Section 312IAC25-4-122.2. Burden of proof for ownership or control challenges

  2. (a) Upon challenge of a listing of ownership or control or a finding of ownership or control made under section 114 of this rule, the applicant or a person with an interest that is or may be adversely affected must prove by a preponderance of the evidence that the challenger either:

(1) does not own or control the entire surface coal mining operation or relevant portion or aspect thereof; or

(2) did not own or control the entire operation or relevant portion or aspect thereof during the relevant time period.

  (b) In meeting the burden of proof, a challenger must present reliable, credible, and substantial evidence and any explanatory materials to the director. The materials presented in connection with the challenge will become part of the permit file, an investigation file, or another public file. If requested, the director will hold as confidential any information submitted under this section that is not required to be made available to the public under sections 15 and 113 of this rule.

  (c) Materials that may be submitted in response to the requirements of subsection (b) include, but are not limited to, the following:

(1) Notarized affidavits containing specific facts concerning the duties performed for the relevant operation, the beginning and ending dates of ownership or control of the operation, and the nature and details of any transaction creating or severing ownership or control of the operation.

(2) Certified copies of corporate minutes, stock ledgers, contracts, purchase and sale agreements, leases, correspondence, or other relevant company records.

(3) Certified copies of documents filed with or issued by any state, municipality, or federal governmental agency.

(4) An opinion of counsel, when supported by the following:

(A) Evidentiary materials.

(B) A statement by counsel that he or she is qualified to render the opinion.

(C) A statement that counsel has personally and diligently investigated the facts of the matter.

(Natural Resources Commission; 312 IAC 25-4-122.2; filed Apr 13, 2011, 11:16 a.m.: 20110511-IR-312100547FRA, eff Jul 25, 2012; readopted filed Sep 19, 2013, 10:12 a.m.: 20131016-IR-312130125RFA)