OAR 632-030-0030: Department Action on Reclamation Plan and Operating Permit Application; Provisional Operating Permits; Local Government Actions

(1) Within 90 days after receiving an application for an operating permit: (a) The Department will issue the operating permit or (b) Notify the applicant if the Department determines that either the permit application or the proposed reclamation plan is not complete. (c) If the Department determines the application is incomplete it will notify the applicant of the information or documentation needed to make the submittal complete. A notice of an incomplete submittal does not constitute a denial of the operating permit application and proposed reclamation plan. (d) The Department will determine the adequacy of the operating permit application and proposed reclamation plan by taking the following actions: (A) Inspect the site in accordance with OAR 632-030-0024 and file an inspection report; (B) Circulate the complete operating permit application, including the proposed reclamation plan, draft operating permit, an inspection report or an evaluation to appropriate federal, state, and local agencies for review and comment. (C) Notify the affected local government in writing that an operating permit application and proposed reclamation plan have been received by the Department, accompanied by a request that a determination be made if a local land-use permit pursuant to ORS 215.428 or 227.178 or a comprehensive plan amendment is required. (D) Determine the appropriate amount of the reclamation bond or alternative form of security; and (E) Notify the applicant of any deficiencies that will be addressed by attaching conditions to the operating permit. (2) The Department will ensure consistency with local government land-use plans and regulations as follows: (a) Applications involving a local land-use permit and a request by the affected local jurisdiction that it act first: If the affected local government informs the Department under subsection (1)(d)(C) of this rule that the application involves an aggregate site that requires a local-land use permit issued pursuant to ORS 215.428 or 227.178, and the local government requests that the application not be decided by the Department until the local government has taken final action, the Department will make its final decision on the operating permit and reclamation plan no later than 165 days after the date a complete land-use application is submitted to the local government, unless the applicant agrees to allow additional time under ORS 215.428 or 227.178. The Department will not approve the operating permit and reclamation plan or modification to existing permits if the application for the local land-use permit is denied by the local jurisdiction. However, in a situation where action on the local land-use permit is still pending, the Department may initiate its review of the application for its technical acceptability before the local government makes its final decision. The results of the Department's technical review will be provided to the local government and the applicant. For the purposes of this section, a requirement for review of a site plan is not a local land-use permit. (b) Applications involving a comprehensive plan amendment: If the affected local government informs the Department under subsection (1)(d)(C) of this rule that the application involves an aggregate site that requires a comprehensive plan amendment, and the local government requests that the application not be decided until the local government has taken final action on the plan amendment, the Department will not make its final decision on the operating permit and reclamation plan until the local government has taken final action on the plan amendment. The Department will make its final decision on an application within 45 days of the date that the local government has taken final action on the plan amendment unless a longer period is required under subsection (2)(a) of this rule. For applications for new operating permits or intensification or substantial modification to existing operating permits the Department will not approve the operating permit or intensification or substantial modification if the application for the comprehensive plan amendment is denied by the local jurisdiction. (c) If the affected local government does not request that the Department delay a decision on an operating permit and a reclamation plan as provided in subsection (2)(a) or (b) of this rule, the Department will give the local government opportunity to review and comment on the application in the manner described in subsection (1)(d)(B) of this rule. If the local government fails to respond in writing within 30 days of mailing, the Department will issue its decision within 45 days of receipt of complete application. Local government approval must also be obtained before operation under the permit can begin. (d) If no local government permit or approval is required, the applicant shall provide a written statement to that effect from the local government to the Department. (3)(a) The Department will notify the affected local government of the Department's decision under subsections (2) (a), (b), and (c) of this rule to approve or deny an operating permit and reclamation plan, including any requirements and conditions imposed by the Department. (b) Any conditions and requirements imposed by the Department on an operating permit and reclamation plan, including any modifications made pursuant to OAR 632-030-0035, issued subsequent to a final local land-use approval must be compatible with the requirements and conditions of the local government land-use plan and permit, including any conditions established to comply with statewide planning Goal 5, unless more stringent Department requirements are necessary to comply with the provisions of ORS 517.750 to 517.900. Any issue concerning the compatibility of the Department's permit decision with the requirements and conditions of the local government comprehensive plan or land-use permit may be addressed in accordance with the Department's dispute resolution process as set forth in OAR 632-001-0015(6). (4) Within 60 days after the receipt of a deficiency list or permit conditions, the applicant shall comply with the additional requirements prescribed by the Department or file a written notice of appeal of the decision to the Department in accordance with OAR 632-030-0056. Failure to comply with the additional requirements or file a notice of appeal within the 60-day period, unless an extension is granted by the Department, may result in the application for an operating permit being denied. As provided in ORS 517.830(2), the Department may issue a provisional operating permit to the applicant pending the outcome of the appeal, subject to the requirements of sections (1) through (3) of this rule. (5) The Department may determine that the applicant's reclamation plan is technically acceptable if it adequately provides for reclamation of surface mined lands as required by OAR chapter 632, division 30, without issuing an operating permit, and so advise the local government. (6) The Department may attach conditions to the operating permit. These conditions may be added to reflect special concerns which are not adequately addressed in the reclamation plan and fall within the scope of these rules. The permittee may appeal these conditions by filing a written notice of appeal in accordance with OAR 632-030-0056. (7) The approval of the reclamation plan and the issuance of the operating permit by the Department does not constitute a finding of compliance with statewide planning goals or local regulations implementing acknowledged comprehensive land-use plans. The permittee is responsible for obtaining local land-use approval before commencing the proposed surface mining activity. When issued by the Department, a statement placed on the operating permit and approved reclamation plan under subsection (2)(c) of this rule, will inform the applicant that: (a) Issuance of the operating permit and approval of the reclamation plan is not a finding of compliance with the statewide planning goals (ORS 197.225) or compatibility with the acknowledged comprehensive plan; and (b) The applicant must receive any land-use approval required from the affected local government before commencing surface mining authorized under the approved operating permit and reclamation plan. (8) The Department may not issue, amend, renew, or transfer an operating permit to a person if person is not complying with the terms of an operating permit, reclamation plan, the provisions of the Act, or these rules. The Department may refuse to issue, amend, renew or transfer an operating permit to a person that has not substantially complied with an operating permit, a reclamation plan, the provisions of the Act, or these rules. For purposes of this rule, a person includes a subsidiary or other entity in which the person has a substantial financial interest. (9) The minimum time periods for Department action established by this rule do not apply to applications on high value farmland in the Willamette Valley that are subject to OAR 632-030-0023. The Department will process applications subject to OAR 632-030-0023, in a timely manner by making a completeness determination within 120 days of receipt of an application and, making a permit decision within 90 days after determining the application is complete.