444.773. Director to investigate applications--recommendation--public meeting or hearing--denial of permit, when.
Director to investigate applications--recommendation--public meetingor hearing--denial of permit, when.
444.773. 1. All applications for a permit shall be filed with thedirector, who shall promptly investigate the application and make arecommendation to the commission within four weeks after the public noticeperiod provided in section 444.772 expires as to whether the permit shouldbe issued or denied. If the director determines that the application hasnot fully complied with the provisions of section 444.772 or any rule orregulation promulgated pursuant to that section, the director shallrecommend denial of the permit. The director shall consider any writtencomments when making his or her recommendation to the commission on theissuance or denial of the permit.
2. If the recommendation of the director is to deny the permit, ahearing as provided in sections 444.760 to 444.790, if requested by theapplicant within fifteen days of the date of notice of recommendation ofthe director, shall be held by the commission.
3. If the recommendation of the director is for issuance of thepermit, the director shall issue the permit without a public meeting or ahearing except that upon petition, received prior to the date of the noticeof recommendation, from any person whose health, safety or livelihood willbe unduly impaired by the issuance of this permit, a public meeting or ahearing may be held. If a public meeting is requested pursuant to thischapter and the applicant agrees, the director shall, within thirty daysafter the time for such request has passed, order that a public meeting beheld. The meeting shall be held in a reasonably convenient location forall interested parties. The applicant shall cooperate with the director inmaking all necessary arrangements for the public meeting. Within thirtydays after the close of the public meeting, the director shall recommend tothe commission approval or denial of the permit. If the public meetingdoes not resolve the concerns expressed by the public, any person whosehealth, safety or livelihood will be unduly impaired by the issuance ofsuch permit may make a written request to the land reclamation commissionfor a formal public hearing. The land reclamation commission may grant apublic hearing to formally resolve concerns of the public. Any publichearing before the commission shall address one or more of the factors setforth in this section.
4. In any hearing held pursuant to this section the burden of proofshall be on the applicant for a permit. If the commission finds, based oncompetent and substantial scientific evidence on the record, that aninterested party's health, safety or livelihood will be unduly impaired bythe issuance of the permit, the commission may deny such permit. If thecommission finds, based on competent and substantial scientific evidence onthe record, that the operator has demonstrated, during the five-year periodimmediately preceding the date of the permit application, a pattern ofnoncompliance at other locations in Missouri that suggests a reasonablelikelihood of future acts of noncompliance, the commission may deny suchpermit. In determining whether a reasonable likelihood of noncompliancewill exist in the future, the commission may look to past acts ofnoncompliance in Missouri, but only to the extent they suggest a reasonablelikelihood of future acts of noncompliance. Such past acts ofnoncompliance in Missouri, in and of themselves, are an insufficient basisto suggest a reasonable likelihood of future acts of noncompliance. Inaddition, such past acts shall not be used as a basis to suggest areasonable likelihood of future acts of noncompliance unless thenoncompliance has caused or has the potential to cause, a risk to humanhealth or to the environment, or has caused or has potential to causepollution, or was knowingly committed, or is defined by the United StatesEnvironmental Protection Agency as other than minor. If a hearingpetitioner or the commission demonstrates either present acts ofnoncompliance or a reasonable likelihood that the permit seeker or theoperations of associated persons or corporations in Missouri will be innoncompliance in the future, such a showing will satisfy the noncompliancerequirement in this subsection. In addition, such basis must be developedby multiple noncompliances of any environmental law administered by theMissouri department of natural resources at any single facility in Missourithat resulted in harm to the environment or impaired the health, safety orlivelihood of persons outside the facility. For any permit seeker that hasnot been in business in Missouri for the past five years, the commissionmay review the record of noncompliance in any state where the applicant hasconducted business during the past five years. Any decision of thecommission made pursuant to a hearing held pursuant to this section issubject to judicial review as provided in chapter 536, RSMo. No judicialreview shall be available, however, until and unless all administrativeremedies are exhausted.
(L. 1990 H.B. 1584, A.L. 2001 H.B. 453)