CHAPTER 4. PERMIT APPROVAL OR DENIAL
IC 14-34-4
Chapter 4. Permit Approval or Denial
IC 14-34-4-1
Applicant's required notice of application
Sec. 1. At the time of submission of an application for a permit orrevision or renewal of a permit under this article, the applicant shalldo the following:
(1) Place the advertisement submitted as part of the applicationunder IC 14-34-3-3(6) in a local newspaper of generalcirculation in the county in which the proposed surface coalmining operation is located at least one (1) time a week for four(4) consecutive weeks.
(2) Mail a copy of the advertisement to each person identifiedin the application under IC 14-34-3-3(2).
(3) Mail a copy to every person who has requested notice ofsuch applications.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-2
Director's required notice of application
Sec. 2. (a) The director shall give notice to the following:
(1) Various local governmental bodies, planning agencies,sewage and water treatment authorities, or water companies inthe county in which the proposed surface coal mining operationwill take place.
(2) All federal or state governmental agencies with authority toissue permits and licenses applicable to the proposed surfacecoal mining and reclamation operation that are part of thepermit coordinating process developed in accordance withIC 14-34-3-14.
(3) Those agencies with an interest in the proposed operations,including the following:
(A) The United States Department of Agriculture NaturalResources Conservation Service district office.
(B) The local United States Army Corps of Engineersdistrict engineer.
(C) The National Park Service.
(D) State and federal fish and wildlife agencies.
(E) The historic preservation officer.
(b) The notice required by subsection (a) must consist of thefollowing:
(1) The operator's intention to mine a particularly describedtract of land.
(2) The application's permit number.
(3) Where a copy of the proposed surface coal mining andreclamation plan may be inspected.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-3 Comments concerning applications
Sec. 3. (a) The local bodies, agencies, authorities, or companiesnotified under section 2 of this chapter may, within thirty (30) daysof notification, submit written comments concerning the permitapplications with respect to the effect of the proposed surface coalmining operation on the environment in their area of responsibility.
(b) The director shall immediately do the following:
(1) Transmit the comments to the applicant.
(2) Make the comments available to the public at the samelocations that the permit applications are available.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-4
Objections; request for informal conference or public hearing
Sec. 4. (a) A person with an interest that is or may be adverselyaffected by a proposed surface coal mining operation or the officeror head of a federal, state, or local governmental agency or authoritymay:
(1) file written objections to the proposed initial or revisedapplication for a permit for surface coal mining and reclamationoperation with the director; and
(2) request an informal conference or a public hearing undersection 6 of this chapter;
within thirty (30) days after the last publication of the notice requiredby sections 1 and 2 of this chapter.
(b) The request for an informal conference or public hearing mustdo the following:
(1) State specifically the objections of the person requesting theconference.
(2) If the person requesting the conference or public hearing isnot the officer or head of a federal, state, or local governmentalagency or authority, identify the interest of the person who is ormay be affected by the proposed surface coal mining operation.
(c) Upon receipt of an objection under subsection (a), the directorshall immediately do the following:
(1) Transmit the objections to the applicant.
(2) Make the objections available to the public.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-5
Informal conference or public hearing; access to mining area;record of proceedings
Sec. 5. (a) If written objections are filed and an informalconference or a public hearing is requested, the director shall holdthe conference or public hearing in the locality of the proposedsurface coal mining operation within a reasonable time of receipt ofthe objections or request. The director shall advertise in a newspaperof general circulation in the county in which the proposed surfacecoal mining operation is located at least two (2) weeks before thescheduled conference or public hearing the date, time, and location
of the conference or public hearing.
(b) The director may arrange with the applicant, upon request byany party to the administrative proceeding, access to the proposedmining area for the purpose of gathering information relevant to theproceeding.
(c) An electronic or a stenographic record shall be made of theconference or public hearing, unless waived by all parties. Thedirector shall maintain the record and have the record accessible tothe parties until final release of the applicant's performance bond.
(d) The director may not hold the conference or public hearing ifany of the following conditions exist:
(1) All parties requesting the conference or public hearingstipulate agreement before the conference or public hearing andwithdraw their request.
(2) The request fails to comply with the requirements of section4 of this chapter.
(3) The objections do not concern a matter within the scope ofthis article or the commission's rules.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-6
Conditions requiring public hearing
Sec. 6. A public hearing shall be held on the proposed initial orrevised application for a permit if any of the following conditionsexist:
(1) The applicant requests a public hearing under section 4 ofthis chapter.
(2) A petition is filed with the director requesting a publichearing that is signed by at least twenty-five (25) individualswho are at least eighteen (18) years of age and who:
(A) reside in the county where the permitted activity wouldtake place; or
(B) own real property within one (1) mile of the site of theproposed or existing permitted activity.
(3) The director orders a public hearing.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-7
Approval of application; requirements
Sec. 7. (a) The applicant has the burden of establishing that theapplication complies with all the requirements of this article. Thedirector may not approve a permit or revision application unless theapplication affirmatively demonstrates and the director finds thefollowing:
(1) The permit application is accurate and complete and incompliance with all the requirements of this article.
(2) The applicant has demonstrated that reclamation as requiredby this article can be accomplished under the reclamation plancontained in the permit application.
(3) The: (A) assessment of the probable cumulative impact of allanticipated mining in the area on the hydrologic balancespecified in IC 14-34-3-3 has been made by the director; and
(B) proposed mining operation is designed to preventmaterial damage to the hydrologic balance outside the permitarea.
(4) The proposed mining area is not:
(A) included within an area designated unsuitable for surfacecoal mining under IC 14-34-18-4; or
(B) within an area under study for that designation in anadministrative proceeding;
unless the applicant demonstrates that before January 1, 1977,the applicant has made substantial legal and financialcommitments in the operation for which the applicant isapplying for a permit and is in an area where an administrativeproceeding has commenced under IC 14-34-18-4.
(5) If the private mineral estate is severed from the privatesurface estate, the applicant has submitted to the director one(1) of the following:
(A) The written consent of the surface owner to theextraction of coal by surface mining methods.
(B) A conveyance that expressly grants or reserves the rightto extract the coal by surface mining methods. If theconveyance does not expressly grant the right to extract coalby surface mining methods, the surface-subsurface legalrelationship shall be determined in accordance with Indianalaw.
(6) A surface coal mining operation owned or controlled by theapplicant or a person who owns or controls the applicant is notin violation of:
(A) this article;
(B) IC 14-36-1;
(C) the federal Surface Mining Control and Reclamation Actof 1977 (30 U.S.C. 1201 through 1328);
(D) any federal statute or regulation; or
(E) any state statute or rule enacted or adopted under federalstatute or regulation pertaining to air or water environmentalprotection;
unless the applicant submits proof that an existing violation hasbeen appealed or corrected or is in the process of beingcorrected to the satisfaction of the regulatory authority that hasjurisdiction over the violation.
(7) The applicant has, if applicable, satisfied the requirementsfor approval of a long term, intensive agricultural postminingland use.
(8) The applicant has paid all reclamation fees from previousand existing operations as required by 30 CFR Part 870.
(9) The operation would not affect the continued existence ofendangered or threatened species or result in destruction oradverse modification of their critical habitats, as determined
under the federal Endangered Species Act of 1973 (16 U.S.C.1531 et seq.).
(10) If any part of the operation would take place in a floodway,the operation will not:
(A) result in unreasonably detrimental effects upon the fish,wildlife, or botanical resources;
(B) adversely affect the efficiency; or
(C) unduly restrict the capacity;
of the floodway.
(b) The director shall make the findings required by subsection (a)in writing and available to the applicant. The director may base thefindings on information set forth in the application or frominformation otherwise available. The director shall set forth in thewritten approval or denial the basis of the director's findings.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-8
Nonissuance of permit for violations of certain federal and statestatutes
Sec. 8. (a) As used in this section, "applicant" or "operator"includes the following:
(1) The officers, partners, or directors of the applicant oroperator.
(2) The officers, partners, or directors of applicants or operatorsunder IC 14-36-1.
(b) The director may not issue a permit to an applicant if thedirector finds after a hearing conducted in accordance withIC 4-21.5-3 that the applicant or the operator specified in theapplication controls or has controlled surface coal mining operationswith a demonstrated pattern of willful violations of:
(1) the federal Surface Mining Control and Reclamation Act of1977 (30 U.S.C. 1201 through 1328);
(2) this article or IC 13-4.1 (before its repeal);
(3) IC 14-36-1 or IC 13-4-6 (before its repeal); or
(4) any state statute enacted in response to P.L.95-87, thefederal Surface Mining Control and Reclamation Act of 1977(30 U.S.C. 1201 through 1328);
of a nature and duration and with the resulting irreparable damage tothe environment that indicates an intent not to comply with thisarticle, IC 13-4.1 (before its repeal), IC 14-36-1, or IC 13-4-6 (beforeits repeal).
As added by P.L.1-1995, SEC.27.
IC 14-34-4-8.5
Exemptions for unanticipated events or conditions
Sec. 8.5. The:
(1) finding required by section 7(a)(6) of this chapter; and
(2) prohibition on the issuance of a permit in section 8 of thischapter;
do not apply to a violation resulting from an unanticipated event or
condition at a surface coal mining operation on lands eligible forremining under a permit held by the applicant.
As added by P.L.179-1995, SEC.4.
IC 14-34-4-9
Mining of prime farmland
Sec. 9. (a) This section does not apply to an existing surface coalmining operation that held a valid permit on August 3, 1977, withcontinuous permits since that date.
(b) In addition to finding the application in compliance withsection 7 of this chapter, if the proposed mining area contains primefarmland under IC 14-34-3-3(16), the director shall, afterconsultation with the United States Secretary of Agriculture andunder rules adopted by the commission, grant a permit to mine onprime farmland if the director finds in writing that the operator hasthe technological capability to restore the mined area, within areasonable time, to equivalent or higher levels of yield as nonminedprime farmland in the surrounding area under equivalent levels ofmanagement and can meet the soil reconstruction standards inIC 14-34-10-2(b)(10).
As added by P.L.1-1995, SEC.27.
IC 14-34-4-10
Considerations regarding historic sites and structures; limitationon enforcement of section and rules
Sec. 10. (a) The director may not approve a permit applicationunless, in addition to the findings required by section 7 of thischapter, the director states in writing that the director has consideredthe effects of the proposed mining operation on a place listed on oreligible for listing on the National Register of Historic Places or theIndiana state register of historic sites and structures.
(b) If the director considers it appropriate in accordance with rulesadopted by the commission under this section, the director mayimpose conditions on a permit for the protection of properties or siteslisted on or eligible for listing on the National Register of HistoricPlaces or the Indiana state register of historic sites and structuresrequiring that:
(1) mining operations not occur in the areas occupied by theproperties or sites; or
(2) measures be implemented to mitigate the effects of theoperation upon those properties or sites before mining.
(c) The commission shall adopt rules under IC 4-22-2 toimplement this section consistent with the following generalprinciples:
(1) The commission's rules may not prohibit the use ofinformation from any source and shall recognize theresponsibilities of the state historic preservation officer underIC 14-21-1-12 and IC 14-21-1-15.
(2) The commission's rules must provide for participation byprofessional and amateur archeologists, anthropologists,
historians, or related experts in any:
(A) field investigations;
(B) studies; or
(C) records searches;
required by the director under this section.
(3) The commission's rules must strive to ensure that fieldinvestigations and studies are required only where a substantiallikelihood exists that important and significant archeological orhistoric sites are present.
(4) In considering the effect of proposed surface coal miningand reclamation operations on a property or site eligible forlisting on the National Register of Historic Places, the directorshall consider the following:
(A) Based on information available from the division ofhistoric preservation and archeology, the relative importanceof the property or site compared to other properties or sitesin Indiana listed on or eligible for listing on the NationalRegister of Historic Places.
(B) The cost of an investigation of the permit area or site asestimated by the applicant. A decision that an investigationis not required may not be based on cost alone.
(5) This section does not authorize rules that impair theownership of artifacts or other material found on private land.
(d) The director may do the following:
(1) Investigate the possibility of obtaining available federal orprivate:
(A) grants;
(B) subsidies; or
(C) aid;
to defer the cost to private individuals of measures required bythe director under this section.
(2) Apply for any:
(A) grants;
(B) aid; or
(C) subsidies;
that the director determines are available.
(e) In making the finding required by this section, the directorshall take into account the general principles set forth in subsection(c).
(f) This section and the rules adopted under this section may notbe enforced if and to the extent that any federal court holds that thefederal Surface Mining Control and Reclamation Act of 1977 (30U.S.C. 1201-1328) does not authorize the requirements of recordssearches, field investigations, or other studies in connection withapplication for surface coal mining operations.
As added by P.L.1-1995, SEC.27. Amended by P.L.16-2009, SEC.25.
IC 14-34-4-10.5
Good faith effort to identify problems that may result inunanticipated events or conditions Sec. 10.5. (a) A person who submits an application for a permitor for the revision or renewal of a permit under this article shall, tothe extent not otherwise addressed in the permit application, make agood faith effort to identify potential problems that may result in anunanticipated event or condition.
(b) An event or condition that arises despite substantial adherenceto the applicable operation and reclamation plan may be consideredunanticipated if it was not identified in the application for thegoverning permit.
As added by P.L.179-1995, SEC.5.
IC 14-34-4-11
Written findings
Sec. 11. (a) If an informal conference or public hearing is heldunder section 5 of this chapter, the director shall furnish the applicantand all parties with written findings:
(1) granting or denying the permit in whole or in part; and
(2) stating the reasons for granting or denying the permit inwhole or in part;
within sixty (60) days of the conference or public hearing.
(b) If the director does not take action on the permit applicationwithin sixty (60) days after the conference or public hearing, theapplicant may do the following:
(1) Consider the permit application disapproved.
(2) Request a hearing under section 13 of this chapter.
(c) The applicant may waive the time limits of this section.
(d) If an informal conference or public hearing is not held undersection 5 of this chapter, the director shall notify the applicant inwriting within a reasonable time established by the commission byrule and taking into account:
(1) the time needed for proper investigation of the site;
(2) the complexity of the permit application; and
(3) whether or not written objections to the application werefiled;
whether the application has been approved or disapproved in wholeor in part.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-12
Notification of applicant of director's decision
Sec. 12. The director shall notify an applicant of the director'sdecision regarding the application. If the application is disapproved,the notification must set forth specific reasons for the application'sdisapproval.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-13
Hearing on reasons for final determination
Sec. 13. (a) Within thirty (30) days after an applicant is notifiedof the approval or disapproval of an application: (1) the applicant; or
(2) any person with an interest that is or may be adverselyaffected;
may request a hearing on the reasons for the final determination. Therequest must identify the person's interest that is or may be affectedby the approval or disapproval of the application.
(b) Upon receipt of a request for a hearing under subsection (a),the commission shall do the following:
(1) Hold a hearing within thirty (30) days of the receipt of therequest.
(2) Notify the applicant and all interested parties of the time andplace of the hearing.
(3) Conduct the hearing and proceedings in accordance withIC 4-21.5. For all hearings and proceedings commenced afterJuly 1, 1991, the commission is limited to the record before thedirector.
(c) Within thirty (30) days after the hearing, the commission shallfurnish:
(1) the applicant; and
(2) all persons who participated in the hearing;
a written decision and state the reasons for the decision.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-14
Issuance of permit
Sec. 14. The director shall issue a permit if all of the followingapply:
(1) The application is approved.
(2) The bonding requirements of IC 14-34-6 are met.
(3) The thirty (30) day period specified under section 13(a) ofthis chapter has expired.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-15
Permit effective upon issuance
Sec. 15. Notwithstanding IC 4-21.5-3-5, a permit issued undersection 14 of this chapter is effective upon issuance, unless a stay ofthe permit has been granted under section 17 of this chapter.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-16
Notification of permit issuance
Sec. 16. (a) Within ten (10) days after a permit is issued, thedirector shall notify the following persons that a permit has beenissued:
(1) The local government officials in the county in which thearea of land to be affected is located.
(2) Each person identified in the permit application underIC 14-34-3-3(2).
(3) Each person who has requested a hearing under section 6 of
this chapter.
(4) Each person who has requested such notice.
(b) The notification must include a description of the land'slocation.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-17
Temporary relief pending final determination
Sec. 17. If a hearing is requested under section 13 of this chapter,the commission may, under the conditions that the commissionprescribes, grant appropriate temporary relief pending finaldetermination of the proceedings if the following conditions are met:
(1) All parties to the proceedings are notified and given anopportunity to be heard on a request for temporary relief.
(2) The person requesting temporary relief shows a substantiallikelihood that the person will prevail on the merits of the finaldetermination of the proceeding.
(3) Temporary relief will not adversely affect the public healthor safety or cause significant imminent environmental harm toland, air, or water resources.
As added by P.L.1-1995, SEC.27.
IC 14-34-4-18
Conditions of permit
Sec. 18. (a) Each permit issued by the director is subject toconditions imposed by the director. The conditions must include ata minimum a requirement for the operator to pay to the federal Officeof Surface Mining all fees owed under 30 CFR Part 870.
(b) The director may issue a permit subject to the condition thatthe permittee obtain or maintain in force other licenses or permitsrequired for the surface coal mining and reclamation operation.However, the imposition of a condition under this subsection doesnot authorize or require the director to administer or enforce therequirements of any federal law or of any state law other than thisarticle.
As added by P.L.1-1995, SEC.27. Amended by P.L.75-1998, SEC.5.