ALABAMA SURFACE MINING COMMISSION ADMINISTRATIVE CODE

CHAPTER 880-X-7D AREAS UNSUITABLE FOR MINING STATE PROCESSES FOR DESIGNATING AREAS UNSUITABLE FOR SURFACE COAL MINING OPERATIONS

TABLE OF CONTENTS

880-X-7D-.01 Scope

880-X-7D-.02 Objective

880-X-7D-.03 Authority

880-X-7D-.04 Procedures: General Process Requirements

880-X-7D-.05 Procedures: Petitions

880-X-7D-.06 Procedures: Initial Processing Recordkeeping, And Notification Requirements

880-X-7D-.07 Procedures: Hearing Requirements

880-X-7D-.08 Procedures: Decision

880-X-7D-.09 Data Base And Inventory System Requirements

880-X-7D-.10 Public Information

880-X-7D-.11 State Regulatory Authority Responsibility For Implementation

880-X-7D-.01 Scope. This Rule establishes minimum procedures and standards to be included in the State program for designating non-Federal and non-Indian lands in the State as unsuitable for all or certain types of surface coal mining operations and for terminating designations.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 77, 78, 80, 85, 87, 88, 92, 96.

History:

880-X-7D-.02 Objective. The objective of this Rule is to implement processes to designate lands unsuitable for all or certain types of surface coal mining operations and for terminating designations.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 77, 78, 80, 85, 87, 88, 92, 96.

History:

880-X-7D-.03 Authority. The State Regulatory Authority has authority to develop and include in the State program procedures and standards to designate lands unsuitable for all or certain types of surface coal mining operations and to terminate such designations.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 77, 78, 80, 85, 87, 88, 92, 96.

History:

880-X-7D-.04 Procedures: General Process Requirements. The State Regulatory Authority shall establish a process enabling objective decisions to be made on which, if any, land areas of the State are unsuitable for all or certain types of surface coal mining operations. These decisions shall be based on competent, scientifically sound data and other relevant information. This process shall include the requirements listed in Rules 880-X-7D-.05 - 880-X-7D-.11.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 77, 78, 80, 85, 87, 88, 92, 96.

History:

880-X-7D-.05 Procedures: Petitions.

(1) Right to Petition. Any person having an interest which is or may be adversely affected has the right to petition the State Regulatory Authority to have an area designated as unsuitable for surface coal mining operations, or to have an existing designation terminated.

(2) Designation. The only information that a petitioner need provide is --

(a) The location and size of the area covered by the petition;

(b) Allegations of facts and supporting evidence which would tend to establish that the area is unsuitable for all or certain types of surface coal mining operations;

(c) A description of how mining of the area has affected or may adversely affect people, land, air, water or other resources;

(d) The petitioner's name, address, and telephone number; and

(e) Identification of the petitioner's interest which is or may be adversely affected.

(3) Termination. The only information that a petitioner need provide to terminate a designation is --

(a) The location and size of the area covered by the petition;

(b) Allegations of facts, with supporting evidence, not contained in the record of the proceeding in which the area was designated unsuitable, which would tend to establish the statements or allegations, and which statements or allegations indicate that the designation should be terminated based on:

1. The nature or abundance of the protected resource or condition or other basis of the designation if the designation was based on criteria found in Rule 880-X-7C-.04(2); or

2. Reclamation now being technologically and economically feasible, if the designation was based on the criteria found in Rule 880-X-7C-.04(1); or

3. The resources or condition not being affected by surface coal mining operations, or in the case of land use plans, not being incompatible with surface coal mining operations during and after mining, if the designation was

based on the criteria found in Rule 880-X-7C-.04(2);

(c) The petitioner's name, address and telephone number; and

(d) Identification of the petitioner's interest which is or may be adversely affected by the continuation of the designation.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 77, 78, 80, 85, 87, 88, 92, 96.

History:

880-X-7D-.06 Procedures: Initial Processing, Recordkeeping, And Notification Requirements.

(1)(a) Within 30 days of receipt of a petition, the State Regulatory Authority shall notify the petitioner by certified mail whether or not the petition is complete under Rule 880-X-7D-.05(2) or (3).

(b) The State Regulatory Authority shall determine whether any identified coal resources exist in the area covered by the petition, without requiring any showing from the petitioner. If the State Regulatory Authority finds there are not any identified coal resources in that area, it shall return the petition to the petitioner with a statement of the findings.

(c) The State Regulatory Authority may reject petitions for designations or terminations of designations which are frivolous. Once the requirements of Rule 880-X-7D-.05 are met, no party shall bear any burden of proof, but each accepted petition shall be considered and acted upon by the State Regulatory Authority pursuant to the procedures of this Rule.

(d) When considering a petition for an area which was previously and unsuccessfully proposed for designation, the State Regulatory Authority shall determine if the new petition presents new allegations of facts. If the petition does not contain new allegations of facts, the State Regulatory Authority shall not consider the petition and shall return the petition to the petitioner, with a statement of its findings and a reference to the record of the previous designation proceedings where the facts were considered.

(e) If the State Regulatory Authority determines that the petition is incomplete or frivolous, it shall return the petition to the petitioner, with a written statement of the reasons for the determination and the categories of information needed to make the petition complete.

(f) The State Regulatory Authority shall notify the person who submits a petition of any application for a permit received which proposes to include any area covered by the petition.

(g) Any petitions received after the close of the public comment period on a permit application relating to the same permit area shall not prevent the State Regulatory Authority from issuing a decision on that permit application. The State Regulatory Authority may return any petition received thereafter to the petitioner with a statement why the State Regulatory Authority cannot consider the petition. For the purposes of this Rule, close of the public comment period shall mean at the close of any informal conference held under Rule 880-X-8K-.08, or, if no conference is requested, at the close of the period for filing written comments and objections under Rules 880-X-8K-.06 - 880-X-8K-.07.

(2)(a) Within three weeks after the determination that a petition is complete, the State Regulatory Authority shall circulate copies of the petition to, and request submissions of relevant information from, other interested governmental agencies, the petitioner, intervenors, persons with an ownership interest of record in the property, and other persons known to the State Regulatory Authority to have an interest in the property.

(b) Within three weeks after the determination that a petition is complete, the State Regulatory Authority shall notify the general public of the receipt of the petition and request submissions of relevant information by a newspaper advertisement placed once a week for two consecutive weeks in the locale of the area covered by the petition and in any official State register of public notices.

(3) Until three days before the State Regulatory Authority holds a hearing under Rule 880-X-7D-.07, any person may intervene in the proceedings by filing allegations of facts, supporting evidence, a short statement identifying the petition to which the allocations pertain, and the intervenor's name, address and telephone number.

(4) Beginning immediately after a complete petition is filed, the State Regulatory Authority shall compile and maintain a record consisting of all documents relating to the petition filed with or prepared by the State Regulatory Authority. The State Regulatory Authority shall make the record available for public inspection, free of charge, and copying, at reasonable cost, during all normal business hours at a central location of the county or multi-county area in which the land petitioned is located, and at the main office of the State Regulatory Authority.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 77, 78, 80, 85, 87, 88, 92, 96.

History:

880-X-7D-.07 Procedures: Hearing Requirements.

(1) Within 10 months after receipt of a complete petition, the State Regulatory Authority shall hold a public hearing in the locality of the area covered by the petition. If all petitioners and intervenors agree, the hearing need not be held. The hearing shall be legislative and fact-finding in verbatim transcript of the hearing.

(2)(a) The State Regulatory Authority shall give notice of the date, time, and location of the hearing to:

1. Local, State, and Federal agencies which may have an interest in the decision on the petition;

2. The petitioner and the intervenors; and

3. Any person with an ownership or other interest

known to the State Regulatory Authority in the area covered

by the petition.

(b) Notice of hearing shall be sent by certified mail and postmarked not less than 30 days before the scheduled date of the hearing.

(3) The State Regulatory Authority shall notify the general public of the date, time and location of the hearing by placing a newspaper advertisement once a week for two consecutive weeks in the locale of the area covered by the petition and once during the week prior to the scheduled date of the public hearing. The consecutive weekly advertisement must begin between four and five weeks before the scheduled date of the public hearing.

(4) The State Regulatory Authority may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale.

(5) Prior to designating any land areas as unsuitable for surface coal mining operations, the State Regulatory Authority shall prepare a detailed statement, using existing and available information on the potential coal resources of the area, the demand for coal resources, and the impact of such designation on the environment, the economy, and the supply of coal.

(6) In the event that all petitioners and intervenors stipulate agreement prior to the hearing, the petition may be withdrawn from consideration.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 77, 78, 80, 85, 87, 88, 92, 96.

History:

880-X-7D-.08 Procedures: Decision.

(1) In reaching its decision, the State Regulatory Authority shall use --

(a) The information contained in the data base and inventory system;

(b) Information provided by other governmental agencies;

(c) The detailed statement prepared under Rule 880-X-7D-.07(5); and

(d) Any other relevant information submitted during the comment period.

(2) The State Regulatory Authority may decide to designate the petitioned land areas in whole or in part, not to designate the petitioned land areas, or to place conditions on future operations in all or part of the petitioned area which would successfully mitigate the impacts of such operations.

(3) A final written decision shall be issued by the State Regulatory Authority, including a statement of reasons, within 60 days of completion of the public hearing, or, if no public hearing is held, then within 12 months after receipt of the complete petition. The State Regulatory Authority shall simultaneously send the decision by certified mail to the petitioner, every other party to the proceeding, and to the Office of Surface Mining.

(4) The decision of the State Regulatory Authority with respect to a petition, or the failure of the State Regulatory Authority to act within the time limits set forth in this Rule, shall be subject to review in accordance with Section 28(d) and Section 10 of the Act.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 77, 78, 80, 85, 87, 88, 92, 96.

History:

880-X-7D-.09 Data Base And Inventory System Requirement.

(1) The Regulatory Authority shall develop a data base and inventory system which will permit evaluation of whether reclamation is feasible in areas covered by petitions.

(2) The State Regulatory Authority shall include in the system information relevant to the criteria in Rule 88O-X-7C-.04 including, but not limited to, information received from the United States Fish and Wildlife Service, the State Historic Preservation Officer, and the agency administering Section 127 of the Clean Air Act, as amended (42 U.S.C. Section 7470 et seq.).

(3) The State Regulatory Authority shall add to the data base and inventory system information --

(a) On potential coal resources of the State, demand for those resources, the environment, the economy and the supply of coal, sufficient to enable the State Regulatory Authority to prepare the statements required by Rule 88O-X-7D-.07(5); and

(b) That becomes available from petitions, publications, experiments, permit applications, mining and reclamation operations, and other sources.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 77, 78, 80, 85, 87, 88, 92, 96.

History:

880-X-7D-.10 Public Information. The State Regulatory Authority shall: -

(a) Make the information and the data base system developed under Rule 880-X-7D-.09 available to the public for inspection free of charge and for copying at reasonable cost, except that specific information relating to the location of properties proposed to be nominated to, or listed in, the National Register of Historic Places, need not be disclosed if ASMC determines that the disclosure of such information would create a risk of destruction or harm to such properties;

(b) Provide information to the public on the petition procedures necessary to have an area designated as unsuitable for all or certain types of surface coal mining operations or to have designations terminated and describe how the inventory and data base system can be used.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 77, 78, 80, 85, 87, 88, 92, 96.

History: May 20, 1982; Amended: November 14, 1989; effective: March 7, 1991

880-X-7D-.11 State Regulatory Authority Responsibility For_Implementation.

(1) The State Regulatory Authority shall not issue permits which are inconsistent with designations made pursuant to Rules 880-X-7A, 880-X-7B, 880-X-7C and 880-X-7D.

(2) The State Regulatory Authority shall maintain maps of areas designated as unsuitable for all or certain types of surface coal mining operations.

(3) The State Regulatory Authority shall make available to any person any information within its control regarding designations, including mineral or elemental content which is potentially toxic in the environment but excepting proprietary information on the chemical and physical properties of the coal.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 73, 74, 75, 77, 78, 80, 85, 87, 88, 92, 96.

History: