Section 773.16. Criteria for permit approval or denial; existing structures

(a) No application for a permit or revision which proposes to use an existing structure in connection with or to facilitate the proposed surface coal mining and reclamation operation shall be approved, unless the applicant demonstrates and the division finds, in writing, on the basis of information set forth in the complete application that:

(1) If the applicant proposes to use an existing structure in accordance with the exemption provided in 4VAC25-130-701.11(d)(1)(i):

(i) The structure meets the performance standards of the Act and Subchapter VK; and

(ii) No significant harm to the environment or public health or safety will result from use of the structure.

(2)(i) If the applicant proposes to use an existing structure in accordance with the exemption provided in 4VAC25-130-701.11(d)(1)(ii):

(A) The structure meets the performance standards of the Act and the initial regulatory program;

(B) No significant harm to the environment or public health or safety will result from use of the structure; and

(C) The performance standards of the initial regulatory program are at least as stringent as the performance standards of Subchapter VK.

(ii) If the division finds that the structure meets the criteria of 4VAC25-130-701.11(d)(1)(ii), the division shall require the applicant to submit a compliance plan for modification or reconstruction of the structure and shall find prior to the issuance of the permit that:

(A) The modification or reconstruction of the structure will bring the structure into compliance with the design and performance standards of Subchapter VK;

(B) The risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction; and

(C) The applicant will monitor the structure to determine compliance with the performance standards of Subchapter VK.

(b) Should the division find that the existing structure cannot be reconstructed without causing significant harm to the environment or public health or safety, the applicant will be required to abandon the existing structure. The structure shall not be used for or to facilitate surface coal mining operations after the effective date of issuance of the permit. Abandonment of the structure shall proceed on a schedule approved by the division in compliance with 4VAC25-130-816.132 or 4VAC25-130-817.132.

(c) An existing structure shall be deemed to meet the performance standards of the Act and Subchapter VK, if it meets the standards of this Subparagraph.

(1) General standards. The existing structure shall meet the following general standards:

(i) Land use restoration. The existing structure shall be capable of being restored to a satisfactory postmining land use in accordance with the requirements of 4VAC25- 130-816.133 and 4VAC25-130-817.133, which use or uses shall not present any actual or probable hazard to public health or safety or pose any actual or probable threat of water diminution or pollution.

(ii) Topsoil storage. Stockpiled topsoil and other substitute or supplemental materials shall be placed on a stable area and protected from wind and water erosion, unnecessary compaction, and contaminants which lessen the capability of the material to support vegetation when redistributed.

(iii) Surface area stabilization. All surface areas shall be stabilized and protected to control erosion and attendant air and water pollution.

(iv) Acid and toxic-forming materials. Drainage from acid-forming, toxic-forming, or otherwise harmful materials shall not cause pollution of ground or surface waters and shall minimize adverse effects on plant growth and land uses.

(v) Hydrologic balance: Water quality standards and effluent limitations.

(A) Federal and State water quality statutes, regulations, standards, or effluent limitations shall not be violated.

(B) Discharges of water from disturbed areas shall comply with the effluent limitations of 4VAC25-130-816.42 or 4VAC25-130-817.42.

(C) No land within 100 feet of a perennial stream or an intermittent stream in accordance with 4VAC25-130-816.57 or 4VAC25-130-817.57 shall be disturbed by surface mining activities; unless the water quantity and quality within 100 feet of the surface mining activities are not adversely affected, the division specifically authorizes surface mining activities closer to or through such a stream upon a finding that the original stream channel will be restored, and the requirements of Subparagraph (c)(5) of this section are satisfied.

(vi) Off-site protection. Areas outside the permit area shall be protected from slides or damage.

(vii) Protection of fish, wildlife, and related environmental values. Disturbances and adverse impacts on fish, wildlife, and related environmental values shall be minimized using the best technology currently available and enhancement of such resources shall be achieved where practicable.

(viii) Prevention of health and safety and fire hazards. Fire hazards and other conditions which constitute a hazard to the health and safety of the public shall be avoided. Combustible materials shall be compacted, buried, disposed or otherwise treated to prevent contamination of groundwater and to prevent sustained combustion.

(2) Casing and sealing of underground openings.

(i) Sealing of drilled holes. Each exploration hole, other drill or borehole, well or other exposed underground opening shall be cased, lined, sealed, or otherwise managed to prevent acid or other toxic drainage from entering ground or surface waters; to minimize disturbance to the prevailing hydrologic balance; and to assure the safety of people, livestock, fish and wildlife, and machinery in the permit area and adjacent area.

Use of a drilled hole or borehole or monitoring well as a water well must meet the applicable provisions of 4VAC25-130-816.41 and 4VAC25-130-817.41. These sections do not apply to holes solely drilled and used for blasting.

(ii) Temporary sealing of drilled holes. Each exploration hole, other drillhole or borehole, well, and other exposed underground opening which has been identified for use to return coal processing waste or water to underground workings, or to be used to monitor groundwater conditions, shall be temporarily sealed until actual use.

(iii) Temporary sealing of underground mine entries. Each underground mine entry which is temporarily inactive, but has a further projected useful service, shall be protected by barricades or other covering devices, fenced, and posted with signs, to prevent access into the entry and to identify the hazardous nature of the opening.

(3) Standards for permanent impoundments. Permanent impoundments shall meet the following standards:

(i) The quality of the impounded water shall be suitable on a permanent basis for its intended use, and discharge of water from the impoundment shall not degrade the quality of receiving waters to less than the water quality standards established pursuant to applicable State and Federal laws.

(ii) The level of water shall be sufficiently stable to support the intended use.

(iii) Adequate safety and access to the impounded water shall be provided for proposed water users.

(iv) Water impoundments shall not result in the diminution of the quality or quantity of water used by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses.

(v) The impoundment shall achieve necessary stability with an adequate margin of safety compatible with that of structures constructed under Public Law 83-566 (16 USC § 1006).

(vi) The size of the impoundment shall be adequate for its intended purposes.

(vii) The impoundment shall be suitable for the approved postmining land use.

(viii) Perimeter slopes shall be stable and protected to minimize surface erosion.

(4) Sediment control measures.

(i) Appropriate sediment control measures shall:

(A) Prevent, to the extent possible using the best technology currently available, additional contributions of sediment to streamflow or to runoff outside the permit area.

(B) Minimize erosion to the extent possible.

(C) Meet the more stringent of applicable State or Federal effluent limitations.

(ii) Sedimentation basins shall achieve necessary dam safety and stability with an adequate margin of safety compatible with structures constructed under 4VAC25-130-816.46 and 4VAC25-130-817.46 as specified by the division; shall have an adequate storage volume and detention time which will achieve and maintain the effluent limitations; and shall be capable of safely discharging the runoff from a 25-year, 6-hour precipitation event or larger event specified by the division. Perimeter slopes shall be stable and protected to minimize surface erosion.

(5) Standards for diversion structures.

(i) Diversions shall prevent additional contributions of suspended solids to streamflow and to runoff outside the permit area, to the extent possible using the best technology currently available.

(ii) Diversions shall not divert water into underground mines, unless approved by the division and the standards of 4VAC25-130-816.43 are met.

(iii) Diversions shall not increase the potential for landslides.

(iv) Stream channel diversions shall comply with all of the requirements of this Subparagraph (c)(5), shall comply with local, State, and Federal statutes and regulations, and shall be in accordance with Subparagraph (1)(v)(C) of this section.

(6) Standards for discharge structures. Discharge structures shall reduce erosion and avoid deepening or enlargement of stream channels, and minimize disturbances of the hydrologic balance.

(7) Standards for temporary impoundments. Temporary impoundments shall achieve necessary stability with an adequate margin of safety and shall be capable of safely discharging the runoff from a 25-year, 6-hour precipitation event or larger event specified by the division. Perimeter slopes shall be stable and protected to minimize surface erosion.

(8) Standards for disposal of excess spoil. An existing excess spoil disposal area may be used for the disposal of additional excess spoil only if the facility is capable of meeting the following standards:

(i) Leachate and surface runoff from the fill shall not degrade surface or groundwaters.

(ii) The fill shall achieve necessary stability with an adequate margin of safety.

(iii) The land mass designated as the disposal area shall be within the permit area and suitable for reclamation and revegetation compatible with the natural surroundings. Spoil material shall not be deposited on any part of the operations located outside the permit area.

(iv) Appropriate surface and internal drainage systems and diversion ditches shall prevent spoil erosion and mass movement.

(v) The spoil disposal area shall have slope protection to minimize surface erosion.

(vi) The spoil disposal area shall be certified by a qualified registered professional engineer as being in conformance with professional standards.

(vii) Placement of additional spoil shall be in accordance with the applicable requirements of 4VAC25-130-816.71 through 4VAC25-130-816.75 and 4VAC25-130-817.71 through 4VAC25-130-817.75 as approved by the division.

(viii) The final configuration of the spoil disposal area shall be compatible with the natural drainage pattern and surroundings and suitable for the intended uses.

(9) Standards for coal processing waste banks. An existing coal processing waste bank may be used for the disposal of additional coal processing waste only if the facility is capable of meeting the following standards:

(i) The coal processing waste bank shall not adversely affect surface or groundwater quantity or quality or vegetation.

(ii) Necessary stability with an adequate margin of safety shall be achieved.

(iii) The coal processing waste bank shall be suitable for reclamation and revegetation compatible with the natural surroundings.

(iv) The coal processing waste bank shall not constitute a hazard to the health and safety of the public.

(v) Surface and internal drainage systems and diversion ditches shall be adequate to minimize erosion and prevent mass movement.

(vi) Slope protection shall be adequate to minimize surface erosion.

(vii) The coal processing waste bank shall be certified by a qualified registered professional engineer as being in conformance with professional standards.

(viii) Placement of additional coal processing waste shall be in accordance with the applicable requirements of 4VAC25-130-816.81 through 4VAC25-130-816.84 and 4VAC25-130-817.81 through 4VAC25-130-817.84 as approved by the division.

(10) Standards for disposal of noncoal wastes. Disposal of noncoal wastes shall ensure that leachate and surface runoff does not degrade surface or groundwater, fires are prevented, that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings, and that applicable local, State, and Federal laws and regulations are satisfied.

(11) Standards for coal processing waste: dams and embankments. Dams and embankments constructed of coal processing waste shall meet the requirements of 4VAC25-130-816.81 through 4VAC25-130-816.84 and 4VAC25-130-817.81 through 4VAC25-130-817.84.

(12) Standards for roads. Roads shall:

(i) Control or minimize erosion and siltation, air and water pollution, and damage to public or private property.

(ii) Minimize damage to fish, wildlife, and related environmental values using the best technology currently available.

(iii) Minimize additional contributions of suspended solids to streamflow or runoff outside the permit area using the best technology currently available. Any such contributions shall not be in excess of limitations of State and Federal law.

(iv) Not be located in the channel of an intermittent or perennial stream unless specifically approved by the division.

(v) Not contain stream fords unless they are specifically approved by the division and not adversely affect stream sedimentation or fish, wildlife, and related environmental values.

(vi) Have adequate drainage and have a water-control system that can safely pass the peak runoff from a 10-year, 6-hour precipitation event or other event if required by the division.

(13) Standards for other transportation facilities. Railroad loops, spurs, sidings, surface conveyor systems, chutes, aerial tramways, or other transportation facilities shall:

(i) Prevent, to the extent possible using the best technology currently available:

(A) Damage to fish, wildlife, and related environmental values.

(B) Additional contributions of suspended solids to streamflow or runoff outside the permit area. Any such contributions shall not be in excess of limitations of State or Federal law.

(ii) Control and minimize diminution or degradation of water quality and quantity.

(iii) Control and minimize erosion and siltation.

(iv) Control and minimize air pollution.

(v) Prevent damage to public or private property.

(14) Standards for support facilities and utility installations. Support facilities required for, or used incidentally to, the operation of the mine including, but not limited to, mine buildings, coal loading facilities, fan buildings, hoist buildings, sheds, shops, and other buildings, shall prevent or control erosion and siltation, water pollution, and damage to public or private property. In addition to the applicable performance standards of Parts 816 and 817 and this section, support facilities shall prevent, to the extent possible using the best technology currently available:

(i) Damage to fish, wildlife, and related environmental values.

(ii) Additional contributions of suspended solids to streamflow or runoff outside the permit area. Any such contributions shall not be in excess of limitations of State or Federal law.

Historical Notes

Derived from VR480-03-19 § 773.16, 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.