Administrative Code

Virginia Administrative Code
6/28/2022

Part 740. General Requirements for Surface Coal Mining and Reclamation Operations on Federal Lands

4VAC25-130-740.1. Scope and purpose.

This Subchapter provides for the regulation of surface coal mining and reclamation operations on Federal lands located in the Commonwealth and shall become effective when the Director and the Secretary of the Interior enter into a cooperative agreement pursuant to 30 CFR 745.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 740.1, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994.

4VAC25-130-740.4. Responsibilities.

(a) The Secretary is responsible for:

(1) Approval, disapproval or conditional approval of mining plans with respect to lands containing leased Federal coal and of modifications thereto, in accordance with the Mineral Leasing Act of 1920, as amended, 30 USC § 181 et seq.;

(2) Execution, modification or termination of State-Federal cooperative agreements in accordance with 30 CFR 745; and

(3) Designation of areas of Federal lands as unsuitable for all or certain types of surface coal mining and reclamation operations, or termination of such designations, in accordance with 30 CFR 769.

(4) Determination of valid existing rights for surface coal mining and reclamation operations on Federal lands within the boundaries of any areas specified under Section 522(e)(1) or (2) of the Federal Act.

(5) Determination that there are no significant recreational, timber, economic, or other values which may be incompatible with surface coal mining and reclamation operations on any Federal lands within the boundaries of any national forest under Section 522(e)(2) of the Federal Act.

(b) The OSM is responsible for:

(1) Providing a decision document recommending to the Secretary approval, disapproval or conditional approval of mining plans and of modifications thereto;

(2) Approval of experimental practices on Federal lands;

(3) Inspection, enforcement and civil penalties with respect to surface coal mining and reclamation operations on Federal lands except as provided in Paragraph (c)(5) of this section;

(4) Processing citizen requests for Federal inspections on Federal lands in accordance with 30 CFR 842, 843 and 845; and

(5) Overseeing the division's administration and enforcement of the State program on Federal lands pursuant to the terms of the cooperative agreement.

(c) The following responsibilities of the OSM may be delegated to the division under the cooperative agreement:

(1) Review and approval, conditional approval or disapproval of permit applications for surface coal mining and reclamation operations on Federal lands, revisions or renewals thereof, and applications for the transfer, sale or assignment of such permits;

(2) Consultation with and obtaining the consent, as necessary, of the Federal land management agency with respect to post-mining land use and to any special requirements necessary to protect non-coal resources of the areas affected by surface coal mining and reclamation operations;

(3) Consultation with and obtaining the consent, as necessary, of the Bureau of Land Management with respect to requirements relating to the development, production and recovery of mineral resources on lands affected by surface coal mining and reclamation operations involving leased Federal coal pursuant to 43 CFR 3400;

(4) Approval and release of performance bonds, liability insurance and, as applicable, Federal lessee protection bonds required for surface coal mining and reclamation operations on Federal lands. Approval and release of Federal lessee protection bonds requires the concurrence of the Federal land management agency;

(5) Inspection, enforcement and civil penalty activities for (i) exploration operations not subject to 43 CFR 3480-3487, and (ii) surface coal mining and reclamation operations on Federal lands;

(6) Review and approval of exploration operations not subject to the requirements of 43 CFR 3480-3487; and

(7) Preparation of documentation to comply with the requirements of the National Environmental Policy Act (NEPA) (42 USC § 4321 et seq.), except, the OSM shall continue to be responsible for:

(i) Determining the scope, content and format and ensuring the objectivity of NEPA compliance documents;

(ii) Making the determination of whether or not the preparation of an environmental impact statement is required;

(iii) Notifying and soliciting views of other State and Federal agencies, as appropriate, on the environmental effects of the proposed action;

(iv) Publishing and distributing draft and final NEPA compliance documents;

(v) Making policy responses to comments on draft NEPA compliance documents;

(vi) Independently evaluating NEPA compliance documents; and

(vii) Adopting NEPA compliance documents and determining Federal actions to be taken on alternatives presented in such documents.

(d) The Bureau of Land Management is responsible for:

(1) Receiving and approving exploration plans pursuant to 43 CFR 3480-3487;

(2) Inspection, enforcement and civil penalties with respect to the terms and conditions of coal exploration licenses issued pursuant to 43 CFR 3400;

(3) Inspection, enforcement and civil penalties with respect to the terms and conditions of exploration operations subject to 43 CFR 3480-3487;

(4) Reviewing the resource recovery and protection plan and modifications thereto, as required by 43 CFR 3480-3487 and recommending to the Secretary approval, disapproval or conditional approval of the resource recovery and protection plan;

(5) Inspection, enforcement and civil penalties with respect to the recovery and protection of the coal resource as required by 43 CFR 3480-3487;

(6) Protecting mineral resources not included in the coal lease;

(7) Issuance of exploration licenses for Federal coal subject to the requirements of 43 CFR 3400;

(8) Issuance of leases and licenses to mine Federal coal subject to the requirements of 43 CFR 3400; and

(9) Issuance, readjustment, modification, termination, cancellation, and approval of transfers of Federal coal leases pursuant to the Mineral Leasing Act and the Mineral Leasing Act for Acquired Lands of 1947, as amended, 30 USC § 351 et seq.

(e) The Federal land management agency is responsible for:

(1) Determining post-mining land uses;

(2) Protection of non-mineral resources;

(3) Requiring such conditions as may be appropriate to regulate surface coal mining and reclamation operations under other provisions of law applicable to such lands under its jurisdiction; and

(4) Where land containing leased Federal coal is under the surface jurisdiction of a Federal agency other than the Department of the Interior, concur in the terms of the mining plan approval.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 740.4, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994.

4VAC25-130-740.11. Applicability.

(a) Upon approval of a cooperative agreement between the Commonwealth and the Secretary this Subchapter shall apply to:

(1) Coal exploration operations on Federal lands not subject to 43 CFR 3480-3487;

(2) Surface coal mining and reclamation operations on lands containing leased Federal coal; and

(3) Surface coal mining and reclamation operations on lands in Virginia where either the coal to be mined or the surface is owned by the United States.

(b) The cooperative agreement shall delineate the responsibilities of the Secretary and the Commonwealth with respect to the administration of the regulatory program and this Subchapter.

(c) Nothing in this Subchapter shall affect in any way the authority of the Secretary or any Federal land management agency to include in any lease, license, permit, contract, or other instrument such conditions as may be appropriate to regulate surface coal mining and reclamation operations under provisions of law other than the Federal Act on land under their jurisdiction.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 740.11, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994.

4VAC25-130-740.13. Permits.

(a) General requirements.

(1) No person shall conduct surface coal mining operations on lands subject to this Part unless that person has first obtained a permit issued pursuant to this Part.

(2) Every person conducting surface coal mining and reclamation operations on lands subject to this Part shall comply with the terms and conditions of the permit and the lease or license, the Federal Act, 30 CFR Subchapter D, Virginia's regulatory program and all other applicable State and Federal laws and regulations.

(b) Permit application package.

(1) Each application for a permit, or permit revision or renewal thereof to conduct surface coal mining and reclamation operations on lands subject to this Part shall be accompanied by a permit fee required by 4VAC25-130-777.17 and made payable to the Treasurer of Virginia.

(2) Seven copies of the complete permit application package shall be filed with the division.

(3) Each permit application package shall include:

(i) The information required for a permit application or for an application for revision or renewal of a permit pursuant to Subchapter VG;

(ii) The resource recovery and protection plan required by 43 CFR 3480-3487 for operations on lands containing leased Federal coal; and

(iii) Where the proposed operations are on lands containing leased Federal coal, the following supplemental information to ensure compliance with Federal laws and regulations other than the Federal Act:

(A) A description of the affected area of the proposed surface coal mining and reclamation operation with respect to:

(1) Increases in employment, population and revenues to public and private entities, and

(2) the ability of public and private entities to provide goods and services necessary to support surface coal mining and reclamation operations.

(B) An evaluation of impacts to the scenic and aesthetic resources, including noise on the surrounding area, due to the proposed surface coal mining and reclamation operation.

(C) A statement, including maps and ownership data as appropriate, of any cultural or historical sites listed on the National Register of Historic Places within the affected area of the proposed surface coal mining and reclamation operation.

(D) A statement of the classes of properties of potential significance within the disturbed area, and a plan for the identification and treatment, in accordance with 36 CFR 800, of properties significant and listed or eligible for listing on the National Register of Historic Places within the disturbed area of the proposed surface coal mining and reclamation operation.

(E) A description of the probable changes in air quality resulting from the mining operation and any necessary measures to comply with prevention of significant deterioration limitations, State Implementation Plans, or other Federal or State laws for air quality protection.

(F) A description of the location, acreage and condition of important habitats of selected indicator species located within the affected area of the proposed surface coal mining and reclamation operation.

(G) A description of active and inactive nests and prey areas of any Bald or Golden eagles located within the affected area of the proposed surface coal mining and reclamation operations.

(H) A description of all threatened and endangered species and their critical habitats located within the affected area of the proposed surface coal mining and reclamation operations.

(4) Where the surface of the Federal lands is subject to a lease or permit issued by the Federal government to a person other than the applicant, the permit application package shall contain information sufficient to demonstrate compliance with the requirements of 4VAC25-130-740.15(c)(1).

(c) Permit review and processing. Applications for permits, permit revisions or renewals thereof to conduct surface coal mining and reclamation operations on land subject to this Subchapter shall be reviewed and processed in accordance with Subchapter VG, subject to the following additional requirements:

(1) Permit terms and conditions. Permits shall include, as applicable, terms and conditions required by the lease issued pursuant to the Mineral Leasing Act and by other applicable Federal laws and regulations.

(2) Criteria for permit approval or denial. The division shall not approve an application for a permit, or permit revision or renewal thereof for surface coal mining and reclamation operations on lands subject to this Part unless the application is in accordance with the requirements of Subchapter VG and the cooperative agreement.

(3) Public participation in permit review process. Where public hearings were held and determinations made under section 2(a)(3)(A), (B) and (C) of the Mineral Leasing Act (30 USC § 201(a)(3)(A), (B) and (C)), such hearings may be made a part of the record of each public hearing on a permit application held pursuant to the requirements of the Virginia regulatory program and 30 CFR 740. Matters covered at such hearings and determinations made at such hearings need not be readdressed.

(4) Permit review processing for operations on lands administered by a Federal land management agency. Upon receipt of a permit application package or a proposed revision or renewal of an approved permit that involves surface coal mining and reclamation operations on lands administered by an agency of the Federal Government, the division shall transmit a copy of the complete permit application package, or proposed revision or renewal thereof, to the Federal land management agency, with a request for review and comment.

(5) Consultation with other Federal agencies. Prior to approving or disapproving a permit, permit revision or renewal thereof, the division shall consider the comments of the Federal land management agency and include these comments in the record of permit decisions.

(6) Permit processing schedule. The division shall process the permit application package within the time schedule established by 4VAC25-130-773.15, except that the schedule may be extended if necessary to ensure compliance with Federal laws and regulations other than the Federal Act.

(7) Bonds and insurance required for issuance of permits. After the approval of an application for a new or revised permit or for renewal of an existing permit, but prior to issuance of such permit, the applicant/permittee shall file with the division: (i) a performance bond which meets the requirements of Subchapter VJ; (ii) proof of liability insurance in accordance with 4VAC25-130-800.60; and (iii) where required, evidence of the execution of a Federal lessee protection bond.

(d) Review of permit revisions.

(1) The division shall inform the OSM of each request for a permit revision with respect to operations on lands containing leased Federal coal.

(2) The OSM shall review each permit revision in consultation with the Bureau of Land Management and the appropriate Federal land management agency to determine whether the permit revision constitutes a mining plan modification requiring the Secretary's approval under 30 CFR 746.18.

(3) The division shall consult with the Federal land management agency to determine whether any permit revision will adversely affect Federal resources other than coal and whether the revision is consistent with that agency's land use plans for other Federal laws, regulations and executive orders for which it is responsible.

(e) Transfer, assignment or sale of rights.

(1) The division, before approving or disapproving an application for transfer, assignment or sale of rights granted under a permit issued pursuant to this Subchapter, shall consult with the appropriate Federal land management agency and the Bureau of Land Management, as applicable.

(2) Approval of a transfer, assignment or sale of rights granted under a permit issued pursuant to this Subchapter shall not be construed to constitute a transfer or assignment of leasehold interests. Leasehold interests may be transferred or assigned only in accordance with 43 CFR 3453.

(f) Suspension or revocation of permits.

(1) A permit to conduct surface coal mining and reclamation operations on Federal lands may be suspended or revoked by the division in accordance with Part 843.

(2) If a permit to conduct surface coal mining and reclamation operations on lands containing leased Federal coal is suspended or revoked, the division shall notify the Bureau of Land Management so that it may determine whether action should be taken to cancel the Federal lease. This section does not release the Federal lessee from the diligent development or continued operation requirements of 43 CFR 3480-3487.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 740.13, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994.

4VAC25-130-740.15. Bonds on federal lands.

(a) Federal lease bonds.

(1) Each holder of a Federal coal lease that is covered by a Federal lease bond required under 43 CFR 3474 may apply to the authorized officer of the Federal agency that has administrative jurisdiction over the Federal lands for release of liability for that portion of the Federal lease bond that covers reclamation requirements.

(2) The authorized officer may release the liability for that portion of the Federal lease bond that covers reclamation requirements if:

(i) The lessee has secured a suitable performance bond covering the permit area under this Part;

(ii) There are no pending actions or unresolved claims against existing bonds; and

(iii) The authorized officer has received concurrence from the OSM and the Bureau of Land Management.

(b) Performance bonds. The performance bonds required for operations on Federal lands shall be made payable to the United States and the Commonwealth of Virginia: Director-Division of Mined Land Repurposing.

(c) Federal lessee protection bonds.

(1) Where leased Federal coal is to be mined and the surface of the land is subject to a lease or permit issued by the United States for purposes other than surface coal mining, the applicant for a mining permit, if unable to obtain the written consent of the permittee or lessee of the surface to enter and commence surface coal mining operations, shall submit to the division with the application evidence of execution of a bond or undertaking which meets the requirements of this section. The Federal lessee protection bond is in addition to the performance bond required by Subchapter VJ. This section does not apply to permits or licenses for the use of the surface that do not convey to the permittee or licensee the right of transfer, sale or consent to other uses.

(2) The bond shall be payable to the United States for the use and benefit of the permittee or lessee of the surface lands involved.

(3) The bond shall secure payment to the surface estate for any damage which the surface coal mining and reclamation operation causes to the crops or tangible improvements of the permittee or lessee of the surface lands.

(4) The amount of the bond shall be determined either by the applicant and the Federal lessee or permittee, or if an agreement cannot be reached, as determined in an action brought against the person conducting surface coal mining and reclamation operations or upon the bond in a court of competent jurisdiction.

(d) Release of bonds.

(1) A Federal lease bond may be released by the OSM upon satisfactory compliance with all applicable requirements of 43 CFR 3480-3487 and 43 CFR 3400 and after the release is approved by the Bureau of Land Management.

(2) A Federal lessee protection bond shall be released by the OSM upon the written consent of the permittee or lessee.

(3) Where surface coal mining and reclamation operations are subject to an approved mining plan, a performance bond shall be released by the division after the release is approved by the OSM.

Statutory Authority

§ 45.2-103 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 740.4, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994; Volume 38, Issue 13, eff. March 31, 2022.

4VAC25-130-740.17. Inspection, enforcement and civil penalties.

(a)(1) General requirements. Under an approved cooperative agreement, Subchapter VL shall govern inspection, enforcement and civil penalty activities by the division with respect to surface coal mining and reclamation operations on Federal lands, while the requirements of 30 CFR 842, 843 and 845 shall govern the OSM inspection, enforcement and civil penalty activities conducted in oversight of Virginia's program.

(2) The requirements of this section shall not apply to coal exploration on Federal lands subject to the requirements of 43 CFR 3480-3487.

(b) Right of entry.

(1) Persons engaging in coal exploration or surface coal mining and reclamation operations on Federal lands shall provide access for any authorized officer of the OSM, the Director, and, as applicable, the Bureau of Land Management or the appropriate Federal land management agency to inspect the operations, without advance notice or a search warrant and upon presentation of appropriate credentials, to determine whether the operations are in compliance with all applicable laws, regulations, notices and orders, and terms and conditions of the permit.

(2) Any authorized representative of the Director and, as applicable, the Bureau of Land Management may, at reasonable times and without delay, have access to and copy any records and inspect any monitoring equipment or method of operation required under the Act, this Subchapter and the permit, lease, license or mining plan in accordance with Paragraph (a) of this section.

(3) No search warrant shall be required with respect to any activity under Paragraph (a) or (b) of this section, except entry into a building without consent of the person in control of the building.

(c) Inspections. Inspections shall, to the extent practical, be conducted jointly if more than one government agency is involved. The division shall coordinate inspections by Federal agencies and may request the participation of representatives from other Federal agencies when necessary to ensure compliance with this Subchapter and other applicable Federal laws, regulations and orders.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 740.17, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994.

4VAC25-130-740.19. Performance standards.

(a) Operations and reclamation.

(1) Surface coal mining and reclamation operations on lands subject to this Part shall be conducted in accordance with Subchapter VK.

(2) Surface coal mining and reclamation operations on lands containing leased Federal coal shall also be conducted in accordance with the requirements of the terms, conditions and stipulations of the lease issued under the Mineral Leasing Act and its implementing regulations in 43 CFR 3480-3487, as applicable, and the mining plan.

(b) Completion of operations and abandonment.

(1) Upon completion of operations, bonds shall be released in accordance with 4VAC25-130-740.15(d).

(2) Where there is a Federal lease bond:

(i) Not less than 30 days prior to permanent cessation or abandonment of surface coal mining and reclamation operations, the person conducting those operations shall submit to the OSM, in duplicate, a notice of intention to cease or abandon those operations, with a statement of the number of acres affected by the operations, the extent and kind of reclamation accomplished and the structures and other facilities that are to be removed from or remain on the permit area.

(ii) Upon receipt of this notice, the Bureau of Land Management and the appropriate Federal land management agency shall promptly make joint inspections to determine whether all operations have been completed in accordance with the requirements of 43 CFR 3480-3487, the lease or licenses and the mining plan. Where all of these requirements have been complied with, the liability under the lease bond of the person conducting surface coal mining and reclamation operations shall be terminated.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 740.19, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994.

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