Section 772.12. Permit requirements for exploration removing more than 250 tons of coal, or occurring on lands designated as unsuitable for surface coal mining ...

(a) Exploration permit. Any person who intends to conduct coal exploration outside a permit area during which more than 250 tons of coal will be removed or which will take place on lands designated as unsuitable for surface mining under Subchapter VF shall, before conducting the exploration, submit an application and obtain written approval from the division in an exploration permit. Such exploration shall be subject to the requirements prescribed under 4VAC25-130-772.13 and 4VAC25-130-772.14.

(b) Application Information. Each application for an exploration permit shall contain, at a minimum, the following information:

(1) The name, address, and telephone number of the applicant.

(2) The name, address, and telephone number of the applicant's representative who will be present at, and responsible for conducting the exploration activities.

(3) A narrative describing the proposed exploration area.

(4) A narrative description of the methods and equipment to be used to conduct the exploration and reclamation.

(5) An estimated timetable for conducting and completing each phase of the exploration and reclamation.

(6) The estimated amount of coal to be removed and a description of the methods to be used to determine the amount.

(7) A statement of why extraction of more than 250 tons of coal is necessary for exploration.

(8) A description of:

(i) Cultural or historic resources listed in the National Register of Historic Places;

(ii) Cultural or historic resources known to be eligible for listing on the National Register for Historic Places; and

(iii) Known archeological resources located within the proposed exploration area.

(9) A description of any endangered or threatened species listed pursuant to the Endangered Species Act of 1973 (16 USC § 1531 et seq.) identified within the proposed exploration area.

(10) A description of the measures to be used to comply with the applicable requirements of Part 815.

(11) The name and address of the owner of record of the surface land and of the subsurface mineral estate of the area to be explored.

(12) A map or maps at a scale of 1:24,000 or larger, showing the areas of land to be disturbed by the proposed exploration and reclamation. The map shall specifically show existing roads, occupied dwellings, topographic and drainage features, bodies of surface water, and pipelines; proposed locations of trenches, roads, and other access routes and structures to be constructed; the location of proposed land excavations; the location of exploration holes or other drill holes or underground openings; the location of excavated earth or waste-material disposal areas; and the location of critical habitats of any endangered or threatened species listed pursuant to the Endangered Species Act of 1973 (16 USC § 1531 et seq.)

(13) If the surface is owned by a person other than the applicant, a description of the basis upon which the applicant claims the right to enter that land for the purpose of conducting exploration and reclamation.

(14) For any lands listed in 4VAC25-130-761.11, a demonstration that, to the extent technologically and economically feasible, the proposed exploration activities have been designed to minimize interference with the values for which those lands were designated as unsuitable for surface coal mining operations. The application must include documentation of consultation with the owner of the feature causing the land to come under the protection of 4VAC25-130-761.11 and, when applicable, with the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of 4VAC25-130-761.11.

(c) Public notice and opportunity to comment. Public notice of the application and opportunity to comment shall be provided as follows:

(1) Upon submission of an administratively complete application to the division, the applicant shall place an advertisement in a newspaper of general circulation in the locality of the proposed exploration area. A copy of the newspaper advertisement and proof of publication shall be filed with the division no later than four weeks after the date of publication.

(2) The public notice shall state the name and address of the person seeking approval, the filing date of the application, that the application will be available for public inspection in the division's office in Big Stone Gap, the address of the division where written comments on the application may be submitted, the closing date of the comment period, and a description of the area of exploration.

(3) Any person having an interest which is or may be adversely affected shall have the right to file written comments on the application within 30 days after the date of publication of the newspaper notice.

(d) Decisions on applications for exploration.

(1) The division shall act upon an administratively complete application for a coal exploration permit and any written comments within a reasonable period of time. The approval of a coal exploration permit may be based only on a complete and accurate application.

(2) The division shall approve a complete and accurate application for a coal exploration permit filed in accordance with this Part if it finds, in writing, that the applicant has demonstrated that the exploration and reclamation described in the application will:

(i) Be conducted in accordance with this Part, Part 815 of this chapter, and the applicable provisions of the program;

(ii) Not jeopardize the continued existence of an endangered or threatened species listed pursuant to section 4 of the Endangered Species Act of 1973 (16 USC § 1533) or result in the destruction or adverse modification of critical habitat of those species; and

(iii) Not adversely affect any cultural or historic resources listed on the National Register of Historic Places, pursuant to the National Historic Preservation Act, as amended (16 USC § 470 et seq., 1976, Supp. V), unless the proposed exploration has been approved by both the division and the agency with jurisdiction over such matters.

(iv) With respect to exploration activities on any lands protected under 4VAC25-130-761.11, minimize interference, to the extent technologically and economically feasible, with the values for which those lands were designated as unsuitable for surface coal mining operations. Before making this finding, the division must provide reasonable opportunity to the owner of the feature causing the land to come under the protection of 4VAC25-130-761.11 and, when applicable, to the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of 4VAC25-130-761.11, to comment on whether the finding is appropriate.

(3) Terms of approval issued by the division shall contain conditions necessary to ensure that the exploration and reclamation will be conducted in compliance with this Part, Part 815, and the Act.

(e) Notice and hearing.

(1) The division shall notify the applicant, the appropriate local governmental officials, and other commenters on the application, in writing, of its decision on the application. If the application is disapproved, the notice to the applicant shall include a statement of the reason for disapproval. Public notice of the decision on each application shall be posted by the division at the Court House in the county of the proposed exploration operations.

(2) Any person having an interest which is or may be adversely affected by a decision of the division pursuant to Paragraph (e)(1) of this section shall have the opportunity for administrative and judicial review as set forth in Part 775.

Historical Notes

Derived from VR480-03-19 § 772.12, 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; Volume 29, Issue 13, eff. March 27, 2013.

Statutory Authority

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