Wyo. Code R. 020-0006-12
Land Quality - Coal
Chapter 12: Procedures Applicable to Surface Coal Mining Operations
Effective Date: 09/12/2011 to 12/17/2012
Rule Type: Superceded Rules & Regulations
Reference Number: 020.0006.12.09122011
(a) In addition to the permitting procedures described in the Act, the following shall be applicable to applications for a permit for a surface coal mine operation:
(i) For the purposes of alluvial valley floors, prior to determining that an application is suitable for publication in accordance with W.S. § 35-11-406(j) and upon the basis of sufficient information, the Administrator shall make a determination in writing as to the existence and extent of an alluvial valley floor within the permit area or on adjacent areas where the mining operation may affect surface water or groundwater that supply an alluvial valley floor unless the preapplication determination in Chapter 3, Section 2(a) has already been made. Any preapplication determination and all information submitted for this determination shall be included in the permit application and shall be available for public notice, opportunity for comment and any conference or hearing. The Administrator shall determine that an alluvial valley floor exists when, in accordance with W.S. § 35-11-103(e)(xviii), it is found that:
(A) Unconsolidated streamland deposits holding streams are present; and
(B) There is sufficient water to support subirrigation or flood irrigation agricultural activities.
(ii) The public notice required by W.S. § 35-11-406(j) shall:
(A) Contain detailed information which identifies a USGS map(s) and appropriate landmarks locating and allowing local residents to readily identify the proposed permit area.
(B) Be sent by the Administrator to Federal, State, and local governmental agencies, including planning agencies, with jurisdiction over or an interest in the proposed operation or permit area, and local sewage and water treatment authorities. At a minimum this shall include the U.S. Department of Agriculture Soil Conservation Service District office, the local U.S. Army Corps of Engineers District Engineer, the National Park Service if NPS lands are adjacent, State and Federal fish and wildlife agencies, and the State Historic Preservation Officer. Such entities and any person who filed a comment or objection shall also receive the final decision on the application. In addition, the Administrator will publish a summary of his decision in a newspaper of general circulation in the general area of the proposed operation.
(iii) Any subsequent revision of the application, or objections or comments to the application, shall be filed in the offices of the county clerks of the counties in which the proposed permit area is located. Copies of comments and objections shall also be transmitted to the applicant.
(iv) In addition to the specific findings required by W.S. § 35-11-406(n), no permit shall be approved unless the Administrator also finds in writing that:
(A) The proposed operation will not be inconsistent with other surface coal mining and reclamation operations proposed or contemplated in pending or approved mining permits;
(B) The effect of the proposed operation on properties listed on and properties eligible for listing on the National Register of Historic Places has been taken into account; and
(I) Mining has been prohibited within 100 feet of any such properties by permit condition; or
(II) The applicant has provided for the protection of such properties in the approved mining and reclamation plan; or
(III) The Administrator has determined, in consultation with the State Historic Preservation Officer, that no additional protection measures are necessary.
(v) The criteria contained in W.S. § 35-11-406(n)(iv) regarding Section 522(e) of P.L. 95-87 shall mean that, prior to approval of any complete application for a surface coal mining permit, the applicant must demonstrate and the Administrator determine, utilizing the assistance of the appropriate Federal, State or local government agency, if necessary, that the application does not propose a surface coal mining operation on those lands where such operation is prohibited or limited by Section 522(e) of P.L. 95-87; or if one is so proposed, that the applicant either has valid existing rights or was conducting a surface coal mining operation on those lands on August 3, 1977. Subject to the above stated limitations, surface coal mining operations are prohibited or limited:
(A) On any lands within the boundaries of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act or study rivers or study river corridors as established in any guidelines pursuant to that Act and National Recreation
Areas designated by Act of Congress;
(B) On any federal lands within the boundaries of any national forest unless the applicant demonstrates compliance with 30 CFR §761.11(b) and submits a finding by the Secretary in his favor using the procedures at 30 C.F.R. §761.13 (2009) (http://www.gpoaccess.gov/cfr/retrieve.html);
(C) On any lands where mining will adversely affect any publicly owned park or any properties listed on and any properties eligible for listing on the National Register of Historic Places, unless jointly approved by the Administrator and the Federal, State or local agency with jurisdiction over the park or place;
(D) Within 100 feet, measured horizontally, of the outside right-of-way line of any public road, except where mine primary roads join such right-of-way line. Provided, however, the Administrator may specifically authorize operations where the road is to be relocated, closed, or where the area affected lies within 100 feet of a public road. Such specific authorization shall follow notice and an opportunity for public hearing in the locality of the proposed operation together with a written finding on whether the interests of the public and the affected landowners will be protected from the proposed operation. If a hearing is requested, a public notice shall be published at least two weeks prior to the hearing in a local newspaper of general circulation. If a hearing is held, the authority shall make this finding within 30 days after the hearing or if a hearing is not held the authority must make this finding within 30 days after the end of the public comment period. The Administrator may rely upon findings of the public road authority with jurisdiction over the road in specifically authorizing road relocations or closures;
(E) Within 300 feet from any occupied dwelling except when the owner has provided a written waiver consenting to operations within a closer distance, clarifying that the owner and signator had the legal right to deny mining and knowingly waived that right. Such a waiver shall remain effective, regardless of when it was obtained, against subsequent purchasers who had actual or constructive knowledge of the existing waiver at the time of purchase. Subsequent purchasers shall be deemed to have constructive knowledge if the waiver has been properly filed in the public property records or if the mining has proceeded to within the 300-foot limit prior to the date of purchase;
(F) Within 300 feet, measured horizontally, of any public building, school, church, community, or institutional building, or public park; or
(G) Within 100 feet, measured horizontally, of a cemetery.
(vi) For Federal lands described in subsections (v)(A) and (v)(B) above the Office of Surface Mining Reclamation and Enforcement shall be the responsible agency for making valid existing rights (VER) determinations. For Non-Federal lands described in subsection (v)(A) above the Division is the responsible agency for making VER determinations and shall make evaluations using the Federal VER definition.
(vii) VER submission requirements and procedures.
(A) A request for a VER determination shall be submitted to the appropriate agency identified in subsection (vi) above. Requests may be submitted prior to submitting an application for a permit or boundary revision for the land.
(I) Property rights demonstrations that rely on the good faith/all permits standard or the needed for and adjacent standard shall include the following:
(1.) A legal description of the land to which the request pertains;
(2.) Complete documentation of the character and extent of the current interests in the surface and mineral estates of the land to which the request pertains;
(3.) A complete chain of title for the surface and mineral estates of the land to which the request pertains;
(4.) A description of the nature and effect of each title instrument that forms the basis of the 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 the requestor claims 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 522(e) of P.L. 95-87 (2009), (http://www.gpoaccess.gov/uscode/) or 30 C.F.R. §761.11 (2009), (http://www.gpoaccess.gov/cfr/retrieve.html), of all property rights for the surface and mineral estates of the land to which the request pertains;
(7.) Names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains;
(8.) If the coal interests have been severed from other property interests, documentation that the requestor has notified and provided reasonable opportunity for the owner of other property interests in the land to which the request pertains to comment on the validity of the property rights claims made; and
(9.) Any comments that are received in response to the notification discussed in (8.) above.
(II) If the VER determination request relies on the good faith/all permits standard, the request shall include the documentation discussed in (I) above, and:
(1.) Approval and issuance dates and identification numbers for any permits, licenses and authorizations that the person seeking the request or a predecessor in interest obtained before the land came under the protection of 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009);
(2.) Application dates and identification numbers for any permits, licenses and authorizations that the person seeking the request or a predecessor in interest submitted an application before the land came under the protection of 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009); and
(3.) An explanation of any other good faith effort that was made by the person seeking the request 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 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009).
(III) If the request relies on the needed for and adjacent standard, the request shall include the documentation discussed in (I) above and shall also explain how and why the land is needed for and immediately adjacent to the operation on which the request is based including a demonstration that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009).
(III) If the request relies on the needed for and adjacent standard, the request shall include the documentation discussed in (I) above and shall also explain how and why the land is needed for and immediately adjacent to the operation on which the request is based including a demonstration that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009).
(IV) If the request relies on one of the standards for roads the request shall include documentation that:
(1.) The road existed when the land on which it is located came under the protection of 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009) and that the person making the request has 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 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009) and under the document creating the right of way or easement, and under any subsequent conveyances the person making the request has a legal right to use or construct a road across the 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 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009).
(I) The responsible agency shall conduct an initial review to determine whether the request includes all applicable components of the submission requirements discussed in subsection (A) above. This review examines completeness only.
(II) If the request does not include all applicable components of the submission requirements, the responsible agency shall notify the requestor and establish a reasonable time for submitting the missing components.
(III) When the request contains all applicable submission requirements the responsible agency shall implement the notice and comment requirements discussed in subsection (C) below.
(IV) If the information requested in (II) above is not submitted within the time specified or amended the responsible agency shall issue a determination that the VER has not been demonstrated as discussed below.
(I) When the VER request satisfies the completeness requirements of (B) above, the VER applicant must publish a notice in a newspaper of general circulation in the county in which the land is located. This notice must invite comment on the merits of the request. The applicant must provide the Division with a proof of publication. Each notice shall include:
(1.) Location of land to which the VER request pertains;
(2.) A description of the type of surface coal mining operations planned;
(3.) A reference to and brief description of the applicable standards for which the VER request will be determined;
a. If the request relies upon the good faith/all permits standard or the needed for and adjacent standard, the notice shall also contain a description of the property rights claimed and the basis for the claim.
b. If the request relies upon the standard in subsection (IV)(1.) above, the notice shall also include a description of the basis for the claim that the road existed when the land came under the protection of 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009). In addition the notice shall include a description of the basis for your claim that the VER requestor has a legal right to use that road for surface coal mining operations.
c. If the request relies upon the standard in subsection (IV)(2.) above, the notice shall also include a description of the basis for the 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 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009). In addition the notice shall include a description of the basis for the claim that, under the document creation the right of way or easement, and under any subsequent conveyances, the VER requestor has a legal right to use or construct a road across the right of way or easement to conduct surface coal mining operations.
d. If the request relies upon one or more of the standards in Chapter 1, VER definition, a statement that the Division will not make a decision on the merits of the request if, by the close of the comment period under this notice or the notice required below, 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 the VER claim.
e. A description of the procedures that the agency will follow to process a VER request.
f. The closing date of the comment period, which must be a minimum of 30 days after the publication date of the notice.
g. A statement that interested persons may obtain a 30-day extension of the comment period on request.
h. The name and address of the agency office where a copy of the request is available for a public inspection and to which comments and requests for extension of the comment period should be sent.
(II) The Division shall promptly provide a copy of the notice required under this Section to:
(1.) All reasonably locatable owners of surface and mineral estates in the land included in the VER request.
(2.) The owner of the feature causing the land to come under the protection of 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009) and, where applicable, the agency with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009).
(III) The letter transmitting the notice required under subsection (II) above shall 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.
(D) How a VER decision will be made.
(I) The Land Quality Division shall review the materials submitted, any comments received 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 Division shall notify the requestor in writing, explaining the inadequacy of the record and requesting submittal, within a specified reasonable time, of any additional information that the agency deems necessary to remedy the inadequacy.
(II) Once the record is complete and adequate, the Division shall determine whether the requestor has demonstrated VER. The decision document shall explain how the requestor has or has not satisfied all the applicable elements, shall contain findings of fact and conclusions and shall specify the reasons for the conclusions.
(III) Impact of property rights disagreements. This subsection only applies when the request relies upon on or more of the standards in the Chapter 1, VER definition.
(1.) The Division shall issue a determination that the requestor has not demonstrated VER if the property rights claims are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. A requestor may refile the request once the property rights dispute is finally adjudicated. This subsection only applies if the legal action has been initiated as of the closing date of the comment periods discussed above.
(2.) If the record indicates disagreement as to the accuracy of the requestor’s property rights claims, but the disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, the responsible agency shall evaluate the merits of the information in the record and determine whether the requestor has demonstrated that the requisite property rights exist under the VER definition in Chapter 1 of these Rules and Regulations, as appropriate. The responsible agency shall then proceed to subsection (C)(II) above.
(IV) The Division must issue a determination that the requestor has not demonstrated VER if the requestor has not submitted the information requested under subsections (B)(II) and (D)(I) above within the time specified or as subsequently extended. A requestor may submit a revised request at any time after that determination has been made.
(V) After making a VER determination, the Division shall:
(1.) Provide a copy of the determination, together with an explanation of appeal rights and procedures to the VER requestor, the owner or owners of the land to which the determination applies, the owner of the feature causing the land to come under the protection of 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11(2009) and when applicable, to the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of 522(e) of P.L. 95-87 (2009) or 30 C.F.R. §761.11 (2009).
(2.) Require the VER requestor to publish notice of the determination in a newspaper of general circulation in the county in which the land is located and provide the Division with proof of publication. If the initial VER request contained Federal lands with an area listed in subsections (v)(A) and (B) above, the OSM will publish the determination, together with an explanation of appeal rights and procedure in the Federal Register.
(E) Administrative and judicial review. A determination that the VER requestor does or does not have VER is subject to administrative and judicial review.
(F) When the Division is the agency responsible for processing a request subject to notice and comment under subsection (C) above shall make a copy of that request and related materials available to the public in the same manner as public availability of permit applications under these Rules and Regulations.
(G) Procedures for joint approval of surface coal mining operations that will adversely affect publicly owned parks or historic places.
(I) 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 agency with jurisdiction over the park or place either approve or object to the proposed operation. The request shall:
(1.) Include a copy of applicable parts of the permit application.
(2.) Provide the agency with 30 days after receipt to respond, with a notice that another 30 days is available upon request.
(3.) State that failure to interpose an objection within the time specified under subsection (2.) above will constitute approval of the proposed operation.
(II) The regulatory authority may not issue a permit for a proposed operation subject to subsection (I) above unless all affected agencies jointly approve.
(III) Subsections (I) and (II) above do not apply to:
(1.) Lands for which a person has VER, as determined under Section 1(a)(vi) and (vii) of this Chapter;
(2.) Lands within the scope of the exception for existing operations contained in the Chapter 1, “valid existing rights” definition.
(viii) Final Compliance Review. After finding the application suitable for publication but prior to permit issuance, the regulatory authority shall reconsider its approval based on a review of:
(A) The information the applicant submitted regarding applicant, operator and ownership and control information AVS information and any other available information to review the applicants and operators organizational structure and ownership or control relationships;
(B) The information the applicant submitted regarding applicant permit history, AVS information and any other available information to review the applicant and operator’s permit history. In addition, the regulatory authority shall determine if the applicant and operator have previous mining experience and if the applicant or operator does not have any previous mining experience additional ownership and control investigations; and
(C) The information the applicant submitted regarding compliance history, AVS compliance report and any other available information to review histories of compliance with the Wyoming Environmental Quality Act and regulations promulgated thereunder and any other air or water quality laws for the applicant, operator, operations owned and controlled by the applicant and operations the operator owns and controls.
(ix) The regulatory authority shall enter into AVS:
(A) The information submitted in the application regarding business entity type; tax identification numbers, the name, address and phone numbers for the applicant, resident agent, operators if different from the applicant and the applicant’s and operator’s business organizational structure;
(B) The information submitted pertaining to violations which are unabated or uncorrected after the abatement or correction period has expired; and
(C) The regulatory authority shall update the information above upon verification of any additional information submitted or discovered during the regulatory authority’s permit application review.
(D) For the purposes of future permit eligibility determinations and enforcement actions:
(I) All permit records within 30 days after the permit is issued or subsequent changes are made;
(II) All unabated or uncorrected violations within 30 days after the abatement or correction period for a violation expired;
(III) All changes to information initially required to be provided by the applicant as part of the application process within 30 days after receiving notice of a change; and
(IV) All changes in violation status within 30 days after abatement, correction, or termination of a violation or a decision from an administrative or judicial tribunal.
(x) In addition to the specific findings required by W.S. § 35-11-406(n) and based on the reviews required in subsection (viii) above, the Land Quality Division (LQD) shall determine whether the applicant is eligible for a coal mining permit. An applicant is not eligible for a permit if the LQD determines that for any surface coal mining operation:
(A) The applicant directly own or control has an unabated or uncorrected violation;
(B) The applicant or his operator indirectly control has an unabated or uncorrected violation and your control was established or the violation was cited after November 2, 1988; or (C) The applicant or his operator controls or has controlled mining operations with a demonstrated pattern of willful violations as outlined in W.S. § 35-11-406(o).
(xi) Following the Director’s approval of a permit but prior to issuance of that permit, the applicant shall update, correct or indicate that no change has occurred in the information provided in Chapter 2, Section 2.
(xii) After the applicant completes the above requirements, the DEQ shall request a compliance history report from AVS to determine if there are any unabated or uncorrected violations that affect the applicant’s permit eligibility in subsection (x) above. The DEQ shall request this report no more than five business days before a permit is issued. If the applicant is ineligible for a permit the DEQ shall send you written notification of the decision and will detail the reasons for ineligibility and include notice of appeal rights.
(xiii) A person may challenge a listing or finding of ownership or control using the procedures detailed below if that person is:
(A) Listed in a permit application or in AVS as an owner or controller of an entire surface coal mining operation, or any portion or aspect thereof; or
(B) An applicant or permittee affected by an ownership and control listing or finding.
(xiv) In order to challenge an ownership and control listing or finding a written explanation shall be submitted to the regulatory authority regarding the basis of the challenge along with any evidence or explanatory materials outlined in subsection (E) below. If the challenge concerns a pending permit application the written explanation shall be submitted to the regulatory authority with jurisdiction over the application. If the challenge concerns the applicant’s ownership and control of a surface coal mining operation and are not currently seeking a permit the written explanation shall be submitted to the regulatory authority with jurisdiction over the surface coal mining operation.
(A) When a challenge concerns a violation under the jurisdiction of a different regulatory authority, the regulatory authority with jurisdiction over the permit application or permit shall consult the regulatory authority with jurisdiction over the violation and the AVS Office to obtain additional information.
(B) The regulatory authority responsible for deciding a challenge under this section may request an investigation by the AVS Office.
(C) At any time a person listed in AVS as an owner or controller of a surface coal mining operation may request an informal explanation from the AVS Office as to the reason they are shown in the AVS in an ownership or control capacity.
(D) When a challenge is made to a listing of ownership and control, or a finding of ownership and control, the challenger must prove by a preponderance of the evidence that they either:
(I) Do not own or control the entire operation or relevant portion or aspect thereof; or
(II) Did not own or control the entire operation or relevant portion or aspect during the relevant time period.
(E) In order to meet the burden of proof in subsection (D) above, the challenger must present reliable, credible, and substantial evidence and any explanatory materials to the regulatory authority. A request to hold materials submitted under this Section confidential may be made to the Administrator subject to Land Quality Division Rules and Regulations and the Wyoming Public Records Act. Acceptable materials include, but are not limited to:
(I) Notarized affidavits containing specific facts concerning the duties that were performed for the relevant operation, the beginning and ending dates pertaining to ownership or control of the operation, and the nature and details of any transaction creating or severing ownership or control of the operation in question;
(II) Certified copies of corporate minutes, stock ledgers, contracts, purchase and sale agreements, leases, correspondence, or other relevant company records;
(III) Certified copies of documents filed with our issued by any State; municipal, or Federal government agency;
(IV) An opinion of counsel, when supported by evidentiary materials, a statement by counsel that they are qualified to render the opinion and a statement that counsel has personally and diligently investigated the facts of the matter.
(F) Within sixty (60) days of receipt of a challenge as described above, the Division will review and investigate the evidence and explanatory materials submitted and any other reasonable available information bearing on the challenge and issue a written decision. The decision shall state whether the challenger own or control the relevant surface coal mining operation, or owned or controlled the operation during the relevant time period. Decisions regarding the challenge will be promptly provided to the challenger by either certified mail, return receipt requested or by any alternative means consistent with rules governing service under the Wyoming Rules of Civil Procedure. Service of the decision will be complete upon delivery and is not incomplete if acceptance of delivery is refused. Appeals of the written decision will be administered under the DEQ’s Rules of Practice and Procedure. AVS shall be revised as necessary to reflect these decisions.
(G) Improvidently issued coal mining permits.
(I) If the DEQ has reason to believe that a permit was improvidently issued to the permittee a review shall be conducted of the circumstances under which the permit was issued. The DEQ shall make a preliminary finding that the permit was improvidently issued if under the permit eligibility requirements in effect at the time of permit issuance the permit should not have been issued because the applicant or operator owned or controlled a surface coal mining and reclamation operation with an unabated or uncorrected violation.
(II) The DEQ will make a finding under subsection (I) above only if the applicant or operator:
(1.) Continue to own or control the operation with the unabated or uncorrected violation;
(2.) The violation remains unabated or uncorrected; and
(3.) The violation would cause the permittee to be ineligible under the permit eligibility criteria under the current rules and regulations.
(III) When a preliminary finding under subsection (I) above is made, a written notice shall be served on the permittee which must be based on evidence sufficient to establish a prima facie case that the permit was improvidently issued. Within thirty (30) days of receiving a written notice the permittee may challenge the preliminary finding by providing the DEQ with evidence as to why the permit was not improvidently issued under the criteria of subsections (I) and (II) above. Challenges under subsections (I) and (II)(1.) above shall use the procedures outlined in subsections (D) through (F) above when the challenge is related to whether the permittee or operator currently own or control, or owned or controlled, a surface coal mining operation.
(IV) The DEQ shall serve the permittee with written notice of a proposed suspension or rescission together with a statement of the reasons for the proposed suspension or rescission, if after considering any evidence submitted under subsection (III) above the DEQ finds that a permit was improvidently issued under the criteria of subsections (I) and (II) above. If a permit suspension is proposed, sixty (60) days notice shall be provided and if a permit rescission is proposed one hundred twenty (120) days notice shall be provided.
(V) Appeals regarding the notice shall be governed by the Wyoming Environmental Quality Act, DEQ Rules of Practice and Procedure, the Wyoming
Administrative Procedure Act and Chapter 12 of these Rules and Regulations. The times specified in subsection (IV) above shall be applicable unless the Environmental Quality Council has granted a stay for temporary relief to provide the administrative review in subsection (VII) below.
(VI) Except as provided in subsection (VII) below, the DEQ shall suspend or rescind the permit upon expiration of the notice periods provided in subsection (IV) above unless the permittee has submitted evidence and the DEQ finds that:
(1.) The violation has been abated or corrected to the satisfaction of the agency with jurisdiction over the violation;
(2.) The permittee or operator no longer own or control the relevant operation;
(3.) The DEQ’s finding for suspension or rescission was in error;
(4.) The violation is the subject of a good faith administrative or judicial appeal, unless there is an initial judicial decision affirming the violation and that decision remains in force;
(5.) The violation is the subject of an abatement plan or payment schedule that is being met to the satisfaction of the agency with jurisdiction over the violation; or
(6.) The permittee is pursuing a good faith challenge or administrative or judicial appeal of the relevant ownership or control listing or finding unless there is an initial judicial decision affirming the listing or finding and that decision remains in force.
(VII) If an administrative review is requested of a notice of proposed suspension or rescission, the DEQ will not suspend or rescind the permit unless and until the finding is affirmed that the permit was improvidently issued.
(VIII) When a permit is suspended or rescinded under this section, the DEQ shall:
(1.) Issue a written notice requiring that the permittee and operator shall cease all surface coal mining operations under the permit; and
(2.) Post the notice in the District office closest to the permit area.
(IX) Appeals regarding the decision shall be governed by the Wyoming Environmental Quality Act, DEQ Rules of Practice and Procedure, the Wyoming Administrative Procedure Act and Chapter 12 of these Rules and Regulations.
(xv) If the Administrator is unable to determine whether or not the proposed operation is on lands where surface coal mining operations are prohibited, lands described in (v) immediately above, then a copy of relevant portions of the application shall be sent to appropriate State, Federal and local government agencies with an interest or jurisdiction in the lands in question. Along with the copy a notice shall be sent asking for clarification or determination of relevant boundaries or distances, and stating that the agency has 60 days from receipt of the notice to respond. If no response is received, the Administrator may make a determination based on the information available.
(xvi) The criteria for permit approval where prime farmland will be affected by the mining operation shall be that, upon the basis of the complete application:
(A) The postmining land use of the prime farmland will be capable of supporting crop yields equivalent to the surrounding nonmined prime farmland under equivalent levels of management.
(B) Adequate consideration has been given to any soil reconstruction revisions recommended by the local conservation district and Soil Conservation Service.
(C) The applicant has the technological capability to restore the prime farmland.
(xvii) In addition to the specific findings required by W.S. § 35-11-406(n), no permit authorizing a delay in the contemporaneous reclamation requirements for a proposed combined surface and underground mining operation shall be approved unless the Administrator finds that:
(A) The proposed underground mining activities will assure maximum practical recovery of the resource and avoid multiple future disturbances of surface land or waters.
(B) The permit for the surface mining activities contains specific conditions:
(I) Delineating the particular surface area for which a delay in reclamation is authorized; and
(II) Identifying the alternative reclamation standards in lieu of those otherwise applicable, together with a detailed schedule for timely compliance.
(xviii) In granting surface coal mining permits, the Director shall impose the following conditions on the operation:
(A) All operations shall be conducted in accordance with the approved mining and reclamation plan and any conditions of the permit or license;
(B) The rights of entry shall be provided as described by the Act and any regulations promulgated pursuant thereto;
(C) The operation shall be conducted in a manner which prevents violation of any other applicable State or Federal law;
(D) All possible steps shall be taken to minimize any adverse impact to the environment or public health and safety resulting from noncompliance with the approved mining and reclamation plan and other terms and conditions of any permit or license, including monitoring to define the nature of the noncompliance and warning of any potentially dangerous condition; and
(E) All reclamation fees shall be paid as required by Title IV, P.L. 95-87, for coal produced under the permit for sale, transfer or use.
(b) All procedural requirements of the Act and the regulations relating to review, public participation, and approval or disapproval of permit applications, and permit term and conditions shall, unless otherwise provided, apply to permit revisions, amendments, renewals and transfers. In addition, the following requirements are applicable.
(i) All requirements imposed by W.S. § 35-11-405(e) for permit renewals. The application shall be filed at least 120 days before the expiration of the permit term and shall include at a minimum:
(A) A statement of the name and address of the permittee, the term of the renewal requested, the permit number, a description of any changes to the matters set forth in the original application for a permit or prior permit renewal;
(B) A copy of the public notice and proof of publication;
(C) Evidence that the bond and a liability insurance policy will be provided; and
(D) Additional revised or updated information required by the Administrator.
(E) If an application for renewal includes any proposed revisions to the mine or reclamation plan, such revisions shall be identified and subject to the requirements of Chapter 13.
(ii) All requirements imposed by W.S. § 35-11-408 and this provision for permit transfers. These requirements shall be met, as evidenced by the written approval of the statement of qualifications by the Administrator and Director, prior to any permit transfer. Permit transfers shall not be subject to the requirements of W.S. § 35-11-406(g).
(A) The potential transferee shall obtain a renewal bond by either transfer of the permit holder's bond, written agreement with the permit holder, or providing other sufficient bond or equivalent guarantee.
(B) The statement of qualifications shall contain all information which would be required if the potential transferee were the original applicant for the permit and, in addition, the name of the existing permit holder.
(a) For surface coal mining operations, the following two types of bond calculations shall be required for setting a single bond amount:
(i) Area Bond: This bond calculation shall be no less than the estimated cost of completing the maximum amount of rough backfilling during the annual bonding period set forth in W.S. §§ 35-11-411 and 35-11-417(c), in order to meet the applicable rough backfilling standards in Chapter 4 of these regulations and any other rough backfilling requirements of the approved permit.
(ii) Incremental Bond: This bond calculation shall be no less than the estimated cost of performing all reclamation requirements other than those covered by (a)(i) above, during the annual bonding period in order to meet the standards of the Act, the regulations, and the provisions of the permit.
(b) For purposes of determining bond amounts, the estimated cost shall include all costs necessary, expedient or incidental to achieve required rough backfilling and reclamation. This shall reflect the probable difficulty of reclaiming the affected lands, giving consideration, as applicable, to such factors as topography, geology of the site, hydrology and revegetation potential. The estimated cost shall be based on the operator's cost estimate submitted with the permit, plus the Administrator's estimate of the additional cost to the State of bringing in personnel and equipment should the operation fail or the site be abandoned, plus an additional amount covering reclamation cost for any land which may reasonably be expected to be affected, as determined by the Administrator's assessment of the applicant's mine plan, prior to filing the renewal bond. All bonds shall be calculated on, and never fall below, the amount necessary to assure that the operator shall faithfully perform all requirements of the Act and comply with all rules and regulations and any provisions of the approved permit.
(c) Upon receipt of the annual report required by W.S. § 35-11-411, the Administrator shall publish a notice in a newspaper of general circulation in the locality of the mining operation, notifying all interested persons that the annual report is available for review, and that the renewal area and incremental bond calculations will be determined. Interested persons may submit information relating to the bond amounts within 30 days of the notice. This information, together with information submitted by the operator and developed by the Division, shall be considered by the Administrator and Director in setting bond amounts.
(d) Liability.
(i) Liability under the bond(s) shall be for the entire permit area.
(ii) Liability under the area bond shall be for a duration sufficient to assure that all rough backfilling has been achieved pursuant to the applicable standards of Chapter 4, Section 2.(b) and the approved permit.
(iii) Liability under the incremental bond shall be for the entire duration of the operation and for the ten-year period of revegetation responsibility described in Chapter 4, Section 2(d). The liability period and area for an incremental bond may be limited if it is posted and approved to guarantee only specific increments of reclamation within the permit. Actions of third persons to implement an approved alternative postmining land use, which are beyond the control of the permittee or operator need not be covered by the bond.
(iv) Isolated increments of bonded land.
(A) Isolated and clearly defined portions of the permit area requiring extended liability or limited areas or increments being assessed a specific bond amount may be separated from the original area and bonded separately with the approval of the Administrator.
(B) Such areas shall be of sufficient size and configuration and not constitute a scattered, intermittent, or checkerboard pattern to provide for efficient reclamation operations should reclamation by the Administrator become necessary pursuant to Section 2(b) of this Chapter.
(C) Access to the isolated areas for remedial work may be included in the area under extended liability if deemed necessary by the Administrator.
(e) A permittee may request reduction of the amount of either the area or incremental bond upon submission of evidence to the Administrator proving that the permittee's method of operation or other circumstances will reduce the estimated cost to the State for reclamation. This reduction of bond shall be deemed a bond adjustment if the reduction is based on a change in method of operation or a decrease in the number of acres projected to be disturbed. If the reduction is due to a decrease in the number of acres that have already been disturbed to account for areas partially reclaimed, then the request for reduction will be considered a request for partial bond release in accordance with the procedures of Chapter 15.
(f) A corporate surety shall not be considered good and sufficient for purposes of W.S. § 35-11-417(b) unless:
(i) It is licensed to do business in the State;
(ii) The estimated bond amount does not exceed the limit of risk as provided for in W.S. § 26-5-110, nor raise the total of all bonds held by the applicant under that surety above three times the limit of risk;
(iii) The surety agrees:
(A) Not to cancel bond, except as provided for in W.S. § 35-11-419 or where the Administrator approves a good and sufficient replacement surety with transfer of the liability that has accrued against the permittee on the permit area;
(B) To be jointly and severally liable with the permittee; and
(C) To provide notice to the Administrator and operator once it becomes unable or may become unable due to any action filed against it to fulfill its obligations under the bond.
(g) The provisions applicable to cancellation of the surety's license in W.S. § 35-11-420 shall also apply if for any other reason the surety becomes unable to fulfill its obligations under the bond. Upon such occurrence the operator shall provide the required notice. Failure to comply with this provision shall result in suspension of the permit.
(h) The Administrator shall not accept an individual certificate of deposit in an amount in excess of $100,000 or the maximum insurable amount as determined by the FDIC or the Federal Savings and Loan Insurance Corporation. Such certificates of deposit shall be made payable to the Department both in writing and upon the records of the bank issuing these certificates. The Administrator shall require the banks issuing these certificates to waive all rights of setoff or liens against the certificates. The bond amount may be calculated to include any amount which would be deducted as a penalty for payment before maturity.
(i) Minimum insurance coverages for the public liability insurance policy required in W.S. § 35-11-406(a)(xiii) shall be $300,000 for each occurrence of bodily injury or property damage, and $500,000 aggregate.
(j) The public insurance liability policy shall include a rider requiring that the insurer notify the Administrator whenever substantive changes are made in the policy, including any termination or failure to renew. The policy shall be maintained in full force during the life of the permit or any renewal thereof, including the liability period necessary to complete all reclamation operations.