SECTION 460:20-7-3. Definitions

  For the purposes of this Subchapter:

"Cemetery" means any area of land where human bodies are interred. Community or institutional building means any structure, other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental-health or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation or sewage treatment.

"Community or institutional building" means any structure, other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings, or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental-health, or physical-health care facility; or is used for public services, including, but not limited to, water supply, power generation, or sewage treatment.

"Occupied dwelling" means any building that is currently being used on a regular or temporary basis for human habitation.

"Publicly-owned park" means a public park that is owned by a Federal, State or local governmental entity.

"Public building" means any structure that is owned or leased, and principally used by a governmental agency for public business or meetings.

"Public park" means an area or portion of an area dedicated or designated by any Federal, State, or local agency primarily for public recreational use, whether or not such use is limited to certain times or days, including any land leased, reserved, or held open to the public because of that use.

"Public road" means a road:

(A)   Which has been designated as a public road pursuant to the laws of the jurisdiction in which it is located;

(B)   Which is maintained with public funds in a manner similar to other public roads of the same classification within the jurisdiction;

(C)   For which there is substantial (more than incidental) public use; and

(D)   Which meets road construction standards forother public roads of the same classification in the local jurisdiction.

"Significant forest cover" means an existing plant community consisting predominantly of trees and other woody vegetation.

"Significant recreational, timber, economic, or other values incompatible with surface coal mining operations" means those significant values which could be damaged by, and are not capable of existing together with, surface coal mining operations because of the undesirable effects mining would have on those values, either on the area included in the permit application or on off-site areas which could be affected by mining. Those values to beevaluated for their importance include:

(A)   Recreation, including hiking, boating, camping, skiing or other related outdoor activities;

(B)   Timber management and silviculture;

(C)   Agriculture, aquaculture or production of other natural, processed or manufactured products which enter commerce;

(D)   Scenic, historic, archaeologic, esthetic, fish, wildlife, plants or cultural interests.

"Surface operations and impacts incident to an underground coal mine" means all activities involved in or related to underground coal mining which are either conducted on thesurface of the land, produce changes in the land surface or disturb the surface, air, or water resources of the area, including all activities listed in 45 O.S. Section 742.2(49) and the definition of surface coal mining operations appearing in Section 460:20-1-5.

"Valid existing rights" means: a set of circumstances under which a person may, subject to the Department's approval, conduct surface coal mining operations on lands where 45 O.S. Section 783 and Section 460:20-7-4 would otherwise prohibit such operations. Possession of valid existing rights only confers an exception from the prohibitions of 45 O.S. Section 783 and Section 460:20-7-4. A person seeking to exercise valid existing rights must comply with all other pertinent requirements of the Act and this Chapter.

(A)    Property rights demonstration. Except as provided in paragraph (C) of this definition, a person claiming valid existing rights must demonstrate that a legally binding conveyance, lease, deed, contract, or other document vests that person, or a predecessor in interest, with the right to conduct the type of surface coal mining operationsintended. This right must exist at the time that the land came under the protection of 45 O.S. Section 783 and Section 460:20-7-4. Applicable State statutory or case law will govern interpretation of documents relied upon to establish property rights, unless Federal law provides otherwise. If no applicable State law exists, custom and generally accepted usage at the time and place that the documents came into existence will govern their interpretation.

(B)    Except as provided in paragraph (C) of this definition, a person claiming valid existing rights also must demonstrate compliance with one of the following standards:

(i)   Good faith/all permits standard. All permits and other authorizations required to conduct surface coal mining operations had been obtained, or a good faith effort to obtain all necessary permits and authorizations had been made, before the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783. At a minimum, an application must have been submitted for any permit required under this chapter.

(ii)   Needed for and adjacent standard. The land is needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations required to conduct surface coal mining operations had been obtained, or a good faith attempt to obtain all permits and authorizations had been made, before the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783. To meet this standard, a person must demonstrate that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783. Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of Section 460:20-7-4 and 45 O.S. Section 783 when the regulatory authority approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made. In evaluating whether a person meets this standard, the agency making the determination may consider factors such as:

(I)   The extent to which coal supply contracts or other legal and business commitments that predate the time that the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783 depend upon use of that land for surface coal mining operations.

(II)   The extent to which plans used to obtain financing for the operation before the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783 rely upon use of that land for surface coal mining operations.

(III)   The extent to which investments in the operation before the land came under the protection of Section 20-7-4 and 45 O.S. Section 783 rely upon use of that land for surface coal mining operations.

(IV)   Whether the land lies within the area identified on the life-of-mine map submitted under Sections 460:20-25-10(3) and 460:20-29-10(3) ofthis Chapter before the land came under the protection of Section 460:20-7-4 of this Chapter.

(C)   Roads. A person who claims valid existing rights to use or construct a road across the surface of lands protected by Section.460:20-7-4 or 45 O.S. Section 783 must demonstrate that one or more of the following circumstances exist if the road is included within the definition of "surface coal mining operations" in Section 460:20-1-5 of this chapter:

(i)   The road existed when the land upon which it is located came under the protection of Section 460:20-7-4 and 45 O.S. Section 783, and the person has a legal right to use the road for surface coal mining operations.

(ii)   A properly recorded right of way or easement for a road in that location existed when the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783, and, under the document creating the right of way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement for surface coal mining operations.

(iii)   A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of Section 460:20-7-4 and 45 O.S. Section 783.

(iv)   Valid existing rights exist under Paragraphs (A) and (B) of this definition.

(D)   "Valid existing rights" does not mean mere expectation of a right to conduct surface coal mining operations or the right to conduct underground coal mining. Examples of rights which alone do not constitute valid existing rights include, but are not limited to coal exploration permits or licenses, applications or bids for leases, or where a person has only applied for a State or Federal permit.

[Source: Amended at 16 Ok Reg 3526, eff 9-13-99; Amended at 19 Ok Reg 2841, eff 8-27-02]