Chapter 10. Areas Where Mining is Prohibited or Limited
Regulation .01 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Cemetery” means any area of land where human bodies are interred.
(2)
“Community or institutional building” means any structure, other than a public building or an occupied dwelling, which:
(a)
Is used primarily for meetings, gatherings, or functions of local civic organizations or other community groups;
(b)
Functions as an educational, cultural, historic, religious, scientific, correctional, mental health, or physical health care facility; or
(c)
Is used for public services, including but not limited to water supply, power generation, or sewage treatment.
(3)
“Occupied dwelling” means any building that is currently being used on a regular or temporary basis for human habitation.
(4)
“Public building” means any structure that is owned or leased by a government agency and used principally for public business, meetings, or other group gatherings.
(5)
“Public park” means an area dedicated or designated by any federal, State, or local agency for public recreational use, whether this use is limited to certain times or days, including any land leased, reserved, or held open to the public because of that use.
(6)
“Public road” means any thoroughfare open to the public which has been, and is being used by the public for vehicular travel, and which is maintained by a government agency.
(7)
Valid Existing Rights.
(a)
“Valid existing rights” means, except for haul roads:
(i)
Those property rights in existence at the time the land came under the protection of Environment Article,
§15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, that were created by a legally binding conveyance, lease, deed, contract, or other document which authorizes the applicant to produce coal by a surface coal mining operation; and
§15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, that were created by a legally binding conveyance, lease, deed, contract, or other document which authorizes the applicant to produce coal by a surface coal mining operation; and
(ii)
The person proposing to conduct surface coal mining operations on the land had obtained all permits and other authorizations required to conduct surface coal mining operations or had made a good faith effort to obtain all necessary permits and authorizations to conduct the operations on the land that came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and at a minimum had submitted an application for any permit required under this subtitle, or can demonstrate to the Bureau that the coal land is needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations had been obtained, or a good faith attempt to obtain all permits and authorizations had been made, before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter.
(b)
“Valid existing rights” means, for haul roads:
(i)
A properly recorded right-of-way or easement for a road in that location which existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and under the document creating the right-of-way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right-of-way or easement for surface coal mining operations;
(ii)
Any road in existence when the land upon which it is located came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and the person has a legal right to use the road for surface coal mining operations;
(iii)
A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter; or
(iv)
Valid existing rights exist under §B(7)(a) of this regulation.
(c)
Interpretation of the terms of the document relied upon to establish valid existing rights shall be based either upon applicable State case law concerning interpretation of documents conveying mineral rights or, if no applicable State case law exists, upon the usage and custom at the time and place that it came into existence and upon a showing by the applicant that the parties to the document actually contemplated a right to conduct the same underground or surface mining activities for which the applicant claims a valid existing right.
(d)
“Valid existing rights” does not mean mere expectation of a right to conduct surface coal mining operations, or the right to conduct underground coal mining. Examples of rights which alone do not constitute valid existing rights include but are not limited to coal exploration permits or licenses, applications, or bids for leases.
Regulation .01-1 Demonstration Standards.LinkCopy Citation
A.
In order to meet the needed for and immediately adjacent standard in Regulation .01B(7)(a)(ii) of this regulation, a person shall demonstrate that prohibiting expansion of the surface coal mining operation onto land under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, would unfairly impact the viability of the operation as originally planned before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter. Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, when the Bureau approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made.
B.
In evaluating whether a person meets the standard in §A of this regulation, the Bureau may consider factors such as:
(1)
The extent to which the coal supply contracts or other legal and business commitments that predate the time the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, depend upon use of that land for surface coal mining operations;
(2)
The extent to which plans used to obtain financing for the operation before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, rely upon the use of that land for surface coal mining operations;
(3)
The extent to which investments in the operation before the land came under the protection of Environment Article,
§15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, rely upon the use of that land for surface coal mining operations; or
§15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, rely upon the use of that land for surface coal mining operations; or
(4)
Whether the land lies within the areas identified on the map required under COMAR 26.20.02.10A(6) before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter.
Regulation .02 Prohibition.LinkCopy Citation
Subject to valid existing rights, as determined under Regulation .07 of this chapter, or an exception for an existing operation under Regulation .04 of this chapter, surface coal mining operations may not be conducted on any of the following lands:
A.
Lands within the boundaries of the Youghiogheny River Scenic Corridor;
B.
Lands which will adversely affect any publicly owned park or any publicly owned places included on the National Register of Historic Places, unless approved jointly by the Bureau and the federal, State, or local agency with jurisdiction over the park or places;
C.
Lands within 100 feet measured horizontally from the outside right-of-way line of any public road, except:
(1)
Where mine access roads or haulage roads are located within the right-of-way line in order to join the public road; or
(2)
Where the Bureau allows the public road to be relocated, closed, or the area affected to be within 100 feet of this road, after requiring the applicant to obtain the written approval of the authority with jurisdiction over the public road, and making a written finding that the interests of the affected public and landowners will be protected;
D.
Lands within 300 feet measured horizontally from any occupied dwelling, unless the owner of the dwelling has provided a written waiver consenting to surface coal mining operations closer than 300 feet;
E.
Lands within 25 feet, or a distance of 2 feet for each vertical foot of highwall, whichever is greater, of any adjacent property line, unless the owner of the adjacent property has provided a written waiver consenting to surface coal mining operations within a closer distance;
F.
Lands within 300 feet measured horizontally from any public building, school, community or institutional building, or public park; or
G.
Lands within 100 feet measured horizontally from a cemetery.
Regulation .03 Determination of Limits and Prohibitions.LinkCopy Citation
A.
Upon receipt of a complete application for a surface coal mining operation permit or a revision of the boundaries of a surface coal mining operation permit, the Bureau shall review the application to determine whether the proposed surface coal mining operations are limited or prohibited under this chapter.
B.
If the proposed operation is to be located on any lands where surface coal mining is prohibited, the Bureau shall reject any portion of the application that would locate surface coal mining operations on land protected under Regulation .02 of this chapter unless:
(1)
The site qualifies for an exception for existing operations under Regulation .04 of this chapter;
(2)
The applicant has valid existing rights for the land as determined under Regulation .07 of this chapter;
(3)
The applicant obtains a waiver or exception from the prohibitions of Regulation .02C, D, and E of this chapter in accordance with §§D, E, and F of this regulation; or
(4)
For land protected by Regulation .02B of this chapter, both the Bureau and the agency with jurisdiction over the park or place jointly approve the proposed operation in accordance with §H of this regulation.
C.
If the Bureau is unable to determine whether the proposed operation is located within the boundaries of any of the lands in Regulation .02A of this chapter, or closer than the limits provided in Regulation .02F and G of this chapter, the Bureau shall transmit a copy of the relevant portions of the permit application to the appropriate federal, State, or local government agency with a request for assistance in making a determination or clarification of the relevant boundaries or distances, with a notice to the appropriate agency that the agency has 30 days from receipt of the request in which to respond. On request by the appropriate agency, the Bureau shall grant an extension to the 30-day period of an additional 30 days. If a response is not received within the 30-day period or within the extended period granted, the Bureau may make the necessary determination based on the information it has available.
D.
If the proposed mining operation is to be conducted within 100 feet measured horizontally from the outside right-of-way line of any public road, except where mine access roads or haulage roads join this right-of-way line, or if the applicant proposes to relocate or close any public road, the Bureau:
(1)
Shall require the applicant to obtain necessary approvals of the authority with jurisdiction over the public road;
(2)
Shall require the applicant to specifically advertise that the proposed surface mining operation would relocate or close a public road or would be conducted within 100 feet of the right-of-way of a public road and provide a public comment period and opportunity to request a public hearing;
(3)
Shall make a written finding based upon information received at the public hearing, within 30 days after completion of the hearing, or after any public comment period ends if no hearing is held, as to whether the interests of the public and affected landowners will be protected from the proposed mining operation; and
(4)
May not allow mining within 100 feet of the outside right-of-way line of a public road, or allow a public road to be relocated or closed, unless the Bureau determines that the interests of the public and affected landowners will be protected.
E.
If the proposed surface coal mining operation is to be conducted within 300 feet measured horizontally from any occupied dwelling, the applicant shall submit with the application a written waiver from the owner of the dwelling, stating that the owner and signator had the legal right to deny mining and knowingly waived that right and consented to the operations within a closer distance of the dwelling as specified in the waiver. The waiver shall be knowingly made and separate from a lease or deed unless
the lease or deed contains an explicit waiver. If an applicant obtained a valid waiver before August 3, 1977, a new waiver is not required. If an applicant obtained a valid waiver on or after August 3, 1977, that waiver shall remain effective against subsequent purchasers who had actual or record knowledge of the existing waiver at the time of purchase.
the lease or deed contains an explicit waiver. If an applicant obtained a valid waiver before August 3, 1977, a new waiver is not required. If an applicant obtained a valid waiver on or after August 3, 1977, that waiver shall remain effective against subsequent purchasers who had actual or record knowledge of the existing waiver at the time of purchase.
F.
A subsequent purchaser is considered to have record knowledge if the waiver has been properly filed in public property records under State laws, or if the mining has proceeded to within the 300-foot limit before the date of purchase.
G.
If the proposed surface coal mining operation is to be conducted within 25 feet, or a distance of 2 feet for each vertical foot of highwall, of any adjacent property line, the applicant shall submit with the application a written waiver from the owner of the adjacent property, consenting to the operations within a closer distance as specified in the waiver.
H.
If the Bureau determines that the proposed surface mining operation will adversely affect any publicly owned park or any places included on the National Register of Historic Places, the Bureau shall transmit to the federal, State, or local agencies with jurisdiction over the park or historic place, a copy of applicable parts of the permit application, together with a request for that agency's approval or disapproval of the operation, and a notice to that agency that the agency has 30 days from receipt of the request in which to respond, and that failure to interpose a timely objection constitutes approval. The Bureau, upon request by the appropriate agency, may grant an extension to the 30-day period of an additional 30 days. Failure to interpose an objection within 30 days or the extended period granted constitutes an approval of the proposed permit. A permit for the operation may not be issued unless jointly approved by all affected agencies.
I.
The Bureau's determination as to whether a person holds a valid existing right, or whether surface coal mining operations existed on the date of enactment, is subject to administrative and judicial review.
Regulation .04 Exception for Existing Operations.LinkCopy Citation
The prohibitions and limitations of Regulation .02 of this chapter do not apply to surface coal mining operations for which a permit issued by the Bureau under the Regulatory Program exists when the land comes under the protection of Regulation .02 of this chapter. This exception only applies to lands within the permit area as it exists when the land comes under the protection of Regulation .02 of this chapter.
Regulation .05 Submission of Valid Existing Rights Determination.LinkCopy Citation
A.
A person that intends to conduct surface coal mining operations on the basis of valid existing rights under Regulation .02 of this chapter shall submit a request for a valid existing rights determination to the Bureau. This request may be submitted before preparing and submitting an application for a permit for the land.
B.
A request for a valid existing rights determination that relies on the good faith/all permits standard or the needed for and adjacent standard in Regulation .01B(7)(a)(ii) of this chapter shall provide a property rights demonstration. The demonstration shall include:
(1)
A legal description of the land to which the request pertains;
(2)
Complete documentation of the character and extent of the requestor's current interests in the surface and mineral estates of the land to which the request pertains;
(3)
A complete chain of title for the surface and mineral estates of the land to which the request pertains;
(4)
A description of the nature and effect of each title instrument that forms the basis of the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities;
(5)
A description of the type and extent of surface coal mining operations that the requestor claims the right to conduct, including the method of mining, any mining-related surface activities and facilities, and an explanation of how these operations would be consistent with State property law;
(6)
Complete documentation of the nature and ownership, as of the date that the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, of all property rights for the surface and mineral estates of the land to which the request pertains;
(7)
Names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains;
(8)
Documentation that, if the coal interests have been severed from other property interests, the owners of other property interests in the land to which the request pertains have been notified and provided an opportunity to comment on the validity of the property rights claimed in the request within 30 days of the notice; and
(9)
Any comments received in response to the notification required by §B(8) of this regulation.
C.
A request for a valid existing rights determination that relies on the good faith/all permits standard in Regulation .01B(7)(a)(ii) of this chapter shall contain:
(1)
All of the information required by §B of this regulation;
(2)
Approval and issuance dates and identification numbers for any permits, licenses, and authorizations that were obtained before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter;
(3)
Application dates and identification numbers for any permits, licenses, and authorizations for which applications were submitted before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter; and
(4)
An explanation of any other good faith effort made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter.
D.
A request for a valid existing rights determination that relies upon the needed for and adjacent standard in Regulation .01B(7)(a)(ii) of this chapter shall contain:
(1)
All of the information required by §B of this regulation; and
(2)
An explanation of how and why the land is needed for and immediately adjacent to the operation upon which the request is based, including the demonstration required by Regulation .01-1 of this chapter that prohibiting expansion of the operation onto the land would unfairly impact the viability of the operation as originally planned before the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter.
E.
A request for a valid existing rights determination that relies upon one of the standards for roads in Regulation .01B(7)(b) of this chapter shall contain satisfactory documentation that:
(1)
The road existed when the land on which it is located came under the protection of Environment Article, §15-505(b)(2), or Regulation .02 of this chapter, and the requestor has a legal right to use the road for surface coal mining operations;
(2)
A properly recorded right-of-way or easement for a road in that location existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and under the document creating the right-of-way or easement, and under any subsequent conveyances the requestor has a legal right to use or construct a road across that right-of-way or easement to conduct surface coal mining operations; or
(3)
A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter.
Regulation .06 Review of Valid Existing Rights Request.LinkCopy Citation
A.
Upon receipt of a request for a valid existing rights determination, the Bureau shall complete an initial review to determine if the request includes all applicable requirements of Regulation .05 of this chapter. If the request does not include all of the applicable information, the Bureau shall return the request with notification of the missing information.
B.
If the request is not returned to the Bureau within 30 days after receipt of the notification in §A of this regulation, the Bureau shall issue a determination that valid existing rights have not been demonstrated in accordance with Regulation .07 of this chapter.
C.
When the Bureau determines that a request for a valid existing rights determination is complete, the Bureau shall:
(1)
Notify the requestor, in writing, that the application is complete and require the requestor to publish the notice required by §D of this regulation; and
(2)
Provide a copy of the notice required by §C(1) of this regulation to:
(a)
The Bureau of Mines;
(b)
All reasonably locatable owners of surface and mineral estates in the land included in the request; and
(c)
The owner of the feature causing the land to come under the protection of Regulation .02 of this chapter, and when applicable, the agency with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of Regulation .02 of this chapter.
D.
Upon receipt of the Bureau notification that the request is complete, the requestor shall cause a notice to appear in a newspaper of general circulation in the county in which the land is located. The notice shall contain:
(1)
A heading of “Notice of Request for Valid Existing Rights Determination”;
(2)
The name and address of the requestor;
(3)
The location of the land to which the request pertains;
(4)
A description of the type of surface coal mining operations planned;
(5)
A reference to and brief description of the applicable standards under the definition of valid existing rights in Regulation .01B(7) of this chapter that contains the information required by §E of this regulation;
(6)
A statement that the Bureau will not make a decision on the merits of the request if, by the close of the comment period of the notice, a person with a legal interest in the land initiates appropriate legal action to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the claim for valid existing rights if the request relies upon one or more of the standards in Regulation .01B(7)(a)(ii) and (b)(i)and (ii) of this chapter;
(7)
A description of the procedures the Bureau will follow in processing the request;
(8)
The closing date of a comment period that is a minimum of 30 days after publication of the notice;
(9)
A statement that interested persons may obtain a 30 day extension of the comment period upon written request to the Bureau; and
(10)
The name and address of the Bureau office where a copy of the request is available for public inspection and where comments and requests for extension of the comment period may be sent.
E.
The reference and description required by §D(5) of this regulation shall include a description of the:
(1)
Property rights claimed and the basis for the claim if the request relies upon the good faith/all permits standard or the needed for and adjacent standard in Regulation .01B(7)(a)(ii) of this regulation;
(2)
Basis for the claim that the road existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and that a legal right exists to use the road for surface coal mining operations if the request relies upon the standard in Regulation .01B(7)(b)(ii) of this chapter; or
(3)
Basis for the claim that a properly recorded right-of-way or easement for a road in that location existed when the land came under the protection of Environment Article, §15-505(b)(2), Annotated Code of Maryland, or Regulation .02 of this chapter, and under the document creating the right-of-way or easement, and under any subsequent conveyances a legal right exists to use or construct a road across the right-of-way or easement to conduct surface coal mining operations, if the request relies upon the standard in Regulation .01B(7)(b)(i) of this regulation.
F.
The notice required by §C(2) of this regulation shall provide a 30 day comment period starting from the date of service and specify that an additional 30 days is available upon written request. The Bureau may grant additional time for good cause upon request and is not required to consider comments received after the closing date of the comment period.
Regulation .07 Decision on Valid Existing Rights.LinkCopy Citation
A.
The Bureau shall review the information submitted under Regulation .05 of this chapter, the comments received under Regulation .06 of this chapter, and any other reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request for valid existing rights. The Bureau shall notify the applicant, in writing, if it determines the record is inadequate, providing an explanation of the inadequacy and requesting the submittal of additional information that is necessary to complete the record. The notice shall require the requested information to be submitted within 30 days from receipt of the notice.
B.
When the record is complete and adequate, the Bureau shall determine whether the request submitted under Regulation .05 of this chapter has demonstrated valid existing rights. The Bureau's decision shall be in writing and contain findings of fact and conclusions sufficient to justify the decision.
C.
The Bureau shall issue a determination that valid existing rights have not been demonstrated if the property rights claims are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The determination shall be made without prejudice. The request may be refiled when the property rights dispute is finally adjudicated. This section only applies to legal action that is initiated as of the closing date of the comment period under Regulation .06D and F of this chapter.
D.
If the record of the request indicates disagreement as to the accuracy of the property rights claims, but is not the subject of any pending litigation, the Bureau shall evaluate the merits of the information in the record and determine whether a demonstration of valid existing rights has been made. The Bureau shall issue a decision in accordance with §B of this regulation.
E.
The Bureau shall issue a determination that valid existing rights have not been demonstrated if any of the information requested under §A of this regulation is not submitted within 30 days from receipt of the notice. This determination is made without prejudice and a revised request may be refiled at any time.
F.
After making a determination under this regulation, the Bureau shall:
(1)
Require the person requesting the determination to publish notice in a newspaper of general circulation in the county in which the land is located and provide a copy of the published notice to the Bureau; and
(2)
Provide a copy of the determination and an explanation of appeal rights to:
(a)
The person requesting the determination;
(b)
The owner or owners of the land to which the determination applies;
(c)
The owners of the feature causing the land to come under the protection of Regulation .01B(7) of this chapter; and
(d)
When applicable, to the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of Regulation .01B(7) of this chapter.
G.
A determination by the Bureau on valid existing rights is subject to administrative and judicial review under COMAR 26.20.06.
Chapter annotations
Authority: Environment Article, §15-503, Annotated Code of Maryland
History: Effective date:
History: Regulations .01—.03 were previously codified as COMAR 08.13.09.10A—C, 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.
History: Chapter recodified from COMAR 08.20.10 to COMAR 26.20.10, June 1996
History: Regulation .01B amended effective February 12, 2007 (34:3 Md. R. 301)
History: Regulation .01-1 adopted effective February 12, 2007 (34:3 Md. R. 301)
History: Regulation .02 amended effective February 12, 2007 (34:3 Md. R. 301)
History: Regulation .03 amended effective February 12, 2007 (34:3 Md. R. 301)
History: Regulation .04 adopted effective February 12, 2007 (34:3 Md. R. 301)
History: Regulation .05 adopted effective February 12, 2007 (34:3 Md. R. 301)
History: Regulation .06 adopted effective February 12, 2007 (34:3 Md. R. 301)
History: Regulation .07 adopted effective February 12, 2007 (34:3 Md. R. 301)