State Designation of Areas as Unsuitable for Mining

PURPOSE: This rule sets forth criteria and procedures for the commission and director for the designation of land as unsuitable for mining operations, pursuant to sections 444.810 and 444.890, RSMo. (1) Criteria for Designating Lands as Unsuitable. (A) An area shall be designated as unsuitable for all or certain types of surface coal mining operations, upon petition, if it is determined that reclamation is not technologically and economically feasible under the law and 10 CSR 40-3–10 CSR 40-8. (B) Upon petition an area may be designated (but is not required to be) as unsuitable for certain types of surface coal mining operations, if the operations will— 1. Be incompatible with existing state or local land use plans or programs; 2. Affect fragile or historic lands in which the operations could result in significant damage to important historic, cultural, scientific, or esthetic values or natural systems; 3. Affect renewable resource lands in which the operations could result in a substantial loss or reduction of long range productivity of water supply or of food or fiber products; or 4. Affect natural hazard lands in which the operations could substantially endanger life and property. These lands to include areas subject to frequent flooding and areas of unstable geology. (2) The requirements of this rule do not apply to— (A) Lands on which surface coal mining operations were being conducted on September 28, 1979; (B) Lands covered by a permit and plan; or (C) Lands where substantial legal and financial commitments in surface coal mining operations were in existence prior to January 4, 1977. (3) Applicability to Lands Designated as Unsuitable by Congress. Pursuant to appropriate petitions, lands listed under 10 CSR 40-5.010(2) are subject to designation as unsuitable for all or certain types of surface coal mining operations under this rule. (4) Exploration on Land Designated as Unsuitable for Surface Coal Mining Operations. Designation of any areas as unsuitable for all or certain types of surface coal mining operations does not prohibit coal exploration operations in the area, if conducted in accordance with the law and 10 CSR 40-3–10 CSR 40-8, and other applicable federal and state requirements. Exploration operations on any lands designated unsuitable for surface coal mining operations must be approved under 10 CSR 40-6.020 to insure that exploration does not interfere with any value for which the area has been designated unsuitable for surface coal mining. (5) Procedures—Petitions. (A) Right to Petition. Any person having an interest which is, or may be, adversely affected has the right to petition the commission and director to have an area designated as unsuitable for surface coal mining operations or to have an existing designation terminated. The petition shall be filed with the director. (B) Designation. The only information that a petitioner need provide is— 1. The location and size of the area and a United States Geological Survey (USGS) topographic map outlining the perimeter of the petitioned area covered by the petition; 2. Specific 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; 3. A description of how mining of the area has affected or may adversely affect people, land, air, water, or other resources; 4. The petitioner’s name, address, telephone number, and notarized signature; 5. Identification of the petitioner’s interest which is or may be adversely affected; and 6. Other supplementary information which is readily available. (C) Termination. The only information that a petitioner need provide is— 1. The location and size of the area and a USGS topographic map outlining the perimeter of the petitioned area covered by the petition; 2. 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— A. 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 subsection (1)(B) of this rule; B. Reclamation now being technologically and economically feasible, if the designation was based on the criteria found in subsection (1)(A) of this rule; or C. 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 subsection (1)(B) of this rule; 3. The petitioner’s name, address, telephone number, and notarized signature; 4. Identification of the petitioner’s interest which is or may be adversely affected by the continuation of the designation; and 5. Other supplementary information which is readily available. (6) Procedures—Initial Processing, RecordKeeping, and Notification Requirements. (A) Initial Processing. 1. Within thirty (30) days of receipt of a petition, the director shall notify the petitioner by certified mail whether or not the petition is complete under subsection (5)(B) or (C) of this rule. 2. The director shall determine whether any identified coal resources exist in the area covered by the petition, without requiring any showing from the petitioner. If the director finds there are not any identified coal resources in that area, s/he shall return the petition to the petitioner with a statement of findings. 3. The director may reject petitions for designations or terminations of designations which are frivolous. Once the requirements of section (5) of this rule are met, no party shall bear any burden of proof, but each accepted petition shall be considered and acted upon by the commission and director pursuant to the procedures of sections (5)–(11) of this rule. 4. When considering a petition for an area which was previously and unsuccessfully proposed for designation, the director shall determine if the new petition presents new allegations of facts. If the petition does not contain new allegations of facts, the director shall not consider the petition and shall return the petition to the petitioner, with a statement of his/her findings and a reference to the record of the previous designation proceedings where the facts were considered. 5. If the director determines that the petition is incomplete or frivolous, s/he 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. 6. The director 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. 7. Any petition received after the close of the public comment period on a permit application relating to the same mine plan area shall not prevent the commission or director from issuing a decision on that permit application. The commission or director may return any petition received after that to the petitioner with a statement why the commission or director cannot consider the petition. For the purposes of this section, close of the public comment period shall mean at the close of any informal conference held under 10 CSR 40-6.070(5) or, if no conference is requested, at the close of the period for filing written comments and objections under 10 CSR 40-6.070(3) and (4). (B) Public Notice. 1. Within three (3) weeks after the determination that a petition is completed, the director 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 director to have an interest in the property. 2. Within three (3) weeks after the determination that a petition is complete, the director 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 (2) consecutive weeks in the locale of the area covered by the petition, in the newspaper of largest circulation in the state, and in any official state register of public notices. (C) Until three (3) days before the commission holds a hearing under section (7) of this rule, any person may intervene in the proceeding by filing allegations of facts, supporting evidence, a short statement identifying the petition to which the allegations pertain, and the intervenor’s name, address, and telephone number. (D) Beginning immediately after a complete petition is filed, the director shall compile and maintain a record consisting of all documents relating to the petition filed with or prepared by the commission. The director 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 multicounty area in which the land petitioned is located and at the main office of the director. (7) Procedures—Hearing Requirements. (A) Within ten (10) months after receipt of a complete petition, the commission 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 nature, without cross-examination of witnesses. The commission shall make a verbatim transcript of the hearing. (B) Hearing Notices. 1. The director shall give notice of the date, time, and location of the hearing to— and Areas Unsuitable for Mining A. Local, state, and federal agencies which may have an interest in the decision on the petition; B. The petitioner and the intervenors; and C. Any person with an ownership or other interest known to the director in the area covered by the petition. 2. Notice of the hearing shall be sent by certified mail and postmarked not less than thirty (30) days before the scheduled date of the hearing. (C) The director shall notify the general public of the date, time, and location of the hearing by placing a newspaper advertisement once a week for two (2) 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 (4–5) weeks before the scheduled date of the public hearing. (D) The commission may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale. (E) Prior to designating any land areas as unsuitable for surface coal mining operations, the commission will 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 this designation on the environment, the economy, and the supply of coal. (F) In the event that all petitioners and intervenors stipulate agreement prior to the hearing, the petition may be withdrawn from consideration. (8) Procedures—Decision. (A) In reaching its decision, the commission shall use— 1. Information contained in the data base and inventory system; 2. Information provided by other governmental agencies; 3. The detailed statement prepared under subsection (7)(E) of this rule; and 4. Any other relevant information submitted during the comment period. (B) A final written decision shall be issued by the commission, including a statement of reasons, within sixty (60) days of completion of the public hearing or, if no public hearing is held, then within twelve (12) months after receipt of the complete petition. The director shall simultaneously send the decision by certified mail to the petitioner, every other party to the proceeding and to the regional director of the office for the region in which the state is located. (C) The decision of the commission with respect to a petition, or the failure of the commission to act within the time limits set forth in this section, are subject to judicial review. (9) Data Base and Inventory System Requirements. (A) The director shall develop a data base and inventory system which will permit evaluation of whether reclamation is feasible in areas covered by petitions. (B) The director shall include in the system information relevant to the criteria in section (1) of this rule, 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 (42 USC Section 7470). (C) The director shall add to the data base and inventory system the following information: 1. On potential coal resources of the state, demand for those resources, the environment, the economy, and the supply of coal sufficient to enable the commission to prepare the statements required by subsection (7)(E) of this rule; and 2. That which becomes available from petitions, publications, experiments, permit applications, mining and reclamation operations, and other sources. (10) Public Information. The director shall— (A) Make the information and data base system developed under section (9) of this rule available to the public for inspection free of charge and for copying at reasonable cost; and (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. (11) Responsibility for Implementation. (A) Permits will not be issued which are inconsistent with designations made pursuant to 10 CSR 40-5.010 or this rule. (B) The director shall maintain a map of areas designated as unsuitable for all or certain types of surface coal mining operations. (C) The director shall make available to any person any information within his/her control regarding designations, including mineral and elemental content which is potentially toxic in the environment but excepting proprietary information on the chemical and physical properties of the coal. AUTHORITY: section 444.530, RSMo 2000.* Original rule filed Oct. 12, 1979, effective Feb. 11, 1980. Amended: Filed April 14, 1980, effective Aug. 11, 1980. Amended: Filed Sept. 15, 1988, effective Jan. 15, 1989. Amended: Filed June 29, 2011, effective Jan. 30, 2012. *Original authority: 444.530, RSMo 1971, amended 1983, 1990, 1993, 1995.