312 IAC 25-4-114 Review, public participation, and approval or disapproval of permit applications; permit terms and conditions; review of permit applications

Sec. 114. (a) The director shall review the complete application for a permit, revision or renewal, written comments, written objections submitted, and records of any informal conference or hearing held on the application and issue a written decision either granting, requiring modification of, or denying the application within the following times: (1) If: (A) an informal conference is held under section 112 of this rule or a hearing under IC 14-34-4-6, the decision shall be made within sixty (60) days of the close of the conference or hearing unless a later time is necessary to provide an opportunity for a hearing under subsection (b)(2); or (B) no informal conference is held under section 112 of this rule, or no hearing is held under IC 14-34-4-6, the decision shall be made within one hundred eighty (180) days from the date the administratively complete application is submitted to the director. (2) The applicant for a permit or revision of a permit shall have the burden of establishing that the application is in compliance with all requirements of this article and the approved regulatory program. (b) The director shall conduct a review of violations as follows: (1) Based on available information concerning federal and state failure to abate cessation orders, unabated federal and state imminent harm cessation orders, delinquent civil penalties issued under 312 IAC 25-7, delinquent civil penalties issued under Section 518 of the federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1268), or any state's equivalent counterpart, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violations of federal and state laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, the director shall not issue the permit if any surface coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant is currently in violation of IC 14-34, the federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.), or any other law, rule, or regulation referred to in this subdivision. In the absence of a failure to abate a cessation order, the director may presume that a notice of violation issued under 312 IAC 25-7 or a federal or state program has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except where evidence to the contrary is set forth in the permit application or where the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties. If a current violation exists, the director shall require the applicant or person who owns or controls the applicant, before the issuance of the permit, to do either of the following: (A) Submit to the director proof that the current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation. (B) Establish to the director that the applicant, or any person owned or controlled by either the applicant or any person who owns or controls the applicant, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of that violation. If the initial judicial review authority under IC 14-34-17 and IC 4-21.5-5, or a federal or state counterpart to IC 14-34-17 or IC 4-21.5-5, affirms the violation, then the applicant shall, within thirty (30) days of the judicial action, submit the proof required under clause (A). (2) Any permit that is issued on the basis of proof submitted under subdivision (1)(A) that a violation is in the process of being corrected or pending the outcome of an appeal described in subdivision (1)(B) shall be conditionally issued. (c) If the director makes a finding that the applicant, anyone who owns or controls the applicant, or the operator specified in the application controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violation of IC 14-34, the federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.) of such nature, duration, and with such resulting irreparable damage to the environment that indicates an intent not to comply with the provisions of IC 14-34, the federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. Section 1201 et seq.), no permit shall be issued. Before such a finding becomes final, the applicant or operator shall be afforded an opportunity for a hearing on the determination as provided in IC 4-21.5 and 312 IAC 3. (d) After October 24, 1992, the following apply: (1) The prohibitions of subsection (b) regarding the issuance of a new permit shall not apply to any violation that: (A) occurs after October 24, 1992; (B) is unabated; and (C) results from an unanticipated event or condition that arises from a surface coal mining and reclamation operation on lands that are eligible for remining under a permit: (i) issued before September 30, 2004, or any renewals thereof; and (ii) held by the person making application for the new permit. (2) A permit issued under section 105.5 of this rule, an event or condition shall be presumed to be unanticipated for the purposes of this subsection if the event or condition: (A) arose after permit issuance; (B) was related to prior mining; and (C) was not identified in the permit.