Administrative Code

Virginia Administrative Code
1/18/2022

Part 764. Procedures for Designating Areas Unsuitable for Surface Coal Mining Operations

4VAC25-130-764.11. General process requirements.

The Director's decisions concerning unsuitability petitions shall be based upon competent, scientifically sound data and relevant information and shall include the processes and requirements of this Part.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 764.11, 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.

4VAC25-130-764.13. Petitions.

(a) Right to petition. Any person having an interest which is or may be adversely affected has the right to petition the Director to have an area designated as unsuitable for surface coal mining operations, or to have an existing designation terminated. For the purpose of this action, a person having an interest which is or may be adversely affected must demonstrate how he meets an "injury in fact" test by describing the injury to his specific affected interests and demonstrate how he is among the injured.

(b) Designation. A complete petition for designation shall include:

(1) The petitioner's name, address, telephone number, and notarized signature;

(2) A statement of whether the petitioner is an individual, an association, sole proprietorship, partnership, corporation, or other entity. If the petitioner is an entity other than an individual, the petition shall contain the names and addresses of the principals, officers, and the resident agent of the petitioner;

(3) Identification of the petitioned area, including its location and size, and a U.S. Geological Survey topographic map clearly outlining the perimeter of the petitioned area;

(4) An identification of the petitioner's interest which is or may be adversely affected by surface coal mining operations, including a statement demonstrating how the petitioner satisfies the requirements of Paragraph (a) of this section;

(5) The owners and lessees, if known, of the surface and mineral property of the area covered by the petition;

(6) A description of how mining of the area has affected or may adversely affect people, land, air, water, or other resources, including the petitioner's interests; and

(7) Allegations of fact and supporting evidence, covering all lands in the petition area, which tend to establish that the area is unsuitable for surface coal mining operations, pursuant to specific criteria of Subsections of Section 45.1-252 of the Act, assuming that contemporary mining practices required under the Act would be followed if the area were to be mined. Each of the allegations of fact should be specific as to the mining operation, if known, and the portion(s) of the petitioned area and petitioner's interests to which the allegation applies and be supported by evidence that tends to establish the validity of the allegations for the mining operation or portion of the petitioned areas.

(8) The Director or the division may request that the petitioner provide other supplementary information which is readily available.

(c) Termination. A complete petition for termination shall include--

(1) The petitioner's name, address, telephone number, and notarized signature;

(2) Statement of whether the petitioner is an individual, an association, sole proprietorship, corporation, or other entity. If the petitioner is an entity other than an individual, the petition shall contain the names and addresses of the principals, officers, directors, and resident agent of the petitioner;

(3) Identification of the petitioned area, including its location and size and a U.S. Geological Survey topographic map clearly outlining the perimeter of the petitioned area to which the termination petition applies;

(4) An identification of the petitioner's interest which is or may be adversely affected by the designation that the area is unsuitable for surface coal mining operations including a statement demonstrating how the petitioner satisfies the requirements of Paragraph (a) of this section;

(5) The owners and lessees, if known, of the surface and mineral property of the area covered by the petition;

(6) Allegations of fact covering all lands for which the termination is proposed. Each of the allegations of fact shall be specific as to the mining operation, if any, and to portions of the petitioned area and the petitioner's interests to which the allegation applies. The allegations shall be supported by evidence, not contained in the record of the designation proceeding, that tends to establish the validity of the allegations for the mining operation or portion of the petitioned area, assuming that contemporary mining practices required under the Act would be followed were the area to be mined. For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence must be presented in the petition. Allegations and supporting evidence should also be specific to the basis for which the designation was made and tend to establish that the designation should be terminated on the following bases:

(i) Nature or abundance of the protected resource or condition or other basis of the designation if the designation was based on criteria found in 4VAC25-130-762.11(b);

(ii) Reclamation now being technologically and economically feasible if the designation was based on the criteria found in 4VAC25-130-762.11(a); or

(iii) Resources or conditions not being affected by surface coal mining operations, or in the case of land use plans, not being incompatible with surface coal mining operations during and after mining, if the designation was based on criteria found in 4VAC25-130-762.11(b).

(7) The Director or the division may request that the petitioner provide other supplementary information which is readily available.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 764.13, 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.

4VAC25-130-764.15. Initial processing, recordkeeping, and notification requirements.

(a)(1) Within 60 days of receipt of a petition, the division shall notify the petitioner by certified mail whether the petition is complete under 4VAC25-130-764.13(b) or (c). Complete, for a designation or termination petition, means that the information required under 4VAC25-130-764.13(b) or (c) has been provided.

(2) The division shall determine whether any identified coal resources exist in the area covered by the petition, without requiring any showing from the petitioner. If the division finds there are not any identified coal resources in that area, the Director shall return the petition to the petitioner with a statement of the findings.

(3) If the Director determines that the petition is incomplete, frivolous, or that the petitioner does not meet the requirements of 4VAC25-130-764.13(a), he shall return the petition to the petitioner with a written statement of the reasons for the determination and the categories of information needed to make the petition complete. A frivolous petition is one in which the allegations of harm lack serious merit.

(4) When considering a petition for an area which was previously and unsuccessfully proposed for designation, the division shall determine if the new petition presents significant new allegations of facts with evidence which tends to establish the allegations. If the petition does not contain such material, the Director may choose not to consider the petition and may return the petition to the petitioner, with a statement of his findings and a reference to the record of the previous designation proceedings where the facts were considered.

(5) The Director shall notify the person who submits a petition of any application for a permit received which includes any area covered by the petition.

(6) The Director may determine not to process any petition received insofar as it pertains to lands for which an administratively complete permit application has been filed and the first newspaper notice has been published. Based on such a determination, the division may issue a decision on a complete and accurate permit application and the Director shall inform the petitioner why he cannot consider the part of the petition pertaining to the proposed permit area.

(b)(1) Promptly after a petition is received, the Director shall notify the general public of the receipt of the petition by a newspaper advertisement placed in the locale of the area covered by the petition, in the newspaper providing broadest circulation in the region of the petitioned area and in the Virginia Register of Regulations. The Director shall make copies of the petition available to the public and shall provide copies of the petition to other interested governmental agencies, intervenors, persons with an ownership interest of record in the property, and other persons known to the Director to have an interest in the property. Notice to the person with an ownership interest of record in the property shall be by certified mail.

(2) Promptly after the determination that a petition is complete, the Director shall request submissions from the general public of relevant information by a newspaper advertisement placed once a week for two consecutive weeks in the locale of the area covered by the petition, in the newspaper providing broadest circulation in the region of the petitioned area, and in the Virginia Register of Regulations.

(c) Until three days before the Director holds a hearing under 4VAC25-130-764.17, any person may intervene in the proceeding by filing allegations of facts describing how the designation determination directly affects the intervenor, supporting evidence, a short statement identifying the petition to which the allegations pertain, and the intervenor's name, address and telephone number.

(d) Beginning from the date a petition is filed, the Director shall compile and maintain a record consisting of all documents relating to the petition filed with or prepared by the Director. The Director shall make the record available to the public for inspection, free of charge, and for copying at reasonable cost during all normal hours at the Director's Richmond office and the Division's Big Stone Gap office. The division shall also maintain information at a public office or public building in the area in which the petitioned area is located and make this information available to the public for inspection free of charge and for copying at reasonable cost during all normal business hours. At a minimum, this information shall include a copy of the petition.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 764.15, 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.

4VAC25-130-764.17. Hearing requirements.

(a) Within 3 months, but no later than 10 months, following the receipt of a complete petition, the Director shall hold a public hearing in the locality of the area covered by the petition. In cases where a petition is filed prior to the first newspaper notice publication, required by 4VAC25-130-773.13(a)(1) pursuant to an administratively complete permit application, the Director shall conduct a hearing within 3 months, unless it is determined that due to the complexity of the issues additional time is necessary to prepare for the hearing, in which case, the time limit may be extended to the maximum of 10 months. If all petitioners and intervenors agree, the hearing need not be held. The hearing shall be fact finding in nature. The Hearing Officer is empowered to administer oaths and may at his discretion allow rebuttal of witnesses and cross-examination and rebuttal of expert witnesses. Parties to the hearing may subpoena witnesses as necessary. The Hearing Officer shall make a verbatim record of the hearing which shall be preserved according to State law. No person shall bear the burden of proof or persuasion. The Hearing Officer shall send a copy of the record, any exhibits, and his recommended findings and decision to the Director and to each party to the proceeding. Parties to the proceeding may file exceptions to the recommended findings and decision to the Director. In addition to the Hearing Officer decision and recommendation all relevant parts of the data base and public comments received during the comment period and the complete administrative record shall be forwarded to the Director by the division, to be included in the Director's decision on the petition.

(b)(1) The Director shall give notice of the date, time, and location of the hearing to:

(i) Local, State, and Federal agencies which may have an interest in the decision on the petition;

(ii) The petitioner and the intervenors; and

(iii) Any person known by the Director to have a property interest in the petitioned area.

(2) Notice of the hearing shall be sent by certified mail to petitioners and intervenors, and by regular mail to government agencies and property owners involved in the proceeding, and postmarked not less than 30 days before the scheduled date of the hearing.

(c) The Director shall notify the general public of the date, time, and location of the hearing by placing a newspaper advertisement once a week for two consecutive weeks in the locale of the area covered by the petition and once during the week prior to the public hearing. The consecutive weekly advertisement must begin between 4 and 5 weeks before the scheduled date of the public hearing.

(d) The Director may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale.

(e) Prior to designating any land areas as unsuitable for surface coal mining operations, the Director shall prepare a detailed statement, using existing and available information on the potential coal resources of the area, the demand for coal resources, and the impact of such designation on the environment, the economy, and the supply of coal.

(f) In the event that all petitioners and intervenors stipulate agreement prior to the hearing, the petition may be withdrawn from consideration.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 764.17, 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.

4VAC25-130-764.19. Decision.

(a) In reaching his decision, the Director shall use:

(1) The information contained in the data base and inventory system as required by 4VAC25-130-764.21;

(2) Information provided by other governmental agencies;

(3) The detailed statement when it is prepared under 4VAC25-130-764.17(e); and

(4) Any other relevant information submitted during the comment period.

(b) A final written decision shall be issued by the Director, including a statement of reasons, within 60 days of completion of the public hearing, or, if no public hearing is held, then within 12 months after receipt of the complete petition. The Director shall simultaneously send the decision by certified mail to the petitioner and intervenors and by regular mail to all other persons involved in the proceeding.

(c) The decision of the Director with respect to a petition, or the failure of the Director to act within the time limits set forth in this section, shall be subject to judicial review by a court of competent jurisdiction in accordance with Section 45.1-251 of the Act and 4VAC25-130-775.13. All relevant portions of the data base, inventory system, and public comments received during the public comment period set by the Director shall be considered and included in the record of the administrative proceeding.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 764.19, 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.

4VAC25-130-764.21. Data base and inventory system requirements.

(a) The Department shall develop and maintain a data base and inventory system which will permit evaluation of whether reclamation is feasible in areas covered by petitions.

(b) The Department shall include in the system information relevant to the criteria in 4VAC25-130-762.11, including, but not limited to, information received from the United States Fish and Wildlife Service, the State Historic Preservation Officer, and the Department of Environmental Quality which administers Section 127 of the Clean Air Act, as amended (42 USC § 7420 et seq.).

(c) The Department shall add to the data base and inventory system information:

(1) On potential coal resources of the Commonwealth, demand for those resources, the environment, the economy and the supply of coal, sufficient to enable the Director to prepare the statements required by 4VAC25-130-764.17(e); and

(2) That becomes available from petitions, publications, experiments, permit applications, mining and reclamation operations, and other sources.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 764.21, 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.

4VAC25-130-764.23. Public information.

The Director shall:

(a) Make the information in the data base and inventory system developed under 4VAC25-130-764.21 available to the public for inspection free of charge and for copying at reasonable cost, except that specific information relating to location of properties proposed to be nominated to, or listed in, the National Register of Historic Places need not be disclosed if the Director determines that the disclosure of such information would create a risk of destruction or harm to such properties;

(b) Provide information to the public on the petition procedures necessary to have an area designated as unsuitable for all or certain types of surface coal mining operations or to have designations terminated and describe how the inventory and data base system can be used.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 764.23, 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.

4VAC25-130-764.25. Responsibility for implementation.

(a) The division shall not issue permits which are inconsistent with designations made pursuant to Part 761, 762, or 764.

(b) The Department shall maintain a map or other unified and cumulative record of areas designated unsuitable for all or certain types of surface coal mining operations.

(c) The division shall make available to any person any information within its control regarding designations, including mineral or elemental content which is potentially toxic in the environment but excepting proprietary information on the chemical and physical properties of the coal.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 764.25, 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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