Section 761.12. Procedures

(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 Section 45.1-252 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.

Historical Notes

Derived from VR480-03-19 § 761.12, 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.

Statutory Authority

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