Administrative Code

Virginia Administrative Code
1/18/2022

Part 761. Areas Designated by Act of Congress

4VAC25-130-761.1. Scope.

This Part establishes the procedures and standards to be followed in determining whether a proposed surface coal mining and reclamation operation can be authorized in light of the prohibitions and limitations in Section 45.1-252 of the Act for those types of operations on certain Federal, public and private lands in the Commonwealth.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 761.1, 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.

4VAC25-130-761.3. Authority.

The Director is authorized by Section 45.1-252 of the Act to prohibit or limit surface coal mining operations on or near certain private, Federal, and other public lands, subject to valid existing rights and except for those operations which existed on August 3, 1977.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 761.3, 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.

4VAC25-130-761.11. Areas where mining is prohibited or limited.

Subject to valid existing rights, no surface coal mining operations shall be conducted after August 3, 1977, unless those operations existed on the date of enactment:

(a) On any lands within the boundaries of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers Systems including, for study rivers designated under section 5(a) of the Wild and Scenic Rivers Act (16 USC § 1276(a)), a corridor extending at least one-quarter mile from each bank for the length of the segment being studied, and National Recreation Areas designated by Act of Congress;

(b) On any Federal lands within the boundaries of any national forest; provided, however, that surface coal mining operations may be permitted on such lands, if the Secretary finds that there are no significant recreational, timber, economic, or other values which may be incompatible with surface coal mining operations; and surface operations and impacts are incident to an underground coal mine.

(c) On any lands where mining will adversely affect any publicly owned park or any place included in the National Register of Historic Places, unless approved jointly by the division and the Federal, State, or local agency with jurisdiction over the park or place;

(d) Within 100 feet, measured horizontally, of the outside right-of-way line of any public road, except--

(1) Where mine access roads or haulage roads join such right-of-way line; or

(2) Where the division or the appropriate public road authority, pursuant to being designated as the responsible agency by the Director, allows the public road to be relocated, closed, or the area affected to be within 100 feet of such road, after--

(i) Public notice and opportunity for a public hearing in accordance with 4VAC25-130-761.12(d); and

(ii) Making a written finding that the interests of the affected public and landowners will be protected;

(e) Within 300 feet, measured horizontally, of any occupied dwelling, except when--

(1) The owner of the dwelling has provided a written waiver consenting to surface coal mining operations closer than 300 feet; or

(2) The part of the mining operation which is within 300 feet of the dwelling is a haul road or access road which connects with an existing public road on the side of the public road opposite the dwelling;

(f) Within 300 feet measured horizontally of any public building, school, church, community or institutional building or public park; or

(g) Within 100 feet measured horizontally of a cemetery.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 761.11, 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; Volume 29, Issue 13, eff. March 27, 2013.

4VAC25-130-761.12. Procedures.

(a) Upon receipt of a complete application for a surface coal mining and reclamation operation permit, the division shall review the application to determine whether surface coal mining operations are limited or prohibited under 4VAC25-130-761.11 on the lands which would be disturbed by the proposed operations.

(b)(1) Where the proposed operation would be located on any lands listed in 4VAC25-130-761.11(a), (f), or (g), the division shall reject the application if the applicant has no valid existing rights for the area, or if the operation did not exist on August 3, 1977.

(2) If the division is unable to determine whether the proposed operation is located within the boundaries of any of the lands in 4VAC25-130-761.11(a) or closer than the limits provided in 4VAC25-130-761.11(f) and (g), the division shall transmit a copy of the relevant portions of the permit application to the appropriate Federal, State, or local government agency for a determination or clarification of the relevant boundaries or distances, with a notice to the appropriate agency that it has 30 days from receipt of the request in which to respond. The National Park Service or the U.S. Fish and Wildlife Service shall be notified of any request for a determination of valid existing rights pertaining to areas within the boundaries of areas under their jurisdiction and shall have 30 days from receipt of the notification in which to respond. The division, upon written request by the appropriate agency, shall grant an extension to the 30-day period of an additional 30 days. If no response is received within the 30-day period or within the extended period granted, the division may make the necessary determination based on the information it has available.

(c) Where the proposed operation would include Federal lands within the boundaries of any national forest, and the applicant seeks a determination that mining is permissible under 30 CFR 761.11(b), the applicant shall submit a permit application to the Director of the OSM for processing under 30 CFR Subchapter D. Before acting on the permit application, the Director of the OSM shall ensure that the Secretary's determination has been received and the findings required by Section 522(e)(2) of the Federal Act have been made.

(d) Where the mining operation is proposed to be conducted within 100 feet, measured horizontally, of the outside right-of-way line of any public road (except as provided in 4VAC25-130-761.11(d)(2)) or where the applicant proposes to relocate or close any public road, the division or public road authority designated by the Director shall--

(1) Require the applicant to obtain necessary approvals of the authority with jurisdiction over the public road;

(2) Provide an opportunity for a public hearing in the locality of the proposed mining operation for the purpose of determining whether the interests of the public and affected landowners will be protected;

(3) If a public hearing is requested in writing, provide advance notice of the public hearing, to be published in a newspaper of general circulation in the affected locale at least 2 weeks prior to the hearing; and

(4) Make a written finding based upon information received at the public hearing within 30 days after completion of the hearing, or after any public comment period ends if no hearing is held, as to whether the interests of the public and affected landowners will be protected from the proposed mining operation. No mining shall be allowed within 100 feet of the outside right-of-way line of a road, nor may a road be relocated or closed, unless the division or public road authority determines that the interests of the public and affected landowners will be protected.

(e)(1) Where the proposed surface coal mining operations would be conducted within 300 feet, measured horizontally, of any occupied dwelling, the permit applicant shall submit with the application a written waiver by lease, deed, or other conveyance from the owner of the dwelling, clarifying that the owner and signator had the legal right to deny mining and knowingly waived that right. The waiver shall act as consent to such operations within a closer distance of the dwelling as specified.

(2) Where the applicant for a permit after August 3, 1977, had obtained a valid waiver prior to August 3, 1977, from the owner of an occupied dwelling to mine within 300 feet of such dwelling, a new waiver shall not be required.

(3)(i) Where the applicant for a permit after August 3, 1977, had obtained a valid waiver from the owner of an occupied dwelling, that waiver shall remain effective against all persons acquiring any interest in the dwelling, whether by purchase, gift, as a creditor, or in any other way, who had actual or constructive knowledge of the existing waiver at the time of acquisition of the interest.

(ii) All persons acquiring any interest, whether by purchase, gift, as a creditor or in any other way, in a dwelling, after a valid waiver has been obtained under this Paragraph (e), shall be considered to have constructive knowledge of the waiver if the waiver has been properly recorded in the Clerk's Office of the Circuit Court of the county or city in which the dwelling is located, or if the mining has proceeded to within the 300-foot limit prior to the date of acquisition.

(f)(1) Where the division determines that the proposed surface coal mining operation will adversely affect any publicly owned park or any place included in the National Register of Historic Places, the division shall transmit to the Federal, State, or local agency with jurisdiction over the publicly owned park or publicly owned National Register place a copy of applicable parts of the permit application, together with a request for that agency's approval or disapproval of the operation, and a notice to that agency that it has 30 days from receipt of the request within which to respond and that failure to interpose a timely objection will constitute approval. The division, upon written request by the appropriate agency, may grant an extension to the 30-day period of an additional 30 days. Failure to interpose an objection within 30 days or the extended period granted shall constitute an approval of the proposed permit application.

(2) A permit for the operation shall not be issued unless jointly approved by all affected agencies;

(g) If the division determines that the proposed surface coal mining operation is not prohibited under Section 45.1-252 of the Act and this Part, the Director may nevertheless, pursuant to appropriate petitions, designate such lands as unsuitable for all or certain types of surface coal mining operations pursuant to Part 762 or 764.

(h) A determination by the division that a person holds or does not hold valid existing rights or that surface coal mining operations did or did not exist on the date of enactment shall be subject to administrative and judicial review under 4VAC25-130-775.11 and 4VAC25-130-775.13.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 761.12, 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.

4VAC25-130-761.13. Exception for existing operations.

The prohibitions and limitations of 4VAC25-130-761.11 do not apply to surface coal mining operations for which a valid permit issued under Subchapter VG of this chapter exists when the land comes under the protection of 4VAC25-130-761.11. This exception applies only to lands within the permit area as it exists when the land comes under the protection of 4VAC25-130-761.11.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 29, Issue 13, eff. March 27, 2013.

4VAC25-130-761.16. Submission and processing of requests for valid existing rights determinations.

A. Basic framework for valid existing rights determinations. 30 CFR 761.16(a) identifies the agency responsible for making a valid existing rights determination and the definition that it must use based upon which subsection of 30 CFR 761.11 or 4VAC25-130-761.11 applies and whether the request includes federal lands.

B. A request for a valid existing rights determination must be submitted to the division if a person intends to conduct surface coal mining operations on the basis of valid existing rights under 4VAC25-130-761.11 or wishes to confirm the right to do so. The request may be submitted before the person prepares and submits an application for a permit or boundary revision for the land.

1. The person must provide a property rights demonstration under the definition of valid existing rights if the request relies upon the good faith/all permits or the needed for and adjacent standard set forth in 4VAC25-130.700.5. For the land subject to the request, the demonstration must include:

a. A legal description of the land;

b. Complete documentation of the character and extent of the person's current interests in the surface and mineral estates of the land;

c. A complete chain of title for the surface and mineral estates of the land;

d. A description of the nature and effect of each titles instrument that forms the basis of the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities;

e. A description of the type and extent of surface coal mining operations that the person claims the right to conduct, including the method of mining, any mining-related surface activities and facilities, and an explanation of how those operations would be consistent with Virginia property law;

f. Complete documentation of the nature and ownership, as of the date that the land came under the protection of § 45.1-252 or 4VAC25-130-761.11, of all property rights for the surface and mineral estates;

g. Names and addresses of the current owners of the surface and mineral estates of the land;

h. If the coal interests have been severed from other property interests, documentation that the person has notified and provided reasonable opportunity for the owners of other property interests in the land to comment on the validity of the person's property rights claims; and

i. Any comments that the person receives in response to the notification provider under subdivision 1 h of this subsection.

2. If the request relies upon the good faith/all permits standard in subdivision (b)(1) of the valid existing rights definition in 4VAC25-130-700.5, the person must also submit the following information about permits, licenses, and authorizations for surface coal mining operations on the land subject to the request that the person or predecessor in interest obtained, submitted, or made:

a. Approval and issuance dates and identification numbers for any permits, licenses, and authorizations obtained before the land came under the protection of § 45.1-252 or 4VAC25-130-761.11.

b. Application dates and identification numbers for any permits, licenses, and authorizations submitted before the land came under the protection of § 45.1-252 or 4VAC25-130-761.11.

c. An explanation of any other good faith effort made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of § 45.1-252 or 4VAC25-130-761.11

3. If the request relies upon the needed for and adjacent standard in subdivision (b)(2) of the valid existing rights definition in 4VAC25-130-700.5, the person must explain how and why the land is needed for and immediately adjacent to the operation upon which the request is based, including a demonstration that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of § 45.1-252 or 4VAC25-130-761.11

4. If the request relies upon one of the standards for roads in subdivision (c) of the valid existing rights definition in 4VAC25-130-700.5, the person must submit satisfactory documentation that:

a. The road existed when the land upon which it is located came under the protection of § 45.1-252 or 4VAC25-130-761.11 and the person has a legal right to use the road for surface coal mining operations;

b. A properly recorded right of way or easement for a road in that location existed when the land came under the protection of § 45.1-252 or 4VAC25-130-761.11 and under the document creating the right of way or easement and under any subsequent conveyances, the person has a legal right to use or construct a road across that right of way or easement to conduct surface coal mining operations; or

c. A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of § 45.1-252 or 4VAC25-130-761.11.

C. Initial review of request.

1. The division must conduct an initial review to determine whether the request includes all applicable components of the submission requirements of subsection B of this section. The review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted.

2. If the request does not include all applicable components of the submission requirements of subsection B of this section, the division must notify the person and establish a reasonable time for submission of the missing information. Should the person not provide the information requested by the division under this subdivision within the time specified or as subsequently extended, the division must issue a determination under subdivision E 4 of this section that the person has not demonstrated valid existing rights.

3. When the request includes all applicable components of the submission requirements of subsection B of this section, the division must implement the notice and comment requirements of subsection D of this section.

D. 1. When the division determines that the request satisfies the completeness requirements of subsection C of this section, it shall publish a notice in a newspaper of general circulation in the county in which the land is located inviting public comment on the merits of the request. OSM will publish a similar notice in the Federal Register if the request involves federal lands within an area listed in 4VAC25-130-761.11 (a) or (b). The public notice must include:

a. The location of the land to which the request pertains.

b. A description of the type of surface coal mining operations planned.

c. A reference to and brief description of the applicable standard or standards under the definition of valid existing rights in 4VAC25-130-700.5.

(1) If the request relies upon the good faith/all permits or the needed for and adjacent standard set forth in the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the property rights that the person claims and the basis for the claim.

(2) If the request relies upon the road standard set forth in subdivision (c) (1) of the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the basis for the claim that the road existed when the land came under the protection of § 45.1-252 D or 4VAC25-130-761.11. In addition, the notice must include a description of the basis for the claim that the person has a legal right to use that road for surface coal mining operations.

(3) If the request relies upon the standard in subdivision (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the basis for the claim that a properly recorded right of way or easement for a road in that location existed when the land came under the protection of § 45.1-252 or 4VAC25-130-761.11. In addition, the notice must include a description of the basis for the claim that, under the document creating the right of way or easement, and under any subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement to conduct surface coal mining operations.

d. If the request relies upon one or more of the standards in subdivisions (b) and (c) (1) and (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, a statement that the division will not make a decision on the merits of the request if, by the close of the comment period under the notice or the notice required by subdivision 3 of this subsection, a person with a legal interest in the land initiates appropriate legal action in the proper venue to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the valid existing rights claim.

e. A description of the procedures the division will follow in processing the request.

f. The closing date of the public comment period, which shall be a minimum of 30 days after the notice's publication date.

g. A statement that interested persons may request, in writing, from the division a 30-day extension of the public comment period. The extension request shall set forth with reasonable specificity the reasons the commenter needs the additional time to submit comments.

h. Include the division office's address where a copy of the valid existing rights request is available for public inspection and where comments and requests for extension of the comment period should be sent.

2. The division must promptly provide a copy of the notice required under subdivision 1 of this subsection to:

a. All reasonably locatable owners of surface and mineral estates in the land included in the valid existing rights request.

b. The owner of the feature causing the land to come under the protection of 4VAC25-130-761.11, and when applicable, the agencies with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of 4VAC25-130-761.11.

3. The notice required under subdivision 2 of this subsection must provide a 30-day comment period and specify that an additional 30 days may be granted for good cause shown at the discretion of the division or agency responsible for the valid existing rights determination.

E.1. The division or agency responsible for making the valid existing rights determination must review the materials submitted under subsection B of this section, comments received under subsection D of this section, and any other relevant, reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request. If not, the division must notify the person in writing explaining the inadequacy of the record and requesting submittal within a specified reasonable time of any additional information that the division deems necessary to remedy the inadequacy.

2. Once the record is complete and adequate, the division must make a determination as to whether valid existing rights have been demonstrated. The division's decision must explain how the person has or has not satisfied all applicable elements of the valid existing rights definition under 4VAC25-130-700.5, contain findings of fact and conclusions, and specify the reasons for the conclusions.

3. When the request relies upon one or more of the standards in subdivisions (b) and (c) (1) and (2) of the valid existing rights definition in 4VAC25-130-700.5, the division:

a. Must issue a determination that the person has not demonstrated valid existing rights if the property rights claim is the subject of pending litigation in a court or administrative body with the jurisdiction over the property rights in question. The division will make the determination without prejudice, meaning that the person may refile the request once the property rights dispute is finally adjudicated. This applies only to situations in which legal action has been initiated as of the closing date of the comment period under subdivisions D 1 and 3 of this section.

b. If the record indicates disagreement of the accuracy of the person's property rights claim, but the disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, must evaluate the merits of the information in the record and determine whether the person has demonstrated that the requisite property rights exist under subdivision (a), (c) (1) or (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, as appropriate. The division must then proceed with the decision process under subdivision 2 of this subsection.

4. The division must issue a determination that the person has not demonstrated valid existing rights if the person does not submit information that the division requests under subdivision C 2 of this section or subdivision 1 of this subsection within the time specified or as subsequently extended. The division will make the determination without prejudice, meaning the person may refile a revised request at any time.

5. After making a valid existing rights determination, the division shall:

a. Provide a copy of the determination with an explanation of appeal rights and procedures to the person seeking the determination, owner or owners of the land to which the determination applies, owner of the feature causing the land to come under the protection of 4VAC25-130-761.11, and, when applicable, the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of 4VAC25-130-761.11.

b. Publish notice of the determination in a newspaper of general circulation in the county in which the land is located. The federal Office of Surface Mining Reclamation and Enforcement (OSMRE) will publish the determination, together with an explanation of appeal rights and procedures in the Federal Register if the request includes federal lands within an area listed in 4VAC25-130-761.11 (a) or (b).

F. The division's valid existing rights determination shall be subject to administrative and judicial review under 4VAC25-130-775.11 and 4VAC25-130-775.13.

G. The division must make a copy of the valid existing rights determination request available to the public as provided by 4VAC25-130-773.13 (d) and the records associated with that request, and any subsequent determination under subsection E of this section, available to the public in accordance with 4VAC25-130-840.14.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 29, Issue 13, eff. March 27, 2013.

Website addresses provided in the Virginia Administrative Code to documents incorporated by reference are for the reader's convenience only, may not necessarily be active or current, and should not be relied upon. To ensure the information incorporated by reference is accurate, the reader is encouraged to use the source document described in the regulation.

As a service to the public, the Virginia Administrative Code is provided online by the Virginia General Assembly. We are unable to answer legal questions or respond to requests for legal advice, including application of law to specific fact. To understand and protect your legal rights, you should consult an attorney.