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
6/14/2021

Article 5. Coal Surface Mining Reclamation Fund.

§ 45.1-270.1. Creation of Fund.

There is hereby created in the office of the State Treasurer a special fund to be known as the Coal Surface Mining Reclamation Fund, hereinafter referred to as the Fund, which shall be administered as set forth in this article. The Fund shall consist of all payments made into the Fund in accordance with the provisions of this article, as well as all interest earned on money contained in the Fund.

1982, c. 334.

§ 45.1-270.2. Participation in Fund.

A. Participation in the Fund shall be open to all operators applying for a permit under Chapter 19 (§ 45.1-226 et seq.) of this title, who can demonstrate to the Director at least a consecutive three-year history of compliance under this act or any other comparable state or federal act.

B. Participation in the Fund shall be optional as to each permit application and approval of such participation by the Division, upon payment by the operator of all entrance fees to the Fund required by this article, shall constitute compliance with all requirements of § 45.1-241 and regulations issued pursuant thereto. Such participation shall relieve the operator of all bonding requirements except those set forth in this article. Nothing herein shall preclude compliance with § 45.1-241 in lieu of participation in the Fund, prior to commencement of the participation. Commencement of participation in the Fund, as to the applicable permit, shall constitute an irrevocable commitment to participate therein as to the applicable permit and for the duration of the coal surface mining operations covered thereunder.

C. For mining operations bonded under this article, the total cumulative amount of exposed highwall shall not exceed 1,500 linear feet. The width of the coal pit shall be limited to two mining cuts or 500 feet, whichever is less, measured perpendicular from the most advanced highwall to the coal outcrop or to the nearest point of rough backfilling and grading.

D. The Director may allow extended distances for rough backfilling and grading beyond those established in this section provided (i) the applicant can demonstrate to the Director at least a seven consecutive year history of compliance with this act or with any other comparable state or federal act, or (ii) the applicant submits a bond for the proposed additional area. The additional bond shall be equal to the ratio of the extended distance to the distance specified in subsection C above, times an approved cost estimate of reclamation prepared for the permit.

1982, c. 334; 1983, c. 131; 1989, c. 432.

§ 45.1-270.3. Initial payments into Fund; renewal payments; bonds.

A. Operators filing permit applications for coal surface mining operations participating in the pool fund shall be required to pay into the Fund, as an entrance fee, a sum equal to $1,000 for each applicable permit application. An entrance fee of $5,000 shall be required of all operators who elect to participate in the Fund when the Director has determined the total balance of the Fund is less than $1,750,000. The entrance fee shall be reduced to $1,000 when the total Fund balance is greater than $2 million. A renewal fee of $1,000 shall be required of all permittees in the Fund at permit renewal.

1. For the purposes of this section, all planned expenditures shall be deducted from the balance of the Fund during each calendar quarter, including forfeitures on which engineering cost estimates have been prepared, but no money has actually been expended from the Fund.

2. Should the actual expenditures from the Fund be less than the engineering cost estimate, then the difference shall be credited to the balance of the Fund during the calendar quarter in which the final expenditure is made from the Fund to accomplish the reclamation.

B. In addition to the initial payments into the Fund described in subsection A of this section, all operators that participate in the Fund shall furnish to the Fund a bond which meets the criteria of § 45.1-241 and regulations issued pursuant thereto as follows:

1. For those underground mining operations participating in the Fund prior to July 1, 1991, the amount of $1,000 per acre covered by each permit. In no event shall such total bond be less than $40,000, except that on permits which have completed all mining and for which completion reports have been approved prior to July 1, 1991, the total bond shall not be less than $10,000.

2. For underground mining operations entering the Fund on or after July 1, 1991, and for additional acreage bonded on or after July 1, 1991, the amount of $3,000 per acre. In no event shall the total bond for such underground operations entering the Fund on or after July 1, 1991, be less than $40,000.

3. For other coal mining operations participating in the Fund prior to July 1, 1991, the amount of $1,500 per acre covered by each permit. In no event shall such total bond be less than $100,000, except that on permits which have completed all mining and for which completion reports have been approved prior to July 1, 1991, the total bond shall not be less than $25,000.

4. For other coal mining operations entering the Fund on or after July 1, 1991, and for additional acreage bonded on or after July 1, 1991, the amount of $3,000 per acre. In no event shall the total bond for such operations entering the Fund on or after July 1, 1991, be less than $100,000.

C. All fees and payments provided in this article shall be in addition to initial permit application and anniversary payments provided pursuant to § 45.1-235 or any other payments required in compliance with this chapter.

D. Fund participants shall be allowed to post incremental bonds as set forth in § 45.1-241. Such bonds will be posted in annual increments according to a schedule contained in the permit application and approved annually by the Director on the anniversary date.

E. Any mining operation participating in the Fund that has been in temporary cessation for more than six months as of July 1, 1991, shall within 90 days of that date post bond equal to the total estimated cost of reclamation for all portions of the permitted site which are in temporary cessation. Any mining operation participating in the Fund that has been in temporary cessation six months or less as of July 1, 1991, shall within 90 days after the date on which the operation has been in temporary cessation for more than six months post bond equal to the total estimated cost of reclamation for all portions of the permitted site which are in temporary cessation. Any mining operation participating in the Fund that enters temporary cessation on or after July 1, 1991, shall, prior to the date on which the operation has been in temporary cessation for more than six months, post bond equal to the total estimated cost of reclamation for all portions of the permitted site which are in temporary cessation. Such bond shall remain in effect throughout the remainder of the period during which the site is in temporary cessation. At such time as the site returns to active status, the bond posted under this subsection may be released, provided the permittee has posted bond pursuant to subsection B of this section.

1982, c. 334; 1983, c. 131; 1989, c. 432; 1991, c. 495; 2014, cc. 111, 135.

§ 45.1-270.3:1. Repealed.

Repealed by Acts 1991, c. 495.

§ 45.1-270.4. Assessment of reclamation tax revenues for Fund.

A. There is hereby levied a reclamation tax upon the production of coal by operators participating in the Fund under permits issued under this chapter as set forth herein.

B. Thirty days after the end of each calendar quarter during which the total balance of the Fund, including interest thereon, is less than $20 million, all operators shall pay into the Fund an amount equal to:

1. Four cents per clean ton of coal produced by a surface mining operation permitted under this chapter.

2. Three cents per clean ton of coal produced by a deep mining operation permitted under this chapter.

3. One and one-half cents per clean ton of coal processed or loaded by preparation or loading facilities permitted under this chapter.

C. At the end of each calendar quarter during which the total balance in the Fund, including interest thereon, exceeds $20 million, payments under this section shall cease until again required pursuant to subsection B.

D. In no event shall any operator pay reclamation tax under this section on total coal production in excess of five million tons per calendar year, regardless of the number of permits held by that operator. In no event shall any operator holding more than one type of permit pay tax at a rate in excess of five and one-half cents per ton on coal originally surface mined by that operator or in excess of four and one-half cents per ton on coal originally deep mined by that operator. Any operator holding one permit upon which coal is mined and processed or loaded shall pay only the tax applicable under this section to the surface mining operation or deep mining operation.

1982, c. 334; 1983, c. 131; 1987, c. 468; 1991, c. 495; 2014, cc. 111, 135.

§ 45.1-270.4:1. Special assessment.

A. In addition to the tax assessed pursuant to § 45.1-270.4, and in order to ensure Fund solvency, the Commissioner of the Division of Mined Land Reclamation shall require each permittee to pay any special assessment made pursuant to subsection B of this section.

B. On and after July 1, 1990, the Commissioner of the Division of Mined Land Reclamation shall assess each permit in the Fund the amount of $500. This assessment shall be made only one time and all revenues collected shall be applied to the balance of the Fund. The permittee shall be responsible for payment of the assessment.

On or after July 1, 1991, the Commissioner of the Division of Mined Land Reclamation shall assess an amount not to exceed $500,000. The amount of the assessment shall be $250 for each permit participating in the Fund which has completed all mining activity and for which a completion report has been approved. The remaining assessments shall be made in equal amounts per acre for each disturbed acre permitted under the Fund. The amount of disturbed acreage for each permit shall be determined by the most recent anniversary map, or updated anniversary map, submitted by the permittee to the Division of Mined Land Reclamation prior to July 1, 1991. The assessments under this subsection shall not apply to acreage that has been reclaimed and for which an increment of the bond has been transferred to other acreage in the permit. The assessments under this subsection shall be made only one time and all revenues collected shall be applied to the balance of the Fund. The permittee shall be responsible for payment of the assessment.

C. Failure to tender moneys assessed pursuant to the provisions of this section within thirty calendar days of assessment shall constitute a violation of the Virginia Coal Surface Mining Control and Reclamation Act (§ 45.1-226 et seq.). Any civil penalties collected for violations of this section shall be applied to the balance of the Fund.

1990, c. 427; 1991, c. 495.

§ 45.1-270.5. Collection of reclamation tax and penalties for nonpayment.

A. Payment of taxes under this section shall be made no later than thirty days after the end of each calendar quarter when taxes are applicable in accordance with § 45.1-270.4. The Division shall notify each operator holding a permit under Chapter 19 (§ 45.1-226 et seq.) of this title of those periods during which the taxes are applicable, and shall provide forms for reporting coal production figures subject to taxes and shall collect all taxes for the Fund.

B. Pursuant to regulations promulgated by the Director, and consistent with the provisions of § 45.1-248, all funds paid into the Fund, and interest accrued to the Fund, shall be available for the completion of defaulted reclamation plans filed pursuant to § 45.1-236. From the interest accrued to the Fund, amounts sufficient to properly administer the Fund are hereby appropriated to the Division. The Director shall also promulgate regulations for the implementation of this article and for the collection of taxes hereunder.

C. The Division, upon advance written request to an operator, may audit the relevant books and records of the operator upon which taxes paid under this section are based. Failure to consent to a reasonable request for the audit shall be deemed a violation of this article by the operator.

D. Upon the failure of an operator to pay taxes when due under this section, the Division shall issue a notice of violation pursuant to § 45.1-245 B. The notice of violation shall state that upon failure of payment within fifteen days thereafter, the Division shall issue a cessation order to the operator for failure to abate the notice of violation. Upon the issuance of the cessation order, the enforcement procedures set forth in § 45.1-245 et seq. shall apply. Civil penalties imposed upon an operator pursuant to a violation of this article shall be placed in the Fund.

1982, c. 334; 1984, c. 590.

§ 45.1-270.5:1. Forfeiture of bonds on operations participating in the Fund; alternative remedies.

A. Forfeiture of bonds of operations participating in the Fund shall be accomplished as set forth in § 45.1-247 and the regulations promulgated by the Director.

B. In addition to forfeiture, the Director may proceed against the permittee of the surface coal mining operation, under the provisions of § 45.1-245 E, by filing a civil action for injunctive or other relief in any court of competent jurisdiction to compel the permittee to perform the reclamation work in full compliance with this chapter, the regulations and the approved permit plans. Any injunctive relief shall be granted without the necessity of pleading or proving inadequate remedy at law or irreparable harm and no bond shall be required.

C. Proceedings under either subsection A or subsection B shall not constitute a waiver by the Director to proceed under the other subsection, nor shall the commencement of action under one subsection constitute an election to proceed solely under that subsection.

1987, c. 468.

§ 45.1-270.6. Reinstatement to the Fund; recovery of Fund expenditures.

A. An operator who has defaulted on any reclamation obligation and has thereby caused the Fund to incur reclamation expenses as a result thereof shall not be eligible to participate in the Fund thereafter until restitution for such default has been made. Compliance with this requirement shall be a prerequisite to the filing by the operator of any new permit application under this chapter but shall not affect the operator's need to comply with all other requirements of this chapter in applying for a permit.

B. The Director may file a motion for judgment in any court of competent jurisdiction against the permittee to recover all moneys expended by the Fund to accomplish the reclamation. Such expenditures shall include but not be limited to construction costs, engineering costs, administrative costs, and legal costs. In any action to recover these costs, the defendant may not relitigate the facts giving rise to the forfeiture nor may the defendant defend by claiming the forfeiture was improper.

1982, c. 334; 1987, c. 468.

§ 45.1-270.7. Coal Surface Mining Reclamation Fund Advisory Committee continued as Coal Surface Mining Reclamation Fund Advisory Board.

A. The Coal Surface Mining Reclamation Fund Advisory Committee is continued and shall hereafter be known as the Coal Surface Mining Reclamation Fund Advisory Board. The Reclamation Fund Advisory Board shall consist of seven members appointed by the Governor subject to confirmation by the General Assembly, at least four of whom shall represent the coal industry, one of whom shall be a representative of the Director, and two of whom shall represent conservation interests and such other public and private interests as may be appropriate in accordance with Article V of the Interstate Mining Compact (§ 45.1-271). The Director of the Division shall be a continuing ex officio nonvoting member of the Reclamation Fund Advisory Board and shall serve as Secretary thereto.

B. The voting members of the Reclamation Fund Advisory Board shall initially be appointed for terms of one, two, three, four, and five years, such terms to be assigned by lot. Thereafter, all members shall be appointed for five-year terms. No person shall serve more than two consecutive terms.

C. The Reclamation Fund Advisory Board shall annually elect a chairman and shall formulate rules for its organization and procedure.

D. The voting members of the Reclamation Fund Advisory Board shall serve without compensation or reimbursement for expenses incurred in the performance of their duties.

E. The Reclamation Fund Advisory Board shall meet not less than twice each year for the purpose of formulating recommendations to the Director concerning oversight of the general operation of the Fund. The Reclamation Fund Advisory Board shall report biannually to the Director and to the Governor on the status of the Fund and shall recommend to the Director regulations or changes thereto for the administration or operation of the Fund. The Director, in his discretion, may adopt the recommendations of the Reclamation Fund Advisory Board through regulatory action from time to time in accordance with the provisions of Chapter 19 (§ 45.1-226 et seq.) and otherwise in accordance with law.

F. The Reclamation Fund Advisory Board shall serve as the advisory body required by Article V of the Interstate Mining Compact (§ 45.1-271).

1982, c. 334; 1985, c. 448; 2018, c. 67.