Effective 28 Aug 2015

444.773. Director to investigate applications — decision to issue or deny — denial of permit, appeal, procedure — commission to issue decision. — 1. All applications for a permit shall be filed with the director, who shall promptly investigate the application and make a decision within six weeks after completion of the process provided in subsection 10 of section 444.772 to issue or deny the permit. If the director determines that the application has not fully complied with the provisions of section 444.772 or any rule or regulation promulgated pursuant to that section, the director may seek additional information from the applicant before making a decision to issue or deny the permit. The director shall consider any public comments when making the decision to issue or deny the permit. In issuing a permit, the director may impose reasonable conditions consistent with the provisions of sections 444.760 to 444.790. The director's decision shall be deemed to be the decision of the director of the department of natural resources and shall be subject to appeal to the administrative hearing commission as provided by sections 640.013 and 621.250.

2. Whenever a surface mining operation permit provided under section 444.772 is issued, denied, suspended, or revoked by the department of natural resources, any aggrieved person, by petition filed with the administrative hearing commission within thirty days of the decision, may appeal such decision as provided by sections 621.250 and 640.013. For purposes of an appeal, the administrative hearing commission may consider, based on competent and substantial scientific evidence on the record, whether an interested party's health, safety or livelihood will be unduly impaired by the issuance, denial, suspension, or revocation of the permit. The administrative hearing commission may also consider, based on competent and substantial scientific evidence on the record, whether the operator has demonstrated, during the five-year period immediately preceding the date of the permit application, a pattern of noncompliance at other locations in Missouri that suggests a reasonable likelihood of future acts of noncompliance. In determining whether a reasonable likelihood of noncompliance will exist in the future, the administrative hearing commission may look to past acts of noncompliance in Missouri, but only to the extent they suggest a reasonable likelihood of future acts of noncompliance. Such past acts of noncompliance in Missouri, in and of themselves, are an insufficient basis to suggest a reasonable likelihood of future acts of noncompliance. In addition, such past acts shall not be used as a basis to suggest a reasonable likelihood of future acts of noncompliance unless the noncompliance has caused or has the potential to cause, a risk to human health or to the environment, or has caused or has potential to cause pollution, or was knowingly committed, or is defined by the United States Environmental Protection Agency as other than minor. If a hearing petitioner demonstrates or the administrative hearing commission finds either present acts of noncompliance or a reasonable likelihood that the permit seeker or the operations of associated persons or corporations in Missouri will be in noncompliance in the future, such a showing will satisfy the noncompliance requirement in this subsection. In addition, such basis must be developed by multiple noncompliances of any environmental law administered by the Missouri department of natural resources at any single facility in Missouri that resulted in harm to the environment or impaired the health, safety or livelihood of persons outside the facility. For any permit seeker that has not been in business in Missouri for the past five years, the administrative hearing commission may review the record of noncompliance in any state where the applicant has conducted business during the past five years. The administrative hearing commission shall issue a recommended decision to the commission on permit issuance, denial, suspension, or revocation. The commission shall issue its own decision, based on the appeal, for permit issuance, denial, suspension, or revocation. If the commission changes a finding of fact or conclusion of law made by the administrative hearing commission, or modifies or vacates the decision recommended by the administrative hearing commission, it shall issue its own decision, which shall include findings of fact and conclusions of law. The commission shall mail copies of its final decision to the parties to the appeal or their counsel of record. The commission's decision shall be subject to judicial review pursuant to chapter 536, except that the court of appeals district with territorial jurisdiction coextensive with the county where the mine is located or is to be located shall have original jurisdiction. No judicial review shall be available until and unless all administrative remedies are exhausted.

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(L. 1990 H.B. 1584, A.L. 2001 H.B. 453, A.L. 2011 H.B. 89, A.L. 2014 H.B. 1201 merged with S.B. 642, A.L. 2015 H.B. 92)

CROSS REFERENCE:

Nonseverability clause, 640.099