. The demonstration must include the following items:

(i) A legal description of the land to which the request pertains.

(ii) Complete documentation of the character and extent of the applicant's current interests in the surface and mineral estate of the land to which the request pertains.

(iii) A complete chain of title for the surface and mineral estate of the land to which the request pertains.

(iv) A description of the nature and effect of each title instrument that forms the basis for the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities.

(v) A description of type and extent of surface coal mining operations that the applicant claims the right to conduct, including the method of mining, any mining-related surface activities and facilities, and an explanation of how those operations would be consistent with State property law.

(vi) Complete documentation of the nature and ownership, as of the date that the land came under the protection of 460:20-7-4 and 45 O.S. Section 783, of all property rights for the surface and mineral estates of the land to which the request pertains.

(vii) Names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains.

(viii) If the coal interests have been severed from other property interest, documentation that the owners of other property interests in the land to which the request pertains have been notified and provided reasonable opportunity to comment on the validity of the property right claims.

(ix) Any comments received in response to the notification provided under Paragraph (h)(1)(A)(viii) of this Section.

(B) If the request relies upon the good faith /all permits standard in Paragraph (B)(i) of the definition of valid existing rights in Section 460:20-7-3, the applicant must submit the information required underParagraph (h)(1)(A) of this Section. The applicant must also submit the following information about permits, licenses, and authorizations for surface coal mining operations on the land to which the request pertains:

(i) Approval and issuance dates and identification numbers for any permits, licences and authorizations that the applicant obtained or that a predecessor in interest obtained before the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783 .

(ii) Application dates and identification numbers for any permits, licences and authorizations that the applicant submitted or that a predecessor in interest submitted before the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783 .

(iii) An explanation of any other good faith effort that the applicant made or that a predecessor in interest made to obtain the necessary permits, licences and authorizations as of the date the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783 .

(C) If the request relies upon the needed for and adjacent standard in Paragraph (B)(ii) of the definition of valid existing rights in Section 460:20-7-3, the applicant must submit the information required under Paragraph (h)(A)(1) of this Section. In addition, the applicant must explain how and why the land is needed for and immediately adjacent to the operation upon which the request is based, including a demonstration that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783 .

(D) If the request relies upon one of the standards for roads in Paragraphs (C)(i) through (C)(iii) of the definition of valid existing rights in Section 460:20-7-3, the applicant must submit satisfactory documentation that:

(i) The road existed when the land upon which it is located came under the protection of Section 460:20-7-4 and 45 O.S. Section 783, and the applicant has a legal right to use the road for surface coal mining operations;

(ii) A properly recorded right-of-way or easement for a road in that location existed when the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783, and, under the document creating the right-or-way or easement, and under any subsequent conveyances, the applicant has a legal right to use or construct a road across that right-of-way or easement to conduct surface coal mining operations; or

(iii) A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783 .

(2) The Department must conduct an initial review to determine whether the request includes all applicable components of the submission requirements of Subsection (h)(1) of this Section. This review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted.

(A) If the request does not include all applicable components of the submission requirements of Subsection (h)(1) of this Section, the Department must notify the applicant and establish a reasonable time for submission of the missing information.

(B) When the request includes all applicable components of the submission requirements of Subsection (h)(1) of this Section, the Department must implement the notice and comment requirements of Subsection (h) (3) of this Section.

(C) If the information that the Department requests under Paragraph (h)(2)(A) of this Section is not provided within the time specified or as subsequently extended, the Department shall issue a determination that the applicant has not demonstrated valid existing rights, as provided in Paragraph (h)(6)(C) of this Section.

(3) When the completeness requirements of Subsection (h)(2) of this Section are satisfied, the Department must publish a notice in a newspaper of general circulation in the county in which the land is located. This notice must invite comment on the merits of the request. Alternatively, the Department may require the applicant to publish this notice and provide the Department with a copy of the published notice. Each notice must include:

(A) The location of the land to which the request pertains.

(B) A description of the type of surface coal mining operations planned.

(C) A reference to and brief description of the applicable standard(s) under the definition of valid existing rights in Section 460:20-7-3.

(i) If the request relies upon the good faith/all permits standard or the needed for and adjacent standard in Paragraph (B) of the definition of valid existing rights in Section 460:20-7-3, the notice must also include a description of the property rights that are claimed and the basis for the claim.

(ii) If the request relies upon the standard in Paragraph (C)(1) of the definition of valid existing rights in Section 460:20-7-3, the notice must also include a description C)(i) of the basis for the claim that the road existed when the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783 . In addition the notice must include a description of the basis for the claim that the applicant has a legal right to use that road for surface coal mining operations. If the request relies upon the standard in Paragraph(C)(ii) of the definition of valid existing rights in Section 460:20-7-3, the notice must also include a description of the basis for the claim that a properly recorded right-of-way or easement for a road in that location existed when the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783 . In addition the notice must include a description of the basis for the claim that, under the document creating the right-of-way or easement, and under any subsequent conveyance, the applicant has a legal right to use or construct a road across the right-of-way or easement to conduct surface coal mining operations.

(D) If the request relies upon one or more of the standards in Paragraphs (B), (C)(i), and (C)(ii) of the definition of valid existing rights in Section 460:20-7-3, a statement that the Department will not make a decision on the merits of the request if, by the close of the comment period under this notice or the notice required by Paragraph (h)(5) of this Section, a person with a legal interest in the land initiates appropriate legal action in the proper venue to resolve any differencesconcerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the claim.

(E) A description of the procedures that the Department will follow in processing the request.

(F) The closing date of the comment period, which must be a minimum of 30 days after the publication date of the notice.

(G) A statement that interested persons may obtain a 30-day extension of the comment period upon request.

(H) The name and address of the Department's office where a copy of the request is available for public inspection and to which commentsandrequests for extension of the comment period should be sent.

(4) The Department must promptly provide a copy of the notice required under Paragraph (h)(3) of this Section to:

(A) All reasonably locatable owners of surface and mineral estates in the land included in the request.

(B) The owner of the feature causing the land to come under the protection of Section 460:20-7-4, and, when applicable, the agency with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of Section 460:20-7-4. For example, both the landowner and the State Historic Preservation Officer must be notified if surface coal mining operations would adversely impact any site listed on the National Register of Historic Places. As another example, both the surface owner and the National Park Service must be notified if the request includes non-Federal lands within the authorized boundaries of a unit of the National Park System.

(5) The letter transmitting the notice required under Paragraph (h)(4) of this Section must provide a 30-day comment period, starting from the date of service of the letter, and specify that another 30 days is available upon request. At its discretion, the Department may grant additional time for good cause upon request. The Department need not necessarily consider comments received after the closing date of the comment period.

(6) The Department must review the materials submitted under Paragraph (h)(1) of this Section, comments received under Paragraphs (h)(3) through (h)(5) of this Section, and any other relevant, reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request. If not, the Department must notify the applicant in writing, explaining the inadequacy of the record and requesting submittal, within a specified reasonable time, of any additional information that the Department deems necessary to remedy the inadequacy.

(A) Once the record is complete and adequate, the Department must determine whether the applicant has demonstrated valid existing rights. The decision document must explain how the applicant has or has not satisfied all applicable elements of the definition of valid existing rights in Section 460:20-7-3. It must contain findings of fact and conclusions, and it must specify the reasons for the conclusions.

(B) This paragraph applies only when the applicant's request relies upon one or more of the standards in Paragraphs (B), (C)(i), and (C)(ii) of the definition of valid existing rights in Section 460:20-7-3.

(i) The Department must issue a determination that the applicant has not demonstrated valid existing rights if the property rights claims are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The Department will make this determination without prejudice, meaning that the applicant may refile the request once the property rights dispute is finally adjudicated. This paragraph applies only to situations in which legal action has been initiated as of the closing date of the comment period under Paragraph (h)(3) or (h)(5) of this Section.

(ii) If the record indicates disagreement as to the accuracy of the applicant's property rights claims, but this disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, the Department must evaluate the merits of the information in the record and determine whether the applicant has demonstrated that the requisite property rights exist under Paragraph (A), (C)(i), or (C)(ii) of the definition of valid existing rights in Section 460:20-7-3, as appropriate. The Department must then proceed with the decision process under Paragraph (h)(6)(A) of this Section.

(C) The Department must issue a determination that the applicant has not demonstrated valid existing rights if the applicant does not submit information that the Department requests under Paragraph (h)(2)(A) or (h)(6) of this Section within the time specified or as subsequently extended. The Department will make this determination without prejudice, meaning that the applicant may refile a revised request at any time.

(D) After making a determination, the Department must:

(i) Provide a copy of the determination, together with an explanation of appeal rights and procedures, to the applicant, to the owner or owners of the land to which the determination applies, to the owner of the feature causing the land to come under the protection of Section 460:20-7-4, and, when applicable, to the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of Section 460:20-7-4.

(ii) Publish notice of the determination in a newspaper of general circulation in the county in which the land is located. Alternatively, the Department may require that the applicant publish this notice and provide a copy of the published notice to the Department.

(7) The Department shall make a copy of the request subject to notice and comment under Subsection (h)(3) of this Section available to the public in the same manner as the Department makes permit applications available to the public under Section 460:20-15-5(d) of this Chapter. In addition, the Department shall make records associated with that request, and any subsequent determination under Subsection (h)(6) of this Section, available to the public in accordance with the requirements and procedures of Section 460:20-57-7 of this Chapter.

(i) A determination by the Department that a person holds or does not hold valid existing rights or that surface coal mining operations did or did not exist on the date of enactment shall be subject to administrative and judicial review under Sections 460:20-19-2 and 460:20-19-3 of this Chapter.

Okla. Admin. Code § 460:20-7-5

Amended at 12 Ok Reg 3592, eff 10-12-95; Amended at 19 Ok Reg 2841, eff 8-27-02