Missouri Code of State Regulations › Title 10 - DEPARTMENT OF NATURAL RESOURCES › Division 40 - Missouri Mining Commission › Chapter 5 - Prohibitions and Limitations on Mining in Certain Areas and Areas Unsuitable for Mining › Section 10 CSR 40-5.010 - Prohibitions and Limitations on Mining in Certain Areas

Current through Register Vol. 49, No. 14, July 15, 2024
PURPOSE: This rule sets forth the prohibitions and
				  limitations for surface coal mining operations on or near certain private,
				  federal, and other public lands and sets forth procedures for these limitations
				  and prohibitions, pursuant to sections
				  444.810
				  and
				  444.890,
				  RSMo.
(1) Definitions. For
				the purposes of this chapter-
(A) Valid
				existing rights means-
1. A set of
				circumstances under which a person may, subject to regulatory authority
				approval, conduct surface coal mining operations on lands where section
				444.890.4, RSMo, and this rule, would otherwise prohibit such operations.
				Possession of valid existing rights only confers an exception from the
				prohibitions of section 444.890.4, RSMo, and this rule. A person seeking to
				exercise valid existing rights must comply with all other pertinent
				requirements of the law and 10 CSR 40-3-10 CSR 40-8.
2. Property rights demonstration. Except as
				provided in paragraph (1)(A)4. of this definition, a person claiming valid
				existing rights must demonstrate that a legally binding conveyance, lease,
				deed, contract, or other document vests that person, or a predecessor in
				interest, with the right to conduct the type of surface coal mining operations
				intended. This right must exist at the time that the land came under the
				protection of section 444.890.4, RSMo, or this rule. Applicable state statutory
				or case law will govern interpretation of documents relied upon to establish
				property rights, unless federal law provides otherwise. If no applicable state
				law exists, custom and generally accepted usage at the time and place that the
				documents came into existence will govern their interpretation.
3. Except as provided in paragraph (1)(A)4.
				of this definition, a person claiming valid existing rights also must
				demonstrate compliance with one (1) of the following standards:
A. Good faith/all permits standard. All
				permits and other authorizations required to conduct surface coal mining
				operations had been obtained, or a good faith effort to obtain all necessary
				permits and authorizations had been made, before the land came under the
				protection of section 444.890.4, RSMo, or this rule. At a minimum, an
				application must have been submitted for any permit required under 10 CSR 40-6;
				or
B. Needed for and adjacent
				standard. The land is needed for and immediately adjacent to a surface coal
				mining operation for which all permits and other authorizations required to
				conduct surface coal mining operations 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 section 444.890.4, RSMo, or this rule. To meet
				this standard, a person must demonstrate that prohibiting expansion of the
				operation onto that land would unfairly impact the viability of the operation
				as originally planned before the land came under the protection of section
				444.890.4, RSMo, or this rule. 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 section 444.890.4, RSMo, or this rule, when the
				regulatory authority approved the permit for the original operation or when the
				good faith effort to obtain all necessary permits for the original operation
				was made. In evaluating whether a person meets this standard, the agency making
				the determination may consider factors such as-
(I) The extent to which coal supply contracts
				or other legal and business commitments that predate the time that the land
				came under the protection of section 444.890.4, RSMo, or this rule, depend upon
				use of that land for surface coal mining operations;
(II) The extent to which plans used to obtain
				financing for the operation before the land came under the protection of
				section 444.890.4, RSMo, or this rule, rely upon use of that land for surface
				coal mining operations;
(III) The
				extent to which investments in the operation before the land came under the
				protection of section 444.890.4, RSMo, or this rule, rely upon use of that land
				for surface coal mining operations; and
(IV) Whether the land lies within the area
				identified on the life-of-mine map submitted under
				10 CSR
				40-6.010(5)(E) before the land came
				under the protection of section 444.890.4, RSMo, or this rule.
4. Roads. A person who
				claims valid existing rights to use or construct a road across the surface of
				lands protected by section 444.890.4, RSMo, or this rule, must demonstrate that
				one (1) or more of the following circumstances exist if the road is included
				within the definition of "surface coal mining operations" in
				10 CSR
				40-8.010(1)(A) 98.:
A. The road existed when the land upon which
				it is located came under the protection of section 444.890.4, RSMo, or this
				rule, and the person has a legal right to use the road for surface coal mining
				operations;
B. A properly recorded
				right-of-way or easement for a road in that location existed when the land came
				under the protection of section 444.890.4, RSMo, or this rule, 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;
C. 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 section 444.890.4, RSMo, or this rule;
				or
D. Valid existing rights exist
				under paragraphs (1)(A)2. and 3. of this definition;