R645-103-400. Utah Processes for Designating Areas Unsuitable for Coal Mining and Reclamation Operations

410. Scope and Authority.

411. R645-103-400 establishes the procedures and standards in the State Program for designating nonfederal and non-Indian lands in the state as unsuitable for all or certain types of coal mining and reclamation operations and for terminating such designations.

412. The Board has the authority to develop programs, procedures, and standards consistent with R645-103-400 to designate nonfederal and non-Indian lands unsuitable for all or certain types of coal mining and reclamation operations and for terminating such designations.

420. Petitions.

421. Right to petition. Any person having an interest which is or may be adversely affected has the right to petition the Board to have an area designated as unsuitable for coal mining and reclamation operations, or to have an existing designation terminated. For the purpose of this action, a person having an interest which is or may be adversely affected must demonstrate how he or she meets an "injury-in-fact" test by describing the injury to his or her specific affected interests and demonstrate how he or she is among the injured.

422. Designation. A petitioner will file a petition using forms provided by the Division. The only information the petitioners must provide are:

422.100. The petitioner's name, address, telephone number, and notarized signature;

422.200. The legal description (i.e., township, range, and section number) of the area covered by the petition;

422.300. A description of how coal mining and reclamation operations in the area has affected or may adversely affect people, land, air, water, or other resources, including the petitioner's interests;

422.400. An identification of the petitioner's interest which is or may be adversely affected by coal mining and reclamation operations including a statement demonstrating how the petitioner satisfies the requirements of R645-103-421; and

422.500. U.S. Geological Survey 7-1/2-minute topographic map(s) or, if unavailable, 15-minute map(s) marked to show the location and size of the area encompassed by the designated petition;

422.600. Available information regarding:

422.610. Legal owners of record of the property (surface and mineral) being petitioned;

422.620. Holders of record of any leasehold interest in the property; and

422.630. Purchasers of record to the property under a real estate contract;

422.700. Allegations of fact and supporting evidence, covering all lands in the petition area, which tend to establish that the area is unsuitable for all or certain types of surface coal mining operations, pursuant to specific criteria of R645-103-320, assuming that contemporary mining practices required under applicable regulatory programs would be followed if the area were to be mined. Each of the allegations of fact should be specific as to the mining operation, if known, and the portion(s) of the petitioned area and petitioner's interests to which the allegation applies and be supported by evidence that tends to establish the validity of the allegations for the mining operation or portion of the petitioned area.

422.800. A designation petition may contain, and the Division may request, in addition to required contents, the following:

422.810. Information and data sources with regard to:

422.811. The potential coal resources of the area;

422.812. The demand for coal resources; or

422.813. The impact of the designation on the environment, economy, and supply for coal;

422.820. Such other information as may appropriately affect a determination on the petition;

422.900. Petitions will be mailed or delivered to: State of Utah, Division of Oil, Gas and Mining, 1594 West North Temple, Suite 1210, P.O. Box 145801, Salt Lake City, Utah 84114-5801.

423. Termination of designations. A petitioner will file a petition for termination of a designation using forms provided by the Division. The only information the petitioner must provide are those items under R645-103-423.100 through R645-103-423.400, and R645-103-423.700 below. The petitioner may provide the information in the other sections if it is available, however, failure to provide the information will not jeopardize review of the petition for termination or constitute a reason for rejection of the petition.

423.100. The petitioner's name, address, telephone number, and notarized signature;

423.200. The legal description (i.e., township, range, and section number) and ownership of the area covered by the petition;

423.300. Identification of the petitioner's interest which is or may be adversely affected by the continuation of the designation;

423.400. U.S. Geological Survey 15-minute or 7-1/2-minute topographic map(s) marked to show the location and size of the geographic area covered by the petition (if available);

423.500. Available information about how reclamation is now technologically and economically feasible, if the designation was based on criteria found in R645-103-321; or

423.510. 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 R645-103-322; or

423.520. The resources or conditions not being affected by coal mining and reclamation operations, or in the case of land use plans, not being incompatible with coal mining and reclamation operations during and after mining, if the designation was based on the criteria found in R645-103-322;

423.600. Available information regarding: legal owners of record of the property (surface and mineral) being petitioned; holders of record of any leasehold interest in the property; and purchasers of record of the property under a real estate contract;

423.700. Allegations of facts covering all lands for which the termination is proposed. Each of the allegations of fact shall be specific as to the mining operation, if any, and to portions of the petitioned area and petitioner's interests to which the allegation applies. The allegations shall be supported by evidence, not contained in the record of the designation proceeding, that tends to establish the validity of the allegations for the mining operation or portion of the petitioned area, assuming that contemporary mining practices required under applicable regulatory programs would be followed were the area to be mined. For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence must be presented in the petition. Allegations and supporting evidence should also be specific to the basis for which the designation was made and tend to establish that the designation should be terminated on the following bases:

423.710. Reclamation now being technologically and economically feasible, if the designation was based on criteria found in R645-103-321; or

423.720. 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 R645-103-322; or

423.730. The resources or conditions not being affected by coal mining and reclamation operations, or in the case of land use plans, not being incompatible with coal mining and reclamation operations, if the designation was based on the criteria found in R645-103-322;

423.800. Petitions for termination of designations will be mailed or delivered to: State of Utah, Division of Oil, Gas and Mining, 1594 West North Temple, Suite 1210, P.O. Box 145801, Salt Lake City, Utah 84114-5801.

430. Initial Processing, Record Keeping and Notification Requirements.

431. Initial Processing.

431.100. Unless a hearing or period of written comments is provided for under R645-103-432.200, the Division will, within 30 days of receipt of a petition, notify the petitioner by certified mail whether or not the petition is complete under R645-103-422 or R645-103-423. Complete, for a designation or termination petition, means that the information required under R645-103-422 and R645-103-423 has been provided.

431.200. The Division will determine whether any identified coal resources exist in the area covered by the petition, without requiring any showing from the petitioner. If the Division finds that there are not any identified coal resources in that area, it will return the petition to the petitioner with a statement of the findings.

431.300. If the Division determines that the petition is incomplete, frivolous, or that the petitioner does not meet the requirements of R645-103-421, it will 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. A frivolous petition is one in which the allegations of harm lack serious merit.

431.400. When considering a petition for an area which was previously and unsuccessfully proposed for designation, the Division will determine if the new petition presents significant new allegations of fact with evidence which tends to establish the allegations. If the petition does not contain such material, the Division may choose not to consider the petition and may return the petition to the petitioner, with a statement of its findings and a reference to the record of the previous designation proceedings where the facts were considered.

431.500. The Division will notify the person who submits a petition of any application for a permit received which includes any area covered by the petition.

431.600. The Division may determine not to process any petition received insofar as it pertains to lands for which an administratively complete permit application has been filed and the first newspaper notice has been published. Based on such a determination, the Division may issue a decision on a complete and accurate permit application and will inform the petitioner why the Division cannot consider the part of the petition pertaining to the proposed permit area.

432. Notification.

432.100. Within 15 days of receipt of a petition, the Division will notify the general public of the receipt of the petition by a newspaper advertisement placed in the locale of the area covered by the petition and in the newspaper providing broadest circulation in the region of the petitioned area. The Division will make copies of the petition available to the public and will provide copies of the petition to other interested governmental agencies, intervenors, persons with an ownership interest of record in the property, and other persons known to the Division to have an interest in the property. Proper notice to persons with an ownership interest of record in the property will comply with the requirements of applicable state law.

432.200. The Division may provide for a hearing or a period of written comments on completeness of petitions. If a hearing or comment period on completeness is provided, the Division will inform interested governmental agencies, intervenors, persons with an ownership interest of record in the property, and other persons known to the Division to have an interest in the property of the opportunity to request to participate in such a hearing or provide written comments. Proper notice to persons with an ownership interest of record in the property will comply with the requirements of applicable Utah law. Notice of such a hearing will be made by a newspaper advertisement placed in the locale of the area covered by the petition and in the newspaper providing broadest circulation in the region of the petitioned area. The Division will, within 30 days of a hearing or close of period of written comments, notify the petitioner of such a hearing by certified mail. On the basis of Division review, as well as consideration of all comments, the Division will, within 30 days of the hearing or close of written comments, determine whether the petition is complete.

432.300. Within 15 days of the petition being determined complete, the Division will request submissions from the general public of relevant information by a newspaper advertisement placed once a week for two consecutive weeks in the locale of the area covered by the petition and in the newspaper providing broadest circulation in the region of the petitioned area.

432.400. Until three days before the Division holds a hearing under R645-103-440, any person may intervene in the proceeding by filing allegations of fact describing how the designation determination directly affects the intervenor, supporting evidence, a short statement identifying the petition to which the allegations pertain, and the intervenor's name, address, and telephone number.

433. Record keeping.

433.100. Beginning from the date a petition is filed, the Division will compile and maintain a record consisting of all relevant portions of the data base and all documents relating to the petition filed with or prepared by the Division.

433.200. The Division will make the record available to the public for inspection free of charge and for copying at reasonable cost during all normal hours at the main office of the Division.

433.300. The Division will also maintain information at or near the area in which the petitioned land is located and make this information available to the public for inspection free of charge and for copying at reasonable cost during all normal business hours. At a minimum, this information will include a copy of the petition.

440. Hearing Requirements.

441. Within ten months after receipt of a complete petition, the Board shall hold a public hearing unless petitioners and intervenors agree otherwise. If all petitioners and intervenors agree that a public hearing is not needed, the hearing need not be held. All hearings held under this paragraph will be held in the locality of the area covered by the petition. The Board may subpoena witnesses as necessary. The hearing may be conducted with cross-examination of expert witnesses only. A record of the hearing shall be made and preserved according to R641 Rules. No person shall bear the burden of proof or persuasion. All relevant parts of the data base and inventory system and all public comments received during the public comment period shall be included in the record and considered by the Board in its decision on the petition.

442. The Division will give notice of the date, time, and location of the hearing to:

442.100. Local, state, and federal agencies which may have an interest in the decision on the petition;

442.200. The petitioner and the intervenors; and

442.300. Any person with an ownership or other interest known to the Division in the areas covered by the petition.

443. Notice of the hearing will be sent by certified mail and postmarked not less than 30 days before the scheduled date of the hearing.

444. The Division will notify the general public of the date, time, and location of the hearing by placing a newspaper advertisement once a week for two 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 will begin between four to five weeks before the scheduled date of the public hearing.

445. The Board may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale.

446. In the event that all petitioners and intervenors stipulate agreement prior to the hearing, the petition may be withdrawn from consideration.

450. Decision.

451. Prior to designating any land areas unsuitable for coal mining and reclamation operations, the Division 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 such designation on the environment, the economy, and the supply of coal.

452. The cost-benefit analysis, required by Section 40-10-24(1)(c) of the Act, is a part of the assessment of the impact of such designation on the economy required in the detailed statement. The analysis will not dictate the decision of the Board.

453. In reaching its decision, the Board will use:

453.100. The information contained in the data base and inventory system;

453.200. Information provided by other governmental agencies;

453.300. The detailed statement prepared under R645-103-451; and

453.400. Any other relevant information submitted during the comment period.

454. A final written decision will be issued by the Board, including a statement of reasons, within 60 days of completion of the public hearing, or, if no public hearing is held, then within 12 months after receipt of the complete petition. The Division will simultaneously send the decision by certified mail to the petitioner, every other party to the proceeding, and to the Office of Surface Mining.

455. The decision of the Board with respect to a petition, or the failure of the Division to act within the time limits set forth in R645-103-400, will be subject to judicial review by a court of competent jurisdiction in accordance with Section 40-10-30 of the Act.

460. Data Base and Inventory System Requirements.

461. The Division will develop a data base and inventory system which will permit evaluation of whether reclamation is feasible in areas covered by petitions.

462. The Division will include in the system information relevant to the criteria in R645-103-320 including, but not limited to, information received from the United States Fish and Wildlife Service, the State Historic Preservation Officer, and the Department of Environmental Quality - Division of Air Quality.

463. The Division will add to the data base and inventory system information:

463.100. On potential coal resources of Utah, demand for those resources, the environment, the economy, and the supply of coal sufficient to enable the Division to prepare the statements required by R645-103-451; and

463.200. That becomes available from petitions, publications, experiments, permit applications, coal mining and reclamation operations, and other sources.

470. Public Information. The Division will:

471. Make the information in the data base and inventory system developed under R645-103-460 available to the public for inspection free of charge and for copying at reasonable cost, except that specific information relating to location of properties proposed to be nominated to, or listed in, the National Register of Historic Places need not be disclosed if the Division determines that the disclosure of such information would create a risk of destruction or harm to such properties.

472. Provide information to the public on the petition procedures necessary to have an area designated as unsuitable for all or certain types of coal mining and reclamation operations, or to have designations terminated and describe how the inventory and data base system can be used.

480. Division Responsibility for Implementation.

481. The Division will not issue permits which are inconsistent with designations made pursuant to R645-103-200, R645-103-300, or R645-103-400.

482. The Division will maintain a map, or other unified and cumulative record, of areas designated unsuitable for all or certain types of coal mining and reclamation operations.

483. The Division will make available to any person any information, within its control, regarding designations including mineral or elemental content which is potentially toxic in the environment but excepting proprietary information on the chemical and physical properties of the coal.