Section 12.215 - Review of Permit Applications(a) The Commission shall: (1) review the complete application and written comments, written objections submitted, and the record of any public hearing held under §§ RSA 12.208- RSA 12.214 of this title (relating to Opportunity for Submission of Written Comments on Permit Applications; Right to File Written Objections; Public Availability of Information in Permit Applications on File with the Commission; Public Hearing on Application; Notice of Public Hearing on Application; Continuance; and Transcript);(2) determine the adequacy of the fish and wildlife plan submitted pursuant to § RSA 12.144 or § RSA 12.195 of this title (relating to Fish and Wildlife Plan), in consultation with state and federal fish and wildlife management and conservation agencies having responsibilities for the management and protection of fish and wildlife or their habitats which may be affected or impacted by the proposed surface coal mining and reclamation operations;(3) based on an administratively complete application, enter into AVS: (A) the information required to be submitted under §12.116(b) and (c) or §RSA 12.156<subdiv>(b) and (c)</subdiv> of this title (relating to Identification of Interests and Compliance Information); and(B) the information submitted under §RSA 12.116<subdiv>(e)</subdiv> or §RSA 12.156<subdiv>(e)</subdiv> of this title pertaining to violations which are unabated or uncorrected after the abatement or correction period has expired; and(4) update the information referred to in paragraph (3) of this subsection in AVS upon verification of any additional information submitted or discovered during the permit application review.(b) Within the time frame provided by the APA if the public hearing provided for occurs, or within 45 days of the last publication of notice of application if no public hearing is held, the Commission shall notify the applicant and any objectors whether the application has been approved or denied.(c) All provisions of the APA apply to each permit application and notices, other than specifically provided for above, of hearings and appeals are governed thereby.(d) If the Commission decides to approve the application, it shall require that the applicant file the performance bond or provide other equivalent guarantee before the permit is issued, in accordance with the provisions of Subchapter J of this chapter (relating to Bond and Insurance Requirements for Surface Coal Mining and Reclamation Operations).(e) The following criteria shall apply with regard to denial or conditional issuance of an application for permit: (1) if the Commission determines from either the schedule submitted as part of an application submitted after the adoption of these rules under §RSA 12.116<subdiv>(e)</subdiv> or §RSA 12.156<subdiv>(e)</subdiv> of this title, or from other available information concerning federal and state failure-to-abate cessation orders, unabated federal and state imminent harm cessation orders, delinquent civil penalties issued pursuant to the Act or Federal Act or federally-approved coal regulatory program, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violations of federal and any state laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, the Commission shall deny 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 the Act or any other law, rule or regulation referred to in this subsection. In the absence of a failure-to-abate cessation order, the Commission may presume that a notice of violation issued pursuant to § RSA 12.678 of this title (relating to Notices of Violation) or under a federal or state program has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except where evidence to the contrary is set forth in the permit application, or where the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties. If a current violation exists, the Commission shall require the applicant or person who owns or controls the applicant, before the issuance of the permit, to either: (A) submit to the Commission proof that the current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation; or(B) establish for the Commission 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 the current violation. If the initial judicial review affirms the violation, the applicant shall within 30 days of the judicial action submit the proof required under subparagraph (A) of this paragraph; and(2) any permit that is issued on the basis of proof submitted under paragraph (1)(A) of this subsection that a violation is in the process of being corrected, or pending the outcome of an appeal described in paragraph (1)(B) of this subsection, shall be conditionally issued.(f) Before any final determination by the Commission that the applicant, anyone who owns or controls the applicant, or the operator specified in the application, controls or has controlled mining operations with a demonstrated pattern of willful violations of the Act or Federal Act and its implementing Federal Regulations and all federal and state programs approved under the Federal Act or federal or state laws as used in RSA 773.15<subdiv>(b)</subdiv> of such nature, duration, and with such resulting irreparable damage to the environment that indicates an intent not to comply with the provisions of the Act or Federal Act and its implementing Federal Regulations and all federal and state programs approved under the Federal Act or federal or state laws as used in RSA 773.15<subdiv>(b)</subdiv>, no permit shall be issued and a hearing shall be held. The applicant or operator shall be afforded an opportunity for an adjudicatory hearing on the determination as provided for in the regulatory program. Such hearing shall be conducted pursuant to § RSA 12.222 of this title (relating to Administrative Review). The Commission shall deny an application after a determination has been made that a pattern of willful violations exists.(g) After an application is approved, but before the permit is issued, the Commission shall review and consider any new compliance information submitted pursuant to §12.116(a)(2) of this title under the criteria of subsection (e)(1) of this section. If the applicant fails or refuses to respond as required by the Commission to provide new compliance information, or the new compliance information shows that the applicant, anyone who owns or controls the applicant, or the operator is in violation, the Commission shall deny the permit.(h) The Commission shall rely upon the permit history information submitted in the application under §RSA 12.116<subdiv>(c)</subdiv> or §RSA 12.156<subdiv>(c)</subdiv> of this title, information from AVS, and any other available information to review the permit histories of the applicant and its operator. The Commission shall: (1) conduct a review of the permit history information before making a permit eligibility determination under subsection (j) of this section;(2) determine whether the applicant or its operator have previous mining experience; and(3) conduct an additional review under §RSA 12.234<subdiv>(c)(6)</subdiv> of this title (relating to Challenge of Ownership or Control, Information on Ownership and Control, and Violations, and Applicant/Violator System Procedures) if the applicant or operator do not have any previous mining experience to determine if a person with mining experience controls the mining operation.(i) The Commission, relying upon the violation information supplied by the applicant under §RSA 12.116<subdiv>(e)</subdiv> or §RSA 12.156<subdiv>(e)</subdiv> of this title, a report from AVS, and any other available information to review histories of compliance with the Act or the applicable State regulatory program, and any other applicable air or water quality laws, for the permittee, operator, and for operations owned or controlled by the permittee or by the operator, shall conduct the review before making a permit eligibility determination required under subsection (j) of this section.(j) Based on reviews of the applicant's and any operator's organizational structure and ownership or control relationships provided in the application as required under subsections (h) and (i) of this section, the Commission shall determine whether an applicant is eligible for a permit under §134.068 and §134.069 of the Act (relating to Schedule of Notices of Violations, and to Effect of Past or Present Violation). (1) Except as provided in subsections (k) and (l) of this section, an applicant is not eligible for a permit if the Commission finds that any surface coal mining operation that: (A) the applicant directly owns or controls has an unabated or uncorrected violation; or(B) the applicant or the operator indirectly controls has an unabated or uncorrected violation and the control was established or the violation was cited after November 2, 1988.(2) The Commission shall not issue the permit if the applicant or operator are permanently ineligible to receive a permit under §RSA 12.234<subdiv>(c)(3)</subdiv> of this title.(3) After approval of the permit under §12.216 of this title (relating to Criteria for Permit Approval or Denial), the Commission shall not issue the permit until the information updates and certification requirements of §12.116(a)(2) or §12.156(a)(2) of this title are met. After the applicant completes this requirement, the Commission shall again request a compliance history report from AVS to determine if there are any unabated or uncorrected violations which affect permit eligibility under paragraphs (1) and (2) of this subsection. The Commission shall request this report no more than five business days before permit issuance under §12.218 and §12.219 of this title (relating to Permit Approval or Denial Actions, and Permit Terms).(4) If the applicant is determined to be ineligible for a permit under this section, the Commission shall send written notification to the applicant of its decision. The notice will contain an explanation as to why the applicant is ineligible and include notice of the rights of appeal under § RSA 12.222 and § RSA 12.223 of this title (relating to Administrative Review, and Judicial Review).(k) An applicant is eligible for a permit: (1) under subsection (j) of this section if an unabated violation: (A) occurred after October 24, 1992; and(B) resulted from an unanticipated event or condition at a surface coal mining and reclamation operation on lands that are eligible for remining under a permit that was held by the person applying for the new permit; or(2) under § RSA 12.206 of this title (relating to Mining in Previously Mined Areas), an event or condition is presumed to be unanticipated for the purpose of this section if it: (A) arose after permit issuance;(B) was related to prior mining; and(C) was not identified in the permit application.(l) For provisionally issued permits: (1) This subsection applies to an applicant who owns or controls a surface coal mining and reclamation operation with: (A) a notice of violation for which the abatement period has not yet expired; or(B) a violation that is unabated or uncorrected beyond the abatement or correction period.(2) The Commission shall find an applicant eligible for a provisionally issued permit under this section if the applicant demonstrates that one or more of the following circumstances exists with respect to all violations listed in paragraph (1) of this subsection: (A) for violations meeting the criteria of paragraph (1)(A) of this subsection, the applicant certifies that the violation is being abated to the satisfaction of the regulatory authority with jurisdiction over the violation, and the Commission has no evidence to the contrary;(B) the applicant, operator, and operations owned or controlled by the applicant or operator, as applicable, are in compliance with the terms of any abatement plan, or a payment schedule for delinquent fees or penalties, approved by the Commission;(C) the applicant is pursuing a good faith: (i) challenge to all pertinent ownership or control listings or findings under §RSA 12.234<subdiv>(a)(1) - (3) </subdiv> of this title; or(ii) administrative or judicial appeal of all pertinent ownership or control listings or findings, unless there is an initial judicial decision affirming the listing or finding and that decision remains in force; or(D) the violation is the subject of a good faith administrative or judicial appeal contesting the validity of the violation, unless there is an initial judicial decision affirming the violation and that decision remains in force.(3) A provisionally issued permit will be considered to be improvidently issued, and the Commission will immediately initiate procedures under §RSA 12.225<subdiv>(g)</subdiv> of this title (relating to Commission Review of Outstanding Permits) to suspend or rescind that permit, if: (A) violations included in paragraph (2)(A) of this subsection are not abated within the specified abatement period;(B) the permittee, operator, or operations that the permittee or operator own or control do not comply with the terms of an abatement plan or payment schedule mentioned in paragraph (2)(B) of this subsection;(C) in the absence of a request for judicial review, the disposition of a challenge and any subsequent administrative review referenced in paragraph (2)(C) or (D) of this subsection affirms the validity of the violation or the ownership or control listing or finding; or(D) the initial judicial review decision referenced in paragraph (2)(C)(ii) or (D) of this subsection affirms the validity of the violation or the ownership or control listing or finding.16 Tex. Admin. Code § 12.215
The provisions of this §12.215 adopted to be effective April 7, 1997, 22 TexReg 3093; amended to be effective November 4, 1997, 22 TexReg 10640; amended to be effective February 24, 2014, 39 TexReg 1121; Amended by Texas Register, Volume 45, Number 52, December 25, 2020, TexReg 9507, eff. 12/28/2020