# COMAR Title 26 — Department of the Environment

## Subtitle 20 — Surface Coal Mining and Reclamation Under Federally Approved Program

### Chapter 04 — Permit Applications — Review Procedures

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.07 and .08—.13 were previously codified as COMAR 08.13.09.04A—G and H—M, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Regulation .02 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .03B amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .07 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .08A amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .08B amended effective October 23, 1995 (22:21 Md. R. 1614)

**Administrative History:** Regulation .09 repealed effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .10A, G, H amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .11 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .12 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Regulation .13 amended effective March 14, 1994 (21:5 Md. R. 403)

**Administrative History:** Chapter recodified from COMAR 08.20.04 to COMAR 26.20.04, June 1996

#### Regulation .01 Initial Submission of Application.

*COMAR 26.20.04.01*

A person seeking an open-pit mining permit shall simultaneously submit to the Bureau:

A. An original and three complete copies of an application containing all information required by COMAR 26.20.02, and applicable portions of COMAR 26.20.03. The application shall be submitted on forms provided by the Bureau, with any provision considered to be inapplicable being clearly identified as such.

B. A copy of an application for the National Pollutant Discharge Elimination System (NPDES) permit and any other permits required in order to engage in the proposed operation.

#### Regulation .02 Initial Review by the Bureau.

*COMAR 26.20.04.02*

A. Within 10 days of receipt of a permit application, the Bureau shall conduct a preliminary review for completeness. If it is determined that necessary information is not included, the Bureau shall return the application, with notification as to its deficiencies, and take no further action regarding the permit request.

B. If it is determined immediately that the requested permit cannot be issued, the Bureau shall so notify the applicant in accordance with the provisions of Regulation .12 of this chapter.

C. When the Bureau determines that an application is complete, the Bureau shall:

  (1) Notify the applicant in writing that the application is complete, and that the applicant shall advertise in a newspaper as required by Regulation .03 of this chapter, and file a copy of the application for public inspection as required by Regulation .04 of this chapter;

  (2) Forward copies of the application to the agency responsible for issuing the National Pollutant Discharge Elimination System permit and the soil conservation district in which the proposed operation is located, and provide these agencies an opportunity for a technical on-site evaluation within 2 weeks; and

  (3) Issue written notification of receipt of a complete application to:

    (a) Local government agencies with jurisdiction over or an interest in the area of the proposed surface coal mining and reclamation operation, including but not limited to the county commissioners, county planning and zoning agency, sewage and water treatment authorities, and

    (b) Federal or State government agencies with authority to issue permits and licenses applicable to the proposed surface coal mining and reclamation operation and those agencies with an interest in the proposed operation, including the U.S.D.A. Soil Conservation Service, the U.S. Army Corps of Engineers, the National Park Service, State and federal fish and wildlife agencies, the State Archeologist, and the Maryland Historical Trust.

D. Notwithstanding the notification under §C(1) of this regulation, the applicant is required to immediately submit any information which is later determined by the Bureau to be necessary for continued processing and evaluation of the application.

E. The notifications required by §C(3) of this regulation include:

  (1) A statement that the Bureau has received an application to surface mine a particularly described tract of land;

  (2) The name of the applicant, and any identifying number assigned to the application;

  (3) The location where a complete copy of the application may be inspected;

  (4) The address where written comments, objections, or a request for a hearing may be submitted on the application; and

  (5) The deadline for submission of comments, objections, or a request for a hearing.

#### Regulation .03 Applicant's Newspaper Advertisement.

*COMAR 26.20.04.03*

A. Upon receipt of Bureau notification that an application is complete, the applicant shall cause an advertisement to appear, at least once a week for 4 consecutive weeks, in a local newspaper of general circulation in the county where the operation will be located.

B. The advertisement shall contain, at a minimum, the following information:

  (1) A heading of “Notice of Application for Strip Mine Permit” in boldface type;

  (2) The name and business address of the applicant;

  (3) A map or description which:

    (a) Clearly shows or describes towns, rivers, streams, or other bodies of water, local landmarks, and any other information, including routes, streets, or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area,

    (b) Clearly shows or describes the exact location and boundaries of the proposed permit area,

    (c) States the name of the U.S. Geological Survey 7.5-minute quadrangle map or maps which contain the area shown or described, and

    (d) If a map is used, indicates the north point;

  (4) The location where a copy of the application is available for public inspection;

  (5) The name and address of the Bureau and a statement that written comments, objections, or a request for a hearing on the application may be submitted to the Bureau within 30 days from the date of the last advertisement; and

  (6) If an applicant seeks a permit to mine within 100 feet of the outside right-of-way of a public road or to relocate a public road, a concise statement describing the public road, the particular part to be relocated, where the relocation is to occur, and the duration of the relocation.

#### Regulation .04 Application Available to Public.

*COMAR 26.20.04.04*

A. The applicant shall ensure that a complete copy of the application is available to the general public, for inspection and copying, by the date of the first advertisement under Regulation .03 of this chapter. This requirement shall be satisfied by filing a copy at the courthouse of the county where the mining is proposed to occur or, with the concurrence of the Bureau, at another public office more accessible to local residents.

B. The applicant shall file any subsequent revision of the application with the public office at the same time the revision is submitted to the Bureau.

C. Information requested to be held as confidential may not be made publicly available until after notice and opportunity to be heard is given persons both seeking and opposing disclosure of the information. All qualified confidential information shall be identified by the applicant and submitted separately from the remainder of the application. Confidential information is limited to information:

  (1) That pertains only to the analysis of the chemical and physical properties of the coal to be mined, except information on components of the coal which are potentially toxic in the environment;

  (2) That is not on file under State law and that the applicant has requested in writing to be held confidential; and

  (3) On the nature and location of archeological resources on public land and Indian land as required under the Archeological Resources Protection Act of 1979 (P.L. 96-95, 93 Stat. 721, 16 U.S.C. §470).

#### Regulation .05 Public Participation.

*COMAR 26.20.04.05*

A. Within 30 days from the last advertisement under Regulation .03 of this chapter, the Bureau shall receive and consider written comments, objections, and requests for a hearing on the application from any party directly notified under this regulation, an officer or head of any federal, State, or local government agency or authority, or any person having an interest which may be adversely affected by issuance of the requested permit.

B. Upon receipt of any written comment, objection, or request for a hearing, the Bureau shall immediately transmit a copy to the applicant, and to the public office where a copy of the application is filed pursuant to Regulation .04 of this chapter.

#### Regulation .06 On-Site Inspection.

*COMAR 26.20.04.06*

A. A person who files a written request for a hearing may include a request to be granted access to the proposed permit area for the purpose of gathering information relevant to the hearing under Regulation .10 of this chapter. The request shall briefly summarize the nature of the information sought, and the expected amount of time required.

B. If the Bureau determines that there is a reasonable basis for believing that the requested inspection will lead to relevant information not otherwise contained in the application, it shall so notify the requestor and the applicant. The applicant shall arrange and conduct the inspection as expeditiously as possible.

#### Regulation .07 Detailed Review by Bureau.

*COMAR 26.20.04.07*

A. The Bureau shall conduct a detailed review of the application and all other factors relevant to a determination as to whether the requested permit may be issued within the requirements of the Regulatory Program.

B. The Bureau shall notify the applicant of any substantial problems regarding the permit request, and provide an opportunity for the applicant to respond to these problems, to supplement the application, or to remedy any defects discovered during the detailed review. The applicant for a permit or a revision of a permit has the burden of establishing that the application is in compliance with all the requirements of the Regulatory Program.

C. If the Bureau determines that there is no reasonable possibility for the requested permit to be issued within the requirements of the Regulatory Program, the Bureau may immediately terminate its review of the application, and proceed in accordance with the provisions of Regulation .12 of this chapter for denial of the permit.

D. If the Bureau determines that the requested permit may be available under the Regulatory Program, and the applicant has satisfactorily responded to any comments noted by the Bureau, or any public comment or objection, then the Bureau shall require eight copies of the complete application from the applicant, including proof of publication of the advertisement required under Regulation .03 of this chapter.

#### Regulation .08 Public Hearing.

*COMAR 26.20.04.08*

A. If a request for a public hearing is received under Regulation .05 of this chapter, the Bureau shall schedule a hearing in the locality of the proposed operation.

B. The Bureau shall provide notice of the public hearing by:

  (1) Notifying the applicant and any person who requested a hearing of the date, time, and location of the hearing; and

  (2) Publishing the date, time, and location of the hearing in a newspaper of general circulation in the area of the proposed operation.

C. The notice under §B of this regulation shall contain the heading “Notice of Public Hearing on Strip Mine Permit Application” in bold-face type, and information sufficient to identify the particular permit application. The notice shall be published at least 15 but not more than 60 days before the date of the hearing.

D. The public hearing shall be legislative in nature. The rules of evidence do not apply and cross-examination is not permitted. Anyone wishing to speak on the application will be heard. However, the presiding officer may limit the time allowed for oral presentations, or restrict repetitive or irrelevant discussion, in order to ensure an orderly and expeditious hearing. Written statements will be accepted.

E. The applicant shall be present at the hearing and prepared to answer any question regarding the pending application. The Bureau shall make available an employee familiar with the application and its review by the Bureau.

F. Unless waived by all parties, an electronic or stenographic verbatim record shall be made of the hearing proceeding. A party to the hearing may, at the party's expense, obtain a verbatim transcript. The record shall be maintained and shall be accessible to the public until final release of the applicant's performance bond or other equivalent guarantee. In all cases, the Bureau shall prepare an abbreviated transcript of the hearing which will be available to the public.

G. The Presiding Officer may direct that public comment on the application be taken at each individual step in the proceeding, or simultaneously on all aspects of the permit request.

#### Regulation .09 Repealed.

*COMAR 26.20.04.09*

#### Regulation .10 Bureau Decision.

*COMAR 26.20.04.10*

A. The Bureau shall complete its review of the application and render a decision to approve or deny the permit application in accordance with the provisions of COMAR 26.20.05.

B. Based on available information concerning federal and State failure-to-abate cessation orders, unabated federal and State imminent harm cessation orders, delinquent civil penalties issued under §518 of the federal Surface Mining Control and Reclamation Act of 1977, bond forfeitures, delinquent abandoned mine reclamation fees, and 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 operation, the Bureau may 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 the federal Surface Mining Control and Reclamation Act of 1977, the Regulatory Program, or any other law, rule, or regulation referred to in this section. In the absence of a failure-to-abate cessation order, the Bureau may presume that a notice of violation issued under the Regulatory Program 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 when evidence to the contrary is set forth in the application, or when the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties.

C. If a current violation exists under §B of this regulation, the Bureau shall require the applicant or any person who owns or controls the applicant, before issuance of the permit, to submit to the Bureau proof that the:

  (1) 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

  (2) 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.

D. If the initial judicial review affirms the violation, then the applicant shall submit the proof required under §C(1) of this regulation within 30 days of the judicial action.

E. If the Bureau issues any permit on the basis of proof submitted under §C of this regulation, the permit shall be conditionally issued.

F. The Bureau may not issue the permit if it makes a determination that 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 the nature and duration, and with resulting irreparable damage to the environment, to indicate an intent not to comply with the provisions of the federal Surface Mining Control and Reclamation Act of 1977, the Regulatory Program, or any State program for the regulation of surface coal mining and reclamation operations approved by the Secretary of the Interior under the federal Surface Mining Control and Reclamation Act of 1977. The applicant or the operator shall be given an opportunity for an adjudicatory hearing on the determination as provided in COMAR 26.20.06.

G. If the Bureau approves the permit application, it shall proceed in accordance with the provisions of Regulation .11 of this chapter.

H. If the Bureau denies the permit application, it shall proceed in accordance with the provisions of Regulation .12 of this chapter.

#### Regulation .11 Permit Approval.

*COMAR 26.20.04.11*

A. If the Bureau decides to approve a permit application under this regulation, the Bureau shall notify the applicant, each person who filed written comments or objections to the permit application, and each party to a hearing, in writing, of its approval of the permit application. The notice to the applicant shall also contain:

  (1) Any special conditions which the Bureau has determined to impose on the permit beyond the normal requirements of the Regulatory Program;

  (2) A requirement for the applicant to update, correct, or indicate that no change has occurred in the information previously submitted in the application in accordance with COMAR 26.20.02.03A—F and I—K; and

  (3) A time limit within which the applicant shall submit to the Bureau all fees and bonds required under the Regulatory Program.

B. Before issuing the permit, the Bureau shall reconsider its decision to approve the application based on the review required by Regulation .10B and C of this chapter in light of any new information submitted under §A(2) of this regulation.

C. If the compliance review under §B of this regulation does not require the Bureau to change its decision to approve the application, the permit shall be issued by the Bureau within 15 days of the Bureau's receipt of all required bonds and fees.

D. When the permit is issued, the Bureau shall provide written notification of the issuance to the federal Office of Surface Mining.

E. Within 10 days of the issuance of the permit, the Bureau shall notify the local government officials in the area of the land to be affected that a permit has been issued, and shall describe the location of the permit area.

#### Regulation .12 Permit Denial.

*COMAR 26.20.04.12*

A. If the Bureau decides to deny a permit application under this regulation, the Bureau shall notify the applicant of the denial, in writing and by certified mail. The notice shall set forth:

  (1) A detailed description of the reasons for denial;

  (2) A statement that no further processing shall occur;

  (3) A statement that the applicant may, within 30 days of the date of the notice, request an adjudicatory hearing on the reasons for denial.

B. Within 10 days of its decision to deny a permit application, the Bureau shall send a notice of the permit denial to:

  (1) A person who filed a written comment or objection or who was party to a hearing on the permit application, stating that anyone whose interests are or may be adversely affected by the decision may request an adjudicatory hearing on the denial by notifying the Bureau in writing within 30 days of the date of the notice;

  (2) The local government officials in the area of the land to be affected, including a description of the land; and

  (3) The Office of Surface Mining.

#### Regulation .13 Administrative Review.

*COMAR 26.20.04.13*

Within 30 days after the applicant is notified of the decision of the Bureau concerning the application for a permit in accordance with Regulation .11 or .12 of this chapter, the applicant or any person with an interest which is or may be adversely affected may request an adjudicatory hearing on the reasons for the final decision in accordance with COMAR 26.20.06.