Administrative Code

Virginia Administrative Code
1/25/2022

Part 773. Requirements for Permits and Permit Processing

4VAC25-130-773.1. Scope and purpose.

This Part provides minimum requirements for permits and permit processing and covers obtaining and reviewing permits; coordinating with other laws; public participation; permit decision and notification; permit conditions; and permit term and right of renewal.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 773.1, 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.

4VAC25-130-773.11. Requirements to obtain permits.

(a) All operations. No person shall engage in or carry out any surface coal mining operations, unless such person has first obtained a permit issued by the division, except as provided for in Paragraph (b) of this section. A permittee need not renew the permit if no surface coal mining operations will be conducted under the permit and solely reclamation activities remain to be done. Obligations established under a permit continue until completion of surface coal mining and reclamation operations, regardless of whether the authorization to conduct surface coal mining operations has expired or has been terminated, revoked, or suspended.

(b) Continued operations under Federal program permits.

(1) A permit issued by the Director of the OSM pursuant to a Federal program for the Commonwealth shall be valid under any superseding State program approved by the Secretary.

(2) The Federal permittee shall have the right to apply to the division for a State permit to supersede the Federal permit.

(3) The division may review a permit issued pursuant to the superseded Federal program to determine that the requirements of the Act and the approved State program are not violated by the Federal permit, and to the extent that the approved State program contains additional requirements not contained in the Federal program for the State, the division shall--

(i) Promptly issue an order requiring the permittee to comply with such additional requirements within 60 days of the issuance of the order, unless the permittee demonstrates to the division that it is physically impossible to meet those additional requirements within 60 days, or unless the division agrees to a longer period under an established time schedule;

(ii) Notify the permittee, in writing, of the right to a hearing with respect to the order. A request for hearing must be filed in writing with the division within 30 days of issuance of the order; and

(iii) Provide the permittee a reasonable time to conform ongoing surface coal mining and reclamation operations to the requirements of the State program.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 773.11, 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.

4VAC25-130-773.12. Regulatory coordination with other agencies.

To avoid duplication, the division shall provide for the coordination of review and issuance of permits for surface coal mining and reclamation operations with applicable requirements of the Endangered Species Act of 1973, as amended, (16 USC § 1531 et seq.); the Fish and Wildlife Coordination Act, as amended, (16 USC § 661 et seq.); the Migratory Bird Treaty Act of 1918, as amended, (16 USC § 703 et seq.); the National Historic Preservation Act of 1966, as amended (16 USC § 470 et seq.); the Bald Eagle Protection Act, as amended (16 USC § 668a); and Executive Order 11593.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 773.12, 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.

4VAC25-130-773.13. Public participation in permit processing.

(a) Filing and public notice.

(1) Upon submission of an administratively complete application, an applicant for a permit, significant revision of a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, shall place an advertisement in a local newspaper of general circulation in the locality of the proposed surface coal mining and reclamation operation at least once a week for four consecutive weeks. A copy of the advertisement as it will appear in the newspaper shall be submitted to the division. The advertisement shall contain, at a minimum, the following:

(i) The name and business address of the applicant.

(ii) A map or description which clearly shows or describes the precise location and boundaries of the proposed permit area and is sufficient to enable local residents to readily identify the proposed permit area. It may include towns, bodies of water, local landmarks, and any other information which would identify the location. The name of the U.S. Geological Survey 7.5 minute quadrangle map(s) which contains the area shown or described shall be stated; and if a map is used, it shall indicate the north direction.

(iii) The location where a copy of the application is available for public inspection.

(iv) The name and address of the division office where written comments, objections, or requests for informal conferences on the application may be submitted under Paragraphs (b) and (c) of this section.

(v) If an applicant seeks a permit to mine within 100 feet of the outside right-of-way of a public road or to relocate or close a public road, except where public notice and hearing have previously been provided for this particular part of the road in accordance with 4VAC25-130-761.12(d); a concise statement describing the public road, the particular part to be relocated or closed, and the approximate timing and duration of the relocation or closing.

(vi) If the application includes a request for an experimental practice under 4VAC25-130-785.13, a statement indicating that an experimental practice is requested and identifying the regulatory provisions for which a variance is requested.

(2) The applicant shall make an application for a permit, significant revision under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, available for the public to inspect and copy by filing a full copy of the application with the Clerk of the Circuit Court of the city or county where the mining is proposed to occur, or an accessible public office approved by the division. This copy of the application need not include confidential information exempt from disclosure under Paragraph (d) of this section. The application required by this Paragraph shall be filed by the first date of newspaper advertisement of the application. The applicant shall file any changes to the application with the public office at the same time the change is submitted to the division.

(3) Upon receipt of an administratively complete application for a permit, a significant revision to a permit under 4VAC25-130-774.13, or a renewal of a permit under 4VAC25-130-774.15, the division shall issue written notification indicating the applicant's intention to mine the described tract of land, the application number or other identifier, the location where the copy of the application may be inspected, and the location where comments on the application may be submitted. The notification shall be sent to--

(i) Local governmental agencies with jurisdiction over or an interest in the area of the proposed surface coal mining and reclamation operation, including but not limited to planning agencies, sewage and water treatment authorities, water companies; and

(ii) All Federal or State governmental agencies with authority to issue permits and licenses applicable to the proposed surface coal mining and reclamation operation and which are part of the permit coordinating process developed in accordance with 4VAC25-130-773.12; or those agencies with an interest in the proposed operation, including the U.S. Department of Agriculture, Natural Resources Conservation Service district office, the local U.S. Army Corps of Engineers district engineer, the National Park Service, State and Federal fish and wildlife agencies, and the historic preservation officer.

(b) Comments and objections on permit application.

(1) Within 30 days after notification, written comments or objections on an application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, may be submitted to the division by public entities notified under Paragraph (a)(3) of this section with respect to the effects of the proposed mining operations on the environment within their areas of responsibility.

(2) Written objections to an application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, may be submitted to the division by any person having an interest which is or may be adversely affected by the decision on the application, or by an officer or head of any Federal, State, or local government agency or authority, within 30 days after the last publication of the newspaper notice required by Paragraph (a) of this section.

(3) The division shall upon receipt of such written comments or objections--

(i) Transmit a copy of the comments or objections to the applicant; and

(ii) File a copy for public inspection at the same public office where the application is filed.

(c) Informal conferences.

(1) Any person having an interest which is or may be adversely affected by the decision on the application, or an officer or a head of a Federal, State, or local government agency, may request in writing that the division hold an informal conference on the application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15. The request shall--

(i) Briefly summarize the issues to be raised by the requestor at the conference;

(ii) State whether the requestor desires to have the conference conducted in the locality of the proposed operation; and

(iii) Be filed with the division no later than 30 days after the last publication of the newspaper advertisement required under Paragraph (a) of this section.

(2) Except as provided in Paragraph (c)(3) of this section, if an informal conference is requested in accordance with Paragraph (c)(1) of this section, the division shall hold an informal conference within a reasonable time following the receipt of the request. The informal conference shall be conducted as follows:

(i) If requested under Paragraph (c)(1)(ii) of this section, it shall be held in the locality of the proposed surface coal mining and reclamation operation.

(ii) The date, time, and location of the informal conference shall be sent to the applicant and other parties to the conference and advertised by the division in a newspaper of general circulation in the locality of the proposed surface coal mining and reclamation operation at least 2 weeks before the scheduled conference.

(iii) If requested in writing by a conference requestor at a reasonable time before the conference, the division may arrange with the applicant to grant parties to the conference access to the proposed permit area and, to the extent that the applicant has the right to grant access to it, to the adjacent area prior to the date of the conference for the purpose of gathering information relevant to the conference.

(iv) The conference shall be conducted by a representative of the division, who may accept oral or written statements and any other relevant information from any party to the conference. An electronic or stenographic record shall be made of the conference, unless waived by all the parties. The record shall be maintained and shall be accessible to the parties of the conference until final release of the applicant's performance bond or other equivalent guarantee pursuant to Subchapter VJ.

(3) If all parties requesting the informal conference withdraw their request before the conference is held, the informal conference may be canceled.

(4) Informal conferences held in accordance with this section may be used by the division as the public hearing required under 4VAC25-130-761.12(d) on proposed relocation or closing of public roads.

(d) Public availability of permit applications.

(1) General availability. Except as provided in Paragraphs (d)(2) or (d)(3) of this section, all applications for permits; revisions; renewals; and transfers, assignments or sales of permit rights on file with the Division shall be available, at reasonable times, for public inspection and copying.

(2) Limited availability. Except as provided in Paragraph (d)(3)(i) of this section, information pertaining to coal seams, test borings, core samplings, or soil samples in an application shall be made available to any person with an interest which is or may be adversely affected. Information subject to this Paragraph shall be made available to the public when such information is required to be on public file pursuant to State law.

(3) Confidentiality. The division shall provide procedures, including notice and opportunity to be heard for persons both seeking and opposing disclosure, to ensure confidentiality of qualified confidential information, which shall be clearly identified by the applicant and submitted separately from the remainder of the application. Confidential information is limited to--

(i) Information that pertains only to the analysis of the chemical and physical properties of the coal to be mined, except information on components of such coal which are potentially toxic in the environment;

(ii) Information required under Section 45.1-236 of the Act that is not on public file pursuant to State law and that the applicant has requested in writing to be held confidential;

(iii) Information on the nature and location of archeological resources on public land and Indian land as required under the Archeological Resources Protection Act of 1979 (Pub. L. 96-95, 93 Stat. 721, 16 USC § 470).

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 773.13, 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.

4VAC25-130-773.15. Review of permit applications.

(a) General.

(1) The division shall review the application for a permit, revision, or renewal; written comments and objections submitted; information from the AVS; and records of any informal conference or hearing held on the application and issue a written decision, within a reasonable time, either granting, requiring modification of, or denying the application. If an informal conference is held under 4VAC25-130-773.13(c), the decision shall be made within 60 days of the close of the conference.

(2) The applicant for a permit or revision of a permit shall have the burden of establishing that the application is in compliance with all the requirements of the regulatory program.

(3) The division shall review the information submitted under 4VAC25-130-778.13 and 4VAC25-130-778.14 regarding the applicant's or operator's permit histories, business structure, and ownership and control relationships.

(4) If the applicant or operator does not have any previous mining experience, the division may conduct additional reviews to determine if someone else with surface coal mining experience controls or will control the mining operation.

(b) Review of violations.

(1) Based on available information concerning federal and state failure-to-abate cessation orders, unabated federal and state imminent harm cessation orders, delinquent civil penalties issued pursuant to § 518 of the federal Act and § 45.1-246 of the Code of Virginia, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violations of federal and state laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, the division shall not issue the permit if any surface coal mining and reclamation operation directly owned or controlled by either the applicant or operator is currently in violation of the federal Act, this chapter, or any other law, rule or regulation referred to in this subdivision; or if a surface coal mining and reclamation operation indirectly owned or controlled by the applicant or operator has an unabated or uncorrected violation and the applicant's or operator's control was established or the violation was cited after November 2, 1988. In the absence of a failure-to-abate cessation order, the division may presume that a notice of violation issued pursuant to 4VAC25-130-843.12 or under a federal or state program has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except where evidence to the contrary is set forth in the permit application or the AVS, or where the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties. If a current violation exists, the division shall require the applicant or operator, before the issuance of the permit, to either

(i) Submit to the division proof that the current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation; or

(ii) Establish for the division that the applicant, or operator, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the current violation. If the initial judicial review authority under 4VAC25-130-775.13 affirms the violation, then the applicant shall within 30 days of the judicial action submit the proof required under subdivision (b)(1)(i) of this section.

(2) Any permit that is issued on the basis of proof submitted under subdivision (b)(1)(i) of this section that a violation is in the process of being corrected, or pending the outcome of an appeal described in subdivision (b)(1)(ii) of this section, shall be conditionally issued.

(3) If the division makes a finding that the applicant or the operator specified in the application, controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of the Act of such nature and duration, and with resulting irreparable damage to the environment as to indicate an intent not to comply with the Act, no permit shall be issued. Before such a finding becomes final, the applicant or operator shall be afforded an opportunity for an adjudicatory hearing on the determination as provided for in 4VAC25-130-775.11.

(4) (i) Subsequent to October 24, 1992, the prohibitions of subsection (b) of this section regarding the issuance of a new permit shall not apply to any violation that:

(A) Occurs after that date;

(B) Is unabated; and

(C) Results from an unanticipated event or condition that arises from a surface coal mining and reclamation operation on lands that are eligible for remining under a permit held by the person making application for the new permit.

(ii) For permits issued under 4VAC25-130-785.25 an event or condition shall be presumed to be unanticipated for the purposes of this subdivision if it:

(A) Arose after permit issuance;

(B) Was related to prior mining; and

(C) Was not identified in the permit.

(c) Written findings for permit application approval. No permit application or application for a significant revision of a permit shall be approved unless the application affirmatively demonstrates and the division finds, in writing, on the basis of information set forth in the application or from information otherwise available that is documented in the approval, the following:

(1) The application is complete and accurate and the applicant has complied with all requirements of the Act and this chapter.

(2) The applicant has demonstrated that reclamation as required by the Act and this chapter can be accomplished under the reclamation plan contained in the permit application.

(3) The proposed permit area is:

(i) Not within an area under study or administrative proceedings under a petition, filed pursuant to Part 764 of this chapter and 30 CFR Part 769, to have an area designated as unsuitable for surface coal mining operations, unless the applicant demonstrates that before January 4, 1977, he has made substantial legal and financial commitments in relation to the operation covered by the permit application; or

(ii) Not within an area designated as unsuitable for mining pursuant to Parts 762 and 764 of this chapter, or subject to the prohibitions or limitations of 4VAC25-130-761.11 and 4VAC25-130-761.12.

(4) For mining operations where the private mineral property to be mined has been severed from the private surface property, the applicant has submitted to the division the documentation required under 4VAC25-130-778.15(b).

(5) The division has made an assessment of the probable cumulative impacts of all anticipated coal mining on the hydrologic balance in the cumulative impact area and has determined that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

(6) The applicant has demonstrated that any existing structure will comply with 4VAC25-130-701.11(d) and 4VAC25-130-773.16, and the applicable performance standards of the initial regulatory program or Subchapter VK.

(7) The applicant has paid all reclamation fees, civil penalty assessments, Pool Bond Fund fees, and anniversary fees, from previous and existing operations as required by this chapter.

(8) The applicant has satisfied the applicable requirements of Part 785 of this chapter.

(9) The applicant has, if applicable, satisfied the requirements for approval of a long-term, intensive agricultural postmining land use, in accordance with the requirements of 4VAC25-130-816.111(d) or 4VAC25-130-817.111(d).

(10) The operation would not affect the continued existence of endangered or threatened species or result in destruction or adverse modification of their critical habitats, as determined under the Endangered Species Act of 1973 (16 USC § 1531 et seq.).

(11) The division has taken into account the effect of the proposed permitting action on properties listed on and eligible for listing on the National Register of Historic Places. This finding may be supported in part by inclusion of appropriate permit conditions or changes in the operation plan protecting historic resources, or a documented decision that the division has determined that no additional protection measures are necessary.

(12) For a proposed remining operation where the applicant intends to reclaim in accordance with the requirements of 4VAC25-130-816.106 or 4VAC25-130-817.106, the site of the operation is a previously mined area as defined in 4VAC25-130-700.5.

(13) The applicant or the permittee specified in the application, has not owned or controlled a surface mining and reclamation operation for which the permit has been revoked and/or the bond forfeited pursuant to the Code of Virginia or any federal law, rule or regulation, or any law, rule or regulation enacted pursuant to federal or state law pertaining to air or water environmental protection and surface coal mining activities in any other state unless reinstated. Applicable Virginia reinstatement requirements may be found in 4VAC25-130-800.52.

(14) For permits to be issued under 4VAC25-130-785.25 the permit application must contain:

(i) Lands eligible for remining;

(ii) An identification of the potential environmental and safety problems related to prior mining activity which could reasonably be anticipated to occur at the site; and

(iii) Mitigation plans to sufficiently address these potential environmental and safety problems so that reclamation as required by the applicable requirements of this chapter can be accomplished.

(d) Performance bond submittal. If the division decides to approve the application, it shall require that the applicant file the performance bond or provide other equivalent guarantee before the permit is issued, in accordance with the provisions of Subchapter VJ.

(e) Final compliance review. After an application is approved, but before the permit is issued, the division shall reconsider its decision to approve the application, based on the compliance review required by subdivision (b)(1) of this section in light of any new information submitted under 4VAC25-130-778.13 (j) or 4VAC25-130-778.14 (d).

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 773.15, 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; Virginia Register Volume 14, Issue 5, eff. December 24, 1997; Errata, 14:10 VA.R. 1751 February 2, 1998; Volume 29, Issue 13, eff. March 27, 2013.

4VAC25-130-773.16. Criteria for permit approval or denial; existing structures.

(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 division 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 the exemption provided in 4VAC25-130-701.11(d)(1)(i):

(i) The structure meets the performance standards of the Act and Subchapter VK; and

(ii) No significant harm to the environment or public health or safety will result from use of the structure.

(2)(i) If the applicant proposes to use an existing structure in accordance with the exemption provided in 4VAC25-130-701.11(d)(1)(ii):

(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 VK.

(ii) If the division finds that the structure meets the criteria of 4VAC25-130-701.11(d)(1)(ii), the division 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 VK;

(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 VK.

(b) Should the division 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 permit. Abandonment of the structure shall proceed on a schedule approved by the division in compliance with 4VAC25-130-816.132 or 4VAC25-130-817.132.

(c) An existing structure shall be deemed to meet the performance standards of the Act and Subchapter VK, if it meets the standards of this Subparagraph.

(1) General standards. The existing structure shall meet the following general standards:

(i) Land use restoration. The existing structure shall be capable of being restored to a satisfactory postmining land use in accordance with the requirements of 4VAC25- 130-816.133 and 4VAC25-130-817.133, which use or uses shall not present any actual or probable hazard to public health or safety or pose any actual or probable threat of water diminution or pollution.

(ii) Topsoil storage. Stockpiled topsoil and other substitute or supplemental materials shall be placed on a stable area and protected from wind and water erosion, unnecessary compaction, and contaminants which lessen the capability of the material to support vegetation when redistributed.

(iii) Surface area stabilization. All surface areas shall be stabilized and protected to control erosion and attendant air and water pollution.

(iv) Acid and toxic-forming materials. Drainage from acid-forming, toxic-forming, or otherwise harmful materials shall not cause pollution of ground or surface waters and shall minimize adverse effects on plant growth and land uses.

(v) Hydrologic balance: Water quality standards and effluent limitations.

(A) Federal and State water quality statutes, regulations, standards, or effluent limitations shall not be violated.

(B) Discharges of water from disturbed areas shall comply with the effluent limitations of 4VAC25-130-816.42 or 4VAC25-130-817.42.

(C) No land within 100 feet of a perennial stream or an intermittent stream in accordance with 4VAC25-130-816.57 or 4VAC25-130-817.57 shall be disturbed by surface mining activities; unless the water quantity and quality within 100 feet of the surface mining activities are not adversely affected, the division specifically authorizes surface mining activities closer to or through such a stream upon a finding that the original stream channel will be restored, and the requirements of Subparagraph (c)(5) of this section are satisfied.

(vi) Off-site protection. Areas outside the permit area shall be protected from slides or damage.

(vii) Protection of fish, wildlife, and related environmental values. Disturbances and adverse impacts on fish, wildlife, and related environmental values shall be minimized using the best technology currently available and enhancement of such resources shall be achieved where practicable.

(viii) Prevention of health and safety and fire hazards. Fire hazards and other conditions which constitute a hazard to the health and safety of the public shall be avoided. Combustible materials shall be compacted, buried, disposed or otherwise treated to prevent contamination of groundwater and to prevent sustained combustion.

(2) Casing and sealing of underground openings.

(i) Sealing of drilled holes. Each exploration hole, other drill or borehole, well or other exposed underground opening shall be cased, lined, sealed, or otherwise managed to prevent acid or other toxic drainage from entering ground or surface waters; to minimize disturbance to the prevailing hydrologic balance; and to assure the safety of people, livestock, fish and wildlife, and machinery in the permit area and adjacent area.

Use of a drilled hole or borehole or monitoring well as a water well must meet the applicable provisions of 4VAC25-130-816.41 and 4VAC25-130-817.41. These sections do not apply to holes solely drilled and used for blasting.

(ii) Temporary sealing of drilled holes. Each exploration hole, other drillhole or borehole, well, and other exposed underground opening which has been identified for use to return coal processing waste or water to underground workings, or to be used to monitor groundwater conditions, shall be temporarily sealed until actual use.

(iii) Temporary sealing of underground mine entries. Each underground mine entry which is temporarily inactive, but has a further projected useful service, shall be protected by barricades or other covering devices, fenced, and posted with signs, to prevent access into the entry and to identify the hazardous nature of the opening.

(3) Standards for permanent impoundments. Permanent impoundments shall meet the following standards:

(i) The quality of the impounded water shall be suitable on a permanent basis for its intended use, and discharge of water from the impoundment shall not degrade the quality of receiving waters to less than the water quality standards established pursuant to applicable State and Federal laws.

(ii) The level of water shall be sufficiently stable to support the intended use.

(iii) Adequate safety and access to the impounded water shall be provided for proposed water users.

(iv) Water impoundments shall not result in the diminution of the quality or quantity of water used by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses.

(v) The impoundment shall achieve necessary stability with an adequate margin of safety compatible with that of structures constructed under Public Law 83-566 (16 USC § 1006).

(vi) The size of the impoundment shall be adequate for its intended purposes.

(vii) The impoundment shall be suitable for the approved postmining land use.

(viii) Perimeter slopes shall be stable and protected to minimize surface erosion.

(4) Sediment control measures.

(i) Appropriate sediment control measures shall:

(A) Prevent, to the extent possible using the best technology currently available, additional contributions of sediment to streamflow or to runoff outside the permit area.

(B) Minimize erosion to the extent possible.

(C) Meet the more stringent of applicable State or Federal effluent limitations.

(ii) Sedimentation basins shall achieve necessary dam safety and stability with an adequate margin of safety compatible with structures constructed under 4VAC25-130-816.46 and 4VAC25-130-817.46 as specified by the division; shall have an adequate storage volume and detention time which will achieve and maintain the effluent limitations; and shall be capable of safely discharging the runoff from a 25-year, 6-hour precipitation event or larger event specified by the division. Perimeter slopes shall be stable and protected to minimize surface erosion.

(5) Standards for diversion structures.

(i) Diversions shall prevent additional contributions of suspended solids to streamflow and to runoff outside the permit area, to the extent possible using the best technology currently available.

(ii) Diversions shall not divert water into underground mines, unless approved by the division and the standards of 4VAC25-130-816.43 are met.

(iii) Diversions shall not increase the potential for landslides.

(iv) Stream channel diversions shall comply with all of the requirements of this Subparagraph (c)(5), shall comply with local, State, and Federal statutes and regulations, and shall be in accordance with Subparagraph (1)(v)(C) of this section.

(6) Standards for discharge structures. Discharge structures shall reduce erosion and avoid deepening or enlargement of stream channels, and minimize disturbances of the hydrologic balance.

(7) Standards for temporary impoundments. Temporary impoundments shall achieve necessary stability with an adequate margin of safety and shall be capable of safely discharging the runoff from a 25-year, 6-hour precipitation event or larger event specified by the division. Perimeter slopes shall be stable and protected to minimize surface erosion.

(8) Standards for disposal of excess spoil. An existing excess spoil disposal area may be used for the disposal of additional excess spoil only if the facility is capable of meeting the following standards:

(i) Leachate and surface runoff from the fill shall not degrade surface or groundwaters.

(ii) The fill shall achieve necessary stability with an adequate margin of safety.

(iii) The land mass designated as the disposal area shall be within the permit area and suitable for reclamation and revegetation compatible with the natural surroundings. Spoil material shall not be deposited on any part of the operations located outside the permit area.

(iv) Appropriate surface and internal drainage systems and diversion ditches shall prevent spoil erosion and mass movement.

(v) The spoil disposal area shall have slope protection to minimize surface erosion.

(vi) The spoil disposal area shall be certified by a qualified registered professional engineer as being in conformance with professional standards.

(vii) Placement of additional spoil shall be in accordance with the applicable requirements of 4VAC25-130-816.71 through 4VAC25-130-816.75 and 4VAC25-130-817.71 through 4VAC25-130-817.75 as approved by the division.

(viii) The final configuration of the spoil disposal area shall be compatible with the natural drainage pattern and surroundings and suitable for the intended uses.

(9) Standards for coal processing waste banks. An existing coal processing waste bank may be used for the disposal of additional coal processing waste only if the facility is capable of meeting the following standards:

(i) The coal processing waste bank shall not adversely affect surface or groundwater quantity or quality or vegetation.

(ii) Necessary stability with an adequate margin of safety shall be achieved.

(iii) The coal processing waste bank shall be suitable for reclamation and revegetation compatible with the natural surroundings.

(iv) The coal processing waste bank shall not constitute a hazard to the health and safety of the public.

(v) Surface and internal drainage systems and diversion ditches shall be adequate to minimize erosion and prevent mass movement.

(vi) Slope protection shall be adequate to minimize surface erosion.

(vii) The coal processing waste bank shall be certified by a qualified registered professional engineer as being in conformance with professional standards.

(viii) Placement of additional coal processing waste shall be in accordance with the applicable requirements of 4VAC25-130-816.81 through 4VAC25-130-816.84 and 4VAC25-130-817.81 through 4VAC25-130-817.84 as approved by the division.

(10) Standards for disposal of noncoal wastes. Disposal of noncoal wastes shall ensure that leachate and surface runoff does not degrade surface or groundwater, fires are prevented, that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings, and that applicable local, State, and Federal laws and regulations are satisfied.

(11) Standards for coal processing waste: dams and embankments. Dams and embankments constructed of coal processing waste shall meet the requirements of 4VAC25-130-816.81 through 4VAC25-130-816.84 and 4VAC25-130-817.81 through 4VAC25-130-817.84.

(12) Standards for roads. Roads shall:

(i) Control or minimize erosion and siltation, air and water pollution, and damage to public or private property.

(ii) Minimize damage to fish, wildlife, and related environmental values using the best technology currently available.

(iii) Minimize additional contributions of suspended solids to streamflow or runoff outside the permit area using the best technology currently available. Any such contributions shall not be in excess of limitations of State and Federal law.

(iv) Not be located in the channel of an intermittent or perennial stream unless specifically approved by the division.

(v) Not contain stream fords unless they are specifically approved by the division and not adversely affect stream sedimentation or fish, wildlife, and related environmental values.

(vi) Have adequate drainage and have a water-control system that can safely pass the peak runoff from a 10-year, 6-hour precipitation event or other event if required by the division.

(13) Standards for other transportation facilities. Railroad loops, spurs, sidings, surface conveyor systems, chutes, aerial tramways, or other transportation facilities shall:

(i) Prevent, to the extent possible using the best technology currently available:

(A) Damage to fish, wildlife, and related environmental values.

(B) Additional contributions of suspended solids to streamflow or runoff outside the permit area. Any such contributions shall not be in excess of limitations of State or Federal law.

(ii) Control and minimize diminution or degradation of water quality and quantity.

(iii) Control and minimize erosion and siltation.

(iv) Control and minimize air pollution.

(v) Prevent damage to public or private property.

(14) Standards for support facilities and utility installations. Support facilities required for, or used incidentally to, the operation of the mine including, but not limited to, mine buildings, coal loading facilities, fan buildings, hoist buildings, sheds, shops, and other buildings, shall prevent or control erosion and siltation, water pollution, and damage to public or private property. In addition to the applicable performance standards of Parts 816 and 817 and this section, support facilities shall prevent, to the extent possible using the best technology currently available:

(i) Damage to fish, wildlife, and related environmental values.

(ii) Additional contributions of suspended solids to streamflow or runoff outside the permit area. Any such contributions shall not be in excess of limitations of State or Federal law.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 773.16, 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.

4VAC25-130-773.17. Permit conditions.

Each permit issued by the division shall be subject to the following conditions:

(a) The permittee shall conduct surface coal mining and reclamation operations only on those lands that are specifically designated as the permit area on the maps submitted with the application and authorized for the term of the permit and that are subject to the performance bond or other equivalent guarantee in effect pursuant to Subchapter VJ.

(b) The permittee shall conduct all surface coal mining and reclamation operations only as described in the approved application, except to the extent that the division otherwise directs in the permit.

(c) The permittee shall comply with the terms and conditions of the permit, all applicable performance standards of the Act, and the requirements of this chapter.

(d) Without advance notice, delay, or a search warrant, upon presentation of appropriate credentials, the permittee shall allow the authorized representatives of the Secretary and the Director to--

(1) Have the right of entry provided for in 4VAC25-130-840.12; and

(2) Be accompanied by private persons for the purpose of conducting an inspection in accordance with Parts 840 and 842, when the inspection is in response to an alleged violation reported to the division by the private person.

(e) The permittee shall take all possible steps to minimize any adverse impact to the environment or public health and safety resulting from noncompliance with any term or condition of the permit, including, but not limited to--

(1) Any accelerated or additional monitoring necessary to determine the nature and extent of noncompliance and the results of the noncompliance;

(2) Immediate implementation of measures necessary to comply; and

(3) Warning, as soon as possible after learning of such noncompliance, any person whose health and safety is in imminent danger due to the noncompliance.

(f) As applicable, the permittee shall comply with 4VAC25-130-701.11(d), 30 CFR Subchapter B, or Subchapter VK of this chapter for compliance, modification, or abandonment of existing structures.

(g) The operator shall pay all reclamation fees required by 30 CFR Subchapter R for coal produced under the permit for sale, transfer or use, in the manner required by that Subchapter.

(h) Within thirty days after a cessation order is issued under 4VAC25-130-843.11 or 30 CFR 843.11, for operations conducted under the permit, except where a stay of the cessation order is granted and remains in effect the permittee shall either submit to the division the following information, current to the date the cessation order was issued, or notify the division in writing that there has been no change since the immediately preceding submittal of such information:

(1) Any new information needed to correct or update the information previously submitted to the division by the permittee under 4VAC25-130-778.13(c); or

(2) If not previously submitted, the information required from a permit applicant by 4VAC25-130-778.13(c).

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 773.17, 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.

4VAC25-130-773.19. Permit issuance and right of renewal.

(a) Decision. If the application is approved, the permit shall be issued upon submittal of a performance bond in accordance with Subchapter VJ. If the application is disapproved, specific reasons therefore shall be set forth in the notification required by Paragraph (b) of this section.

(b) Notification. The division shall issue written notification of the decision to the following persons and entities:

(1) The applicant, each person who files comments or objections to the permit application, and each party to an informal conference.

(2) The local governmental officials in the local political subdivision in which the land to be affected is located within 10 days after the issuance of a permit, including a description of the location of the land.

(3) The local OSM office.

(c) Permit term. Each permit shall be issued for a fixed term of 5 years or less, unless the requirements of 4VAC25-130-778.17 are met.

(d) Right of renewal. Permit application approval shall apply to those lands that are specifically designated as the permit area on the maps submitted with the application and for which the application is complete and accurate. Any valid permit issued in accordance with Paragraph (a) of this section shall carry with it the right of successive renewal, within the approved boundaries of the existing permit, upon expiration of the term of the permit, in accordance with 4VAC25-130-774.15.

(e) Initiation of operations.

(1) A permit shall terminate if the permittee has not begun the surface coal mining and reclamation operation covered by the permit within 3 years of the issuance of the permit.

(2) The division may grant a reasonable extension of time for commencement of these operations, upon receipt of a written statement showing that such an extension of time is necessary, if--

(i) Litigation precludes the commencement or threatens substantial economic loss to the permittee; or

(ii) There are conditions beyond the control and without the fault or negligence of the permittee.

(3) With respect to coal to be mined for use in a synthetic fuel facility or specified major electric generating facility, the permittee shall be deemed to have commenced surface mining operations at the time that the construction of the synthetic fuel or generating facility is initiated.

(4) Extensions of time granted by the division under this Paragraph shall be specifically set forth in the permit, and notice of the extension shall be made public by the division.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 773.19, 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.

4VAC25-130-773.20. Improvidently issued permits; general procedures.

(a) Permit review. If the division has reason to believe that it improvidently issued a surface coal mining and reclamation permit, it shall review the circumstances under which the permit was issued, using the criteria in subdivision (b) of this section. Where the division finds that the permit was improvidently issued, it shall comply with subdivision (c) of this section.

(b) Review criteria. The division shall find that a surface coal mining and reclamation permit was improvidently issued if:

(1) Under the violations review criteria of this chapter at the time the permit was issued:

(i) The division should not have issued the permit because of an unabated violation or a delinquent penalty or fee; or

(ii) The permit was issued on the presumption that a notice of violation was in the process of being corrected to the satisfaction of the agency with jurisdiction over the violation, but a cessation order subsequently was issued; and

(2) The violation, penalty or fee:

(i) Remains unabated or delinquent; and

(ii) Is not the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; and

(3) Where the permittee was linked to the violation, penalty or fee through ownership or control, under the violations review criteria of this chapter at the time the permit was issued an ownership or control link between the permittee and the person responsible for the violation, penalty or fee still exists, or where the link was severed the permittee continues to be responsible for the violation, penalty or fee.

(c) Remedial measures. If the division, under subdivision (b) of this section, finds that because of an unabated violation or a delinquent penalty or fee a permit was improvidently issued, it shall use one or more of the following remedial measures:

(1) Implement, with the cooperation of the permittee or other person responsible, and of the responsible agency, a plan for abatement of the violation or a schedule for payment of the penalty or fee;

(2) Impose on the permit a condition requiring that in a reasonable period of time the permittee or other person responsible abate the violation or pay the penalty or fee;

(3) Serve the permittee with a preliminary finding that shall be based on evidence sufficient to establish a prima facie case that the permit was improvidently issued. The finding shall inform the permittee that the permit may be suspended or rescinded under 4VAC25-130-773.21 if the violation is not abated or the penalty or fee is not paid.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 773.20, 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.

4VAC25-130-773.21. Improvidently issued permits; rescission procedures.

If the division, under 4VAC25-130-773.20 (c) (3), elects to suspend or rescind an improvidently issued permit, it shall serve on the permittee a notice of proposed suspension and rescission which includes the reasons for the finding of the division under 4VAC25-130-773.20 (b) and states that:

(a) Automatic suspension and rescission. After a specified period of time not to exceed 90 days the permit automatically will become suspended, and not to exceed 90 days thereafter rescinded, unless within those periods the permittee submits proof, and the division finds, that:

(1) The finding of the division under 4VAC25-130-773.20 (b) was erroneous;

(2) The permittee or other person responsible has abated the violation on which the finding was based, or paid the penalty or fee, to the satisfaction of the responsible agency;

(3) The violation, penalty or fee is the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; or

(4) Since the finding was made, the permittee has severed any ownership or control link with the person responsible for, and does not continue to be responsible for, the violation, penalty or fee:

(b) Cessation of operations. After service of the notice of permit suspension or rescission, the permittee shall cease all surface coal mining and reclamation operations under the permit as set forth in the notice, except for violation abatement and for reclamation and other environmental protection measures as required by the division;

(c) A person may challenge an ownership or control listing or finding by submitting to the division a written explanation of the basis for the challenge, along with any evidence or explanatory materials that substantiates that the person did not or does not own or control the entire surface coal mining operation or relevant portion or aspect thereof. The person may request that any information submitted to the division under this section be held as confidential if it is not required to be made public under the Act. The division shall review the information and render a written decision regarding the person's ownership or control listing or link within 60 days from receipt of the challenge; and

(d) Right to appeal. The permittee or person aggrieved by the division's notice or decision may file an appeal for administrative review of the notice or decision under subdivision (c) of 4VAC25-130-775.11 or under the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 773.21, 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; Virginia Register Volume 23, Issue 13, eff. April 4, 2007; Volume 29, Issue 13, eff. March 27, 2013.

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