Virginia Law

Article 2. Regulation of Mining Activity.

There is hereby created in the state treasury a special nonreverting fund to be known as the Permit Fee Fund, referred to in this section as "the Fund." The Fund shall be established on the books of the Comptroller. All permit fees and renewal fees collected pursuant to § 45.2-1205 shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purpose of the administration of this chapter. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Director.

2021, Sp. Sess. I, c. 387.

A. It is unlawful for any operator to engage in any mining operation in the Commonwealth without first obtaining from the Department a permit to engage in such operation and paying a permit fee of $50 per acre for every acre of land to be affected by the total operation for which plans have been submitted. Such permit fee shall be deposited in the Permit Fee Fund pursuant to § 45.2-1204. A permit shall be obtained prior to the start of any mining operation.

B. A separate permit shall be secured for each mining operation conducted. An application for a mining permit shall be made in writing on forms prescribed by the Director and shall be signed and sworn to by the applicant or his duly authorized representative. The application, in addition to other information reasonably required by the Director, shall contain the following information: (i) the common name and geologic title, where applicable, of the mineral to be extracted; (ii) a description of the land upon which the applicant proposes to conduct mining operations, setting forth the name of the county or city in which such land is located, the location of its boundaries, and any other description of the land to be disturbed necessary to allow it to be located and distinguished from other lands and easily ascertainable as shown by a map attached thereto showing the amount of land to be disturbed; (iii) the name and address of the owner or owners of the surface of the land; (iv) the name and address of the owner or owners of the mineral, ore, or other solid matter; (v) the source of the operator's legal right to enter and conduct operations on the land to be covered by the permit; (vi) the total number of acres of land to be covered by the permit; (vii) a reasonable estimate of the number of acres of land that will be disturbed by mining operations on the area to be covered by the permit during the ensuing year; (viii) whether any mining permit of any type is now held by the applicant, and the number of such permits; (ix) the name and address of the applicant, if an individual; the names and addresses of all partners, if a partnership; the state of incorporation and the name and address of its registered agent, if a corporation; or the name and address of the trustee, if a trust; and (x) if known, whether the applicant, any subsidiary or affiliate of the applicant, any partnership, association, trust, or corporation controlled by or under common control with the applicant, or any person required to be identified by clause (ix) has ever had a mining permit of any type issued under the laws of the Commonwealth or any other state revoked or has ever had a mining or other bond, or security deposited in lieu of bond, forfeited. Clause (iv) shall not apply to the shell, container chamber, passage, or open space set forth in § 45.2-402.

C. The application for a permit shall be accompanied by two copies of an accurate map or aerial photograph or plan that meets the following requirements:

1. Is prepared by a licensed engineer or licensed land surveyor or issued by a standard mapping service or in a manner acceptable to the Director;

2. Identifies the area corresponding with the land described in the application;

3. Shows adjacent deep mining, if any, and the boundaries of surface properties, with the names of owners of the affected area that lie within 100 feet of any part of the affected area;

4. Is drawn to a scale of 400 feet to the inch or better;

5. Shows the names and locations of all streams, creeks, or other bodies of public water, roads, buildings, cemeteries, gas and oil wells, and utility lines on the area affected and within 500 feet of such area;

6. Shows by appropriate markings the boundaries of the area of land affected, the outcrop of the seam at the surface or the deposit to be mined, and the total number of acres involved in the area of land affected;

7. Shows the date on which the map was prepared, the north arrow, and the quadrangle name; and

8. Shows the drainage plan on and away from the area of land affected, including the directional flow of water, constructed drainways, natural waterways used for drainage, and the streams or tributaries receiving the discharge.

D. No permit shall be issued by the Department until the Director has approved the plan of operation required in this section and § 45.2-1206 and the bond from the applicant as required in § 45.2-1208.

E. If the operator believes that changes in his original plan are necessary or if additional land not shown as a part of the approved plan of operation is to be disturbed, he shall submit an amended plan of operation that shall be reviewed for approval by the Director in the same manner as an original plan and shall be subject to the provisions of this section and §§ 45.2-1206 and 45.2-1208.

F. If within 10 days of the anniversary date of the permit, the Director, after inspection, is satisfied that the operation is proceeding according to the plan submitted to and approved by him, then the Director shall renew the permit upon payment of a renewal fee by the operator for land to be affected by the total operation in the next ensuing year according to the following schedule:

Anniversary Date: Renewal Fee:

Beginning July 1, 2019 $18 per disturbed acre

Beginning July 1, 2020 $20 per disturbed acre

Beginning July 1, 2021 $22 per disturbed acre

Beginning July 1, 2022 $24 per disturbed acre

The renewal fees shall be deposited in the Permit Fee Fund pursuant to § 45.2-1204.

G. Upon receipt of a written request by any landowner on whose property a sand and gravel operation is permitted pursuant to this section, the operator of the sand and gravel operation shall provide a copy of the map, photograph, or plan to the landowner.

1968, c. 734, § 45.1-181; 1972, c. 206; 1974, c. 312; 1977, c. 312; 1983, c. 322; 1996, cc. 648, 659; 2003, cc. 542, 550; 2012, c. 695; 2019, c. 538; 2021, Sp. Sess. I, c. 387.

A. Each application for a permit shall be accompanied by an operations plan that follows the form and contains the accompanying material that the Director requires. The operations plan shall describe the specifications for surface grading and restoration, including sketches delineating placement of spoil, stockpiles, and tailing ponds, to a surface that is suitable for the proposed subsequent use of the land after reclamation is completed.

B. The operations plan shall include a provision for reclamation of all land estimated to be affected by the mining operation for which the permit is sought. The reclamation provision shall follow the form and contain the accompanying material that the Director requires and shall state:

1. The planned use to which the affected land is to be returned through reclamation; and

2. The proposed actions to ensure suitable reclamation of the affected land for the planned use to be carried out by the applicant as an integral part of the proposed mining operation and to be conducted simultaneously insofar as practicable. The Director shall set schedules for the integration of reclamation with the mining operation according to the various individual mineral types.

C. It is the policy of the Director to encourage adoption of productive land use, such as use for pasture, agricultural purposes, recreational areas, sanitary landfills, forestry and timberland operations, and industrial and building sites, and to consider the general original contour in determining the particular reclamation program for the acreage. The Director may require an amendment to the operations plan to meet the exigencies of any unanticipated circumstance or event.

1977, c. 312, § 45.1-182.1; 1984, c. 590; 2021, Sp. Sess. I, c. 387.

There is hereby created in the state treasury a special nonreverting fund to be known as the Special Reclamation Fund, referred to in this section as "the Fund." The Fund shall be established on the books of the Comptroller. All forfeited bonds collected pursuant to this chapter shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purpose of performing reclamation pursuant to the provisions of this chapter. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Director.

2021, Sp. Sess. I, c. 387.

Each operator at the time of filing his application shall furnish bond on a form that is prescribed by the Director. Such bond shall be payable to the Department and conditioned on the faithful performance by the operator of all requirements of this chapter and the operations plan as approved and directed by the Department. The amount of bond shall be $3,000 per acre, based upon the number of acres of land that the operator estimates will be affected by mining operations during the next year. Such bond shall be executed by the operator and by a corporate surety licensed to do business in the Commonwealth. However, in lieu of such bond the operator may deposit cash or collateral security acceptable to the Director.

1968, c. 734, § 45.1-183; 1970, c. 245; 1972, c. 206; 1974, c. 312; 1977, c. 312; 2017, c. 4; 2021, Sp. Sess. I, c. 387.

A. Upon receipt of an operations plan acceptable to the Director and bond as required by this article, the Director shall review the plan. If the Director approves the plan, he shall issue a permit. If the Director disapproves the plan, he shall furnish the applicant with his written objections thereto and his required amendments. Until the applicant amends his operations plan to meet the Director's reasonable objections and files a satisfactory amended plan with the Director, no permit shall be issued.

B. In reviewing the operations plan, if the Director finds that the operation will constitute a hazard to the public safety or welfare, or that a reasonable degree of reclamation or proper drainage control is not feasible, he may disapprove the permit application. However, the Director may approve the permit after deleting the areas from the permit application that he holds in his findings to be objectionable.

C. The Director shall issue the permit unless he finds that the applicant has had control or has had common control with a person, partnership, association, trust, or corporation that has had a mining permit revoked or bond or other security forfeited for failure to reclaim lands as required by law, in which event no permit shall be issued. However, if an operator who forfeited a bond pays, within 30 days of notice and demand by the Director, the cost of reclamation in excess of the amount of the forfeited bond, or if any bond is forfeited and the amount forfeited is equal to or greater than the cost of reclamation, such operator shall then become eligible for another permit.

1968, c. 734, § 45.1-184; 1974, c. 312; 1977, c. 312; 2021, Sp. Sess. I, c. 387.

A. Each application for a permit shall be accompanied by a statement showing the names and addresses of the owners of each property within 1,000 feet of the property line of any land proposed to be permitted, as well as certification that such landowners have been notified by certified mail of the application for a permit unless notified previously. Such residents may file written objections with the Director and may request a hearing.

B. Each application for a permit shall also be accompanied by a statement certifying that the chief administrative official of the county or city in which the land proposed to be permitted is located has been notified of the proposed operation by certified mail.

C. This section applies to an initial application for a permit only, and no new notice shall be required for a renewal application or for a permit for acreage in addition to that originally permitted.

1977, c. 312, § 45.1-184.1; 2021, Sp. Sess. I, c. 387.

If one operator succeeds another at any uncompleted operation, whether by sale, assignment, lease, merger, or otherwise, the Director may release the first operator from all liability under this chapter as to that particular operation and transfer the permit to the successor operator. However, the successor operator shall have complied with the requirements of this chapter and shall assume as part of his obligation under this chapter all liability for the reclamation of the area of land affected by the first operator. No fee, or any portion thereof, paid by the first operator shall be returned to either operator. The permit fee for the successor operator for the area of land permitted by the first operator shall be calculated according to the following schedule, except as provided by § 45.2-1203:

Date of Succession: Permit Fee:

Beginning July 1, 2019 $18 per disturbed acre

Beginning July 1, 2020 $20 per disturbed acre

Beginning July 1, 2021 $22 per disturbed acre

Beginning July 1, 2022 $24 per disturbed acre

The mining permit for the successor operator shall be valid for one year from the date of issuance and shall be renewed thereafter in accordance with the provisions of this chapter.

1977, c. 312, § 45.1-184.2; 1996, cc. 648, 659; 2003, cc. 542, 550; 2019, c. 538; 2021, Sp. Sess. I, c. 387.

A. Within 10 days following the anniversary date of any permit, the operator shall post additional bond in the amount of $3,000 per acre for each acre of land estimated by him to be disturbed during the next year following the anniversary date of the permit. Bond or other security previously posted shall be released for each area disturbed in the last 12 months if reclamation work has been completed or transferred to additional acres to be disturbed.

B. To obtain the approval of the Director to release the bond, the operator shall file with the Department a written report on a form prescribed by the Department stating under oath that reclamation has been completed on certain lands and shall submit (i) the identity of the operation; (ii) the county or city in which the operation is located and its location with reference to the nearest public highway; (iii) a description of the area of land affected by the operation within the period of time covered by such report with sufficient certainty to enable the operation to be located and distinguished from other lands; and (iv) an accurate map or plan prepared by a licensed land surveyor or licensed engineer or issued by a standard mapping service or in a manner acceptable to the Director showing the boundary lines of the area of land affected by the operation, the number of acres comprising such area, and the methods of access to the area from the nearest public highway.

1968, c. 734, § 45.1-185; 1974, c. 312; 1977, c. 312; 2017, c. 4; 2021, Sp. Sess. I, c. 387.

A. The Director may cause a notice of noncompliance to be served on an operator whenever the operator fails to obey any order by the Director to:

1. Apply a control technique or institute an action approved in his operations or reclamation plan;

2. Comply with any required amendment to the operations or reclamation plan; or

3. Comply with any other requirement of this chapter or any regulation adopted pursuant to this chapter that affects the health, safety, or welfare of the Commonwealth.

B. A copy of the notice shall be delivered to the operator or served by certified mail addressed to the operator at the permanent address shown on the application for a permit. The notice shall specify in writing how the operator has failed to obey the order of the Director and shall require the operator to comply with the order within a reasonable period of time as fixed by the Director following service of the notice.

C. If the operator has not complied with the requirements set forth in the notice of noncompliance within the time limits fixed therein, the Director shall revoke the permit and declare the forfeiture of the entire bond. When the bond is collected, it shall be deposited in the Special Reclamation Fund created pursuant to § 45.2-1207. After completion of the reclamation and payment of all fees as required by this chapter, any additional funds from the forfeiture of the bond shall be returned to the corporate surety, and any additional funds from the forfeiture of the collateral security, certified check, or cash that was deposited in lieu of bond shall be returned to the person who provided it originally or to the operator. Within 30 days of the issuance of any permit revocation or bond forfeiture made under this section, the operator may request a review pursuant to the provisions of Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act.

1977, c. 312, § 45.1-186.1; 2012, cc. 803, 835; 2021, Sp. Sess. I, c. 387.

The amount by which the cost of reclamation exceeds the amount of the operator's forfeited bond shall constitute a debt of the operator to the Commonwealth. The Director is authorized to collect such debts, together with the cost of collection, through appropriate legal action or by declaring the forfeiture of other payments. Moneys collected through legal action, less the cost of collections, shall be deposited in the Special Reclamation Fund created pursuant to § 45.2-1207.

1981, c. 76, § 45.1-186.2; 2021, Sp. Sess. I, c. 387.

The Commonwealth shall have a lien, if perfected as provided in subsection A of § 45.2-1216, on land owned by the operator and reclaimed by the Director pursuant to this chapter 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 if the Director waives the lien as provided in subsection B of § 45.2-1216.

2017, c. 4, § 45.1-186.3; 2021, Sp. Sess. I, c. 387.

A. Except as provided in subsection B, the Director shall perfect the lien given under the provisions of § 45.2-1215 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 located, a statement consisting of the names of all owners of record of the property sought to be charged; an itemized account of moneys expended for the reclamation work; 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 (i) the direct and indirect costs of filing such lien exceed the increase in fair market value resulting from reclamation or (ii) if reclamation is necessitated by an unforeseen occurrence, the reclamation will not result in a significant increase in the fair market value of the land.

2017, c. 4, § 45.1-186.4; 2021, Sp. Sess. I, c. 387.

It is the duty of the clerk in whose office the statement described in § 45.2-1216 is filed to record the statement in the deed books of such office, and index the statement in the general index of deeds, in the name of the Commonwealth as well as the owner of the property, showing the type of the lien. From the time of such recording and indexing, all persons shall be deemed to have notice thereof.

2017, c. 4, § 45.1-186.5; 2021, Sp. Sess. I, c. 387.

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

2017, c. 4, § 45.1-186.6; 2021, Sp. Sess. I, c. 387.

Any party having an interest in the real property against which a lien has been filed may, within 60 days of such filing, petition the circuit court of the county or city in which the property or some portion thereof is located to hold a hearing to determine the increase in the fair market value of the land as a result of reclamation. After reasonable notice to the Director, the court shall hold a hearing to determine the amount of 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 such amount.

2017, c. 4, § 45.1-186.7; 2021, Sp. Sess. I, c. 387.

Any lien 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 may be satisfied in accordance with this section. If an owner fails to satisfy a lien as provided in this section, the Director may proceed to enforce the lien by a petition filed in the circuit court of the county or city in which the property or some portion thereof is located.

2017, c. 4, § 45.1-186.8; 2021, Sp. Sess. I, c. 387.

If, during any operation, it is found that the operator's estimate of the amount of disturbed land for which bond or other security has been posted for reclamation is less than the actual area disturbed, the Director shall order the operator to file additional bond or security sufficient to cover an amended estimate of land to be disturbed by such operation.

1968, c. 734, § 45.1-187; 1974, c. 312; 2021, Sp. Sess. I, c. 387.

It is unlawful for any owner of surface rights or mineral rights to interfere with the operator in the discharge of his obligations to the Commonwealth for the reclamation of lands disturbed by him. If an owner of surface rights or mineral rights desires to conduct other mining operations on lands disturbed by the operator furnishing bond pursuant to this chapter, such owner or other person shall be in all respects subject to the provisions of this chapter and the Director shall then release an equivalent amount of bonds to the operator originally furnishing bond on the disturbed area.

1968, c. 734, § 45.1-188; 1974, c. 312; 2021, Sp. Sess. I, c. 387.

Any violation of any provision of this chapter or of any order of the Director is a misdemeanor punishable by a maximum fine of $1,000 or a maximum of one year in jail, or both.

1968, c. 734, § 45.1-188; 1974, c. 312; 2021, Sp. Sess. I, c. 387.

In approving plans of operation and in issuing rules and regulations for reclamation, the Director may avail himself and the Department of the advice, assistance, and facilities of local soil and water conservation district supervisors or any other federal, state, or local agency.

1968, c. 734, § 45.1-192; 2021, Sp. Sess. I, c. 387.

Whenever adverse ecological disruptions or the injurious effects thereof seriously threaten or endanger the health, safety, welfare, or property rights of citizens of the Commonwealth, and abatement by the application of control techniques is not feasible, the Director shall petition the appropriate circuit court for an injunction to prohibit further operations. Such injunction shall not relieve the operator of the duty to reclaim lands previously affected according to the terms and conditions of the applicable permit.

1977, c. 312, § 45.1-193.1; 2021, Sp. Sess. I, c. 387.

An appeal from any order of the Department shall be conducted in accordance with Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act. The appeal shall be taken within 30 days following the issuance of the order by forwarding to the Director by certified mail a notice of appeal designating the order from which the appeal is taken.

1968, c. 734, § 45.1-194; 1974, c. 312; 1979, c. 302; 1982, c. 117; 2012, cc. 803, 835; 2021, Sp. Sess. I, c. 387.

A. Any locality may establish standards and adopt regulations dealing with the same subjects dealt with in this chapter so long as such standards and regulations are no less stringent than those adopted by the Director.

B. This chapter shall not be construed to repeal any local ordinance or regulation or charter provision in any locality where such provision is no less stringent than the standard adopted by the Director. The Director may waive the application of this chapter if, in his opinion, a locality in which mining operations are being conducted has enacted and is enforcing zoning ordinances dealing with the subject matter and prescribing standards and regulations not less stringent than those set forth in this chapter. If the Director waives any provision of this chapter, the operator shall comply strictly with all the provisions of the ordinances of the locality in which the operation is located.

C. The Director may also waive the application of this chapter as to any mining or borrow pit operation that is conducted solely and exclusively for a state project and that is subject by contract to the control and supervision of a state agency, so long as regulations satisfactory to the Director have been adopted and are incorporated into any contract for such removal. The locality or state agency shall ensure strict compliance with all provisions of the ordinances, regulations, or contracts and the Director shall from time to time review such ordinances, regulations, or contracts and their enforcement programs to ensure compliance with this chapter. If the Director determines that such strict compliance is not present, then he may rescind the waiver of the application of this chapter.

1968, c. 734, § 45.1-197; 1974, c. 312; 1977, c. 312; 2021, Sp. Sess. I, c. 387.