ALABAMA SURFACE MINING COMMISSION

ADMINISTRATIVE CODE

CHAPTER 880-X-7B AREAS UNSUITABLE FOR MINING AREAS DESIGNATED BY THE ACT

TABLE OF CONTENTS

880-X-7B-.01 Scope

880-X-7B-.02 Objective

880-X-7B-.03 Authority

880-X-7B-.04 Responsibility

880-X-7B-.05 Definitions

880-X-7B-.06 Areas Where Surface Coal Mining Operations Are Prohibited Or Limited

880-X-7B-.07 Exception For Existing Operations

880-X-7B-.08 Procedures For Compatibility Findings For Surface Coal Mining Operations On Federal Lands In National Forests

880-X-7B-.09 Procedures For Relocating Or Closing A Public Road Or Waiving The Prohibition On Surface Coal Mining Operations Within The Buffer Zone Of A Public Road

880-X-7B-.10 Procedures For Waiving The Prohibition On Surface Coal Mining Operations Within The Buffer Zone Of An Occupied Dwelling

880-X-7B-.11 Submission And Processing Of Requests For Valid Existing Rights Determinations

880-X-7B-.12 Regulatory Authority Obligations At Time Of Permit Application Review

880-X-7B-.01 Scope. This Rule establishes the procedures and standards to be followed in determining whether a proposed surface coal mining operation can be permitted in light of the prohibitions and limitations in Section 28(e) of the Act for those types of operations on certain Federal, public and private lands.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 92, 96.

History:

880-X-7B-.02 Objective. The objective of this Rule is to implement the prohibitions and limitations for surface coal mining operations on or near certain private, Federal, and other public lands under Section 28(e) of the Act.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 92, 96.

History:

880-X-7B-.03 Authority. The State Regulatory Authority is authorized by Section 28(a) and (e) of the Act to prohibit or limit surface coal mining operations on or near certain private, Federal, and other public lands, except for those operations which existed on August 3, 1977, or where subject to valid existing rights on that date.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 92, 96.

History:

880-X-7B-.04 Responsibility.

(1) The State Regulatory Authority shall --

(a) Determine

1. Whether an application for a permit must be denied because surface coal mining operations on those lands are prohibited or limited by Section 28(e) of the Act and this Rule; and

2. Whether an applicant for a permit covering such lands either had any valid existing rights on August 3, 1977, or was conducting a surface coal mining operation on those lands on August 3, 1977.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 92, 96.

History:

880-X-7B-.05 Definitions. (See Rule 880-X-2A-.06, Definitions.)

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 92, 96.

History:

880-X-7B-.06 Areas Where Surface Coal Mining Operations Are Prohibited Or Limited. No person may conduct surface coal mining operations on the following lands without possessing valid existing rights, as determined under Rule 880-X-7B-.11, or qualifying for the exception for existing operations under Rule 880-X-7B-.07:

(1) Any lands within the boundaries of:

    1. The National Park System;
      1. The National Wildlife Refuge System;
        1. The National System of Trails;
          1. The National Wilderness Preservation System;

          (e) The Wild and Scenic Rivers System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1276(a)), or study rivers or study river corridors established in any guideline issued under that Act, of

          (f) National Recreation Areas designated by Act of Congress.

          (2) Any Federal lands within a national forest. This prohibition does not apply if the Secretary finds that there are no significant recreational, timber, economic, or other values which may be incompatible with surface coal mining operations; and impacts are incident to an underground coal mine;

          (3) Any lands where the operation would adversely affect any publicly owned park or any place in the National Register of Historic Places. This prohibition does not apply if, as provided in Rule 880-X-7B-.12, the regulatory authority and the Federal, State or local regulatory authority with jurisdiction over the park or place jointly approve the operation.

          (4) Within 100 feet measured horizontally, of the outside right-of-way line of any public road. This prohibition does not apply:

          (a) Where a mine access roads or haulage roads joins a public road, or

          (b) When, as provided in Rule 880-X-7B-.09, the regulatory authority (or the appropriate public road authority designated by the regulatory authority) allows the public road to be relocated or closed, or the area within the protected zone to be affected by the surface coal mining operations, after:

          1. Providing public notice and opportunity for a public hearing; and

          2. Finding in writing that the interests of the affected public and landowners will be protected.

          (5) Within 300 feet, measured horizontally, of any occupied dwelling. This prohibition does not apply when:

          (a) the owner of the dwelling has provided a written waiver consenting to surface coal mining operations within the protected zone, as provided in Rule 880-X-7B-.10; or

          (b) The part of the operation to be located closer than 300 feet to the dwelling is an access or haul road that connects with an existing public road on the side of the public road opposite the dwelling.

          (6) Within 300 feet, measured horizontally, of any public building, school, church, community or institutional building or public park.

          (7) Within 100 feet, measured horizontally, of a cemetery. This prohibition does not apply if the cemetery is relocated in accordance with all applicable laws and regulations.

          (8) Within one thousand feet horizontally of the mean high water level of Lewis Smith Lake (which mean high water level shall be a topographic contour line corresponding to the spillway elevation of Lewis Smith Lake Dam); one thousand feet horizontally of the rim of Little River Canyon; one thousand feet horizontally on either side of the Little River and the East, Middle and West Forks of the Little River.

          Author:

          Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 92, 96.

          History: Amended: Filed August 23, 2001; effective September 27, 2001.

          Ed. Note: On February 5, 2002, the Office of Surface Mining approved this rulemaking adopted by the commission on August 16, 2001. The effective date of this rule will be March 7, 2002.

          880-X-7B-.07 Exception For Existing Operations.

          (1) The prohibitions and limitations of Rule 880-X-7B-.06 do not apply to:

          (a) Surface coal mining operations for which a valid permit, issued under Chapter 880-X-8 of these regulations exists when the land comes under the protection of Rule 880-X-7B-.06. This exception applies only to lands within the permit area as it exists when the land comes under the protection of Rule 880-X-7B-.06.

          (b) With respect to operations subject to Chapter 880-X-3 of these regulations, lands upon which validly authorized surface coal mining operations exist when the land comes under the protection of Rule 880-X-7B-.06 or Code of Ala. 1975, 9-16-96(e).

          Author: Randall C. Johnson

          Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 80, 92, 96.

          History: May 20, 1982. Amended: November 14, 1989; effective March 7, 1991. Amended: Filed March 25, 1997; effective April 29, 1997. Repealed and New Rule: Filed August 23, 2001; effective September 27, 2001.

          Ed. Note: On February 5, 2002, the Office of Surface Mining approved this rulemaking adopted by the commission on August 16, 2001. The effective date of this rule will be March 7, 2002.

          880-X-7B-.08 Procedures For Compatibility Findings For Surface Coal Mining Operations On Federal Lands In National Forests.

          (1) If you intend to rely upon the exception provided in Rule 880-X-7B-.06(b) to conduct surface coal mining operations on Federal lands within a national forest, you must request that we obtain the Secretarial findings required therein.

          (1) You may submit a request to us before preparing and submitting an application for a permit or permit revision. If you do, you 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 Rule 880-X-2A-.06. You must include a map and sufficient information about the nature of the proposed operation for the Secretary of the Interior to make adequately documented findings. You may be required to provide any additional information that may be determined necessary to make the required findings.

          (3) When a proposed surface coal mining operation or proposed permit revision for an existing surface coal mining operation includes Federal lands within a national forest, the regulatory authority may not issue the permit or approve the permit revision before the Secretary of the Interior makes the findings referenced in Rule 880-X-7B-.06(b).

          Author: Randall C. Johnson

          Statutory Authority: Code of Ala. 1975, 9-16-71 et. seq., as amended.

          History: New Rule: Filed August 23, 2001; effective September 27, 2001.

          Ed. Note: On February 5, 2002, the Office of Surface Mining approved this rulemaking adopted by the commission on August 16, 2001. The effective date of this rule will be March 7, 2002.

          880-X-7B-.09 Procedures For Relocating Or Closing A Public Road Or Waiving The Prohibition On Surface Coal Mining Operations Within The Buffer Zone Of A Public Road.

          (1) This section does not apply to:

          (a) Lands for which a person has valid existing rights, as determined under Rule 880-X-7B-.11;

          (b) Lands within the scope of the exception for existing operations in Rule 880-X-7B-.07;

          (c) Access or haul roads that join a public road, as described in Rule 880-X-7B-.06(d)(1).

          (2) You must obtain any necessary approvals from the authority with jurisdiction over the road if you propose to:

          (a) Relocate a public road;

          (b) Close a public road; or

          (c) Conduct surface coal mining operations within 100 feet, measured horizontally, of the outside right-of-way line of a public road.

          (3) Before approving an action proposed under paragraph (b) of this section, either the regulatory authority, or the public road authority designated by the regulatory authority, must determine that the interests of the public and affected landowners will be protected. Before making this determination, the authority must:

          (a) Provide a public comment period and opportunity to request a public hearing in the locality of the proposed operation;

          (b) If a public hearing is requested, publish appropriate advance notice at least two weeks before the hearing in a newspaper of general circulation in the affected locality; and

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

          Author: Randall C. Johnson

          Statutory Authority: Code of Ala. 1975, 9-16-71 et. seq., as amended.

          History: New Rule: Filed August 23, 2001; effective September 27, 2001.

          Ed. Note: On February 5, 2002, the Office of Surface Mining approved this rulemaking adopted by the commission on August 16, 2001. The effective date of this rule will be March 7, 2002.

          880-X-7B-.10 Procedures For Waiving The Prohibition On Surface Coal Mining Operations Within The Buffer Zone Of An Occupied Dwelling.

          (1) This section does not apply to:

          (a) Lands for which a person has valid existing rights, as determined under Rule 880-X-7B-.11.

          (b) Lands within the scope of the exception for existing operations in Rule 880-X-7B-.07.

          (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 Rule 880-X-7B-.06(e)(2).

          (2) If you propose to conduct surface coal mining operations within 300 feet, measured horizontally, of any occupied dwelling, the permit application must include a written waiver by lease, deed, or other conveyance from the owner of the dwelling. The waiver must clarify that the owner and signator had the legal right to deny mining and knowingly waived that right. the waiver will act as consent to surface coal mining operations within a closer distance of the dwelling as specified.

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

          (4) If you obtain 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 recorded pursuant to State law or if surface coal mining operations have entered the 300 foot zone before the date of purchase.

          Author: Randall C. Johnson

          Statutory Authority: Code of Ala. 1975, 9-16-71 et. seq., as amended.

          History: New Rule: Filed August 23, 2001; effective September 27, 2001.

          Ed. Note: On February 5, 2002, the Office of Surface Mining approved this rulemaking adopted by the commission on August 16, 2001. The effective date of this rule will be March 7, 2002.

          880-X-7B-.11 Submission And Processing Of Requests For Valid Existing Rights Determinations.

          (1) All valid existing rights determinations shall be made by the regulatory authority other than requests pertaining to Federal land protected under Rule 880-X-7B-.06(a) and (b) lying within a national forest, national park, wildlife refuge or the like. Valid existing right shall be determined by the Office of Surface Mining.

          (2) What you must submit as part of a request for a valid existing rights determination. You must submit a request for a valid existing rights determination to the appropriate regulatory authority under paragraph (a) of this section if you intend to conduct surface coal mining operations on the basis of valid existing rights under Rule 880-X-7B-.06 or wish to confirm the right to do so. You may submit this request before preparing and submitting an application for a permit or permit revision for the land, unless the applicable regulatory program provides otherwise.

          (a) Requirements for property rights demonstration. You must provide a property rights demonstration under paragraph (a) of the definition of valid existing rights at Rule 880-X-2A-.06 if your 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 at Rule 880-X-2A-.06. This demonstration must include the following items:

          1. A legal description of the land to which your request pertains.

          2. Complete documentation of the character and extent of your current interests in the surface and mineral estates of the land to which your request pertains.

          3. A complete chain of title for the surface and mineral estates of the land to which your request pertains.

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

          5. A description of the type and extent of surface coal mining operations that you claim 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.

          6. Complete documentation of the nature and ownership, as of the date that the land came under the protection of Rule 880-X-7B-.06 or Ala. Code 9-16-96(e), of all property rights for the surface and mineral estates of the land to which your request pertains.

          7. Names and addresses of the current owners of the surface and mineral estates of the land to which your request pertains.

          8. If the coal interests have been severed from other property interests, documentation that you have notified and provided reasonable opportunity for the owners of other property interests in the land to which your request pertains to comment on the validity of your property rights claims.

          9. Any comments that you receive in response to the notification provided under paragraph (b)(1)(viii) of this section.

          (b) Requirements for good faith/all permits standard. If your request relies upon the good faith/all permits standard in paragraph (b)(1) of the definition of valid existing rights at Rule 880-X-2A-.06, you must submit the information required under paragraph (b)(1) of this section. You also must submit the following information about permits, licenses, and authorizations for surface coal mining operations on the land to which your request pertains:

          1. Approval and issuance dates and identification numbers for any permits, licenses, and authorizations that you or a predecessor in interest obtained before the land came under the protection of Rule 880-X-7B-.06 or Code of Ala. 1975, 9-16-96(e).

          2. Application dates and identification numbers for any permits, licenses, and authorizations for which you or a predecessor in interest submitted an application before the land came under the protection of Rule 880-X-7B-.06 or Code of Ala. 1975, 9-16-96(e).

          3. An explanation of any other good faith effort that you or a predecessor in interest made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of Rule 880-X-7B-.06 or Code of Ala. 1975, 9-16-96(e).

          (c) Requirements for needed for and adjacent standard. If your request relies upon the needed for and adjacent standard in paragraph (b)(2) of the definition of valid existing rights at Rule 880-X-2A-.06 you must submit the information required under paragraph (b)(1) of this section. In additional, you must explain how and why the land is needed for and immediately adjacent to the operation upon which your request is based, including a demonstration that prohibiting expansion of the operation onto the land would unfairly impact the viability of the operation as originally planned before the land came under the protection of Rule 880-X-7B-.06 or Code of Ala. 1975, 9-16-96(e).

          (d) Requirements for standards for mine roads. If your request relies upon one of the standards for roads in paragraphs (c)(1) through (c)(3) of the definition of valid existing rights at Rule 880-X-2A-.06, you must submit satisfactory documentation that:

          1. The road existed when the land upon which it is located came under the protection of Rule 880-X-7B-.06 or Code of Ala. 1975, 9-16-96(e), and you have a legal right to use the road for surface coal mining operations;

          2. A properly recorded right-of-way or easement for a road in that location existed when the land came under the protection of Rule 880-X-7B-.06 or Code of Ala. 1975, 9-16-96(e), and under the document creating the right-of-way or easement and under any subsequent conveyances, you have a legal right to use or construct a road across that right-of-way or easement to conduct surface coal mining operations; or

          3. 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 Rule 880-X-7B-.06 or Code of Ala. 1975, 9-16-96(e).

          (3) Initial review of request.

          (a) The regulatory authority must conduct an initial review to determine whether your request includes all applicable components of the submission requirements of paragraph (b) of this section. This review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted.

          (b) If your request does not include all applicable components of the submission requirements of paragraph (b) of this section, the regulatory authority must notify you and establish a reasonable time for submission of the missing information.

          (c) When your request includes all applicable components of the submission requirements of paragraph (b) of this section, the regulatory authority must implement the notice and comment requirements of paragraph (d) of this section.

          (d) If you do not provide information that the regulatory authority requests under paragraph (c)(2) of this section within the time specified or as subsequently extended, the regulatory authority must issue a determination that you have not demonstrated valid existing rights, as provided in paragraph (e)(4) of this section.

          (4) Notice and comment requirements and procedures. (1) Upon notice from the regulatory authority that your request satisfies the completeness requirements of paragraph (c) of this section, you must publish a notice in the newspaper of general circulation in the county in which the land is located inviting comment on the merits of the request. If your request involves Federal lands within an area listed in Rule 880-X-7B-.06 or Code of Ala. 1975, 9-16-96(e) the Office of Surface Mining will be responsible for publishing a similar notice in the Federal Register. Each notice must include:

          1. The location of the land to which the request pertains.

          2. A description of the type of surface coal mining operations planned.

          3. A reference to and brief description of the applicable standard(s) under the definition of valid existing rights in Rule 880-X-2A-.06.

          (i) If your 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 Rule 880-X-2A-.06, the notice also must include a description of the property rights that you claim and the basis for your claim.

          (ii) If your request relies upon the standard in paragraph (c)(1) of the definition of valid existing rights in Rule 880-X-2A-.06, the notice also must include a description of the basis for your claim that the road existed when the land came under the protection of Rule 880-X-7B-.06 or Code of Ala. 1975, 9-16-96(e). In addition, the notice must include a description of the basis for your claim that you have a legal right to use that road for surface coal mining operations.

          (iii) If your request relies upon the standard in paragraph (c)(2) of the definition of valid existing rights in Rule 880-X-2A-.06, the notice also must include a description of the basis for your 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 Rule 880-X-7B-.06 or Code of Ala. 1975, 9-16-96(e). In addition, the notice must include a description of the basis for your claim that, under the document creating the right-of-way or easement and under any subsequent conveyances, you have a legal right to use or construct a road across the right-of-way or easement to conduct surface coal mining operations.

          4. If your request relies upon one or more of the standards in paragraphs (b), (c)(1), and (c)(2) of the definition of valid existing rights in Rule 880-X-2A-.06, a statement that the regulatory authority will not make a decision on the merits of your request if, by the close of the comment period under this notice or the notice required by paragraph (d)(3) of this section, a person with a legal interest in the land initiates appropriate legal action in the proper venue to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of your claim.

          5. A description of the procedures that the regulatory authority will follow in processing your request.

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

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

          8. The name and address of the regulatory authority office where a copy of the request is available for public inspection and to which comments and requests for extension of the comment permit should be sent.

          (b) The regulatory authority must promptly provide a copy of the notice required under paragraph (d)(1) of this section to:

          1. All reasonably locatable owners of surface and mineral estates in the land included in your request.

          2. The owner of the feature causing the land to come under the protection of Rule 880-X-7B-.06, and, when applicable, the regulatory authority with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of Rule 880-X-7B-.06. For example, both the landowner and the State Historic Preservation Office 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.

          (c) The letter transmitting the notice required under paragraph (d)(2) 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 regulatory authority responsible for the determination of valid existing rights may grant additional time for good cause upon request. The regulatory authority need not consider comments received after the closing date of the comment period.

          (5) How a decision will be made.

          (a) The regulatory authority will review the materials submitted under paragraph (b) of this section, comments received under paragraph (d) 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 regulatory authority will notify you in writing, of the inadequacy of the record and requesting submittal, within a specified reasonable time, of any additional information deemed necessary to remedy the inadequacy.

          (b) Once the record is complete and adequate, the responsible regulatory authority will issue a determination incorporating findings of facts and conclusions of law as to whether you have or have not satisfied all applicable elements of the definition of valid existing rights in Rule 880-X-2A-.06.

          (c) Impact of property rights disagreements. This paragraph applies only when your request relies upon one or more of the standards in paragraphs (b), (c)(1), and (c)(2) of the definition of valid existing rights in Rule 880-X-2A-.06.

          1. The regulatory authority must issue a determination that you have not demonstrated valid existing rights if your property rights claims are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The regulatory authority will make this determination without prejudice, meaning that you 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 (d)(1) or (d)(3) of this section.

          2. If the record indicates disagreement as to the accuracy of your property rights claims, but this disagreement is not the subject of pending litigation in a court or administrative regulatory authority of competent jurisdiction, the regulatory authority must evaluate the merits of the information in the record and determine whether you have demonstrated that the requisite property rights exist under paragraph (a), (c)(1), or (c)(2) of the definition of valid existing rights as appropriate. The regulatory authority must then proceed with the decision process under paragraph (e)(2) of this section.

          (d) The regulatory authority must issue a determination that you have not demonstrated valid existing rights if you do not submit information that the regulatory authority requests under paragraph (c)(2) or (e)(1) of this section within the time specified or as subsequently extended. The regulatory authority will make this determination without prejudice such that you may refile a revised request at any time.

          (e) After making a determination, the regulatory authority must:

          1. Provide a copy of the determination, together with an explanation of appeal rights and procedures, to you, 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 Rule 880-X-7B-.06, and when applicable, to the regulatory authority with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of Rule 880-X-7B-.06.

          2. Publish notice of the determination in a newspaper of general circulation in the county in which the land is located. Alternatively, the regulatory authority may require that you publish this notice and provide a copy of the published notice to the regulatory authority. Notices of determination involving Federal lands will be subject to publication in the Federal Register by the Office of Surface Mining.

          (6) Administrative and judicial review. A determination that you have or do not have valid existing rights is subject to administrative and judicial review as provided for in Chapter 880-X-5A of these regulations.

          (7) Availability of records. The regulatory authority responsible for processing a request subject to notice and comment under paragraph (d) of this section must make a copy of that request available to the public in the same manner as the regulatory authority must make permit applications available to the public under Rule 880-X-8K-.05(4) of these regulations. In addition, the regulatory authority must make records associated with that request, and any subsequent determination under paragraph (e) of this section, available to the public in accordance with the requirements and procedures of Rule 880-X-11B-.02 of these regulations.

          Author: Randall C. Johnson

          Statutory Authority: Code of Ala. 1975, 9-16-71 et. seq., as amended.

          History: New Rule: Filed August 23, 2001; effective September 27, 2001.

          Ed. Note: On February 5, 2002, the Office of Surface Mining approved this rulemaking adopted by the commission on August 16, 2001. The effective date of this rule will be March 7, 2002.

          880-X-7B-.12 Regulatory Authority Obligations At Time Of Permit Application Review.

          (1) Upon receipt of an administratively complete application for a permit for a surface coal mining operation, or an administratively complete application for revision of the boundaries of a surface coal mining operation permit, the regulatory authority must review the application to determine whether the proposed surface coal mining operation would be located on any lands protected under Rule 880-X-7B-.06.

          (2) The regulatory authority must reject any portion of the application that would locate surface coal mining operations on land protected under Rule 880-X-7B-.06 unless;

          (a) The site qualifies for the exception for existing operations under Rule 880-X-7B-.07;

          (b) A person has valid existing rights for the land, as determined under Rule 880-X-7B-.11;

          (c) The applicant obtains a waiver or exception from the prohibitions of Rule 880-X-7B-.06 in accordance with Rule 880-X-7B-.08 through Rule 880-X-7B-.10; or

          (d) For lands protected by Rule 880-X-7B-.06(c) both the regulatory authority and the regulatory authority with jurisdiction over the park or place jointly approve the proposed operation in accordance with paragraph (d) of this section.

          (3) Location verification. If the regulatory authority has difficulty determining whether an application includes land within an area specified in Rule 880-X-7B-.06(a) or within the specified distance from a structure or feature listed in Rule 880-X-7B-.06(f) or (g), the regulatory authority must request that the federal, state, or local governmental regulatory authority with jurisdiction over the protected land, structure, or feature verify the location.

          1. The request for location verification must:

          (i) Include relevant portions of the permit application;

          (ii) Provide the regulatory authority with 30 days after receipt to respond, with a notice that another 30 days is available upon request;

          (iii) Specify that the regulatory authority will not necessarily consider a response received after the comment period provided under paragraph (c)(1)(ii) of this section.

          2. If the regulatory authority does not respond in a timely manner, the regulatory authority may make the necessary determination based on such information, as it may then possess.

          (4) Procedures for joint approval of surface coal mining operations that will adversely affect publicly owned parks or historic places.

          1. If the regulatory authority determines that the proposed surface coal mining operation will adversely affect any publicly owned park or any place included in the National Register of Historic Places, the regulatory authority must request that the federal, state, or local regulatory authority with jurisdiction over the park or place either approve or object to the proposed operation. The request must:

          (i) Include a copy of applicable parts of the permit application;

          (ii) Provide the regulatory authority with 30 days after receipt to respond, with a notice that another 30 days is available upon request;

          (iii) State that failure to interpose an objection within the time specified under paragraph (d)(1)(ii) of this section will constitute approval of the proposed operations.

          2. The regulatory authority may not issue a permit for a proposed operation subject to paragraph (d)(1) of this section unless all affected agencies jointly approve.

          3. Paragraphs (d)(1) and (d)(2) of this section do not apply to:

          (i) Lands for which a person has valid existing rights, as determined under Rule 880-X-7B-.11;

          (ii) Lands within the scope of the exception for existing operations in Rule 880-X-7B-.07.

          Author: Randall C. Johnson

          Statutory Authority: Code of Ala. 1975, 9-16-71 et. seq., as amended.

          History: New Rule: Filed August 23, 2001; effective September 27, 2001.

          Ed. Note: On February 5, 2002, the Office of Surface Mining approved this rulemaking adopted by the commission on August 16, 2001. The effective date of this rule will be March 7, 2002.