(a) No application for a permit or revision which proposes to use an existing structure in connection with or to facilitate the proposed surface coal mining and reclamation operation shall be approved, unless the applicant demonstrates and the Commission finds, in writing, on the basis of information set forth in the complete application that:
  (1) if the applicant proposes to use an existing structure in accordance with exemption provided in §12.9(c)(1)(A) of this title (relating to Applicability):
    (A) the structure meets the performance standards of the Act and Subchapter K of this chapter (relating to Permanent Program Performance Standards); and
    (B) no significant harm to the environment or public health or safety will result from use of the structure;
  (2) if the applicant proposes to use an existing structure in accordance with the exemption provided in §12.9(c)(1)(B) of this title (relating to Applicability):
    (A) the structure meets the performance standards of the Act and the initial regulatory program;
    (B) no significant harm to the environment or public health or safety will result from use of the structure; and
    (C) the performance standards of the initial regulatory program are at least as stringent as the performance standards of Subchapter K of this chapter (relating to Permanent Program Performance Standards); and
  (3) if the Commission finds that the structure meets the criteria of §12.9(c)(1)(B) of this title (relating to Applicability), the Commission shall require the applicant to submit a compliance plan for modification or reconstruction of the structure and shall find prior to the issuance of the permit that:
    (A) the modification or reconstruction of the structure will bring the structure into compliance with the design and performance standards of Subchapter K of this chapter (relating to Permanent Program Performance Standards) as soon as possible, but not later than six months after issuance of the permit;
    (B) the risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction; and
    (C) the applicant will monitor the structure to determine compliance with the performance standards of Subchapter K of this chapter (relating to Permanent Program Performance Standards).
(b) Should the Commission find that the existing structure cannot be reconstructed without causing significant harm to the environment or public health or safety, the applicant will be required to abandon the existing structure. The structure shall not be used for or to facilitate surface coal mining operations after the effective date of issuance of the permanent regulatory program permit. Abandonment of the structure shall proceed on a schedule approved by the Commission, in compliance with §§12.398 or 12.567 of this title (relating to Cessation of Operations: Permanent).

Source Note: The provisions of this §12.217 adopted to be effective April 7, 1997, 22 TexReg 3093.