Permit Reviews, Revisions and Renewals and Transfer, Sale and Assignment of Rights Granted Under Permits

PURPOSE: This rule sets forth requirements for permit reviews, revisions and renewals and requirements for transfer, sale and assignments for transfer, sale and assignment of rights granted under permits pursuant to sections 444.810, 444.815, 444.840 and 444.850, RSMo. and Reclamation Operations and Coal Exploration (1) Responsibilities. The commission or director shall— (A) Ensure that permits are revised prior to changes in surface coal mining and reclamation operation; (B) Ensure that all permits are regularly reviewed to determine that surface coal mining and reclamation operations under these permits are conducted in compliance with the regulatory program; (C) Effectively review and act on applications to renew existing permits, in a timely manner, to ensure that surface coal mining and reclamation operations continue, if they comply with the regulatory program; and (D) Ensure that no person conducts surface coal mining and reclamation operations, through the transfer, sale or assignment of rights granted under permits, without prior approval. (2) Definitions. As used in sections (9)–(11) of this rule— (A) Successor in interest means any person who succeeds to rights granted under a permit by transfer, assignment or sale of those rights; and (B) Transfer, assignment or sale of rights means a change in ownership or other effective control over the right to conduct surface coal mining operations under a permit. (3) Review of Outstanding Permits. (A) Review Periods. 1. The director shall review each permit issued and outstanding during the term of the permit. This review shall occur not later than the middle of the permit term and as required by 10 CSR 40-6.060(1), (3) and (5). 2. For permits of longer than five (5)- year terms, a review of the permit shall be no less frequent than the permit midterm or every five (5) years whichever is more frequent. (B) After this review, the director shall file a report with the commission. This report shall order reasonable revision or modification of the permit provisions which are appropriate to ensure compliance with the regulatory program. (C) Copies of the report and order of the director shall be sent to the permittee. (D) Any order of the director requiring revision or modification of permits shall be based upon written findings and shall be subject to the provisions of administrative and judicial review of 10 CSR 40-6.080. (4) Permit Revisions. (A) A revision to a permit shall be obtained— 1. For changes in the surface coal mining or reclamation operations described in the original application and approved under the original permit, when these changes constitute a significant departure from the method of conduct of mining or reclamation operations contemplated by the original permit. A significant departure includes any change in the permit area, mining method or reclamation procedure which, in the opinion of the director, would significantly change the effect the mining operation would have on either those persons affected by the present operation or on the environment; 2. When required by an order issued under section (3) of this rule; 3. In order to continue operations after the cancellation or material reduction of the liability insurance policy or performance bond upon which the original permit was issued; or 4. As otherwise required under the regulatory program. (B) The application for revision shall be filed in accordance with the following: 1. The permittee shall submit the application to the director within the time provided for by 10 CSR 40-6.010(4)(B)3.; and 2. The scale or extent of permit application information requirements and procedures, including notice and hearings, applicable to revision requests shall be sufficient to demonstrate compliance with all applicable rules. Any application for a revision which proposes significant alterations in the operations described in the materials submitted in the application for the original permit under 10 CSR 40-6.030, 10 CSR 40-6.040, 10 CSR 40-6.050, 10 CSR 40-6.060, 10 CSR 406.100, 10 CSR 40-6.110 or 10 CSR 40-6.120 or in the conditions of the original permit, at a minimum, shall be subject to the requirements of 10 CSR 40-6.070 and 10 CSR 406.080. (C) Within a reasonable time, the director will approve or disapprove the complete application for revision, in accordance with the requirements of 10 CSR 40-6.070. (D) Any extensions to the area covered by a permit, except for incidental boundary revisions, shall be made by application for a new permit and shall not be approved under this rule. (E) The applicant for a permit revision shall have the burden of establishing that the application is in compliance with all the requirements of the regulatory program. (5) Permit Renewals—General Requirements. (A) Any valid, existing permit issued pursuant to 10 CSR 40-6 shall carry with it the right of successive renewal upon expiration of the term of the permit, in accordance with sections (6)—(8) of this rule. Successive renewal shall be available only for those areas which were specifically approved by the commission or director on the application for the existing permit as within the boundaries of the permit. (B) Permit renewal shall not be available for conducting surface coal mining and reclamation operations on lands beyond the boundaries of the permit area approved under the existing permit. Approval of permits to conduct operations on these lands, including, but not limited to, any remainder of the mine plan area described in the application for the existing permit, shall be obtained in accordance with paragraph (6)(B)2. of this rule. (6) Permit Renewals—Completed Applications. (A) Contents. Complete applications for renewals of a permit shall be made within the time prescribed by 10 CSR 40-6.010(4)(B)2. Renewal applications shall be in a form with contents required by the director in accordance with paragraph (6)(B)2. of this rule, including at a minimum, the following: 1. A statement of the name and address of the permittee, the term of the renewal requested, the permit number and a description of any changes to the matters set forth in the original application for a permit or prior permit renewal; 2. A copy of the newspaper notice and proof of publication of same under 10 CSR 40-6.070(2)(A); and 3. Evidence that a liability insurance policy under 10 CSR 40-7.050 will be provided by the applicant for the proposed period of renewal. (B) Processing and Review. 1. Complete applications for renewal shall be subject to the requirements of public notification and participation contained in 10 CSR 40-6.070(2)–(5). 2. If a complete application for renewal of a permit includes a proposal to extend the mining and reclamation operation beyond the boundaries authorized in the existing permit, the portion of the complete application for renewal of a valid permit which addresses any new land areas shall be subject to the full standards applicable to new permit applications under 10 CSR 40-6.010, 10 CSR 406.030—10 CSR 40-6.120 and 10 CSR 40-7. 3. Before finally acting to grant the permit renewal, any additional performance bond needed to comply with the requirements of paragraph (8)(A)4. of this rule shall be filed. (7) Permit Renewals—Terms. Any permit renewal shall be for a term not to exceed the period of the original permit established under 10 CSR 40-6.070(12). (8) Permit Renewals—Approval or Denial. (A) The director, upon the basis of a complete application for renewal and completion of all procedures required under sections (6) and (7) of this rule, shall issue a renewal of a permit, unless it is established and written findings are made that— 1. The terms and conditions of the existing permit are not being satisfactorily met; 2. The present surface coal mining and reclamation operations are not in compliance with the environmental protection standards under 10 CSR 40-3 and 10 CSR 40-4 and the regulatory program; 3. The requested renewal substantially jeopardizes the operator’s continuing responsibility to comply with the regulatory program on existing permit areas; 4. The operator has not provided evidence that any performance bond required to be in effect for the operations will continue in full force and effect for the proposed period of renewal, as well as any additional bond required pursuant to 10 CSR 40-7; or 5. Any additional revised or updated information required has not been provided by the applicant. (B) In determining whether to approve or deny a renewal, the burden shall be on the opponents of renewal. (C) The director shall send copies of any decision to the applicant, any persons who filed objections or comments to the renewal and to any persons who were parties to any informal conference held on the permit renewal. (D) Any person having an interest which is or may be adversely affected by the decision shall have the right to administrative and judicial review set forth in 10 CSR 40-6.080. (9) Transfer, Assignment or Sale of Permit Rights—General Requirements. No transfer, assignment or sale of the rights granted under any permit issued shall be made without the prior written approval of the director in accordance with section (10) of this rule. (10) Transfer, Assignment or Sale of Permit Rights. (A) Application Requirements. An applicant for approval of the transfer, assignment or sale of permit rights shall— 1. Provide the director with an application for approval of the proposed transfer, assignment or sale including: A. The name and address of the existing permittee and permit number or other identifier; B. A brief description of the proposed action requiring approval; and C. The legal, financial, compliance and related information required by 10 CSR 40-6.030(1)–(3), (4)(C), (6) and (7) for surface mine operations or 10 CSR 40-6.100(1)– (3), (4)(D), (6) and (7) for underground operations for the applicant for approval of the transfer, assignment or sale of permit rights; 2. Advertise once the filing of the application in a newspaper of general circulation in the locality of the operations involved, indicating the name and address of the applicant, the permittee, the permit number or other identifier, the geographic location of the permit and the address to which written comments may be sent; and 3. Obtain appropriate performance bond coverage in an amount sufficient to cover the proposed operations, as required under 10 CSR 40-7.011. (B) Public Participation. Any person having an interest which is or may be adversely affected by a decision on the transfer, assignment or sale of permit rights, including an official of any federal, state or local government agency, may submit written comments on the application to the director within thirty (30) days of the newspaper advertisement. (C) Criteria for Approval. The director may allow a permittee to transfer, assign or sell permit rights to a successor, if s/he finds in writing that the successor— 1. Is eligible to receive a permit in accordance with 10 CSR 40-6.070(7) and (8); 2. Has submitted a performance bond or other guarantee, or obtained the bond coverage of the original permittee, as required by 10 CSR 40-7.011; and 3. Meets any other requirements specified by the director. (D) Notification. 1. The director shall notify the permittee, the successor, commenters and the Office of Surface Mining Reclamation and Enforcement (OSMRE) of its findings. 2. The successor shall immediately provide notice to the director of the consummation of the transfer, assignment or sale of permit rights. (E) Continued operation under existing permit. The successor in interest shall assume the liability and reclamation responsibilities of the existing permit and shall conduct the surface coal mining and reclamation operations in full compliance with the Act, the regulatory program and the terms and conditions of the existing permit, unless the applicant has obtained a new or revised permit as provided in this chapter. AUTHORITY: sections 444.530 and 444.810, RSMo Supp. 1999.* Original rule filed Oct. 12, 1979, effective Feb. 11, 1980. Amended: Filed April 14, 1980, effective Aug. 11, 1980. Amended: Filed Aug. 1, 1980, effective Dec. 11, 1980. Amended: Filed Jan. 5, 1987, effective July 1, 1987. Amended: Filed March 21, 2000, effective Oct. 30, 2000. *Original authority: 444.530, RSMo 1971, amended 1983, 1990, 1993, 1995 and 444.810, RSMo 1979, amended 1983, 1993, 1995.