Effective 28 Aug 1979

444.835. Permit to be granted or application to be modified or denied — notification required — requirements to be met before permit to be issued — additional items to be filed with application — exemptions. — 1. Upon the basis of a complete mining application and reclamation plan for a permit or a revision or renewal thereof, including public notification and an opportunity for a public hearing as required by section 444.850, the commission or the director shall grant, require modification of, or deny the application for a permit and notify the applicant in writing. The applicant shall have the burden of establishing that the application is in compliance with all the requirements of the law and rules and regulations. Within ten days after the granting of a permit, the commission or the director shall notify the local governmental officials in the county and/or city in which the area of land to be affected is located that a permit has been issued and shall describe the location of the land.

2. No permit shall be approved unless the application affirmatively demonstrates and the commission or the director finds in writing on the basis of the information set forth in the application or from information otherwise available which will be documented in the approval, and made available to the applicant, that:

(1) The permit application is accurate and complete and that all the requirements of this law and the rules and regulations have been complied with;

(2) The applicant has demonstrated that reclamation as required can be accomplished under the reclamation plan contained in the permit application;

(3) The assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance specified in subsection 2 of section 444.820 has been made by the commission and the proposed operation thereof has been designed to prevent material damage to hydrologic balance outside the permit area;

(4) The area proposed to be mined is not included within an area designated unsuitable for surface coal mining pursuant to section 444.890 or is not within an area under study for such designation in an administrative proceeding commenced pursuant to paragraph (c) of subdivision (4) of subsection 1 of section 444.890 or section 444.890 (unless in such an area as to which an administrative proceeding has commenced pursuant to paragraph (c) of subdivision (4) of subsection 1 of section 444.890, the operator making the permit application demonstrates that, prior to January 1, 1977, he has made substantial legal and financial commitments in relation to the operation for which he is applying for a permit);

(5) In cases where the private mineral estate has been severed from the private surface estate, the applicant has submitted to the commission:

(a) The written consent of the surface owner to the extraction of coal by surface mining methods; or

(b) A conveyance that expressly grants or reserves the right to extract the coal by surface mining methods; or

(c) If the conveyance does not expressly grant the right to extract coal by surface mining methods, the surface-subsurface legal relationship shall be determined by a final court decree; provided, that nothing in this law shall be construed to authorize the commission to adjudicate property rights disputes.

3. The applicant shall file with his permit application a schedule listing any and all notices of violations of this law and any law, rule, or regulation of this state or the United States, or of any department or agency in this state or the United States pertaining to air or water environmental protection incurred by the applicant in connection with any surface coal mining operation during the three-year period prior to the date of application. The schedule shall also indicate the final resolution of any such notice of violation. Where the schedule or other information available to the commission indicates that any surface coal mining operation owned or controlled by the applicant is currently in violation of this law, Public Law 95-87, or such other laws referred to in this subsection, the permit shall not be issued until the applicant submits proof that such violation has been corrected or is in the process of being corrected to the satisfaction of the commission, department, or agency which has jurisdiction over such violation and no permit shall be issued to an applicant after a finding by the commission, after opportunity for hearing, that the applicant, or the operator specified in the application, controls or has controlled mining operations with a demonstrated pattern of willful violations of this law of such nature and duration with such resulting irreparable damage to the environment as to indicate an intent not to comply with the provisions of this law.

4. (1) In addition to finding the application in compliance with subsection 2 of this section, if the area proposed to be mined contains prime farmland pursuant to subdivision (16) of subsection 2 of section 444.820, the commission or the director shall, after consultation with the United States Secretary of Agriculture, and pursuant to regulations issued hereunder by the commission, grant a permit to mine on prime farmland if the commission or the director finds in writing that the operator has the technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management and can meet the soil reconstruction standards in subdivision (7) of subsection 2 of section 444.855.

(2) Nothing in this subsection shall apply to any permit issued prior to September 28, 1979, or to any revisions or renewals thereof, or to any existing surface mining operations for which a permit was issued prior to September 28, 1979.

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(L. 1979 H.B. 459)