Code of Virginia

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Code of Virginia
Title 45.1. Mines and Mining
Chapter 19. Virginia Coal Surface Mining Control and Reclamation Act of 1979
1/16/2021

Article 4. Abandoned Mine Reclamation.

§ 45.1-260. State Reclamation Program.

A. The Commonwealth's program for the reclamation of land and water adversely affected by past mining shall include the State Reclamation Plan and fund and annual reclamation projects, as provided for in this article.

B. The Director is authorized to develop and submit to the Secretary for his approval a State Reclamation Plan in accordance with the provisions of Title IV of the federal act and of this article. The plan shall generally identify the areas to be reclaimed, the purposes for which the reclamation is proposed, the relationship of the lands to be reclaimed and the proposed reclamation to surrounding areas, the specific criteria for ranking and identifying projects to be funded, and the programmatic capability of the Division to perform such work, and shall include such regulations, policies, and procedures as may be necessary to establish and implement the plan and annual reclamation projects, and to carry out the provisions of this article. The Director may from time to time develop and submit to the Secretary amendments and revisions to the plan, consistent with this article.

C. The Director is authorized:

1. To prepare and submit to the Secretary annual applications for the support of the State Reclamation Program and implementation of specific reclamation projects;

2. To enter into agreements with the Secretary for the emergency restoration, reclamation, abatement, control or prevention of the adverse effects of coal mining practices;

3. To administer the State Reclamation Plan and the annual reclamation projects and to receive and administer grants from the Secretary therefor;

4. To prepare and submit such information and reports as the Secretary may request.

D. The Director and the Department, in carrying out the functions of preparing and revising the State Reclamation Plan and developing annual reclamation projects, shall provide appropriate opportunities for public involvement.

1979, c. 290; 1984, c. 590.

§ 45.1-261. Abandoned Mine Reclamation Fund.

A. There is hereby created in the State Treasurer's office a special fund to be known as the Abandoned Mine Reclamation Fund, referred to in this article as the fund, which shall be administered by the Director.

B. The fund shall consist of deposits, made from time to time, of:

1. Amounts granted by the Secretary for purposes of conducting the approved State Reclamation Plan and annual reclamation projects;

2. Use fees charged for uses of lands acquired or reclaimed pursuant to this article, after expenditures for maintenance have been deducted;

3. Moneys recovered through the satisfaction of liens filed against privately owned land pursuant to this article;

4. Moneys recovered from sale of lands acquired by the Director pursuant to this article;

5. Donations made for the purposes of this article and other moneys made available or appropriated to the Director for such purposes.

C. Moneys deposited in the fund shall be used to carry out the State Reclamation Program as approved by the Secretary.

1979, c. 290.

§ 45.1-261.1. Operators may perform reclamation; bidding; conditions; adjustment of required bonds; regulations.

A. Notwithstanding any licensing requirement under Title 54.1, an operator shall be eligible to bid on contracts to conduct reclamation projects under the State Reclamation Program and the Coal Surface Mining Reclamation Fund in accordance with this article and Article 5 (§ 45.1-270.1 et seq.), provided the Director finds that the following conditions have been met: (i) the operator has had at least three years of relevant mining experience in the Commonwealth pursuant to Chapter 19 (§ 45.1-226 et seq.) and (ii) the operator meets all other applicable requirements of federal, state, and local law.

B. Notwithstanding the provisions of Title 11, the Director may adjust the amount of required bid or performance bonds for such contracts upon a finding that such amounts are sufficient to protect the public interest.

C. The Director shall promulgate regulations to implement this section.

1983, c. 77; 1984, c. 590; 1991, c. 495; 2013, cc. 47, 129.

§ 45.1-262. Eligible lands and water; priorities for expenditures.

A. Lands and water eligible for reclamation or drainage abatement expenditures under this article are those which were mined for coal or which were affected by such mining, waste banks, coal processing, or other coal mining processes, and abandoned or left in an inadequate reclamation status and for which there is no continuing reclamation responsibility under state or federal laws.

B. The Director shall establish priorities in the State Reclamation Plan for the expenditure of funds in conformance with the priorities set forth in § 403 of the federal act.

1979, c. 290; 1984, c. 590.

§ 45.1-263. Right of entry, acquisition, disposition and reclamation of land adversely affected by past coal mining practices.

A. The Director shall take all reasonable actions to obtain written consent from the owner or owners of record of the land or property to be entered onto to perform an inspection for purposes of reclamation or for conducting studies or exploratory work pertaining to the need for and feasibility of reclamation, prior to such entry.

B. If the Director, pursuant to an approved state program, makes a finding of fact that:

1. Land or water resources have been adversely affected by past coal mining practices;

2. The adverse effects are at a state where, in the public interest, action to restore, reclaim, abate, control, or prevent should be taken; and

3. The owners of the land or water resources where entry must be made to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices are not known, or readily available; or

4. The owners will not give permission for the Director or his agents, employees, or contractors to enter upon such property to restore, reclaim, abate, control or prevent the adverse effects of past coal mining practices, then, upon giving notice by certified mail to the owners if known or if not known by posting notice upon the premises and advertising once in a newspaper of general circulation in the municipality or county in which the land lies, the Director, his agents, employees, or contractors shall have the right to enter upon the property adversely affected by past coal mining practices and any other property to have access to such property to do all things necessary or expedient to restore, reclaim, abate, control or prevent the adverse effects. Such entry shall be construed as an exercise of the police power for the protection of public health, safety and general welfare and shall not be construed as an act of condemnation of property nor of trespass thereon. The moneys expended for such work and the benefits accruing to any such premises so entered upon shall be chargeable against such land to the extent provided in § 45.1-264, and shall mitigate or offset any claim in or any action brought by any owner of any interest in such premises for any alleged damages by virtue of such entry; provided, however, that this provision is not intended to create new rights of action or eliminate the existing sovereign immunity of the Commonwealth and its agents and employees.

C. The Director, his agents, employees, or contractors shall have the right to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of past coal mining practices and to determine the feasibility of restoration, reclamation, abatement, control, or prevention of such adverse effects. Such entry shall be construed as an exercise of the police power for the protection of public health, safety and general welfare and shall not be construed as an act of condemnation of property nor trespass thereon.

D. The Director, pursuant to an approved state program, may acquire title in the name of the Commonwealth to any land or interest therein by purchase, donation, or condemnation, if such land or interest is adversely affected by past coal mining practices, after approval of the Secretary and upon a determination that acquisition of such land is necessary to successful reclamation, and that:

1. The acquired land, after restoration, reclamation, abatement, control, or prevention of the adverse effects of past coal mining practices, will serve recreation and historic purposes, conservation and reclamation purposes or provide open space benefits; and

2. Permanent facilities such as a treatment plant or a relocated stream channel will be constructed on the land for the restoration, reclamation, abatement, control or prevention of the adverse effects of past coal mining practices; or

3. Acquisition of coal refuse disposal sites and all coal refuse thereon will serve the purposes of this article or that public ownership is desirable to meet emergency situations and prevent recurrences of the adverse effects of past coal mining practices.

The price paid for land acquired under this section shall reflect the market value of the land as adversely affected by past coal mining practices.

E. The Director, with the approval of the Secretary, and in accordance with the State Reclamation Plan, may:

1. Transfer the administrative responsibility for land acquired under this section to any state, regional, or local agency, department, or institution, with or without cost, upon such terms as will insure that the use of the land is consistent with the authorization under which the land was acquired;

2. Sell land acquired under this section which is suitable for industrial, commercial, residential, or recreational development, by public sale under a system of competitive bidding, at not less than fair market value and under such regulations promulgated to insure that such lands are put to proper use consistent with local, state or federal land use plan, if any, for the area in which the land is located; and

3. Transfer land acquired under this section to the United States to be reclaimed by the Secretary and after reclamation is completed, any state, regional, or local agency, department, or institution may purchase such land from the Secretary for governmental, educational, recreational, historical, open-space or other public purposes upon such terms as the Secretary may require.

F. Prior to the disposition of any land acquired under this section the Director, pursuant to the State Reclamation Plan, when requested after appropriate public notice shall hold a public hearing in the city or county or cities or counties where the land is located. The hearing shall be held at a time which shall afford local citizens and governments the maximum opportunity to participate in the decision concerning the use or disposition of the lands after restoration, reclamation, abatement, control, or prevention of the adverse effects of past coal mining practices.

G. The Director may authorize the use, pending disposition, of land acquired under this section, for any lawful purpose that is not inconsistent with the reclamation and post-reclamation uses for which the land was acquired. The Director shall charge any user of the land a reasonable use fee, which shall go toward the purpose of operating and maintaining improvement of the land, and any excess thereof shall be deposited in the State Reclamation Fund. The Director may waive the fee if he finds in writing that a waiver is in the public interest.

H. Any state, regional, or local agency, department, or institution may purchase or otherwise acquire and develop lands which the Secretary is authorized to dispose of pursuant to § 407(h) of the federal act.

1979, c. 290.

§ 45.1-264. Commonwealth to have lien for reclamation work.

The Commonwealth shall have a lien, if perfected as hereinafter provided, on land reclaimed by the Director pursuant to this article for the amount of the increase in the appraised market value of the land resulting from the reclamation, except that no lien shall attach to or be filed against the property of any person who owned the surface of the land prior to May 2, 1977, and who neither consented to, nor participated in, nor exercised control over the mining operation which necessitated the reclamation performed under this article, nor shall any lien attach to or be filed against any property if the Director waives the lien as hereinafter provided.

1979, c. 290.

§ 45.1-265. Perfection of lien; waiver of lien.

A. The Director shall perfect the lien given under the provisions of § 45.1-264, by filing, within six months after completion of the reclamation, in the clerk's office of the court of the county or city in which the land or any part thereof is situate, a statement consisting of the names of the owner or owners of record of the property sought to be charged, an itemized account of moneys expended for the reclamation work, and notarized copies of appraisals, made by an independent appraiser, of the fair market value of the land both before and upon completion of the reclamation work, and a brief description of the property to which the lien attaches.

B. The Director shall waive a lien if he determines that the direct and indirect costs of filing such lien exceeds the increase in fair market value resulting from reclamation, or that the reclamation primarily benefits health, safety or environmental values of the community or area in which the land is located, or if reclamation is necessitated by an unforeseen occurrence, that the reclamation will not result in a significant increase in the market value of the land.

1979, c. 290.

§ 45.1-266. Recordation and indexing of lien; notice.

It shall be the duty of the clerk in whose office the statement described in § 45.1-265 is filed to record the same in the deed books of such office, and to index the same in the general index of deeds, in the name of the Commonwealth as well as the owner of the property, and showing the type of such lien. From the time of such recording and indexing, all persons shall be deemed to have notice thereof.

1979, c. 290.

§ 45.1-267. Priority of lien.

Liens acquired under this article shall have priority as a lien second only to the lien of real estate taxes imposed upon the land.

1979, c. 290.

§ 45.1-268. Hearing to determine amount of lien.

Any party having an interest in the real property against which a lien has been filed may, within sixty days of such filing, petition the court of equity having jurisdiction wherein the property or some portion thereof is located to hold a hearing to determine the increase in the market value of the land as a result of reclamation. After reasonable notice to the Director the court shall hold a hearing to determine such increase. If the court determines such increase to be erroneously excessive, it shall determine the proper amount and order that the lien and the record be amended to show this amount.

1979, c. 290.

§ 45.1-269. Satisfaction of lien.

Liens acquired under this article shall be satisfied to the extent of the value of the consideration received at the time of transfer of ownership. Any unsatisfied portion shall remain as a lien on the property and shall be satisfied in accordance with this section. If an owner fails to satisfy a lien as provided herein the Director may proceed to enforce the lien by a bill filed in a court of equity having jurisdiction wherein the property or some portion thereof is located.

1979, c. 290.

§ 45.1-270. Miscellaneous powers of Director.

A. In addition to any other remedies provided for in this chapter, the Director may petition any court of competent jurisdiction for an injunction to restrain any interference with the exercise of the right to enter or to conduct any work pursuant to this chapter.

B. The Director is authorized, to the extent of funds available for the purposes herein, to construct and operate plants for the control and treatment of water pollution resulting from mine drainage. Such plants may include major intercepters and other facilities appurtenant to the plant. No such control or treatment shall in any way be less than that required under the federal Water Pollution Control Act.

C. The Director may transfer funds to other appropriate state or local agencies in order to carry out the reclamation authorized by this article.

1979, c. 290.