Administrative Code

Virginia Administrative Code
1/18/2022

Part 774. Review; Revision; Renewal; and Transfer, Assignment, or Sale of Permit Rights

4VAC25-130-774.1. Scope and purpose.

This Part provides requirements for review; revision; renewal; and transfer, assignment, or sale of permit rights.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 774.1, 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.

4VAC25-130-774.11. Division review of permits.

(a) The division shall review each permit issued and outstanding during the term of the permit. This review shall occur not later than the middle of each permit term and as follows:

(1) Permits with a term longer than 5 years shall be reviewed no less frequently than the permit midterm or every 5 years, whichever is more frequent.

(2) Permits with variances granted in accordance with 4VAC25-130-785.14 (mountaintop removal) and 4VAC25-130-785.18 (variance for delay in contemporaneous reclamation requirement in combined surface and underground mining operations) shall be reviewed no later than 3 years from the date of issuance of the permit unless, for variances issued in accordance with 4VAC25-130-785.14, the permittee affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the permit.

(3) Permits containing experimental practices issued in accordance with 4VAC25-130-785.13 and permits with a variance from approximate original contour requirements in accordance with 4VAC25-130-785.16 shall be reviewed as set forth in the permit or at least every 2 ½ years from the date of issuance as required by the division, in accordance with 4VAC25-130-785.13(g) and 4VAC25-130-785.16(c), respectively.

(b) After the review required by Paragraph (a) of this section, or at any time, the division may order reasonable revision of a permit in accordance with 4VAC25-130-774.13 to ensure compliance with the Act and the regulatory program.

(c) Any order of the division requiring revision of a permit shall be based upon written findings and shall be subject to the provisions for administrative and judicial review in Part 775. Copies of the order shall be sent to the permittee.

(d) Permits may be suspended or revoked in accordance with Subchapter VL.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 774.11, 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.

4VAC25-130-774.12. Post-permit issuance requirements.

A. For purposes of future permit eligibility determinations and enforcement actions, the division will utilize the AVS to retrieve and enter appropriate data regarding ownership, control, and violation information. The division shall enter into the AVS:

Information

Within 30 days after

(1) Permit records

the permit is issued or subsequent changes made

(2) Unabated or uncorrected violations

the abatement or correction period for a violation expires

(3) Unpaid final civil penalties, charges, taxes, or fees

the required due payment date

(4) Changes in violation status

abatement, correction or termination of a violation or a final decision from an administrative or judicial review proceeding

B. In the event the permittee is issued enforcement action under 4VAC25-130-843.11 and fails to timely comply with the order's remedial measures, the division shall instruct the permittee to provide or update all the information required by 4VAC25-130-778.13. However, the permittee would not be required to submit this information if a court of competent jurisdiction has granted a stay of the cessation order and the stay remains in effect.

C. The permittee shall notify the division within 60 days of any addition, departure, or change in position of any person identified under 4VAC25-130-778.13. The permittee shall provide the date of such addition, departure, or change of such person.

D. Should the division discover that the permittee or a person listed in an ownership or control relationship with the permittee owns or controls an operation with an unabated or uncorrected violation, it will determine whether enforcement action is appropriate under 4VAC25-130-843 and 4VAC25-130-846 or other applicable provisions. The division may issue a preliminary finding of permit ineligibility under § 45.1-238 (c) of the Act if it finds that the person had control relationships and violations that would have made the person ineligible for a permit under 4VAC25-130-773.15. The finding shall be in accordance with 4VAC25-130-773.20 (c) (3).

E. If a determination of permit ineligibility is rendered by the division, the person would have 30 days from service of the written finding to submit any information that would tend to demonstrate the person's lack of ownership or control of the surface coal mining operation. The division would issue a final determination regarding the permit eligibility within 30 days of receiving any information from the person or from the expiration date that the person could submit the information under this subsection. A person aggrieved by the division's eligibility finding would have the right to request review under 4VAC25-130-775.

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.

4VAC25-130-774.13. Permit revisions.

(a) General. During the term of a permit, the permittee may submit an application to the division for a revision of the permit.

(b) Application requirements and procedures.

(1) The Director shall establish a time period within which the division will approve or disapprove an application for a permit revision; and

(2) The division shall establish guidelines establishing the scale or extent of revisions for which all the permit application information requirements and procedures of this Subchapter, including notice, public participation, and notice of decision requirements of 4VAC25-130-773.13, 4VAC25-130-773.19(b) (1) and (3), and 4VAC25-130-778.21 shall apply. Such requirements and procedures shall apply at a minimum to all significant permit revisions.

(c) Criteria for approval. No application for a permit revision shall be approved unless the application demonstrates and the division finds that reclamation as required by the Act and the regulatory program can be accomplished, applicable requirements under 4VAC25-130-773.15(c) which are pertinent to the revision are met, and the application for a revision complies with all requirements of the Act and the regulatory program.

(d) Request to change permit boundary. Any extensions to the area covered by the permit, except incidental boundary revisions, shall be made by application for a new permit.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 774.13, 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.

4VAC25-130-774.15. Permit renewals.

(a) General. A valid permit 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.

(b) Application requirements and procedures.

(1) An application for renewal of a permit shall be filed with the division at least 120 days before expiration of the existing permit term.

(2) An application for renewal of a permit shall be in the form required by the division and shall include at a minimum--

(i) The name and address of the permittee, the term of the renewal requested, and the permit number or other identifier;

(ii) Evidence that a liability insurance policy or adequate self insurance under 4VAC25-130-800.60 will be provided by the applicant for the proposed period of renewal;

(iii) Evidence that the performance bond in effect for the operation will continue in full force and effect for any renewal requested, as well as any additional bond required by the division pursuant to Subchapter VJ;

(iv) A copy of the proposed newspaper notice and proof of publication of same, as required by 4VAC25-130-778.21; and

(v) Additional revised or updated information required by the division.

(3) Applications for renewal shall be subject to the requirements of public notification and public participation contained in 4VAC25-130-773.13 and 4VAC25-130-773.19(b).

(4) If an application for renewal includes any proposed revisions to the permit, such revisions shall be identified and subject to the requirements of 4VAC25-130-774.13.

(5) If an applicant for renewal of a permit includes a proposal to extend the mining and reclamation operation beyond the boundaries authorized in the existing permit, the portion of the application which addresses any new land areas shall be subject to the full standards applicable to new permit applications under the Act, Parts 773, 774, 775, 777, 778, 779, 780, 783, 784, and applicable portions of 785, Subchapter VJ and this chapter.

(c) Approval process.

(1) Criteria for approval. The division shall approve a complete and accurate application for permit renewal, unless it finds, in writing that--

(i) The terms and conditions of the existing permit are not being satisfactorily met;

(ii) The present surface coal mining and reclamation operations are not in compliance with the environmental protection standards of the Act and this chapter;

(iii) The requested renewal substantially jeopardizes the permittee's continuing ability to comply with the Act and the regulatory program on existing permit areas;

(iv) The permittee has not provided evidence of having liability insurance or self-insurance as required in 4VAC25-130-800.60;

(v) The permittee has not provided evidence that any performance bond required to be in effect for the operation will continue in full force and effect for the proposed period of renewal, as well as any additional bond the division might require pursuant to Subchapter VJ; or

(vi) Additional revised or updated information required by the division has not been provided by the applicant.

(2) Burden of proof. In the determination of whether to approve or deny a renewal of a permit, the burden of proof shall be on the opponents of renewal.

(d) Renewal term. Any permit renewal shall be for a term not to exceed the period of the original permit established under 4VAC25-130-773.19.

(e) Notice of decision. The division shall send copies of its decision to the applicant, to each person who filed comments or objections on the renewal, to each party to any informal conference held on the permit renewal, and to the OSM.

(f) Administrative and judicial review. Any person having an interest which is or may be adversely affected by the decision of the division shall have the right to administrative and judicial review set forth in Part 775.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 774.15, 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.

4VAC25-130-774.17. Transfer, assignment, or sale of permit rights.

(a) General. No transfer, assignment, or sale of rights granted by a permit shall be made without the prior written approval of the division. At its discretion, the division may allow a prospective successor in interest to engage in surface coal mining and reclamation operations under the permit during the pendency of an application for approval of a transfer, assignment, or sale of permit rights submitted under subdivision (b) of this section, provided that the prospective successor in interest can demonstrate to the satisfaction of the division that sufficient bond coverage will remain in place.

(b) Application requirements. An applicant for approval of the transfer, assignment, or sale of permit rights shall--

(1) Provide the division with an application for approval of the proposed transfer, assignment, or sale including--

(i) The name and address of the existing permittee and permit number;

(ii) A brief description of the proposed transaction requiring approval; and

(iii) The legal, financial, compliance, and related information required by Part 778 for the applicant for approval of the transfer, assignment, or sale of permit rights.

(2) Advertise the filing of the application in a newspaper of general circulation in the locality of the operations involved, indicating the name and address of the applicant, the permittee, the permit number or other identifier, the geographic location of the permit, and the address to which written comments may be sent;

(3) Obtain appropriate performance bond coverage in an amount sufficient to cover the proposed operations, as required under Subchapter VJ.

(c) Public participation. Any person having an interest which is or may be adversely affected by a decision on the transfer, assignment, or sale of permit rights, including an official of any Federal, State, or local government agency, may submit written comments on the application to the division within 30 days.

(d) Criteria for approval. The division may allow a permittee to transfer, assign, or sell permit rights to a successor, if it finds in writing that the successor--

(1) Is eligible to receive a permit in accordance with 4VAC25-130-773.15(b) and (c);

(2) Has submitted a performance bond or other guarantee, or obtained the bond coverage of the original permittee, as required by Subchapter VJ; and

(3) Meets any other requirements specified by the division.

(e) Notification.

(1) The division shall notify the permittee, the successor, commenters, and the OSM of its findings.

(2) Proof of the consumation shall be submitted to the division upon its approval of the transfer, assignment, or sale of permit rights, and prior to the issuance of the new permit.

(f) Continued operation under existing permit. The successor in interest shall assume the liability and reclamation responsibilities of the existing permit and shall conduct the surface coal mining and reclamation operations in full compliance with the Act, the regulatory program, and the terms and conditions of the existing permit, unless the applicant has obtained a new or revised permit as provided in this Subchapter.

Statutory Authority

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

Historical Notes

Derived from VR480-03-19 § 774.17, 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; Volume 29, Issue 13, eff. March 27, 2013.

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