AS Title 27, Chapter 21: Alaska Surface Coal Mining Control and Reclamation Act

Article 1. Legislative Findings and Purpose. Chapter 21. Alaska Surface Coal Mining Control and Reclamation Act. Sec. 27.21.010. Findings and declaration of purpose. (a) The legislature finds and declares that (1) the Congress of the United States has enacted the Surface Mining Control and Reclamation Act of 1977, which provides for the establishment of a nationwide program to regulate surface coal mining and reclamation and which vests exclusive authority in the United States Department of the Interior over the regulation of surface coal mining and reclamation within the United States; (2) section 101 of the Surface Mining Control and Reclamation Act of 1977 contains the finding by Congress that because of the diversity in terrain, climate, biology, chemistry, and other physical conditions in areas subject to mining operations, primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface coal mining and reclamation operations subject to that Act should rest with the states; (3) section 503 of the Surface Mining Control and Reclamation Act of 1977 provides that each state may assume and retain exclusive jurisdiction over the regulation of surface coal mining and reclamation operations in the state by obtaining approval of a state program of regulation that demonstrates that the state has the capability of carrying out the provisions and meeting the purposes of the Surface Mining Control and Reclamation Act of 1977; (4) section 503 of the Surface Mining Control and Reclamation Act of 1977 provides that a state wishing to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations in the state must have a state law that provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Surface Mining Control and Reclamation Act of 1977; and (5) because of unique environmental conditions that the state is best equipped to understand, the state intends to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations in the state under the Surface Mining Control and Reclamation Act of 1977. (b) The purposes of this chapter are (1) to prevent the adverse effects to society and the environment resulting from unregulated surface coal mining operations as defined in this chapter and the regulations adopted under it; (2) to assure that the rights of surface land owners and other persons with an interest in the land are protected from unregulated surface coal mining operations; (3) to assure that surface coal mining operations are conducted in a manner that will prevent unreasonable degradation of land and water resources; (4) to assure that surface coal mining operations are not conducted where reclamation required by this chapter and the regulations adopted under it is not feasible; (5) to assure that reclamation of land on which surface coal mining takes place is accomplished as contemporaneously as practicable with the surface coal mining, recognizing that the responsible extraction of coal by responsible mining operators is an essential and beneficial economic activity; (6) to assure that appropriate procedures are provided for public participation in the development, revision, and enforcement of regulations, standards, and reclamation plans or programs established under this chapter; (7) to assure that the coal supply essential to the nation's energy requirements and to its economic and social well-being is provided and to strike a balance between protection of the environment and other uses of the land and the need for coal as an essential source of energy; and (8) to promote the reclamation of areas that were mined and left without adequate reclamation before the enactment of the Surface Mining Control and Reclamation Act of 1977 and that substantially degrade the quality of the environment, prevent the beneficial use of or cause damage to land or water resources, or endanger the health or safety of the public. Article 2. Surface Coal Mining. Sec. 27.21.020. Jurisdiction. The commissioner of natural resources has exclusive jurisdiction over surface coal mining and reclamation operations in the state. Sec. 27.21.030. General powers. To accomplish the purposes of this chapter, the commissioner may (1) in accordance with AS 44.62 (Administrative Procedure Act) adopt, amend, and enforce regulations pertaining to surface coal mining and reclamation operations; (2) issue permits; (3) conduct hearings and conferences; (4) issue orders requiring an operator to take the actions necessary to comply with this chapter and the regulations adopted under this chapter; (5) issue orders modifying previous orders; (6) after opportunity for a due process hearing, issue a final order revoking the permit of an operator who has failed to comply with an order of the commissioner to take action required by this chapter or regulations adopted under this chapter; (7) order the immediate cessation of all or part of a surface coal mining and reclamation operation if the commissioner finds that the operation or part of the operation creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant imminent harm to land, air, or water resources, and, to the extent reasonably necessary to eliminate or alleviate those conditions, take other action or make changes in a permit, as provided in this chapter; (8) hire and authorize the hiring of employees and private contractors, subject to the conflict of interest provisions of this chapter and subject to AS 36.30 (State Procurement Code), to assist in carrying out the requirements of this chapter; (9) enter and inspect a surface coal mining operation that is subject to the provisions of this chapter to assure that the operation is in compliance with this chapter; (10) conduct, encourage, request, and participate in studies, surveys, investigations, research, experiments, training, and demonstrations; (11) prepare reports and require permittees to prepare reports; (12) accept, receive, and administer grants, gifts, or other money made available for the purposes of this chapter regardless of the source of the grants, gifts, or money; (13) take the steps necessary to allow the state to participate to the fullest extent practicable in the abandoned mine land program provided in Title IV of the Surface Mining Control and Reclamation Act of 1977, including engaging in any work and adopting, amending and enforcing regulations; (14) take the actions necessary to establish and maintain exclusive jurisdiction over surface coal mining and reclamation operations in the state under the provisions of the Surface Mining Control and Reclamation Act of 1977, including making recommendations for legislation to clarify or amend this chapter to conform with the terms of the Surface Mining Control and Reclamation Act of 1977; (15) contract with state agencies to obtain the professional and technical services necessary to carry out the provisions of this chapter; (16) coordinate the review of applications and issuance of permits for surface coal mining and reclamation operations with other federal or state permit processes applicable to those operations; (17) enter into cooperative agreements with the Secretary of the United States Department of the Interior for the regulation of surface coal mining operations on federal land in accordance with the Surface Mining Control and Reclamation Act of 1977; and (18) perform other duties required by this chapter. Sec. 27.21.040. Provisions of regulations and permits. The provisions of a regulation adopted or a permit issued by the commissioner may vary for particular conditions, types of coal being extracted, or areas of the state if the provisions are consistent with the purposes of this chapter. Sec. 27.21.050. Conflict of interest. An employee of the department or a private contractor performing a function or duty under this chapter may not have a direct or indirect financial interest in an underground or surface coal mining operation. A person who knowingly violates this section is guilty of a class A misdemeanor. Sec. 27.21.060. Permits. (a) Beginning eight months after May 2, 1983, a person may not conduct a surface coal mining and reclamation operation in the state without a permit for that operation. To receive a permit, a person must apply to the commissioner. The commissioner shall process applications according to this chapter and regulations adopted under it. (b) [Repealed, § 82 ch 6 SLA 1984.] Sec. 27.21.070. Term of permit. (a) Permits will be issued for a term of five years. However, the commissioner may grant a permit for a longer term if the application is complete for that longer term and the applicant demonstrates that the longer term is necessary to allow the applicant to obtain financing for equipment or for the opening of the operation. (b) A permit terminates if a permittee does not begin surface coal mining operations under the permit within three years after the permit is issued. The commissioner may grant reasonable extensions of time if the permittee shows that the extensions are necessary (1) because of litigation that precludes the commencement of the operation or threatens substantial economic loss to the permittee; or (2) for reasons beyond the control and without the fault or negligence of the permittee. With respect to coal to be mined for use in a synthetic fuel facility or specific major electric generating facility, the permittee is considered to have begun surface mining operations at the time that the construction of the synthetic fuel or generating facility is begun. Sec. 27.21.080. Renewal of permit. (a) A permit issued under this chapter includes the right of successive renewal upon expiration, for areas within the boundaries of the permit area. An opponent of renewal of a permit has the burden of proving that the permit should not be renewed. Subject to (c) of this section, if a permittee applies for renewal of the permit, the commissioner shall renew the permit after public notice is given in the manner provided in AS 27.21.130 unless the commissioner finds, in writing, that (1) the terms and conditions of the permit have not been satisfactorily met, and the permittee has not demonstrated to the satisfaction of the commissioner that the permittee is meeting and will continue to meet a schedule set by the commissioner under AS 27.21.240 (a) or (b) for correcting a permit violation; (2) the surface coal mining and reclamation operation of the permittee is not in compliance with the environmental protection standards of this chapter and regulations adopted under it; (3) the requested renewal substantially jeopardizes the permittee's continuing responsibility on existing permit areas; (4) the permittee has not either (A) provided sufficient evidence that the performance bond under AS 27.21.160 in effect for the operation will continue for the renewal period requested in the application, and that any additional bond required by the commissioner under AS 27.21.160 will be obtained; or (B) when seeking to use the statewide bonding pool for mining operations established under AS 27.19.040 (b), complied with all requirements of the bonding pool; or (5) information required by the commissioner in accordance with this chapter has not been provided by the permittee. (b) The commissioner shall provide notice to the appropriate public authorities as provided in AS 38.05.945 before approving a permit renewal. (c) If an application for renewal of a permit includes a proposal to extend the permittee's surface coal mining operations to include new land areas beyond the boundaries authorized in the permit, the commissioner shall review the part of the application that addresses the new land areas under the standards established in AS 27.21.180 . However, if the surface coal mining operations authorized by a permit are not subject to the standards contained in AS 27.21.180 (c)(5)(A) and (B), the part of the application for renewal that addresses new land areas previously identified in the reclamation plan submitted under AS 27.21.110 is not subject to the standards contained in AS 27.21.180 (c)(5)(A) and (B). (d) A permit may be renewed for an additional term of five years. The commissioner must receive the application for a permit renewal at least 120 days before the expiration of the permit. (e) If a renewal application is received by the commissioner at least 120 days before the expiration date of the permit, and if the permittee has complied with AS 27.21.160 , the permittee may continue surface coal mining operations under the permit after the expiration date of the permit until a final administrative decision on renewal is made. Sec. 27.21.090. Application fee. An application for a new permit, permit renewal, or transfer of a permit must be accompanied by an application fee. The commissioner shall adopt regulations setting out a fee schedule. The application fee may not exceed the actual or anticipated costs of reviewing the application. Sec. 27.21.100. Public information and inspection. (a) An applicant for a permit shall file a copy of the application for public inspection at a location designated by the commissioner near the area of the proposed surface coal mining operation. The applicant may exclude from the copy filed under this subsection information that is confidential under (c) of this section. (b) Copies of records, permits, inspection materials, data obtained under AS 27.21.120 , or other information obtained under this chapter by the commissioner relating to a surface coal mining and reclamation operation, other than information that is confidential under (c) of this section, must be made immediately and conveniently available to the public at the district office of the department closest to the location of the surface coal mining and reclamation operation. (c) Information (1) gathered from the proposed permit area included in the application for a permit and pertaining to coal seams, test borings, core samplings, or soil samples must be made available to any person with an interest that is or may be adversely affected, except that information that relates only to the analysis of the chemical and physical properties of the coal, other than information regarding the mineral or elemental content that is potentially toxic in the environment, must be kept confidential and not made a matter of public record; (2) in the applicant's reclamation plan relating to the competitive rights of the applicant, including but not limited to trade secrets, commercial or financial information, and geologic information specifically identified as confidential by the applicant and determined by the commissioner to be not essential for public review shall be kept confidential and not be made a matter of public record. Sec. 27.21.110. Contents of application. The commissioner shall adopt regulations relating to the contents of an application for a permit under this chapter that include a reclamation plan and liability insurance consistent with the requirements of 30 U.S.C. 1257(b) and 30 U.S.C. 1258, as amended. The regulations must take into account the unique mining and environmental conditions of Alaska. Sec. 27.21.120. Small operator assistance. (a) The provisions of this section apply when the commissioner finds that the probable total annual production of all of the surface coal mining operations of an applicant or, if the applicant is a subsidiary of another corporation, the applicant's parent corporation and its subsidiaries will not exceed 300,000 tons. (b) At the written request of an applicant, the commissioner shall (1) determine, for each applicant or applicant's parent corporation and subsidiaries, as appropriate, the data that may be necessary in order to (A) evaluate the probable hydrologic consequences of the applicant's surface mining and reclamation operations in the proposed permit area and adjacent areas; (B) evaluate the results of test borings on core samplings for the proposed permit area; (C) develop cross-section maps and plans, if required; (D) fulfill archeological and historic information required by AS 44.37.040 (3); (E) fulfill all requirements that are imposed on the applicant or the applicant's parent corporation and subsidiaries if, under a regulation adopted under authority of this chapter, the applicant or applicant's parent corporation is required to complete a preblasting survey of nearby dwellings or structures and to prepare a report of the survey; and (F) fulfill requirements applicable to collecting site-specific resources information, producing protection and enhancement plans for fish and wildlife habitats and for subsistence uses of the permit area and adjacent areas, and preparing information and plans for any other environmental values; and (2) to the maximum extent possible with money appropriated, engage, at no cost to the applicant, a qualified laboratory to collect, analyze, and report the results of the data for the tasks set out in (1)(A) — (F) of this subsection. (c) The collection and analysis of data under (b)(2) of this section may proceed concurrently with the applicant's development of a reclamation plan. Sec. 27.21.130. Public notice of application. At the time an applicant submits an application for a permit or for a revision of a permit, the applicant shall give notice in the manner set out in AS 38.05.945 (b) and (c) except as may be provided otherwise by regulations adopted under this chapter. Sec. 27.21.140. Objection to application; informal conference. (a) A person who is or may be adversely affected by the issuance or revision of a permit or a federal, state, or municipal agency may file written comments or objections to the permit or revision with the commissioner within 30 days after the last publication of the notice required in AS 27.21.130 and may include with the objection a request for an informal conference. (b) The commissioner shall immediately provide a copy of any comments or objections filed under (a) of this section to the applicant and shall make them available to the public. If an informal conference is requested under (a) of this section, the commissioner shall hold an informal conference in the locality of the operations proposed in the application. Notice requirements and procedures for informal conferences must be set out in regulations adopted under this chapter. (c) The commissioner shall notify the applicant, any person who filed a comment or objection under (a) of this section, and any participant in an informal conference held under (b) of this section, in writing, of the decision to grant, condition, modify, or deny the permit or revision, and, if the decision is not to grant the permit or revision, of the specific reasons for the decision. The commissioner shall provide notification of the decision within 60 days after an informal conference or, if there has not been an informal conference, within the time established in AS 27.21.180 . (d) If the application is approved, the permit shall be issued upon filing of the performance bond required by AS 27.21.160 or satisfactory compliance with the requirements of the statewide bonding pool for mining operations established under AS 27.19.040 (b). Sec. 27.21.150. Hearings. (a) Within 30 days after an applicant is notified under AS 27.21.140 (c) of the commissioner's decision concerning the application, the applicant or a person who is or may be adversely affected by the decision may request a hearing to review the reasons for the decision. The commissioner shall hold the hearing within 30 days after the request and shall notify the interested parties of the hearing at the time the applicant is notified. AS 44.62 (Administrative Procedure Act) applies to a hearing under this section except as provided by regulations adopted under this chapter. (b) If a hearing is requested under (a) of this section, the commissioner may, under conditions the commissioner prescribes, grant appropriate temporary relief pending the commissioner's final decision if (1) the parties to the hearing have been notified and given an opportunity to be heard on a request for temporary relief; (2) the party requesting the temporary relief shows that there is a substantial likelihood that the party will prevail in the final decision of the hearing; and (3) the temporary relief will not adversely affect the public health or safety or cause significant imminent harm to land, air, or water resources. (c) The person presiding at the hearing may administer oaths, subpoena witnesses, subpoena written or printed materials, compel the attendance of witnesses or the production of materials, and take evidence including but not limited to evidence derived from site inspections of the land that will be affected by the permit or revision and other surface coal mining operations conducted by the applicant in the general vicinity of the operation proposed in the application. On the motion of a party or by order of the commissioner, a verbatim record of a hearing required by this chapter shall be made and a transcript made available. Sec. 27.21.160. Performance bond; exceptions. (a) Except as provided in (c) and (g) of this section, after an application for a permit has been approved and before the permit may be issued, the applicant must file with the commissioner, on a form prescribed and furnished by the commissioner, a performance bond payable to the State of Alaska and conditioned on faithful performance of the requirements of this chapter and the permit. The bond must cover the area of land within the permit area on which the applicant will initiate and conduct surface coal mining and reclamation operations within the initial term of the permit. As succeeding increments of surface coal mining and reclamation operations are initiated and conducted within the permit area, the permittee shall provide an additional bond or bonds to cover those increments in accordance with this section. The amount of the bond required for an area within the permit area shall be determined by the commissioner and shall reflect the probable difficulty of the reclamation considering the topography, geology, hydrology, revegetation potential, and similar factors relating to the area. The amount of the bond must be sufficient to assure the completion of the reclamation plan by the commissioner in the event of forfeiture and, for the entire permit area, may not be less than $10,000. (b) Liability under the bond must exist for the duration of the surface coal mining and reclamation operation and for the period of time of the permittee's responsibility under the performance standards established by regulation under AS 27.21.210 . The bond shall be executed by the applicant and, except as provided in (d) of this section, a corporate surety licensed to do business in the state. (c) An applicant may deposit with the commissioner cash, negotiable bonds of the United States or of the state, or negotiable certificates of deposit of a bank organized or transacting business in the United States to satisfy the requirements of (a) of this section if (1) the value of the deposit is equal to or greater than the amount of the bond required under (a) of this section; (2) liability under the deposit is for a period of time described in (b) of this section; and (3) the deposit is made under the terms that, under (a) of this section, would apply to a performance bond. (d) The commissioner may accept a bond executed by the applicant without separate surety if the applicant demonstrates to the satisfaction of the commissioner that the applicant has sufficient financial means for the purposes of the bond. The commissioner shall adopt regulations to implement this section. (e) The commissioner shall maintain a deposit under (c) of this section in a separate escrow account and shall annually pay the interest accruing on the deposit to the permittee. (f) The commissioner shall adjust the amount required under (a), (c), or (d) of this section and the terms of the acceptance of that amount if the commissioner determines there is good cause, including changes in affected land areas or in the probable cost of future reclamation, for the adjustment. (g) As an alternative to performance bonds, applicants conducting surface coal mining and reclamation operations may use the bonding pool established by the commissioner under AS 27.19.040 (b) for reclamation activities to meet the requirements imposed by this section. Sec. 27.21.170. Request and release of performance bonds or deposits. (a) A permittee may file a request with the commissioner for the release of all or part of the permittee's performance bonds or deposit. The permittee shall give notice in the manner set out in AS 38.05.945 (b) and (c) except as provided by regulations adopted under this chapter. (b) Within 30 days after receipt of a request under (a) of this section or within a longer period required by field conditions, the commissioner shall inspect and evaluate the reclamation work involved. In the evaluation, the commissioner shall consider the degree of difficulty to complete the reclamation, whether pollution of surface or subsurface water is occurring, the probability of continuance of the pollution, and the estimated cost of abating the pollution. Within 60 days after receipt of the request, or if a hearing relating to the request is conducted under (g) of this section, within 30 days after the hearing, whichever is later, the commissioner shall notify the permittee, in writing, of the decision to release or not to release all or part of the performance bond or deposit. (c) The commissioner shall release all or part of the bond or deposit in accordance with the following schedule if the commissioner is satisfied that the reclamation or part of the reclamation covered by the bond or deposit has been accomplished as required by this chapter: (1) if the permittee completes the backfilling, regrading, and drainage control of all or part of a permit area according to the reclamation plan, the commissioner shall release 60 percent of the bond or deposit covering the area; (2) if the permittee completes revegetation of all or part of the permit area according to the reclamation plan, the commissioner shall release the balance of the bond or deposit covering the revegetated area except for an amount that would be necessary to hire a third party to reestablish revegetation; (3) if the permittee successfully completes all of the surface coal mining and reclamation activities required by this chapter and the terms of the permit, the commissioner shall release the remaining portion of the bond after expiration of the period of time of the permittee's responsibility under the performance standards established by regulation under AS 27.21.210 ; however, a bond or deposit may not be fully released until all reclamation requirements are fully met. (d) The commissioner may not release all or part of a bond or deposit under (c)(2) of this section if (1) the permit area or part of a permit area covered by the bond or deposit is in violation of the performance standards established by regulation under AS 27.21.210 ; or (2) a silt dam is to be retained as a permanent water impoundment under the performance standards established by regulation under AS 27.21.210 and the permittee has not, in the determination of the commissioner, made adequate provisions for the sound future maintenance of the silt dam. (e) If the commissioner disapproves a request filed under (a) of this section, the commissioner shall notify the permittee of the decision in writing. The notice must include the reasons for the disapproval, a description of the actions necessary to secure the release, and notification of the permittee's right to a hearing under (g) of this section. (f) If a request is filed with the commissioner under (a) of this section, the commissioner shall notify the appropriate municipality, if any, at least 30 days before the release of all or part of the bond or deposit. (g) A person with a valid legal interest that might be adversely affected by release of a bond or deposit under this section or a federal, state, or municipal agency that has jurisdiction over an environmental, social, or economic impact involved in the permittee's operation or that has authority to develop and enforce environmental standards with respect to the permittee's operation, may, within 30 days after the last publication of notice required by (a) of this section, file written objections to the request with the commissioner and may request a hearing. A permittee whose request for release of all or part of a bond or deposit is disapproved may request a hearing within 30 days after receipt of written notification of the disapproval under (e) of this section. If a hearing is requested, the commissioner shall inform the interested parties of the time and place of the hearing and shall hold the hearing within 30 days after the request for the hearing. The commissioner shall publish the date, time, and location of the hearing in a newspaper of general circulation in the locality for two consecutive weeks. The commissioner shall conduct the public hearing and any appeal according to AS 44.62 (Administrative Procedure Act) except as provided by regulations adopted under this chapter. Sec. 27.21.180. Application approval or denial. (a) Within 120 days after receipt of a complete application for a permit or for revision or renewal of a permit, the commissioner shall grant, condition, modify, or deny the application and notify the applicant in writing of the commissioner's action. The applicant has the burden of establishing that the application complies with the requirements of this chapter and the regulations adopted under it. Within 10 days after approving an application, the commissioner shall record in the recording district in which the permit area is located notice that a permit has been issued. The notice must describe the location of the permit area and state where a copy of the permit may be obtained. (b) If the commissioner requests modification of an application, the commissioner shall state in writing which parts need modification and in what manner, and which parts of the application meet approval. The applicant will then need only to correct the deficient portion and resubmit the application. However, the commissioner may at any time require additional information from the applicant if the requirement is based on good cause and on a written finding that the additional information is necessary for the commissioner to determine whether the proposed operation will meet the requirements of this chapter and the regulations adopted under it. After receipt of the information requested, the commissioner has 60 days to approve, condition, or deny the permit as described in (a) of this section. (c) The commissioner may not approve an application for a permit or for revision of a permit unless the application demonstrates and the commissioner finds, in writing and on the basis of information included in the application or information that is otherwise available to the commissioner and that the commissioner documents in the approval and makes available to the applicant, that (1) the application is accurate and complete and that it complies with the requirements of this chapter and regulations adopted under this chapter; (2) the applicant has demonstrated that reclamation as required by this chapter and regulations adopted under it can be accomplished under the reclamation plan contained in the application; (3) an assessment of the probable cumulative impact of all anticipated surface coal mining in the area on the hydrologic balance has been made by the commissioner, and that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area; (4) the area proposed to be mined is not included within an area that (A) is designated as unsuitable for surface coal mining under AS 27.21.260 ; or (B) is being considered by the commissioner for designation in an administrative proceeding commenced under AS 27.21.260 , unless the applicant demonstrates that before January 1, 1977, the applicant made substantial legal and financial commitments in relation to the proposed operation for which the applicant is applying for a permit; (5) the proposed surface coal mining operation will not (A) interrupt, discontinue, or preclude farming on an alluvial valley that is irrigated or naturally subirrigated, excluding undeveloped range land that is not significant to farming on the alluvial valley floor and land on which the farming that will be interrupted, discontinued, or precluded is so small as to have negligible impact on the farm's total agricultural production; or (B) materially damage the quantity or quality of water in surface or underground water systems that supply an alluvial valley floor; and (6) if the ownership of the coal in the permit area has been severed from the private surface estate, the applicant has submitted to the commissioner (A) the written consent of the surface owner to the extraction of the coal by surface mining methods; (B) a conveyance that expressly grants or reserves the right to extract the coal by surface mining methods; or (C) a determination of a court that the applicant is authorized to extract coal by surface mining methods in the permit area; however, nothing in this chapter may be construed to authorize the commissioner to adjudicate property rights disputes. (d) The provisions of (c)(5) of this section do not apply to a surface coal mining operation that, in the 12-month period preceding August 3, 1977, produced coal in commercial quantities and was located within or adjacent to an alluvial valley floor. (e) An applicant shall file with an application a list of all cited violations of this chapter and all cited violations of a law, rule, or regulation of the United States, the state, or a department or agency of the United States pertaining to air or water environmental protection received by the applicant in connection with a surface coal mining operation within the United States during the three-year period before the date of filing the application. The list must indicate the final resolution, if any, of the violations. If the list or other information available to the commissioner indicates that a surface coal mining operation owned or controlled by the applicant is currently in violation of this chapter or of a law, rule, or regulation described in this subsection, the commissioner may not approve the application until the applicant submits proof that (1) the violation has been corrected or is being corrected to the satisfaction of the commissioner or to the satisfaction of the agency responsible for the enforcement of the law, rule, or regulation if the violation is not of this chapter; or (2) the applicant is involved in an administrative or judicial proceeding to determine whether the applicant has committed the violation. (f) The commissioner may not approve an application under this section if the commissioner finds, after providing the applicant with an opportunity for a hearing in accordance with the procedures established in AS 27.21.150 , that the applicant, or the operator specified in the application, controls or has controlled mining operations with a demonstrated pattern of wilful violations of this chapter of such nature and duration and with such resulting irreparable damage to the environment as to indicate an intent not to comply with this chapter. Sec. 27.21.190. Revision and transfer of permit. (a) During the term of a permit, the permittee may submit to the commissioner an application for revision of the permit, with necessary revisions to the permittee's reclamation plan. (b) The commissioner may not approve an application for revision of a permit unless the commissioner finds that reclamation required by this chapter and the regulations adopted under it can be accomplished under the necessary revisions to the reclamation plan. The commissioner shall establish guidelines for determining the extent of revision for which all permit application requirements and procedures, including notice and hearing, shall apply. A revision that, in the commissioner's determination, requires significant revisions to the applicant's reclamation plan must, at a minimum, be subject to a notice and hearing requirement. (c) A permittee may not apply under this section for an extension of the permit area, except by incidental boundary revision. (d) A permittee may not transfer, assign, or sell a permit or the rights granted under a permit without the written approval of the commissioner. A successor in interest to a permittee may continue the surface coal mining and reclamation operation of the permittee until the successor's transfer application is granted or denied if the successor (1) applies for a new permit within 30 days of succeeding to that interest; and (2) obtains the same bond coverage as the permittee. (e) After the commissioner issues a permit, the commissioner shall, within a time limit established by regulation, review the permit and may, for good cause, require reasonable revisions of the permit during the term of the permit. A revision under this subsection must be based on a written finding of the commissioner relating to the need for the revision and is subject to notice and hearing requirements established by the commissioner by regulation. Sec. 27.21.200. Coal exploration permits. (a) A person may conduct coal exploration activities that substantially disturb the natural land surface only according to regulations adopted by the commissioner. Before conducting the coal exploration activities, the person shall file with the commissioner a notice of intent to explore that includes a description of the exploration area and the period of proposed exploration. (b) The regulations adopted by the commissioner under (a) of this section must include provisions for reclamation, according to the performance standards established under AS 27.21.210 , of land disturbed by the coal exploration activities, including reclamation of excavations, roads, and drill holes, and the removal of facilities and equipment. (c) The commissioner shall keep information submitted to the commissioner under this section confidential upon request of the person submitting the information if the information is a (1) trade secret or relates to a trade secret; or (2) privileged competitive right of the applicant for the coal exploration permit. (d) A person who conducts a coal exploration activity that substantially disturbs the natural land surface in violation of the requirements of this section or regulations adopted under this section is subject to the provisions of AS 27.21.240 . (e) A person may not remove more than 250 tons of coal under a coal exploration permit without the specific written approval of the commissioner. Sec. 27.21.210. Performance standards. The commissioner shall adopt regulations consistent with the environmental performance standards of the Surface Mining Control and Reclamation Act of 1977 and the regulations promulgated under that Act for both surface coal mining and reclamation operations and surface effects of underground mining with appropriate adjustments to the special physical, hydrological, biological, and climatic conditions in the state. All permits issued under this chapter shall require that surface coal mining and reclamation operations and coal exploration activities must comply with those environmental performance standards. Sec. 27.21.220. Surface effects of underground coal mining. (a) The provisions of this chapter apply to the surface effects of underground coal mining. However, the commissioner shall consider the inherent difference between underground mining and surface mining in adopting regulations under this chapter that apply to underground mining. (b) In order to protect the stability of the land, the commissioner shall suspend underground coal mining under municipalities or communities and adjacent to industrial or commercial buildings, major impoundments, or permanent streams, if the commissioner finds imminent danger to inhabitants of the municipalities or communities. Sec. 27.21.230. Inspections and monitoring. (a) The commissioner shall provide for an inspection of a surface coal mining and reclamation operation to evaluate compliance with this chapter, and, for that purpose, an authorized representative of the commissioner may enter the surface coal mining and reclamation operation. The commissioner shall, to the extent possible, coordinate the inspection and monitoring activities with other agencies having responsibilities with regard to the operation. (b) In administering and enforcing this chapter or determining whether a person is in violation of this chapter (1) the commissioner may require a permittee to (A) establish appropriate records and maintain them in the state; (B) make monthly reports to the commissioner; (C) install, use, and maintain necessary monitoring equipment or methods; (D) evaluate results in accordance with the methods, at the locations and intervals, and in the manner the commissioner prescribes; and (E) provide other information relating to the permittee's operations as the commissioner considers reasonable and necessary; (2) for a surface coal mining and reclamation operation that removes or disturbs strata that serve as aquifers that significantly ensure the hydrologic balance of water use either on or off the site of the operation, the commissioner may specify (A) monitoring sites for the use of equipment and methods under (1)(C) of this subsection to record (i) the quantity and quality of surface drainage above and below the site of the operation as well as in the area potentially affected by the operation; (ii) level, amount, and samples of ground water and aquifers that are potentially affected by the operation, and ground water and aquifers that are directly below the deepest coal seam to be mined under the operation; and (iii) precipitation at the site of the operation; and (B) the records of well logs and borehole information that a permittee must maintain; (3) the authorized representatives of the commissioner, without advance notice and upon presentation of appropriate credentials, may enter an operation or premises in which records required to be maintained under this section are located and may at reasonable times, and without delay, have access to and copy the records and inspect monitoring equipment or an operating method required under this chapter. (c) Inspection by the commissioner under (b)(3) of this section shall (1) occur on an irregular basis averaging not less than one partial inspection per month and one complete inspection per calendar quarter; and (2) occur without prior notice to the permittee or the permittee's agents, except as provided in (e) of this section. (d) After conducting an inspection under (b)(3) of this section, an inspector shall file with the commissioner, and the commissioner shall maintain, an inspection report adequate to assist the commissioner in enforcing the requirements of this chapter and carrying out the terms and purposes of this chapter. (e) A representative of the permittee who is at the site of the operation at the time an inspection under (b)(3) of this section begins may accompany the inspector during the inspection. The inspector shall notify the representative of the permittee of the permittee's right under this subsection before beginning the inspection. (f) A permittee shall conspicuously maintain at the entrances to the operation a clearly visible sign that states the name, business address, and phone number of the permittee and the permit number of the operation. (g) An inspector, upon detection of a violation of this chapter, shall immediately report the violation to the operator and to the commissioner in writing. (h) A person who is or may be adversely affected by a surface coal mining operation may notify the commissioner, in writing, of a violation of this chapter that the person has reason to believe exists at the site of the surface coal mining operation. The commissioner shall, by regulation, establish procedures for review of a refusal by a representative of the commissioner to issue a notice of violation or cessation order with respect to the alleged violation. The commissioner shall furnish a person requesting the review with a written statement of the commissioner's findings and reasons for the findings. (i) The commissioner shall, by regulation, establish procedures to ensure that adequate and complete inspections are made under this section. Any person who is or may be adversely affected by a surface coal mining operation may notify the commissioner of a failure to make an adequate or complete inspection under this section. If the commissioner receives notification from a person under this subsection, the commissioner shall investigate the inspection and shall furnish the person with a written determination and the reasons for the determination. Sec. 27.21.240. Enforcement. (a) If, on the basis of an inspection under AS 27.21.230 , the commissioner determines that a person or a person's operation is in violation of this chapter or a term of a permit and that the violation creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant, imminent, environmental harm to land, air, or water resources, the commissioner shall immediately issue a notice of violation and order a cessation of the person's surface coal mining operation or the portion of the operation relating to the violation. The cessation order remains in effect until the commissioner determines that the violation has been abated, or until modified, vacated, or terminated under (d) or (h) of this section. If the commissioner finds that the ordered cessation of the operation, or a portion of the operation, will not completely abate the imminent danger to the health or safety of the public or the significant, imminent, environmental harm to land, air, or water resources, the commissioner shall, in addition to the cessation order, impose affirmative obligations on the operator to take the steps the commissioner considers necessary to abate the imminent danger or significant environmental harm. (b) If, on the basis of an inspection, the commissioner determines that a person or a person's operation is in violation of this chapter or a term of a permit and that the violation does not create an imminent danger to the health or safety of the public and is not causing and cannot reasonably be expected to cause significant, imminent, environmental harm to land, air, or water resources, the commissioner shall issue a notice of violation to the permittee setting a reasonable time, which may not exceed 90 days from the date the notice is issued, for the abatement of the violation. However, the commissioner may, for good cause, extend the time for the abatement of the violation. If, at the end of the time allowed for abatement of the violation, the commissioner finds, in writing, that the violation has not been abated, the commissioner shall order a cessation of the person's surface coal mining operation or the portion of the operation relating to the violation. The cessation order remains in effect until the commissioner determines that the violation has been abated or until it is modified, vacated, or terminated under (d) or (h) of this section.

The commissioner shall determine the steps necessary to abate the violation in the most expeditious manner possible and shall include the necessary measures in the cessation order issued under this section. (c) A person who is or may be adversely affected by a notice of violation or cessation order issued under (a) or (b) of this section, or by a modification, vacation, or termination of the notice or order, may apply to the commissioner for review of the notice or order within 60 days after receipt of the notice or order by the operator or permittee or within 60 days after the modification, vacation, or termination of the notice or order. On receipt of the application, the commissioner shall provide for an investigation and an investigation report, as the commissioner considers appropriate. At the request of the applicant or another person who is or may be adversely affected, the commissioner shall provide for a public hearing to enable the applicant to present information relating to the notice or order or the modification, vacation, or termination of the notice or order. The filing of an application for review under this subsection may not operate as a stay of the order or notice. The commissioner shall give the applicant and other interested persons written notice of the time and place of the hearing at least five days before the hearing. AS 44.62 (Administrative Procedure Act) applies to a hearing under this subsection except as provided by regulations adopted under this chapter. (d) After any review under (c) of this section, the commissioner shall issue a written decision that includes findings of fact and an order vacating, affirming, modifying, or terminating the notice or order. If the application for review under (c) of this section relates to a cessation order issued under (a) or (b) of this section, the commissioner shall issue the written decision within 30 days after receipt of the application for review unless the commissioner grants a request for temporary relief under (e) of this section. (e) An applicant for review under (c) of this section may file with the commissioner a written request for temporary relief from a notice or order issued under (a) or (b) of this section before completion of the review of the notice or order. The written request must include a detailed statement of the reasons in support of the request. The commissioner shall expeditiously issue an order granting or denying the temporary relief. If the applicant requests temporary relief from a cessation order issued under (a) or (b) of this section, the commissioner shall issue an order granting or denying the temporary relief within 10 days after the commissioner receives the written request. The commissioner may grant the temporary relief under this subsection only (1) after the commissioner holds a hearing in the locality of the permit area on the request for temporary relief in which the parties have an opportunity to be heard; (2) if the applicant shows that there is substantial likelihood that the findings of the commissioner under (d) of this section will be favorable to the applicant; and (3) if the temporary relief will not adversely affect the health or safety of the public or cause significant, imminent, environmental harm to land, air, or water resources. (f) If, on the basis of an inspection, the commissioner has reason to believe that a pattern of violations of this chapter or of a term of a permit exists or has existed, and if the commissioner finds that the violations are caused by the unwarranted failure of the permittee to comply with the requirements or that the violations were wilfully caused by the permittee, the commissioner shall issue a notice of violation and an order to the permittee to, within a specified time period, show cause why the permit should not be suspended or revoked. The order to show cause must include notice to the permittee that a hearing may be requested within 30 days. (g) If the permittee requests a hearing under (f) of this section, the commissioner shall inform the permittee and other known interested persons of the time, place, and date of the hearing. AS 44.62 (Administrative Procedure Act) applies to a hearing under this subsection except as provided by regulations adopted under this chapter. Within 60 days following the hearing or following the order to show cause if no hearing is requested, the commissioner shall issue and furnish to the permittee and all other parties to the hearing a written decision, order, and the reasons for both, concerning the suspension or revocation of the permit. If the commissioner suspends or revokes the permit, the permittee shall immediately cease the surface coal mining operation on the permit area and shall complete the reclamation of the permit area within the time specified by the commissioner. If the permittee fails to complete the reclamation, the commissioner shall declare the performance bonds for the operation forfeited. (h) A notice or order issued under this section shall state with reasonable specificity the nature of the violation, the abatement required, the period of time established for abatement, and a reasonable description of the portion of the operation to which the notice or order applies. Each notice or order issued under this section must be given promptly to the alleged violator at the mine site unless the alleged violator has appointed an agent, in which case the agent may be served. A notice or order issued under this section may be modified, vacated, or terminated by the commissioner. A cessation order issued under (a) or (b) of this section expires not more than 30 days after the alleged violator receives actual notice of the order unless an informal conference is held as provided in regulations adopted under this chapter or unless the right to such a conference is waived by the alleged violator. The commissioner shall hold the conference at a location that allows the permit area to be viewed during the conference. The commissioner shall issue a written order affirming, modifying, vacating, or terminating the cessation order within five days of the conference. The holding of a conference or the waiver of it does not prejudice any other rights to administrative or judicial review provided under this chapter nor does it operate as a stay of a notice or order. (i) Whenever an order is issued under this chapter, the commissioner may, in the commissioner's discretion, assess any party for the costs and attorney fees reasonably incurred by another party in connection with the order. (j) The commissioner may request the attorney general to institute a civil action for relief, including a permanent or temporary injunction, restraining order, or other appropriate order, if a person (1) violates an order or notice issued by the commissioner under this chapter; (2) interferes with the commissioner carrying out the provisions of this chapter; (3) unlawfully refuses to admit the commissioner into an operation; (4) unlawfully refuses to permit inspection of an operation by the commissioner; (5) fails to furnish information or a report requested by the commissioner under regulations adopted under this chapter; or (6) refuses to permit access to or copying of records by the commissioner that the commissioner determines are reasonably necessary to carry out the provisions of this chapter. (k) An action under (j) of this section shall be brought in the superior court in the judicial district in which the greater portion of the operation is located or in the judicial district where the operator's principal office is located. The superior court has jurisdiction to grant appropriate relief under (j) of this section. Relief granted by a superior court for a situation described in (j)(1) of this section continues in effect until the completion of proceedings for review of the notice or order under this section unless before that time the superior court modifies or sets aside the notice or order. (l) In the case of a judicial proceeding to review an order or decision issued by the commissioner under this chapter, the court may, under conditions it may prescribe, grant the temporary relief it considers appropriate pending final determination of the proceedings if (1) all parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief; (2) the person requesting the relief shows that there is a substantial likelihood that the person will prevail on the merits of the final determination of the proceeding; and (3) the relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources. (m) The commencement of a judicial proceeding to review an order or decision of the commissioner does not, unless specifically ordered by the court, operate as a stay of the action, order, or decision of the commissioner. (n) The fact that action of the commissioner is subject to judicial review in accordance with other provisions of state law may not be construed to limit the operation of the rights established in AS 27.21.950 except as provided in that section. Sec. 27.21.250. Penalties. (a) The commissioner may assess a civil penalty against a person if the person or the person's operation violates a condition of a permit or a provision of this chapter. If as a result of the violation the commissioner issues a cessation order under AS 27.21.240 , the commissioner shall assess a civil penalty. The civil penalty may not exceed $5,000 for a violation. The commissioner may consider each day of a continuing violation as a separate violation for the purposes of this subsection. In determining whether to assess and the amount of a civil penalty, the commissioner shall consider the person's history of previous violations at the site of the operation, the seriousness of the violation, including the irreparable harm done to the environment and the hazard created to the health or safety of the public, the person's negligence, and the good faith of the person in attempting to achieve rapid compliance after receiving notification of the violation. (b) Within 30 days after issuing a notice or order under AS 27.21.240 to a person, the commissioner shall inform the person of the amount of the penalty. The person notified of the penalty then has 30 days in which to pay the penalty in full or to contest either the amount of the penalty or the fact of the violation. If the person wishes to contest either the amount of the penalty or the fact of the violation, the person may submit to the commissioner a bond equal to the penalty amount at the time the person files an application for review. The bond shall be conditioned for the satisfaction of the penalty in full if the commissioner's determination of an occurrence of a violation and the assessment of a penalty are affirmed. An application for review is effective when the bond is approved by the commissioner. If the bond is not approved, the person charged with the penalty shall forward the proposed amount to the commissioner within 10 days of the disapproval of the bond for placement in an escrow account in order to make the petition effective. (c) The commissioner shall assess a civil penalty under (a) of this section only after the person charged with a violation has been given an opportunity for a public hearing. If a public hearing is held, the commissioner shall make findings of fact and shall issue a written decision relating to the occurrence of the violation and the amount of the civil penalty that is warranted. The written decision may order the person to pay the penalty. The commissioner may consolidate a hearing under this section with other proceedings under AS 27.21.240 . AS 44.62 (Administrative Procedure Act) applies to a hearing under this subsection except as provided by regulations adopted under this chapter. If the person notified of a penalty does not request a public hearing, the commissioner may assess the penalty and order its payment only after the commissioner has determined that the person committed the violation and has determined the amount of the penalty that is warranted. (d) A civil penalty owed under this section may be recovered in a civil action brought by the attorney general at the request of the commissioner. (e) A person other than a corporation who wilfully and knowingly violates a condition of a permit, an order issued under AS 27.21.240 , or an order incorporated in a final decision under this chapter, except an order incorporated in a decision issued under (c) of this section, is guilty of a class C felony. (f) If a corporation violates a condition of a permit, an order issued under AS 27.21.240 , or an order incorporated in a final decision issued by the commissioner under this chapter, except an order incorporated in a decision issued under (c) of this section, a director, officer, or agent of the corporation who wilfully and knowingly authorized, ordered, or carried out the violation is subject to a civil penalty under (a) — (d) of this section and is guilty of a class C felony. (g) A person who knowingly makes a false statement, representation, or certification, or knowingly fails to make a required statement, representation, or certification in an application, record, report, plan, or other document filed or required to be maintained under this chapter is guilty of a class C felony. (h) A person who fails to correct a violation for which a notice of violation or a cessation order has been issued under AS 27.21.240 within the period or subsequent extension permitted for its correction shall be assessed a civil penalty of $750 for each day the failure or violation continues. The period for correction continues until (1) the entry of a final order by the commissioner in a review proceeding initiated by the alleged violator in which the commissioner orders, after an expedited hearing, the suspension of the abatement requirements of the notice or order after determining that the alleged violator will suffer irreparable loss or damage from the application of those requirements; or (2) the entry of an order of the court in a review proceeding under AS 44.62 (Administrative Procedure Act) initiated by the alleged violator in which the court orders the suspension of the abatement requirements of the notice or order. (i) A person who, except as permitted by law, wilfully resists, prevents, impedes, or interferes with the commissioner in the performance of duties under this chapter is guilty of a class C felony. Sec. 27.21.260. Areas unsuitable for surface coal mining. (a) The commissioner shall use competent and scientifically sound data and information in order to make objective decisions as to which areas of land are unsuitable for all or certain types of surface coal operations. The decisions shall (1) reflect the planning activities of federal, state, and municipal governments; and (2) use a data base and inventory system that will permit the evaluation of areas of the state to support and permit reclamation of surface coal mining operations. (b) A person or municipality having an interest that is or may be adversely affected may file a petition with the commissioner to designate an area as unsuitable for mining or to terminate a designation under this section. The petition must contain allegations of facts with supporting evidence that would tend to establish the allegations. Within three to seven months after receipt of a petition, the commissioner shall hold a public hearing in the locality of the area, under regulations adopted by the commissioner. The commissioner may extend the time within which a hearing must be held if an extension is required to include a field season. After the filing of a petition and before the hearing, other persons may intervene by filing allegations of fact with supporting evidence. Within 60 days after the hearing, the commissioner shall issue and furnish to the petitioner and intervenors a written decision regarding the petition and the reasons for the commissioner's decision. The commissioner may cancel the hearing if the parties all agree to the cancellation. (c) Upon receipt of a petition under (b) of this section, the commissioner (1) shall designate an area as unsuitable for all or certain types of surface coal mining operations if the commissioner determines that reclamation in accordance with this chapter and regulations adopted under it is not technologically feasible in the area; (2) may designate an area as unsuitable for all or certain types of surface coal mining operations if the commissioner determines that the operations in the area will (A) be incompatible with existing state or local land use programs; (B) affect fragile or historic land in which the operations could result in significant damage to important historic, cultural, scientific, and aesthetic values and natural systems; (C) affect aquifer recharge areas or other renewable resource land in which the operations could result in a substantial loss or reduction of long-range productivity of water supply or food or fiber products; or (D) affect areas subject to frequent flooding and areas of unstable geology, or other natural hazard land in which the operations could substantially endanger life and property. (d) Subject to valid existing rights, the commissioner may not permit surface coal mining operations except those that existed on August 3, 1977, (1) on any land within the boundaries of a unit 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 section 5(a) of the Wild and Scenic Rivers Act, and National Recreation Areas designated by Act of Congress; (2) that will adversely affect a publicly owned park or a place included in the National Register of Historic Sites unless approved jointly by the commissioner and the federal, state, or local agency that has jurisdiction over the park or the historic site; (3) within 100 feet of the outside right-of-way line of any public road, except where mine access roads or haulage roads join the right-of-way line, and except that the commissioner may permit roads to be relocated or the area affected to lie within 100 feet 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 landowners affected by it will be protected; or (4) within 300 feet from any occupied dwelling, unless waived by the owner of the dwelling, or within 300 feet of a public building, school, church, community, institutional building, or public park, or within 100 feet of a cemetery. (e) Before designating an area as unsuitable under this section, the commissioner shall prepare a detailed statement of the potential coal resources of the area, the demand for coal resources, and the impact of the designation on the environment, the economy, and the supply of coal. (f) Determinations of unsuitability of land for surface coal mining must consider present and future land use planning and regulation processes at the federal, state, and local levels. (g) This section does not apply to land on which a surface coal mining operation was conducted on or before August 3, 1977, or under a permit issued under this chapter before a determination of unsuitability. This section does not apply to an area if a person had made substantial legal or financial commitments for an operation or proposed operation in that area before January 4, 1977. (h) A designation of unsuitability under this section does not prevent coal exploration of any designated area. (i) The commissioner shall adopt regulations to implement this section. Article 3. Abandoned Mines. Sec. 27.21.270. Abandoned Mine Reclamation Fund. The commissioner may take the actions necessary to ensure state participation to the fullest extent practicable in the Abandoned Mine Reclamation Fund created in 30 U.S.C. 1231 and to function as the state agency for that participation. In conformity with the Surface Mining Control and Reclamation Act of 1977, the commissioner shall (1) by regulation, establish priorities that meet the terms of the Surface Mining Control and Reclamation Act of 1977 for the expenditure of money received by the commissioner from the Abandoned Mine Reclamation Fund; (2) designate land and water eligible for reclamation or abatement with money received by the commissioner from the Abandoned Mine Reclamation Fund; (3) submit reclamation plans, annual projects, and applications to the appropriate authorities under the terms of the Surface Mining Control and Reclamation Act of 1977; and (4) administer money received by the state for abandoned mine reclamation or related purposes from the Abandoned Mine Reclamation Fund. Sec. 27.21.280. Eligible land and water. Land and water eligible for reclamation or drainage abatement expenditures under this chapter are those that were mined for coal or were affected by such mining, wastebanks, coal processing, or other coal mining processes, and abandoned or left in an inadequate reclamation status before August 3, 1977, and for which there is no continuing reclamation responsibility under state or federal law. Sec. 27.21.290. Entry onto abandoned mine area. (a) The commissioner may enter real property that has been adversely affected by past surface coal mining practices and other real property necessary for access to adversely affected real property to restore or reclaim the real property or to abate, control, or prevent the adverse effects. The money expended for and the benefits accruing to the real property from work performed under this subsection is chargeable against the real property and mitigates or offsets a claim in or an action brought by an owner of an interest in the real property for damages resulting from the entry. This subsection does not create new rights of action or eliminate existing immunities. (b) The commissioner may enter real property for the purposes of conducting studies or exploratory work to determine the existence of adverse effects from past surface coal mining practices and to determine the feasibility of restoring or reclaiming the real property or abating, controlling, or preventing the adverse effects of past coal mining practices. (c) The commissioner may enter real property under (a) or (b) of this section only after (1) giving notice of the entry by mailing it to the owners if they are known or, if not known, by posting notice on the premises and advertising once a week for four consecutive weeks in a newspaper of general circulation in the area in which the land is located; (2) making written findings that (A) the land or water resources have been adversely affected by past coal mining practices; (B) the adverse effects are at a stage that, in the public interest, action to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices should be taken; and (C) the owners of the land or water resources where entry must be made to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices are not known or readily available or will not give permission for the entry. Sec. 27.21.300. Acquisition of abandoned mine areas. (a) The commissioner may, by purchase, donation, or condemnation in accordance with AS 09.55.240 — 09.55.460, acquire real property that has been adversely affected by past surface coal mining practices if the commissioner determines that (1) acquisition of the real property is necessary to the successful reclamation of the real property and is in the public interest; and (2) the real property, after its restoration or reclamation or after the abatement, control, or prevention of the adverse effects, will serve recreational, historic, conservation, or reclamation purposes or will provide open space benefits; and (3) permanent facilities will be constructed on the real property for the restoration or reclamation of the real property or for the abatement, control, or prevention of the adverse effects; or (4) if the real property includes a coal refuse disposal site, the acquisition of the coal refuse disposal site and the coal refuse on the site will serve the purposes of this section; or (5) public ownership is desirable to meet emergency situations created by the adverse effects and to prevent recurrences of the adverse effects. (b) Title to real property acquired under this section is in the state. If the commissioner acquires the real property by purchase or condemnation, the commissioner shall pay the fair market value of the real property as adversely affected by past coal mining practices. (c) If real property acquired under this section is suitable for industrial, commercial, residential, or recreational development, the commissioner may sell the real property by competitive bidding, at not less than the fair market value of the real property. The commissioner shall adopt regulations relating to the sale of real property under this subsection that will ensure that the use of the real property is consistent with any state and local land use plans. If money received by the commissioner from the federal government is involved in the acquisition of the real property, the commissioner may sell the real property only if the sale is authorized by the Secretary of the United States Department of the Interior. If a person requests it, the commissioner shall hold a hearing in the area in which the real property is located to consider the use or disposition of the real property after its restoration or reclamation or after the abatement, control, or prevention of adverse effects. The commissioner shall hold the hearing at a time that will afford local residents and representatives of municipal government in the area the maximum opportunity to participate in the hearing. The commissioner shall publish notice of the hearing in a newspaper of general circulation in the area in which the real property is located at least 10 days before holding the hearing. Sec. 27.21.310. Liens on abandoned mine areas. (a) Within six months after the completion of a project under AS 27.21.290 to restore or reclaim privately owned real property or to abate, control, or prevent the adverse effects of past surface coal mining practice on privately owned real property, the commissioner shall itemize the money spent on the project. If the project results or will result in a significant increase in the real property's fair market value, the commissioner may file a statement of the money spent in the recording office in the area in which the real property is located with a notarized appraisal by a licensed appraiser of the fair market value of the real property before the project began. The statement constitutes a lien on the real property as of the date of the expenditure which is second only to the lien of property taxes. The lien may not exceed the amount determined by either of two appraisals to be the increase in the fair market value of the real property as a result of the project. A lien may not be filed under this subsection against real property of a person who owned the surface before May 2, 1977, and who did not consent to, participate in, or exercise control over the surface coal mining operation that necessitated the project. (b) A person affected by a lien under (a) of this section may petition the commissioner within 60 days after the recording of the lien for a hearing concerning the amount of the lien. Sec. 27.21.320. Filling voids and sealing tunnels. The commissioner may authorize the filling of voids, sealing open and abandoned tunnels, shafts, and entryways resulting from any previous mining operation and reclaim surface impacts of underground and surface mines to the extent authorized by the Secretary of the United States Department of the Interior. Sec. 27.21.330. Emergency powers in abandoned mine areas. (a) In emergency situations the commissioner may use money available to the state in the Abandoned Mine Reclamation Fund for the purposes of AS 27.21.290 (a) if the commissioner finds that (1) an emergency exists that constitutes a danger to the public health, safety, or general welfare; and (2) no other person or agency will act expeditiously for those purposes. (b) If the commissioner makes the findings described in (a) of this section, the commissioner may enter on real property under AS 27.21.290 (a) or (b) without giving the notice or making the findings required by AS 27.21.290 (c). An entry onto real property under this section may not be considered a condemnation of property or a trespass. Sec. 27.21.340. Miscellaneous powers regarding abandoned mine lands. (a) The commissioner may request the attorney general to initiate, in addition to any other remedies provided for in this chapter, an action in equity for an injunction to restrain any interference with the exercise of the right to enter or to conduct the work described in AS 27.21.270 — 27.21.340. (b) The state has the power and authority to construct and operate plants for the control and treatment of water pollution resulting from mine drainage, including major interceptors and other appurtenant facilities, so long as that control and treatment complies with 33 U.S.C. 1251 — 1376 (the Federal Water Pollution Control Act). Article 4. General Provisions. Sec. 27.21.900. Mining by government agencies. A federal, state, or municipal government agency, including a publicly owned utility or corporation, that proposes to engage in a surface coal mining operation that is subject to this chapter must comply with this chapter. Sec. 27.21.910. Exemptions. The provisions of this chapter do not apply to the extraction of coal (1) by a landowner or lessee for the landowner's or lessee's own noncommercial use from land owned or leased by it; (2) for commercial purposes if the surface coal mining operation affects two acres or less; or (3) as an incidental part of highway or other construction financed in whole or in part as specified by regulation, by federal, state, or municipal government agency. Sec. 27.21.920. Experimental practices. In order to encourage advances in mining and reclamation practices, and to allow post-mining land use for industrial, commercial, residential, recreational, or public purposes, the commissioner may, with the approval of the Secretary of the United States Department of the Interior, authorize departures in individual cases on an experimental basis from the environmental performance standards established under AS 27.21.210 . The commissioner may authorize these departures if (1) the experimental practices are, during and after the surface coal mining operation, potentially more protective of the environment than, or at least as protective of the environment as, those required by this chapter and regulations adopted under it; (2) the surface coal mining operation for which the departure is authorized is not larger than necessary to determine the effectiveness and economic feasibility of the experimental practices; and (3) the experimental practices do not reduce the protection afforded public health and safety below that provided by law or regulation. Sec. 27.21.930. Water rights and replacement. (a) Nothing in this chapter may be construed to affect the right of a person to protect the person's interest in water resources affected by a surface coal mining operation. (b) An operator shall replace the water supply of an owner of an interest in real property who obtains all or part of the owner's supply of water for domestic, agricultural, industrial, or other beneficial use from an underground or surface source, if the supply has been affected by contamination, diminution, or interruption proximately resulting from the operator's surface coal mining operation. Sec. 27.21.940. Certification of blasters. The commissioner shall adopt regulations requiring the training, examination, and certification of persons engaging in or directly responsible for blasting or the use of explosives in surface coal mining operations. Sec. 27.21.950. Civil actions. (a) Except as provided in (b) of this section, a person who is or may be adversely affected by a failure to comply with this chapter may commence a civil action in the superior court on the person's own behalf and compel compliance with this chapter against (1) the commissioner, if the commissioner has failed to perform a nondiscretionary act or duty; (2) an instrumentality or agency of the state that is in violation of this chapter or a regulation adopted, or an order or permit issued, under this chapter; or (3) a person who is in violation of a regulation adopted or an order or permit issued under this chapter. (b) A person may not commence an action under (a)(1) of this section until 60 days after giving the commissioner written notice of the intended action in the manner prescribed by regulations adopted by the commissioner, except that an action may be brought immediately after the notice if the commissioner's failure to perform constitutes an imminent threat to the health or safety of the person or would immediately affect a legal interest of the person. (c) A person may not commence an action under (a)(2) or (3) of this section (1) until 60 days after the plaintiff has given notice in writing of the violation to the commissioner and to the agency, instrumentality, or alleged violator; (2) if the state is diligently prosecuting a civil action in a state or federal court to require compliance with the provisions of this chapter or a regulation adopted or an order or permit issued under this chapter; however, any person may intervene in that civil action as a matter of right. (d) A person may commence an action under this section only in the judicial district in which the surface coal mining operation is located. (e) Nothing in this section restricts any right that a person or class of persons may have under statute or common law to seek enforcement of any of the provisions of this chapter and the regulations adopted under it or to seek any other relief, including relief against the commissioner. (f) A person who is injured or whose property is damaged by the violation by a permittee of a regulation adopted or an order or permit issued under this chapter may bring an action for damages, including reasonable attorney fees and expert witness fees, only in the judicial district in which the permittee's operation is located. Nothing in this subsection affects the rights established by or limits imposed under AS 23.30 . (g) In an action under this section, the commissioner may intervene as a matter of right. Sec. 27.21.960. Inconsistencies with federal act. (a) A provision of this chapter that is inconsistent with the provisions of the Surface Mining Control and Reclamation Act of 1977 as determined by the Secretary of the United States Department of the Interior under 30 U.S.C. 1255(b) is invalid from the date of the secretary's determination. (b) If a provision of the Surface Mining Control and Reclamation Act of 1977 or of the regulations promulgated under that Act by the Secretary of the United States Department of the Interior is deleted, amended, set aside, enjoined, or declared invalid by Congress, the secretary, or in a final, unappealable judgment of a court of competent jurisdiction, then the commissioner shall review the changes made and make an appropriate recommendation as to whether changes in this chapter or the regulations adopted under it should be made. Sec. 27.21.970. Relationship to other laws. (a) Nothing in this chapter abrogates or modifies the power of a state agency to enforce laws and regulations within its jurisdiction, except as specifically stated in this chapter and regulations adopted under it. The commissioner shall coordinate permitting procedures to prevent unnecessary duplication in permit review. (b) Surface coal mining operations for coal that has been or is conveyed out of federal ownership must meet the requirements of this chapter. Sec. 27.21.975. Severability. If any provision of this chapter or the applicability of it to any person or circumstances is held invalid, the remainder of this chapter and the application of that provision to other persons or circumstances is not affected. Sec. 27.21.980. Administrative Procedure Act. Unless otherwise provided in AS 44.37.011 or other law, AS 44.62 (Administrative Procedure Act) applies to this chapter. Sec. 27.21.998. Definitions. In this chapter, (1) “alluvial valley floors” means the unconsolidated stream-laid deposits holding streams where water availability is sufficient for subirrigation or flood irrigation agricultural activities but does not include upland areas that are generally overlain by a thin veneer of colluvial deposits composed chiefly of debris from sheet erosion, deposits by unconcentrated runoff or slope wash, together with talus, other mass movement accumulation, and windblown deposits; (2) “applicant” means a person or other entity seeking a permit from the commissioner to conduct surface coal mining or underground mining activities under this chapter; (3) “coal” means all forms of coal, including lignite; (4) “commissioner” means the commissioner of natural resources or the commissioner's authorized representatives or agents; (5) “department” means the Department of Natural Resources; (6) “imminent danger to the health or safety of the public” means the existence of a condition or practice, or a violation of a permit or other requirement of this chapter, in a surface coal mining and reclamation operation under which a rational person would not submit to exposure for fear of substantial physical harm; (7) “operation” means a surface coal mining operation or a surface coal mining and reclamation operation; (8) “operator” means a person engaged in coal mining who removes or intends to remove more than 250 tons of coal from the earth by coal mining within 12 consecutive calendar months in any one location; (9) “other minerals” means clay, stone, sand, gravel, metalliferous and non-metalliferous ores, and other solid materials or substances of commercial value excavated in solid form from natural deposits on or in the earth, exclusive of coal, and those minerals that occur naturally in liquid or gaseous form; (10) “permit” means a permit to conduct a surface coal mining and reclamation operation issued by the commissioner under the terms of this chapter; (11) “permit area” means the area of land indicated on the approved maps submitted by the operator with the application that must be covered by the operator's bond as required by AS 27.21.160 (a) — (f) or by the individual performance and payment requirements for the operator who participates in the statewide bonding pool for mining operations as authorized by AS 27.21.160 (g), and must be readily identifiable by appropriate markers on the site; (12) “permittee” means a person holding a permit to conduct a surface coal mining and reclamation operation or underground mining activities under this chapter; (13) “person” means an individual, partnership, association, society, joint-stock company, firm, company, corporation, or other business organization; (14) “reclamation plan” means a plan for the reclamation of an applicant's proposed surface coal mining operation submitted by the applicant under regulations adopted under AS 27.21.110 ; (15) “significant imminent environmental harm to land, air, or water resources” means a condition, practice, or violation that is causing or can be expected to cause an appreciable, reparable adverse impact to land, air, or water resources including, but not limited to, plant and animal life; (16) “surface coal mining and reclamation operation” means a surface coal mining operation and the activities necessary and incidental to the reclamation of that operation after August 3, 1977; (17) “surface coal mining operations” means (A) an activity (i) conducted on the surface of land in connection with a surface coal mine or, to the extent that the activity affects the surface of land, conducted in connection with an underground coal mine; (ii) the products of which enter commerce or the operation of which directly or indirectly affects interstate commerce; (iii) that may include contour, strip, auger, mountain top removal, boxcut, open pit, and area mining; the use of explosives and blasting; on-site distillation or retorting, leaching, or other chemical or physical processing of coal; and loading of coal for interstate commerce at or near the mine site; (iv) other than an activity relating to the extraction of coal incidental to the extraction of other minerals under which the coal extracted does not exceed 16 2/3 percent of the total tonnage of coal and other minerals removed annually for purposes of commercial use or sale and other than a coal exploration activity subject to this chapter; and (B) the areas on which an activity described in (A) of this paragraph occurs or where the activity disturbs the natural land surface, including adjacent land, the use of which is incidental to the activity; and affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of the activity and for haulage; and excavation, workings, impoundments, dams, ventilation shafts, entry ways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are situated structures, facilities, or other property or materials on the surface resulting from or incidental to the activity; (18) “Surface Mining Control and Reclamation Act of 1977” means P.L. 95-87, 91 Stat. 447-532, 30 U.S.C. secs. 1201-1328, as amended; (19) “unwarranted failure to comply” means the failure of a permittee to prevent or abate a violation of a permit or of this chapter because of indifference, lack of diligence, or lack of reasonable care. Sec. 27.21.999. Short title. This chapter may be cited as the Alaska Surface Coal Mining Control and Reclamation Act.