WYOMING REGULATORY PROGRAM AGENCY 020 DEPARTMENT OF ENVIRONMENTAL QUALITY SUB-AGENCY 040 LAND QUALITY COAL MINING RULES AND REGULATIONS (2002) CHAPTER 17 DESIGNATION OF AREAS UNSUITABLE FOR SURFACE COAL MINING Section 1 Definitions. Section 2 Petitions. Section 3 Processing the Petition. Section 4 Hearing. Section 5 Decision. NOTE: Cross references to OSM's federal statute and regulations appear in double braces to the right of the Wyoming regulation section numbers, e.g., "Section 3 APPLICABILITY. {{ SMCRA 528; 30 CFR 700.11, 707.11 }}". The cross references were compiled using the preambles to OSM's approval of amendments to the Wyoming regulatory program published in the Federal Register, the Wyoming File in the COALEX Library in LexisNexis and Side-by-Side Forms provided by the Wyoming Regulatory Authority. Section 1 DEFINITIONS. {{ 30 CFR 762.5 }} For the purposes of this Chapter, (a) "FRAGILE LANDS" means geographic areas containing natural, ecologic, scientific or aesthetic resources that could be damaged or destroyed by surface coal mining operations. Examples of fragile lands include crucial or important habitats for fish or wildlife, critical habitats for endangered species, uncommon geologic formations, National Natural Landmark sites, areas where mining may result in flooding, environmental corridors containing a concentration of ecologic and aesthetic features, areas of recreational value due to high environmental quality, and buffer zones adjacent to the boundaries of areas where surface coal mining operations are prohibited under W.S.  35-11-406(n)(iv). (b) "HISTORIC LANDS" means historic, cultural and scientific areas that could be damaged or destroyed by surface coal mining operations. These include, but are not limited to archaeological and paleontological sites, National Historic Landmark sites, sites listed on or eligible for listing on the National Register of Historic Places, sites having religious or cultural significance to native Americans or religious groups, or sites for which historic designation is pending. (c) "NATURAL HAZARD LANDS" means geographic areas in which natural conditions exist which pose or, as a result of surface coal mining operations, may pose a threat to the health, safety or welfare of people, property or the environment, including areas subject to landslides, cave-ins, large or encroaching sand dunes, severe wind or soil erosion, frequent flooding, avalanches, and areas of unstable geology. (d) "PERSON HAVING AN INTEREST WHICH IS OR MAY BE ADVERSELY AFFECTED" shall include any person: (i) Who uses any resource of economic, recreational, aesthetic, or environmental value that may be adversely affected by coal exploration or surface coal mining and reclamation operations; or (ii) Whose property is or may be adversely affected by coal exploration or surface coal mining and reclamation operations. (e) "RENEWABLE RESOURCE LANDS" means geographic areas which contribute significantly to the long-range productivity of ground or surface water supply or of food or fiber products. (f) "SUBSTANTIAL LEGAL AND FINANCIAL COMMITMENTS IN A SURFACE COAL MINING OPERATION" means significant investments that have been made on the basis of a long-term coal contract in power plants, railroads, coal-handling, preparation, extraction or storage facilities and other capital-intensive activities. An example would be an existing mine not actually producing coal, but in a substantial stage of development prior to production. Costs of acquiring the coal in place or of the right to mine it without an existing mine, as described in the above example, alone are not sufficient to constitute legal and financial commitments. Section 2 PETITIONS. {{ 30 CFR Parts 761, 762, 764, 769 }} (a) Any person having an interest which is or may be adversely affected has the right to petition the council to have an area designated as unsuitable for surface coal mining operations, or to have an existing designation terminated. (b) Designation. A petition for designation shall be notarized and must contain: (i) The petitioner's name, address, and telephone number; (ii) A discussion of the petitioner's interest which is or may be adversely affected; (iii) A precise description of the boundaries of the area covered by the petition, including its location and size, and a USGS topographic map outlining the perimeter of the petitioned area; (iv) An identification of the criterion or criteria on which the proposed designation rests, including potential adverse effects on people, land, air or other resources including petitioner's interests, resulting from mining in the area; (v) Allegations of fact, specific to the petitioned area and to the petitioner's interests, which tend to establish the criterion or criteria on which the proposed designation rests; (vi) A specific identification of the sources of supporting evidence on which the allegations of fact rest; (vii) Where the petitioner does not own all property interests affected by the designation, an identification of any or all such property interests known to the petitioner; and (viii) Other information which is requested by the Administrator. (c) Termination of designation. A petition to terminate a designation or designations shall be notarized and must contain: (i) The petitioner's name, address, and telephone number; (ii) A discussion of the petitioner's interest which is or may be adversely affected; (iii) A precise description of the boundaries of the area to be covered by the petition, including its location and size, and a USGS topographic map outlining the perimeter of the petitioned area; (iv) An identification of the designation or designations which the petitioner seeks to terminate; (v) For each such designation, an identification of the specific criterion or criteria which the petitioner seeks to challenge; (vi) Allegations of fact which support the challenge; (vii) A specific identification of the sources of evidentiary support on which the allegations rest. This must not include evidence presented in the designation proceeding; (viii) Where the petitioner does not own all property interests which may be affected by the termination of a designation, an identification of any or all such property interests known to the petitioner; and (ix) Other information which is requested by the Administrator. (d) All allegations of fact and supporting evidence must assume that contemporary mining practices required under the Act and regulations would be followed if the area were to be mined. Section 3 PROCESSING THE PETITION. {{ 30 CFR Parts 761, 762, 764, 769 }} (a) (i) Promptly after a petition is received, the Administrator shall notify the general public of the receipt of the petition by a newspaper advertisement placed in the locale of the area covered by the petition and in the newspaper providing broadest circulation in the region of the petitioned area. The Administrator may provide for an informal conference or a period of written comments on completeness of the petition. Within 60 days of receipt of a petition, the Administrator shall notify the petitioner by certified mail whether or not the petition is complete. (ii) The Administrator shall determine whether any identified coal resources exist in the area covered by the petition, without requiring any showing from the petitioner. If the Administrator finds there are not any identified coal resources in that area, he shall return the petition to the petitioner with a statement of the findings. (iii) When considering a petition for an area which was previously and unsuccessfully proposed for designation, the Administrator shall determine if the new petition presents new allegations of facts with supporting evidence. If the petition does not contain new allegations of facts with supporting evidence, the Administrator shall not consider the petition and shall return the petition to the petitioner, with a statement of his findings and a reference to the record of the previous designation proceedings where the facts were considered. (iv) If the Administrator determines that the petition is incomplete or frivolous, he shall return the petition to the petitioner, with a written statement of the reasons for the determination and, if incomplete, the categories of information needed to make the petition complete. (v) The Administrator shall notify the person who submits a petition of any application for a permit received which proposes to include any area covered by the petition. (vi) The Administrator may determine not to process any petition received insofar as it pertains to land for which an administratively complete permit application has been filed and the first newspaper notice pursuant to W.S.  35-11-406(g) has been published. If the petition is not processed in whole or in part, the Administrator shall inform the petitioner. (b) (i) Promptly after the determination that a petition is complete, the Administrator shall circulate copies of the petition to, and request submissions of relevant information from, other interested governmental agencies, intervenors, persons with an ownership interest of record in the property, and other persons known to the Administrator to have an interest in the property. (ii) Promptly after the determination that a petition is complete, the Administrator shall notify the general public of the receipt of the petition and request submissions or relevant information by a newspaper advertisement placed once a week for two consecutive weeks in the locale of the area covered by the petition, the newspaper of largest circulation in the State, and in the offices of the county clerks of the counties in which the area covered by the petition is located. Those county clerks shall also receive a copy of the petition. (iii) Until three days before the Council holds a hearing under Section 4, any person may intervene in the proceeding by filing allegations of facts and supporting evidence describing the interests of the intervenor which are affected by the designation decision, a short statement identifying the petition to which the allegations pertain, and the intervenor's name, address and telephone number. (iv) Beginning immediately after a complete petition is filed, the Administrator shall compile and maintain a record consisting of all documents relating to the petition filed with or prepared by the Council. The Administrator shall make the record available for public inspection free of charge, and copying at reasonable cost during normal working hours at the main office of the Department. (v) Prior to the hearing, the Administrator and, at the request of the Council, all parties shall each prepare a detailed statement using existing and readily available information on potential coal resources of the area, the long- term demand for coal resources, and the impact of such designation on the environment, the economy, and the supply of coal. Section 4 HEARING. {{ 30 CFR Parts 761, 762, 764, 769 }} (a) Within ten months after receipt of a complete petition, the council shall hold a public hearing in the locality of the area covered by the petition. If all petitioners and intervenors agree, the hearing may be held at a later date or need not be held. (b) Notice of the hearing shall be sent no less than 30 days before the scheduled date of the hearing to all petitioners and intervenors by certified mail and by regular mail to local, State and Federal agencies which may have an interest in the decision on the petition and persons known to the Administrator as having property interests in the petitioned area. (c) The Council shall notify the general public of the date, time, and location of the hearing by placing a newspaper advertisement once a week for two consecutive weeks in the locale of the area covered by the petition and once during the week prior to the scheduled date of the public hearing. The consecutive weekly advertisement must begin between four and five weeks before the scheduled date of the public hearing. (d) Hearing procedures include the following: (i) The Council may subpoena witnesses as necessary. (ii) Expert witnesses may be cross-examined. (iii) No person shall bear the burden of proof of persuasion. (iv) A record of the hearing shall be made and preserved in accordance with applicable State laws. (v) All relevant parts of the database and inventory system and all public comments received during the public comment period shall be included in the record and considered by the Council in its decision on the petition. (e) In the event that all petitioners and intervenors stipulate agreement prior to the hearing, the petition may be withdrawn from consideration. Section 5 DECISION. {{ 30 CFR Parts 761, 762, 764, 769 }} (a) In reaching its decision, the Council shall use: (i) The information contained in the database and inventory system; (ii) Information provided by other governmental agencies; (iii) The detailed statement prepared under Section 3(b)(iv); and (iv) Any other relevant information. (b) A final written decision shall be issued by the Council, including a statement of reasons, within 60 days of completion of the public hearing, or, if a public hearing is held, then within 12 months after receipt of the complete petition. The Council shall simultaneously send the decision by certified mail to the petitioner and intervenors, and by regular mail to every other party to the proceeding. (c) The time limit in (b) may be suspended if the Council is taking action together with the Office of Surface Mining for intermixed Federal and non-federal lands, and the Office of Surface Mining is not yet prepared to take final action.