2018-08-20_REVISION - C1980007 - Laserfiche WebLink

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CENTER for BIOLOGICAL DIVERSITY �WMDEnRTx GunRnurrs A FORCE FOR NATURE ;,��,SIERRA �i�% CLUB P_"Lty C017, � \ o 2 The Applicant has the burden of demonstrating that the application meets the minimum requirements of the Act, Rules, and Regulations. All information submitted in an application must be accurate and complete, and acknowledged as such by the signature of an authorized agent on an application form provided by the Board. MLRB Rule 1.4.1(3). Here, Mountain Coal submitted information to the Division that was incomplete and has since changed significantly since its first application submission. Under such circumstances, the Division should issue a finding of incompleteness. As indicated, on our June 21 and 22 site visit, we were denied access to nearby private lands for purposes of ascertaining the condition of a potential access road. At that time, Mountain Coal indicated the reason for the access denial was that the company lacked any right of entry to access private lands that would be utilized to access the PR -15 area. Additionally, Division staff indicated that the PR -15 application submitted by Mountain Coal was so preliminary that it would preclude any meaningful assessment of whether access via private lands would be more ideal at that point in time. This included that the location of well pads and roads were bound to change and even had changed since the initial application was submitted to the Division in the spring. This raises serious concerns that the Division's April 5, 2018 completeness finding for Mountain Coal's PR -15 application was premature. And, as a consequence, public notice, comment, and the opportunity for site -visit were all commenced prematurely. It is difficult to see how a legitimate completeness determination could be issued, where, as here, the information was not "accurate and complete" as 1.4.1(3) requires. Mountain Coal's right of entry to the private lands was only clarified after the period for public engagement had ended and the requested site -visit had concluded. Attachment 1 (July 6, 2018 letter from the Division to WildEarth Guardians). Although we have been told that this is how the process works, it creates a pattern of allowing additional information without ensuring effective public engagement on the ultimate proposal, violating the spirit of the review period. Importantly, "[a] determination that an application is filed does not constitute a determination that the application adequately meets statutory and regulatory requirements." MLRB Rule 20.1.1.4.5(2). Yet, this appears to be exactly what the Division is doing. The significant changes to the application rise to the level of "substantial" under the rules. MLRB Rule 1.6.6. Specifically, these rules require that: If a notice is in error or a change to the application is so substantial, as determined by the Office, that it affects any of the terms contained in the notice that was published in the newspaper or mailed to the owners of the affected and adjacent lands, or the change is an amendment to the application, the Applicant shall be required to publish and mail a new notice of the application. In the event that the Applicant is required to issue a new notice, all applicable deadlines shall begin to run anew.