3. Informal conferences held under this section may be used by the commission as the public

69-02-04-07. 3. Informal conferences held under this section may be used by the commission as the public hearing opportunity required under section 69-05.2-04-01 on proposed uses or relocation of public roads. History: Effective August 1, 1980; amended effective May 1, 1990. General Authority: NDCC 38-14.1-03 Law Implemented: NDCC 38-14.1-18 69-05.2-10-03. Permit applications - Criteria for permit approval or denial. 1. The commission will 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 any law or rule of this state, the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.], or any law or rule in any state enacted under federal law or regulation pertaining to air or water environmental protection, incurred in connection with any surface coal mining and reclamation operation, or if any of the following are outstanding: a. Delinquent civil penalties under North Dakota Century Code sections 38-12.1-08 and 38-14.1-32, the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.], or any law or rule in any state enacted under federal 3 law or regulation pertaining to air or water environmental protection, incurred in connection with any surface coal mining and reclamation operation. b. Bond forfeitures where violations upon which the forfeitures were based have not been corrected. c. Delinquent abandoned mine reclamation fees. d. 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 and reclamation operation. e. Unresolved federal and state failure-to-abate cessation orders. f. Unresolved imminent harm cessation orders. 2. If a current violation exists, the commission will require the applicant or person who owns or controls the applicant, before the permit is issued, to: a. Submit proof that the violation has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation; or b. Establish 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 administrative or judicial authority either denies a stay applied for in the appeal or affirms the violation, then any operations being conducted under a permit issued under this section must immediately cease, until the provisions of subdivision a are satisfied. 3. Any permit issued on the basis of proof submitted under subdivision a of subsection 2 that a violation is being corrected, or pending the outcome of an appeal under subdivision b of subsection 2, will be conditionally issued. 4. The commission will not issue a permit if it finds 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 violations of any law or rule of this state, the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.], or any state or federal program approved under the Surface Mining Control and Reclamation Act of 1977, of such nature and duration, and with resulting irreparable damage to the environment as to indicate an intent not to comply with those laws, rules, or programs. The applicant, anyone who owns or controls the applicant, or the operator must be given an opportunity for hearing on the determination under North Dakota Century Code section 38-14.1-30. 5. After an application is deemed ready for approval, but before the permit is issued, the commission's decision to approve or disapprove the application will be made, based on the compliance review required by subsection 1, in light of any new information submitted under subsection 2 of section 69-05.2-06-01 and subsection 6 of section 69-05.2-06-02. After that information is submitted, the commission will again request a compliance history report from AVS to determine if there are any unabated or uncorrected violations which affect the applicant's permit eligibility under subsections 1 through 4. This report will be requested no more than five business days before the permit is issued by the commission. If the commission then determines that the applicant is not eligible for a permit, written notification of the decision will be sent to the applicant explaining the reasons and the appeal rights that are available under North Dakota Century Code section 38-14.1-30. 4 6. In addition to the requirements of subsection 3 of North Dakota Century Code section 38-14.1-21, no permit or significant revision will be approved, unless the application affirmatively demonstrates and the commission finds, in writing, on the basis of information in the application or otherwise available, which is documented in the approval and made available to the applicant, that: a. The permit area is not on any lands subject to the prohibitions or limitations of North Dakota Century Code section 38-14.1-07 or the area has met the application review procedures of section 69-05.2-04-01.1. b. For alluvial valley floors: (1) The applicant has obtained either a negative determination; or (2) If the permit area or adjacent area contains an alluvial valley floor: (a) The operations would be conducted according to chapter 69-05.2-25 and all applicable requirements of North Dakota Century Code chapter 38-14.1. (b) Any change in the use of the lands covered by the permit area from its premining use in or adjacent to alluvial valley floors will not interfere with or preclude the reestablishment of the essential hydrologic functions of the alluvial valley floor. (3) The significance of the impact of the operations on farming will be based on the relative importance of the vegetation and water of the developed grazed or hayed alluvial valley floor area to the farm's production, or any more stringent criteria established by the commission as suitable for site-specific protection of agricultural activities in alluvial valley floors. (4) Criteria for determining whether a mining operation will materially damage the quantity or quality of waters include: (a) Potential increases in the concentration of total dissolved solids of waters supplied to an alluvial valley floor to levels above the threshold value at which crop yields decrease, based on crop salt tolerance research studies approved by the commission, unless the applicant demonstrates compliance with subdivision e of subsection 3 of North Dakota Century Code section 38-14.1-21. (b) The increases in subparagraph a will not be allowed unless the applicant demonstrates, through testing related to local crop production that the operations will not decrease crop yields. (c) For types of vegetation specified by the commission and not listed in approved crop tolerance research studies, a consideration must be made of any observed correlation between total dissolved solids concentrations in water and crop yield declines. (d) Potential increases in the average depth to water saturated zones (during the growing season) within the root zone that would reduce the amount of subirrigated land compared to premining conditions. (e) Potential decreases in surface flows that would reduce the amount of irrigable land compared to premining conditions. 5 (f) Potential changes in the surface or ground water systems that reduce the area available to agriculture as a result of flooding or increased root zone saturation. (5) For the purposes of this subsection, a farm is one or more land units on which agricultural activities are conducted. A farm is generally considered to be the combination of land units with acreage [hectarage] and boundaries in existence prior to July 1, 1979, or, if established after July 1, 1979, with boundaries based on enhancement of the farm's agricultural productivity not related to mining operations. (6) If the commission determines the statutory exclusions of subsection 3 of North Dakota Century Code section 38-14.1-21 do not apply and that any of the findings required by this section cannot be made, the commission may, at the applicant's request: (a) Determine that mining is precluded and deny the permit without the applicant filing any additional information required by this section; or (b) Prohibit surface coal mining and reclamation operations in all or part of the area to be affected by mining. c. The applicant has, with respect to prime farmland, obtained either a negative determination or if the permit area contains prime farmlands: (1) The postmining land use will be cropland. (2) The permit specifically incorporates the plan submitted under section 69-05.2-09-15 after consideration of any revisions suggested by the natural resource conservation service. (3) The operations will be conducted in compliance with chapter 69-05.2-26 and other standards required by this article and North Dakota Century Code chapter 38-14.1. (4) The permit demonstrates that the applicant has the technological capability to restore prime farmland, within a reasonable time, to equivalent or higher yields as nonmined prime farmland in the surrounding area under equivalent management practices. (5) The aggregate total prime farmland acreage will not be decreased from that which existed prior to mining based on the cooperative soil survey. Any postmining water bodies that are part of the reclamation must be located within the nonprime farmland portions of the permit area. If any such water bodies reduce the amount of prime farmland that a surface owner had before mining, the affected surface owners must consent to the creation of the water bodies and the plans must be approved by the commission. d. The operations will not affect the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitats. e. The applicant has submitted proof that all reclamation fees required by 30 CFR subchapter R have been paid. f. The applicant has, if applicable, satisfied the requirements for approval of a cropland postmining land use under section 69-05.2-22-01. 7. The commission may make necessary changes in the permit to avoid adverse effects on finding that operations may adversely affect any publicly owned park or places included on the state historic sites registry or the national register of historic places. Operations that may 6 adversely affect those parks or historic sites will not be approved unless the federal, state, or local governmental agency with jurisdiction over the park or site agrees, in writing, that mining may be allowed. History: Effective August 1, 1980; amended effective June 1, 1983; June 1, 1986; May 1, 1990; May 1, 1992; June 1, 1994; July 1, 1995; June 1, 1997; May 1, 2001; January 1, 2009; April 1, 2013. General Authority: NDCC 38-14.1-03 Law Implemented: NDCC 38-14.1-21, 38-14.1-33 69-05.2-10-04. Permit applications - Criteria for permit approval or denial - Existing structures. 1. No application which proposes to use an existing structure will be approved, unless the applicant demonstrates and the commission finds in writing that: a. If the applicant proposes to use an existing structure under the exemption provided in subsection 4 of section 69-05.2-09-03: (1) The structure meets the performance standards of North Dakota Century Code chapter 38-14.1 and this article. (2) There will be no significant harm to the environment or public health or safety. b. If the commission finds that an existing structure does not meet the performance standards, the applicant shall submit a compliance plan for modifying or rebuilding the structure. The permit will not be issued unless the commission finds that: (1) The modification or reconstruction will bring the structure into compliance with the design and performance standards of this article and North Dakota Century Code section 38-14.1-24 as soon as possible, but not later than six months after permit issuance; (2) The risk to the environment or to public health or safety is not significant during modification or reconstruction; and (3) The applicant will monitor the structure to determine compliance with this article and North Dakota Century Code section 38-14.1-24. 2. Should the commission find that the existing structure cannot be reconstructed without causing significant harm to the environment or public health or safety, the applicant shall abandon the existing structure. The structure must not be used after the effective date of the permit. Structure abandonment must proceed on a schedule approved by the commission under section 69-05.2-13-11. History: Effective August 1, 1980; amended effective May 1, 1990. General Authority: NDCC 38-14.1-03 Law Implemented: NDCC 38-14.1-14, 38-14.1-21 69-05.2-10-05. Permit applications - Approval or denial actions. The commission will approve, require modification of, or deny all applications for permits according to the following: 1. The commission will not approve or disapprove a permit application prior to the expiration of the thirty-day period for requesting an informal conference or the filing of written comments or objections following the last publication of the public notice required by North Dakota Century Code section 38-14.1-18. 7 2. If no informal conference has been held under North Dakota Century Code section 38-14.1-19, the commission will approve, require modification of, or deny all permit applications within the review period specified in section 69-05.2-05-01. 3. If an application is approved, the permit will contain the following conditions: a. The permittee shall minimize adverse impacts to the environment or public health and safety resulting from noncompliance with any term or condition, including: (1) Accelerated or additional monitoring necessary to determine the nature and extent of noncompliance and the results of the noncompliance. (2) Immediate implementation of compliance measures. (3) Warning, as soon as possible after learning of noncompliance, any person whose health and safety is in imminent danger. b. The permittee shall dispose of solids, sludge, filter backwash, or pollutants removed in the treatment or control of waters or atmospheric emissions as required by North Dakota Century Code chapter 38-14.1, this article, and any other applicable law. c. The permittee shall conduct operations: (1) To prevent significant, imminent environmental harm to public health or safety; and (2) Utilizing methods specified in the permit if the commission approves alternative methods of compliance with the performance standards of North Dakota Century Code section 38-14.1-24 and this article. d. The operator shall pay all reclamation fees required by 30 CFR subchapter R for coal produced under the permit for sale, transfer, or use. e. Within thirty days after a cessation order is issued under North Dakota Century Code section 38-14.1-28, except where a stay of the cessation order is granted and remains in effect, the permittee shall either submit the following information, current to the date the cessation order was issued, or notify the commission in writing that there has been no change since the last submittal: (1) Any new information needed to correct or update the information previously submitted under subdivision e of subsection 1 of section 69-05.2-06-01; or (2) If not previously submitted, the information required from a permit applicant by subdivision e of subsection 1 of section 69-05.2-06-01. 4. When the application is approved, the commission will publish notice in the official county newspapers and in daily newspapers of general circulation in the area of the proposed operations. The publication will provide a summary of the decision and notice that any person with an interest which is or may be adversely affected may request and initiate formal hearing procedures on the decision and may request temporary relief from permit issuance within thirty days of the publication of the notice. 5. At the time of publication of the decision required by subsection 4, the commission will: a. Provide copies of all findings, decisions, and orders on an application to: (1) Each person and government official who filed a written objection or comment. (2) Each reclamation advisory committee member. 8 (3) The office of surface mining reclamation and enforcement, together with a copy of the approved application materials. b. Notify the appropriate government officials in the relevant county that a permit application has been approved and describe the location of the lands. History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 1992. General Authority: NDCC 38-14.1-03 Law Implemented: NDCC 38-14.1-03, 38-14.1-21 69-05.2-10-06. Permit applications - Permit approval for surface disturbances over federal mineral estates. The commission may approve and issue permits, revisions, and renewals for operations on lands where the surface estate is nonfederal and the mineral estate is federal, if: 1. The proposed surface disturbances support operations on adjacent nonfederal lands. 2. The commission consults with the office of surface mining reclamation and enforcement, to ensure that actions are not taken which would substantially and adversely affect the federal mineral estate. History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990. General Authority: NDCC 38-14.1-03 Law Implemented: NDCC 38-14.1-21, 38-14.1-22, 38-14.1-23 69-05.2-10-07. Permit applications - Challenges to ownership or control listings and findings. 1. 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; b. Found to be an owner or controller of an entire surface coal mining operation, or any portion or aspect thereof, under section 69-05.2-10-08 or 69-05.2-32-01; or c. An applicant or permittee affected by an ownership and control listing or finding. 2. In order to challenge an ownership and control listing or finding, a written explanation must be submitted to the regulatory authority regarding the basis of the challenge along with any evidence or explanatory materials outlined in subsection 7. If the challenge concerns a pending permit application, the written explanation must 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 the person is not currently seeking a permit, the written explanation must be submitted to the regulatory authority with jurisdiction over the surface coal mining operation. 3. When a challenge concerns a violation under the jurisdiction of a different regulatory authority, the commission will consult the regulatory authority with jurisdiction over the violation and the AVS office to obtain additional information. 4. If the commission is responsible for deciding a challenge under this section, it may request an investigation by the AVS office. 9 5. 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 it is shown in the AVS in an ownership or control capacity. 6. When a challenge is made to a listing of ownership and control, or a finding of ownership and control, the challenger shall prove by a preponderance of the evidence that the challenger either: a. Does not own or control the entire operation or relevant portion or aspect thereof; or b. Did not own or control the entire operation or relevant portion or aspect during the relevant time period. 7. In order to meet the burden of proof in subsection 6, the challenger shall present reliable, credible, and substantial evidence and any explanatory materials to the regulatory authority. A request to hold materials submitted under this section as a trade secret may be made to the commission following the procedures of chapter 69-02-09. Acceptable materials include: a. 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. b. Certified copies of corporate minutes, stock ledgers, contracts, purchase and sale agreements, leases, correspondence, or other relevant company records. c. Certified copies of documents filed with or issued by any state, municipal, or federal government agency. d. An opinion of counsel, when supported by evidentiary materials, a statement by counsel that counsel is qualified to render the opinion, and a statement that counsel has personally and diligently investigated the facts of the matter. 8. Within sixty days of receipt of an ownership and control listing or finding challenge, the commission 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 will state whether the challenger owns or controls 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 certified mail, return receipt requested. Service of the decision will be complete upon delivery and is not incomplete if acceptance of delivery is refused. Appeals of the written decision must be made by requesting a formal hearing under North Dakota Century Code section 38-14.1-30. The commission will also post all decisions in AVS. 9. Following the commission's written decision, or any formal hearing decision or court reviewing such decision, the commission will review the information in AVS to determine if it is consistent with the decision. If it is not, the commission will promptly inform the office of surface mining reclamation and enforcement and request that the AVS information be revised to reflect the decision. History: Effective April 1, 2013. General Authority: NDCC 38-14.1-03 Law Implemented: NDCC 38-14.1-21, 38-14.1-22, 38-14.1-23 10 69-05.2-10-08. Permit applications - Commission actions related to ownership and control information after permit issuance. 1. For the purposes of future permit eligibility determinations and enforcement actions, the commission will enter the following data into AVS: a. Permit records will be entered within thirty days after issuing a permit or subsequent changes. b. Unabated or uncorrected violations will be entered within thirty days after the abatement period expires for any violation. c. Any changes to the information required under section 69-05.2-06-01 will be entered within thirty days after receiving notice of a change. d. A change in status of violations listed in AVS will be entered within thirty days after abatement, correction, or termination of a violation, or an administrative or judicial decision affecting a violation. 2. If, at any time, it is discovered that any person owns or controls an operation with an unabated or uncorrected violation, the commission will determine whether enforcement action is appropriate under North Dakota Century Code section 38-14.1-28. The commission will enter the results of each enforcement action, including administrative and judicial decisions, into AVS. 3. The commission will serve a preliminary finding of permanent permit ineligibility under subdivision c of subsection 1 of North Dakota Century Code section 38-14.1-28 on the applicant or operator if the criteria in subdivisions a and b are met. In making a finding under this subsection, the commission will only consider control relationships and violations which would make, or would have made, the applicant or operator ineligible for a permit under subsection 4 of section 69-05.2-10-03. A preliminary finding of permanent permit ineligibility will be made if it found that: a. The applicant or operator controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations under subdivision c of subsection 1 of North Dakota Century Code section 38-14.1-28; and b. The violations are of such nature and duration with such resulting irreparable damage to the environment as to indicate an intent not to comply with North Dakota Century Code chapter 38-14.1, this chapter, or the approved permit. 4. The permittee or operator may request a hearing on a preliminary finding of permanent permit ineligibility under North Dakota Century Code section 38-14.1-30. 5. If a hearing is not requested and the time for seeking a hearing has expired, the commission will enter the finding into AVS. If a hearing is requested, the commission will enter the finding into AVS only if that finding is upheld on appeal. 6. At any time, the commission may identify any person who owns or controls an entire operation or any relevant portion or aspect thereof. If such a person is identified, the commission will issue a written preliminary finding to the person and the applicant or permittee describing the nature and extent of ownership or control. The commission's written preliminary finding must be based on evidence sufficient to establish a prima facie case of ownership or control. 7. After the commission issues a written preliminary finding under subsection 6, the commission will allow the person subject to the preliminary finding thirty days in which to submit any information tending to demonstrate the lack of ownership or control. If after reviewing any 11 information that is submitted, the commission is persuaded that the person is not an owner or controller, a written notice will be served to that effect. If, after reviewing any information that is submitted, the commission still finds that the person is an owner or controller, or no information is submitted within the thirty-day period, the commission will issue a written finding and enter that finding into AVS. 8. If the commission identifies a person as an owner or controller under subsection 7, that finding may be challenged using the provisions under section 69-05.2-10-07. History: Effective April 1, 2013. General Authority: NDCC 38-14.1-03 Law Implemented: NDCC 38-14.1-21, 38-14.1-22, 38-14.1-23 69-05.2-10-09. Permit applications - Ownership and control requirements for permittees after permit issuance. 1. Within thirty days of being issued a cessation order under subdivision b of subsection 1 of North Dakota Century Code section 38-14.1-28, the permittee must provide or update all the information required under section 69-05.2-06-01. 2. A permittee does not have to submit information under subsection 1 if a court of competent jurisdiction grants a stay of the cessation order and the stay remains in effect. 3. Within sixty days of any addition, departure, or change in position of any person identified in subdivision e of subsection 1 of section 69-05.2-06-01, the permittee must provide: a. The date of any departure; and b. The following for that person: (1) The person's name, address, and phone number. (2) The person's position title and relationship to the permittee, including percentage of ownership and location in the organizational structure. (3) The date the person began functioning in that position. History: Effective April 1, 2013; amended effective April 1, 2015. General Authority: NDCC 38-14.1-03 Law Implemented: NDCC 38-14.1-21, 38-14.1-22, 38-14.1-23 12