Tennessee Code 59-8-112 – Advertisement of ownership, precise location, and boundaries of land to be affected by permit – Notification by commissioner – Written objections to proposed permit – Informal conference – Grant, requirement of modification,…
Agriculture: means :(i) The land, buildings and machinery used in the commercial production of farm products and nursery stock. See Tennessee Code 1-3-105
Commissioner: means the commissioner of environment and conservation or the commissioner's designee. See Tennessee Code 59-8-102
Department: means the department of environment and conservation. See Tennessee Code 59-8-102
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Federal lands: means any land, including mineral interests, owned by the United States without regard to how the United States acquired ownership of the land and without regard to the agency having responsibility for management thereof, except Indian land. See Tennessee Code 59-8-102
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
Lands: includes lands, tenements and hereditaments, and all rights thereto and interests therein, equitable as well as legal. See Tennessee Code 1-3-105
Lands eligible for remining: means those lands that would otherwise be eligible for expenditures under 30 U. See Tennessee Code 59-8-102
Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
Locality: means the county where all or the majority of a surface coal mining and reclamation operation is located. See Tennessee Code 59-8-102
Office: means the office of surface mining reclamation and enforcement, established by the Surface Mining Control and Reclamation Act of 1977 (30 U. See Tennessee Code 59-8-102
Operator: means any person, partnership, or corporation engaged in coal mining who removes or intends to remove more than two hundred fifty (250) tons of coal from the earth by coal mining within twelve (12) consecutive months in any one (1) location. See Tennessee Code 59-8-102
Permit: means a permit to conduct surface coal mining and reclamation operations issued by the commissioner. See Tennessee Code 59-8-102
Permit area: means the area of land indicated on the approved map submitted by the operator with the operator's application, which area of land is covered by the operator's bond as required by §. See Tennessee Code 59-8-102
Permittee: means a person holding, or required by this part or rules promulgated by the commissioner to hold, a permit. See Tennessee Code 59-8-102
Person: means an individual, partnership, association, society, governmental agency or entity, joint stock company, firm, company, corporation, or other business organization. See Tennessee Code 59-8-102
Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form. See Tennessee Code 1-3-105
Road: includes public bridges and may be held equivalent to the words "county way" "county road" or "state road". See Tennessee Code 1-3-105
State: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
Subpoena: A command to a witness to appear and give testimony.
Surface coal mining and reclamation operations: means surface coal mining operations and all activities necessary and incident to the reclamation of surface coal mining operations occurring on and after May 26, 2021. See Tennessee Code 59-8-102
Surface coal mining operations: means :(A) Activities conducted on the surface of lands in connection with a surface coal mine or subject to §. See Tennessee Code 59-8-102
Transcript: A written, word-for-word record of what was said, either in a proceeding such as a trial or during some other conversation, as in a transcript of a hearing or oral deposition.
United States: includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
written: includes printing, typewriting, engraving, lithography, and any other mode of representing words and letters. See Tennessee Code 1-3-105
(1)(A) At the time of submission of an application for a surface coal mining and reclamation permit, or revision of an existing permit, pursuant to the provisions of this part the applicant shall:
(i) Submit to the commissioner a copy of the applicant’s advertisement of the ownership, precise location, and boundaries of the land to be affected; and(ii) Place the advertisement submitted in a local newspaper of general circulation in the locality of the proposed surface mine at least once a week for four (4) consecutive weeks.(B) The commissioner shall notify various local governmental bodies, planning agencies, and sewage and water treatment authorities, or water companies in the locality in which the proposed surface mining will take place, notifying them of the operator‘s intention to surface mine a particularly described tract of land and indicating the application’s permit number and where a copy of the proposed mining and reclamation plan may be inspected. These local bodies, agencies, authorities, or companies may submit written comments within a reasonable period established by the commissioner on the mining applications with respect to the effect of the proposed operation on the environment that are within their area of responsibility. Such comments shall immediately be transmitted to the applicant by the commissioner and shall be made available to the public at the same locations as are the mining applications.(C) Each applicant for a surface coal mining and reclamation permit shall file a copy of the applicant’s application for public inspection with the recorder at the courthouse of the county or an appropriate public office approved by the commissioner where the mining is proposed to occur, except for that information pertaining to the coal seam itself.(2)(A) Any person having an interest which is, or may be, adversely affected or the officer or head of any federal, state, or local governmental agency or authority has the right to file written objections to the proposed initial or revised application for a permit for surface coal mining and reclamation operation with the commissioner within thirty (30) days after the last publication of the notice published pursuant to subdivision (a)(1). The objections shall immediately be transmitted to the applicant by the commissioner and shall be made available to the public.(B) If written objections are filed and an informal conference requested, the commissioner shall then hold an informal conference in the locality of the proposed mining, if requested within a reasonable time of the receipt of such objections or request.
(i) The commissioner shall advertise the date, time and location of the informal conference in a newspaper of general circulation in the locality at least two (2) weeks prior to the scheduled conference date.(ii) The commissioner may arrange with the applicant, upon request by any party to the administrative proceeding, access to the proposed mining area for the purpose of gathering information relevant to the proceeding.(iii) An electronic or stenographic record shall be made of the conference proceeding, unless waived by all parties. The record shall be maintained and shall be accessible to the parties until final release of the applicant’s performance bond.(iv) In the event all parties requesting the informal conference stipulate agreement prior to the requested informal conference and withdraw their request, the informal conference need not be held.(3) Where the lands included in an application for a permit are the subject of a federal coal lease in connection with which hearings were held and determinations were made under 30 U.S.C. §§ 201(a)(3)(A), (B), and (C), the hearings shall be deemed as to the matters covered to satisfy the requirements of this subsection (a) and subsections (e) and (f) and the determinations shall be deemed to be a part of the record and conclusive for purposes of subsections (b), (e), and (f) and this subsection (a).(b)(1)(A) Upon the basis of a complete mining application and reclamation plan or a revision or renewal thereof, as required by this part, including public notification and an opportunity for a public hearing as required by this section, the commissioner shall grant, require modification of, or deny the application for a permit in a reasonable time set by the commissioner by rule and notify the applicant in writing.(B) The applicant for a permit, or revision of a permit, shall have the burden of establishing that the application complies with all the requirements of this part.(C) Within ten (10) days after the granting of a permit, the commissioner shall notify the local governmental officials in the local political subdivision 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) The commissioner shall not approve a permit or revision application unless the application affirmatively demonstrates, and the commissioner makes a written finding based on the information in the application or information otherwise available that is documented in the approval and made available to the applicant, that:
(A) The permit application is accurate and complete and that all the requirements of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. § 1201 et seq.) and this part have been complied with;(B) The applicant has demonstrated that reclamation, as required by the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. § 1201 et seq.) and this part, can be accomplished under the reclamation plan contained in the permit application;(C) The commissioner has assessed the probable cumulative impact of all anticipated surface coal mining in the area on the hydrologic balance as specified in § 59-8-106(b), and the proposed operation thereof has been designed to prevent material damage to the hydrologic balance outside the permit area;(D) The area proposed to be mined is not included within an area designated unsuitable for surface coal mining and reclamation pursuant to 30 U.S.C. § 1272 or § 59-8-125, or is not within an area under study for that designation in an administrative proceeding commenced pursuant to § 59-8-125, unless the applicant demonstrates that, prior to January 1, 1977, the applicant made substantial legal and financial commitments in relation to a mining operation for which the applicant is applying for a permit; and(E) In cases where the private mineral estate has been severed from the private surface estate, the applicant has submitted to the commissioner the documentation prescribed by § 59-8-106(g).(c)(1) When the schedule submitted as prescribed by § 59-8-106(h) or other information available to the commissioner indicates that any surface coal mining and reclamation operation owned or controlled by the applicant is currently in violation of this part, the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. § 1201 et seq.), or any law, rule, or regulation of the United States, or of any department or agency in the United States pertaining to air or water environmental protection in connection with any surface coal mining operation, the commissioner shall not issue the permit until the applicant submits proof that the violation has been corrected or is in the process of being corrected to the satisfaction of the commissioner, department, or agency that has jurisdiction over the violation.(2) The commissioner shall not issue a permit to an applicant after a finding by the commissioner, after opportunity for a 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 part of a nature and duration with resulting irreparable damage to the environment as to indicate an intent not to comply with this part. The hearing held pursuant to this subdivision (c)(2) shall be conducted as a contested case under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, except to the extent that this part or rules promulgated by the commissioner pursuant to this part are inconsistent, in which case this part or the rules promulgated by the commissioner apply.(3) The prohibitions of this subsection (c) do not apply to a permit application due to any violation resulting from an unanticipated event or condition at a surface coal mining operation on lands eligible for remining under a permit held by the person making such application.(4) As used in this subsection (c), “unanticipated event or condition” means an event or condition encountered in a remining operation that was not contemplated by the applicable surface coal mining and reclamation permit.(d)(1) In addition to finding the application in compliance with subdivision (b)(2), if an area proposed to be mined for coal contains prime farmland, the commissioner shall, after consultation with and the concurrence of, the United States secretary of agriculture, and pursuant to the rules promulgated by the commissioner that are consistent with regulations promulgated by the secretary with the concurrence of the United States secretary of agriculture, grant a permit to surface mine for coal on prime farmland if the commissioner finds in writing that the operator has the technological capability to restore the 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 this part. Except for compliance with subdivision (b)(2), the requirements of this subdivision (d)(1) shall apply to all permits issued after August 3, 1977.(2) Nothing in this subsection (d) applies to any permit issued prior to August 3, 1977, or to any revisions or renewals to those permits, or to any existing surface coal mining operations for which a permit was issued prior to August 3, 1977.(e)(1) If an informal conference is held under subdivision (a)(2), the commissioner shall issue and furnish to the applicant and other persons who are parties to the administrative proceedings the commissioner’s written findings, granting or denying the permit in whole or in part, and stating the reasons for the grant or denial, within sixty (60) days of the informal conference.(2) If an informal conference is not held under subdivision (a)(2), the commissioner shall notify the applicant for a permit within a reasonable time as determined by the commissioner by rule, taking into account the time needed for proper investigation of the site, the complexity of the permit application, and whether or not written objection to the application has been filed, whether the application has been approved or disapproved in whole or in part.(f)(1) If the application is approved, the permit shall be issued upon the posting of the required bond.(2) If the application is disapproved, the commissioner shall state the specific reasons for the disapproval in the notification.(3)(A) Within thirty (30) days after the applicant is notified of the final decision of the commissioner on the permit application, the applicant or any person with an interest which is or may be adversely affected may request a hearing on the reasons for the final determination.(B)(i) The commissioner shall hold a hearing conducted as a contested case under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, except to the extent that this part or rules promulgated by the commissioner pursuant to this part are inconsistent, in which case this part or the rules promulgated by the commissioner apply. The hearing shall be held within thirty (30) days of the request and the commissioner shall provide notification to all interested parties at the time that the applicant is so notified. No person that presided at the conference held pursuant to subdivision (a)(2) shall either preside at the hearing or participate in the decision arising from the hearing.(ii) Within thirty (30) days after the hearing the commissioner shall issue and furnish the applicant, and all persons who participated in the hearing, with the commissioner’s written decision granting or denying the permit in whole or in part and stating the reasons for the approval or denial.(C) Where a hearing is requested pursuant to this subsection (f), the commissioner may, under such conditions as the commissioner may prescribe, grant such temporary relief as the commissioner deems appropriate pending final determination of the proceedings if:
(i) All parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief;(ii) The person requesting such relief shows that there is a substantial likelihood that the person will prevail on the merits of the final determination of the proceeding; and(iii) The relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources.(D)(i) For the purpose of the hearing, the commissioner has the powers and authorities as provided in this part and title 4, chapter 5, including but not limited to the power and authority to administer oaths, subpoena witnesses or written or printed materials, compel attendance of the witnesses or production of the materials, and take evidence, including, but not limited to, site inspections of the land to be affected and other surface coal mining operations carried on by the applicant in the general vicinity of the proposed operation.(ii) A verbatim record of each public hearing required by this part shall be made, and a transcript made available on the motion of any party or by order of the commissioner.(E) Any applicant or any person with an interest which is or may be adversely affected who has participated in the hearing under this subsection (f), and who is aggrieved by the decision of the commissioner, or if the commissioner fails to act within the time limits specified in this part, shall have the right to petition for judicial review as provided in § 59-8-121.(g)(1) A permit terminates if the permittee has not commenced the surface coal mining operations covered by the permit within three (3) years of the date of issuance of the permit; however, the commissioner may grant reasonable extensions of time upon a showing that the extensions are necessary by reason of litigation precluding commencement of operations or threatening substantial economic loss to the permittee, or by reason of conditions beyond the control and without the fault or negligence of the permittee.(2) In the case of a coal lease issued under the federal Mineral Leasing Act (30 U.S.C. § 181 et seq.), extensions of time may not extend beyond the period allowed for diligent development in accordance with 30 U.S.C. § 207.(3) In the case of coal to be mined for use in a synthetic fuel facility or specific major electric generating facility, the permittee shall be deemed to have commenced surface mining operations at the time that the construction of the synthetic fuel or generating facility is initiated.(h)(1) Any valid permit issued pursuant to this part carries with it the right of successive renewal upon expiration with respect to areas within the boundaries of the existing permit. The holder of the permit may apply for renewal, and a renewal shall be issued subsequent to fulfillment of the public notice requirements of this section. In the determination of whether to approve or deny a renewal of a permit, the burden of proof is on the opponents of renewal. The commissioner shall grant a permit renewal, unless the commissioner makes written findings that:
(A) The terms and conditions of the existing permit are not being satisfactorily met;(B) The present surface coal mining and reclamation operation is not in compliance with this part or rules or orders issued or promulgated by the commissioner pursuant to this part, including the environmental protection standards of this part and the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. § 1201 et seq.);(C) The renewal requested substantially jeopardizes the permittee’s continuing responsibility on existing permit areas;(D) The operator has not provided evidence that the performance bond in effect for the operation will continue in full force and effect for any renewal requested in the application, as well as any additional bond the commissioner might require under § 59-8-108; or(E) Any additional revised or updated information required by the commissioner has not been provided.(2) Prior to the approval of any permit renewal, the commissioner shall provide notice to the appropriate public authorities.(3) If an application for renewal of a valid permit includes a proposal to extend the mining operation beyond the boundaries authorized in the existing permit, the portion of the application for renewal of a valid permit that addresses any new land areas is subject to the full standards applicable to new applications under this part.(4) The term of a permit renewal shall not exceed the term of the original permit. Application for permit renewal shall be made at least one hundred twenty (120) days prior to the expiration of the current permit.(i) On or after May 26, 2021, and subject to valid existing rights, no surface coal mining and reclamation operations, except those which existed on August 3, 1977, are permitted:
(1) On any lands within the boundaries of units of the national park system, the national wildlife refuge systems, the national system of trails, the national wilderness preservation system, the wild and scenic rivers system, including study rivers designated under 16 U.S.C. § 1276(a), and national recreation areas designated by an act of congress;(2) On any federal lands within the boundaries of any national forest; however, surface coal mining and reclamation operations may be permitted if the secretary finds that there are no significant recreational, timber, economic, or other values that may be incompatible with surface coal mining and reclamation operations, and the surface operations and impacts are incident to an underground coal mine;(3) Which will adversely affect any publicly owned park or places included in the National Register of Historic Sites, unless approved jointly by the commissioner and the federal, state, or local agency with jurisdiction over the park or the historic site;(4) Within one hundred feet (100′) of the outside right-of-way line of any public road, except where mine access roads or haulage roads join a right-of-way line; however, the commissioner may permit the roads to be relocated or the area affected to lie within one hundred feet (100′) of a road, if, after public notice and opportunity for public hearing in the locality, a written finding is made that the interests of the public and the affected landowners are protected;(5) Within three hundred feet (300′) from any occupied dwelling, unless waived by the owner, nor within three hundred feet (300′) of any public building, school, church, community, institutional building, or public park; or(6) Within one hundred feet (100′) of a cemetery.(j) The permit area shall be readily identifiable by appropriate markers on the site.
