Current through Register Vol. 41, No. 3, September 23, 2024
(a) Upon receipt of
a complete application for a surface coal mining and reclamation operation
permit, the division shall review the application to determine whether surface
coal mining operations are limited or prohibited under 4VAC25-130-761.11 on the
lands which would be disturbed by the proposed operations.
(b)
(1)
Where the proposed operation would be located on any lands listed in
4VAC25-130-761.11(a), (f), or (g), the division shall reject the application if
the applicant has no valid existing rights for the area, or if the operation
did not exist on August 3, 1977.
(2) If the division is unable to determine
whether the proposed operation is located within the boundaries of any of the
lands in 4VAC25-130-761.11(a) or closer than the limits provided in
4VAC25-130-761.11(f) and (g), the division shall transmit a copy of the
relevant portions of the permit application to the appropriate Federal, State,
or local government agency for a determination or clarification of the relevant
boundaries or distances, with a notice to the appropriate agency that it has 30
days from receipt of the request in which to respond. The National Park Service
or the U.S. Fish and Wildlife Service shall be notified of any request for a
determination of valid existing rights pertaining to areas within the
boundaries of areas under their jurisdiction and shall have 30 days from
receipt of the notification in which to respond. The division, upon written
request by the appropriate agency, shall grant an extension to the 30-day
period of an additional 30 days. If no response is received within the 30-day
period or within the extended period granted, the division may make the
necessary determination based on the information it has available.
(c) Where the proposed operation
would include Federal lands within the boundaries of any national forest, and
the applicant seeks a determination that mining is permissible under
30
CFR 761.11(b), the applicant
shall submit a permit application to the Director of the OSM for processing
under 30 CFR Subchapter D. Before acting on the permit application, the
Director of the OSM shall ensure that the Secretary's determination has been
received and the findings required by Section 522(e)(2) of the Federal Act have
been made.
(d) Where the mining
operation is proposed to be conducted within 100 feet, measured horizontally,
of the outside right-of-way line of any public road (except as provided in
4VAC25-130-761.11(d)(2)) or where the applicant proposes to relocate or close
any public road, the division or public road authority designated by the
Director shall--
(1) Require the applicant to
obtain necessary approvals of the authority with jurisdiction over the public
road;
(2) Provide an opportunity
for a public hearing in the locality of the proposed mining operation for the
purpose of determining whether the interests of the public and affected
landowners will be protected;
(3)
If a public hearing is requested in writing, provide advance notice of the
public hearing, to be published in a newspaper of general circulation in the
affected locale at least 2 weeks prior to the hearing; and
(4) Make a written finding based upon
information received at the public hearing within 30 days after completion of
the hearing, or after any public comment period ends if no hearing is held, as
to whether the interests of the public and affected landowners will be
protected from the proposed mining operation. No mining shall be allowed within
100 feet of the outside right-of-way line of a road, nor may a road be
relocated or closed, unless the division or public road authority determines
that the interests of the public and affected landowners will be
protected.
(e)
(1) Where the proposed surface coal mining
operations would be conducted within 300 feet, measured horizontally, of any
occupied dwelling, the permit applicant shall submit with the application a
written waiver by lease, deed, or other conveyance from the owner of the
dwelling, clarifying that the owner and signator had the legal right to deny
mining and knowingly waived that right. The waiver shall act as consent to such
operations within a closer distance of the dwelling as specified.
(2) Where the applicant for a permit after
August 3, 1977, had obtained a valid waiver prior to August 3, 1977, from the
owner of an occupied dwelling to mine within 300 feet of such dwelling, a new
waiver shall not be required.
(3)
(i) Where the applicant for a permit after
August 3, 1977, had obtained a valid waiver from the owner of an occupied
dwelling, that waiver shall remain effective against all persons acquiring any
interest in the dwelling, whether by purchase, gift, as a creditor, or in any
other way, who had actual or constructive knowledge of the existing waiver at
the time of acquisition of the interest.
(ii) All persons acquiring any interest,
whether by purchase, gift, as a creditor or in any other way, in a dwelling,
after a valid waiver has been obtained under this Paragraph (e), shall be
considered to have constructive knowledge of the waiver if the waiver has been
properly recorded in the Clerk's Office of the Circuit Court of the county or
city in which the dwelling is located, or if the mining has proceeded to within
the 300-foot limit prior to the date of acquisition.
(f)
(1) Where the division determines that the
proposed surface coal mining operation will adversely affect any publicly owned
park or any place included in the National Register of Historic Places, the
division shall transmit to the Federal, State, or local agency with
jurisdiction over the publicly owned park or publicly owned National Register
place a copy of applicable parts of the permit application, together with a
request for that agency's approval or disapproval of the operation, and a
notice to that agency that it has 30 days from receipt of the request within
which to respond and that failure to interpose a timely objection will
constitute approval. The division, upon written request by the appropriate
agency, may grant an extension to the 30-day period of an additional 30 days.
Failure to interpose an objection within 30 days or the extended period granted
shall constitute an approval of the proposed permit application.
(2) A permit for the operation shall not be
issued unless jointly approved by all affected agencies;
(g) If the division determines that the
proposed surface coal mining operation is not prohibited under § 45.2-1028
of the Act and this Part, the Director may nevertheless, pursuant to
appropriate petitions, designate such lands as unsuitable for all or certain
types of surface coal mining operations pursuant to Part 762 or 764.
(h) A determination by the division that a
person holds or does not hold valid existing rights or that surface coal mining
operations did or did not exist on the date of enactment shall be subject to
administrative and judicial review under 4VAC25-130-775.11 and
4VAC25-130-775.13.
Statutory Authority: § 45.2-103 of the Code of
Virginia.
